Parhizkar v R

[2014] NSWCCA 240

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Parhizkar v R [2014] NSWCCA 240

Hearing dates:

16 July 2014

Decision date:

30 October 2014

Before:

Basten JA at [1];
Price J at [73];
McCallum J at [95]

Decision:

(1)   Leave granted to the applicant to appeal against his conviction for the offence of riot.

 

(2)   The appeal is dismissed.

 

(3)   Leave granted to the applicant to appeal against the sentence on the conviction for riot.

 (4)   The appeal is dismissed.

Catchwords:

CRIMINAL LAW – riot – twelve persons or more “present together” using or threatening unlawful violence – applicant used unlawful violence when protesting on the roof of a building – prosecution alleged persons on roof were “present together” with persons on the ground using or threatening unlawful violence – trial judge directed jury that “present together” meant being in the same place – whether trial judge misdirected jury as to the meaning of “present together” – whether “present together” requires physical proximity between persons – relationship between “present together” and other elements of the offence – whether persons found not guilty of riot could be amongst the 12 persons “present together” – Crimes Act 1900 (NSW), s 93B

 

CRIMINAL LAW – procedure – whether trial judge erred in not allowing cross-examination of a witness as to whether he had viewed footage of the events on the internet.

 

CRIMINAL LAW – procedure – juries – whether trial judge erred in not discharging the jury following publication of a prejudicial article – whether trial judge erred in failing to give the jury access to transcripts of counsels’ addresses and the judge’s summing up.

  CRIMINAL LAW – appeal against sentence – greater restrictions involved in immigration detention while awaiting trial – whether trial judge should have accounted for this in sentencing – whether trial judge was aware of the nature of the applicant’s detention while awaiting trial

Legislation Cited:

Crimes Act 1900 (NSW), s 93A, 93B, 93C, 93D, 93E; Sch 3, cl 3
Jury Act 1977 (NSW), s 55C
Public Order Act 1986 (UK), ss 1, 2, 3
Summary Offences Act 1988 (NSW), s 11A

Cases Cited:

Anderson v Attorney General for New South Wales (1987) 10 NSWLR 198
Colosimo v Director of Public Prosecutions [2005] NSWSC 854; 64 NSWLR 645
Jones (1974) 59 Cr App R 120
Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265
Regina v W(N) [2010] 1 WLR 1426
R v Bartle [2003] NSWCCA 329; 181 FLR 1
R v Kisacanin [2012] NSWSC 91
R v Taousanis [1999] NSWSC 107; 146 A Crim R 303
Regina v Sukkar [2005] NSWCCA 54
Summers (1972) 56 Cr App R 604
Woodrow (1959) 43 Cr App R 105

Texts Cited:

ATH Smith, Offences against Public Order – including the Public Order Act 1986 (Sweet & Maxwell, 1987)

 

Explanatory Note, Crimes (Amendment) Bill 1988, Sch 1(2)

 

Halsbury’s Laws of England (4th ed, 1976), Vol 11, pp 506-7, par 861

 

Thornton et al, The Law of Public Order and Protest (Oxford UP, 2010)

  W Hawkins, Pleas of the Crown (1st ed, 1716, Book 1, p 155)

Category:

Principal judgment

Parties:

Majid Parhizkar (Applicant)
Regina (Respondent)

Representation:

Counsel:
Mr DA Marr (Applicant)
Mr G Farmer SC (Respondent)

  Solicitors:
L David Lock (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

File Number(s):

2011/395447

 Decision under appeal 

Court or tribunal:

Supreme Court

Jurisdiction:

9111

Citation:

R v Ali; R v Parhizkar [2013] NSWSC 871

Date of Decision:

28 June 2013

Before:

R A Hulme J

File Number(s):

2011/395447

HEADNOTE

[This headnote is not to be read as part of the judgment]

In 2011, the applicant was a detainee at Villawood Immigration Detention Centre. On 20 April 2011, the applicant joined a protest with other detainees on the roof of a building. Some of the detainees (including the applicant) removed tiles from the roof and threw them in the direction of security officers trying to control the protest; others on the roof simply protested without threatening or committing any unlawful violence. Those on the roof were given encouragement and supplies by detainees on the ground, some of whom also used or threatened unlawful violence. The situation eventually escalated to the point where security evacuated the immediate.

The applicant was charged with riot and affray: Crimes Act 1900 (NSW), ss 93B and 93C. He pleaded guilty only to affray. At trial, the applicant argued that, for the purposes of s 93B(1), he was not "present together" with 11 other persons using or threatening unlawful violence: there were not 12 detainees behaving violently on the roof and those on the ground were too distant to be considered. The trial judge gave a direction that "present together" meant persons being in the same place, offering as an example persons behaving violently in different grandstands of a stadium as being "present together". The applicant argued "present together" required close proximity between the persons. The trial judge rejected the submission. The applicant was convicted of riot.

The applicant sought leave to appeal his conviction on the basis the trial judge had misdirected the jury. A related complaint was that the prosecution should not have been allowed to rely on persons found not guilty of riot but guilty of affray in establishing there were 12 persons who had used or threatened unlawful violence. The applicant also alleged error in: not allowing cross-examination of a witness as to whether he had viewed footage of the disturbance on the internet; not discharging the jury following a published article asserting what occurred was a "riot", and not providing the jury with access to transcripts of counsels' addresses and the judge's summing up.

The applicant also sought leave to appeal his sentence, arguing his time in immigration detention was more restrictive when awaiting trial and this should have been considered in sentencing.

The Court held, granting leave to appeal against conviction but dismissing the appeal and refusing leave to appeal against sentence:

"Present together" in s 93B

(Price J, McCallum J agreeing)

1. The trial judge's directions adequately identified the principles to be applied and made it plain that "present together" was an issue. The phrase "present together" is intended to have its ordinary meaning and it does not need to be established that persons are in close proximity to be considered "present together": [84], [86], [88], [89]-[90], [97]

Regina v W(N) [2010] 1 WLR 1426 followed.

Anderson v Attorney General of New South Wales (1987) 10 NSWLR 198 not followed.

(Basten JA; McCallum J)

2. The example of violence erupting in different grandstands of a stadium as constituting "present together" had the potential of misleading the jury from considering whether there was a "common purpose" and that their conduct taken together would cause a person of reasonable firmness to fear for their personal safety. Notwithstanding (per McCallum J) the use of the example did not produce a miscarriage of justice: [36], [49], [97]

(Price J)

3. The example was not troubling. Members of a jury (using their common sense) could readily envisage situations where persons behaving violently in different parts of a stadium were doing so with a "common purpose": [91]

(Basten JA dissenting)

4. The element of "present together" must be addressed coherently and harmoniously with the other elements of s 93B. The jury should have been directed that they needed to consider whether those on the ground were in sufficiently close proximity to those on the roof to determine whether they were "present together" and that not all conduct furthering the protest was necessarily threatening or using unlawful violence: [47], [48]-[49], [66]

Anderson v Attorney General of New South Wales (1987) 10 NSWLR 198 considered.

Woodrow (1959) 43 Cr App R 105; Jones (1974) 59 Cr App R referred to.

(Basten JA, Price and McCallum JJ agreeing)

5. Only a person who has used unlawful violence can be found guilty of riot but that person must be one of 12 using or threatening unlawful violence. No inconsistency arose in prosecuting the applicant for riot by relying on persons guilty only of affray to establish there were 12 persons involved, as affray may be satisfied where a person threatens unlawful violence: [51]-[55].

