Vpol v Anderson & Ors - Magistrates' Court of Victoria
Vpol v Anderson & Ors - Magistrates' Court of Victoria
Vpol v Anderson & Ors - Magistrates' Court of Victoria
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IN THE MAGISTRATES COURT OF VICTORIA<br />
AT MELBOURNE<br />
CRIMINAL DIVISION<br />
VPOL<br />
v<br />
S ANDERSON, S EVANS, S BOLTON, S<br />
MONSALVE - TOBON, J CRAFTI, M RYAN,<br />
S JAVED, N FARMER, L O’SHEA, O<br />
HASSAN, V KENWAY, C OAKLEY, J<br />
SMALL, D RIDGEWELL, T TYMMS, E<br />
WALSH<br />
MAGISTRATE: S GARNETT<br />
WHERE HELD: MELBOURNE<br />
Case No. B11925216 & ors<br />
Accused<br />
DATE OF HEARING: 1, 2, 3, 4, 7, 8, 10, 11, 14, 15, 16, 17, 18, 22, 23, 24 & 25<br />
May 2012<br />
DATE OF DECISION: 23 JULY 2012<br />
CASE MAY BE CITED AS: VPOL V ANDERSON & ORS<br />
REASONS FOR DECISION<br />
---<br />
Catchwords: Summary Contest: Demonstration 1 July 2011 at Max Brenner’s Chocolate<br />
Bar – QV Melbourne: Summary Offences Act 1966 – s 52 (1A) - Beset premises, S 9 (1)(d)<br />
- Wilful Trespass, S 52 (1) Resist, Hinder & Assault Police: “no-case” submissions: S 226<br />
Criminal Procedure Act 2009 - Charter <strong>of</strong> Human Rights and Responsibilities Act 2006 – S<br />
15: “Freedom <strong>of</strong> Expression”, S 16: “Peaceful Assembly” – S 458, S 461 & S 462 Crimes<br />
Act 1958: reasonable grounds for arrest – use <strong>of</strong> force must be reasonable and<br />
proportionate – in the execution <strong>of</strong> duty – Application for Prasad direction.<br />
---<br />
APPEARANCES:<br />
Counsel Solicitors<br />
For VPOL Mr Howard & Ms Nadj VPOL<br />
For the Accused Mr<br />
Ms Bolger to 7 May then Mr J Dowsley & Associates<br />
<strong>Anderson</strong> & Mr Evans Hughan<br />
Ms Bolton Mr Edney to 17 May then<br />
Mr Norton<br />
R Stary Lawyers<br />
Mr Mosalve -Tobon/Mr Crafti Mr Podmore J Dowsley & Associates<br />
Mr Ryan & Ms Javed Ms Taylor Spicer Lawyers<br />
Ms Farmer & Ms O’Shea Mr Button Spicer Lawyers<br />
!Undefined Bookmark, I
Mr Hassan Mr Bayles R Stary Lawyers<br />
Ms Kenway Ms O’Brien R Stary Lawyers<br />
Mr Oakley & Mr Small Ms Caruso J Dowsley & Associates<br />
Mr Ridgewell Ms L Murphy J Dowsley & Associates<br />
Mr Tymms Ms P Murphy R Stary Lawyers<br />
Ms Walsh Mr Wilson R Stary Lawyers<br />
!Undefined Bookmark, II
HIS HONOUR:<br />
1 The 16 co-accused are charged with <strong>of</strong>fences against the Summary Offences<br />
Act (1966) arising out <strong>of</strong> their involvement in a demonstration at Max<br />
Brenner’s Chocolate Bar at QV Melbourne on 1 July 2011. All <strong>of</strong> the accused<br />
are alleged to have ‘wilfully and without lawful authority beset premises’<br />
contrary to S 52(1A) and ‘wilful trespass’ contrary to S 9 (1)(d) <strong>of</strong> the Act. In<br />
addition, 8 <strong>of</strong> the accused face charges <strong>of</strong> assaulting, resisting or hindering<br />
police in the execution <strong>of</strong> their duties contrary to S 52(1). (The charge <strong>of</strong><br />
resisting arrest laid against Mr Crafti was withdrawn by the prosecution on the<br />
final day <strong>of</strong> hearing).<br />
2 The matter proceeded as a summary contest over a period <strong>of</strong> 17 days with<br />
evidence being given by 26 police witnesses and 4 civilian witnesses. At the<br />
conclusion <strong>of</strong> the prosecution case, all <strong>of</strong> the accused made “no-case”<br />
submissions in respect to all <strong>of</strong> the charges in accordance with S 226 <strong>of</strong> the<br />
Criminal Procedure Act 2009. The parties provided the court with<br />
comprehensive written and oral submissions in support <strong>of</strong> their respective<br />
positions.<br />
3 The evidence revealed that two previous demonstrations occurred at Max<br />
Brenner’s Chocolate Bar at QV on 1 April 2011 and 20 May 2011. The<br />
protests were apparently organised and attended by members <strong>of</strong> a coalition<br />
against Israeli Apartheid as part <strong>of</strong> a campaign <strong>of</strong> Boycotts, Divestments and<br />
Sanctions (BDS) which also included members <strong>of</strong> a Socialist Alliance Group.<br />
The court heard evidence that on 1 July there were approximately 150-200<br />
protestors gathered in QV Square in front <strong>of</strong> Max Brenner’s taking part in the<br />
demonstration and 132 police members on duty including general duty<br />
members, members <strong>of</strong> the Public Order Response Team (PORT) and<br />
members <strong>of</strong> the Public Order Management Team (POMT).<br />
4 As indicated, the court heard evidence from 26 police <strong>of</strong>ficers who were<br />
present on the night which included Inspector Beattie, the Field Commander<br />
1 DECISION
managing the police operation and Senior Sergeant Falconer, the Operations<br />
Commander <strong>of</strong> the Public Order Management Team who were the police<br />
<strong>of</strong>ficers tasked to form arrest teams. Senior Sergeant Falconer gave evidence<br />
over 3 days (approximately 9 hours) and was subject to intense cross-<br />
examination in relation to the discussions that occurred between police and<br />
QV management prior to the demonstration on 1 July, the operational tactics<br />
and the arrests that occurred. Evidence was also given by the Operations<br />
Manager <strong>of</strong> QV, Mr Appleford, Ms Fleming, General Manager <strong>of</strong> QV, Mr<br />
Kandasamy, Technical Manager at QV who operated and monitored the<br />
CCTV at the complex and Mr Shrestha, the State Manager <strong>of</strong> Max Brenner’s.<br />
Importantly, in the context <strong>of</strong> this case, over 4 hours <strong>of</strong> QV CCTV and police<br />
video footage taken by Senior Constables McLaughlin, Campbell and Oakley<br />
was tendered and shown to a number <strong>of</strong> witnesses during their cross-<br />
examination.<br />
5 In order to understand the events that occurred on 1 July and the foundation<br />
for the charges that have been laid against each <strong>of</strong> the accused it is<br />
necessary to go into some detail <strong>of</strong> the evidence given in relation to events<br />
preceding the demonstration on 1 July. Mr Appleford, Ms Fleming, Senior Sgt<br />
Falconer and Inspector Beattie gave evidence that a number <strong>of</strong> meetings<br />
occurred between them, Melbourne Central Management and other police in<br />
the period between 20 May and 1 July as they were aware through social<br />
media sites that a further demonstration would occur on 1 July. In addition, the<br />
<strong>Victoria</strong> Police obtained legal advice from the <strong>Victoria</strong>n Government Solicitors<br />
Office as to what powers they had in relation to the protestors should certain<br />
events occur and QV management also obtained legal advice as to their rights<br />
to request the protestors to leave the site and what, if any, legal remedies<br />
were open to the owners/occupiers.<br />
6 Mr Appleford and Ms Fleming gave evidence that the QV site is private<br />
property which is owned by Commonwealth Management Investments Ltd<br />
2 DECISION
and <strong>Victoria</strong> Square QV Investments. The Title Search <strong>of</strong> the property in<br />
question dated 10 May 2012 was tendered which indicates the registered<br />
proprietor is Commonwealth Managed Investments Ltd. Mr Appleford and Ms<br />
Fleming told the court that the property, although privately owned, is subject to<br />
an agreement (which is registered on the Title) with the Melbourne City<br />
Council in accordance with S 173 <strong>of</strong> the Planning and Environment Act 1987.<br />
The agreement contains a covenant which requires QV to keep the laneways<br />
and QV Square open to the public 24 hours a day and 7 days a week with<br />
some exceptions.<br />
7 Mr Appleford and Ms Fleming gave evidence that in preparation <strong>of</strong> the<br />
demonstration occurring and as a result <strong>of</strong> their discussions with Melbourne<br />
Central Management and the police they implemented a risk management<br />
plan which included; retailers at QV were spoken to and given letters warning<br />
them that the protest was to occur; QV Management was working closely with<br />
<strong>Victoria</strong> Police on management plans which included police presence being<br />
high and QV security to be present to protect the precinct and minimise any<br />
disruption; Conditions <strong>of</strong> Entry signs were placed at entry points, within the<br />
property and on pillars outside Max Brenner’s; the loading dock was closed to<br />
allow the police to establish a base for their operational duties (including<br />
where to take and “process” protestors who were arrested); additional security<br />
was employed by QV for the night; the removal <strong>of</strong> tables, chairs and the<br />
Perspex barrier at the front <strong>of</strong> Max Brenner’s; the closure <strong>of</strong> the “Light and<br />
Sound” Exhibition Marquee in QV Square at 6 p.m.; and, written authorisation<br />
was given by the owners <strong>of</strong> the site to Inspector Beattie, at his request, to use<br />
police powers to remove persons from the site where their entitlement to enter<br />
and remain had been revoked by QV management.<br />
8 Inspector Beattie gave evidence that he obtained legal advice from the<br />
<strong>Victoria</strong>n Government Solicitors Office regarding; the wording on a Notice<br />
which was distributed to protestors by Sgt Nash in front <strong>of</strong> the State Library<br />
3 DECISION
prior to the protestors making their way to QV Square; the wording on signage<br />
to be placed at QV; and, the announcement made by Mr Appleford to the<br />
protestors at approximately 6.50 p.m. purporting to revoke their licence to be<br />
on the property. The Notice distributed at the State Library stated:<br />
29 June 2011<br />
Boycott Apartheid Israel Rally<br />
1 st July, 2011<br />
<strong>Victoria</strong> Police wishes to advise you <strong>of</strong> the following:-<br />
Your demonstration activity will be closely monitored by police;<br />
Police will act to prevent violence, and will take all reasonable steps to arrest anyone<br />
<strong>of</strong>fending in this regard;<br />
The interiors <strong>of</strong> Melbourne Central and Q.V. are private property.<br />
If you propose to demonstrate disapproval <strong>of</strong> the political or social<br />
Interests <strong>of</strong> any retail tenant within Melbourne Central or QV, or<br />
create any form <strong>of</strong> disturbance in and around retail premises<br />
within Melbourne Central or QV, then you are prohibited from<br />
entering those shopping complexes;<br />
Please carefully note signage at entry points to Melbourne Central<br />
and QV complexes regarding behavioural conditions required<br />
within those places. Any person who defies this advice may be<br />
liable for breaching trespass laws;<br />
Police may also act to prevent demonstrators besetting private<br />
businesses (Offence – Beset Premises S.52 (1A) Summary<br />
Offences Act 1966);<br />
During the rally Police will attempt to communicate to<br />
Demonstrators any proposed escalation in Police tactics. Police<br />
will generally adopt a pro – prosecution policy for <strong>of</strong>fences<br />
against the person or against property.<br />
Inspector M.Beattie (Operations Officer)<br />
4 DECISION
9. The wording on the signage placed in and around QV by Jamie Rundell,<br />
Security Officer, at QV at the direction <strong>of</strong> Mr Appleford and on the advice <strong>of</strong><br />
Inspector Beattie was:<br />
Sign 1: ‘CONDITIONS OF ENTRY<br />
All persons, acting individually or forming part <strong>of</strong> an assembly <strong>of</strong> people, who propose to<br />
intentionally obstruct, hinder or impede any member <strong>of</strong> the public from entering any retail<br />
premises in Melbourne QV, or who propose to demonstrate disapproval <strong>of</strong> the political or<br />
social interests <strong>of</strong> a retail tenant, or create any form <strong>of</strong> disturbance in and around retail<br />
premises in QV, are prohibited from entering QV.<br />
QV Melbourne’<br />
Sign 2: ‘CONDITIONS OF ENTRY<br />
Any person, acting individually or forming part <strong>of</strong> an assembly <strong>of</strong> people, who are engaged in<br />
behaviour that obstructs, hinders or impedes any member <strong>of</strong> the public from entering any<br />
retail premise in QV, or who demonstrates disapproval <strong>of</strong> the political or social interests <strong>of</strong> a<br />
retail tenant, or who create any form <strong>of</strong> disturbance in and around retail premises within QV,<br />
