James Edward Goodwin v Jeremy Rhind
[2022] ACTMC 18
•11 August 2022
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | James Edward Goodwin v Jeremy Rhind |
Citation: | [2022] ACTMC 18 |
Hearing Date(s): | 9 June 2022 |
DecisionDate: | 11 August 2022 |
Before: | Chief Magistrate Walker |
Decision: | [41] and [42] |
Catchwords: | CRIMINAL LAW – PARTICULAR OFFENCES – “unreasonable obstruction” – right to silence after arrest |
Legislation Cited: | Crimes Act 1900 (ACT) (‘Crimes Act’), section 211 Public Order (Protection of Persons and Property) Act 1971 (Cth) (‘the Public Order Act’), section 9 |
Cases Cited: | R v Watson; R v Palmer; R v Nicholas [2017] ACTSC 363 |
Parties: | Commonwealth Director of Public Prosecutions (Prosecutor) Jeremy Rhind (Defendant) |
Representation: | Solicitors Laura Hannigan (Prosecutor) Jeremy Rhind (Defendant) |
File Number(s): | CC 10429 of 2022 CC 10430 of 2022 |
CHIEF MAGISTRATE WALKER:
The defendant, Jeremy Rhind, is charged with one count of engaging in unreasonable obstruction whilst taking part in an assembly on Commonwealth Premises, contrary to section 9 of the Public Order (Protection of Persons and Property) Act 1971 (Cth) (‘the Public Order Act’), an offence which, on conviction, carries a maximum penalty of a fine of up to $4,400. He faces a second charge of failing or refusing to provide his name or address to a police officer without reasonable excuse, contrary to section 211 (2) (d) of the Crimes Act 1900 (ACT) (‘Crimes Act’) which on conviction carries a maximum penalty of up to $500 by way of a fine.
Circumstances leading to the alleged offending are largely undisputed. Mr Rhind is engaged with a public interest group concerned with government inaction on climate change. At about 8 a.m. on 19 October 2021, police attended what is known as the “Authorised Assembly Area” (AAA) to the front of Parliament House. Mr Rhind was one of about 20 protesters bearing placards and banners. A number of them were wearing outfits representative of trees and koalas. The protesters were singing and dancing. Mr Rhind, and others of the group, moved on to the road adjacent the AAA, Federation Mall, which runs between the AAA and the forecourt at Parliament House. He glued his left hand to the road surface. He did not leave until the glue was dissolved by police officers at which point, he was escorted from the area. Detective Sergeant Tadic (‘DS Tadic’) was the police officer in charge at the scene. He requested Mr Rhind’s name a number of times both at the scene and later at the police station, to which Mr Rhind had been conveyed. He failed to provide that name until some hours later.
In assessing the evidence, I remind myself of the basic principles applicable to a criminal prosecution. The prosecution bears the burden of proving each and every element of the offences charged beyond reasonable doubt. The defendant has no obligation to prove his innocence; if he raises an explanation consistent with his innocence, he is not required to prove it, it is for the prosecution to disprove it or demonstrate its irrelevance. In assessing the reliability or credibility of witnesses, I may take into account a range of factors including what they say, how they say it and their general impression upon me. In doing so, I may accept or reject some or all of their evidence. In assessing the evidence, I must be rational and dispassionate and may rely on common sense and experience. A defendant’s evidence is of no lesser weight simply by virtue of that person’s status as a defendant.
Police Constable Robert John Berry (‘PC Berry’) was one of the officers in attendance on 19 October 2021. He observed about 20 people congregated on the AAA at about 8 a.m. He saw a number of the group move on to Federation Mall. He observed Mr Rhind sitting on the road at about 8 a.m. He did not engage with Mr Rhind at that time. PC Berry observed that traffic could not pass through the road where the defendant was sitting without risk to the defendant’s safety, or that of the police monitoring the protest. He stated that DS Tadic requested the protestors move off the road, and a number of people started moving. PC Berry placed his police vehicle at the western end of Federation Mall to prevent cars coming out of the underground car park exit or off Commonwealth Avenue bridge on to Federation Mall.
PC Berry was with DS Tadic when they approached Mr Rhind who remained on the road. DS Tadic asked him to move and to provide his name and date of birth. Mr Rhind refused. Other police officers present at the scene were called to release Mr Rhind’s glued hand. They applied a liquid which dissolved the glue. DS Tadic again asked Mr Rhind for his name and date of birth and requested that he stand. He did not comply with either request. He was arrested by DS Tadic. PC Berry estimates that Mr Rhind was sitting on the road for over an hour and a half.
Mr Rhind was assisted to his feet by PC Berry and Senior Constable Goodwin and walked by them to the police marked caged vehicle. He was again asked his name and date of birth and failed to provide it. That refusal is captured on PC Berry’s body worn camera footage.
Mr Rhind was transported to the ACT Regional Watchhouse (‘the Watchhouse’) in the caged vehicle. PC Berry travelled to that location in a separate police car. At the Watchhouse, PC Berry again observed DS Tadic request Mr Rhind’s name and date of birth; again, Mr Rhind refused.