Other grounds

(Basten JA, Price and McCallum JJ agreeing)

6. The cross-examination of the witness as to whether they had viewed footage of the disturbance on the internet was a matter of no consequence: [56]

7. Considering the clear and repeated directions that reliance should only be had on the evidence before them, the trial judge was correct in not discharging the jury following the publication of the article: [57]-[58]

8. No miscarriage of justice arose in the trial judge failing to inform the jury they could request transcripts of addresses and the summing up. Nothing from the circumstances of the trial suggested the jury would have made such a request if informed they could: [64]

R v Taousanis [1999] NSWSC 197; 146 A Crim R 303; R v Bartle [2003] NSWCCA 329; 181 FLR 1; Regina v Sukkar [2005] NSWCCA 54 referred to.

Sentencing

(Basten JA, Price and McCallum JJ agreeing)

9. The trial judge was unaware of the circumstances under which the applicant was detained while awaiting trial. In those circumstances, it cannot be said that the trial judge erred in the approach he took: [68]-[70]

Judgment

1. BASTEN JA: On 20 April 2011 a major disturbance broke out at the Villawood Immigration Detention Centre in Sydney involving a number of asylum seekers detained by the Commonwealth under the Migration Act 1958 (Cth). Some had been there for a considerable period of time.

2. There were several “compounds” in the detention centre. One, named Fowler, contained more than 150 detainees. The protest which escalated over the course of the day, commenced with two men, Mehdi Darabi and Morad Mansoor, climbing onto the roof of a building known as Macquarie. They were observed by security officers sometime after 7am. They removed tiles from the roof and, at various times, threatened to throw tiles towards those on the ground below and, on occasion, did throw tiles onto the ground. The protest proceeded in a fairly desultory manner until after lunch. At about 2pm an activities officer tried to commence a game of soccer on the soccer field at the centre of the compound, one side of which was bounded by the Macquarie Building. The men on the roof demanded that there be “no football”, a chant which was picked up and repeated by a large gathering of detainees on the ground. The soccer game was abandoned.

3. During the course of the afternoon, there were more threats by the two men on the roof of the Macquarie Building and further tiles were thrown on occasion. At about 4 or 4.30pm, detainees on the ground threw bedding and bottled water to the two men on the roof. At around 6pm further items were thrown up to the men on the roof. From about 7.15pm, more detainees joined the men on the roof. The security staff then formed a cordon to prevent further detainees approaching an internal fence, from which they could climb onto the roof. After 8pm there were 10 detainees on the roof. One of them was the present applicant. There was undoubtedly communication between those on the roof and those on the ground in the immediate vicinity. Those on the roof were encouraging others to join them; those on the ground were providing a degree of support and encouragement, verbally and by throwing up bedding and water.

4. At some stage, apparently around 11pm, some of those on the ground in the compound took fire extinguishers and sprayed their contents around, including in the direction of security staff. At least one fire extinguisher was thrown towards a security officer. At around that time, all security officers left the Fowler compound for their own safety. So far as the prosecution case alleged a “riot”, it concluded at that stage.

Statutory offence and defences

5. The applicant was charged with two statutory offences of riot and affray. The offence of riot, contained in s 93B of the Crimes Act 1900 (NSW) is identified in the following terms:

93B   Riot

(1)   Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 15 years.

(2)   It is immaterial whether or not the 12 or more persons use or threaten unlawful violence simultaneously.

(3)   The common purpose may be inferred from conduct.

(4)   No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5)   Riot may be committed in private as well as in public places.

6. The offence of affray is identified in s 93C in the following terms:

93C   Affray

(1)   A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years.

(2)   If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).

(3)   For the purposes of this section, a threat cannot be made by the use of words alone.

(4)   No person of reasonable firmness need actually be, or be likely to be, present at the scene.

(5)   Affray may be committed in private as well as in public places.

7. There are two further provisions which bear upon the meaning and practical effect of these offences. First, s 93A provides a definition of “violence” in the following terms:

93A   Definition

In this Division:

violence means any violent conduct, so that:

(a) except for the purposes of section 93C, it includes violent conduct towards property as well as violent conduct towards persons, and

(b)   it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short).

The mental element is identified in the following terms:

93D Mental element under sections 93B and 93C

(1)   A person is guilty of riot only if the person intends to use violence or is aware that his or her conduct may be violent.

(2)   A person is guilty of affray only if the person intends to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.

(3)   Subsection (1) does not affect the determination for the purposes of riot of the number of persons who use or threaten violence.

8. There are four elements of the offence of riot which differ from that of affray. First, a person can be guilty of affray when acting alone: there is no requirement for 12 or more persons to act together for a common purpose. Secondly, while both offences require that the conduct of the person charged must cause a person of reasonable firmness to fear for his or her personal safety, for affray that must be achieved by the conduct of the accused alone, whereas riot requires the composite effect of the conduct of 12 or more persons. Thirdly, for an affray, the unlawful violence must be directed towards another person; with respect to riot, violence includes violent conduct towards property as well as towards persons: s 93A(a). Fourthly, riot requires that the accused use unlawful violence; for affray, a threat of violence is sufficient.

Issues on appeal

9. The points of distinction between the offences of riot and affray are significant in the present case. The applicant was charged with both offences but pleaded guilty to affray. That plea was not accepted in full discharge of the indictment, but would have provided the basis for a conviction of that offence, if he had not been convicted of riot. The significance of the plea for present purposes is that the issues in dispute before the jury were limited to (1) whether there were 12 or more persons, present together, using or threatening to use unlawful violence, for a common purpose, and (2) whether the applicant used unlawful violence. (Although one accused sought a direction as to self-defence, to the extent there was violence, it was not to be doubted that it was unlawful.)

10. The common purpose itself was not the subject of any particular challenge relevant to the applicant. The broad purpose was to express frustration at the long and continuing periods of detention suffered by asylum seekers awaiting initial decisions on their visa applications or decisions of a tribunal or court challenging initial adverse decisions. The protestors sought to have senior officers of the Department of Immigration and Citizenship attend, no doubt so that they could express their frustration directly to them, with the expectation or hope of obtaining some relief. Nor was it in dispute that there were others present who, like the applicant, used and threatened unlawful violence. The central question was whether there were “12 or more persons” engaged in that common purpose and using or at least threatening unlawful violence who were “present together”.

11. The written submissions for the applicant contended that there were “thirteen people identified as being on the roof during the protest”, but not all were alleged to have engaged in acts of violence or to have threatened violence. That proposition appeared to be accepted by counsel for the Director and also by the trial judge in his summing up, to which reference will be made below. On that basis, it was necessary for the jury to decide whether there were others on the ground who used or threatened violence for the same purpose as those on the roof and, if so, whether they could properly be included with those on the roof as being “present together”. The primary ground of appeal challenged the adequacy of the direction given to the jury in this regard: notice of appeal, ground 1.

12. There were two subsidiary grounds, one of which asserted that the prosecution should not have been permitted to rely upon, as part of the 12 persons, those accused who had entered pleas (accepted by the Director of Public Prosecutions) of not guilty of riot, but guilty of affray (ground 2). In support of that ground, it was further submitted that the pleas were admissible in evidence (ground 3). For reasons which will be noted briefly below, ground 2 should not be upheld: ground 3, in those circumstances, does not require separate consideration.

13. Ground 4 was somewhat curious. It complained that the trial judge had not permitted cross-examination of a particular witness as to whether he had viewed video footage of the events of the evening on the internet, or discussed what happened with others, before giving evidence. The purpose of the challenge appears to have been to cast doubt on specific evidence about the conduct of the applicant in throwing tiles off the roof at or in the direction of security staff. That conduct was not seriously in dispute. Although he did not get up on the roof until around 9pm, the applicant was an active participant thereafter.

