supreme court appeal – trial and judgement
the supreme court appeal trial on the 23rd of august went along alright, our argument and responses to criticisms were presented as well as they could have been by saul and james (who did a fantastic job for which i am very grateful).
justice kyrou seemed a decent man in court and has a reputation for being a very rational, black-and-white judge (meaning he focuses on interpreting the written law as it is written rather than letting other considerations/biases get in the way) so i wasn’t completely convinced the outcome would be horrible.
the judgement came back on the 11th of september and we lost pretty severely.
here’s the 60-odd page decision: http://www.austlii.edu.au/au/cases/vic/VSC/2012/407.html
it was a bad decision and one that could have unhelpful implications for other activist/protest activities, the decision basically says that no expression that causes any damage whatsoever to a third parties property (no matter how trivial, reversible or inexpensive, we’re talking about cleaning done by already employed cleaning staff in my case) can be protected expression under the charter.
in the trial, saul used the example of the aboriginal tent embassy causing damage to the publically-owned lawn underneath the tent as the sort of damage that should be overlooked due to the importance of the expression, this decision says that expression is not protected because it causes damage.
my lawyers were considering a further appeal of the decision as it sets such a horrible precedent but, after a few days of thinking and consulting with human rights law folk, they decided against it, deciding that taking this case further could do more damage to the way human rights law is applied in victoria (i wasn’t so sure but i deferred to their judgement, i guess i will just run a similar defence to the postering charges i will soon draw as that is probably more likely to succeed anyway, once i get back into the supreme court kyrou’s decision is just “highly influential”, not binding like it is in the magistrates’ court).
the three major problems with the decision are that:
– it says any act of expression causing any damage whatsoever to a third paties property cannot be protected by the charter,
– it ignores the charter’s definition of person in section 15(3)(a) and includes the rights of all legal entities,
– it defines public order for the purposes of section 15(3)(b) in a very restrictive way.
while justice kyrou ruled that my ‘expression’ was capable of imparting information and ideas, he ruled it could not be protected by the charter for public policy considerations over and above the limitations set out in the charter itself — namely that any ‘expression’ involving any damage to a third party’s property whatsoever, can in no circumstances be protected expression under the charter.
the rationale for using public policy considerations to limit the right (and not the limitations set out in the charter itself) was that the limitations in the charter were hopelessly inadequate for the task of limiting — so after blowing our argument out of the water with public policy considerations before even looking at the restrictions in the charter, justice kyrou went on for another hundred or so paragraphs (which were strictly redundant, most judges tend not to rule on anything they don’t have to in order to decide a matter) to show just how awesome the limitations within the charter were at limiting my expression.
he went to section 15 subsection 3 clause a) and totally misinterpreted that for his purposes.
the victorian charter clearly states, in black and white, that when it says person it means a natural person, an individual human being, i.e. not a corporation or a government body.
justice kyrou ruled that what the charter meant when it stated at 15(3)(a) “to respect the rights and reputations of other persons”, was “to respect the rights and reputations of all legal entities” — including profit-driven companies that will do any damage to society if there is a dollar in it for them (of course, corporate legal personhood is one of the biggest mistakes the western world has ever made).
it is almost hard to believe that the charter defines person in that way considering the governments usual role as the servant of ‘profitable’ big business, but they did, and it is very helpful to our case, to see that definition totally mis/reinterpreted by a ‘black-and-white’ judge just to uphold the horrible status quo is not really surprising, but still that familiar combination of depressing and infuriating i’ve come to associate with happenings in the world.
he then went to section 15(3)(b) and ruled my expression was a threat to public order and should be limited by that as well — i can see his point, imagine a world were citizens were able to cover over obnoxious and repulsive advertisements in their neighbourhoods, streets and public transport spaces with their own expressions — it’d be much less awful and alienating, more engaging and empowering, and that should be against the law.
justice kyrou also ordered me to pay all the costs of the department of public prosecutions and one third of the costs for the intervening attorney-generals office, citing the utter ridiculousness of our case and the fact that we dropped ground 3 on the day of the trial as his reasons.
here is kyrou’s reasons for hitting me with costs: http://www.austlii.edu.au/au/cases/vic/VSC/2012/419.html
i don’t know how much it costs to hire two QC/SC’s and their legal teams for a full-day trial but i can imagine it will be close to $20,000, but then again i’ve got no idea
########## update from the future, november 2013:
the attorney general’s office kindly offered me the opportunity to settle on $15,000, paid upfront before going to a taxation of costs hearing, to cover one third of their ‘costs thrown away’ — needless to say i told them i wouldn’t pay and could never pay and that if they went to taxation of costs and then somehow tried to get the money out of me it would only result in more costs for them, possibly forced bankruptcy for me, which apart from all the bureaucratic/legal dicking around, was not a prospect that upset me in the slightest.
i haven’t heard from the DPP (dept. of public prosecutions), but extrapolating from the attorney general’s claimed costs, i probably ‘owe’ them at least $45,000.
the DPP are probably more experienced in the futility of chasing debts that could clearly, at the time of the costs order, never be paid.
the attorney general’s office even had a person come to my first postering hearing in front of magistrate capell to serve a letter on me saying i owed them $15,000, i don’t know what that was about, an attempt at intimidation?
fucking weird anyway, i don’t even know how they knew i was going to be there, government computer systems? reading my website?
i haven’t heard if they are going to pursue costs further out of pure spite, spending more public money to achieve something that wouldn’t even upset me — oh no! what about my credit rating that i need for my home loan, car loan and credit cards for that shit i ‘need’? how will i be the director of a company if i go bankrupt? what about my credibility in the community as a respectable business man?
