Monday, April 28, 2008

Simon Moyle's defence

(It should probably be noted that it didn't all come out exactly like this...I adlibbed and pulled bits and rearranged it a bit on the go. But this is the gist of it in the absence of a court transcript...)

I want to begin by acknowledging the Darumbal as the traditional custodians of this land and to honour the first inhabitants and their descendants.

We have all decided to represent ourselves today. Despite the fact that I am not a lawyer and have no legal training, I have worked hard to prepare for this day well; I have received legal advice in researching my case and feel that I will competently be able to acquit myself. I do request some understanding and latitude in matters of protocol and etiquette where I err.

It is my contention that these military exercises constituted an extraordinary emergency as outlined in section 10.3 of the Criminal Code, that my actions were the only reasonable way to deal with the emergency and that my conduct was a reasonable response to the emergency.

I understand that this defence has been run before in similar circumstances, but I am here to present the reasons why I disagree with the decisions that have been made in the past, and why my situation is different in significant ways.

I am also aware of the separation of powers, and that you are not here to comment on matters of public policy or make judgements thereof. While I personally believe it is impossible to separate the making of public policy from its enforcement, I respect your role and will endeavour to stick to the matters of law at hand.

And last but not least of my opening disclaimers, I think it is important to state that I am first and foremost a disciple of the nonviolent Jesus. More than anything else I strive to be faithful to his calling on my life. Where that conflicts with any other demand, my loyalty remains to Christ and the Reign of God.

10.3 Sudden or extraordinary emergency
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency.
(2) This section applies if and only if the person carrying out the conduct reasonably believes that:
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.

The defence of sudden or extraordinary emergency depends on my satisfying you beyond reasonable doubt that I reasonably believed that
(a) circumstances of sudden or extraordinary emergency exist; and
(b) committing the offence is the only reasonable way to deal with the emergency; and
(c) the conduct is a reasonable response to the emergency.

a) Circumstances of sudden or extraordinary emergency exist

I begin with the idea that circumstances of sudden or extraordinary emergency exist. It is my understanding that the Talisman Sabre military exercises constituted an extraordinary emergency, a situation of extreme gravity and abnormal or unusual danger.

I note that this defence only requires that the emergency be sudden OR extraordinary, and not necessarily both, as stated in paragraph 17a of Nguyen and the Queen (2005) Western Australian Supreme Court of Appeal p 22. This section is found on page 2 of that case.

[17] Relevantly, for present purposes, it is necessary to make the following observations.
(a) The circumstances in which the defence may be raised include a sudden emergency or an extraordinary emergency. It is not necessary for the emergency to be both sudden and extraordinary.

While the emergency constituted by Talisman Sabre was sudden in that it was a threat that was posed at a particular time and place, it was certainly more extraordinary than sudden.

The emergency constituted by Operation Talisman Sabre was extraordinary in the size, scope, intensity and duration of violence involved. Extraordinary not only in the sense of unusual and beyond anything I had experienced before, but in the sense of grave, extreme.

The facts of what occurs during Operation Talisman Sabre are largely undisputed. The ADF’s own public environment report compiled by Maunsell Acom details the use of high explosives on land and sea, use of live artillery fire, use of active sonar which is damaging, often fatal to marine life, and many other detrimental environmental impacts. That report also fails to mention the most damaging effects such as intended explosive impact areas, preferring to focus on the degree of risk of inadvertant impacts.

Talisman Sabre was clearly not a theoretical or academic exercise, with both Australia and the US currently involved in wars in multiple countries. It was direct training for those who were about to enter the wars in Iraq and Afghanistan. We know this from our conversations with military personnel while on the base. During our time inside the base we had the opportunity to speak on a very personal level with several personnel from both the Australian and the US forces involved about their time spent in Iraq. Without exception they spoke negatively of the job they had been given to do, of colleagues, enemies and civilians killed and collateral damage created, but stated that they were there to do a job, and not to question their orders. What was clear was a direct link between these exercises and the wars in Iraq and Afghanistan.

It is an immutable law of nature that violence begets violence and destruction. As the great Indian independence leader Mohandas Gandhi cautioned, if you desire a particular end or result, your means must be entirely consistent with it. In this case we were dealing with training for war, an activity that many would justify as necessary to enforce or maintain peace. But the reality is that this point of view is totally illogical and deluded. The fact that so many people believe it does not stop it from being so. The unreasonableness of such a belief is revealed in such statements as that of Lt. Col. Nathan Sassaman, the commander of a US battalion that surrounded the Iraqi town of Abu Hishma with a razor wire fence in mid 2003. He said in a New York Times article, "With a heavy dose of fear and violence, and a lot of money for projects, I think we can convince these people that we are here to help them." This is the logic of violence. The truth is, if you train for war, you get war. If you begin to practice for peace through active creative nonviolence, not passivity or apathy or inaction, then eventually you will get peace.