14. Ground 5 complained of a failure to discharge the jury after publication of a potentially prejudicial article concerning the sentencing of co-offenders. Ground 6 complained that the trial judge had not permitted the jury access to the transcript of counsels’ addresses or the judge’s summing up. For reasons which will be dealt with below, none of grounds 4, 5 or 6 had merit. Accordingly, ground 7, alleging a miscarriage due to the cumulative effect of various errors alleged, does not require consideration.

15. Ground 8 alleged an error in sentencing in failing to take into account time spent in immigration custody, when backdating the sentence.

Directions as to 12 persons being ‘present together’

16. The applicant stood trial with eight co-accused. Each was charged with one or both of the offences of riot and affray. The fact that each played a different role in the events at the Villawood Immigration Detention Centre on 20 April required significant care to be taken in addressing the jury with respect to each charge. In a carefully structured summing up which was, generally, a model of clarity, the only passages which need to be addressed are those relating to this element of a riot. The trial judge dealt with this element in five separate passages. The first appeared as part of his overarching discussion of the elements of the offence; the second in a passage dealing with the relevant involvement of those not standing trial; the third dealt with the prosecution case; the fourth with the defence case, and the fifth with counsel’s request for further directions on this element.

(a)   the general directions as to elements of the offence

17. The judge commenced by noting that the prosecution case alleged a riot which was “an ongoing event from the time that there was the so-called rush of detainees towards to the cordon on the top side of the Macquarie Building through until the Serco [security] staff evacuated”: Summing up, p 26(15). The evidence was not precise as to the timing of particular events and the judge was careful not to be more precise in his directions. On the brief summary given above, it appears that the surge towards to the security cordon occurred around 7.15pm and that the security officers evacuated the compound about four hours later. (Most of the extensive damage to property occurred later and, indeed, in other compounds.)

18. Secondly, the trial judge noted that there was evidence from security staff that they were fearful for their safety and that no submission had been made that others of reasonable firmness in their circumstances would not have been. In any event, the element was satisfied with respect to the applicant by his plea of guilty to the charge of affray. The judge continued at p 27(17):

“There is a requirement that the persons alleged to have participated in the riot, that is, the 12 or more persons, used or threatened unlawful violence for a common purpose. There is also the requirement that for an accused to be guilty, he not only must have been one of the 12 or more, he must also be shown to have actually used unlawful violence for the common purpose.”

19. The judge further noted that there was a temporal element involved and the actual use of violence must have occurred during the period when they considered that the riot was occurring, and not before or afterwards. After dealing with the common purpose and the concept of violence, the judge continued in the following passage, which was the subject of express challenge by the applicant (pp 30(17)-31(20)):

“I want to say something about the words ‘present together’ as well. I do not think there is a note about this with your document but there is something I want to say about that term ‘present together’.

The words do not have any different meaning in law than they do in the ordinary English language. There is no requirement that for persons to be present together, that they have to be within a certain distance of each other. The concept is really directed to people being in the same place as each other. That could be a small place or it could be a large place.

Let me give you an example. I just made this one up. Say you have a riot at an English Premier League soccer game. The fans of the losing team start committing various acts of violence towards the fans of the winning team. In such a situation, it would be open to a jury to conclude that those who were behaving violently within the stadium were present together, even though they might well have been located in different grandstands. But it might be an entirely different matter if there were some fans behaving violently in the stadium and some more being violent at the tube station a kilometre away from the stadium.

I suggest you take a practical approach to this question. The main factor appears to be if you find that there were 12 or more detainees using or threatening unlawful violence, whether they were do[ing] so for a common purpose. If you do, does it really matter if some were near the laundry, others were on the soccer field and others were on the roof?

Assume you found that there were 12 or more using or threatening unlawful violence in order to protest against their detention in, for example, those three locations, would it be sensible and practical to regard them as not being present together? It is a matter for you to decide. You are the judges of the facts. You have heard some submissions of counsel, which I will remind you of later in my summing-up, but the essential point is that they are ordinary words, apply your commonsense to them, ladies and gentlemen.”

(b)   other participants

20. The trial judge gave directions with respect to other participants, by reference to three categories. The first were two “former accused”, Mr Kamali and Mr Mosawi, who had obtained verdicts of not guilty by direction: p 42(23). There were two who had pleaded guilty to affray and whose pleas had been accepted in full discharge of the indictment with respect to each, namely Mr Mansoor and Mr Chenarjaafarizad: p 43(2). Thirdly, there were other persons named in the course of the prosecution case, who included Messrs Razai, Dadash, Darabi and Jafari, as well as some who had not been identified. Having warned against speculation as to what may have happened to those persons, the judge continued at p 43(16):

“You may take into account … any activity of these other people, any activity that they may have been involved in. That includes Mr Mansoor and Mr Chenarjaafarizad, notwithstanding they pleaded guilty to affray.

It remains open to you, and entirely up to you, to consider whether they were part of the group of 12 or more persons who the Crown alleges were using or threatening unlawful violence for the common purpose.”

(c)   prosecution case

21. Almost immediately following the directions set out above, the judge turned to the prosecution case. Although it covers a number of aspects of the offending, it is necessary to set out the whole of the direction with respect to the prosecution case, at pp 44(9)-45(21).

“The Crown case is that a riot commenced from the time of the so-called rush of detainees towards the cordon on the top side of the Macquarie building. There were initially two on the roof, Mr Mansoor and Mr Darabi. They were joined later by Mr Amiri and Mr Razai. Then 20 or 30 more went towards the cordon.

Those on the roof threw tiles at Serco officers to deter them from preventing others from getting on to the roof; this is the Crown's case to you on riot. The riot continued from the time of that event, whatever time it occurred, until buildings were set fire.

There was an ongoing increasingly violent disturbance. It was not a spate of unrelated events engaged in by people willy-nilly. This ongoing disturbance was interspersed with periods of relative quiet, but that did not mean that the riot had stopped. There was ebb and flow, the Crown Prosecutor submitted, but it was building up and conduct was becoming more violent until ultimately the Serco staff evacuated.

The Crown contends that participants in the riot comprised each of the nine accused as well as others. Not all of those who were engaged in acting or threatening to act violently could be identified.

The Crown Prosecutor submitted that there was no doubt that what went on in this period caused people to fear for their personal safety and you would conclude that any person of reasonable firmness would have felt the same.

The violent acts that were committed in the course of the riot included, in the Crown submission, throwing roof tiles at specific items of property, for example, phone booths, at staff, or at no particular target at all. Pulling bins that were chained to the walls; setting fires. Putting mattresses, pillows, bed sheets, bins, rubbish from bins, soccer posts on to the soccer field and setting them on fire or adding them to the fire, and breaking the window of the office building and setting fire to it. Acts of personal violence, aside from throwing tiles at people, included grabbing people and spraying and throwing fire extinguishers at people.

The Crown Prosecutor submitted to you that this all occurred in the context of detainees yelling, chanting and abusing staff, coming together in groups of 15 or 20 and at times 20 or 30. There was communication between groups who were on the roof and groups who were at the Clarence building or otherwise generally on the ground. The common purpose alleged by the Crown to have been in existence amongst those involved in violence towards people and property was to protest against their detention and to do so in a way that involved acting violently.”

(d)   defence submissions

22. Having completed general directions and directions as to the elements of the offence and dealt with the common elements of the prosecution case, the judge turned to the specific allegations against each accused. He then dealt with the key elements of the applicant’s defence in the following passage (Mr Marr being counsel for the applicant), at pp 57(13)-58(4).

“Mr Marr submitted, on behalf of Mr Parhizkar, that you would not be satisfied beyond reasonable doubt that there were 12 or more persons present together who were using unlawful violence for the common purpose.

