CORKERY v BLACK [1989] NSWCA 49

CORKERY v BLACK

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, PRIESTLEY and CLARKE JJA 26 July 1989, 2 August 1989

[1989] NSWCA 49

Crimes Act s545C — unlawful assembly — statutory prohibition — common object. ORDERS The appeal is upheld. The order of Young J is set aside and the matters are remitted to the learned Magistrate to sentence the respondents. The respondents to pay the appellant's costs of the hearing before Young J and the appeal.

Gleeson CJ In this matter I have had the advantage of reading in draft form the judgment of Clarke JA. I agree with the orders proposed by his Honour and with the reasons given by him for making those orders.

Priestley JA I agree with Clarke JA.

Clarke JA Each of the respondents was convicted on 7 April 1987 on a charge ofknowingly continuing in an unlawful assembly with other named persons on 22 July 1986 after having been asked by John Richard Corkery, an Inspector of Police, to discontinue in that assembly. Following their convictions they filed a summons seeking statutory prohibition. That summons was heard by Young J who on 4 February 1988 made orders in their favour. Inspector Corkery, the informant, has appealed against that decision.

The case which the informant led before the Magistrate was that the respondents, who were members of the Builders Labourers Federation, congregated at a site at which the construction of a building was taking place, and which has been described as the Zenith building site, in Victoria Street, Chatswood, at about 8.30 am on 22 July 1986. According to Mr Turski, the construction site manager, at about 9.30 am eleven or twelve persons who had gathered together outside the site stormed the gate at McIntosh Street, pushed security guards out of the way, entered the site and started distributing leaflets. He approached them and pointed out that they had no right to enter the site and asked them to leave. He then called the police. At about the same time he went around to the Day Street entrance in order to investigate certain information which he had been given. He noticed some men talking to the pump operator and the driver of a concrete truck from which concrete was being pumped onto the site. One of those men was the respondent Black. Following this discussion the pumping of concrete ceased and did not recommence until about 30 minutes later when police officers spoke to the operator.