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The truck allegedly blocked by Leo Carvalho from entering a Mr Fluffy demolition site did not enter the property’s driveway before he was arrested, a court has heard.
Carvalho, 71, was charged on May 13 this year after he allegedly obstructed the truck from entering 4 Barrow Place in Lyons, a Mr Fluffy house in the process of demolition.
The truck was there to take a skip full of material from the site to the tip, but neighbours, including Carvalho, had concerns over how the demolition was being carried out.
He has pleaded not guilty to the one obstruction charge, and on Thursday faced a hearing in the ACT Magistrates Court.
Under questioning from defence lawyer Mark Davis, the arresting officer station sergeant Harry Hains said the truck had not entered the driveway but had pulled up opposite.
The court heard the truck driver had asked Carvalho to move, but the officer agreed under questioning that he had not also asked Carvalho to move, saying the man’s intentions were very clear.
Mr Davis suggested Carvalho had made a statement saying he intended to block the truck and the police had no way of knowing if he actually would.
Prosecutor Brian Ngugi pressed the officer on why he did not have the truck driver attempt to back the truck into the driveway while Carvalho was standing there.
Sergeant Hains said it was a very big truck, and he wasn’t prepared to put Carvalho in the “extremely dangerous” situation of having it reverse at the man in the driveway.
Another officer at the scene, detective sergeant Louise Denley agreed to questions from Mr Davis that Carvalho was polite and she didn’t see him pushing workers away.
Mr Davis asked why they hadn’t waited the 10 minutes the Carvalhos had asked for while union officials made their way to the property, which he said seemed a reasonable request.
Detective sergeant Denley replied they had been told by Emily Springett from the ACT Asbestos Response Taskforce that the CFMEU had been consulted and weren’t coming.
The driver also took the stand on Thursday, explaining how he had got out of the truck and asked Carvalho to move.
n a police video tendered by the Crown, Carvalho can be seen standing in the driveway with his feet wide and hands behind his back as he was approached by the driver.
The driver can be heard saying “I tried”, before he walked back to the truck, and Carvalho is seen shortly after arrested without incident in the driveway by sergeant Hains.
The hearing will continue before special magistrate Dominic Mulligan in February.
On May 13, 2016, Leo Carvalho, 71, was arrested when he stood in the driveway of a Mr Fluffy property and refused to move for a truck.
The property was 4 Barrow Place in Lyons, his nearby neighbour.
The truck was to pick up a skip bin full of demolition material. But the neighbours had concerns about how the demolition was being carried out. In particular, Carvalho was worried about the carpet, if it was contaminated and how it was being removed.
Carvalho pleaded not guilty to the sole obstruction charge on June 21, 2016 and fought the allegations during hearings in the ACT Magistrates Court on several days in October and February.
His defence was that his obstruction of the truck was reasonable.
Neighbours were alarmed on April 28 when they saw workers using sledgehammers and crow bars to begin demolishing the property.
Carvalho was also concerned when he watched a video filmed by his son Ben that showed a worker wearing no protective clothing jumping into the skip bin full of material from the house.
He also knew that while neighbours were helping move mirrors from the property in July or August 2015, part of the roof fell down, and he was not aware whether the material was contaminated.
It emerged later the material was tested, and was uncontaminated.
Special Magistrate Dominic Mulligan on Tuesday found Carvalho guilty, and his blockade unreasonable. The magistrate said the man had three reasons for blocking the truck; one, was his concern the carpet could be contaminated. Second was that the contents of the skip bin, namely the carpet, could be used as evidence. And third, was that the carpet needed to be secured elsewhere.
But the magistrate said Carvalho did not know if the carpet was in the skip, that he had been assured the carpet would be rolled and wrapped before being transported and the material that fell from the roof had been tested and found not to be contaminated.
Further, the magistrate said Carvalho’s son Ben had only seen wrapped material put into the skip, and that in the video black plastic could be seen in a way that appeared to be lining the skip.
He said it would be “patently ridiculous to suggest each time they found asbestos a police investigation had to be launched”.
The magistrate found Carvalho was simply mistaken when he said a member of the Asbestos Taskforce had given him an undertaking on April 29, to provide several reports about the property.
On Tuesday, Mr Mulligan found Carvalho guilty of the sole offence of obstruction, but said he would not impose a conviction because the situation was so minor it did not warrant punishment.
“[You were] very polite, not violent, not vocal, you were simply a man who was concerned about the matter,” Mr Mulligan said.
He pointed to submissions made by Mark Davis, Carvalho’s defence lawyer, who had highlighted that police had not used other means that day, such as a move-on order or reasonable force, to get Carvalho out of the way for the truck.
Prosecutor Brian Ngugi did not speak against a non-conviction order.