Above: Margaret Pestorius, centre, outside the Supreme Court this week.
By KIERAN FINNANE
“Hi, Ken.”
“Good morning, Margaret.”
Not many cross-examinations begin this way.
From the bar is self-represented defendant Margaret Pestorius, accused of entering the Pine Gap prohibited area under the Defence (Special Undertakings) Act 1952.
In the witness box is Sergeant Kenneth Napier of the AFP’s Protective Services, an employee at the base for some 25 years. He is now Officer in Charge of AFP operations at the military base and in Alice Springs.
I’m known to you? asks Ms Pestorius.
Yes, he answers, looking directly at her, unlike most of the other witnesses who fix their gaze on the empty space in front of the box.
He has known her since he first met her late husband, *Bryan Law, a decade ago when Mr Law came to Pine Gap “to do an action”. He was part of the response team arresting Mr Law when he trespassed on the base.
And you sent condolences through Mr Goldflam (the Alice Springs lawyer) when he died? Yes, he did.
Above: The Pine Gap Four with members of their legal team, from left, the late Bryan Law, lawyer Russell Goldflam, Adele Goldie, Ron Merkel QC, Jim Dowling and Donna Mulhearn outside the Supreme Court in darwin where the four had just been acquitted on appeal to the Full Bench, 22 February 2008. Photo from the Pine Gap On Trail blog.
There was a point to this, beyond it being a friendly exchange with an obvious degree of mutual respect. Ms Pestorius was trying to establish the knowledge that Sgt Napier, as head of the response team, already had of herself and her fellow Pilgrims.
How would you describe our community, she asked. “Driven,” he replied. She liked that word.
Do we hold our beliefs sincerely? Yes.
Are we generally reasonable people, if a little extreme? Outside the base, yes, inside, no, he replied.
The court had already heard Sgt Napier’s account of the arrest of the defendants. They were climbing a steep hill, known as Mariner’s Hill, playing music. There was no violence.
Sgt Napier knew Ms Pestorius as well as Jim Dowling, whom he had met at the same time as Mr Law. By association with Mr Dowling, he also knew his son Franz. He smiled as he gave evidence of friendly exchanges between them on the night.
Mr Dowling had greeted him on the hill: “Hello, Ken, you’re very fit!” Sgt Napier had been unable to answer as he was breathless from the ascent. Mr Dowling then joked: “Not really.”
Sgt Napier had helped Ms Pestorius, taking her viola, over a large rock and down onto the road where she was arrested.
In her cross-examination Ms Pestorius asked how he had assessed the risk her group had posed.
He said his service relies on the National Threat Assessment Centre for their risk assessment in relation to violent protest and terrorism at the base.
Right: Ms Pestorius on the first day of the separate trial of Peace Pilgrim Paul Christie (behind her with ABC journalist Stephen Schubert).
So what level of threat had been identified in relation to the protesters gathered during the IPAN conference late September, early October last year, Ms Pestorius wanted know.
Sgt Napier said his service was alert for potential incursions, whether single or multiple, for lock-on devices and non-peaceful protest. There was no level identified, it was all taken equally.
Did their action look like a violent protest? No. Did it look like it might become violent? No.
Did he suspect the identity of the group when they were first detected on CCTV? No, it could have been anybody, he said.
Had protesters been inside the facility before? Yes. He referred to a long history going back to the 1980s, including the past actions of her husband and Mr Dowling.
Twelve years ago, when people (the Pine Gap Four in December 2005) got inside, were they disruptive to the operations of the base? No, he said.
Yet, she put to him, in a pretrial hearing an AFP witness had referred to operations being shut down for five to six days.
From memory, he said, operations did not cease; the front gate was closed, but the business mission was maintained.
Ms Pestorius attempted to ask a question about the location of the video sensors that detected the Pilgrims on the night of their action. Crown Prosecutor Michael McHugh objected: the location is “sensitive”. Ms Pestorius raised her hands and moved on.
Had she seemed to him exhausted on top of the mountain? “Absolutely.”
Sgt Napier had given evidence that on Mariner’s Hill he could hear the Pilgrims by their music before he saw them. How would he describe the music that he had heard – was it a jig, rock ’n’ roll, a protest song?
Left: Police and protesters outside the front entrance to Pine Gap, October 2016.
This was another moment of merriment in the court. “I have to declare I’m one of the most tone-deaf people,” he said, before adding that at the time it was just “noise” to him as he tried to identify where those making it were.
Ms Pestorius apologised that the lament they were playing was “not as good as it should have been”. That was because they were still moving through the bush.
The court also saw yesterday the Record of Interview conducted with Ms Pestorius on the morning of her arrest, in fact almost immediately after. She was wrapped in a blanket, yawning more than once and commented a few times on how tired she was, having been up all night.
