Activist Rights

Strategies for Court

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There isn’t one correct strategy when approaching the court.

You and your group should talk and think about your strategy for dealing with the court and the legal system.

Some activists choose to ignore the court completely. This may be because they are ethically opposed to engaging with the court process or believe that it gets in the way of activism.

Other activists see court as part of action and something that can be politically useful or an effective part of the campaign.

However you see court – if you are facing court it is worth putting effort and planning into your approach.

No jurisdiction?

We live on stolen land. Indigenous sovereignty has never been ceded. As activists it is crucial to educate ourselves. Important resources are:

The struggle to recognise Indigenous sovereignty over the lands and waters of Australia and realise a treaty is a political struggle.

It is not (solely) a legal struggle, nor one that can be won (solely) in the courts.

It is an urgent imperative and one which requires transformative political change.

Court cases may present opportunities to highlight and raise awareness about the continuing and illegal occupation of Indigenous lands.

Asking the courts to do something they ultimately never can – justify and legitimise their jurisdiction – may serve as an opportunity to highlight the limitations of the Australian judicial/political system and present media opportunities for making these arguments to a wider public.

Some activists have chosen to enter a plea of ‘no jurisdiction’ in the court. Although this argument is unlikely to legally succeed in any proceedings, making it may help to further other political objectives activists may have.

Although the court was not asked to and did not question the established position that British sovereignty was acquired through “settlement”/ invasion, the decision of the High Court in Mabo No.2 encouraged further challenges to jurisdiction of Australian court’s, and particularly to their ability to prosecute Indigenous peoples.

Blokland and Flynn argue that the court’s rejection of the terra nullius and acceptance that Aboriginal people had their own system of laws ‘raise the spectre of the classification of Australia as a settled colony being reviewed.’ The authors acknowledge both that ‘[t]here is no indication in Mabo that the High Court is prepared to recognise Aboriginal sovereignty’ and that the High Court is unable to inquire into the actual acquisition of sovereignty. Nevertheless, the authors note that the court may be able to review the manner of acquisition:

‘Two alternatives present themselves. First, it might be accepted that Aboriginal sovereignty survived “settlement” and co-exists with Crown sovereignty. This approach prevailed in relation to the indigenous people of the United States who are said to enjoy an inherent or dependent sovereignty … Secondly, Australia might be re-classified as a “conquered” colony …it could be argued that Aboriginal people, in so far as they adhere to Aboriginal law, are not subject to the received criminal law.’

However, all attempts to challenge Australian court’s jurisdiction to hear criminal matters have failed. For example in Walker v NSW (1994) 126 ALR 321 at 322 the Chief Justice of the High Court said:

‘there is nothing in the recent decision of Mabo v Queensland (No. 2) to support the notion that the parliaments of the Commonwealth and New South Wales lack legislative competence to regulate or affect the rights of Aboriginal people, or the notion that that the application of Commonwealth or State laws to Aboriginal people is in any way subject to their acceptance, adoption, request or consent. Such notions amount to the contention that a new source of sovereignty resides in the Aboriginal people. Indeed, Mabo (No. 2) rejected that suggestion.’

However, for many activists facing charges for protests, especially where the objectives of the protest was to be part of or to act in solidarity with Indigenous struggles, pleading ‘no jurisdiction’ is an important political and ethical choice. In choosing to plea ‘no jurisdiction’ they seek to continuously highlight the need for political and legal recognition of Indigenous sovereignty.

For a discussion of case in which it was argued (unsuccessfully) that the Australian criminal law does not apply to Indigenous peoples see Jonathan Kenna ‘Mabo the Native Title Revolution: Some Ramifications of the Decision for the Criminal Law’ at http://www.mabonativetitle.com/info/ramificationsCriminalLaw.htm

Case study

In 2009 a group of activists claimed no jurisdiction in the Magistrates Court after being arrested within the grounds of Barrick Golds Lake Cowal Gold Mine, and charged with Enter inclosed lands without lawful excuse.

The basis of our argument was that Australia was colonised illegally and therefore the court (an institution of Commonwealth law) lacked the jurisdiction to adjudicate the matter. Our argument was based largely on the findings of the Mabo case and certain cases and premises of international law. The main points of our argument were:

  • During the colonial period the conduct of colonial powers was bound by the Law of Nations
  • Under the Law of Nations in 1788 the British Crown had three options open to it: Cession, Conquest or Settlement (commonly referred to as occupation)
  • Despite historical evidence of resistance to the British, the continent was never declared conquered
  • Instead of declaring the continent conquered (and there are no treaties to suggest that it was ceded), the British declared it a settlement on the basis of terra nullius: the Law of Nations required that settled or occupied territories be terra nullius.

