Commissioner of Police v Gabriel [2004] NSWSC 31

Reported Decision : 141 A Crim R 566

New South Wales Supreme Court

CITATION : Commissioner of Police v Gabriel [2004] NSWSC 31 HEARING DATE(S) : 29 and 30 January 2004 JUDGMENT DATE : 30 January 2004

JURISDICTION: Common Law Administrative Law List JUDGMENT OF : Hamilton J DECISION : Order made prohibiting holding of public assembly.

CATCHWORDS : MEETINGS [3] - Public meetings and assemblies - Unlawful assembly - Effect of order under Summary Offences Act 1988 Part 4 - Principles on which order should be made or withheld. LEGISLATION CITED : Crimes Act 1900 ss 60(1), 545C and 562AB Summary Offences Act 1988 Part 4 ss 22 - 27 Commissioner of Police v Allen (1984) 14 ACrimR 244 CASES CITED : Commissioner of Police v Rintoul [2003] NSWSC 662 Commissioner of Police v Vranjkovic SCNSW Lee J 28 November 1980 unreported PARTIES : Commissioner of Police (P) David Gabriel (D) FILE NUMBER(S) : SC 30011/04 COUNSEL : R D Cogswell SC & Dr J Quilter (P) No appearance (D) SOLICITORS : I V Knight Esq (P) No appearance (D)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION ADMINISTRATIVE LAW LIST