If it is true that, as Rev. Dr. Martin Luther King Jr says, “We are an inescapable network of mutuality tied into a single garment of destiny” then every act of violence is a crime against all humanity. Not merely the wars in Iraq and Afghanistan, but even these military exercises known as Talisman Sabre, particularly in the damage it does to land and marine life, both plant and animal and ecosystem, because damaging the earth damages us too. As Wendell Berry argues in his 1977 essay The Body And The Earth, "The earth is what we all have in common; it is what we are made of and what we live from, and we therefore cannot damage it without damaging those with whom we share it…It is impossible to care for each other more or differently than we care for the earth.” (The Body and the Earth, p. 118)

Therefore every act of violence in our world, towards ourselves, others and towards the earth, constitutes an extraordinary emergency that requires that human beings get involved in nonviolent responses that effectively transform such acts of violence through self-giving love such as that demonstrated by Jesus Christ. If we merely stand by, if we allow it to happen then in our apathy, we are personally implicated in the emergency. That is the true crime; the crime of no response. As Nobel Prize recipient Archbishop Desmond Tutu has said, "If you are neutral in situations of injustice, you have chosen the side of the oppressor." Every act of violence is an injustice, because it dehumanises the perpetrator as much as the victim, and so to do nothing in the face of violence is to side with the violent. Though I am aware that international law has no influence on the outcome of this case, it is worth noting that this very idea is supported by principle VII of the Nuremberg principles, that of inaction constituting complicity in crimes against peace and humanity. Citizen’s refusal to step in the way of such crimes was soundly condemned then and should be condemned now.

On 4 occasions in recent times in my local area in the inner north of Melbourne I have come across physically violent conflicts in which I have felt compelled to intervene. In fact, the very day before we walked onto the SWBTA, on June 20th 2007 as I walked down one of the streets in Yeppoon I came across a fist-fight that had just broken out between two girls in the front yard of a house. Surrounding the two girls was a group of about 10 others who were verbally encouraging the fight to escalate. While a driver in a passing vehicle stopped to call police, I was able to defuse the altercation by physically intervening. The events of that day differed from those of the following day only in the intensity, scope, and duration of the violence involved – the latter day, of course, seeing much more violence, with greater destruction for a much longer period. How much more important, then, that we intervene in the second, much worse situation of emergency. It is my belief that every one of these situations constitutes an extraordinary emergency that must be intervened in.

The issue here then is one of whether such an emergency objectively fulfills the requirement of compulsion. Threatened harm to people or the earth may satisfy the defence of necessity providing it is of sufficient gravity to satisfy the requirement of compulsion. That there was harm threatened to the earth, and ultimately to people, in the situation of Talisman Sabre is not in question. What matters is only my belief that a situation of extraordinary emergency existed, and that the actions taken would constitute a reasonable response under the circumstances as I understood them.

It should be noted that the idea that a person deliberately chose a certain course of action is not incompatible with the requirement that the action taken must have resulted from compulsion. What is required is merely that it is an urgent situation of imminent peril, as stated by Crockett in Crown and Loughnan, Victorian Reports page 460.
R v Loughnan [1981] VR 443 (FC), Crockett J at 460

The Queensland Supreme and District Court Benchbook as at 13th April 2008 states “It is not for the defendant to prove that he acted as he did because of the stress of a sudden [extraordinary] emergency. It is for the prosecution to satisfy you beyond reasonable doubt that he did not.” Therefore I believe that the burden of proof is not on us to prove that we were compelled any more than I already have, but on the prosecution to prove that we were not so compelled.

b) Committing the offence was the only reasonable way to deal with the emergency
So we come to 10.3, 2b) Committing the offence was the only reasonable way to deal with the emergency.

It should be noted that our presence on the Training Area was the last in a long line of steps we had taken to stop the exercises. We had written to the defence minister and had received no satisfactory response. We had participated in marches and written letters to the editor to raise public awareness of the Talisman Sabre exercises. We had personally spoken with senior United States consular officials in Australia and requested their help to stop the exercises. I had submitted myself to a process of talking through, with my family, faith community and with senior officials of the Baptist church under whose authority I sit whether this was a reasonable course of action. All agreed that it was.

