Even if ‘unfair, unreasonable or too harsh’, it is still the law

p2499o Supreme Court jury boxBy KIERAN FINNANE

 

After four hours of deliberation, the jury in the trials of five Peace Pilgrims  have yet to deliver a verdict. They will return to their deliberations tomorrow.

 

Right: The jury box in the Supreme Court. Photo from our archives. 

 

Although it is a joint trial, the jury must consider the evidence separately in relation to each defendant and find the charges proven beyond reasonable doubt. The verdicts must be unanimous.

 

It is not open to them, as a matter of law, to find the accused not guilty because they believed the law under which they are being judged is “unfair, unreasonable or too harsh”. Justice John Reeves spelled this out in his directions to them.

 

This, he explained, was just as it was not open to the five accused to choose which laws to obey.

 

If they needed further persuasion, he said this quote from Chief Justice Gleeson, as he was then in NSW, might help,: “… 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.

 

“Nor can the law encourage juries to exercise a power to dispense with compliance with the law where they consider disobedience to be reasonable, on the ground that the conduct of an accused person serves some value higher than that implicit in the law which is disobeyed.”

 

The jury are also not required to consider, indeed not allowed to consider whether the Crown has proved beyond reasonable doubt that the Pine Gap base is a prohibited area for the purposes of the Defence (Special Undertakings) Act 1952.

 

Justice Reeves directed them, as a matter of law, that the area was (and is) a prohibited area for the purposes of this Act.

 

p2363-pinegap4-1420This issue arose in the trial of the Pine Gap Four (left) in 2007. Like the Peace Pilgrims, the Pine Gap Four sought to use their proceedings to put Pine Gap itself “on trial”.

 

The Four asked the Crown to provide proof that Pine Gap was a prohibited area necessary for the defence of Australia. The Crown did this in the form of a Government Gazette notice, dated  9 November 1967, which was accepted by the trial judge and led to her overruling many of the defence questions to the Crown.

 

In the later appeal heard in this case, it was found that the Gazette was not conclusive about Pine Gap being prohibited area because the accused were entitled to challenge that making it a prohibited area was in fact necessary for the defence of Australia. This was the key factor that led to the overturning of the Four’s convictions. *

 

The federal government in 2009 (Labor was in power at the time) sealed off this crack, with amendments to the Defence (Special Undertakings) Act 1952, removing this question from jury consideration in any future case.

 
 

* For a more detailed analysis of the Pine Gap Four trial, see Russell Goldflam’s article on the Nautilus Institute site: “Satellites, Citizens And Secrets: R v Law & Others“.

 
 
 

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3 Comments (starting with the most recent)

NB: If you want to reply to a previous comment, start your comment with this notation: @n where n is the number of the comment you want to reply to.
  1. Jack
    Posted November 25, 2017 at 11:26 am

    It is not open to them, as a matter of law, to find the accused not guilty because they believed the law under which they are being judged is “unfair, unreasonable or too harsh”.
    Well actually this option is open to the jury and if I had been on the jury I would have taken it.
    In the USA there are many not guilty findings irrespective of the law and the evidence where the three strike law jailing offenders for life applies.
    In the years to come we as a society may wish we had paid a lot more attention to the cause of the peace activists.

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  2. Jamie
    Posted November 24, 2017 at 6:59 pm

    @ R Henry: What complex legal situation? They knowingly broke the law and have to pay the price for it.

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  3. R Henry
    Posted November 24, 2017 at 4:33 pm

    It is a pity the legal expense and energy could not have been used to assist some ordinary Australians with complex legal situations.

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