The trial of 16 activists arrested at a Palestine solidarity protest outside a Max Brenner chocolate store in Melbourne's QV shopping centre in July last year finished on May 25.
Throughout the trial a megaphone has been sitting beside the magistrate as evidence. Freedom of political expression and the right to protest have been on trial in this court case.
The court case began on May 1 and lasted almost a month. The defence counsel and the prosecution finalised their submissions on May 24 and 25.
The protest where the 16 were arrested was part of the international boycott, divestment and sanctions campaign against apartheid Israel. The Max Brenner company was a target because its parent company, the Strauss Group, has close ties with the Israeli military.
The activists were charged with beset and trespass. Several protesters have additional charges of resisting arrest, hindering arrest and assault. A charge of riotous behaviour against one protester was withdrawn by the prosecution before the case began.
Defence counsel Peta Murphy said that the police action on July 1 was premised on the belief that QV Square was privately owned and the private owners had an absolute right to determine who could come on to the property, when they must leave, and any conditions and restrictions as to entry.
Murphy said QV does not have any authority to demand someone leave a public place unless they are present as a wilful trespasser. Murphy said QV does not have any legal basis on which to demand that any person leave a public place because they are “demonstrating disapproval of the political or social interests of a retail tenant”.
QV manager Lisa Fleming admitted during the trial that QV Square and the surrounding lanes were subject to a covenant entered into by the owners of QV with the Melbourne City Council. Under a Section 173 agreement under the Planning and Environment Act (1987), QV Square and the QV laneways are required to be open to the public 24 hours a day, seven days a week.
The owners of QV Square did not have any authority to close access to members of the public to that square or the surrounding lanes without the approval of the Melbourne City Council.
Murphy said any other approach would limit the right to freedom of expression and peaceful assembly protected by the Charter of Human Rights and Responsibilities Act (2006).
Defence counsel Stewart Bayles said the accused had no case to answer on the charge of besetting premises. He said the prosecution would need to prove the Max Brenner store was beset in order to obstruct and impede people from entering the store.
Bayles referred to evidence the police blocked off the Swanston St end of the lane and set up a police line in QV Square before protesters arrived and that the protesters did not form a line in front of the lane through which the Max Brenner store is usually accessed.
Bayles said the prosecution’s case for physical besetting was not supported by evidence. He referred to CCTV footage which showed members of the public walking freely through the protesters until they reached the police line where they were turned back by the police.
The prosecutor said there were “public order limitations” on the right to freedom of expression.
He said the charter did protect the rights of the protesting group, but these were restricted on the basis of not interfering with the human rights of others, including the general public going about their normal and daily activity on QV premises.
Magistrate Simon Garnett will release his decision on July 23.