He suggested that you would find that the persons on the roof who were involved in violent conduct, and there were not 12 of them on roof who did so, were not present together with any of the detainees on the ground. Those on the roof were isolated and separated. He accepted that Mr Parhizkar was involved in using or threatening violence but he was not present together with at least 11 others who were doing so.

Mr Marr argued that you only have four people on the roof who are alleged to have been using or threatening unlawful violence, they being Mr Parhizkar, Mr Haidari, Mr Amiri and Mr Abdollahi.

That is not the Crown case, as I understand it, ladies and gentlemen.

The Crown case is that there were more than four on the roof, such as, for example, Mr Mansoor and Mr Darabi. The fact that Mr Mansoor has pleaded guilty to affray does not exclude him as a person who may be considered by you as one of 12 are [sic] more.”

(e)   redirection

23. Finally, there was the redirection sought by counsel for the applicant, which appears in the following terms at p 93:

“MARR: It's in relation to ‘present together’, ‘12 or more persons who are present together’, and I'd ask that your Honour say four things that they could take into account, or consider. The first being that they should be in close proximity to each other.

HIS HONOUR: How close?

MARR: Your Honour, that's all I ask for, that they would consider that they be in close proximity to each other.

HIS HONOUR: What does it mean?

MARR: It's derived from Anderson. Anderson refers to the element at common law of what can be termed ‘mutual assistance’, but I don't submit that that common law element is part of the statutory offence, and I understand that it was considered it was unnecessary or didn't add anything to it if they were present together. But if they're not required to - the Crown doesn't have to prove an intent to assist - nonetheless, they would have to be close enough to assist each other by force, if necessary. That proximity, close enough to - because the second matter that I submit should be said to them is that they be within sight and sound of each other. But they wouldn't necessarily have to hear and see everything that the others did, but within sight and sound. And also I submit it would be of assistance to say that they be part of the same group or assembly. And the fourth thing is that they not be separated by any barrier or physical impediments. And finally, if your Honour would say to the jury that it is a question for them to decide whether, in fact, the roof-top protesters were present together with the people on the ground in the Fowler compound. That’s my application, your Honour.”

24. The application for a redirection was refused, primarily on the basis that the particular elements which were required to be covered had been covered: p 109. Although no further reasons were given for the rejection, it may be noted that the tenor of the request was inconsistent with a direction which had already been given with respect to the accused Bejoushin, for whom Mr Jankowski appeared. The judge said at p 71(5):

“It seems to me, ladies and gentlemen, to have been suggested that there was a requirement for the other persons using or threatening to use unlawful violence to have been in the immediate presence of the accused at the time the accused is alleged to have used unlawful violence. If that is the impression you got from what Mr Jankowski said, I remind you that there is no requirement for such proximity. It very much depends on the circumstances. I spoke earlier today about persons being present together and you will need to take a commonsense approach to that sort of issue.”

“Present together” – legal context

25. In considering whether the directions given with respect to the concept of 12 persons being “present together” were accurate and sufficient, it is necessary to recognise that much will depend upon the circumstances of the particular case, as revealed in the evidence before the jury. Nevertheless, ordinary English words obtain their meaning from their statutory context, which can only be explained to the jury by the judge: unlike the exercise about to be undertaken, the jury does not, and should not, identify and analyse that context.

26. In order to evaluate the rejection by the judge of the proposed further directions sought by counsel, it is necessary to consider to what extent the statutory language is to be understood by reference to the common law, on which counsel relied. Clearly common law principles do not govern the statutory language because the old common law offences of riot, rout and affray were abolished, by s 93E, now Sch 3 cl 3, when the new provisions of riot and affray were introduced by the Crimes (Amendment) Act 1988 (NSW). Nevertheless, it is necessary in order to assess counsel’s request to consider the extent to which the statutory language reflected the common law and the extent to which it introduced new concepts. Ultimately, of course, the statutory language prescribes the relevant elements of the offence.

27. Subject to one major qualification, the statutory provisions were expressly modelled on the equivalent statutory offences in the Public Order Act 1986 (UK): explanatory note to the Crimes (Amendment) Bill 1988, Sch 1(2). The major qualification was that the UK provisions contained three graduated offences, the most serious of which was riot (carrying a maximum sentence of 10 years imprisonment), the second most serious was violent disorder (carrying a maximum term of five years imprisonment) and then affray (having a maximum term of three years): Public Order Act 1986, ss 1, 2 and 3. The intermediate offence of violent disorder is similar to that of riot, except that only three persons need be present together and the offence is committed by each person “using or threatening” unlawful violence. This offence was picked up in New South Wales in s 11A of the Summary Offences Act 1988 (NSW), but carrying a maximum penalty of imprisonment for six months. (While the UK offence carried a greater penalty, it is able to be prosecuted on indictment or summarily, and in the latter case carries a six month penalty.) None of this bears upon the extent to which it is permissible to look to the UK precedent to indicate the purposes underlying the abolition of the common law offences and the extent to which the statutory offences used different language. (The statutory history is helpfully referred to by Johnson J in Colosimo v Director of Public Prosecutions [2005] NSWSC 854; 64 NSWLR 645 at [10]-[30], albeit primarily in relation to affray, not riot.)

(a)   statutory context

28. Before considering the historical background provided by the common law, it is appropriate to note aspects of the statutory context in which the present issues arise. Given the way in which the case was left with the jury, it seems unlikely that the jury were satisfied beyond reasonable doubt that there were 12 persons on the roof of the Macquarie building sharing the common purpose and using or threatening unlawful violence. Indeed, the prosecution appears to have accepted expressly that that was not the case. Accordingly, it was necessary for the jury to find, beyond reasonable doubt, that there were a number of others on the ground who satisfied the criteria for membership of the group. The next question was whether they were “present together” with those on the roof. That question is, of course, not one for this Court to decide; rather, the analysis is relevant in order to consider whether the judge’s directions were sufficient to identify the principles to be applied.

29. Given that the issue was one of spatial proximity, it is important to note that the target of the protest was not present. (The target may be identified as the Department of Immigration and Citizenship responsible for the continuing detention of the detainees; at least those on the roof were demanding the attendance of one or more senior officers from the Department.) The circumstances therefore differed markedly from those considered by R A Hulme J in R v Kisacanin [2012] NSWSC 91. The accused in that case, Zoran Kisacanin, was a member of a motorcycle gang, the Comancheros. He and 11 other members of the gang were involved in a confrontation at the domestic terminal at Sydney Airport with a number of members of a rival Hells Angels gang. The judgment involved the sentencing of the offender and is not presently relevant: the question of the members of the Comancheros being “present together” cannot have been a significant issue at the trial in circumstances where they were moving as a group out of the terminal when they saw and immediately confronted their antagonists, towards whom they directed physical violence. The present case was different: the identified purpose was not directed towards the security officers, for example, because of their repressive conduct. Rather, the protest was directed to the absent members of the government department processing visa claims. However, for the purposes of s 93A, to the extent that there was “violent conduct towards persons”, that conduct was directed towards the security officers. To the extent that the violence was directed towards property (and there is no doubt that much property was destroyed), it was through the acts of numerous individuals smashing or setting fire to whatever was close at hand.

30. It was possible (as in fact appears to have happened, though only after the security officers had evacuated the Fowler compound) that similar destruction might occur elsewhere in the Villawood Immigration Detention Centre, by detainees separated by security fences from those in the Fowler compound. Had there been another detention centre nearby, violent protests may have erupted there too. Although all may have shared a common purpose, at the high level of generality at which the purpose was defined, the protests in a neighbouring centre would not have been undertaken by persons who were “present together” with those at Villawood. That would seem analogous to the distinction drawn by the trial judge between a disruption in a football stadium and one occurring at the local railway station after the match.

