Full Case Name:  Mark, Stoner, Setter and Pearson v Henshaw

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Country of Origin:  Australia Court Name:  Federal Court of Australia Primary Citation:  (1998) 155 ALR 118 Date of Decision:  Friday, May 22, 1998 Judge Name:  Gallop, O'Loughlin and Finn JJ Alternate Citation:  (1998) 85 FCR 555; [1998] FCA 556 Judges:  O'Loughlin and Finn JJ Gallop Attorneys:  Mr T Game SC, Ms J Baly and Mr T Golding Docket Num:  AG70/1997

The four appellants, members of Animal Liberation, entered premises containing battery hens without permission. This was done allegedly on concern as to the treatment of those battery hens and the appellants claimed this constituted a reasonable excuse. After a second appeal, the convictions were upheld and it was found that the appellants did not have a reasonable excuse for trespass.

THE COURT The four appellants entered the premises of Parkwood Eggs ("the premises") during the earlier hours of the morning of 20 October 1995; they did so without permission and in the company of others. It was the appellants' case that they had a "reasonable excuse" to enter because they wished to voice their concerns about the "battery hen" farming operations that were conducted on the premises and because they were concerned that there were sick, injured and distressed birds in the premises. They were each charged with a breach of subs 11(1) of the Public Order (Protection of Persons and Property) Act 1971 (Cth) ("the Act"). That subsection provides as follows:
"A person who, without reasonable excuse, trespasses on premises in a Territory is guilty of an offence, punishable on conviction by a fine not exceeding One hundred dollars or imprisonment for a term not exceeding one month, or both."
The learned magistrate who heard the charges came to the conclusion that each appellant had a reasonable excuse for entering upon the premises; he therefore dismissed all charges. When the matter came on for review before Miles CJ in the Supreme Court of the Australian Capital Territory, his Honour concluded that the magistrate had fallen into error. He set aside the orders of the Court below in the following terms:
"The Magistrate's orders of 18 February 1997 dismissing the informations be set aside and, the Court being satisfied that the charges are proved, in lieu thereof makes an order under sub-s.556A(1) of the Crimes Act 1900 that, having regard to sub-paragraphs (i),(ii) and (iii) of para.556A(1)(b), it is of the opinion that it is inexpedient to inflict any punishment and dismisses the charges."
The appellants now appeal to this Court against the orders of Miles CJ.
The premises of Parkwood Eggs, according to the findings of the magistrate, comprise seven sheds containing, in all, some 260,000 caged hens. Its operation is said to be the largest of its kind in Australia. Much of the evidence that was adduced before the magistrate was directed to the subject of "battery hen" operations, the appellants claiming that such operations were cruel and that Parkwood Eggs and similar enterprises engaged in acts of cruelty to hens.
The following findings of the magistrate have not been challenged:
"At 2.45am on 20 October 1995, the defendants and about ten others went to the Parkwood Eggs premises. They trespassed upon those premises, that is, they entered without permission from the owners. They did this out of frustration. Some few weeks before, the defendants had received information from other members of a group called "Animal Liberation", that practices in place at Parkwood Eggs amounted to cruelty to the confined hens".
The magistrate further found that the appellants were dissatisfied with the manner in which the authorities were reacting to their complaints; he found, in particular, that their decision to trespass upon the property of Parkwood Eggs was, as he said "to have one proper "go" at making the point that the law ought not tolerate battery hens".
At the time of their entry onto the premises each appellant carried an identification card. The card contained the following message:
"Animal Liberation Rescue Team.
Our sole purpose is to give aid to animals we believe are suffering yet who are ignored by all the authorities. We are non-violent and vow no harm to any living thing or to any property."
After quoting the contents of these cards the magistrate commented:
"Of course, as subsequent events revealed, giving aid to animals was part only of the reason they were there. They also intended to milk the occasion for any publicity that it was worth."
Two of the appellants, Ms Mark and Mr  Pearson  claimed in evidence that they entered the premises to save hens. It would seem that the magistrate accepted that evidence for he mentioned, as part of his findings, that the appellants entered the premises to give aid to birds which they believed were suffering, yet whose suffering was ignored by the authorities. But he also found that after a while they "settled into the publicity side of their business".
