|Webdiary - Independent, Ethical, Accountable and Transparent|
Chaser APEC case dropped
Malcolm B Duncan suggested that we publish the following statement made this morning by the NSW Director of Public Prosecutions, Nicholas Cowdery QC concerning his decision to drop the charges against members of ABC TV's The Chaser's War on Everything. Malcolm has also offered to do an explanatory piece; we look forward to receiving it.
The matters are listed for mention in the
In the unusual circumstances of this case I consider it appropriate to give some explanation for this course.
The legislation (which was in force from 4 July 2007 to 13 September 2007) provided for "declared areas" (setting in effect an outer perimeter of affected space) and "restricted areas" inside declared areas established around APEC Meeting venues and accommodation. The relevant areas for present purposes were along Macquarie Street, Sydney, north of King Street where a declared area was in place and north of a gate approximately 30 metres south of Bridge Street where a restricted area commenced.
The three vehicles had obviously bogus APEC identification stickers and
Nine cameras were in operation, some fixed, some handheld and worn and some with audio recording. Recordings from those cameras have been taken into consideration.
At about 11.30am on Thursday 6 September 2007 the fake motorcade approached along
The motorcade then stopped briefly before moving north again towards a second open gate which in fact marked the beginning of the restricted area (although police in the vicinity were unaware of that and the Chasers were uncertain where the restricted area began). The motorcade then stopped just short of the second gate. Morrow asked people with whom he was in contact about the restricted area and was given to understand that it commenced at
The motorcade then stopped short of the intersection of
The motorcade then stopped in the turn, Morrow consulted with Licciardello and he (dressed as Osama Bin Laden) got out of the sedan and with Morrow started to walk south in Macquarie Street. Police then arrested the 11 accused and seized items. (The two motorcyclists rode away.)
The Chasers had carried out an examination of the area on 5 September 2007 when police procedures had been different from those followed on 6 September 2007. The Chasers had also conducted a planning session on the morning of 6 September 2007 and some video and audio recording of that has been considered.
The evidence establishes that the Chasers plan, in what was considered the unlikely event that they were allowed to pass through any gates, was to stop short of the restricted area and to get Licciardello out of the vehicle.
Referral to ODPP
A large amount of evidentiary material was made available to the police prosecutors, along with representations on behalf of the accused and advice from senior officers and the Crown Solicitor.
Police could have prosecuted or withdrawn any or all of the charges. The case was first referred to the ODPP for the purpose of giving advice on 13 March 2008. On 14 March 2008 it was decided that the ODPP would conduct the matters and they were then taken over from police.
The matters have been assessed in this Office in the usual way for all briefs received. Regard has been had to the applicable law, the admissible evidence and the Prosecution Guidelines. There has been some urgency in the treatment of the matter by reason of the elapsed time since the events and the listing of the matters in court.
The offence is one of strict liability. Consequently, the defence of honest and reasonable mistake of fact is available to the accused. Put another way, it is a defence to establish, or to raise a reasonable doubt that there existed, an honest and reasonable but mistaken belief in a set of facts which, if they had existed, would have rendered the conduct innocent.
In the cases of all 11 accused I am satisfied that on the evidence presently available the prosecution would not be able to negate, beyond reasonable doubt, the existence of an honest and reasonable (but ultimately mistaken) belief that they would not enter or be taken into the restricted area and that, when they did enter it, it was with the permission of police (given by waving them through the Bent Street intersection towards the first gate north along Macquarie Street, then allowing them through the second gate unhindered and then directing them to turn in the intersection of Bridge Street). Police permission in fact constitutes special justification for entry.
Accordingly, there is no reasonable prospect of conviction and for that reason the prosecutions should not proceed.
In the cases of Licciardello, the six crew and production staff members and the three hire car drivers a further defence may be available that they had special justification by reason of their requirement to be there for work-related purposes in the circumstances that unfolded. Morrow was directing the progress of all who were employed for the purposes of the stunt and they either followed or were swept along by the directions that he gave.
I am also satisfied that, if the prosecution proceeded against Morrow only on the basis that his situation could be distinguished from the rest, the court would be bound to find that the motorcade entered the restricted area in error and if the offence were otherwise proved (which I consider unlikely) it would be probable that a magistrate would dismiss the charge without conviction under section 10 of the Crimes (Sentencing Procedure) Act 1999 (considering also Morrow’s otherwise good character). That would provide an additional discretionary basis for not proceeding in Morrow’s case, in accordance with the Prosecution Guidelines.