In 1992, the High Court overturned the principle of terra nullius in Mabo v Queensland. However, the concept of “settlement,” the legal analogue of terra nullius at common law, was never overturned.

It follows from this that either:

  • Terra nullius still exists through the common law concept of settlement OR
  • The British Crown no longer has any legal claim to sovereignty in Australia

According to international law at the time, the British could not have settled a land that was not empty, therefore Australia was not settled according to the principles of international law in effect at that time.

We represented ourselves on the basis that it would be a contradiction to claim that the courts do not have jurisdiction and then be represented by a lawyer, technically an officer of the court. One mistake was handing our argument on paper to the Magistrate before we presented it – allowing the Magistrate to cut me off half way through presenting the argument on behalf of the group, claiming to have read the rest, and ruling that the court indeed had jurisdiction. The Magistrate gave no substantial reasons to justify his finding, relying on the requirement for us to show lawful excuse under the NSW Inclosed Lands Protection Act, under which we were charged. This was despite the procedural convention, otherwise observed in our legal proceedings, that the question of whether the court has jurisdiction been addressed prior to any discussion of the facts of the case.

Once the Magistrate had found that the court had jurisdiction and the court proceeded to the facts of the case, we disengaged from the rest of the proceedings, refusing to enter any argument in our defence as it had not been shown that the court had jurisdiction.

A significant problem in our case was that there were two groups being heard on the same day. The original group of arrestees had split into a group with legal representation making a different jurisdictional argument that fell within accepted legal parameters; and our group, unrepresented and making a novel argument.  Inadvertently, this led to our argument not being genuinely tested. As the individuals in the two groups had all been charged for exactly the same reasons, all arguments and facts of the case had to be heard before a ruling could be made, to avoid a discrepancy in the final decision which may result in a discrepancy of justice. This meant that despite our requesting otherwise, our case could not be considered separately from the arguments put forward by the lawyer for the other group.

Both groups were found guilty on the grounds that we could not prove lawful excuse. However, the parity required of the ruling was not extended to sentencing. The represented received fines of $300 plus court costs (aside from those with prior offences), as compared with $400 plus costs for the unrepresented claiming no jurisdiction. Both groups were convicted.

A smaller group had their sentences (including convictions) dismissed under Section 10(1)(a) Crimes Sentencing Procedure) Act 1999, on appeal to the NSW District Court. The appeal only challenged sentence severity, and as such did not re-open the question of jurisdiction. Its importance perhaps lies in the main argument made by our lawyer: that had we entered a plea of guilty from the outset we would have undoubtedly qualified for a Section 10 (given the nature of our actions), and therefore we should not be penalised for testing the law. This provides a precedent for others making this argument at the level of the Magistrates Court.

Thanks to Nectaria.

Fishing expeditions

The court has sometimes been used as a way of getting information that is otherwise unavailable, by cross-examining officials or calling for documents. This approach was successfully used in the McLibel case against McDonalds in the UK.

However this can be time consuming and expensive, so it’s useful to consider other ways of accessing information (eg, Freedom of Information, etc).

Court can also be a way of getting alternative information into court and onto the public record, particularly if good media is used.

It may be possible to call for documents or witnesses dealing with the subject of the original action or to read them into the court record yourself. For example, in explaining why they felt they had to trespass at Nurrungar, some activists spoke in court about the functions of the base and its role in US war fighting strategies.

Also see Freedom of information

Pleading Guilty or Not Guilty

The plea that you enter can be a difficult political choice. It should be considered in the context of the aims of the action and your ability to conduct a court case and deal with the range of possible penalties.

Many, if not most, activists tend to plead guilty because it can be easier, involves little or no organisation and need not involve legally trained people. This is the dominant reason why people plead guilty to summary offence charges arising out of nonviolent actions.

Entering a guilty plea at your mention date means that the case will be heard and determined quickly and hence you will not be burdened with a drawn out court case. If you feel that you can achieve more by investing energy elsewhere there is a strong case for a pragmatic plea of guilty.

It is important to note that a plea of guilty will (in the absence of various other factors) ensure a criminal record.

By cooperating with a system which operates on the basis of a large proportion of guilty pleas it might be reasonable to expect a lighter sentence, although this depends largely on the magistrate who hears the case and the charge faced.

