Commissioner of Police v Ridgewell [2014] NSWSC 1138

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of Police v Ridgewell [2014] NSWSC 1138 Hearing dates: 19 August 2014 Decision date: 20 August 2014 Jurisdiction: Common Law Before: Hidden J Decision: Order made prohibiting public assembly Catchwords: PUBLIC ASSEMBLY - application by Commissioner of police for order prohibiting protest by Palestinian group at opening of Israeli film festival - disruption of vehicular and pedestrian traffic - possible violence Legislation Cited: Summary Offences Act 1988 Public Assemblies Act 1979 Cases Cited: Commissioner of Police v Gabriel [2004] NSWSC 31 Commissioner of Police v Langosch [2012] NSWSC 499 Commissioner of Police v Allen (1984) 14 A Crim R 244 Category: Principal judgment Parties: Commissioner of Police (plaintiff) Damian Ridgewell (defendant) Representation: Counsel: BK Baker (plaintiff) R Keller & R Armitage (defendant) Solicitors: IV Knight - Crown Solicitor (plaintiff) Stephen Banks, SBA Lawyers (defendant) File Number(s): 2014/240685

Judgment 1The Palestine Action Group, Sydney intends to stage a protest this evening outside the Verona Theatre in Oxford Street, Paddington. The purpose of the assembly is to protest at the opening of the Israeli Film Festival at that time, in support of the Palestinian cultural and academic boycott of Israel. The assembly will gather from 5.30pm and disperse by 8.00pm. There is to be a large stationary screen, roughly the size of a trailer, showing video footage. Between 6 and 7pm, when patrons of the festival are expected to arrive, there will be a number of speeches. In round figures, some 700 to 1,000 people are expected to attend. 2The plaintiff, the Commissioner of Police, seeks an order under s 25(1) of the Summary Offences Act 1988 prohibiting the holding of the assembly. The defendant, Damian Ridgewell, is the organiser of the protest. The details of the protest which I have described are derived from a notice of intention to hold a public assembly supplied by Mr Ridgewell to the Commissioner under s 23 of the Act, supplemented by his evidence before me. Yesterday I made the order sought. These are my reasons for that decision. 3Although the order is expressed in s 25 as a prohibition of the assembly, it does not prevent the assembly taking place. Its only effect is to deprive it of characterisation as an authorised assembly under s 23. The result is that it does not enjoy the privilege afforded by s 24: that, provided the assembly is held "substantially in accordance with the particulars furnished" by the notice under s 23, "a person is not, by reason of any thing done or omitted to be done by the person for the purpose only of participating in that public assembly, guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place." 4Accordingly, an order under s 25 has a limited effect. Nevertheless, a series of decisions of judges of this court have established that the power to make the order involves the exercise of a broad discretion, balancing the undoubted rights of free speech and assembly against the competing rights of other citizens, such as the right to unimpeded pursuit of their affairs, together with the interest of the community in maintaining public order: Commissioner of Police v Gabriel [2004] NSWSC 31 at [4] (Hamilton J). 5The purpose of s 25 and the principles governing the exercise of the discretion conferred by it were summarised by Adamson J in Commissioner of Police v Langosch [2012] NSWSC 499 at [19] - [22]: "[19] The word 'prohibit' in s 25 of the Act is inapposite since a s 25 order does not prohibit the holding of a public assembly at all. All is does is deprive the participants in the public assembly of the additional protection that is afforded by s 24: Commissioner of Police v David Gabriel [2004] NSWSC 31 per Hamilton J; Commissioner of Police v Bainbridge [2007] NSWSC 1015 at [15] per Adams J; Commissioner of Police v Rintoul [2003] NSWSC 662 at [6] per Simpson J; Commissioner of Police v Allen (1984) 14 A Crim R 244 at 244 - 245, per Hunt J; Commissioner of Police v Vranjkovich (unreported, 28 November 1980), per Lee J. [20] The limited nature of the application was considered by Simpson J in Rintoul, at [24] in the following terms: 'Before concluding, I wish to make an observation again about the limited nature of the application before me. An authorised assembly would protect participants only if the assembly were held substantially in accordance with the application. It does not protect against criminal prosecution of any person who engages in acts of violence or vandalism in that assembly. I observe that the Act gives me no power to do other than grant or refuse the orders sought. I am not empowered to impose conditions upon the conduct of any assembly that goes ahead but such an assembly should be in accordance with the law and participants should be aware of the very limited nature of the protection that the Act affords them...' The criteria for making a s 25 order [21] The Act does not identify relevant criteria for the making of a prohibition order under s 25: Gabriel at [4]; Commissioner of Police v Rintoul [2003] NSWSC 662 at [5]. Nonetheless, decisions of this Court have recognised that s 25 is: '...intended to strike a balance between competing rights - the right, jealously guarded, of the citizen to exercise freedom of speech and assembly integral to a democratic system of government and way of life, and the right of other citizens not to have their own activities impeded or obstructed or curtailed by the exercise of those rights': Rintoul at [5] per Simpson J. [22] Time and place are also relevant. In Allen, Hunt J expressly recognised (at 251) that factors such as 'increased traffic' are relevant to an application under s 25, so that a procession through the streets of Sydney in the period immediately preceding Christmas would be prohibited, even though 'there could be no objection to the procession on a weekend or at some other time of the year'. Although it is not necessary to show that a breach of the peace would or would be likely to be caused by the holding of the public assembly, it is difficult to imagine a case where a s 25 order would be made where there was no real prospect of such breach: Rintoul at [7]." 6In Allen, Hunt J (as he then was) was considering a similar provision in the Public Assemblies Act 1979. What his Honour had to say about the court's discretion, particularly with reference to possible breaches of the peace, was this (at 250): "To justify the Commissioner's opposition to or the court's order prohibiting the holding of a proposed public assembly or procession, it does not in my view have to be established that there will be or that it is likely that there will be breaches of the peace, or that offences will be or are likely to be committed or provoked by those who are to participate in that assembly or procession. The submission by the defendants to the contrary is rejected. That will, of course, be the basis for a prohibiting order in most cases. It will no doubt only be the rare case in which a prohibiting order is not based upon the likelihood of breaches of the peace or of offences being committed if the assembly or procession takes place. However, such cases do exist." 7In the context of this case it is also appropriate to refer to some observations of Adams J in New South Wales Commissioner of Police v Bainbridge [2007] NSWSC 1015. That case was concerned with a protest rally about Australia's involvement in the wars in Afghanistan and Iraq, issues about which his Honour perceived that many might have strong feelings. His Honour said at [3] -[4]: "[3] In a democratic society such as ours, providing those feelings do not lead to breaches of the law, they are entitled to be communicated. One of the ways in which judgments of this kind are communicated in a democratic society is by public assemblies which seek to persuade other citizens of the cause espoused by those demonstrating and to indicate to those citizens who are of a different view that they are mistaken. The other purpose of such a demonstration is so that those of one mind upon the particular question can encourage and support each other. [4] All these are perfectly reasonable and entirely acceptable modes of behaviour in a democracy." His Honour added at [15] - [16]: "[15] Although the Act refers to "prohibition", an order made in respect to an application under ss25 or 26 prohibits nothing. The purpose of the authorisation of a public assembly in cases where they are a due exercise for the democratic right of free speech is to facilitate them by protecting participants in appropriate circumstances from prosecution for certain offences which might otherwise be regarded as having been committed. [16] The process requires the Court to balance the important, indeed fundamental, right of freedom of assembly and freedom of speech on the one hand, and the need to regulate the exercise of that right where it is necessary to do so to avoid injury to persons or property or otherwise unduly to interfere with the undertaking by other citizens of lawful conduct." 8The demonstration in Bainbridge had been planned by a group known as the Stop Bush Coalition, the then President of the United States, George W. Bush, being in Sydney at the time. Adams J made an order under s 25, primarily because of the perceived risk of violence during the protest. His Honour said at [25]: "[25] Where a large demonstration such as that planned by the Stop Bush Coalition is to occur, it is obvious that other groups, or other persons, both known and unknown, and who share the political views espoused by the Coalition but not their peaceful intentions, might well attempt to undertake and excite violence to a greater or lesser degree. Once such violence commences, it is difficult to predict how far it might go. Leaving aside those who propose to use significant violence, the fact is that, in a crowd situation where emotions are heightened violence can feed on itself, and what starts out as comparatively trivial can easily escalate into something much more serious." 