Ward, Ani Rose v Visser, Claas
[1999] TASSC 68
•7 June 1999
[1999] TASSC 68
CITATION: Ward v Visser [1999] TASSC 68
PARTIES: WARD, Ani Rose
v
VISSER, Claas
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: APPELLATE
FILE NO/S: LCA 29/1998
DELIVERED ON: 7 June 1999
DELIVERED AT: Launceston
HEARING DATES: 23 April 1999
JUDGMENT OF: Crawford J
CATCHWORDS:
Criminal Law - Particular offences - Offences against peace and public order - Assaulting, resisting, hindering, or obstructing police officer - Officer acting in execution of duty - In the ordinary course - Protester refusing to cease blocking of road when directed - Police officer wishing to allow police and forestry vehicles to proceed but not other vehicles - Whether officer acting in the execution of his duty.
Police Offences Act 1935 (Tas), s34B(1)(a)(i).
Aust Dig Criminal Law [335]
Criminal Law - Particular offences - Miscellaneous offences and matters - Other offences - Interfering with the operation of a vehicle involved in forest operations - Blocking of road - Forestry vehicles unable to proceed - Whether interfering with the operation of a vehicle - Transport operations related to and connected with harvesting of forest products - Whether vehicles involved in "forest operations" - Whether in an area in which forest operations are being carried out.
Forestry Act 1920 (Tas), s46(1A).
Aust Dig Criminal Law [416]
REPRESENTATION:
Counsel:
Applicant: S B McElwaine
Respondent: M M G Miller
Solicitors:
Applicant: S B McElwaine
Respondent: Director of Public Prosecutions
Judgment ID Number: [1999] TASSC 68
Number of paragraphs: 22
Serial No 68/1999
File No LCA 29/1998
ANI ROSE WARD v CLAAS VISSER
REASONS FOR JUDGMENT CRAWFORD J
7 June 1999
In a court of petty sessions two charges against the applicant were found proved. The notice to review refers to the applicant having been convicted of them, but I think that is incorrect. She has not yet been sentenced. I will deal separately with each charge.
Wilfully obstructing a police officer
She was found guilty of wilfully obstructing a police officer contrary to the Police Offences Act 1935, s34B(1)(a)(i). Particulars of the charge, as contained in the complaint, were that on 9 March 1998, at Meander, she wilfully obstructed "Sergeant McKenzie and other police officers in the execution of their duty, by attaching herself to a gate in Scotts Road and refusing to remove yourself from that gate when directed to do so by Sergeant McKenzie who with other Police Officers was attempting to maintain a free flow of traffic on Scotts Road". The applicant does not attack the finding of the learned magistrate that she obstructed Sergeant McKenzie and other police officers. The grounds of the motion concern whether the officers were acting in the execution of their duty at the relevant time.
The applicant was in a State forest which was Crown land and she was on a forest road. At that point on Scotts Road a boom gate had been erected across it. Forestry workers wished to drive their vehicles along Scotts Road, through the position of the boom gate, and on to a coup about three and a half to four kilometres distant from the boom gate where they intended to carry out logging operations. The applicant, by means of a device, was locked onto the boom gate, thereby preventing it from being opened. Sergeant McKenzie asked her to unlock herself from the gate and to cease her obstruction. She refused and claimed that she was incapable of unlocking herself from the device on her arms. She also pointed out that the officers ought not attempt to cut her from the device, by use of an angle grinder, as kerosene had been poured onto her arms and into the device. The police, however, had the angle grinder cut off the other end of the gate at its hinges and were then able to swing it open. It was Sergeant McKenzie's evidence that after that had been done he started to move towards his vehicle at the same time as forestry vehicles began to move through the gateway. On hearing a commotion he looked back and saw that the applicant, by using the same device, had locked herself onto the rear of a vehicle. The officer then realised that for the whole time she had been able to unlock herself.
That area of the forest was the subject of a protest against logging operations, and the applicant was taking part in that protest. Sergeant McKenzie had been at the protest site since 4 March. His evidence was that there was no denial of access up to the boom gate, but the applicant's actions had stopped people wishing to go to work in the forestry coup beyond the gate. He said that until their vehicles could go through, their work could not be done and he believed that he "had a responsibility to ensure that the road was clear for Forestry to go about their operations".