will be ejected immediately from QV and consent to re-enter will be at the discretion <strong>of</strong> Centre<br />
Management.<br />
QV Melbourne’<br />
10. The announcement read by Mr Appleford at approximately 6.43 p.m. whilst<br />
using a megaphone at the request <strong>of</strong> Inspector Beattie was:<br />
“My name is Mark Appleford and I am the operations Manager at QV Shopping Centre.<br />
Where you are presently located is private property. I am authorised in writing to act on behalf<br />
<strong>of</strong> the owners <strong>of</strong> this private property being QV Melbourne Shopping Centre. You are<br />
demonstrating disapproval <strong>of</strong> the political or social interests <strong>of</strong> a retail tenant <strong>of</strong> this shopping<br />
centre. Accordingly you are breaching an express condition <strong>of</strong> entry to this property not to<br />
perform this type <strong>of</strong> protest activity. You have no lawful right to remain. I require you all to<br />
leave this private property immediately. Thank you.”<br />
11. Inspector Beattie also confirmed that at his request he received a letter from<br />
Ms Fleming dated 1 July requesting and authorising <strong>Victoria</strong> Police to use its<br />
powers during the demonstration if the police considered it appropriate. Ms<br />
Fleming told the court that the letter was provided with QV’s legal team<br />
involved in its drafting. The letter stated;<br />
“The retail, commercial and common areas <strong>of</strong> QV Melbourne (the site) are managed by<br />
Colonial First State Property Management Pty Ltd (trading as Colonial First State Global<br />
Asset Management, CFSGAM), as duly appointed agent <strong>of</strong> the owners <strong>of</strong> the site, <strong>Victoria</strong><br />
Square QV Investments Pty Ltd and Commonwealth Managed Investments Ltd pursuant to a<br />
Property Management Agreement dated 30 November 2010 (PMA).<br />
All parts <strong>of</strong> the Site are private property and the owners have the right to revoke an<br />
5 DECISION
individual’s entitlement to enter the Site and to request Police Officers to assist in removing<br />
persons from the Site should they not leave when asked. Under the PMA, the CFSGAM<br />
Centre Management team have effective control <strong>of</strong> the running <strong>of</strong> the Site (including QV<br />
Square and the laneways) and perform that function as agent for the owners.<br />
With regard to Protestors at QV Melbourne, we request the <strong>Victoria</strong> Police use its powers to<br />
remove them from the precinct where police consider this appropriate. We intend to revoke<br />
the entitlement to enter the Site <strong>of</strong> any individuals who cause disruption to the lawful operation<br />
<strong>of</strong> business within the Site and who refuse to leave the precinct when required by Centre<br />
Management.”<br />
12. Ms Fleming gave evidence that following the 20 May 2011 demonstration, she<br />
had informed <strong>Victoria</strong> Police at their meetings that QV Management and the<br />
owners wanted the site to be safe and did not want the retailers disrupted.<br />
She told the court that QV management deferred to <strong>Victoria</strong> Police in relation<br />
to the planning and “who, how and when to arrest”. She told the court that she<br />
was aware <strong>of</strong> the plan for Mr Appleford to make his announcement and when<br />
it was to occur as this issue was discussed in meetings with Melbourne<br />
Central management and the police because QV management were<br />
concerned about the times and duration <strong>of</strong> the demonstrations which were<br />
occurring on Friday evenings between 6-6.30 p.m. Ms Fleming was adamant<br />
that a time limit for the demonstration was not set in the meetings nor were<br />
possible criminal charges discussed, if arrests were to be made. She was also<br />
adamant (although later expressed reservations as to her recollection) that<br />
QV did not seek and obtain legal advice as to possible civil action they could<br />
take prior to 1 July. In relation to the S 173 agreement she described QV as;<br />
“an unusual place because it is a public place that is privately owned”. She<br />
noted that QV Square and the laneways are “public access space” and she<br />
had not thought it relevant to inform <strong>Victoria</strong> Police <strong>of</strong> the S 173 agreement<br />
prior to 1 July.<br />
13. Inspector Beattie gave evidence that there were a number <strong>of</strong> planning<br />
meetings in anticipation <strong>of</strong> the 1 July demonstration with QV management and<br />
Melbourne Central management. He recalled that at a meeting on 16 June the<br />
participants did discuss civil options that were available to the owners<br />
including “banning notices” and injunctions but it was left to them to obtain<br />
their own legal advice on that issue and they subsequently informed him that<br />
they would not pursue that avenue. He also told the court that on the night it<br />
6 DECISION
was left to QV Management as to if, and when, to request the protestors to<br />
leave. He confirmed that prior to 1 July, he had requested documentation from<br />
QV in order to satisfy himself that QV Management had the right to withdraw<br />
an individual’s right to be on the premises. Inspector Beattie agreed in cross<br />
examination that a 20 minute time frame for the demonstration was discussed<br />
in those meetings but it was not pre-determined.<br />
14 Senior Sergeant Falconer gave evidence that he took part in the planning<br />
meetings with Melbourne Central management and QV management after the<br />
demonstration on 20 May. He told the court that the police attended QV on 1<br />
July at the request <strong>of</strong> QV management to prevent a breach <strong>of</strong> the peace and<br />
potential damage to property. He also confirmed that it was planned that if<br />
arrests were to be made those identified as leaders <strong>of</strong> the demonstration<br />
would be targeted. He told the court that QV management informed him at a<br />
meeting on 2 June that they were “happy” for the demonstration to occur<br />
providing there was no interruption to the operation <strong>of</strong> businesses and<br />
providing the demonstration did not last too long. He told the court that Mr<br />
Allen, from Melbourne Central management suggested a time frame <strong>of</strong> 20<br />
minutes but that it was up to QV management on the night as to how long<br />
they were prepared to allow the demonstration to occur. He confirmed the<br />
evidence given by Inspector Beattie that the option <strong>of</strong> the shopping centres<br />
taking civil action was discussed at the meetings conducted prior to 1 July and<br />
that he had advised them that the police could only intervene if the protestors<br />
committed criminal <strong>of</strong>fences. He confirmed that <strong>Victoria</strong> Police obtained legal<br />
advice from the <strong>Victoria</strong>n Government Solicitors Office regarding the law <strong>of</strong><br />
trespass and beset and that he also researched the law and explored the<br />
police powers <strong>of</strong> arrest should those laws be breached. He gave evidence that<br />
at the meeting with the shopping centres on 29 June they informed him they<br />
had decided not to pursue civil action. He also told the court that he had no<br />
knowledge <strong>of</strong> the existence <strong>of</strong> the S 173 agreement between QV and the<br />
Melbourne City Council.<br />
The Demonstration<br />
15. The evidence indicates that prior to making their way to QV Square on Level<br />
2, many <strong>of</strong> the protestors gathered at the front <strong>of</strong> the State Library on<br />
Swanston St where a number <strong>of</strong> speeches were made. Sgt Nash gave<br />
7 DECISION
evidence that he distributed Notices to the protestors, as referred to above,<br />
including Ms Kenway, Mr Oakley and Mr Hassan. The protestors then went to<br />
Melbourne Central before attending QV at approximately 6.29 p.m. It appears<br />
from the police video footage that many <strong>of</strong> the protestors entered QV Square<br />
via the stairs and escalators on Level 1. Once in QV Square, the protestors<br />
formed solid lines, 3-4 deep in front <strong>of</strong> Max Brenner’s whilst the others “milled”<br />
in the Square between Max Brenner’s and the Marquee situated in the middle<br />
<strong>of</strong> the Square. On viewing the CCTV and the video recordings from Senior<br />
Constables McLaughlin, Campbell and Oakley, the following general<br />
observations can be made;<br />
when the protestors arrived at QV Square, there were customers both<br />
inside and outside Max Brenner’s on Red Cape Lane at the tables and<br />
chairs provided and there were approximately 15 police at the corner <strong>of</strong><br />
Max Brenner’s and Red Cape Lane;<br />
Members <strong>of</strong> the public are seen to move up and down Red Cape Lane<br />
passing between the police situated near Max Brenner’s and further<br />
down Red Cape Lane;<br />
At 6.28 p.m. a police line is formed across Red Cape Lane between<br />
Max Brenner’s and the “Grill’d” restaurant;<br />
Police members on that line prevent members <strong>of</strong> the public from<br />
proceeding down Red Cape Lane towards Swanston St;<br />
a solid police line is established across the front <strong>of</strong> Max Brenner’s<br />
inside the line <strong>of</strong> pillars facing the Square;<br />
protestors form solid lines (4 deep) in front <strong>of</strong> the police line outside<br />
Max Brenner’s facing the Square;<br />
by 6.32 p.m. a solid police line is observed at the bottom <strong>of</strong> Red Cape<br />
Lane near Swanston St;<br />
a loose line <strong>of</strong> police extends from the corner <strong>of</strong> Max Brenner’s across<br />
Red Cape Lane;<br />
a security guard is observed at the Red Cape Lane entrance to Max<br />
8 DECISION
Brenner’s;<br />
a number <strong>of</strong> customers are seen entering and leaving Max Brenner’s;<br />
a number <strong>of</strong> protestors gather in front <strong>of</strong> the police line across Red<br />
Cape Lane;<br />
a number <strong>of</strong> protestors are making speeches and chanting aided by the<br />
use <strong>of</strong> megaphones;<br />
Mr <strong>Anderson</strong> approaches the police line on Red Cape Lane;<br />
the police line and protestor lines immediately in front <strong>of</strong> Max Brenner’s<br />
appear to engage in pushing forward and backwards;<br />
a member <strong>of</strong> the public engages in argument with some <strong>of</strong> the<br />
protestors in the middle <strong>of</strong> QV Square;<br />
members <strong>of</strong> the public are seen moving through protestors in the<br />
middle <strong>of</strong> QV Square;<br />
POMT members move behind the police line in front <strong>of</strong> Max Brenner’s;<br />
members <strong>of</strong> the public who approach the police line across Red Cape<br />
Lane are directed to proceed to the north east side <strong>of</strong> QV Square and<br />
not down Red Cape Lane;<br />
Inspector Beattie is observed standing on a chair/table using a<br />
megaphone at approximately 6.43 p.m. to introduce Mr Appleford who<br />
proceeds to make an announcement;<br />
whilst the announcement is being made the protestors are chanting;<br />
Inspector Beattie makes a further announcement at approximately 6.48<br />
p.m. regarding the protestors trespassing and requesting them to leave<br />
whilst the chanting continues;<br />
Inspector Beattie makes further announcements at approximately 6.50<br />
p.m., 6.52 p.m. and 6.54 p.m. that the protestors are trespassing and<br />
are required to leave whilst the chanting continues;<br />
9 DECISION
POMT members file into QV Square and form a line in front <strong>of</strong> the<br />
protestors line at the front <strong>of</strong> Max Brenner’s and in doing so Mr<br />
<strong>Anderson</strong> is bumped out <strong>of</strong> the way;<br />
Senior Sergeant Falconer is observed approaching Ms Kenway;<br />
POMT members form arrest teams and proceed to arrest Ms Kenway,<br />
Mr Small, Mr Hassan and Mr Ridgewell;<br />
prior to and after the initial arrests various speeches are made by<br />
protestors on megaphones and repetitive chanting is heard;<br />
after the initial arrests Senior Sergeant Falconer is observed at<br />
approximately 6.58 p.m. walking part way along the line <strong>of</strong> protestors in<br />
front <strong>of</strong> Max Brenner’s;<br />
shortly thereafter, the police line in front <strong>of</strong> Max Brenner's push the line<br />
<strong>of</strong> protestors out towards the Marquee in QV Square and towards the<br />
