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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.

Today I have directed that there be no further proceedings on all charges against 11 persons involved in The Chasers War on Everything entry into a restricted area during the APEC Meeting in Sydney in September 2007: Julian Morrow, Charles ("Chas") Licciardello, Nathan Earl, Giles Hardie, Lauren Howard, Geoffrey Lye, Alexander Morrow, Benson Simpson, Esteban Alegria, Mark Kordi and Rodrigo Pena.

The matters are listed for mention in the Local Court tomorrow, 29 April 2008, when the charges will be withdrawn.

In the unusual circumstances of this case I consider it appropriate to give some explanation for this course.

On Thursday 6 September 2007, during the APEC Meeting in Sydney, two presenting members of The Chasers War on Everything ABC comedy/satire team were charged, along with six Chasers crew and production team members and three hire car drivers, with entering a restricted area without special justification, contrary to section 19(1) of the APEC Meeting (Police Powers) Act 2007.

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.

Short Facts
The Chasers created a fake "motorcade" consisting of, in order: two motorcycle outriders, a black 4WD vehicle, a black sedan and another black 4WD. Five male members of the team (including Morrow who was directing operations) walked alongside the motorcade. After reaching Bent Street the motorcyclists dropped to the rear.

The three vehicles had obviously bogus APEC identification stickers and Canada identification stickers on their windscreens. The sedan had Australian and Canadian national flags on its bonnet. All had tinted windows. The five runners also wore obviously bogus identification. One of the motorcyclists wore jeans.

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 Macquarie Street from the south and stopped at the intersection of Bent Street. One of the motorcyclists and Morrow pointed forward. Police waved the motorcade on and indicated in a northerly direction along Macquarie Street towards the restricted area. It then proceeded through an open gate further into the declared area.

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 Bridge Street. The motorcade then proceeded again through the second open gate towards the intersection of Macquarie and Bridge Streets. There was no attempt by police lining the route to inspect or stop it.

The motorcade then stopped short of the intersection of Bridge Street and Morrow told police that there had been a change of plans and that they needed to turn back. Morrow suspected that they had entered the restricted area, which he had not intended to do. Macquarie Street had been narrowed by fencing and barriers between Bent and Bridge Streets and it was necessary to advance into the intersection to turn around. Police waved the motorcade forward into the intersection to enable that to occur.

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
Police prosecutors were primarily responsible for the conduct of the prosecutions, they being for summary offences in the Local Court.

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.

It was an offence to enter a restricted area without special justification. Special justification was defined in section 37 of the Act and included circumstances where a person was permitted to be in the area by a police officer and where the person was required to be in the area for a work-related purpose.

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.


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I agree David Eastwood

It would be stating the bleeding obvious that this was a complete politically manufactured event and the police - who in my estimation are now (in NSW)  a very fine force with much of the hard work done by Ken Moroney .

Andrew Scippione and his Minister, the rotund and oyster loving David Campbell are something else though, and rather an unknown quantity. I thought we had seen the last of dodgy police ministers with the chortling what-his-name who had one of his staffers tazered in the NSW paliament.

Having just arrived back yesterday from a quick trip to Vietnam and Thailand I could have informed Mr Campbell that he could have saved the 40 grand it cost to travel to New York as the laser guns he needed demonstrating come with instructions as a street seller kindly demonstrated to me in Bangkok and had me firing one withing 2 minutes. (The instructions are in several languages and easily understood). However as he offered me no dinner of a dozen oysters and prime rib steak I declined to purchase one.

I've also had slight dealings with the female commander who looked fairly embarrassed as she spoke to the press of what I guessed she knew in her own mind was a crock of  s**t but had orders to do so. She appears to be an extremely capable and honest lady and just what we should  be looking for in our force.

Who is going to come to the aid of this ageing old disillusioned socialist and rid us of of this appalling NSW Labor government?

How depressing

Michael of the angels.  But how interesting.  Thank you. Surely Malcolm B Duncan can tell us more tales along these lines also.

I do know one guaranteed pure policeman in the Eastern suburbs - and perhaps there are others.  Unfortunately, he would quite possibly see no evil or hear no evil ... making him a little useless, when I think about it.

Very similar

This case reminds me so much of the much publicised raids within the area where I believe the distinguished Malcolm B. Duncan resides, last year, and just before the State election that produced the stunning victory for the highly intellectual Morris Iemma.

Several "adult" book stores in Kings Cross where raided in a blaze of publicity with news crews on hands and newspapers representatives, whilst a tiny female Police Commander from Kings Cross Police announced a scandal of horrific proportions that a major source of child pornography had been smashed.

Conveniently the police had several large vans parked outside and some huge (I think Kennards perhaps donated) boxes to seize the plunder as overalled coppers carried what looked like not terribly heavy booty in the boxes to their vans. Our Lady Plod announced gravely, as several hapless employees were led out, heads bowed and handcuffed ( most looked Asian), that, in the words of the wondrous Mr Scippione this is the way things would be done now.

It occured to me that, as most of these stores were within a stone's throw of said Kings Cross police station (and Mr Duncan) and had been for - what - 20 to 30 years, it had taken rather a long time for this major crime to come to their attention. Furthermore, as the villians would no doubt be appearing at the Downing Street Centre, one only had to take a short walk down the road from the courts, turn left and several similar establishments had been plying their trade for many years under various names as Club X etc,.

This was going to one of those cases I had to sit in on as I ocassionaly do as it always helps to - as Dame Edna is want to say - "laugh at other's troubles and it helps to bear your own" . I also had a friend I'm not unashamed to admit who owned one such sordid shop in a Cross arcade and had been led off in handcuffs, totally mystified by the claims of "child porn" rife throughout his premises and available on his computer which he said was a maze of accounts mostly unpaid and maintained by his wayward wife who was a "very bad bookkeeper".

Sadly, the exciting day in court never came and just like the Chaser's case , all charges were quietly dropped against the "adult" shops although unfortunately many seized legal items were never returned. My pal swears one senior seargent returned late one night to purchase a variety of interesting items manufactured in Amsterdam which he was sure his wife would find amusing.

The sting in the tale, however, is that most of the store owners were advised that they should consider moving from the area as their type of trade really wasn't what Kings Cross wanted anymore. They tended to take this as a fairly serious suggestion. The female commander meanwhile was moved elswhere.

Not quite...

As another resident of that fine borough I'd beg to differ slightly.  We don't pay our police to be rocket scientists or superhumans, simply to enforce the law.  These days around the Cross that's pretty much all they do, thankfully.  I'd not attest to their efficacity, but as a local I've no major complaints. 

Problems like that outlined here only occur when politics intervenes - both State and Local in this case.  State obviously looking for pre-election headlines, and Clover on a major re-birthing campaign to rejuvenate the area.  Opinions in the community and nearabouts differ widely on whether the Cross of yore is to leave any DNA behind or not.

Perpetuating a fine joke

Seems to me the DPP has gone to some lengths to find a technicality of Pythonesque proportions ("We was there for work, guv'nor") to throw the whole thing out - very much in the Chaser spirit I'd say.  Well played sir!

They did what?

David, the whoe thing is pure Python There's a movie in APEC Sydney, and I hope it's done one day. It should also include the US Agents, knowing that the White House had stuffed up by releasing the OBL vid early and making lose track of Al Qaeda electronic communications while the President was strutting around the harbour, looking at the TV footage and saying to themselves "they did what?

I loved Julian Morrow's line the day after the incident: "It was a good thing it was us and not Al Qaida!" I have nothing but respect for the Chaser's conduct throughout this episode, and the message it sent across the globe

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