Despite the relative ease of pleading guilty, some degree of legal support is still required if people are to minimise the penalties imposed and enter pleas in mitigation of sentence. If at all possible those charged should be present and represented at their hearing.

The courts operate on the basis that most people will plead guilty to the charge/s laid against them. Some activists say that pleading guilty supports the system and allows police, on occasion, to get away with the most outrageous charges simply because they were never forced to prove them.

Other activists say that pleading guilty to a charge, by its very nature, recognises the validity of the law and the system of criminal justice.

At a personal level a plea of guilty can be seen as an acceptance that what was done was indeed criminal and worthy of punishment by the state. That is, of course, unless you do not recognise the legitimacy of the state. If this were the case then the most logical course would appear to be the entry of no plea.

For minor offences (for example – trespass) division may be available to activists who do not have any previous court matters. Diversion provides a chance to avoid a criminal record.

In order to be eligible the offence with which you were changed needs to be triable summarily and not be subject to a minimum or fixed sentence penalty.

In order to be eligible for diversion you need to accept responsibility for the offence. For many activist this raises similar issues as discussed above in the ‘pleading guilty’ section (ie. supporting the system, allowing police to get away with outrageous charges, recognises the validity of the law, accepting that what was done was criminal).

Additionally, to be eligible for diversion the prosecution (the police officer who arrested you) needs to recommend you for diversion. Sometimes it is useful for a lawyer to contact the police officer by letter or phone to put forward arguments why diversion would be appropriate in your case.

If the police officer recommends you for diversion a magistrate or judicial registrar still needs to find you fit for diversion before it can proceed.

You will therefore be required to attend court and present to the Diversion Co-ordinator. You are asked to fill out a questionnaire relating to your ‘offending’ and your attitude towards its. Again, for many activists balancing political and pragmatic objective can sometimes be a difficult process. On one hand, many activists would not feel comfortable saying they ‘regret’ the actions they took and they would never do the same thing again, while on the other hand, many magistrates would be very uncomfortable with you writing you are proud of and celebrate your actions, that history will record them in heroic terms and that you are prepared to do the same and encourage others to do the same tomorrow! As always, discussions with lawyers, legal support team and other activists are useful to develop an approach towards the court process that you find ethical, political strategic and pragmatic.  

The benefits of division are that you no not receive a criminal record, which has advantage when applying for visas for some countries, applying for jobs or for (potential) future court matters.

There are generally conditions attached to a diversion orders. Common conditions include:

  • a contribution to a fund (sometimes the court fund, other times to a particular charity – in some cases to Friends of the Earth or other NGOs, but in other’s to the police association’s Blue Ribbon fund!)
  • a condition to be of good behaviour for a set period of time (generally ranging between 3 – 6 months)
  • writing a letter of apology

For further information see the Magistrates Court ‘Criminal Justice Diversion Program’

Many activists feel that by pleading not guilty they can question the validity of laws that they are alleged to have broken.

At a political level a plea of not guilty is effective in two ways. The first is that the police have the onus to prove the offence with which they have charged you. In mass actions this requirement alone may seriously overburden the court system. The successful defence of a small number of those charged may also be successful in forcing the prosecution to drop charges against other arrestees which cannot be successfully prosecuted.

The second advantage of a not guilty plea can be publicity. If one of the aims of the action was to gain publicity for an issue then the successful defence of those involved will gain further favourable publicity for the issue. The defence in such cases can be seen as the second half of the symbolic victory of the action.

A not guilty plea is only useful if the case can be won. If people intend to plead not guilty there is little point in doing so unless sufficient effort is put into their defence to give it a good chance of success. The risk of the not guilty plea is that of higher penalties and the imposition of costs on those found guilty. This is the disadvantage of pleading not guilty, it requires organisation if it is to be successful.

The entry of no plea by a defendant will be considered by the court as a not guilty plea.

Refusing to enter a plea or remaining silent when asked is an extension of non-cooperation with the legal system. If you also refused to cooperate with the police when you were arrested this may be a consistent approach. This could be effective at both a personal and on a broader political level.

However, the entry of no plea by a defendant who refuses to recognise the validity of the system of justice will almost inevitably lead to a finding of guilt because (presumably) the only evidence presented will be that of the prosecution.

Public statements outside the court

Political statements can be repeated effectively outside court, through public speaking or media conferences on the steps of the courthouse, for instance. This needs to be well-organised in order to get maximum media attention. But you also need to consider the impact upon the court case itself.

