Appeal Day One [20 Feb 2008|09:03pm]
February 20, 2008 - Darwin
After day one of the Pine Gap 4 appeal in the Northern Territory Court of Appeal in Darwin, I'll repeat what I've been quietly declaring all day: "I think we're winning…"
After saying that, I'm mindful of the fact that our legal team is still presenting its case and the Prosecution hasn't had a chance to speak yet, but that's a minor detail!
But realistically, by lunchtime tomorrow I might have a totally different opinion.
I have to confess I was never really expecting to have our convictions overturned at this appeal, but when I admitted such to our very own QC, Ron Merkel, this morning, his response was "why not? The objective is to win!"
He then put me and my doubt to shame by proceeding to present five hours of dazzling legal argument, whilst barely taking a breath!
We won the first legal argument: an application by the Commonwealth and its agencies (ie Dept of Defence, Federal Police, ASIO etc) to be party to the appeal and have its lawyers at the table.
Ron argued that any third party intervention would be "meddling" in a dispute between the crown and the accused.
"It's an important matter of principle. The rules of intervention are quite clear," he told the court.
"The Crown and Commonwealth will put identical submissions; it would be a bi-lateral attack on the accused.”
After one hour of debate the panel of three judges returned a ruling against the Commonwealth intervention.
Round One to Ron Merkel.
The band of Commonwealth lawyers (5) packed up their bags and retreated. It was a good omen.
Then the real action of the appeal began: Ron began to lay out his arguments of the appeal which are quite technical and complex. They relate to definitions used in the Defence Special Undertakings Act 1952 (under which we are charged) about what is a "prohibited area", and matters of procedural unfairness at the trial.
He reminded the judges that protestors at Pine Gap would normally be charged with trespass and dealt with in the Magistrates Court, and of the significance that no one had ever been charged under the 1952 DSU legislation.
“The issues the act raises at the time of the offence in 2005 are not the issues parliament had in mind back in 1952,” he said.
“Pine Gap was not in the contemplation of Parliament in 1952.
“The legislation has extraordinary power to make any area a prohibited area and trespassers punished with seven years in jail.
“The act produces such as odd outcome in 2005, 42 years after it was passed.”
I will spare further details of the next five hours of legal argument, the judges asked many technical questions and everyone did their best to follow. But Ron’s conclusion was clear: because of the errors made by the original judge our conviction should be quashed and no new trial ordered.
And he left this question hanging:
“One may query why this particular course has been taken against these defendents.”
One may indeed.
We had good local support at a vigil outside the courthouse before the appeal began and in the courtroom. Also an excellent report on ABC TV tonight.
Ron did not finish presenting his arguments today, he continues at 10am tomorrow.
More news tomorrow,
PS: Remember Ken? The Head of security at Pine Gap who we have come to know quite well in the last two years? He has taken holidays so he could be present at the appeal as an observer. With him and so many other familiar faces in the courtroom one of the DPP lawyers commented “it’s like a family re-union!”