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. Sgt Lunney said that he went to the site at about 9.45 am and spoke to the respondent Doyle who complained that he had been assaulted. During this conversation Doyle said to the sergeant that "They (the workers) won't have any work soon because we are going to stop the concrete trucks getting in". A television crew arrived and then Sgt Lunney saw Doyle and some persons with whom he had been associating talking to the reporters. Sometime later Inspector Corkery, the informant, arrived and he then spoke to the respondent Doyle. 2 UNREPORTED JUDGMENTS According to Inspector Corkery immediately he arrived at the scene he spoke to Doyle who asked "Inspector are we doing anything wrong?" Corkery replied "Sgt Lunney has informed me that you have indicated to him your intention of stopping this job and interfering with the delivery of essential materials, such as the concrete trucks and you have already ostracised workers by calling them 'scabs', and this would indicate to me an intent to prevent the workers from carrying out their lawful occupation". Doyle replied "They're acting like scabs and I am exercising my right as a trade union official". Corkery then said "You have no right. You have been removed from the site and any furtherance of any action to intimidate the workers on this job may result in police action". Doyle responded "I will wait until Steve Black comes and then we will see what we are going to do but I also want the name of this bloke", indicating one of the security men. Inspector Corkery then left the scene. At about 11.15 am he returned and spoke to Acting Inspector Findley. At this time he noticed a large group of male persons, about 25 to 30 in number, who had congregated in an area in close proximity to the site at the top of Day Street. The respondent Black was amongst them. He had a loud hailer and was directing remarks towards workers on the building site. What he said was this: "Stop work. Come down off the job. Don't be scabs all your life. I am calling a meeting. We will bring this job to a stop. If you don't come to the meeting you blokes won't get back on the site." At about the same time Doyle was calling out to the workers "Scabs, scabs, walk off the job." Inspector Corkery said there were similar remarks coming from other members of this group. He then approached the group and called out loudly "Gentlemen, this has now become an unlawful assembly I am asking you to disperse. If you do not disperse you will be arrested." A number of persons amongst the congregation dispersed. Some, however, remained steadfast and Inspector Corkery called out again "Gentlemen, this has now become an unlawful assembly I am asking you to disperse. If you do not disperse you will be arrested." A group of eleven persons, which included the nine respondents, according to Inspector Corkery, "refused to comply with my directions". He then gave instructions for them to be taken into custody. The learned Magistrate accepted the evidence of Inspector Corkery and the corroborating police witnesses and also accepted Mr Turski's evidence that the concrete pour had been suspended for about thirty minutes earlier on the day. Having accepted that evidence he concluded that the charges laid had been proved. The respondents based their claim for statutory prohibition upon the following grounds: (a) There was no evidence that at the relevant time it was the common object of five or more persons to by means of intimidation or injury compel any person to do what he was not legally bound to do or to abstain from doing what he was not legally entitled to do; (b) Alternatively there was insufficient evidence that at the relevant time it was the common object of five or more persons to, by means of intimidation or injury, compel any person to do what he was not legally bound to do or to abstain from doing what he was legally entitled to do; (c) The second defendant (the learned Magistrate) erred in finding that the plaintiffs' failure to disperse followed the first defendant's request to do so constituted an unlawful assembly; and URJ CORKERY v BLACK (Clarke JA) 3 (d) (d) The second defendant erred in admitting evidence of events which occurred at about 9.30 am on the morning of 22 July 1986. Young J did not accept the submission contained in para (d) and there is no issue concerning that matter before this court. His Honour also pointed out that there was no difference in substance between grounds (a) and (b) and the respondents do not dispute that this is so. Accordingly, leaving aside any question concerning the wrongful admission of evidence, his Honour was concerned to consider whether grounds (a) and (c) had been made out. His Honour rejected the submission that there was no evidence of the relevant common object but he upheld the claim for statutory prohibition upon the ground that the learned Magistrate had failed to put to himself the proper questions. He expressed the opinion that although the learned Magistrate was correct in his conclusion that the informant had established a prima facie case - that is that evidence had been led upon which the learned Magistrate could convict the respondents - he failed, at the end of all the evidence, to consider the question which was then posed - Whether on the whole of the evidence he was satisfied beyond reasonable doubt that the respondents were guilty, or, to put it another way, whether he should convict (May v O'Sullivan 92 CLR 654). In his Honour's opinion the learned Magistrate assumed that the unlawful assembly continued and that the respondents were members of it merely because the respondents were on the site after the proclamation had been read. His Honour pointed out, quite properly, that it was incumbent upon the learned Magistrate to consider the whole of the evidence in order to determine whether he was satisfied beyond reasonable doubt that the respondents were guilty of the offence with which they were charged and this, in his Honour's opinion, the learned Magistrate had failed to do. Having concluded that the learned Magistrate had failed