The case for the appellants was presented upon the premise that they had a reasonable excuse to enter the premises of Parkwood Eggs because the hens were in need of aid and assistance and because they perceived the need to prevent further cruelty to the hens in circumstances where all other avenues available to the appellants had been exhausted. As to this, it was not suggested, either here or in the Courts below, that the appellants beliefs were either false or not well founded. Indeed, the magistrate found that the appellants held genuine beliefs on reasonable grounds. Counsel for the appellants, in pursuing this issue, emphasised three factors, each of which, so he argued, justified the appellants' conduct. First, he claimed that the appellants knew that the authorities were not intending to take any action against Parkwood Eggs or with respect to battery hen farming generally - indeed they were threatening to prosecute the appellants. Secondly, the appellants considered it necessary to establish that the hens were in need of protection and were being treated cruelly. Finally, the appellants considered it necessary to establish that what was occurring at Parkwood Eggs amounted to criminal conduct that breached the provisions of the Animal Welfare Act 1992 (ACT). In our opinion, each of those factors can be accepted as an accurate statement of fact or belief. It can also be accepted that the trespass that was perpetrated by the appellants occurred at a low level in the scale of seriousness that is contemplated by the legislation; the premises were in a remote locality; there was no evidence of any person being placed in fear by the trespass; and there was no disturbance of the peace. These factors are not to be ignored in making an objective evaluation of the reasonability of the appellants' excuse.
Counsel for the appellants submitted that the concept of "reasonable excuse" required the magistrate, as the trier of fact, to examine and identify the excuse that the appellants had advanced for their trespass. Having done that, it was then necessary, according to counsel's submissions, for the magistrate to test the excuse for the purpose of concluding, first, whether it was genuine and secondly, whether the excuse was reasonable. We agree that these exercises are exercises that must necessarily be carried out. Furthermore, they are to be carried out within a framework in which, as the learned Chief Justice explained in the Court below, there is an onus on the Crown to disprove, beyond reasonable doubt, the existence of any reasonable excuse. That aspect of his Honour's reasons has not been challenged.
However, the critical issue in determining whether the appellants entered upon the premises of Parkwood Eggs with a reasonable excuse is not the appellants' beliefs or their state of mind. Whilst those factors are relevant and may afford some assistance to the trier of fact, the final answer will always come from an objective assessment of the particular facts of each case; that assessment requires a consideration of not merely the trespassers' beliefs and state of mind: it requires the application of community standards. In particular, it requires the trier of fact to determine whether the trespassers' conduct is acceptable to the community. Miles CJ accurately pointed to the error that had been made by the magistrate when he said:
"... if the Magistrate had applied the objective test of the hypothetical ordinary member of the community not to the justification of the defendant's beliefs, but to the justification of their entry and remaining upon the premises until their arrest, then there would have been a finding that the defendants lacked reasonable excuse for their conduct."
The conduct of the appellants, and of those who accompanied them, once they entered the premises, is of the utmost significance in assessing the issue of "reasonable excuse". According to the findings of the magistrate one of the appellants called the police whilst another demonstrator alerted the media. He also found that the demonstrators only entered shed no 5, it being but one of the seven sheds on the premises; once inside that shed the demonstrators chained themselves to some of the cages
It is true that the magistrate also found that upon entering shed no 5 the demonstrators cared for some sick and distressed hens but one questions what succour fourteen people might expect to give to 260,000 or more hens when they visited one only of seven sheds and, shortly after entry, chained themselves to cages. No doubt the appellants would have been concerned to find sick and distressed hens in the one shed that they entered and, no doubt, they did whatever they could to alleviate any suffering. But it is apparent that those activities, on that particular occasion, were subservient to another purpose, which, in the circumstances of this case, was their dominant purpose. After all, chaining themselves to cages is hardly conducive to the freedom of movement that would be needed to examine all the hens on the premises. It is a clear inference that the dominant purpose of the appellants in entering upon the premises of Parkwood Eggs was to bring as much media and public attention as possible to their activities so that they could thereby better advertise their cause to have battery hen farming abolished.