Lonsdale Street exit;<br />
approximately 20-25 protestors are then observed to sit down in front <strong>of</strong><br />
“Della Nonna Ristorante” to the southern side <strong>of</strong> Max Brenner’s;<br />
Inspector Beattie makes two further announcements to that group to<br />
leave at approximately 7.17 p.m. and 7.19 p.m. and further arrests are<br />
then made;<br />
protestors are then observed moving down Artemis Lane towards<br />
Russell St.<br />
16. Mr Appleford gave evidence that once the protestors arrived at QV the police<br />
prevented access to Max Brenner's by “blocking” Red Cape Lane and forming<br />
a line in front <strong>of</strong> Max Brenner’s facing QV Square. He told the court that the<br />
decision to block the laneway was made by the police in consultation with QV<br />
management. In cross-examination, he agreed with the suggestion that it was<br />
the police action that prevented access by members <strong>of</strong> the public to Max<br />
Brenner’s but added that the public were impeded from entering the store by<br />
both the protestors and police. He also agreed that during the demonstration<br />
customers were inside Max Brenner’s, at the tables outside Max Brenner's in<br />
10 DECISION
Red Cape Lane and that he observed some customers leaving the shop via<br />
the door on Red Cape Lane.<br />
17. Ms Fleming told the court that as soon as the protestors arrived at QV the<br />
police formed a line in front <strong>of</strong> Max Brenner’s facing the Square and they also<br />
formed a line at the bottom <strong>of</strong> Red Cape Lane. She gave evidence that she<br />
observed protestors pushing backwards against the police line in front <strong>of</strong> Max<br />
Brenner’s and that the shop “closed” its doors for the duration <strong>of</strong> the<br />
demonstration although she observed customers inside the shop and at the<br />
tables outside on Red Cape Lane. She told the court that she was not aware<br />
that the police would form a line across Red Cape Lane near Swanston<br />
Street. She said that she was aware that they would be forming a line in front<br />
<strong>of</strong> Max Brenner’s as they had requested that the shop remove tables, chairs<br />
and barriers from that location. Ms Fleming told the court that it was her<br />
understanding that the purpose <strong>of</strong> the police line in front <strong>of</strong> Max Brenner's was<br />
to allow the protestors to go up to the line but not beyond it.<br />
18. Inspector Beattie gave evidence that he observed protestors pushing against<br />
the police line in front <strong>of</strong> Max Brenner's and therefore he directed that the<br />
police line be reinforced. In his opinion, the actions <strong>of</strong> the protestors did not<br />
allow Max Brenner’s to continue to operate as it was physically difficult for<br />
people to enter the shop because <strong>of</strong> the police lines in place which he<br />
established to stop the protestors “invasion” <strong>of</strong> the shop. He confirmed that<br />
he instructed Senior Sgt Falconer to approach Ms Kenway to ask her to<br />
request that the protestors leave QV. He also confirmed that he gave<br />
directions to the police to use force to move the line <strong>of</strong> protestors in front <strong>of</strong><br />
Max Brenner’s away, so they were not besetting the premises. He told the<br />
court that after the protestors decided to leave the “sit-in” they had established<br />
to the side <strong>of</strong> Max Brenner's they did attempt to return to Max Brenner’s but<br />
the police prevented them from doing so. He told the court that once the<br />
police had moved the protestors from QV Square it was “rehabilitated”.<br />
Inspector Beattie also gave evidence that the police action on the night was<br />
dependent on the behaviour <strong>of</strong> the protestors and the fact that the line <strong>of</strong><br />
protestors in front <strong>of</strong> Max Brenner's was pushing against the police line was<br />
the primary reason he gave instructions to arrest the protestors rather than the<br />
trespass issue as he considered their actions to be an insidious form <strong>of</strong><br />
11 DECISION
assault. He told the court that, but for that action by the protestors, he may<br />
have allowed the demonstration to continue longer.<br />
19. In cross-examination, Inspector Beattie told the court that it was the decision<br />
<strong>of</strong> QV management to request the protestors to leave. He told the court that<br />
the police decided to put a line in front <strong>of</strong> Max Brenner's to keep the protestors<br />
out and to stop it being “invaded”. He gave evidence that in his opinion, the<br />
police line in front <strong>of</strong> Max Brenner's was passive but the protestors were<br />
pushing back against it which required the police to reinforce the line to<br />
maintain their position. He agreed that the police decided to form a line<br />
across Red Cape Lane near Swanston Street for operational reasons.<br />
20. Senior Sergeant Falconer gave evidence that the initial police line in front <strong>of</strong><br />
Max Brenner's was two deep with the protestors line being four to five deep.<br />
He said that in order to stop the “surge” by the protestors he increased the<br />
police line to three deep to prevent the protestors breaking through the line to<br />
Max Brenner’s. He told the court that he observed approximately 20<br />
customers inside Max Brenner's during the demonstration and a few<br />
customers outside on Red Cape Lane. He gave evidence that he had<br />
previously requested Max Brenner's to have their own security so they could<br />
open and close their doors when required. He told the court that he made the<br />
decision to block Red Cape Lane at the Swanston Street end and agreed that<br />
it was “probable” that members <strong>of</strong> the public could not proceed up Red Cape<br />
Lane because <strong>of</strong> the police line established at that point. He told the court it<br />
would depend on the police on that line exercising their discretion to allow<br />
them to do so. In cross-examination, he agreed that the police did not stop<br />
people from entering Max Brenner's until after the protestors arrived in QV<br />
Square. He also agreed that members <strong>of</strong> the public did move through QV<br />
Square whilst the demonstration was occurring and that he did not receive<br />
any complaints that people were not able to access Max Brenner's. He told<br />
the court that QV management made the decision as to when they wanted the<br />
protestors to leave and that no time frame was set for that to occur. He said<br />
that the police only acted when the protestors refused to leave after being<br />
requested to do so.<br />
21. Mr Shrestha gave evidence that he arranged for an extra security guard to be<br />
on duty at both Melbourne Central and QV that night. He confirmed that on<br />
12 DECISION
police recommendations he arranged for some <strong>of</strong> the outdoor tables and<br />
chairs and barriers to be removed from the front <strong>of</strong> Max Brenner's. He told the<br />
court that he was prepared to shut and lock both entry and exit doors and that<br />
the security guards role was to screen customers coming into the shop in<br />
order to ensure the safety <strong>of</strong> his staff and customers. He gave evidence that<br />
he placed his security guard on the main door facing Red Cape Lane which<br />
was open prior to the protestors arriving but once they arrived it was closed<br />
and locked. He said that during the demonstration there were approximately<br />
10 to 15 customers inside the shop and some at tables outside the shop on<br />
Red Cape Lane, that new customers could enter, but it was left to the security<br />
guard’s discretion to let them, if he felt they were <strong>of</strong> no danger. He told the<br />
court that at the beginning <strong>of</strong> the demonstration three protestors entered the<br />
shop with one <strong>of</strong> them attempting to chain himself to a table but he was<br />
prevented from doing so and forcibly removed by the police. He recalled that<br />
a number <strong>of</strong> customers left the shop during the demonstration.<br />
22. In cross-examination, Mr Shrestha told the court that when he arrived at QV<br />
there was an existing police line in front <strong>of</strong> the shop and the police had<br />
blocked <strong>of</strong>f Red Cape Lane near Swanston Street. He agreed that in the<br />
statement he made to the police on 19 July 2011 he had said; “we locked the<br />
doors and told the customers if they wanted they could leave and the<br />
protestors arrived soon after”. In cross-examination, he also agreed that<br />
customers could enter or leave the shop if they wished if they were able to get<br />
past the police lines or through QV Square.<br />
23. All <strong>of</strong> the police witnesses who gave evidence and were involved on the police<br />
line in front <strong>of</strong> Max Brenner’s told the court that the protestors were pushing<br />
against them which required them to push back to maintain their line. SC<br />
Beaumont told the court that he observed protestors on the line “cow kicking”<br />
police members on the line and Leading Senior Constable Richards gave<br />
evidence that his toes were stood on and that his shins were kicked and he<br />
was elbowed to the stomach whilst on the police line.<br />
24. The CCTV and video evidence indicates that a number <strong>of</strong> the accused formed<br />
part <strong>of</strong> the protestors line in front <strong>of</strong> Max Brenner’s. Those depicted are; Mr<br />
Ryan, Mr Tymms, Mr Evans, Mr Crafti, Ms Bolton, Mr Monsalve-Tobon and<br />
Ms Farmer. Those observed using megaphones are; Ms Kenway, Mr<br />
13 DECISION
<strong>Anderson</strong>, Ms Javed, Ms Walsh, Mr Hassan, Mr Ridgewell, Mr Oakley and Ms<br />
Bolton. The repetitive chanting that occurred throughout the demonstration<br />
was; “Free Free Palestine”, “Out, Out, Israel Out”, “Max Brenner you can’t<br />
hide, you’re supporting genocide”, “Occupation No More, Israel is a puppet<br />
State”, “Israel Out, USA, How many kids have you killed today?”, and, after<br />
the POM team arrived in the Square; “This is not a Police State, We have the<br />
Right to Demonstrate”.<br />
25. Shortly after the protestors arrived in the Square, Ms Kenway is observed on<br />
the megaphone and heard to say; “What we are going to do now is spread<br />
right across so we need an even row <strong>of</strong> people right across in front <strong>of</strong> Max<br />
Brenner’s, because we want to shut this store down” and then, “So we need<br />
one line right across, right up to the edge <strong>of</strong> Grill’d. Okay, I don’t think people<br />
are getting the concept. There is sort <strong>of</strong> the bulk <strong>of</strong> people up this end. Let’s<br />
move, come down, come down, that’s it”. After there appears to be a<br />
strengthening <strong>of</strong> the police line, Ms Kenway is observed on a megaphone and<br />
heard to say; “Okay, we are going to stand here because the police are trying<br />
to move us on, and I think that we need to say that we are not going to move<br />
on tonight”. Ms Kenway is also observed and heard to say; “to everyone who<br />
is blockading the front <strong>of</strong> Max Brenner, you need to link your arms and stand<br />
firm, because behind you, there are lines <strong>of</strong> police which are mounting, and<br />
trying to drive us out from here. And I think we need to stand firm and defend<br />
our democratic right to make our voice heard in Australia today”. Mr <strong>Anderson</strong><br />
is also observed and heard to say; “We’ve been told police are arresting<br />
people” and, “We’re gonna stay here, we’re not moving on. We’re not gonna<br />
let the police move us on. We are having a non violent protest and they have<br />
no reason to push us. Do you understand?”. Other statements can also be<br />
heard which include; “We are not your targets, we are a non violent<br />
movement, and we would appreciate it if you would just settle down please<br />
and refrain from violence” and “we are here for a peaceful non violent<br />
demonstration. There’s absolutely no need to push anybody. We are here<br />
peacefully”.<br />
“No-Case” Submissions<br />
26. The test to be applied in a “no-case” submission is the same in a contested<br />
summary hearing as it is in a criminal trial. The High <strong>Court</strong> in May v<br />
14 DECISION
O’Sullivan 1 said;<br />
“When, at the close <strong>of</strong> the case for the prosecution, a submission is<br />
made that there is “no case to answer”, the question to be decided is not<br />