to carry out that task and having categorised that failure as constituting an error of law of a character which attracts the jurisdiction of the court to order prohibition under s112 of the Justices Act his Honour made the appropriate order. The appellant challenges the finding that the learned magistrate failed to evaluate the evidence before deciding to convict the respondents and, as well, contends that Young J was in error in including that the evidence revealed any error of law of the type which attracts the jurisdiction of the court to grant statutory prohibition. These submissions require the court to consider the reasons for judgment of the learned Magistrate in the context of the issues which were contested before him and the course of the hearing. Before proceeding to undertake that course I should point out that counsel for the respondents complains that the first ground on which the claim for prohibition was based (ie that there was no evidence of a common object to compel by intimidation) was not considered by his Honour. For that reason she has not only sought to support his Honour's judgment upon the grounds which he gave but also upon the first ground upon which the claim was based and which she contends was not dealt with. To this end she filed in court a notice of contention which expresses the error for which she contends differently from the manner in which it was expressed in the affidavit grounding the application for relief. The submission put forward in the notice of contention is that the magistrate failed to consider whether the relevant common object had been established and consequently failed to determine the relevant facts in relation to that element. Although the question posed by the notice of contention is different in substance 4 UNREPORTED JUDGMENTS from the to evidence argument propounded in the affidavit it is my opinion that in order to accord justice to the respondents it will be necessary to consider both submissions. The offence with which the respondents were charged arises under s545C of the Crimes Act 1900 which, so far as is relevant, reads as follows: 1. Whosoever knowingly joins an unlawful assembly or continues in it shall be taken to be a member of that assembly, and shall on conviction before a Stipendiary Magistrate, be liable to imprisonment for a term not exceeding six months or fine not exceeding $500, or both. 3. Any assembly of five or more persons whose common object is by means of intimidation or injury to compel any person to do what he is not legally bound to do or to abstain from doing what he is legally entitled to do, shall be deemed to be an unlawful assembly. In Ex parte Aubin; re Munday and Anor (1930) 30 SR 169 the Full Supreme Court of New South Wales held that subs(3) provided the exclusive definition of "unlawful assembly" for the purposes of subs(1) of s545C. The case was contested before the learned Magistrate on the basis that Aubin laid down the law in New South Wales and that it was necessary for the prosecution to establish that the assembly was an unlawful assembly at the relevant time within the meaning of s545C(3). The learned Magistrate was therefore confronted with the question whether the informant had established beyond reasonable doubt that the common object of the assembly - which clearly contained more than five persons - was to compel, by means of intimidation, workers on the site to do what they were not legally bound to do or to abstain from doing what they were legally entitled to do. As I have already indicated at the close of the prosecution case counsel for the respondents submitted that there was no case to answer. The thrust of her submissions was that the informant's case was deficient in two respects. Firstly, there was no evidence that the persons gathered together at the site had a common object and secondly, even if it was proper to conclude that there was evidence upon which the court could infer that common object there was no basis upon which it could be found that that object was to compel by intimidation. In her submission the evidence went no further than showing an intention on the part of those who constituted the assembly to persuade the workers on the site to leave the job and attend the meeting. The learned magistrate rejected these submissions. In his reasons for judgment he summarised, in an accurate manner, the defence submissions and correctly identified the elements of the offence. Having regard to the evidence of Turksi that fairly early in the morning a group comprising more than five persons pushed aside the security officers and entered the building site, of the distribution of pamphlets and of the suspension of the concrete pour and the evidence of Inspector Corkery and other officers of the statement made by Mr Black through the loud hailer and the use of inflammatory words, he concluded that it was open to him, on the evidence, to conclude that the participants in the assembly had the common object of intimidating the workers in order to compel them to leave the site and join the meeting. Following this ruling a number of the respondents gave evidence the general effect of which was to deny that Black had made the statement attributed to him and to assert that all that he had done was to make a general call to workers to come down and attend a meeting with them. This evidence gave rise to a clear URJ CORKERY v BLACK (Clarke JA) 5 factual dispute in the context of which it was necessary for the learned Magistrate to consider whether he was satisfied beyond reasonable doubt that all the elements of the offence had been proved. Following this evidence counsel for the respondents in her final address concentrated her submissions upon the lack of proof of a common object to compel by intimidation. Although she asserted once more the absence of proof of any common object it is readily apparent that she placed far more emphasis upon the submission that if that submission was rejected the object which should be found was the one to which the witnesses for the defence deposed. That is, for the men to proceed to the site to find out