Commissioner of Police v Gabriel

[2004] NSWSC 31

Reported Decision: 141 A Crim R 566

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
CASES CITED:	Commissioner of Police v Allen (1984) 14 ACrimR 244 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 They superseded and replaced the provisions of the Public Assemblies Act 1979.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]."

I should say that the intention to buy a house in the street has been expressed by the defendant on many occasions. Indeed, there is no doubt that he has approached residents asking them to sell a house in the street to him, it would appear at over market prices. Those activities, it would seem, occasioned, at least in part, his presence in the street that led to the charges of 15 December 2003.

15 The decision that I have come to in my exercise of the Court’s discretion is that I should make the order sought by the Commissioner of Police. The decision under s 25 is always a difficult one if there is any element in the assembly proposed of the exercise of free speech in a democracy and the furthering of political views or principles. I cannot exclude that there is evidence of such an element in this case. There is undoubtedly an element, and a substantial element, in what the defendant puts forward and seeks to continue to put forward, of protest about the corruption of police officers in this State, for which it is alleged that the police officers have not been brought to account. It is a central and vital principle in a democratic society that there be a Police Force which is not corrupt. Protests against alleged corruption by police officers (including particular police officers) and the manner in which they have been or have not been dealt with are very valid exercises of the free expression of views in our democratic society. However, in this case I find that there is also a very considerable element in the defendant’s views and courses of conduct, past and proposed, of obsession about particular police officers and an absolute and spiteful determination to cause unpleasant consequences for those officers. It is summed up really in the portion that I have extracted in [13] of this judgment from what the defendant said to Superintendent Byrne. The defendant’s actions are motivated in large part not by principle but by vindictive personal spite. In view of that strong element and overtone in the defendant’s views and intentions (and it is on the basis of those views and intentions that it would seem that other people are invited to join in this public assembly) I do not think that the additional protections afforded by Part 4 of the SOA should be extended to the assembly. I repeat yet again that the order I make will not prevent people assembling and expressing views, it will only preclude them from having the privilege of additional protection from the potential commission of certain classes of offence.

16 The Crown Advocate has submitted to me on behalf of the Commissioner of Police that I ought make the order under s 25 despite the defendant’s announcement that he has withdrawn his notice. He draws attention to the fact that there is no provision for the withdrawal of notice in the relevant provisions of the SOA. He has submitted that, once the proposal is set at large, other people may attend at the appointed place to engage in the assembly, even if the proposed organiser does not. This could create a worse situation than if he did, because it would remove the formal organisation of the event and the presence of a person who may be committed to controlling the assembly and ensuring that it proceeds in an orderly way. I accept the Commissioner’s submission that the withdrawal of the notice should not necessarily preclude the making of an order under s 25.

17 It should be said, both in this context and in the defendant’s favour generally, that he has always said that he did not intend this or any other proposed assembly or demonstration to be one that would be an occasion of violence or breaches of the law, as opposed to an occasion for the expression of views. But the evidence shows that the proposal for the assembly is at large. It is upon the website that I have mentioned. There was not on that website, at least as at 29 January 2004, any announcement that the public assembly or demonstration was not intended to proceed. Even if there were, the proposal, as I say, is at large and persons may attend pursuant to it. It is my view, which I have already expressed, that if persons do attend at this public assembly, then all provisions of the law potentially governing the presence and conduct of people at a public assembly ought be available to the law enforcement authorities in relation to what happens on that occasion. For those reasons I propose to make an order under s 25 as sought by the Commissioner of Police and contended for by the Crown Advocate.

18 The Crown Advocate has also pressed me to make an order that there be no publication of any evidence in this case that identifies, or tends to identify, the venue of the proposed public assembly. However, I am loath to make any order suppressing the publication of evidence in proceedings in this Court where it is not absolutely necessary for the protection of some valid interest, such as the safety of a particular person or the protection of confidential commercial information. I do not think that an order in this case would have sufficient utility, particularly in view of the potential availability of the information in other places, for me to make such an order and I decline to do so.

19 The other matter to which I should advert is that the defendant has not appeared before the Court on the hearing of this application. That is explained in the evidence in this way. The Crown Solicitor wrote on 29 January 2004 to the solicitor who had appeared for the defendant before the Burwood Local Court on 12 January 2004, as I have recorded above. The summons and sworn affidavit of Superintendent Byrne were forwarded to the solicitor, together with an unsworn affidavit of Assistant Commissioner Waites which has subsequently been sworn and read and the draft orders sought, together with the information that the matter was listed before me for hearing at 2 pm on 29 January 2004. That solicitor properly and promptly replied that the defendant had considered the documents and did not object to the proposed orders as sought. The solicitor also conveyed that the defendant undertook to attempt to have cancellation of the protest rally recorded on the website that I have mentioned and indicated that neither the solicitor nor the defendant wished to appear before me at the stipulated time. In those circumstances, I shall dispense with service of the summons when issued.

20 In view of the nature of the order and its public incidence, the consent or non objection of the defendant was not sufficient to found the making of an order without the exercise of the Court’s discretion. I have consequently exercised the Court’s discretion on the basis and for the reasons given in these reasons for judgment.

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Last Modified: 03/12/2004