During the period Mr Rhind was glued to the ground, PC Berry saw a white vehicle exiting the underground car park; its travel along Federation Mall was impeded by the police vehicle.
Under cross-examination, PC Berry agreed that it would take only a number of minutes for a person to travel an alternative route rather than crossing over Federation Mall where the protesters were.
DS Tadic stated that he instructed police to block off either end of Federation Mall when the protesters at the scene went onto the road. He did not observe any pedestrians other than the protesters in that area. He was not aware of any drivers of vehicles wishing to drive on that stretch of the road.
DS Tadic had three interactions with Mr Rhind at the scene in which he requested his name: the first was when he approached Mr Rhind and asked him if his hand was glued to the ground. DS Tadic then called the search and rescue team to attend to free Mr Rhind’s hand. At that time, whilst he remained glued to the ground, DS Tadic arrested Mr Rhind telling him it was for “obstruction”. He then approached Mr Rhind as he was being escorted to the caged vehicle by other police officers; he again asked for his name which Mr Rhind refused to provide. DS Tadic told Mr Rhind: “There is a criminal investigation of committing an offence, and as such I ask for your name”. Mr Rhind again refused.
At the watch house, DS Tadic again asked Mr Rhind his name. Mr Rhind again refused to give it. Mr Rhind was given the opportunity to speak with a lawyer.
Mr Rhind gave evidence. He said that the protest was timed to coincide with a Parliamentary sitting week, being the week before the COP26 climate summit in Glasgow. The aim was to have maximum impact on the government’s international negotiation position. He glued his hand to the road in order to prolong the protest. He did not accept that it was a busy period between 8:30 a.m. and 9:30 a.m. on that road.
Mr Rhind said that he had a long and detailed conversation three times with police at the police station and each time did not give his name. He had requested to speak with a “legal support person” at his intake to the Watchhouse before the first conversation, during the second conversation, and again during the third conversation. Immediately after that third conversation he spoke with his “legal support person”. He was not spoken to again by police until the next morning and was detained overnight. During his fourth conversation with police, on the morning of 20 October 2021, Mr Rhind provided his name and details to Detective Sergeant Mellor (‘DS Mellor’), the Watchhouse sergeant.
Mr Rhind accepted that he had refused to provide his name when told that he was obliged to for the purpose of a criminal investigation. Mr Rhind stated that he was “under legal advice to not speak to the police until a lawyer can assist you or speak for you to the police”.
Mr Rhind tendered into evidence a document consisting of excerpts from internet legal advice sites. Those excerpts were as follows:
New South Wales Law Society’s practitioners guide to criminal law:
“When the client […] initially telephones you from a police station, you should advise the client not to answer any questions, say anything to police, or make any statement”.
From the New South Wales Legal Aid website:
“It is up to you to decide whether or not to answer any questions police ask you or what you should say. If you are unsure, you should wait until you have received legal advice before giving an interview,” and;
“You should speak to a lawyer before you speak to the police. You may arrange for a lawyer or another person to be present during the questioning”.
An excerpt from the Queensland Legal Aid website stated:
“If you do not want to answer questions, and you are not sure whether you have to, get legal advice”.
Mr Rhind said that this information caused him to understand that it was prudent for a person who had been arrested to:
“…follow a sort of general legal advice which is basically not to talk to the police until your lawyer or solicitor can speak to them on your behalf”.
I find that Mr Rhind was on Commonwealth premises between at least 8 a.m. and 9:30 a.m. on 19 October 2021. He was taking part in an assembly. Mr Rhind glued his hand to the road with the clear intent of causing greater disruption than the AAA based protest alone.
By gluing himself to the road, he along with others, created a situation of potential danger to themselves. He also caused the police to take action to prevent vehicles from entering that portion of Federation Mall by placing their police vehicles at either end of the relevant section of the road, to address the risk that Mr Rhind and others had created.
At least one vehicle was obstructed from travelling on that portion of the road. The necessary route diversion would have taken a few minutes.
Mr Rhind repeatedly refused to provide his name to DS Tadic, even after the officer made the request and informed Mr Rhind of the reason for the request, a precondition for the request. Mr Rhind’s refusal was based on his understanding of the law. When he received further advice, he provided his name and other details to DS Mellor as requested.
Submissions
The prosecution submit that police were required to block off the road for the defendant’s safety which prevented the normal passage of vehicles. The obstruction was unreasonable by the objective standards of ordinary people, being disruption of a key thoroughfare at Parliament House during peak hours for a considerable period of time.
Mr Rhind accepts that his conduct was intended to disrupt, but that it was reasonable because:
(a)the court could not be satisfied that any person was in fact obstructed from using the road;
(b)any potential obstruction was minimal as the additional time required to detour was, at most, a few minutes, a very minor inconvenience;
(c)people would expect protests in that location;
(d)the purpose of the protest was in the public and national interests, and therefore reasonable; and
(e)that the legal right to protest “bumps up against” other rights which may be infringed by a minor delay and the judiciary is required to “find a middle ground” (presumably in favour of the defendant’s conduct).