what had happened to the respondent Doyle, whom it is suggested had been assaulted, to protest against that and to call workers on the site to come to a meeting to discuss the matter and to do something about it. Nowhere in her submissions at the conclusion of the case did she suggest that the character of the assembly changed after the proclamation was made. Her argument was that the prosecution had failed to establish the existence of an unlawful assembly on the day in question. These submissions made by the respondents' counsel provide the immediate context for the learned Magistrate's reasons for judgment. His Worship resolved the dispute of fact in favour of the prosecution case. In so doing he accepted the evidence of Inspector Corkery and other police officers as to Black's statement. He accepted Turski's evidence concerning the suspension of the concrete pour, he concluded that quite a number of BLF members attended the site in a show of strength and did so in circumstances which would, looked at objectively, be likely to intimidate workers on the site. He placed particular importance on Black's threat to prevent the workmen getting back on the site if they did not attend the meeting and interpreted that as a threat to the employment of those workers and he concluded that each of those facts which he mentioned together constituted intimidation. He then said, and this is the statement upon which the respondents rely and which led Young J to conclude that the learned Magistrate had failed to ask the right question, "(I) accept that after the acts took place and after they were directed twice by Inspector Corkery to disperse and they failed to do so...., their failure to disperse joined them, in my opinion, in the unlawful assembly and they continued in such unlawful assembly when they did not disperse". The submission concerning this passage of the reasons for judgment which appealed to Young J was that instead of confronting the question whether the evidence was capable of establishing beyond reasonable doubt that the assembly was an unlawful one within the meaning of the section the learned Magistrate merely assumed that the failure to obey the direction from Inspector Corkery constituted the assembly an unlawful one in which the respondents were participants. This submission was supported by reference to the use of the word "intimidation" which tended to show that the magistrate concentrated on finding whether intimidation had taken place rather than considering the common object of the assembled people. Insofar as the respondents' submission proceeds upon the basis that the learned Magistrate assumed that once the direction had been given the assembly was an unlawful one it fails to take account of the course of the case and, in particular, the arguments advanced by counsel for the respondents both at the prima facie case stage and the conclusion of the evidence. At no stage did she suggest that the proclamation had any particular significance except insofar as it was referred 6 UNREPORTED JUDGMENTS to in the charge. Nor did the prosecutor suggest that the proclamation converted the assembly into an unlawful one. On the contrary the whole thrust of his submissions was that the assembly had been an unlawful one for a lengthy period prior to the proclamation and that the failure of the respondents to disperse meant that they continued in it. The issues in the case focused upon whether the prosecution had established beyond reasonable doubt that the men who were gathered together had the common object expressed in the section. The learned Magistrate was, moreover, invited to consider whether it had been shown that the men had the specified common object in the context of the events which preceded the proclamation and in the absence of any submission from counsel for the respondents to the effect that before the prosecution could succeed it was necessary to show an occurrence after the proclamation from which the intention to compel by intimidation could be inferred. The case was conducted upon what appears to me to be the appropriate basis that if the assembly was an unlawful one immediately before the proclamation then in the absence of some proof of a change of character it continued to be an unlawful one after Inspector Corkery had spoken. In this context I would understand the contentious statement of the learned Magistrate to mean no more than the respondents who failed to disperse after the proclamation continued in the assembly which had been shown by those matters of fact to which the learned Magistrate drew attention to have been unlawful. Although, perhaps, the reasons could have been more happily expressed I think they convey the clear message that he was satisfied that the assembly was an unlawful one and that the failure to obey the direction of Inspector Corkery showed the continued participation by the respondents in that assembly. It follows that I do not agree that the learned Magistrate failed to direct his attention to the right questions. Nor do I agree with the conclusion that the conviction was vitiated by a legal error upon the basis of which prohibition will lie. The most recent expression of the circumstances in which an order of prohibition may be made pursuant to s115 of the Justices Act 1902 is to be found in the judgment of Wilson J in ShaPowloff v Dunn, 148 CLR 72, at 80: These cases establish that a conviction will only be disturbed if there is no evidence within reason to support it or if there is such a fundamental error of law as leads to a failure to determine the relevant facts. It is clear from this statement of the principle, and the cases which preceded it, that in order that prohibition will lie a legal error must be of such a nature as to have led to the consequence that the tribunal failed to consider the proper questions which arose for determination. Its ambit appears clearly from the example cited by Dixon CJ in Williams v Hobday 91 CLR 193, at 200: "It seems to be established, however, that if a fundamental error in law amounting to a misdirection is made by the magistrates in such circumstances