The force of this inference and the conclusion that follows from it means that the magistrate misdirected himself in the course of his reasons. He found himself overwhelmed by the evidence that pointed in the one direction - that battery hen farming was cruel and that Parkwood Eggs was guilty of various offences. He found, therefore, that it was reasonable for the appellants to enter the premises so as to draw attention to the existence of that cruelty. But, with respect, that is not the correct approach. Parkwood Eggs is a citizen, and, like any citizen it is compelled on the one hand to comply with the law, but it is entitled, on the other hand, to expect the protection of the law. In assessing the conduct of these appellants, two factors must be stressed. First, that the battery hen method of operation remains lawful; secondly, despite the magistrate's personal observation that battery hen farming is cruel and despite his conclusion that there "is clear evidence of a breach of each of the above code provisions by the management of Parkwood Eggs", Parkwood Eggs was not on trial; and under our system of law, it is for the appropriate law enforcement agency to investigate and, if necessary, prosecute lawbreakers. Society cannot afford to allow private citizens, no matter how well-meaning, to assume the role of the law-enforcers.
The occasions when the law will permit a citizen to commit some offence with impunity are rare. In considering whether the doctrine of "necessity" was available as a defence to a charge of attempting to escape from prison Gleeson CJ with whom Clarke JA and Ireland J agreed said in Rogers (1996) 86A Crim R 542 at 546:
"The corollary of the notion that the defence of necessity exists to meet cases where the circumstances overwhelmingly impel disobedience to the law is that the law cannot leave people free to choose for themselves which laws they will obey, or to construct and apply their own set of values inconsistent with those implicit in the law."
We have no reason to question the integrity of the four appellants. We are quite sure that they hold genuine beliefs that battery hen farming is cruel. What is more, they are entitled to pursue their cause, vigorously and repetitively. But citizens, in all walks of life, must conduct themselves within the law and according to the law.
In assessing whether the Crown has proved that the appellants entered the premises of Parkwood Eggs without reasonable excuse, it is of evidential assistance to ask: why did they enter the premises? In our opinion, the answer to that question is obvious from the findings of the magistrate: they entered the premises of Parkwood Eggs so that they might gain the maximum publicity. To achieve that goal, they resorted to chaining themselves to the cages and ringing the police and the media.
The dominant issue in this case was not, as the magistrate thought, whether battery hen farming was cruel. The dominant issue was the correct identification of the reason for the appellants' entry onto the premises. Obviously, the subject of battery hen farming was relevant to the identification of that reason, but only in an ancillary sense.
We do not accept that it is reasonable to enter as a demonstrator, upon the premise of another, when the occupant is carrying on a lawful activity of which the trespasser disapproves. To find otherwise would mean that the citizen would not receive the protection of the law to which he or she is entitled. It would mean that any dissident might be at liberty to enter his or her opponents' premises in pursuit of a cause.
In Ganin v New South Wales Crime Commission (1993) 32 NSWLR 423, the Court was required to consider the issue of "reasonable excuse" as used in subs 18(4) of the New South Wales Crime Commission Act 1985 . To appreciate the context in which the words appear the provisions of subss 18(2) and (4) are set out hereunder:
"(2) A person appearing as a witness at a hearing before the Commission shall not, without reasonable excuse:
(b) refuse or fail to answer a question that the person is required to answer by the member presiding at the hearing;
(4) Subject to subsections (5), (7), (9) and (11), it is a reasonable excuse for the purposes of subsection (2) for a natural person:
(a) to refuse or fail to answer a question put to the person at a hearing before the Commission; ...
that the answer to the question, or the production of the document or thing, as the case may be, might tend to incriminate the person."
In considering how the words "reasonable excuse" should be interpreted, Kirby P, with whom Meagher JA and O'Keefe A-JA agreed, said that:
"In accordance with orthodox canons of construction these words would not be given a narrow meaning. They appear in a provision which imposes a criminal sanction for its breach." (at 436)
We consider that these remarks have equal application in these proceedings.
The decision in Ganin followed the report of a Royal Commission into allegations of collusive tendering in the building industry. Senior officers (one of whom was the appellant Ganin) of various companies that were said to be involved in the process were summoned before the New South Wales Crimes Commission to give evidence on oath about the activities of their respective companies. Even though the State and Commonwealth Directors of Public Prosecutions had given them undertakings not to prosecute, each appellant still refused to answer questions because, as he submitted, he was subjected to real or appreciable danger of exposure to civil penalty. As Kirby P pointed out, the Court, in its assessment of the matter is less concerned with the excuse that may have been advanced as "reasonable" by the intended examinee at the time and more concerned with whether there was an excuse that was reasonable:
"... the issue is not whether the objecting witness express a reasonable excuse, but whether he or she had a reasonable excuse at the time of the refusal [or] failure to answer a question." (at 437)
The risk, as identified by the appellants in Ganin's case was not regarded as so remote and negligible that it could be ignored. The risk was therefore regarded as a "reasonable excuse" by the Court.