31. That, however, was not the issue for the jury. Nor does it appear to have been in issue that persons in a compound on the other side of a security fence would not have been present together with the protestors in the Fowler compound. The question was whether the persons in the Fowler compound, but separated by the height of the building and, apparently, a climbable fence from those on the roof, were “present together” with the persons on the roof.

28. The element of spatial proximity is also reflected in the element concerning the effect of the conduct on a person of reasonable firmness, as it refers to such a person “present at the scene”. In this context, “the scene” may be taken to be the place where the violent conduct was being used or threatened. The spatial extent of the scene will depend upon the nature of the violence. The evidence did not suggest any actual or threatened breach of the security perimeter of the Fowler compound. Accordingly it may be inferred that the person of reasonable firmness had to be present within the compound.

29. Further, apart from the persons who grabbed fire extinguishers, the only weapons were missiles in the form of tiles taken from the roof of the Macquarie Building. Anyone within range of a thrown tile would have feared for their personal safety. The critical question was whether the persons with fire extinguishers constituted a sufficient threat to the personal safety of persons on the ground. There is no doubt that, as the prosecution suggested, it was open to the jury to find that such activities would have put a person in fear. If so satisfied, the next question for the jury was whether those acting violently on the ground were present together with those on the roof.

30. The prosecution case was said to rely on there being communication between the group on the roof and the persons on the ground. That communication was relied upon to establish a common purpose.

31. It was not disputed that such circumstances might satisfy the statutory test of being present together; however, as the request for further directions suggested, the jury might have been given more specific directions in that regard. It was not sufficient that there were more than 12 persons threatening or using violence, and with a common purpose; it was necessary that they be undertaking those activities whilst “present together”.

32. The judge’s direction that the people were to be “in the same place as each other” was not open to challenge. His further comment that it could be “a small place or it could be a large place” did not take the matter much further. However, the illustration is troubling. It had two elements: first, it said that it would be open to a jury to conclude that all those within the football stadium were present together, “even though they might well have been located in different grandstands.” The point of distinction was with those being violent at the tube station a kilometre away from the stadium. No doubt these were entirely separate places and the inference that persons at each were not “present together” was possibly so clear as to be unhelpful. The other suggestion, however, was that all those in the stadium were “present together”. Of course, saying that in such a situation it would be “open” to a jury to hold that they were all “present together” would indicate to a lawyer that it would all depend upon the circumstances, which had not been fully fleshed out. For example, absent some premeditated plan, it is by no means clear why groups of fans of a losing football team would start attacking fans of the winning team in different parts of a stadium with a “common purpose”. If the grandstands were separated from each other by security barriers, would it be appropriate to ignore that fact? In short, the illustration reduced the concept of a common purpose to something possibly trivial; it also suggested that physical distance or barriers may be irrelevant. Finally, it allowed an inference that the hypothetical person of reasonable firmness might fear for his or her safety wherever he or she might be in the stadium, whether in the immediate proximity of brawlers or a reasonable distance away. That would not be consistent with the statutory language.

(b)   common law principles

37. Counsel sought to derive assistance for his proposed further directions from the judgment of McHugh JA (with whom Kirby P and Samuels JA relevantly agreed, the former with additional reasons of his own) in Anderson v Attorney General for New South Wales (1987) 10 NSWLR 198. Both Kirby P (at 203) and McHugh JA at (209C) accepted that an essential element of the common law offence of riot was that there be a number of persons “assembling together of their Authority, with an Intent mutually to assist one another, against any who shall oppose them”, a statement taken from W Hawkins, Pleas of the Crown (1st ed, 1716, Book 1, at 155). McHugh JA also extracted the following definition from Halsbury’s Laws of England (4th ed, 1976), Vol 11, at 506-7, par 861:

“A riot is a tumultuous disturbance of the peace by three or more persons assembled together with an intent mutually to assist one another by force if necessary against anyone who opposes them in the execution of a common purpose and who execute or begin to execute that purpose in a violent manner so as to alarm at least one person of reasonable firmness and courage. Such an assembly becomes riotous at the latest when alarming force or violence begins to be used.”

38. McHugh JA was doubtful that there must be an actual person who was alarmed, preferring the view (in conformity with the current legislation) that “the violence must be such that a hypothetical bystander of reasonable firmness and courage would be put in fear by the display”: at 115. McHugh JA further noted doubts which had been expressed by one commentator as to whether it was necessary to prove a separate element of intention to help one another, in addition to the element of execution of a common purpose. McHugh JA thought it inappropriate to omit such an element but said that while none can be guilty “unless each of them had the intent to help each other, by force if necessary, against any person who might oppose them in the execution of their common purpose”, that merely meant that “all accused must have been present together”: at 211F. (That language also conformed to the current statute.)

39. The riot in question in that case was alleged to have occurred at Bathurst in 1985. (The matter came before the Court of Appeal at an interlocutory stage.) McHugh JA was of the view that if any of the persons charged had been placed in custody at a point in time, his participation in any riotous assembly would have come to an end: at 212B.

40. It may be seen that the concept of being “present together” was, at least on the view accepted by this Court in Anderson, part of the common law. Persons would not be present together if they were separated by a physical barrier. What might constitute a sufficient barrier would be a question of fact in each case. However, the mere fact that people could communicate with each other might allow the establishment of a common purpose, but would not render such persons present together in all circumstances.

41. The report of the Law Commission (UK), which led to the adoption of the Public Order Act 1986 in language adopted in this State, revealed limited intentions with respect to variation of the common law offence. Some changes were significant but presently inconsequential, including the need for “12 or more persons” and the penalty, no longer being life imprisonment as under the common law.

42. The standard English text, Thornton et al, The Law of Public Order and Protest (2010, Oxford UP), discusses the term “present together” by reference to common law cases of Woodrow (1959) 43 Cr App R 105 and Jones (1974) 59 Cr App R 120: at [1.23]. Another early text, ATH Smith, Offences against Public Order – including the Public Order Act 1986 (1987, Sweet & Maxwell), referred to the pre-Act decision in Summers (1972) 56 Cr App R 604 for the proposition that a group of three men who went to the victims’ house, two of whom entered and attacked the victims, whilst the third remained in the car, did not involve three persons present together: at [3-04]; see also [4-08].

43. These considerations lead one to doubt whether (1) the football stadium analogy was apposite or, rather, misleading, (2) the judge was correct to refuse a direction that members of the group of 12 not be separated by any barriers or physical impediments, (3) it was correct not to direct the jury that the various persons using or threatening violence should have been “in the immediate presence of the accused at the time the accused is alleged to have used unlawful violence” and (4) there was not a specific question to be determined, namely that the rooftop protestors were present together with the people on the ground in the Fowler compound, which was not expressly identified. That is not to say that the directions given were, in their terms, wrong, but rather that, without some further directions, the jury may have not focused on, or indeed may have been distracted from, a legitimate aspect of the defence case. Although it might have been open to the jury to be satisfied that those on the roof and those elsewhere in the compound were present together, that needed to be identified as an issue. Further, an appropriate direction might have resulted in some area less than the whole compound being treated as “the scene” at which the hypothetical person of reasonable firmness was to be present.

44. The Director referred to the direction sought that the 12 or more persons should be in close enough proximity to each other to assist each other by force if necessary. The submissions noted the reliance by the applicant on the following passage in the report of the UK Law Commission, at par 6.29:

“Although the element of common purpose has been retained, unlike the common law the new offence of riot does not contain the element of ‘an intention to help one another by force if necessary against any person who may oppose them in the execution of their common purpose’. We think this adds nothing essential to the proper delimitation of the offence; its exclusion in our Working Paper proposals was approved by virtually all our commentators.”