It is well worth consulting with your legal representatives. Magistrates have no real power of contempt outside their own court rooms and contempt actions have generally only been laid after public comments very close to a jury trial.

Public comments about the political issues surrounding a protest action, or about police behaviour at that action, can still be made. The fear of getting charged with contempt can deter important public comment.

Contempt of court

The laws of contempt are designed to protect the principle of the right to a fair trial. In general the law of contempt prevents the publication of material that is prejudicial about matters that will be or are currently before the courts. In popular parlance the purpose of contempt law is to minimise the likelihood of ‘trial by media’. Types of information which are considered prejudicial include: details of prior convictions; the creation of an adverse impression of the accused; statements about guilt or innocence of the accused; and in cases where identification of the accused is in issue, the naming of the accused or the provision of other means by which the accused may be identified.

There is a limited form of defence of ‘public concern’. However, the closer the comment is directed to the actual subject matter of the trial the less likely it is that this defence will be available. The defence is intended more to protect the publication of material in the context of ongoing public debate about the broader issues, where the risk of prejudice to a trial is incidental and unintended, rather than discussion of the specifics of any particular trial.

Contempt law is against any public comment on an issue that is before the courts and is to be decided by the courts. Notice, though, that the issue to be decided is often a narrow one (did a person commit a particular offence), and does not prevent public discussion of the background or wider context of the events concerned.

So for instance, the charging of a demonstrator at an environmental action does not prevent others from criticising police operations at that demonstration, or from talking about what the action was all about. However, some lawyers advise against public comment that in any way relates to a court case.

People are not prosecuted for proclaiming their innocence of a charge, which is their right.

Court as protest

Court rooms have been used by activists as a protest site throughout history.

Protest has been brought into the courtroom in countless creative ways. Activists have dressed up in costumes, unfurled banners, stood and turned their back to the court, worn blindfolds or refused to address the court when asked, gone limp when moved or just shouted out the injustice for all to hear.

When considering any sort of protest in a court room it is vital that you consider that:

  • You may face contempt charges.
  • The penalties you receive are likely to be more severe than they otherwise would be.
  • You may affect the case of other activists on similar charges or from the same group.

Total non-cooperation

This has been used as a strategy for dealing with the courts as a way of protesting against the unjustness of state institutions. It has been based on either a political/moral refusal to work with the system or a pragmatic choice to try and make the state pay.

Refusal can include refusing to attend court at all. You can then either wait to be arrested and taken to jail or present yourselves to a police station after a warrant has been issued for your arrest and volunteer to be locked up on that particular day.

You need to consider the fact that this approach will almost certainly result in you forfeiting bail as well as having to pay any fines issued against you (or serve the equivalent amount of time in prison).

A different form of refusal can be to refuse to speak or refuse to enter a plea (used by Greenham Common women in the United Kingdom). This means that you refuse to say whether you plead guilty or not guilty. The court will basically treat you as having pleaded not guilty.

One group of activists, arrested at Nurrungar miltary base in 1991, refused to attend court but handed themselves to police in a group to serve their sentence at a convenient time. In this way they were able to maintain control over when and how they dealt with the legal system.

Making political statements in court

In court, there is often an opportunity for individuals to make their own statements about why the chose to be arrested.

The conventional legal wisdom is that the court hears only one limited matter – the charge before it – and does not enter into social or political debate, but carefully constructed defences can often be heard even if they have limited chance of success.

Though the court purports to be neutral, judges and magistrates may conduct proceedings and apply the law in slightly different ways. There are no guaranteed outcomes and often, depending on the magistrate, results will be very different. Someone charged with the same offence as you may get a very different outcome.

Some judges and magistrates are more likely to be sympathetic to your cause and hear your argument than others. The court can be a forum for airing your political opposition, but it can also silence your motivations. It’s important not to put too much expectation on the outcome of a court case and to ensure it is not the only strategy you are putting energy into as a campaign.

Alternatively, you may have decided that the court case has wider implications, and you want to use it as another platform for your activism. In some situations this will be successful, in others it will backfire and you will receive a heavier penalty.

Lawyers, focusing on what they believe will influence the magistrate or judge the most, generally minimise what they see as political content. Make sure you have a clear understanding with your lawyer about what is important to you during the court process.

Many activists do this by pleading guilty and making a speech when asked for comment in mitigation before sentence is passed. In this case the choice to plead guilty is tactical rather than philosophical. Arrestees may take the same approach but plead not guilty and make their statements from the witness stand.

Pleading guilty explicitly recognises that a crime has been committed according to the law.