Nonetheless she maintained the same spirited approach. Without being disrespectful, she tries to keep communication at a human level, resisting the highly impersonal formality of police and court exchanges.
Asked by Federal Agent Peter Davey whether she was a holder of a permit under Section 11 of the Defence (Special Undertakings) Act 1952, she said she didn’t have permission from the US military nor the AFP, but “there are other authorities”. These include the authority of justice, of a just world, and God’s creational authority to speak strongly against war.
The authorities Agent Davey was referring to she had no understanding of and doesn’t pay much attention to them.
She said she had gone to the mountain (Mariner’s Hill) to get as close to the facility as she could, to “bear witness” to its war-making and to lament its “death and destruction across the world” that will “fall back on this land”.
If she had had a chance to get closer to the facility, she would have.
She declined to answer questions about how she had arrived inside the base and said she couldn’t remember having crossed barriers in the dark. She said she wasn’t sure if there was a plan to be there, just that they had all come together to lament what is going on in the world.
She said the base had become a “symbol of denial” of the Australian people.
Was she aware that it was a “prohibited area”? She said there was certainly “a lot of secrecy and denial” around it, that it was very hard to get close to, that there were a lot of police.
Asked about her purpose in coming to Alice Springs, she repeated that it was to go to the ridge and lament the dead of war.
She said she had been involved in a similar lament on Anzac Day this year, remembering the dead of the Frontier Wars. She wasn’t sure about what had happened around Alice Springs, but around Cairns “a lot of people got killed and nobody talks about it”. This kind of denial, she said, is why people pay little attention to “things like Pine Gap”.
___________
* Mr Law was one of the Pine Gap Four who conducted a Citizen’s Inspection of the base on 9 December 2005. The four were famously the first trespassers at the base to be tried under the Defence (Special Undertakings) Act 1952, facing a maximum penalty of up to seven years imprisonment, just as the Peace Pilgrims do. The Pine Gap Four were ultimately acquitted on appeal.
Thank God somebody has the guts to draw attention to the war crimes coming from Pine Gap.
Wonderful to read the court transcript, especially between Ken and Margaret … evidence of respect, and a degree of trust, and the absolute dignity and conviction with which the peace pilgrims acted. Brilliant.
Good on you Margaret, for so cleverly establishing the personal links, going back to the arrest of Bryan and the others in Pine Gap Four.
Thanks to all of you for your strong and spirited witness for peace, and for summing it up so clearly as wanting to shine a light on the denial in the Australian populace about the role of Pine Gap, and the dreadful consequences of war. A lot of dead people, not to mention severe repercussions for the environment, too.
Good on you all. Hope this doesn’t result in prison time!
Blessings, towards justice and peace.
This is clearly a symbolic exercise by the Peace Pilgrim group. Having recently been in the Supreme Court in an unrepresented capacity against a high profile opponent who was represented by Senior Counsel, I am impressed that Margaret and the Peace Pilgrim have been given a good run by a tolerant judge.
They should count their lucky stars that they are being treated so fairly.
I wonder how long the court’s leniency and patience would last if this had been an annual pilgrimage to Pine Gap for the past 50 years.
John Bell, you say that the Pine Gap protestors have “been given a good run by a tolerant judge”.
In his summation to the jury Justice Reeves quoted mostl prosecution’s evidence – he told them to ignore all of the defendents’ except the bits where they admitted to walking on the base.
He accepted the jury may feel they are of good character and were sincerely acting on conscience, or that our concerns about Pine Gap are justified.
They might even believe the law is unjust or too harsh. The judge said that all that counts is whether the prosecution has proved the elements of the offence in question. The insinuation was pretty clear.
Righteous judge? I think not.
@Jackie Hu. You criticise Justice Reeves for instructing the ordinary punters of the jury on points of law.
However, in instructing the jury (and during the conduct of the hearing) in this symbolic, divisive and very public case, Justice Reeves would have been very conscious indeed of the standard of equality of treatment demanded of judges and opposing counsel towards unrepresented litigants, laid down in the decision in Tomasevic v Travaglini in the Victorian Supreme Court by Justice Virginia Bell.
No doubt he was mindful that appeal judges would jump on him like a ton of bricks if there was even the merest hint of apprehended bias, especially in instructing a jury of ordinary punters in this touchy Pine Gap case.
Judges have a long established habit of instructing juries in public interest cases, as in the Chamberlain case.
I always believed a dingo took Azaria and the jury got it horribly wrong; and I cheered when appeal judges without a jury gave Lindy justice.
Of course, the Green latte sippers in Lygon Street saw us as anti-dingo etc. We were most unpopular.
You no doubt will cheer if the jury sees it your preferred Pilgrim way. If not, there is always the avenue of appeal without jury.