The only legal step that remained for us was to seek an injunction to have the games stopped. However, as I understand it, we do not have the necessary standing to be granted such an injunction, so this option was unavailable to us.

Even when others had attempted to stop the games by trespassing on the base, the government and ADF had not believed that they were there despite video evidence showing them entering the restricted area. Therefore the only effective way for us to stop the games was to make our presence known, making absolutely sure that we would be seen, but not in a confrontational or threatening way.

At the point at which we entered the base, it was clear to us that no other course of action would have been sufficiently effective as to stop the exercises – this was the only course of action that was likely to work, and therefore the only reasonable way to deal with the emergency. As I will go on to argue, it was also a proportionate response under those circumstances.

c) the conduct is a reasonable response to the emergency
Thirdly and lastly I come to the idea that the conduct was a reasonable response to the emergency, which is to say that it was a proportionate response under the circumstances.

I trust you will note that we were meticulously nonviolent in the way we approached our intervention.

There was absolutely no self interest involved. We reached the base only after a long, cold, wet, walk through the bush in order to reach the fence adjacent to the base. We did not enter the restricted area until we were sure we were less than 150 metres from the tarmac of Samuel Hill Air Force Base, the closest point of the base to the fence that marks the boundary of Shoalwater Bay Training Area. This meant that the risk to ourselves from unexploded ordnance was negligible, particularly as it was so unlikely that the ADF would use or allow to be used such explosives so close to its own facilities. We had also ascertained beforehand where in the base the bombings usually took place, and avoided those areas entirely.

We walked openly down the tarmac so as to be seen most effectively, and had our arms outstretched in a gesture of conciliation and to demonstrate that we were unarmed and posed no threat. We approached the first personnel we saw rather than waiting until we had reached any particular strategic point. We deliberately drew attention to ourselves rather than waiting to be found.

It was important for us not merely to refrain from violence but to actively confront the situation with actions that were both obstructive of what we disagreed with, and constructive towards the alternative. As I have already said, training for war means more war; training for peace means that we further ourselves down that road. Hence the frisbee. The frisbee became for us a way of pointing to an alternative. Just like peace itself, it pointed to the need to practice something that most of us were pretty unfamiliar with and not very good at, me included. It’s a game of discipline, precision, respect and fun. And it’s a game you can’t play by yourself, you need at least one other person, and that means cooperation is required.

So our means were our end – to practice for peace with those with whom we had differences, rather than being violent or vengeful or alienating. We’re not saying that by itself playing frisbee will save the world or end violence or war. But I will say that our act carries the seeds of what is required. And the conversations we were able to have with the soldiers both during and after playing frisbee expressed the essence of why we were there. Gentle, reasoned dialogue and peace games with between people who differ is surely a reasonable and proportionate response to the emergency of high powered explosives and the destruction of people and property.

I understand the separation of powers, that you are here to administer the law. I believe we have given you enough room within the law to aquit us. But regardless of whether you agree we have all been made aware of the truths that we have presented today. As MLK Jr said, “We must never forget that everything Hitler did in Germany was "legal" and everything the Hungarian freedom fighters did in Hungary was "illegal." I would not want to argue that there is a direct analogy between Hitler’s Germany and Australia in 2007, but the point is that sometimes laws serve to protect and give legitimacy to practices that need to be challenged at best and are evil at worst. Sometimes they are unjust laws, and sometimes they are just laws applied unjustly. In the same way as those evils were protected by good people who for whatever reason did not stand up and say no, we believe that unless people stand up and challenge them, the laws that protect and legitimise the destruction of Shoalwater Bay and our brothers and sisters in Iraq and Afghanistan will remain, and will thereby diminish us all. And so with King I say, “Law and order exist for the purpose of establishing justice and when they fail in this purpose they become the dangerously structured dams that block the flow of social progress.”

And so we’re inviting you, from the current narrow definitions of these laws which serve to protect and make acceptable war and destruction, to broaden those terms to include our actions as a way of joining us in the struggle for peace and justice in our world. Thankyou for your time and attention.


Michelle said...

Thank you for standing up for peace. I thought you might find some solace in this website as you both are fighting the good fight.

Samuel Hill 4 said...

Thanks Michelle. John is a good friend of ours, and he's been amazingly supportive and a great inspiration. Glad to see his book is finally getting published! And thankyou for your support too, it's greatly appreciated.