HAMILTON J

FRIDAY, 30 JANUARY 2004

30011/04 COMMISSIONER OF POLICE v DAVID GABRIEL

JUDGMENT 1 HIS HONOUR: This is an application by the Commissioner of Police for an order under s 25 of the Summary Offences Act 1988 ("the SOA") prohibiting the holding of a public assembly. The relevant statutory provisions are contained in Part 4 ss 22 to 27 of the SOA. They superseded and replaced the provisions of the Public Assemblies Act 1979. The provisions which I shall shortly outline are somewhat curious. Particularly curious is the terminology in s 25 of "prohibiting" a public assembly because, as will appear, the order provided for by that section does no such thing. The whole purport of the Part is not to prohibit public assemblies but, certainly in cases where they are a due exercise of the democratic right of free speech, to facilitate them by protecting participants in appropriate circumstances from prosecution for certain offences which might otherwise be regarded as having been committed. 2 The SOA by s 23 provides that a public assembly is an authorised public assembly if notice in writing of the intention to hold it has been served on the Commissioner of Police in a specified form and that the Commissioner of Police (in the circumstances which prevail in this case) has notified the organiser of the public assembly that the Commissioner does not oppose the holding of the public assembly. The consequences of the authorisation provided for in s 23 are set out in s 24 where it is provided that, if an authorised public assembly is held substantially in accordance with the particulars furnished to the Commissioner of Police, a person participating in it is protected from guilt of specified offences including offences under s 545C of the Crimes Act 1900 (which creates the offence of participating in unlawful assemblies as defined in that section) and also in respect of certain potential offences of obstruction. Having been served with a notice the Commissioner of Police is authorised by s 25, the section under which this application is made, to apply to this Court for an order prohibiting the holding of the public assembly specified in the notice. The Commissioner may not apply for that order unless he has served on the organiser of the public assembly notice inviting the organiser to confer with a member of the Police Force concerning it and has taken into consideration any matters put by the organiser at that conference and in any representations made by the organiser. 3 As I have already said, the effect of a prohibition order under s 25 is not to prohibit the assembly in any way, but to impose upon the participants the possibility of the commission of additional criminal offences. Its description as a prohibition order is therefore something of a misnomer. All it does is to produce the effect that persons participating in the assembly do not have the benefit of the additional protection which could potentially be afforded to them under s 24 of the SOA. 4 No criterion for the making of the order of prohibition is laid down in the SOA. In the short time I have had available to me I have been able to locate judgments in only three cases in which the incidence of the provisions has been discussed. Two of those are older cases which dealt in fact with the preceding and corresponding provisions of the Public Assemblies Act 1979. One is a more recent case. The three cases are the decision of Lee J in Commissioner of Police v Vranjkovic SCNSW 28 November 1980 unreported; the decision of Hunt J (as his Honour then was) in Commissioner of Police v Allen (1984) 14 ACrimR 244; and the decision of Simpson J in Commissioner of Police v Rintoul [2003] NSWSC 662. In each of these three cases the Judge emphasised the limited effect of the order of prohibition. Each of their Honours noted the absence of stated criteria for the exercise of the discretion conferred on the Court by s 25. Each of their Honours regarded the exercise to be carried out as a balancing exercise between the right of free speech, vital in a functioning democracy, and other considerations, which included the right of privacy of the object of the assembly or demonstration (where that was a particular person) and of other persons in the neighbourhood and the convenience of those persons; the right of such people to be spared unnecessary offence or affront; and also the interests of the maintenance of public order and the necessity or desirability in the particular circumstances of members of the Police Force having access to the powers to arrest and prosecute for the full panoply of offences possibly applicable in these circumstances, bearing in mind the limitation of those rights in the law enforcement authorities by the existence of an order prohibiting. 5 In the case of such a wide and unfettered discretion each case must, of course, be considered upon its own merits in all the circumstances which prevail in the case. However, examination of the results in the three available authorities is somewhat instructive of the general approach of this Court to its discretion under these provisions. In each of the older cases, Vranjkovic and Allen, an order was made under s 25. In each case his Honour the Judge, although emphasising the importance of the right of freedom of speech and of demonstration in a democracy, was of the view that there were circumstances which should lead to the order being made. 6 In the case of Vranjkovic there was evidence before Lee J that the particular group of people who proposed to hold the assembly had in the past participated in assemblies which became disorderly and during which acts of violence were committed. In view of that history his Honour was of the view that the order ought be made. His Honour took that view although it was a matter of political principle in support of which the assembly was proposed to be held, namely, to demonstrate in the vicinity of a foreign consulate against the oppression of a particular group (with whom the demonstrators were associated) in the country whose consulate it was. 7 Similarly, in Allen there was no doubt that the demonstrators proposed to support a general political principle, namely, to demonstrate against the targeting of women by rape and other acts of violence in war. The demonstration was to be carried out in the vicinity of an Anzac Day march. His Honour adverted to another of the rights to be brought into balance as the democratic right to be spared unnecessary offence or affront. In view of the deep personal and emotional significance of the occasion to many of the participants in Anzac Day observances, his Honour felt that, in the circumstances of that case, there was a real risk of such affront to participants by the demonstration, with a potentiality for feelings to erupt into acts of violence. In those circumstances it was not appropriate for the exemption from the application of certain offences to be allowed to the proposed participants in that demonstration. 