Mr Oldfield, the Manager of North Forest Products Tamar Division, gave evidence of being specifically responsible for harvesting timber on the coup which had drawn the protest action. He said Scotts Road had been used continuously by the public until his company erected the boom gate to restrict access because of a concern to maintain safe operations. He said that the proposed logging area was allocated to his company as part of a Forestry Tasmania three year plan. Cross-examination was not directed to Mr Oldfield concerning the legality of the erection and operation of the boom gate and no evidence was given or adduced about this point by either party. The learned magistrate noted that under the Forestry Act 1920, s20B, provision is made for denial of use to the public of a forest road that has been temporarily closed. His Worship concluded that "the presumption of regularity, particularly in the absence of evidence of irregularity, as here," provided a basis for rejecting the argument, advanced on behalf of the applicant, that the erection and operation of the boom gate was illegal.
As noted above, Sergeant McKenzie expressed his belief that his duty "was to ensure that the road was clear for Forestry to go about their operations". The learned magistrate said that it was the applicant's actions which prevented access to those working in the area, not the boom gate, which would have been opened to the forestry workers but for her actions which prevented it. His Worship found that Sergeant McKenzie was acting in the execution of a duty to keep the road free for those working in the area, and to keep others out. Whether he had a duty to keep others out I find unnecessary to determine.
His Worship found that Scotts Road was a public street up to the boom gate, but beyond that point it was not a public street for the purposes of the Traffic Act 1925. Nevertheless it remained a "forest road" for the purposes of the Forestry Act 1920. In his Worship's view, police duties regarding the road did not end at the boom gate. Given the temporary closure of the road to those not involved in forest operations beyond the boom gate, those duties, according to the learned magistrate's findings, included denying access to those not involved in such operations as well as ensuring access by those involved in forest operations. The learned magistrate accepted that the proposed logging area was allocated to North Forest Products as part of a Forestry Tasmania three year plan. He found that Mr Oldfield, as the Manager of North Forest Products Tamar Division, was specifically responsible for harvesting timber in the area and he appeared to be the person managing the road for the purpose of timber production. Police duties were to ensure that at the least his management of the forest road remained free of interference and that the boom gate served its purpose. The learned magistrate concluded that Sergeant McKenzie was acting in the lawful execution of his duty in directing the applicant to detach herself from the boom gate. It was found that a refusal to do so amounted to a wilful obstruction of a duty the officer was required at law to execute. "That duty was to ensure a free flow of traffic by those who needed to use the road managed by Mr Oldfield for the purpose of timber production in their work in connection with the forest operation," his Worship said.
Grounds of the motion to review assert that the learned magistrate erred in law and in fact in finding that Sergeant McKenzie and other police officers were at the relevant time acting in the execution of their duty and in finding that the execution of their lawful duty extended to ensuring a flow of traffic upon a road which, as a matter of fact, had been closed to most members of the public.
It was Sergeant McKenzie's evidence that he was permitting police personnel and forestry workers from Forestry Tasmania and North Forest Products to proceed beyond the gate. It may be inferred from what he said that he would have prevented many other members of the public from doing so, particularly protesters such as the applicant. It is therefore clear that although at the time he was obstructed by the applicant in his attempt "to maintain a free flow of traffic on Scotts Road" (they were the words used in the complaint), he only intended to maintain a free flow for police and forestry worker's traffic, and not a free flow of traffic for all members of the public. It is also clear that the applicant was seeking to prevent the free flow of the limited traffic the officer was seeking to maintain.
Counsel for the applicant said that if it had been proved, by evidence, that the boom gate was lawfully blocking the road, he would not be arguing that the police were not acting in the execution of their duty. I presume that he had in mind what was said by Wright J in R v Commissioner of Police; ex parte North Broken Hill Ltd (1992) 1 Tas R 99 at 104 - 108. Counsel submitted that Scotts Road was a public road, before and after the gate, and that by preventing some members of the public from passing along it, beyond the gate, the police officers were not acting in the execution of any duty they had. Counsel conceded that if Scotts Road beyond the gate was not a public street, he would have no argument.