whether on the evidence as it stands the defendant ought to be convicted, but<br />
whether on the evidence as it stands he could lawfully be convicted. This is<br />
really a question <strong>of</strong> law”.<br />
27. In Doney v The Queen 2 the High <strong>Court</strong> held;<br />
“ if in a criminal trial there is evidence (even if tenuous or inherently<br />
vague) which can be taken into account by the jury and that evidence is<br />
capable <strong>of</strong> supporting a verdict <strong>of</strong> guilty, the matter must be left to the jury.<br />
The judge has no power to direct the jury to enter a verdict <strong>of</strong> not guilty on the<br />
ground that, in his view, a verdict <strong>of</strong> guilty would be unsafe or unsatisfactory”.<br />
28. In Attorney-General’s Reference (No.1 <strong>of</strong> 1983) 3 the Full <strong>Court</strong> <strong>of</strong> the<br />
1 (1955) 92 CLR 654 at 658.<br />
2 (1990) 171 CLR 207.<br />
Supreme <strong>Court</strong> said;<br />
“The question whether the Crown has excluded every reasonable<br />
hypothesis consistent with innocence is a question <strong>of</strong> fact for the jury and<br />
therefore, if the Crown has led evidence upon which the accused could be<br />
convicted, a trial judge should not rule that there is no case to answer or direct<br />
the jury to acquit simply because he thinks that there could be formulated a<br />
reasonable hypothesis consistent with the innocence <strong>of</strong> the accused which the<br />
Crown has failed to exclude. Similarly a trial judge should not rule that there<br />
is no case for the accused to answer because he has formed the view that, if<br />
the decision on the facts were his and not the jury’s, he would entertain a<br />
reasonable doubt as to the guilt <strong>of</strong> the accused. It is always a question for the<br />
jury whether a reasonable doubt exists as to the guilt <strong>of</strong> the accused and as<br />
Menzies, J. explained in Plomp’s Case, in a case based on circumstantial<br />
evidence, the necessity to exclude reasonable hypothesis consistent with<br />
innocence is no more than an application to that class <strong>of</strong> case <strong>of</strong> the<br />
requirement that the case be proved beyond reasonable doubt.<br />
Where the same tribunal is judge both <strong>of</strong> law and fact the tribunal may be<br />
15 DECISION
satisfied that there is a case for an accused to answer and yet, if the accused<br />
chooses not to call any evidence, refuse to convict on the evidence. That this<br />
is the correct logical analysis appears clearly from May v O’Sullivan. There is<br />
no distinction to be drawn between cases sought to be proved by<br />
circumstantial evidence and other cases”.<br />
29. In applying these principles, the court must determine on the facts <strong>of</strong> this case<br />
as found and the applicable law, whether at the completion <strong>of</strong> the prosecution<br />
case, it has proved beyond reasonable doubt each <strong>of</strong> the necessary elements<br />
<strong>of</strong> the <strong>of</strong>fences alleged to have been committed by each <strong>of</strong> the accused.<br />
Did the protestors actions constitute the <strong>of</strong>fence <strong>of</strong> wilfully and without<br />
lawful authority besets any premises contrary to S 52 (1A) <strong>of</strong> the Act?<br />
30. S 52 (1A) provides;<br />
Any person who together with others wilfully and without lawful authority besets any premises,<br />
whether public or private, for the purpose and with the effect <strong>of</strong> obstructing, hindering, or<br />
impeding by an assemblage <strong>of</strong> persons the exercise by any person <strong>of</strong> any lawful right to<br />
enter, use, or leave such premises shall be guilty <strong>of</strong> an <strong>of</strong>fence.<br />
31. All <strong>of</strong> the accused are charged with committing this <strong>of</strong>fence at QV on 1 July<br />
2011 from approximately 6.30 p.m. The prosecution are required to establish<br />
that;<br />
3 [1983] 2 VR 410 at 415-6.<br />
i. Max Brenner’s Chocolate Bar was beset;<br />
ii. each <strong>of</strong> the accused beset the shop with others;<br />
iii. that it was beset wilfully and without lawful authority;<br />
iv. that it was beset for the purpose and with the effect <strong>of</strong> obstructing,<br />
hindering or impeding by an assemblage <strong>of</strong> persons the exercise by<br />
any persons <strong>of</strong> a lawful right to enter, use or leave Max Brenner’s<br />
Chocolate Bar.<br />
16 DECISION
32. The word “beset” is not defined in the Act. The Concise Oxford Dictionary<br />
defines it to mean; “hem in, occupy, to make impassable”. The Australian<br />
Concise Oxford Dictionary defines it as; “attack or harass persistently,<br />
surround or hem in, cover around with”. The Oxford English Dictionary<br />
defines it as; “to set about, surround, to set or station around, to surround with<br />
hostile intent, to surround, encircle, cover round, to set upon or assail on all<br />
sides, to invest or surround, to besiege, to occupy so as to prevent anyone<br />
from passing, to circumvent, entrap, catch, to encompass, surround, assail,<br />
possesses detrimentally”. The Macquarie Dictionary defines it as; “to attack on<br />
all sides, assail, harass, to surround, hem in”.<br />
33. The parties were not able to provide the court with any reported criminal<br />
4 [1986] VR 383.<br />
decisions involving the <strong>of</strong>fence <strong>of</strong> beset premises. There are however,<br />
decisions involving the tort <strong>of</strong> Nuisance where the word “besetting” has been<br />
considered in an industrial context. In Dollar Sweets Pty Ltd v Federated<br />
Confectioners Association <strong>of</strong> Australia 4 , employees <strong>of</strong> the plaintiff company<br />
and <strong>of</strong>ficials from the defendant union formed and enforced a picket outside<br />
the plaintiff’s factory. Their actions obstructed the passage <strong>of</strong> vehicles to the<br />
plaintiff’s premises which prevented a truck driver from Rowntree Hoadley<br />
from delivering 2 tonnes <strong>of</strong> material to the company. The plaintiff applied for<br />
and was granted an interlocutory injunction against the nine named<br />
defendants. Murphy J said; “I am also satisfied that the acts <strong>of</strong> all the<br />
defendants which now have been repeatedly performed over many months<br />
cannot be considered to be a lawful form <strong>of</strong> picketing, but amount to a<br />
nuisance involving, as they do, obstruction, harassment and besetting. The<br />
form <strong>of</strong> picketing which the evidence discloses here is not peaceful but<br />
amounts clearly to interference with the rights <strong>of</strong> a person wishing to enter or<br />
at least to proceed and make deliveries or take supplies to or from the<br />
plaintiff's premises. In fact, so <strong>of</strong>ten as they are able, the defendants<br />
physically prevent persons and vehicles from approaching and entering the<br />
17 DECISION
plaintiff's premises. This, as I have said, is done by obstruction, threats and<br />
besetting, the latter meaning, in this context, to set about or surround with<br />
hostile intent. Besetting is appropriately a term applied to the occupation <strong>of</strong> a<br />
roadway or passageway through which persons wish to travel, so as to cause<br />
those persons to hesitate through fear to proceed or, if they do proceed, to do<br />
so only with fear for their own safety or the safety <strong>of</strong> their property”.<br />
34. The decision <strong>of</strong> Murphy J was referred to by the Full <strong>Court</strong> <strong>of</strong> the Supreme<br />
<strong>Court</strong> in Animal Liberation (Vic) Inc and Anor v Gasser & Anor 5 . In this case,<br />
the appellants and others demonstrated outside the respondents circus in<br />
order to dissuade members <strong>of</strong> the public from attending the performances <strong>of</strong><br />
that circus. It was alleged that they were hostile and argumentative and they<br />
obstructed patrons by forcing them to walk the gauntlet <strong>of</strong> shouting<br />
demonstrators who were waving placards so as to obstruct their entrance to<br />
the ticket <strong>of</strong>fice. The trial judge ordered an interlocutory injunction which<br />
included restraining the demonstrators from conducting demonstrations. The<br />
appellants argued in the Full <strong>Court</strong> that “picketing” did not become a nuisance<br />
unless there is a besetting, and that there is not a besetting unless there is a<br />
surrounding with hostile intent. The Full court said; 6 “We think it clear that a<br />
besetting is only one <strong>of</strong> the ingredients that may make a picketing into a<br />
nuisance, and that a besetting may include, for example, lining up so as to<br />
compel would-be patrons to “walk the gauntlet” <strong>of</strong> shouting picketers, so as to<br />
cause such patrons to hesitate through fear to proceed or, if they do proceed,<br />
to do so only with fear for their safety or fear <strong>of</strong> harmful effects upon the<br />
accompanying children. A besetting includes a surrounding with hostile<br />
demeanour so as to put in fear <strong>of</strong> safety”. The Full <strong>Court</strong> held that the<br />
evidence justified interlocutory injunctions.<br />
35. There are a number <strong>of</strong> English authorities which have considered the meaning<br />
5 [1991] 1 VR 51.<br />
6 Page 58.<br />
<strong>of</strong> “watching and besetting” premises but they have also arisen in the context<br />
18 DECISION
<strong>of</strong> industrial picket lines. The only case found which arose in the criminal<br />
context is DPP v Fidler 7 which involved two defendants who were opposed to<br />
abortion, standing outside a clinic with the intent to dissuade women attending<br />
the clinic from having their pregnancies terminated. They were charged with<br />
“watching and besetting” the clinic contrary to S 7 <strong>of</strong> the Conspiracy and<br />
Protection <strong>of</strong> Property Act 1875. S 7 made it an <strong>of</strong>fence to compel others to<br />
“watch or beset” places or businesses. The court held that the words “with a<br />
view to compel” meant that an essential ingredient <strong>of</strong> the <strong>of</strong>fence was<br />
compulsion and not mere persuasion and that in the absence <strong>of</strong> evidence that<br />
anyone was prevented from having an abortion meant that no <strong>of</strong>fence was<br />
committed. The court also noted that the means employed to implement the<br />
purpose were confined to verbal abuse and no physical force was used or<br />
threatened. On the basis that “watching and besetting” occurred for the<br />
purpose <strong>of</strong> persuasion as opposed to coercion meant that a breach <strong>of</strong> the<br />
criminal law did not occur.<br />
36. In the present case, only Mr Ryan, Mr Tymms, Mr Evans, Mr Crafti, Ms Bolton,<br />
Mr Monsalve-Tobon and Ms Farmer are seen on CCTV or police video to form<br />
part <strong>of</strong> the protest line at the front <strong>of</strong> Max Brenner’s. The other accused are<br />
observed to be at various locations in the middle <strong>of</strong> QV Square during the<br />
demonstration. It is not contended by the prosecution that the “sit in” to the<br />
side <strong>of</strong> Max Brenner’s near the end <strong>of</strong> the demonstration would constitute<br />
besetting <strong>of</strong> the premises. For the reasons that follow, it is not necessary for<br />
me to determine whether the actions <strong>of</strong> the protestors not involved in the line<br />
can be considered as “acting in concert” with those who formed part <strong>of</strong> it.<br />
37. It is not in dispute that at the time the protestors arrived in QV Square the<br />
7 [1992] 1 WLR 91.<br />
police were forming a line across the front <strong>of</strong> Max Brenner’s extending across<br />
Red Cape Lane to the “Grill’d” restaurant in order to, according to Inspector<br />
Beattie, “stop the protestors invasion <strong>of</strong> the shop”. Within a few minutes <strong>of</strong><br />
19 DECISION
their arrival the police also formed a solid line across the bottom <strong>of</strong> Red Cape<br />
Lane near Swanston St. It is also not in dispute that the police decided to re-<br />
inforce their line at the front <strong>of</strong> Max Brenner’s because <strong>of</strong> the actions <strong>of</strong> the<br />
protest line in pushing backwards against them for intermittent periods <strong>of</strong> time.<br />
The CCTV footage indicates that it was the police line across Red Cape Lane<br />