8 In the case of Rintoul, however, Simpson J came to the opposite conclusion. There the proposed demonstration was to protest in general terms against the manner in which Mr Phillip Ruddock, the then Minister for Immigration in the Commonwealth Government, was carrying out the duties of that office. The demonstration was, however, proposed to be carried out in the vicinity of Mr Ruddock's home. Although the demonstration was undoubtedly to be a genuine expression of the political views of citizens in our democracy, it was argued that the participants should not have the additional protection of the provisions of the SOA in relation to a demonstration which impinged on the privacy and peace of the Minister in his home, on his family, and on his neighbours. Her Honour described the task of the Court in exercising the discretion as unenviable. Her Honour came to the conclusion that, as the Minister had in a sense abandoned his position as a private citizen and become a public and political figure by his election to Parliament and acceptance of office in the Federal Cabinet, the invasion of the privacy and peace of the residential street ought yield in that case to the right of expression of democratic political opinion. 9 I received some guidance from these cases, although, as I repeat, this matter must be decided on its own facts. 10 The facts as proved before me are as follows. The defendant became involved in an unfortunate contretemps with police at a sporting event. This led to his being arrested and charged with certain offences. Out of the events at the time sprang countervailing allegations of assault, on the one hand, allegations that the defendant had committed assaults on a police officer or officers; on the other hand, allegations by the defendant that police officers had assaulted him and applied to him violence going beyond the necessities of the situation. The defendant pleaded guilty to charges of resisting arrest and offensive language, but pleaded not guilty to the charge of assault. In relation to that charge he was convicted by a Magistrate, but on appeal acquitted by a District Court Judge. 11 He lodged a formal complaint against a particular police sergeant ("the male police officer") on whom his dissatisfaction with the whole course of events seems to have centred, although that officer was not the only officer involved in the events against whom the defendant had some complaint. His sense of grievance was compounded by the fact that the Police Department decided not to conduct further inquiries into the complaint. It appears that the male police officer's wife (who was also a police officer) ("the female police officer") was in the Internal Affairs Section of the Police Force and, in the defendant's belief, played some part in the decision that the complaint not be taken further. 12 The defendant's sense of grievance, despite his acquittal of the charge of assault by the District Court Judge, seems to centre on his belief that there was a conspiracy, in which the male police officer played some central part, to give false evidence to procure the defendant's conviction of the assault charge against him. He has said on many occasions that what he seeks is for the male police officer to admit that he is corrupt, the corruption being the giving of false evidence and the participation in a conspiracy for false evidence to be given. The defendant has participated in an organization called PACP (People Against Corrupt Police) to pursue this matter. 13 Earlier notices of public assembly were given by the defendant but not proceeded with. The defendant, however, gave notice of a public assembly to be held next Sunday, 1 February 2004, in the vicinity of the home of the male police officer, the female police officer and their children. There have been some supervening events which should be noted. One is that the defendant has announced to the Police Department that he is withdrawing or has withdrawn his notice of intention to hold the public assembly. The second is that, by reason of his own attendance on a number of occasions in the street in which the relevant police officers reside, he has been charged with further offences which include a charge of intimidation under s 60(1) of and a charge of stalking and intimidation under s 562AB of the Crimes Act 1900. After his arrest on 15 December 2003 he received police bail conditional upon, amongst other things, his not going within 100 metres of the residence of the relevant police officers. He was to appear at Burwood Local Court on 12 January 2004 and was represented at that Court by a solicitor on that day. His bail was renewed by the Magistrate and no application was made for variation of the bail condition relating to his proximity to the relevant residence. Those charges against him are stood over to a day in February "for plea or mention", that is, on that day they may be dealt with on the basis of a guilty plea if one is entered; if the plea is not guilty, a time will be fixed for the hearing of the charges. A third matter that has supervened since the giving of the notice is that there is now information about the public assembly or demonstration proposed on 1 February on a website. There had been talk earlier that the defendant was to create a website of his own, but this did not occur. However, there is a website conducted by other persons and material relating to this proposed assembly has been posted on it. That material includes the date of the proposed public assembly and the relevant address. 14 A part of the evidence important to my determination of this case is an extensive affidavit by Superintendent Catherine Judith Byrne of interviews or conversations that she has had, in some cases in the presence of another police officer, with the defendant. These in part did in fact constitute the conference between the defendant and police officers for the purposes of s 25(2) of the SOA necessary in general terms as a precondition to this application by the Commissioner of Police. Those conversations are set out in the affidavit. I need not set out in detail the matters traversed during those conversations. Many of the matters were reiterated by the defendant. Their general nature, however, may be encapsulated in one quotation. I have removed the name of the male police officer and the description of a particular group of people from the quotation as I set it forth in this judgment. The evidence (which I accept) is that the defendant said to Superintendent Byrne: "I am not going to stop in my pursuit of [the male police officer]. If he had been reasonable in the beginning, none of this would have happened. I want to expose [the male police officer] and his address to everyone so that everyone knows where [the male police officer] lives. I want the [group of people described by their nationality and religion] to know where [the male police officer] lives because he is a lying, corrupt, perjurer. I don't care how long it takes. I am still going to buy the house next door, take out ads in the paper and do anything I can to expose [the male police officer]."