I think there is a simple answer to counsel's submissions in support of the grounds of the motion to review. At the material time, when the applicant was obstructing Sgt McKenzie, she was seeking to keep Scotts Road blocked to traffic by the presence of the gate. Her purpose was to prevent the flow of traffic along Scotts Road. Sergeant's McKenzie's purpose was to open the gate so as to permit the flow of vehicles which were waiting at the gate. Although Sergeant McKenzie intended that if vehicles other than those of police and forestry workers tried to pass through the gate he would have prevented them from doing so, that is not in fact what he was doing at the time the applicant obstructed him. On the basis of her own case, she was committing an offence by unlawfully obstructing the use or enjoyment of a highway, contrary to the Police Offences Act 1935, s15C(1)(f), and the police had a duty to prevent the commission of that offence by her. The applicant obstructed the officer in the execution of that duty, notwithstanding that if certain circumstances had come into existence he would have acted in such a way that he may not have been acting in the execution of his duty (about which I find it unnecessary to decide).
Unlawfully interfering with a vehicle involved in forest operations
The applicant was also found guilty of unlawfully interfering with a vehicle involved in forest operations contrary to the Forestry Act 1920, s46(1A)(b). The sub-section provides inter alia that "a person must not, without lawful authority … interfere with the operation of any vehicle or other equipment in an area of State forest in which forest operations are being carried out, or are being attempted to be carried out". The grounds of the motion to review, upon which the applicant relied, were that the learned magistrate erred in law and in fact firstly, in finding that the applicant had interfered with the operation of a vehicle and secondly, in finding that she had done so in an area of State forest in which forest operations were being carried out.
The learned magistrate found that the free movement of vehicles was impeded by the applicant and said that he had no difficulty concluding that her actions amounted to an interference with the operation of a vehicle. He found "that the convoy of vehicles … could not proceed beyond the point where … the defendant Ward was locked on to the boom gate by her arms, without first removing the defendant". The applicant "had adopted this position … in protest at the proposed logging of a coup in this State Forest". His Worship rejected an argument that the expression "interfere with the operation of any vehicle or other equipment" in s46(1A)(b) should be confined to sabotaging a vehicle. He held that it would undoubtedly include sabotage but was not limited to that. Noting that the prohibitions of s46(1A) extended not only to interference with the operation of any vehicle or other equipment (par(b)), but also to interference with any vehicle or other equipment (par(a)), the learned magistrate thought that par(a) prohibited doing something to the vehicle itself by way of interference, while par(b) prohibited interfering with something a vehicle is doing rather than with the vehicle itself. In this case the vehicles were being driven on Scotts Road and they were forced to stop before they had completed their journey by the protest action of the applicant. The learned magistrate regarded that as interference with the operation of the vehicles, their prime purpose as a means of transport being thwarted by what the applicant did.
I understood the applicant's counsel to submit that the applicant did not interfere with the operation of a vehicle but with a right of human beings to travel along and to drive vehicles along the road. He submitted that the vehicles continued to be capable of operating and that for there to be interference with the operation of a vehicle there needed to be physical interference with the vehicle itself. He cited Wilson v Chambers & CoPty Ltd (1926) 38 CLR 131 at 145, but that case does not support his submission. It concerned interference with goods and merely suggests that s46(1A)(a), when referring to interfering with vehicles, is referring to physical interference with vehicles. The case did not concern the question of interference with the operation of vehicles or goods, which is an entirely different question.
I agree with the submission of the respondent's counsel that par(b) would be otiose if it prohibited only physical interference with vehicles and other equipment, because that is plainly prohibited by par(a). Paragraph (b) extends to something more than mere physical interference with a vehicle or other equipment. It extends to interference with the operation of a vehicle. In my opinion the learned magistrate was correct in holding that doing something which prevents a motor vehicle being driven along a road amounts to an interference with the operation of the vehicle. In my opinion the operation of a vehicle or other equipment extends to its being driven or worked and an act which interferes with the driving or working of it amounts to an interference with its operation.