as to lead to their failure to determine what are in truth the relevant facts, then the order cannot be supported: See per Stephen J Ex parte Wetherburn (53 WN 103). An example will be found in the circumstances of Ex parte Bogan (8 LR(NSW)(L) 409. There the justices were called upon to apply the law which deprived the holder of a packet licence of authority to sell liquor while the vessel licensed was plying between places within any harbour of the colony. But they contented themselves with observing that there was some undesirable obscurity about the use of the word 'harbour' in the Act and gave it as their opinion that it was intended by the legislature to restrict packet licences to sea-going vessels. The justices failed URJ CORKERY v BLACK (Clarke JA) 7 actually to determine whether the places between which the vessel was plying were geographically within a harbour. The Supreme Court did not agree that packet licences were confined to sea-going vessels and as the justices had not decided upon the facts, upheld the appeal and granted a statutory prohibition. " It could not be said that anything of that nature happened in this case. The learned Magistrate was reminded of the elements of the offence and, having held at the end of the prosecution case that he could convict on the evidence which had been adduced, properly directed his attention to those matters which fell for consideration in answering the question whether at the end of all the evidence he should convict, ie whether he was satisfied beyond reasonable doubt that the elements of the offence had been established. Accordingly, I conclude that the appellant's counsel has made good his submissions. During the hearing of the appeal there was some discussion of the question whether it was open to the Supreme Court to make an order of prohibition under s115 of the Justices Act upon being satisfied that the verdict of a magistrate was "unsafe and unsatisfactory". Although there are statements in his Honour's judgment which could be read as meaning that prohibition will lie if the court is so satisfied I do not think that is the proper construction of those passages. Early in his judgment his Honour had identified the legal test which he was required to confront in the application for prohibition and his reference to the unsafe nature of a conviction in obiter dictum suggest to me that his Honour was saying no more than that a particular portion of the learned Magistrate's reasons for judgment, which his Honour found unsatisfactory, supported his earlier view that the learned Magistrate had failed properly to consider the facts. However, I should make it clear that I can find no support for the proposition that it is open to a court to make an order of prohibition pursuant to s115 upon the ground that a conviction is unsafe and unsatisfactory. The court in undertaking the task of determining whether a conviction is unsafe or unsatisfactory is required to make an independent assessment of the evidence in supervising or reviewing the findings of a tribunal of fact (see Chamberlain v The Queen (No 2), 153 CLR 521; Morris v The Queen, 163 CLR 454). Although there is some difference as to the expression of the test which should be applied in determining whether a verdict is unsafe or unsatisfactory (see Chamberlain v The Queen (No 2), 153 CLR 521, per Gibbs CJ and Mason J and Morris v The Queen, 163 CLR 454, at 472, per Deane, Toohey and Gaudron JJ) it is clear: ... that the question whether a verdict is unsafe or unsatisfactory involves a court of criminal appeal undertaking an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied beyond reasonable doubt as to the guilt of the accused. That function is not discharged merely by a consideration of whether there is a sufficiency of evidence to sustain a conviction, for it is clear that a verdict may be unsafe or unsatisfactory notwithstanding that there was evidence sufficient to entitle a reasonable jury to convict. (Morris, at 473) That exercise which is carried out in order to determine whether there has been a miscarriage of justice, within the meaning of s6 of the Court of Criminal Appeal Act 1912, is to be contrasted with the tests to be applied in determining whether prohibition should lie. (See generally Ex Parte Wetherburn; Hooper v Gorman, [1976] 2 NSWLR 431, and Peck v Adelaide Steamship Co Ltd, 18 CLR 167, per Isaacs CJ at 180.) 8 UNREPORTED JUDGMENTS Accordingly, it will form no part of the duty of a judge considering an application for prohibition under s112 of the Justices Act to examine the evidence in the case in order to ascertain whether in his opinion the verdict was unsafe or unsatisfactory. (See also Kippist v Parnell, 36 A Crim R 18, at 22.) The remaining issues which arise from the notice of contention can be shortly disposed of. The learned Magistrate was addressed at length on two occasions as to whether there was evidence capable of supporting the conclusion that the respondents continued in an assembly the common object of which was to compel by intimidation the workers on the site. Although in his final judgment the Magistrate spoke of intimidation rather than an intention to intimidate I have little difficulty in concluding that he considered an answered the correct question. Likewise the submission which was originally advanced that there was no evidence of common purpose should be rejected. Once the evidence of the police officers was accepted then the inference that the persons participated in the assembly for the purpose stated in s545C(3) was readily capable of being drawn. In my opinion the appeal should be upheld. The order of Young J should be set aside and the matters should be remitted to the learned Magistrate to sentence the respondents. The appellant has sought an order for costs in this court and before 'Young J and in my opinion is entitled to an order that the respondents pay those costs. Counsel for the Appellant: BM James QC and P Saidi Solicitors for the Appellant: HK Roberts, State Crown Solicitor Counsel for the Respondent: Ms HG Murrell Solicitors for the Respondent: Geoffrey Edwards and Co