As to the failure of Mr Rhind to provide his details to police as required pursuant to section 211 of the Crimes Act, he submits that there is no time limit on the period allowed to provide those details and that he did in fact provide his details when he was satisfied that it was legally appropriate to do so.
The prosecution submits that the precondition for making the request, that is the reason the request is made, is established on the evidence of DS Tadic and that Mr Rhind’s refusal was based on a misapprehension of the law to the effect that there is an unfettered right to silence. The provision of section 211(2)(d) is clearly to the contrary.
However, Mr Rhind was not told why police required his name until after he was arrested. In R v Watson; R v Palmer; R v Nicholas [2017] ACTSC 363, Elkaim J stated at [14]
“Once the arrest has been effected, the right to silence has been generated and, in my view, cannot be undone by reliance on section 211”.
I drew this decision to the parties’ attention and invited further submissions. The prosecution now concedes that as the reason for the request was provided after Mr Rhind was arrested, this offence cannot be made out.
Consideration
Section 9 of the Public Order Act provides that it is an offence to engage in unreasonable obstruction on Commonwealth premises whilst taking part in an assembly. The conduct must be intentional. The protest in which Mr Rhind was engaged was clearly in the form of an assembly. Mr Rhind’s conduct was unequivocally intentional.
Less clear is what constitutes an “unreasonable obstruction”. That term is defined in section 4 of the Public Order Act as:
“An act or thing done by a person that constitutes, or contributes to, an obstruction of, or interference with, the exercise or enjoyment by other persons of their lawful rights or privileges (including rights of passage along the public streets) where, having regard to all the circumstances of the obstruction or interference, including its place, time, duration and nature, it constitutes unreasonable obstruction or interference and “unreasonably obstructs” has a corresponding meaning”.
The list of circumstances in the definition are not exhaustive. That is, the court must consider those matters listed but must consider all other matters which form part of the circumstances also.
I accept the prosecutor’s submission that the test of reasonableness is a purely objective one, that is, it is to be assessed in accordance with what an ordinary person apprised of the circumstances would consider reasonable.
The definition of unreasonable obstruction includes “interference with”. That phrase is not legislatively defined. The Merriam-Webster dictionary defines the phrase, relevantly, as “to stop or slow (something); to make (something) slower or more difficult”.
Mere obstruction (or interference with) alone is insufficient. The requirement that the obstruction be ‘unreasonable’ requires that in some circumstances, obstruction may be reasonable.
Mr Rhind’s conduct did not directly prevent pedestrian or vehicular traffic from using Federation Mall. However, the police appropriately established a cordon because of Mr Rhind’s conduct (and that of his fellow protestors) in affixing themselves to the tarmac in the middle of the road so that they could not readily move nor be moved, to ensure his and their safety. To that extent, his conduct “contributed to” the closure of the road.
The closure of the road obstructed citizen’s right of passage on it. The road closure directly prevented at least one motorist’s right of passage. It is impossible to know if others chose not to travel the route because they were aware of the closure. There is no evidence to that effect before me. Nonetheless, I am satisfied that his conduct contributed to an obstruction.
Was that obstruction reasonable? The obstruction was at Parliament House, a factor which has implications both ways to the defendant’s cause. It is the location at which citizen’s might be expected to protest and to do so with greatest effect, as was Mr Rhind’s intent on this occasion. It is also the centre of federal government whose unimpeded workings are of national importance. Obstruction in furtherance of political objectives may be considered more reasonable at this location than other less politically significant locations. However, the AAA, immediately adjacent to the road, is a space made available specifically for protest, as opposed to public roads which are designed to facilitate the right of passage.
Further, extending the obstruction to a public road carries implications beyond mere obstruction of the general right of passage on public streets. The safety of citizens, including the protestors themselves, and the impact on public resources are relevant in assessing the reasonableness of any obstruction. Mr Rhind put his safety at risk by his action. Police involvement meant that their safety was also potentially impacted in having to engage in their work on a public road. Police resources were required to cordon off the area to protect the safety of citizens but also to safely remove Mr Rhind from the location, calling on the time and skills of specialist search and rescue police.
The obstruction was not fleeting at approximately 90 minutes on the morning during ordinary travel times of a working day. The period was only so limited because of police intervention.
The motive for the obstruction is not a matter for the Court. It is not appropriate for the Court to make a moral assessment of the virtue or value of any particular political protest.
Having regard to these factors, I am satisfied beyond reasonable doubt that the obstruction to which Mr Rhind’s conduct contributed was unreasonable by the standards of ordinary people.
I dismiss charge CC21/10430.
I find charge CC21/10429 proved.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Chief Magistrate Walker. Associate: A Jones Date: 22 August 2022 |
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