I add that although it was not mentioned by the learned magistrate in his reasons, there was undisputed evidence that once the hinges of the gate had been cut off and the gate opened, Mr Oldfield, the manager of North Forest Products Tamar Division, commenced to drive through the gate in his company's utility, which had been the vehicle nearest to the gate. However he was forced to stop when the applicant ran up and locked herself onto a steel frame on the rear of the vehicle. In my opinion that action also amounted to an interference with the operation of a vehicle.
The remaining question concerns whether the applicant's interference with the operation of a vehicle occurred, as required by s46(1A), "in an area of State forest in which forest operations are being carried out". By s4(1) the expression "forest operations" is defined:
"'forest operations' means work connected with —
(a) planting trees; or
(b) managing trees before they are harvested; or
(c) harvesting forest products—
and includes any related land clearing, land preparation, burning-off, access construction or transport operations;"
It was conceded by the applicant's counsel, both in this Court and the court of petty sessions, that the relevant incident occurred in an area of State forest, but it was submitted that it was not established by the evidence that forest operations were being carried out in that area of State forest. It is clear from the evidence that in the close vicinity of the boom gate there was no tree-felling or other direct harvest operation being carried out.
The learned magistrate made the following findings. The applicant's actions were part of her protest against the proposed logging of a coup in the State forest. At that time the only operation taking place was the falling of trees along a road line into the coup to be logged. Those responsible for that work were forced to a stop, in their vehicles, by the presence of the applicant. The trees felled for the road line were harvested as timber. The coup was about three and a half to four kilometres distant from the applicant's position at the boom gate. The learned magistrate said that he had no difficulty in determining that the falling of trees for the road line amounted to forest operations, as defined by s4(1), on the basis that it was a necessary, albeit first step to the timber such trees would provide, being harvested as forest products. The definition of "forest operations" included "work connected with … harvesting forest products" and his Worship held that there was a clear connection between the work of felling and the later harvesting or gathering up of the forest products. Felling could be regarded as the first step in the process of harvesting. The learned magistrate did not mention it, but it is also clear that the felling of trees along the road line was part of "related land clearing, land preparation" and "access construction" and thus fell within the definition of "forest operations" in s4(1), being work connected with the harvesting of forest products.
The learned magistrate then addressed the question whether the applicant was in the area of State forest in which forest operations were being carried out. He noted that she was three and a half to four kilometres distant from the site of the tree-felling operations and therefore, she was not at the site of those operations. He said that "area" was not defined by reference to a boundary but by reference to an activity, that activity being the work of forest operations. Those operations were the felling of trees for the road line, which on the evidence would extend the access road, upon which the applicant was fastened to the boom gate, into the coup itself. The learned magistrate then said: "That is an obvious and fundamental connection as I see it, where the actions of (the) defendant amount to an interference with the operation of vehicles transporting forestry workers on the very access road which has been closed and which forest operations are extending into the logging coup, and places (the) defendant in the area where forest operations are being carried out." Upon that basis he found the charge under s46(1A) proved.
With respect, I agree with the learned magistrate although I doubt that he explained clearly what I think he meant. The evidence established that the applicant interfered with the operation of vehicles at the place on Scotts Road where the boom gate was situated, that at that place forest operations were being carried out and, as was conceded, that place was in an area of State forest. I say that forest operations were being carried out at the place where the boom gate was situated for the following reasons. The definition in s4(1) of "forest operations" states that the expression means inter alia work connected with harvesting forest products. Such harvesting was being carried out some three and a half to four kilometres away in an area which was also within the State forest. The definition also includes within the meaning of the expression any related transport operations. At the place where the boom gate was situated and where the applicant was interfering with the operation of the vehicles, work in the form of transport operations was being carried out, those transport operations being related to the harvesting being carried on further along the road. The transport operations included, as found by the learned magistrate, the transporting of forestry workers by the operation of vehicles on the access road leading to the area of harvesting. Having regard to the definition of "forest operations", the transport operations (the transporting of the forestry workers) was related to the harvesting and it was work connected with it.
There is no need to consider the argument of the applicant's counsel which concerned whether a place which is three and a half to four kilometres away from forest operations can be said to be in the area of the forest operations.
For these reasons I am of the opinion that the learned magistrate correctly found proved both charges. The motion will therefore be dismissed.
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