near Max Brenner’s that prevented members <strong>of</strong> the public from proceeding<br />
down the Lane towards Swanston St or into Max Brenner’s, if they so chose.<br />
Although the protest line extended across Red Cape Lane, there is no<br />
evidence that the protest line prevented anyone from proceeding past it. The<br />
CCTV footage also indicates that once the police formed a line across the<br />
bottom <strong>of</strong> Red Cape Lane, the only movement <strong>of</strong> members <strong>of</strong> the public were<br />
those seen leaving Max Brenner’s or other shops in the Lane. Members <strong>of</strong> the<br />
public were prevented by that police line from proceeding up Red Cape Lane<br />
towards Max Brenner’s and QV Square.<br />
38. The CCTV footage also indicates that members <strong>of</strong> the public moved freely<br />
through the protestors in QV Square and one gentleman also engaged in<br />
debate with a number <strong>of</strong> the protestors. In my opinion, it can not be said that it<br />
was the actions <strong>of</strong> the protestors that caused any obstruction, hindering or<br />
impediment to members <strong>of</strong> the public from entering Max Brenner’s, if they<br />
chose to do so. In reality, and notwithstanding Ms Kenway’s message to the<br />
protestors who were “blockading” the store “because we want to shut this<br />
store down”, it was the establishment <strong>of</strong> the police lines at the front <strong>of</strong> Max<br />
Brenner’s extending across Red Cape Lane and at the other end <strong>of</strong> Red Cape<br />
Lane that caused the obstruction, hindrance and impediment to members <strong>of</strong><br />
the public who may have wished to exercise their lawful right to enter or use<br />
the premises.<br />
39. Furthermore, as depicted on the CCTV footage, customers remained inside<br />
and outside Max Brenner’s while the demonstration occurred. Apart from what<br />
appeared to be a robust and vigorous debate with the gentleman referred to,<br />
20 DECISION
there is no evidence <strong>of</strong> any “hostile intent” by any <strong>of</strong> the protestors towards<br />
members <strong>of</strong> the public in QV Square or at the outside tables at Max Brenner’s.<br />
The protestors did not prevent anyone from leaving the shop and there were a<br />
number <strong>of</strong> customers who left the shop and proceeded down Red Cape Lane<br />
during the protest without any interference by the protestors. The evidence <strong>of</strong><br />
Mr Shrestha was to the effect that once the protestors arrived the doors were<br />
shut and locked and that it was left to their security guard as to whether he<br />
would allow customers to enter.<br />
40. In these circumstances, the charges against all accused <strong>of</strong> besetting the<br />
premises is not made out. They did not surround the premises with hostile<br />
intent or demeanour nor did their actions obstruct, hinder or impede any<br />
member <strong>of</strong> the public who wished to enter, use or leave Max Brenner’s<br />
Chocolate Bar. Therefore, I uphold the no-case submissions in relation to this<br />
charge and will dismiss the charge laid under S 52 (1A) against each<br />
accused.<br />
Did the accused wilfully trespass in a “public place” and neglect or<br />
refuse to leave after being warned to do so by the owner, occupier or a<br />
person authorised by or on behalf <strong>of</strong> the owner or occupier contrary to S<br />
9 (1)(d) <strong>of</strong> the Act?<br />
41. The relevant statutory provisions is;<br />
S 9 (1) Any person who—<br />
(d) wilfully trespasses in any public place other than a Scheduled public place and<br />
neglects or refuses to leave that place after being warned to do so by the owner occupier or a<br />
person authorized by or on behalf <strong>of</strong> the owner or occupier;<br />
shall be guilty <strong>of</strong> an <strong>of</strong>fence.<br />
(1A) In any proceedings for an <strong>of</strong>fence against subsection (1) the statement on oath <strong>of</strong> any<br />
person that he is or was at any stated time the owner or occupier <strong>of</strong> any place or a person<br />
21 DECISION
authorized by or on behalf <strong>of</strong> the owner or occupier there<strong>of</strong> shall be evidence until the contrary<br />
is proved by or on behalf <strong>of</strong> the accused that such person is or was the owner or occupier <strong>of</strong><br />
that place or a person authorized by or on behalf <strong>of</strong> the owner or occupier there<strong>of</strong> (as the case<br />
requires).<br />
(1B) A person may commit an <strong>of</strong>fence against paragraph (d), (e), (f) or (g) <strong>of</strong> subsection<br />
(1) even though he or she did not intend to take possession <strong>of</strong> the place.<br />
(2) For the purposes <strong>of</strong> section 86 <strong>of</strong> the Sentencing Act 1991 the cost <strong>of</strong> repairing or<br />
making good anything spoiled or damaged in contravention <strong>of</strong> this section shall be deemed to<br />
be loss or damage suffered in relation thereto.<br />
(3) Nothing contained in this section shall extend to any case where the person <strong>of</strong>fending<br />
acted under a fair and reasonable supposition that he had a right to do the act complained <strong>of</strong><br />
or to any trespass (not being wilful and malicious) committed in hunting or the pursuit <strong>of</strong> game.<br />
42. S 3 defines “public place” to include and apply to, relevant to this matter;<br />
(a) any public highway road street bridge footway footpath court alley passage or<br />
thoroughfare notwithstanding that it may be formed on private property;<br />
(o) any open place to which the public whether upon or without payment for admittance<br />
have or are permitted to have access; or<br />
(p) any public place within the meaning <strong>of</strong> the words "public place" whether by virtue <strong>of</strong><br />
this Act or otherwise.<br />
43. Schedule 1 lists the Scheduled public places as:<br />
SCHEDULED PUBLIC PLACES<br />
1. Land used for the purposes <strong>of</strong> a Government school within the meaning <strong>of</strong> the<br />
Education and Training Reform Act 2006.<br />
2. Premises or place where a children's service within the meaning <strong>of</strong> the Children's<br />
Services Act 1996 operates in respect <strong>of</strong> which the Secretary within the meaning <strong>of</strong><br />
22 DECISION
that Act provides grants, payments, subsidies or other financial assistance.<br />
3. Premises that are a residential service, residential institution or residential treatment<br />
facility within the meaning <strong>of</strong> the Disability Act 2006.<br />
4. Premises that are an approved mental health service within the meaning <strong>of</strong> the<br />
Mental Health Act 1986.<br />
5. Land held or managed by a cemetery trust <strong>of</strong> a public cemetery to which the<br />
Cemeteries and Crematoria Act 2003 applies.<br />
6. Premises or place where an education and care service within the meaning <strong>of</strong> the<br />
Education and Care Services National Law (<strong>Victoria</strong>) operates in respect <strong>of</strong> which the<br />
Regulatory Authority within the meaning <strong>of</strong> that Law provides grants, payments,<br />
subsidies or other financial assistance.<br />
44. All <strong>of</strong> the accused are charged with contravening S 9(1)(d) <strong>of</strong> the Act. The<br />
prosecution are required to prove that;<br />
(i) each <strong>of</strong> the accused trespassed in any place other than a scheduled<br />
public place;<br />
(ii) each <strong>of</strong> the accused did so wilfully;<br />
(iii) each <strong>of</strong> the accused was warned to leave the QV site by the owner/<br />
occupier or a person authorised by or on behalf <strong>of</strong> the owner or<br />
occupier;<br />
(iv) each <strong>of</strong> the accused neglected or refused to leave after being so<br />
warned.<br />
45. In support <strong>of</strong> the charges the prosecution rely on the evidence given by;<br />
Ms Fleming; that the property including the Square and laneways are<br />
private property; (although she described it as “an unusual place<br />
23 DECISION
ecause it is a public place that is privately owned”);<br />
Ms Fleming; that the S 173 Agreement provides that QV has the<br />
control, care and management <strong>of</strong> the public areas which includes the<br />
Square and laneways;<br />
Ms Fleming; that in her position as General Manager <strong>of</strong> QV<br />
Management, she had authority from the owners to manage the site<br />
and to remove people from the site who were disruptive or threatening<br />
the business <strong>of</strong> the retail tenants;<br />
Ms Fleming; that she gave authority to the <strong>Victoria</strong> Police in her letter to<br />
Inspector Beattie dated 1 July to remove protestors if they were<br />
requested to leave the site and did not do so;<br />
Mr Appleford, Inspector Beattie, Senior Sgt Falconer and Ms Fleming<br />
as to the placing and contents <strong>of</strong> the Conditions <strong>of</strong> Entry signage<br />
placed in and around QV and the contents <strong>of</strong> and announcements<br />
made by Mr Appleford, Inspector Beattie and Senior Sgt Falconer to<br />
the protestors at various times during the demonstration that they were<br />
trespassers and were required to leave;<br />
The video footage to the effect that both Ms Kenway and Mr <strong>Anderson</strong><br />
were aware <strong>of</strong> the requests made for the protestors to leave the site by<br />
informing the protestors on megaphones that; “the police are trying to<br />
move us on” and “We’re gonna stay here, we’re not moving on. We’re<br />
not gonna let the police move us on”; and<br />
Sgt Nash, concerning the distribution <strong>of</strong> the Notice from Inspector<br />
Beattie to a number <strong>of</strong> protestors, including; Ms Kenway, Mr Oakley<br />
and Mr Hassan outside the State Library prior to the demonstration at<br />
QV about what behaviour would not be permitted on the property.<br />
46. QV Square and the laneways on the site are subject to a covenant between<br />
24 DECISION
the owners <strong>of</strong> the property and Melbourne City Council pursuant to S 173 <strong>of</strong><br />
the Planning and Environment Act 1987. S 173 <strong>of</strong> the Act provides that;<br />
(1) A responsible authority may enter into an agreement with an owner <strong>of</strong> land in the area<br />
covered by a planning scheme for which it is a responsible authority.<br />
(2) A responsible authority may enter into the agreement on its own behalf or jointly with<br />
any other person or body.<br />
47. S 174 <strong>of</strong> the Act provides that;<br />
(1) An agreement must be under seal and must bind the owner to the covenants specified in<br />
the agreement.<br />
The agreement made between the owners <strong>of</strong> QV and the Melbourne City<br />
Council is registered on the Title pursuant to the Transfer <strong>of</strong> Land Act 1958.<br />
For the purposes <strong>of</strong> these proceedings, the relevant provisions <strong>of</strong> the<br />
agreement are;<br />
5.1 QV must keep:<br />
(a) the Lanes open to the public 24 hours a day and 7 days a week in a<br />
manner which is reasonably analogous to Comparable Lanes; and<br />
(b) the QV Square open to the public 24 hours a day and 7 days a<br />
week in a manner which is reasonably analogous to Comparable<br />
Squares.<br />
5.4 (a) Subject to the rights <strong>of</strong> the Council under this agreement and the<br />
obligations <strong>of</strong> QV under this agreement, QV has the control, care and<br />
management <strong>of</strong> the Public areas including all aspects <strong>of</strong> traffic.<br />
(b) Subject to QV complying with its obligations under this agreement,<br />
the Council does not object to QV temporarily closing or interfering with<br />
public pedestrian traffic to Public Areas where the closure or<br />
25 DECISION
interference is reasonably required due to any works, alterations or<br />
other activities required to be carried out by QV in accordance with this<br />
agreement.<br />
48. In my opinion, on the basis <strong>of</strong> this agreement, QV Square and the laneways<br />
fall within the definition <strong>of</strong> “public place” in S 3 <strong>of</strong> the Summary Offences Act<br />
as members <strong>of</strong> the public have access as <strong>of</strong> right 24 hours per day, 7 days a<br />
week subject to the limited exceptions in 5.4 (b). It is therefore necessary to<br />
consider the rights and obligations <strong>of</strong> members <strong>of</strong> the public who wish to<br />