By pleading not guilty activists stress that they believe they have committed no moral wrong.

You may be able to give direct evidence relating to the charge against you whilst incorporating your own political statements in a form that makes them relevant to the issues of your defence. You can ask your lawyer about arguments that may allow you to use international law as a moral defence, call other activists or even scientists and others as ‘expert witnesses’, or use information about your protest as evidence.

Melbourne lawyer Len Linden argued before the Court of Appeal of the Northern Territory an appeal which arose out of an alleged trespass at the Joint Defence Space Research Facility near Alice Springs (commonly known as “Pine Gap”). In defence to the charge, he raised the alleged illegality of nuclear weapons by international law. He suggested that the Facility was tainted with that illegality. The defence, however, was rejected.

In the Nuremberg trials the Nazi leaders defended their actions on the grounds that they were following orders. This defence was rejected by the tribunal. It was found that men and women, whether military or civilian, have a duty to resist orders from above if those orders require them to commit crimes against humanity.

Another activist defence case involved the use of literature on the Nuremberg trials, which states that any person who,

“with actual knowledge that a crime against humanity (or war crime or crime against peace) is being committed, and having such knowledge, was in a position to ‘shape or influence’ the policy that brings about initiation or ‘continuation’ of the crime to the extent of his ability . . . will be responsible if he could have influenced such policy and failed to do so”.

Martin J., Limbo v. Little 65 NTR 19 at 45, quoting from Frank Lawrence, “The Nuremberg Defence”, 40 Hastings L. J. (1989).

From this “Nuremberg defence”, Len Linden claimed that international law places a personal responsibility upon him as an individual, to do everything possible to prevent such crime not only if he knows that such a crime is being committed or planned, but also if he suspects that such circumstances exist.

The common law recognises the defence of ‘necessity’ in criminal matters. The essence of the defence is that there was a threat or ‘sudden emergency’ which compels the person to commit a criminal offence. That is, the defence involves situations where a defendant is presented with a choice of harms – having to choose between committing a criminal offence which will avoid the peril or of allowing the peril to occur.

As such, this defence can be invoked either pragmatically or more strategically by activists. In some cases activists may seek to present evidence of the ‘greater harm’ (i.e. nuclear disaster, climate change, war) they were trying to avoid by their actions to actually seek to have the charges against them dismisses. In other cases activists may seek to make this defence publicly in court in order to use the court room as an additional platform to talk about (and received media coverage for) the issues they are campaigning around.

In 2008, six Greenpeace activists were cleared of causing criminal damage at a coal-fired power station. The activists relied on a ‘necessity’ defence before the jury. They argued that they were legally justified in shutting down the coal-fired power station and writing the word ‘Gordon’ on the chimney, because their actions were trying to prevent climate change causing greater damage to property around the world. As part of the “Kingnorth 6” defence case prominent witnesses gave evidence about the threat climate change posed includingProf James Hansen, one of the world’s leading climate scientists, David Cameron’s environment adviser, millionaire environmentalist Zac Goldsmith, and an Inuit leader from Greenland. Not only this ‘necessity’ or ‘lawful excuse’ defence allow the activists to be acquitted to the charges they faced, it also allowed them to turn the court room into a further media platform to put forward their message.

See article – John Vital ‘Kingsnorth Trial: Coal Protesters Cleared of Criminal Damage to Chimney,’The Guardian, 10 September 2008

In 2005, four Christian anti-war activists entered Pine Gap’s ‘Prohibited Area’ to conduct a Citizens’ Inspection, disrupt the machinery of war and to draw Australia’s attention to the missile guidance system. They were charged with trespass offences under the Defence (Special Undertakings) Act. During their 11 day jury trial presented evidence Pine Gap’s role in the war in Iraq which resulted in civilian deaths and suffering. Although the defence was not successful and they were found guilty, all the activists received light sentences. Additionally, raising this defence allowed them to present moral and political arguments to the court. As one of the activists, Ms Mulhearn said:

‘What’s moral is not always legal, and what is immoral is not always illegal. If there is a minor law that has to be broken in the pursuit of moral faith then I will break it. I thought it was the least I could do given the magnitude of the crime I was trying to prevent. I was trying to fulfil the promise I had made to the people of Iraq to do something to stop the war.’

See Media release – ‘No Jail for Pine Gap Four’ Pace e Bene, 20 June 2007

Court can be an opportunity to learn: activists can work individually or (more powerfully) together to find out about how the courts operate and what the applicable law is. However without appropriate preparation, support and strategy, it can be a harsh lesson.

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