More recently, the High Court has considered "reasonable excuse" in Taikato v The Queen [1996] HCA 28; (1996) 186 CLR 454. In that case Ms Taikato was convicted by a magistrate of possessing in a public place a thing capable of discharging an irritant liquid. The charge was laid after police found the accused carrying a pressurised canister of formaldehyde in her handbag whilst walking in a Sydney suburban street at 12.15 pm. She was convicted and on appeal in the District Court the only issue was whether she had established a defence that she had a reasonable excuse for possessing the canister or that she possessed it for a lawful purpose.
The District Court judge accepted her evidence that following a burglary at her home several years before when the robber attempted to strike her, she carried the canister in case she was attacked. Nevertheless, he held that the defence was not established because she had not been under immediate fear of attack and was not entitled to carry the canister on the off chance of being attacked. At the request of the accused, a case was stated but the Court of Criminal Appeal was of the same opinion. The accused then appealed to the High Court by special leave.
The context in which the High Court had to consider the concept of "reasonable excuse" differed from that presently under consideration. In Taikato's case the relevant legislation laid down that it was an offence to possess in a public place "any irritant matter in liquid, powder, gas or chemical form ...". There was then a provision in the following subsection affording a defence to an accused "if the person satisfies the Court that he or she had a reasonable excuse for possessing it or possessed it for a lawful purpose". Hence, there was an onus on the accused to establish the defence.
In their joint judgment Brennan CJ, Toohey, McHugh and Gummow JJ, after noting that the term "reasonable excuse" has been used in many statutes and is the subject of many reported decisions said:
"But decisions on other statutes provide no guidance because what is a reasonable excuse depends not only on the circumstances of the individual case but also on the purpose of the provision to which the defence of "reasonable excuse" is an exception. One purpose of s 545E is to protect the public from the use of certain dangerous weapons which are analogous to, but not as dangerous as, guns. It strikes at the person who goes into a public place armed with such a weapon. To achieve this purpose it uses language which arguably catches some pharmaceutical and domestic items that are most unlikely to be used to cause harm to members of the public even when they are carried in a public place. Without a defence of reasonable excuse or lawful purpose the reach of the section would be intolerable in a free society. But having regard to the width of the language of s 545E(1) and its evident purpose, determining what constitutes a "reasonable excuse" is not easy."
Their Honours concluded that there was nothing in the findings of the District Court Judge that would support a conclusion that the applicant was likely to be attacked. This conclusion was the result of an examination of the proposition - a proposition that was rejected by the majority - that a person's conduct, said to be explainable upon the principles of self-defence, constituted "reasonable excuse". No such difficulty is present in the case now before this Court.
In Reg v Bacon (1977) 2 NSWLR 507 five persons had been convicted of entering, without reasonable cause, an unoccupied part of a building. The building was one of a number of terrace houses in an inner suburb of Sydney, all of which were intended for demolition. A case was stated for the determination of the Court of Criminal Appeal from which it appeared that the appellants' alleged that they had reasonable cause for remaining in the building in that each of them believed, (inter alia) that there was an unwarranted interference by the owner in the status and dignity of the buildings. As a result of their several beliefs, the appellants concluded that they had a right to squat in the building in order to provide comfort to the occupants of the adjoining buildings that were also earmarked for demolition. Street CJ, with whom O'Brien and Ash JJ agreed, gave the leading judgment. The learned Chief Justice said that it had been found that each of the appellants had a genuine belief in the validity and propriety of his or her own actions and that it was upon that basis that the questions had come forward for decision in the Court of Criminal Appeal.