9Of course, his Honour's decision turned on the facts of that case, as did the decisions in all the other cases to which reference has been made. Little or no guidance can be derived from the decisions of fact made in each of them, but they are valuable for the statements of principle emerging from them. 10Ms Baker, for the Commissioner, read the affidavits of three senior police officers, who also gave oral evidence. Detective Inspector Craig Middleton gave evidence about police concerns generally, and his dealings with Mr Ridgewell. The evidence of Inspector Paul Carrett focused on the traffic implications of the assembly. Chief Superintendent Stephen Cullen dealt with the location of the protest and the risk of personal injury posed by it. There is no need to recite this evidence in detail. It is sufficient to summarise its effect. 11The Verona cinema is on the northern side of Oxford Street, east of South Dowling Street. It stands at the intersection of Oxford Street with Verona Street, a short, narrow road which abuts the theatre. The assembly is planned for the evening peak hours on a Thursday when, obviously, the area would be very busy with pedestrian and vehicular traffic. 12Mr Ridgewell said that there would be marshals to maintain control of the protestors, and that it was intended that they would occupy the footpath outside the cinema, extending into Verona Street. This would still cause obstruction to pedestrians (and, possibly, residents) in the area. More importantly, there is the risk that protestors could not be contained on the footpath in Oxford Street and would move onto the roadway. Obviously, apart from the obvious danger that might involve, it would cause major disruption to vehicular traffic, including buses. 13Traffic could be diverted from that area, but that would place a heavy load on surrounding streets and still result in serious disruption. Particularly is this so because of the static nature of the assembly, focused on the area outside the cinema, requiring traffic diversions to remain for a considerable period of time. Inspector Carrett outlined in his affidavit where the diversions would have to be put in place and the police resources involved. 14I can understand that the Palestine Action Group wishes to stage its protest at the time and location it does. As Mr Ridgewell explained, the opening of the film festival would be its most public event. It could be expected that a number of Israeli dignitaries attend and there is likely to be media coverage. Nevertheless, regard must be had to the inevitable disruption to other citizens, and to businesses in the area, caused by the assembly. 15That said, the Commissioner's primary concern is the risk of breaches of the peace and of violence, possibly leading to significant personal injury. Inevitably, people who are inconvenienced by the gathering may become irritated, resulting in aggressive behaviour. More importantly, however, there is a risk of confrontation between the protestors and persons attending the film festival. This is of particular concern because of the current situation in Gaza. Mr Ridgewell foreshadowed that speeches would deal with that topic and that it would be the subject of slogans chanted by the protestors, as well as placards and banners held by them. He acknowledged that many people attending the film festival were likely to support the Israeli cause and that, particularly at the present time, emotions run high in both the Israeli and Palestinian communities. 16Both Inspector Middleton and Chief Superintendent Cullen explained the difficulty of police penetrating the assembly to deal with any violent incident, given the concentration of the gathering in the area around the cinema. This would be so whether or not the roadway at that point was free of traffic because of diversions. It is also to be borne in mind that darkness will have fallen by then. 17Mr Ridgewell emphasised that it was not intended to blockade the entrance to the cinema. Nevertheless, Chief Inspector Cullen warned of the possibility of a surge of the crowd towards the cinema, together with the danger of protestors being forced against its glass frontage (and, possibly, the glass frontage of an adjoining business). This, of course, could cause serious injury. 18I found Mr Ridgewell to be an impressive witness, whose evidence was measured and responsible. I have no doubt that he, and the majority, if not all, of those allied with the Palestine Action Group who attend the protest, want it to be peaceful and eschew violence of any kind. Inspector Middleton and Chief Superintendent Cullen acknowledged that they were aware of other demonstrations held by the group which had been well controlled and passed without incident. However, they were not assemblies confined to a particular location and directed towards a particular event, as this one is. The fact is that the risk of violent confrontation remains. Moreover, the warning of Adams J in Bainbridge in the passage from his Honour's judgment which I have cited at [8] above is apposite here. This is the type of protest likely to attract people with a different agenda, bent on fermenting violence. 19Having regard to all the circumstances, I am satisfied that the fears expressed by the police officers who have given evidence are well founded. The balance of the public interest favours the order which the Commissioner has sought.