45. The Director submitted that the applicant’s reliance on that passage was “misplaced”, but why that was so was not entirely clear. Like McHugh JA in Anderson, the Law Commission appears to have treated the element of being present together as indicative of the need for a degree of joint action, or at least the capacity for joint action, together with actual use of force by the accused. However, the Director’s submissions (at par 18) made much of the proposition that the evidence demonstrated that:

“the appellant was close enough to assist with force, if necessary – and that he did. … The evidence in this case was that the rioters were in different parts of the compound. Their proximity to each of the others was different.”

46. Later the submission stated:

“There was clear evidence that: the appellant was close enough to assist with force (and that he did so); that the rioters could see and hear each other; that they were in a group and assembled together and that the roof was not a physical barrier between the rioters. Indeed, it became a position of advantage for some of the violence that ensued.”

47. These submissions raised legitimate points, but they were points for consideration by the jury. The troubling features of the directions given (and not given) were that the jury may have inferred that there was no real issue to be addressed.

(c)   conclusions as to ground 1

48. There are three elements of the offence of riot which must be addressed coherently and harmoniously in any directions given to a jury. They are that the offenders (a) be present together, (b) have a common purpose and (c) act in such a way as would cause fear in a person of reasonable firmness at the scene. Each element complements the other. Pursuit of a common purpose adds to the requirement of physical proximity a degree of understanding between those participating (or taking part) in the violence or threatened conduct. The offenders are to be present together, acting for a common purpose; their conduct sets the “scene” at which the hypothetical bystander is present and in fear. Such fear is the consequence of unlawful violence which includes violent conduct “towards” persons and throwing a missile “at or towards” a person where the missile is of a kind capable of causing injury: s 93A.

49. Of course, a fracas at a railway station a kilometre away from a stadium fails to satisfy these elements. But the analogy is not only a distraction, it is positively misleading. Violence erupting in different parts of a football stadium may well not satisfy these elements. The implication that it may (or even will), without explaining why it may well not, obscured the proper consideration of the elements of the offence. Thus, the direction set out at [19] above is likely to have misled the jury. That consequence is likely to have been reinforced by the directions set out at [24], rejecting the proposition that those using unlawful violence should be “in the immediate presence of the accused at the time the accused is alleged to have used unlawful violence.” The rejection of the temporal element was consistent with s 93B(2). However, the direction could reasonably be understood (and may well have been intended) to be a rejection of the element of physical proximity. That conclusion flows from the refusal to direct that the 12 or more persons who are present together should be “in close proximity to each other”: at [23] above.

50. For these reasons, the challenge to the jury directions based on ground 1 should be upheld. The nature of an appropriate direction will be considered further below.

Presence of those found not guilty of riot

51. The second aspect of the applicant’s complaint with respect to the directions to the jury asserted that persons found not guilty of riot could not be amongst the 12 persons who were present together for the common purpose.

52. This ground should not be accepted. First, the underlying proposition was unsound. As has been pointed out by Thornton et al, where 12 persons are together, of whom 11 threaten unlawful violence and only one uses unlawful violence, only one will be guilty of the offence. Thus two persons who were acquitted of the offence, possibly because they did not use unlawful violence, could still be guilty of threatening unlawful violence. That conclusion would not be inconsistent with their pleas of guilty to affray, an offence which may be satisfied where a person uses or threatens unlawful violence towards another.

53. Secondly, the prosecution was entitled to rely upon those two persons as being guilty of threatening or using violence for a common purpose when prosecuting the applicant, even though they have been acquitted of the charges brought against them individually involving that element. This was not a case requiring consideration of the principle in Likiardopoulos v The Queen [2012] HCA 37; 247 CLR 265 at [30]: if the presence of those guilty only of affray were to be included within the 12 persons present together, there would not be inconsistent verdicts.

54. It might have been said that, with respect to those convicted of affray, it was necessary for the judge to give some further direction to the effect that the jury must be satisfied of an additional element, namely that they used or threatened unlawful violence for a common purpose with other members of the group. A further direction in those terms was not sought and, in the circumstances, that was understandable, the jury having received more than adequate instruction as to the difference between affray and riot. Further, the jury was directed that those who had pleaded guilty to affray might be part of the group of 12 or more persons alleged to be using or threatening unlawful violence “for the common purpose”: Summing up, p 43(22).

55. The purpose of ground 3, alleging that the pleas were admissible evidence, was obscure. The jury were aware of the pleas and were directed as to how they might deal with them. It should be rejected.

Other grounds

56. Ground 4, concerning the cross-examination of the witness Orlando Papa about viewing a video of the disturbance on YouTube and discussing the nature of the disturbance with others, related to a matter of no consequence. Mr Papa’s evidence concerned the presence of the applicant on the roof and his conduct. None of that was in dispute. Why the ground was pressed is a mystery.

57. Ground 5 alleged error in failing to discharge the jury following the publication, during the summing up, of an article in the Sun Herald headed “Three jailed over riot at Villawood”. Most of the article was concerned with the circumstances of three men sentenced for their part in the disturbance, not being co-offenders with the applicant. The complaint of prejudice was twofold. First, they were said to have been sentenced “for their part in a fire and riot” at the detention centre and, secondly, the fire and riot were said to have caused $9 million of damage. The article was apparently published in the Sun Herald on Sunday, 7 April 2013. The summing up commenced on Monday, 8 April, but no application was made until Thursday, 11 April, although that was the second day of the summing up, there having been an adjournment in between.

58. The judge rejected the application on the basis that he had already directed the jury with respect to witnesses who used the term “riot” in a colloquial sense and not a legally technically correct sense: Summing up, p 58(5). He had also given a standard direction that the jury were to reach their verdicts based on the evidence before them and not on speculation or matters they had read in the media: Summing up, pp 6(20)-7(10). There being no reason to suppose that the jury would disregard such clear and repeated directions, he dismissed the application, summarily. He was correct to do so. No further direction was sought. Ground 5 must be rejected.

59. Ground 6 alleged that the judge erred in telling the jury that they were “not entitled to the transcript of counsels’ addresses or his summing up.” This ground was based upon an exchange in the course of the hearing, after the judge had delivered a short interlocutory judgment. The jury sent a note seeking a copy of the judge’s reasons, which was refused: Tcpt, p 1600. Having explained that the jury would receive a far more detailed analysis of the evidence and issues in due course, the judge added:

“Just as a note of caution. You have been receiving the transcript of the evidence just to alert you to the fact that when counsel commence their closing addresses, from that point on the flow of the transcript to you will cease. I can only give you a transcript of evidence. The legislation speaks specifically of that and not of addresses and my summing up to you. So if you want to take a note of things that counsel say to you or I say to you, take a note, because you won’t be getting the transcript.”

60. The reference to “legislation” was a reference to the Jury Act 1977 (NSW), s 55C, which the judge accurately explained. However, there is authority for the proposition that the judge had power to provide transcripts of the addresses and summing up, as a matter falling within the inherent powers of the trial court: R v Taousanis [1999] NSWSC 107; 146 A Crim R 303 (Sperling J, dealing with the transcript of an opening), applied with respect to closing addresses by this Court in R v Bartle [2003] NSWCCA 329; 181 FLR 1 at [661]-[662] (Smart AJ; Mason P and Barr J agreeing at [283]); Regina v Sukkar [2005] NSWCCA 54 at [82]-[84] (Wood CJ at CL, Hidden J and Smart AJ agreeing, at [155] and [207] respectively) (a case in which the power of the trial judge to replay a recording of the summing up was accepted).