access QV Square and the owners/occupiers <strong>of</strong> the QV site.<br />
49. S 9 (1) imposes different trespass <strong>of</strong>fences which distinguish between private<br />
places, Scheduled public places (as listed in Schedule 1) and public places.<br />
50. Prior to an amendment in 1997, S 9 (1)(d) referred to “place” with the<br />
amendment confining its application to “public places” other than a Scheduled<br />
public place. The other trespass categories are contained in (1)(e), (1)(f) and<br />
(1)(g), with (1)(g) applicable to all places (whether private or public) and (1)(e)<br />
and (1)(f) only applying to private places and Scheduled public places.<br />
Furthermore, S 9 distinguishes between situations where the owner/occupier<br />
must give authority (express or implied) for a person to enter, (sub section(e)),<br />
and public places, (sub section (d)), where authority to enter is not required<br />
and accordingly the owner/occupier cannot refuse or prohibit entry.<br />
51. In my opinion, the owners <strong>of</strong> QV and therefore QV management, by virtue <strong>of</strong><br />
the Square and laneways being subject to the S 173 Planning and<br />
Environment Act agreement and therefore a “public place” by virtue <strong>of</strong> S 3 <strong>of</strong><br />
the Summary Offences Act, did not have the legal authority to apply<br />
conditions on members <strong>of</strong> the public who wished to enter QV Square or the<br />
laneways on the site.<br />
52. In order to contravene S 9 (1)(d), the accused must be categorised as wilful<br />
trespassers and they must be found to have neglected or refused to leave<br />
26 DECISION
after being warned by the appropriate person to do so. 8 The prosecution<br />
submitted that the accused entered QV “without lawful excuse” or did so<br />
“wilfully”, or without a legitimate purpose and refused to leave after being<br />
requested to do so by Mr Appleford, on behalf <strong>of</strong> the owners/occupiers <strong>of</strong> QV.<br />
53. The accused jointly submitted that “wilful trespass” should be interpreted to<br />
mean entering or being in a public place, with the intention to commit a<br />
criminal <strong>of</strong>fence. In support <strong>of</strong> this submission, the accused relied on the<br />
decision <strong>of</strong> Ormiston J in Bergin v Brown. 9 In that case, the applicant was<br />
charged with committing an <strong>of</strong>fence pursuant to S 9 (1)(c) <strong>of</strong> the Summary<br />
Offences Act 1966 in that he “wilfully damaged property”, being a car. The<br />
court was required to determine the proper meaning <strong>of</strong> the word “wilfully”.<br />
After reviewing numerous decisions His Honour held that; “to satisfy the test<br />
<strong>of</strong> “wilfully” damaging property one must show either direct intention to cause<br />
damage or recklessness on the part <strong>of</strong> the accused as to the consequences <strong>of</strong><br />
his acts”.<br />
54. The accused submitted that in the context <strong>of</strong> this case, wilful trespass must<br />
mean something more than entering QV without permission <strong>of</strong> the<br />
owners/occupiers or in contravention <strong>of</strong> the terms set by them on the basis<br />
that they cannot limit entry by virtue <strong>of</strong> QV Square being a “public place”.<br />
55. The accused submitted that the demand to leave QV Square by Mr Appleford<br />
was also not capable <strong>of</strong> transforming them from being members <strong>of</strong> the public<br />
with a lawful right to be there to being wilful trespassers on the basis that QV<br />
management does not have authority to request members <strong>of</strong> the public to<br />
leave a “public place” unless they are wilful trespassers. It was submitted that<br />
the announcement by Mr Appleford that the owners/occupiers <strong>of</strong> QV no longer<br />
gave permission for the accused to remain in QV Square because <strong>of</strong> their<br />
expression <strong>of</strong> political opinion cannot render them wilful trespassers as to<br />
8<br />
See Lewis v Hollowood Unreported Ormiston J 3 October 1988 and Latrobe University v Robinson & Pola<br />
[1972] VR 883.<br />
9<br />
[1990] VR 888.<br />
27 DECISION
interpret S 9 (1)(d) as having that purpose and effect would impermissibly limit<br />
their right to “freedom <strong>of</strong> expression” and the right to “peaceful assembly”<br />
which are protected by the Charter <strong>of</strong> Human Rights and Responsibilities Act<br />
2006.<br />
56. S 15 <strong>of</strong> the Charter <strong>of</strong> Human Rights and Responsibilities Act 2006<br />
provides:<br />
Freedom <strong>of</strong> Expression<br />
(1) Every person has the right to hold an opinion without interference.<br />
(2) Every person has the right to freedom <strong>of</strong> expression which includes the freedom to seek,<br />
receive and impart information and ideas <strong>of</strong> all kinds, whether within or outside <strong>Victoria</strong> and<br />
whether –<br />
(a) orally; or<br />
(b) in writing; or<br />
(c) in print; or<br />
(d) by way <strong>of</strong> art; or<br />
(e) in another medium chosen by him or her.<br />
(3) special duties and responsibilities are attached to the right <strong>of</strong> freedom <strong>of</strong> expression and<br />
the right may be subject to lawful restrictions reasonably necessary –<br />
(a) to respect the rights and reputation <strong>of</strong> other persons; or<br />
(b) for the protection <strong>of</strong> national security, public order, public health or public morality.<br />
57. S 16 <strong>of</strong> the Charter provides:<br />
Peaceful Assembly and freedom <strong>of</strong> association<br />
(1) Every person has the right <strong>of</strong> peaceful assembly.<br />
28 DECISION
(2) Every person has the right to freedom <strong>of</strong> association with the others, including the right to<br />
form and join trade unions.<br />
58. S 7 <strong>of</strong> the Charter provides:<br />
Human rights – what they are and when they may be limited<br />
(1) This Part sets out the human rights that Parliament specifically seeks to protect and<br />
promote.<br />
(2) A human right may be subject under law only to such reasonable limits as can be<br />
demonstrably justified in a free and democratic society based on human dignity, equality and<br />
freedom, and taking into account all relevant factors including –<br />
(a) the nature <strong>of</strong> the right; and<br />
(b) the importance <strong>of</strong> the purpose <strong>of</strong> the limitation; and<br />
(c) the nature and extent <strong>of</strong> the limitation; and<br />
(d) the relationship between the limitation and its purpose; and<br />
(e) any less restrictive means reasonably available to achieve the purpose that the<br />
limitation seeks to achieve.<br />
(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater<br />
extent than is provided for in this Charter) or destroy the human rights <strong>of</strong> any person.<br />
59. S 32 <strong>of</strong> the Charter provides:<br />
Interpretation<br />
(1) So far as it is possible to do so consistently with their purpose, all statutory provisions<br />
must be interpreted in a way that is compatible with human rights.<br />
(2) International law and the judgments <strong>of</strong> domestic, foreign and international courts and<br />
tribunals relevant to a human right may be considered in interpreting a statutory provision.<br />
29 DECISION
(3) This section does not affect the validity <strong>of</strong> –<br />
(a) an Act or provision <strong>of</strong> an Act that is incompatible with a human right; or<br />
(b) a subordinate instrument or provision <strong>of</strong> a subordinate instrument that is<br />
incompatible with a human right and is empowered to be so by the Act under which it<br />
is made.<br />
60. In the Second Reading Speech when introducing the bill, the Attorney-<br />
General, Mr Hulls said; 10<br />
“Importantly, the Charter recognizes that with rights come responsibilities, and<br />
that everyone in the community has a responsibility to respect the human<br />
rights <strong>of</strong> others. The bill explicitly states that nothing in the Charter gives a<br />
person, entity or public authority a right to limit or destroy the human rights <strong>of</strong><br />
any person. In other words, nothing in the Charter may be interpreted as<br />
giving any group or person any right to engage in any activity aimed at<br />
destroying any <strong>of</strong> the rights recognized by the Charter or aimed at limiting<br />
them to a greater extent than is provided for in the Charter. Human rights<br />
cannot be used as a pretext to violate the rights <strong>of</strong> others. For this reason, the<br />
bill provides that rights should not generally be seen as absolute but must be<br />
balanced against each other and against other competing public interests”.<br />
61. In relying on the application <strong>of</strong> the Charter, the accused referred the court to<br />
the decision <strong>of</strong> the <strong>Court</strong> <strong>of</strong> Appeal in Noone (Director <strong>of</strong> Consumer Affairs<br />
<strong>Victoria</strong>) v Operation Smile (Australia) Inc & <strong>Ors</strong> 11 , which referred to the High<br />
<strong>Court</strong> decision in Momcilovic v The Queen 12 , where the effect <strong>of</strong> S 32 (1) and<br />
S 7 (2) <strong>of</strong> the Charter was discussed. Nettle JA held, that given that there was<br />
no majority view expressed by the High <strong>Court</strong> it was appropriate to follow the<br />
view <strong>of</strong> the <strong>Court</strong> <strong>of</strong> Appeal in R v Momcilovic 13 , that is; “that S 7 (2) is to be<br />
10<br />
4 May 2006. Legislative Assembly. Page 1289.<br />
11<br />
[2012] VSCA 91.<br />
12<br />
[2011] HCA 34.<br />
13<br />
[2010] VSCA 50.<br />
30 DECISION
considered only after the statutory provision in question has been interpreted<br />
in accordance with S 32 (1)”. 14 The approach to be adopted is:<br />
Step 1: Ascertain the meaning <strong>of</strong> the relevant provision by applying S 32 (1) <strong>of</strong><br />
the Charter in conjunction with common law principles <strong>of</strong> statutory<br />
interpretation and the Interpretation <strong>of</strong> Legislation Act 1984 (Vic);<br />
Step 2: Consider whether, so interpreted, the relevant provision breaches a<br />
human right protected by the Charter;<br />
Step 3: If so, apply S 7 (2) <strong>of</strong> the Charter to determine whether the limit<br />
imposed on the right is justified 15 .<br />
62. The accused submitted that it would not be appropriate to interpret S 9 (1)(d)<br />
in such a way so as to allow the owner/occupier <strong>of</strong> a “public place” the<br />
authority to revoke the licence <strong>of</strong> a person to be in that place because <strong>of</strong> an<br />
expression <strong>of</strong> political opinion that is at odds with that <strong>of</strong> the owner/occupier.<br />
To do so, it was submitted, would not be compatible with human rights. In<br />
support <strong>of</strong> their submission, the accused referred the court to English cases<br />
which discussed the fundamental importance in a democracy <strong>of</strong> “freedom <strong>of</strong><br />
expression”. 16 In Hammond’s case, Lord Justice May referred to what the<br />
European <strong>Court</strong> <strong>of</strong> Human Rights said in Sunday Times v United Kingdom<br />
(No 2) 17 ;<br />
“Freedom <strong>of</strong> expression constitutes one <strong>of</strong> the essential foundations <strong>of</strong> a<br />
democratic society subject to paragraph (2) <strong>of</strong> Article 10. 18 It is applicable not<br />
only to information or ideas that are favourably received or regarded as<br />
in<strong>of</strong>fensive, or as a matter <strong>of</strong> indifference, but also to those that <strong>of</strong>fend, shock<br />
or disturb. Freedom <strong>of</strong> expression as enshrined in Article 10 is subject to a<br />
number <strong>of</strong> exceptions which, however, must be narrowly interpreted and the<br />
14<br />
Para 142.<br />
15<br />
Para 35.<br />
16<br />
Hammond v DPP [2004] EWHC 69, Redmond-Bate v DPP [1999] EWHC 732.<br />
17<br />
[1992] 14 EHRR 123.<br />
18<br />
Which is similar to S 15 <strong>of</strong> the <strong>Victoria</strong>n Charter.<br />
31 DECISION
necessity for any restrictions must be convincingly established”.<br />
In Redmond-Bate, Lord Justice Sedley, with whom Mr Justice Collins agreed,<br />
said; 19 “free speech includes not only the in<strong>of</strong>fensive but the irritating, the<br />
contentious, the eccentric, the heretical, the unwelcome and the provocative<br />
