Dale Mills, Sydney
On July 29, two anti-war activists who painted the words "No war" on the Sydney Opera House's main sail on March 18 last year argued in the NSW Criminal Appeal Court that they should have been allowed to put their defence of self-defence to the district court jury that found them guilty of "malicious damage" earlier this year.
Following their convictions, David Burgess and Will Saunders were sentenced to nine months' periodic detention — meaning they must serve the time each weekend.
During the trial, lawyers for the two men had argued in the absence of the jury that Burgers and Saunders had painted the slogan on the Opera House to defend the lives of those that would die in the war in Iraq. The trial judge ruled that such an argument could not be presented to the jury.
"The words 'No war' can have no clearer meaning than stated", John Doris, counsel for the two men, told the NSW appeals court. "It was an attempt to affect a decision which would cause death and destruction on a large scale."
In support of the men's right to present such a legal defence, Doris cited an English case in which defendants cited section 3 of the British Criminal Damage Act 1971, which states that "a person may use such force as is reasonable in the circumstances in the prevention of a crime". Previously, a British appeal court had ruled that this "gives considerable latitude to those who are minded to take direct action in the honestly held belief that in so doing they are protecting the property of others".
Citing an earlier court decision, the British appeals court said "if Anne Frank had stolen a car to escape from Amsterdam and had been charged with theft, the tenets of English law would not have denied her a defence... on the ground that she should have waited for the Gestapo's knock on the door."
The NSW appeals court reserved its judgement on the case.
On July 6, the Sydney Opera House Trust Amendment Act 2004 became law, which makes it an offence to enter "any part of the Opera House as a trespasser" with a maximum punishment of two years' imprisonment, a fine of $22,000, or both.
A section truly horrific section of the act has drawn no public comment. This says that "any person who enters the Opera House as a trespasser ... with intent to ... commit any offence ... under the Summary Offences Act" can be punished with seven years' imprisonment.
Offences under the Summary Offences Act include climbing up a public building, possession of a spray-paint can without lawful excuse, and incredibly, "offensive" language or conduct.
From Â鶹´«Ã½ Weekly, August 4, 2004.
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