61. The jury did not ask for a transcript of addresses or the summing up, no doubt, it was submitted, because they had been told in advance that they would not have them. In the course of addresses, counsel for the applicant, Mr Marr, raised the issue with the judge at Tcpt, p 1946(25):

“MARR: There’s a line of authority that says that generally, although [it’s] discretionary, if a jury were to request transcript of addresses of counsel, that they should be provided with them.

HIS HONOUR: Yes. I understand that. There’s also authority for the proposition that the summing up can be provided in transcript form. No one has asked for it. I’m not going to provide it unless they do. I’m not going to consider providing it unless they do.”

62. Counsel then sought to refer to the earlier statement in the transcript, but was cut off, as the judge wished to move on to matters which needed to be addressed at that time. Later in the day the judge invited counsel to deal further with the issue he had sought to raise: Tcpt, p 1988(26). Although the judge expressly noted that he had raised “an error that should be corrected”, counsel merely sought that the jury be informed that they could request transcripts of the addresses and summing up and that consideration would be given to such a request: Tcpt, p 1988(35). The exchange which followed indicated that the judge was reluctant to give such a direction in a matter involving multiple parties, particularly where the request might be for the prosecution closing address, or for every address. The direction was not given.

63. There was no doubt that the judge was fully aware of the existence of a discretionary power. He did not wish to encourage the jury to make a request which would probably be refused. At that stage, there was no real likelihood of a large delay between counsel addressing the jury and the jury retiring. Although in fact there was a two day adjournment, the suggested direction was not sought thereafter and it was not submitted in this Court that such a delay was significant.

64. There was no obligation for the judge to give the information that the jury could request transcripts of addresses and the summing up. The direction in fact given was accompanied by an indication that there would be more frequent breaks during the addresses as listening to a single person speaking required greater concentration than listening to the exchanges when evidence was being given. The suggestion that the jury take notes was no doubt designed to encourage attention to what was said. Advising that they could have access to transcripts would have undermined that message. The circumstances of the present case were quite different from those in Bartle: there was no basis to suggest that the judge would have been wrong to refuse a request had it been made in the present case. It should not be accepted that the jury, if advised as to the court’s powers, would have requested any transcript: they did not ask any question which inspired counsel to suggest it should be offered. It follows that there can have been no miscarriage of justice in declining to tell the jury that they could make such requests. Ground 6 must be rejected.

Conclusions – conviction appeal

65. The directions as to the elements of the charge of riot raise significant points and warrant a grant of leave to appeal. The next question is whether the directions given and the failure to give at least part of the directions sought deprived the applicant of an opportunity of acquittal which was fairly open to him and therefore constituted a miscarriage of justice.

66. In order to deal with the legitimate issues raised by the defence, the jury should have been told that, if they were not satisfied that there were 12 people threatening or using violence who were present together on the roof, but that there were others on the ground, they needed to consider whether those on the ground were in sufficiently close proximity to those on the roof to be in a position to offer physical support in the event of opposition to the protest. Viewed from the position of the applicant, the violent conduct involved in throwing tiles was capable of assisting those on the ground in the immediate proximity to the Macquarie building, but arguably not those further afield. On the other hand, from the position of those on the ground, there was no clear evidence of them being in a position to assist those on the roof, except by climbing up and joining them, which most did not seek to do. Further, they should have been directed, as the prosecutor accepted, there was much shouting and abuse which did not rise to the level of threatening violence; nor did those on the ground who merely threw up bedding or bottles of water to those on the roof, by that conduct, use or threaten unlawful violence.

67. In my view the summing up, otherwise meticulous, did not adequately identify the issues raised by the accused with respect to an essential element of the prosecution case which was in dispute at the trial. Although it is quite possible that, had the issue been squarely addressed, the jury would have come to the same conclusion, it was also open to them on the evidence to have a reasonable doubt with respect to this aspect of the prosecution case. The verdict with respect to the charge of riot must be quashed.

Sentence

68. In the event that the challenge to the verdict failed, the applicant also sought leave to challenge the sentence imposed for the offence of riot. He did so on a limited basis. The applicant was at all stages in detention. However, whilst awaiting trial, he was held for a period in custody in a prison, being a more restrictive form of detention. That pre-trial custody, of one year and 22 days, was taken into account by backdating the sentence: R v Ali; R v Parhizkar [2013] NSWSC 871 at [107]. The judge continued in his judgment on sentence at [108]:

“I have also taken into account in favour of each offender, although in an unquantifiable sense, that it is likely that the length of time they have been kept in immigration detention has been exacerbated by the fact that there have been pending criminal proceedings against them.”

69. The short point on the sentence appeal is that the period from when he was released back into immigration detention (having been held in gaol before being granted bail), until the time of the trial was “likely referable to the criminal charges”. This was a period of some 13 months from May 2012 until June 2013. During that period, he was held in “the maximum security section at Villawood, Blaxland, which is little different to a gaol.” The submission was that the applicant should have had a quantified allowance with respect to that period of custody, which was not merely an extension of the period of immigration detention, but an extension in circumstances of increased restraint.

70. While the point was made by way of submissions in this Court, it was not expressly relied upon before the sentencing judge. Nor does it appear that evidence of the circumstances of the period in immigration detention was presented to him. In those circumstances, it cannot be said that the judge erred in the approach he took. The appropriate course, given that the verdict should in any event be set aside, is to refuse the application for leave to appeal against sentence.

Orders

71. The Court should make the following orders:

(1)   Grant the applicant leave to appeal against his conviction for the offence of riot.

(2)   Allow the appeal and set aside the conviction.

(3)   Refuse leave to appeal against the sentence on the conviction for riot.

72. As the applicant has served the non-parole period imposed upon him for the offence of riot and as he has pleaded guilty to the offence of affray, for which he has not been convicted and sentenced, it will be a matter for the Director as to whether he is put on trial again with respect to the more serious offence. The alternative course would be to remit the matter for sentence on the offence of affray. No further orders should be made by this Court in those circumstances.

73. PRICE J: I have had the considerable benefit of reading Basten JA’s judgment in draft. The facts of the present case are comprehensively stated in his Honour’s judgment.

74. I agree that Grounds 2 to 7 of the applicant’s appeal against conviction should be dismissed but I do not agree with Basten JA’s conclusion that Ground 1 should be upheld.

75. The question is whether the trial Judge erred in his directions on the element of the offence of riot as to whether there were 12 or more persons “present together”, using or threatening to use unlawful violence, for a common purpose.

76. There was ample evidence from which the jury could conclude that after 8pm, the applicant was one of 10 detainees on the roof of the Macquarie Building and was one of the most active tile throwers. Evidence had been given by a Serco Officer that the applicant had thrown at least 30 tiles. However, as it was accepted that not all of the persons who had been on the roof during the protest (there had been 13 identified) had used unlawful violence, it was necessary for the jury to decide whether there were others on the ground who used or threatened violence for the same purpose as the applicant and others on the roof and if so, whether they were “present together” with those persons on the roof.

77. Evidence before the jury disclosed that the detainees on the ground within the Fowler compound provided support for those on the roof and engaged in acts of unlawful violence for the purpose that they shared in common with those on the roof of protesting their detention. Those on the roof provided encouragement for those on the ground by yelling encouragement and throwing roof tiles.

78. Some time after 7.15pm, security staff had formed a cordon to prevent detainees approaching an internal fence from which they could climb onto the roof. The critical question for the jury to decide was whether the detainees in the Fowler compound were “present together” with the detainees on the roof. The detainees were separated by the height of the building and the internal fence. This was a matter of fact for the jurors to decide. As Basten JA points out in [28] above, the question for this Court is “whether the judge’s directions were sufficient to identify the principles to be applied.”