provided it does not tend to provoke violence. Freedom only to speak<br />
in<strong>of</strong>fensively is not worth having. What Speakers’ Corner (where the law<br />
applies as fully as anywhere else) demonstrates is the tolerance which is both<br />
extended by the law to opinion <strong>of</strong> every kind expected by the law in the<br />
conduct <strong>of</strong> those who disagree, even strongly, with what they hear”.<br />
63. The court was also referred to a decision <strong>of</strong> Mr Justice Harper In Ferguson v<br />
LSC Walkley & Constable Pearson 20 . In that case, Mr Justice Harper was<br />
required to decide the test to be applied when determining whether words<br />
were insulting pursuant to S 7 (1) <strong>of</strong> the Summary Offences Act 1966. He<br />
said; “There is, with respect much to be said for an approach which,<br />
consistently with the will <strong>of</strong> Parliament, declines to impose the sanctions <strong>of</strong> the<br />
criminal law on behaviour that is not properly categorised as criminal, and<br />
which seeks to avoid unnecessary limits on the right to freedom <strong>of</strong> speech”.<br />
He also said; 21 “As Pr<strong>of</strong>essors Bronitt and McSherry point out, the Summary<br />
Offences Act has the potential to be used as an instrument <strong>of</strong> oppression -<br />
whereas, properly employed, it should protect minorities as well as members<br />
<strong>of</strong> the majority; and in the former instance afford that protection to those who,<br />
because <strong>of</strong> their vulnerability, need it more than others. It is the duty <strong>of</strong> the<br />
police and the courts to ensure that the Act is given its proper role”.<br />
64. I do not accept the prosecutions submission that the accused entered QV<br />
19<br />
Para 20.<br />
20<br />
[2008] VSC 7 at para 29.<br />
21<br />
At para 37.<br />
Square without lawful excuse, wilfully or without a legitimate purpose. They<br />
entered for the purpose <strong>of</strong> conducting a “political demonstration”. As I have<br />
already found, they had a lawful right to enter QV Square. There is no<br />
32 DECISION
evidence to suggest that they had criminal intent or were reckless as to the<br />
consequences <strong>of</strong> their acts whether it be by causing criminal damage to<br />
property, causing a significant breach <strong>of</strong> the peace or a threat to public order.<br />
The evidence indicates that the demonstration was; noisy; consisted <strong>of</strong><br />
virtually non stop politically based chanting and speeches; the displaying <strong>of</strong><br />
banners; and, involved some intermittent physical interaction between the<br />
protestors line and police line immediately in front <strong>of</strong> Max Brenner’s, <strong>of</strong><br />
unknown origin. The presence <strong>of</strong> the protestors in QV Square for the purpose<br />
<strong>of</strong> conducting a political demonstration, or “peaceful protest”, as it was<br />
referred to in some <strong>of</strong> the speeches made, does not, in my opinion, cause the<br />
protestors to be classified as wilful trespassers. The purpose and conduct <strong>of</strong><br />
the demonstration does not render them as wilful trespassers. The protestors<br />
had a lawful right to enter QV Square without restriction. They had a lawful<br />
right to conduct the “political demonstration”. Their conduct within QV Square<br />
does not convert them from having a lawful right to be there to being wilful<br />
trespassers. The conduct <strong>of</strong> the protestors did not promote violence. To<br />
interpret S 9 (1)(d) as submitted by the prosecution would, in my opinion,<br />
contravene their right to “freedom <strong>of</strong> expression” as enacted in the Charter. In<br />
addition, a refusal to leave after being requested to do so on the basis that the<br />
protestors were; “demonstrating disapproval <strong>of</strong> the political or social interests<br />
<strong>of</strong> a retail tenant <strong>of</strong> this shopping centre” is also not compatible with those<br />
human rights. I accept as valid the submission made by the accused that to<br />
interpret S 9 (1)(d) otherwise, would unjustifiably interfere with their rights to<br />
“freedom <strong>of</strong> expression” and “peaceful assembly”. The prosecution submitted<br />
that although the protestors have the right to “freedom <strong>of</strong> expression”, that<br />
right is restricted where it involves interference with the rights <strong>of</strong> others, and in<br />
this case, the rights <strong>of</strong> members <strong>of</strong> the general public to perform their normal<br />
activities in QV. The Charter contemplates lawful restrictions on the right <strong>of</strong><br />
“freedom <strong>of</strong> expression” as provided in S 15(3) because special duties and<br />
responsibilities attach to the right. What is required in circumstances such as<br />
33 DECISION
these is a balancing process after taking into account the matters referred to<br />
in S 7 <strong>of</strong> the Charter. Whilst the actions <strong>of</strong> the protestors may have caused<br />
some inconvenience to members <strong>of</strong> the public, the nature and extent <strong>of</strong> it, was<br />
not such as to warrant a prohibition <strong>of</strong> their right to demonstrate and express<br />
their political opinions. Although it was not contended by the prosecution, I<br />
would also not categorise the behaviour <strong>of</strong> the protestors as a significant<br />
breach <strong>of</strong> the peace or threat to public order so as to justify a lawful restriction<br />
on their human rights as contemplated by S 15 (3)(b) <strong>of</strong> the Charter.<br />
65. This issue was considered by the New Zealand Supreme <strong>Court</strong> in Brooker v<br />
Police 22 . In this case, Mr Brooker was convicted <strong>of</strong> disorderly behaviour when<br />
making a public protest in the street outside the house <strong>of</strong> a policeman contrary<br />
to S 4 (1)(a) <strong>of</strong> the Summary Offences Act 1981. The protest constituted<br />
behaviour protected by S 14 <strong>of</strong> the New Zealand Bill <strong>of</strong> Rights Act 1990 which<br />
provides that; Everyone has the right to freedom <strong>of</strong> expression, including the<br />
freedom to seek, receive, and import information and opinions <strong>of</strong> any kind in<br />
any form”. Elias CJ said; 23 “ I accept that what disrupts public order cannot be<br />
divorced from the circumstances and ultimately entails a value judgement.<br />
But its measure must not be too nice. I agree with the views expressed by<br />
Douglas J in Terminiello v Chicago: freedom <strong>of</strong> speech should be restricted<br />
for reasons <strong>of</strong> public order only when there is a clear danger <strong>of</strong> disruption<br />
rising far above annoyance”.<br />
66. Blanchard J said; 24 “Disorderly behaviour is not necessarily <strong>of</strong>fensive in that<br />
22 [2007] NZSC 30.<br />
23 Para 42-3.<br />
24 Para 56.<br />
way. It is behaviour which disturbs or violates public order. To fall within s<br />
4(1)(a) it must be behaviour in or within view <strong>of</strong> a public place which<br />
substantially disturbs the normal functioning <strong>of</strong> life in the environs <strong>of</strong> that<br />
place. It must cause a disturbance <strong>of</strong> good order which in the particular<br />
circumstances <strong>of</strong> the time and place any affected members <strong>of</strong> the public could<br />
34 DECISION
25 Para 59.<br />
26 Para 90.<br />
not reasonably be expected to endure because <strong>of</strong> its intensity or its duration<br />
or a combination <strong>of</strong> both those factors”.<br />
67. Importantly, in the context <strong>of</strong> this case, he also said; 25 “But when the<br />
behaviour in question involves an exercise <strong>of</strong> the right to convey information<br />
or express an opinion, which is protected by s 14 <strong>of</strong> the New Zealand Bill <strong>of</strong><br />
Rights Act 1990, or engages in some other right guaranteed by that Act there<br />
is a further and most important consideration. A characterisation <strong>of</strong> the<br />
behaviour <strong>of</strong> the defendant as disorderly then cannot be made without an<br />
assessment against the overriding requirement <strong>of</strong> s 5 <strong>of</strong> the Bill <strong>of</strong> Rights that<br />
the exercise <strong>of</strong> any guaranteed right may be subjected only to such<br />
reasonable limits prescribed by law as can be demonstrably justified in a free<br />
and democratic society. The value protected by the Bill <strong>of</strong> Rights must be<br />
specifically considered and weighed against the value <strong>of</strong> public order. The<br />
court must ask itself whether treating the particular behaviour in the particular<br />
circumstances as disorderly constitutes a justified limitation on the defendant's<br />
exercise <strong>of</strong> the right in question. As a result, public order will less readily be<br />
seen to have been disturbed by conduct which is intended to convey<br />
information or express an opinion than by other forms <strong>of</strong> behaviour. The<br />
manner in which the defendant chose to exercise the right and the time and<br />
place are <strong>of</strong> course relevant to that inquiry”.<br />
68. Tipping J said; 26 “Any modern test for determining when conduct is disorderly<br />
must be capable <strong>of</strong> application both to ordinary cases and to those that are<br />
less simple because aspects <strong>of</strong> the rights and freedoms affirmed by the New<br />
Zealand Bill <strong>of</strong> Rights Act are engaged. With that in mind I would reformulate<br />
earlier tests in the following way. Conduct in a qualifying location is disorderly<br />
if, as a matter <strong>of</strong> time, place and circumstance, it causes anxiety or<br />
disturbance at a level which is beyond what a reasonable citizen should be<br />
expected to bear. Unless that is so, the conduct will not warrant the<br />
35 DECISION
intervention <strong>of</strong> the criminal law. If it is so, the public has a legitimate interest<br />
in proscribing the behaviour, and thereby protecting citizens from it. In this<br />
way public order is protected”. At paragraph 92 he said; “Where, as here, the<br />
behaviour concern and involves a genuine exercise <strong>of</strong> the right to freedom <strong>of</strong><br />
expression, the reasonable member <strong>of</strong> the public may well be expected to<br />
bear a somewhat higher level <strong>of</strong> anxiety or disturbance than would otherwise<br />
be the case. This may be necessary to prevent an unjustified limitation <strong>of</strong> the<br />
freedom and is consistent with the purpose <strong>of</strong> s 6 <strong>of</strong> the Bill <strong>of</strong> Rights. There<br />
must, however, come a point at which the manner or some other facet <strong>of</strong> the<br />
exercise <strong>of</strong> the freedom will create such a level <strong>of</strong> anxiety or disturbance that<br />
the behaviour involved becomes disorderly under s 4(1)(a) and,<br />
correspondingly, the limit thereby imposed on the freedom becomes justified<br />
under s 5. No abstract guidance can be given as to when that level will be<br />
reached. That decision is a matter <strong>of</strong> judgment according to all the relevant<br />
circumstances <strong>of</strong> the individual case”.<br />
69. In my opinion, the principles stated in Brooker’s case are pertinent to the<br />
factual circumstances before the court. The protestors behaviour in QV<br />
Square consisted <strong>of</strong> chanting and speeches relating to; the alleged Israeli<br />
occupation <strong>of</strong> Palestine; the support <strong>of</strong> Max Brenner to the Israeli army; the<br />
support <strong>of</strong> the USA to Israel; and, the displaying <strong>of</strong> anti Israeli banners. The<br />
gathering <strong>of</strong> the protestors in QV square and the expression <strong>of</strong> their political<br />
beliefs, notwithstanding the limited physical activity between the protest line<br />
and police line immediately in front <strong>of</strong> Max Brenner’s did not, in my opinion,<br />
constitute a threat to public order or a significant breach <strong>of</strong> the peace so as to<br />
warrant a restriction on their rights to express their political opinions. In fact,<br />
the evidence revealed that a large number <strong>of</strong> members <strong>of</strong> the public appeared<br />
to be watching with interest and one even engaged in robust discussions with<br />