After considering the doctrine of necessity and concluding that it did not apply in the case before the Court, Street CJ then discussed whether there had been a bona fide mistake of fact or law based on reasonable grounds and, if so, whether that mistake could amount to "reasonable cause". In discussing this issue, his Honour said in reference to par (1) of the Case Stated:
"It has been found in the appellants' favour that they "had a genuine belief in the validity and propriety of" their actions (par. (1)). In substance, it is clear enough that they had no lawful right to remain on the premises. Accordingly, on the basis of the finding in par. (1), they are to be regarded as having acted under a bond fide mistake of law. This, however, is not enough. A mistake may be reasonable or unreasonable. The section directs attention to absence of reasonable cause. The mistake itself must be reasonable. Moreover there must be seen to be present the element of reasonableness in the factors leading to the remaining on the premises. If any of those factors be mistaken then the mistake must be reasonable. A derivative mistake must not only be reasonable in itself, but it must be based upon reasonable primary grounds. Those primary grounds may be true or legally valid, in which event the inquiry will be confined to the reasonableness of the derivative conclusion drawn therefrom. On the other hand the primary grounds may be themselves mistaken in which case once again the mistake at this level must also be reasonable. In short, where the inquiry is, as here, centred upon a bona fide mistake of law, the character of reasonableness must be found, not only in the ultimate mistake, but also in every error or mistake that may be present in the stages and elements leading up to the ultimate mistake of law."(at 512)
Street CJ said in Bacon's case that he would, for the purpose of his judgment, accept that all appellants genuinely held the beliefs that had been identified during the course of the proceedings. Nevertheless, he concluded that those beliefs would not in law amount to a reasonable basis for the appellants reaching the conclusion "that not only was it a reasonable tactic to squat in the unoccupied area of the premises in question, but also that they had a right to do so in order to provide, as it were, a front of solidarity to provide comfort to the existing occupants and also to maintain the physical status of the relevant buildings." In coming to his conclusion Street CJ discussed the difficulties that confront the protester and the dissident; he said (at 513):
"The circumstances in which an individual can be permitted to take the law into his own hands are limited. There is to be observed, moreover, a developing tendency to limit yet further what might be described as self help by physical assertion of legal rights. Repossession of premises by a lessor provides a highly topical case in point. Recognized fields such as abatement of nuisance and removal of trespassers have not been seen to be extended in recent years. It is a clear policy of the law that legal rights should ordinarily be enforced and protected by due process, and not by taking a physical initiative. To accept it as reasonable that every individual can intervene physically to hinder or prevent a breach or to procure observance of civil law would involve dangerous overtones capable of leading to oppression and coercion, if not to actual disorder. The law enforcement agencies of the community, both civil and criminal, have the responsibility on its behalf of seeing to the observance of the law."
We endorse his Honour's remarks. We consider that they are most relevant to the facts of this case and that they should be applied by this Court.
Counsel for the appellants criticised the section of Miles CJ's reasons in which his Honour characterised the actions of the appellants as merely a protest. In our opinion, that criticism is not justified. Indeed we share his Honour's observation. The inference that may fairly be drawn from the undisputed facts points inexorably to the conclusion that the appellants' dominant purpose in entering the premises was to advance their cause against battery hen farming. Based on the authorities to which reference has been made that purpose does not amount to a "reasonable excuse".
We have reached these conclusions without having to resort to the Minister's second reading speech at the time of the introduction of this legislation. But it is of some interest to note that the conclusions do, as a matter of fact, accord with what was said by the Minister of the day:
"... the public interest requires that lawful occupiers of land and premises should be protected from intrusions upon their peaceable occupation. The technique of protest known as the `sit-in' is such an intrusion. There is good reason to conclude that the sanction of the civil law - the action for damages for trespass of land - is inadequate to control this sort of behaviour and that a moderate criminal sanction is justified."
House of Representatives 1971, Debates, vol.HR71,p927.
It follows that the appeal to this Court must be dismissed. The question which arises is what consequential orders should be made by this court in the final disposition of the appeal. The appeal to the Supreme Court was by way of order to review an order of the Magistrates Court dismissing informations dealt with by that court (s 219B(1)(c) of the Magistrates Court Act 1930 (ACT)).
The respondent obtained an order nisi from Gallop J on 21 March 1997 on identified grounds pursuant to s 219C of that Act. The return of the order was heard by Miles CJ under s 219F and the order was made absolute.