79. I do not propose to repeat the trial Judge’s directions about the phrase “present together” which are fully set out in [19], [20] and [22] above. It appears to be Basten JA’s view that the trial Judge’s directions were not “in their terms wrong, but rather that, without some further directions, the jury may not have focused on, or indeed may have been distracted from, a legitimate aspect of the defence case.” Basten JA considers that the element of “present together” needed to be identified as an issue by the trial Judge (see [43] above).

80. Basten JA expresses the opinion in [66] above that “the jury should have been told that, if they were not satisfied that there were 12 people threatening or using violence who were present together on the roof, but that there were others on the ground, they needed to consider whether those on the ground were in sufficiently close proximity to those on the roof to be in a position to offer physical support in the event of opposition to the protest.” Another direction that his Honour considers should have been made is that “there was much shouting and abuse which did not rise to the level of threatening violence, nor did those on the ground who merely threw up bedding or bottles of water to those on the roof, by that conduct, use or threaten unlawful violence” (see [66] above).

81. These additional directions find their origin in the applicant’s counsel’s request during the trial Judge’s summing up that in relation to the phrase “present together” his Honour should say to the jury:

(i)   that they [the 12 or more persons] should be in close proximity to each other, close enough to assist each other by force if necessary;

(ii)   that they were in sight and sound of each other (but not necessarily hear or see everything the other did);

(iii)   that they had to be part of the same group or assembly; and

(iv)   that they are not separated by any physical barriers.

82. The applicant’s counsel told the trial Judge that the directions sought were derived from Anderson.

83. The trial Judge rejected the applicant’s request on the basis that “the substance of the matters raised…has either already been covered by what I have said or is not necessary to be part of the direction” (SU 109).

84. In my respectful opinion, the trial Judge’s directions made it plain to the members of the jury that the element of “present together” was an issue. He reminded the jury of the argument advanced by counsel for the applicant that they “would find that the persons on the roof who were involved in violent conduct, and there were not 12 of them on the roof who did so, were not present together with any of the detainees on the ground. Those on the roof were isolated and separated.” (SU 57 16-19).

85. In the written directions provided to the jury, which his Honour went through orally, the trial Judge emphasised that an essential element of the offence that the Crown was obliged to prove beyond reasonable doubt was the presence together of 12 or more persons. His Honour dealt separately with the phrase “present together” by directing the jury that the words were to be given their ordinary meaning, that there was no requirement for persons to be within a certain distance of one another and the concept was really directed to people being in the same place as each other. His Honour suggested that they take a practical approach to the problem and it was a matter for them to decide.

86. Anderson concerned the common law offence of riot. McHugh JA (with whom Kirby P and Samuels JA relevantly agreed) said at 114-115:

“Accordingly, the authorities strongly support the proposition that it is an essential element in the offence of riot that each of the participants had the intention to help each other, by force if necessary, against any person who might oppose them in the execution of their common purpose. It necessarily follows that, if a number of persons are charged with the one offence of riot, they must have each had both a common purpose and an intention to help each other, by force if necessary, against any person who might oppose them in the execution of that common purpose.”

87. The statutory offence of riot under s 93B Crimes Act does not include as an essential element of the offence “an intention to help each other, by force if necessary against any person who might oppose them in the execution of that common purpose.” Although counsel for the applicant recognised that “mutual assistance” was not part of the statutory offence, the directions he sought as to “proximity” appear to be founded upon an essential element of the common law offence that does not apply to the statutory offence. In my view, in establishing an offence under s 93B, the Crown is not obliged to prove beyond reasonable doubt that “the 12 or more persons were in close proximity to each other, close enough to assist each other by force if necessary.” Nor is the Crown required to establish any of the other three matters that the applicant sought further directions upon.

88. In my respectful opinion, Anderson is not authority for the general proposition that persons would not be present together if any physical barrier separated them. Anderson concerned the riot at Bathurst in 1985. It is a matter of common sense that when an accused person was placed in custody, his participation in that riotous assembly came to an end. The facts in Anderson are very different to the present case where there were detainees on the roof and on the ground.

89. The directions on the phrase “present together” given by the trial Judge find support in Regina v W(N) [2010] 1 WLR 1426, a judgment of the English Court of Appeal. When considering the phrase “present together” in s 2 of the Public Order Act 1986, the Court (Lord Justice Moore-Bick, Mr Justice Silber and Mr Justice Kenneth Parker) said at [23]:

“In our view it is intended to denote nothing more than being present in the same place. It is unnecessary in this case to attempt to define it with any greater precision, since it was undoubtedly open to the jury on the evidence before them to find that there was a time when the appellant and at least two members of the crowd were in the same place using or threatening violence. In any event, however, we think that it would be undesirable to attempt to do so. The phrase consists of ordinary words which must be given their ordinary meaning. If a question arises whether the defendant and others who are said to have used or threatened violence were present together (which we think is unlikely to arise in many cases) the jury should be told that the question is one of fact and that they should give the words their ordinary meaning: see Brutus v Cozens [1973] A.C 854.”

90. Although the facts in NW were more straightforward than in the present case, it appears to me that the phrase “present together” in s 93B was intended to have its ordinary meaning. There is nothing to suggest that these words are intended to be used in any unusual sense. In my respectful opinion, the trial Judge’s directions adequately identified the principles to be applied.

91. Basten JA finds at [36] above that the example provided by the trial Judge to the members of the jury to be troubling. I do not find it to be so. In my opinion the members of the jury, by using their common sense, could readily envisage situations where groups of fans of a losing team would start attacking fans of the winning team in different parts of a stadium with a “common purpose”.

92. I conclude that ground 1 of the appeal should be dismissed.

93. For the reasons given by Basten JA, I agree that the trial Judge did not err in the approach that he took to the applicant’s sentence. I would grant leave to appeal against sentence but would dismiss the appeal.

94. Accordingly, the orders that I propose are as follows:

(a)   Leave granted to the applicant to appeal against his conviction for the offence of riot;

(b)   The appeal is dismissed;

(c)   Leave granted to the applicant to appeal against the sentence on the conviction for riot;

(d)   The appeal is dismissed.

95. McCALLUM J: I have had the benefit of reading the judgments of Basten JA and Price J in draft. I agree that grounds 2 to 7 of the appeal against conviction should be dismissed.

96. After some equivocation, I have concluded that ground 1 should also be dismissed. Subject to one qualification, I agree with the reasons stated by Price J on that issue. The qualification is that I would respectfully not embrace the details of the example given by the learned trial judge of a riot at an English Premier League soccer match, particularly the inclusion of the statement that it would be open to a jury to conclude that persons behaving violently in different grandstands were “present together”. There is much force in Basten JA’s analysis of the difficulty with that example, in my respectful opinion.

97. Notwithstanding that reservation, however, I have concluded that the use of that example did not spoil the clarity of his Honour’s directions so as to produce a miscarriage of justice. I agree with Price J that those directions adequately identified the principles to be applied. I do not think they were required to be expanded upon in the manner proposed by Basten JA. Accordingly, I agree with Price J that the appeal against conviction should be dismissed.

98. I agree with Basten JA and Price J that the appeal against sentence should be dismissed.

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Amendments

13 October 2015 - duplicate headnote removed

09 October 2015 - [8] - delete "which" in 3rd sentence.

[22] - insert "and" after "general directions".

[24] - insert "were" between "which" and "required".

[26] - rewording of end of 2nd sentence.

[27] - replaced "15" with "10".

[39] and [88] - deleted "Gaol" after "Bathurst".

[61] - amending "its" to ["it's] in quote.

Decision last updated: 13 October 2015