they probably don’t believe me, think i’m bluffing, who could possibly not care about bankruptcy? in this day and age? ##########
the order that i pay costs also sets a precedent that could discourage people from appealing decisions on human rights arguments, especially those with such limited resources that they depend on legal aid for representation — not everyone has nothing to lose financially like i do.
i really don’t give a rats arse about costs being imposed on me, they won’t get blood from this stone, and if they try it’ll just cost them more.
the whole idea of me giving the courts a chance to prove themselves worthy of respect has proved stupid in another way, i really only gave one supreme court judge the chance to make a good decision, but unfortunately that is how it goes, i guess he failed on behalf of the whole legal system, him being their representative and all.
the whole court process is disillusioning in another way, at no point in all this arguing about points of law has the subject of the larger picture of what the justice system is doing to me and why, or the validity/social value of my viewpoints come into consideration.
the courts claim that the content of the political communication is not relevant to the decision making, which is absolute bullshit and totally annoying.
the fact that the decision they make determines whether or not i will be repeatedly incarcerated in the future or not didn’t rate a mention anywhere, not even my lawyers (knowing how the law system works and what is ‘appropriate’, as they do) would raise that obvious and glaring issue.
people inside the legal system are used to this depersonalised, ‘depoliticised’ and piece-meal approach to things, but for me, it just seems idiotic to not conceive of the whole picture or to consider the direct effects of the decision arrived at.
justice kyrou obviously feels i have wasted societies money with this case and should pay back what it cost, does he not realise that his decision means society will now have another prisoner to pay for? (my $40 ‘damage’ is nothing compared to the $80,000 it costs to keep a prisoner for a year, and who knows how many years they’ll “have to” keep me locked up)
he is essentially ruling that public money should be spent on repeatedly incarcerating a non-violent protester for actions which cause no real damage to society and which attempt to further a political message that could bring about positive social change, all to protect corporate interests that ultimately hurt the interests of the global community, great job justice system!
i feel the decision to stall my actions out of respect while the courts decided did little to cause the courts to respect me, or to understand that this decision would determine whether or not i’d be repeatedly incarcerated in the near future for similar actions i was paused to undertake, if anything i think it made them likely to think i was put off by my past jailings and if i didn’t win this case i would be totally turned away from this mode of expression — or maybe these things don’t even occur to these court folk? i find that hard to believe, but perhaps the compartmentalising approach of the courts eventually becomes internal to those who work within them.
kyrou’s decision has attempted to bring a halt to a legal avenue for a non-violent social movement that could be of amazing social value, one that could bring an end to the wasteful and damaging practice of advertising and ultimately enrich democracy by pushing for massive media reform.
i think a determining factor would have been the thought of what a victory in this case could mean, a legalised anti-advertising social movement that would make life extremely difficult for outdoor advertising ‘businesses’ (whether or not this is mentioned in the write-up of the decision).
years of magistrates hearings and court bullshit has left me with the firm impression that the legal system likes to pretend it is just machinery whenever it has to crunch someone in a clearly unjust way, of course, when the representatives of the legal system are actually doing some kind of justice they do not miss the chance to claim agency and pontificate their honourable arses off.
the courts always claim the parliament has the decision making power whenever the going gets controversial, but the parliament doesn’t defend the decisions made off the back of their legislation — nobody defends what is done and everybody washes their hands and refuses to comment.
the years have also given me experience to match my conviction that neither the courts nor the parliament are going to address the questions i want to raise without being somehow forced to, i have no idea how to force them to, but it is my ambition regardless.
(i got sick of taking acid years ago because every time i did i would just have the same overwhelming urge to talk to the tribal leader about all the problems i have with our society and the way it is going, despite the obvious fact that there is no tribal leader and no one will listen to/address your concerns even if you act out about them — you’ll just be forced into a small room with a toilet in it by the lackeys of someone who offers no rationale and says they have no choice.)
the justice system is just like the corporate system, when fucked things ‘have to be done’ everyone claims their hands are tied (or their hands are bound to carry out the horrible task in front of them), responsibility is diffused across the whole system generally and every personal-responsibility-denier apologises for the system with some absolute bullshit excuses.
a real black-and-white interpretation of this case would have my action protected under the charter, that’s what the law, as it is written, happens to say, surprisingly — it is just that the human rights charter doesn’t get much respect in legal elite circles and everybody understands they are only to be delivered were they pose no significant threat to the capitalist system.
it really is open to a judge to then rule that an expression protected by the charter can serve as a lawful excuse for the charge of criminal damage, but that would involve some personal back-lash for the judge making that decision and it is a bit much to expect a justice to participate in a bit of pro-democracy activism (i mean what does justice have to do with democracy and justice anyway?).
the least a judge could do (if they weren’t willing to stick their neck out in favour of progressive democracy over corporate/capitalist interests and say a protected expression is a lawful excuse for minor ‘damage’ that is central to the expression) would be to rule my expression is protected under the charter but outlawed by the criminal law and issue a declaration of incompatibility to parliament (so parliament can ignore it probably).
the justice system has officially lost my respect on this issue, i always thought/knew it would be this way, but now it is proven i can hold this opinion without having to jump to conclusions, they had an opportunity to stand with progressive democracy, they twisted the law to the advantage of socially damaging corporations, therefore they deserve no respect on this issue — unless they miraculously win it back by making a good judgement.
i’m sure the entire justice system will be reeling when they find out they have lost the respect of a convicted criminal, ha ha ha…….
sigh…. back to the drawing board for ol’ crazy magee.