An appeal to the Supreme Court of the Australian Capital Territory by way of order to review pursuant to Part XI of the Act is not a rehearing. Nor is it an appeal on questions of fact. The error or mistake which has to be demonstrated pursuant to s 219C(1)(c) is confined to an error of law: Saunders v King, Blackburn J, 16 September 1974, unreported; Priest v Cook, Kelly J, 22 September 1982, unreported; Dahlstrom v Low, Gallop J, 1 July 1996, unreported.
The powers of the Supreme Court on the return of an order nisi to review a decision of the Magistrates Court are set out in s 219F of the Act, the relevant parts of which provide:
"(1) On the return of an order nisi to review a decision of the Magistrates Court, the Supreme Court, on consideration of the evidence before the Magistrates Court, and any further evidence called by leave of the Supreme Court -
(a) may, if satisfied that the decision of the Magistrates Court should be confirmed, discharge the order nisi; or
(b) may set aside or quash, in whole or in part, or otherwise vary or amend, the decision of the Magistrates Court.
(1A) Where, pursuant to paragraph (1)(b), the Supreme Court sets aside, quashes or otherwise varies or amends a decision of the Magistrates Court, the Supreme Court may -
(a) ...
(b) ...
(ba) ...
(c) in any other case -
(i) remit the matter to the Magistrates Court for rehearing or for further hearing with or without directions of law; or
(ii) make such further order, including an order granting any relief that the Supreme Court is empowered to grant on certiorari, mandamus, prohibition or habeas corpus, as the Supreme Court thinks necessary to determine the matter finally."
On the disposition of the appeal by way of order to review in the Supreme Court of the Australian Capital Territory, Miles CJ obviously made such further order as he thought necessary to determine the matter finally. So much is evident from the following remarks by him, AB pp350-351:
"The question then requires a consideration of what order this Court should make. I do not think it appropriate for this Court to embark in any substantial way upon an inquiry as to penalty. On the other hand, it is clear that if the case is remitted to the same Magistrate, the defendants will be discharged under s 556A of the Crimes Act 1900. If remitted to another Magistrate, a heavier penalty might well be imposed. For reasons which I tried to articulate in Myers v Claudianos (1990) 100 FLR 362, it is undesirable that the defendants be placed in double jeopardy. As a disposition under s 556A would have been within the discretion of the Magistrate, I therefore make the following orders:
1. The order nisi of 21 March 1997 is made absolute.
2. The Magistrate's orders of 18 February 1997 dismissing the informations are set aside and, the Court being satisfied that the charges are proved, in lieu thereof makes an order under sub-s 556A(1) of the Crimes Act 1900 that, having regard to sub-paragraphs (i), (ii) and (iii) of para 556A(1)(b), it is of the opinion that it is inexpedient to inflict any punishment and dismisses the charges.
3. Costs of and incidental to the appeal be paid by the appellant as agreed or taxed."
Turning to the question of what order this court should make, the powers of this court in the exercise of its appellate jurisdiction are contained in s28 of the Federal Court of Australia Act 1976 (Cth) which relevantly reads:
"28(1) Subject to any other Act, the Court may, in the exercise of its appellate jurisdiction:
(a) affirm, reverse or vary the judgment appealed from;
(b) give such judgment, or make such order, as, in all the circumstances, it thinks fit or refuse to make an order;
(c) set side the judgment appealed from, in whole or in part, and remit the proceeding to the court from which the appeal was brought for further hearing and determination, subject to such directions as the Court thinks fit;
(d) set aside a verdict or finding of a jury in a civil proceeding, and enter judgment notwithstanding any such verdict or finding;
(e) set aside a verdict or finding of a jury in a trial on indictment and order a verdict of not guilty or other appropriate verdict to be entered;
(f) grant a new trial in any case in which there has been a trial, either with or without a jury, on any ground upon which it is appropriate to grant a new trial; or
(g) award execution from the court or, in the case of an appeal from another court, award execution from the Court or remit the cause to that other court, or to a court from which a previous appeal was brought, for the execution of the judgment of the Court.
(2) ...
(3) ...
(4) ...
(5) The powers of the Court under subsection (1) in an appeal (whether by the Crown or by the defendant) against a sentence in a criminal matter include the power to increase or decrease the sentence or substitute a different sentence."
In the circumstances, the appropriate orders are that the appeal be dismissed and the judgment of the Supreme Court of the Australian Capital Territory be affirmed.
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