a number <strong>of</strong> the protestors. Furthermore, as already mentioned, a number <strong>of</strong><br />
customers at Max Brenner’s remained at the tables outside observing the<br />
activities. The demonstration only lasted 15 minutes before the protestors<br />
36 DECISION
were requested to leave and the arrests occurred shortly thereafter. There<br />
was no threat to public order or breach <strong>of</strong> the peace to the extent necessary<br />
so as to justify a lawful restriction on the right <strong>of</strong> the protestors to express their<br />
political beliefs as is contemplated in S 15 (3)(b) <strong>of</strong> the Charter. I do not<br />
categorise the protestors behaviour as being; “a clear danger <strong>of</strong> disruption<br />
rising far above annoyance”, or it being behaviour that “any affected member<br />
<strong>of</strong> the public could not reasonably be expected to endure” or that it caused,<br />
“anxiety or disturbance <strong>of</strong> a level which is beyond what a reasonable citizen<br />
should be expected to bear”.<br />
70. Accordingly, consistent with my view that; the accused had a lawful right to<br />
enter QV Square, it being a “public place”; that QV management could not<br />
impose conditions <strong>of</strong> entry; that the demonstration was lawful in that the<br />
protestors were engaging their right <strong>of</strong> “freedom <strong>of</strong> speech”; and, the demand<br />
to leave could not convert the accused into wilful trespassers; S 9 (1)(d) <strong>of</strong><br />
the Act has not been contravened.<br />
71. If I am incorrect in my conclusions and the owners/occupiers <strong>of</strong> QV had the<br />
legal authority to request that the accused leave QV Square because they<br />
were “demonstrating disapproval <strong>of</strong> the political or social interests <strong>of</strong> a retail<br />
tenant”, it is still necessary for the prosecution to prove that each <strong>of</strong> the<br />
accused heard the request or warning to leave and refused or neglected to do<br />
so in order to be guilty <strong>of</strong> the <strong>of</strong>fence in accordance with the principles in<br />
Lewis v Hollowood and Latrobe University v Robinson & Pola. The evidence<br />
indicates that when Mr Appleford made his announcement requesting the<br />
protestors leave, there was considerable noise in QV Square from the<br />
protestors on the megaphones and the protestors chants. Mr Appleford gave<br />
evidence that when Inspector Beattie spoke on the megaphone to introduce<br />
him, “his voice was drowned out and I could not hear him”. He also told the<br />
court that when he made his announcement he could not see everyone in QV<br />
Square because <strong>of</strong> the position in which he was standing. Ms Fleming gave<br />
37 DECISION
evidence that she saw but could not hear the announcements made by Mr<br />
Appleford or Inspector Beattie because <strong>of</strong> the noise. She agreed in cross-<br />
examination that it would take between 30 seconds to one minute for a person<br />
to read the contents <strong>of</strong> the Conditions <strong>of</strong> Entry signs displayed at the<br />
entrances to and within QV and the owners/occupiers could not force people<br />
to read them. Senior Sgt Falconer gave evidence that he could only hear the<br />
start <strong>of</strong> Inspector Beattie’s announcement because <strong>of</strong> the noise and did not<br />
hear Mr Appleford’s announcement at all. Inspector Beattie gave evidence<br />
that although he heard the announcement <strong>of</strong> Mr Appleford (because he was<br />
standing next to him) “the noise drowned him out”. He also told the court that<br />
when he made a further announcement to the protestors that they were<br />
trespassing and that they should leave, the chanting by the protestors<br />
continued. Mr Shrestha gave evidence that he saw Inspector Beattie on a<br />
megaphone but could not hear what he said. SC McLaughlin told the court<br />
that he heard the start <strong>of</strong> the announcement by Inspector Beattie “but the<br />
crowd became louder and drowned out his voice”. SC Oakley told the court<br />
that he heard Inspector Beattie attempt to address the crowd “but every time<br />
he spoke the crowd became louder”. Sgt Saunders gave evidence that he<br />
heard Inspector Beattie announce to the protestors that they were on private<br />
property and that they were trespassing, but “the crowd drowned him out”. Sgt<br />
Whibley gave evidence that he was close to Inspector Beattie when he made<br />
his announcements but “it was hard to hear”. Sgt Nash told the court that<br />
when Inspector Beattie made his announcements, “the crowd was chanting”.<br />
SC Lynch told the court he was 20 metres away from Inspector Beattie when<br />
he made his announcements “but I could not hear him”. SC Bray, SC<br />
Contarino and C Lavars gave evidence that they heard the announcements<br />
but LSC Richards and C Pehlivan told the court they only heard parts <strong>of</strong> them.<br />
72. The prosecution contend that the court can infer from the announcements<br />
made by Ms Kenway and Mr <strong>Anderson</strong> (see para 25) that they heard and<br />
understood the directions given to them by Inspector Beattie and conveyed<br />
38 DECISION
those directions to the other protestors. In my opinion, there is simply no<br />
evidence to substantiate that any <strong>of</strong> the accused; read any <strong>of</strong> the Condition <strong>of</strong><br />
Entry signs or heard or understood any <strong>of</strong> the announcements made by Mr<br />
Appleford or Inspector Beattie, nor can the court draw the inference as<br />
suggested by the prosecution that they did on the evidence presented. The<br />
evidence <strong>of</strong> most <strong>of</strong> the witnesses and the police video footage clearly<br />
indicates that the announcements <strong>of</strong> Mr Appleford and Inspector Beattie were<br />
“drowned out” by the noise in QV Square. In fact, when Mr Appleford was<br />
making his announcement, Ms Kenway is seen and heard addressing the<br />
protestors on a megaphone. Throughout the demonstration the protestors<br />
were chanting loudly which seemed to increase in volume when further<br />
announcements were made by Inspector Beattie. The court cannot be<br />
satisfied on the evidence presented that any <strong>of</strong> the accused heard or<br />
understood the contents <strong>of</strong> any announcement made by Mr Appleford,<br />
Inspector Beattie or Senior Sgt Falconer. Neither can the court be satisfied<br />
that Ms Kenway heard Senior Sgt Falconer’s personal request to her for the<br />
protestors to leave. He agreed that she moved away as he approached her,<br />
the noise escalated when he approached her and his interaction with her<br />
lasted no more than 9 seconds.<br />
73. The announcement made by Inspector Beattie to the protestors involved in<br />
the “sit-in” occurred at approximately 7.17 p.m.. The accused depicted in the<br />
“sit-in” are; Ms Bolton, Mr Oakley and Ms Farmer who were arrested within a<br />
few minutes <strong>of</strong> the announcement being made. During his announcement<br />
further speeches and chants were occurring from that group and other<br />
protestors at the fringes <strong>of</strong> QV Square and from protestors on the level above.<br />
Those chants were; “Palestine will be free from the river to the sea” and “Max<br />
Brenner you can’t hide, you’re supporting genocide”.<br />
74. I am not satisfied on the evidence presented that the accused who formed<br />
part <strong>of</strong> the “sit-in” heard or understood the direction given to them by Inspector<br />
39 DECISION
Beattie to leave and on this basis, it cannot be said that they neglected or<br />
refused to leave after being warned to do so thereby contravening S 9 (1)(d)<br />
<strong>of</strong> the Act.<br />
75. Accordingly, I uphold the “no-case” submissions made by the accused in<br />
relation to the charges laid pursuant to S 9 (1)(d) <strong>of</strong> the Summary Offences<br />
Act 1966. The charges will be dismissed. The remaining “no-case”<br />
submissions relate to Mr <strong>Anderson</strong> (hindering the arrest <strong>of</strong> Mr Tymms by SC<br />
Jones); Mr Evans (hindering Sgt Robinson in the arrest <strong>of</strong> Ms Kenway and<br />
assaulting Sgt Robinson); Mr Monsalve-Tobon (assaulting C Lavars); Mr<br />
Hassan (resisting Acting Det Sgt Balthazaar); Mr Oakley (resisting SC<br />
Contarino); Mr Small (hindering Senior Sgt Falconer); Mr Ridgewell (hindering<br />
SC Contarino in the arrest <strong>of</strong> Mr Small); and, Mr Tymms (hindering LSC<br />
Richards in the arrest <strong>of</strong> Ms Walsh and resisting LSC Richards).<br />
76. In order to consider the “no-case” submissions by each <strong>of</strong> the accused in<br />
relation to these charges, it is necessary to describe in some detail the<br />
planning involved and actions <strong>of</strong> the police in conducting the arrests <strong>of</strong> the<br />
accused. Senior Sgt Falconer gave evidence that in police meetings prior to<br />
the demonstration it was decided that if arrests were to be made the police<br />
would target those they believed were the leaders who would exert influence<br />
on the other protestors. He told the court that the Public Order Management<br />
Team were tasked with forming arrests teams at his direction or on the<br />
direction <strong>of</strong> Senior Sgt Ward. Senior Sgt Falconer told the court that the police<br />
had decided that arrests would occur if the demonstration became violent or it<br />
was illegal. Inspector Beattie gave evidence that he may have allowed the<br />
demonstration to continue longer, after the request to leave was made by Mr<br />
Appleford, but he viewed the protestors actions in pushing against the police<br />
line as an “insidious tactic <strong>of</strong> assaulting the police”. He confirmed that he<br />
instructed Senior Sgt Falconer to approach Ms Kenway to request that she<br />
and the protestors leave QV Square, but when that failed he decided to<br />
40 DECISION
proceed with the arrests <strong>of</strong> the accused.<br />
77. Senior Sgt Falconer gave evidence that he approached Ms Kenway in order<br />
to ask her to request that the protestors leave QV Square as he had<br />
previously identified her as being a leader with influence. He told the court<br />
that as he approached her he held her arm to get her attention but she moved<br />
away and proceeded to make further announcements on a megaphone. He<br />
told the court that as he approached her, Mr Small grabbed hold <strong>of</strong> his<br />
shoulder across his chest. He gave evidence that the action by Mr Small was<br />
deliberate and disagreed in cross examination that Mr Small put his arm out<br />
only to remonstrate. He told the court that approximately 1 minute later Ms<br />
Kenway was arrested by members <strong>of</strong> the POMT and in the course <strong>of</strong> being<br />
arrested she fell to the ground. The evidence <strong>of</strong> Constables Payne and<br />
Rodwell together with the CCTV footage and police video indicates that Ms<br />
Kenway was forcibly removed from QV Square with Constable Payne’s arm<br />
around her neck. SC Contarino gave evidence that he witnessed Mr Small put<br />
his arm out between Senior Sgt Falconer and Ms Kenway and he decided to<br />
act by taking Mr Small behind the police line. He told the court that as a result<br />
<strong>of</strong> Mr Small’s resistance they both ended up on the ground. In cross<br />
examination, he agreed that in the statement he made on 29 September 2011<br />
he said that; “it appeared Mr Small was going to grab Senior Sgt Falconer”. C<br />
Tamarua, the Informant for Mr Small, told the court that she was not part <strong>of</strong><br />
the arrest team and was not aware why Mr Small had been arrested.<br />
78. Senior Sgt Falconer gave evidence that when Mr Small was being arrested he<br />
observed Mr Ridgewell linking arms with Mr Small which had the effect <strong>of</strong><br />
hindering his arrest. SC Contarino gave evidence that as he was attempting to<br />
arrest Mr Small, Mr Ridgewell tried to grab hold <strong>of</strong> Mr Small to pull him back<br />
into the crowd. In cross examination, he agreed that when Senior Sgt<br />
Falconer moved in to talk to Ms Kenway, Ms Kenway moved in between both<br />
Mr Small and Mr Ridgewell while the police were pushing Mr Small and Mr<br />
41 DECISION
Ridgewell and other protestors away. He also agreed that Mr Ridgewell could<br />
not extract himself from that situation and he was not sure whether it was Mr<br />
Small holding onto Mr Ridgewell or Mr Ridgewell holding onto Mr Small. SC<br />
McKinnon, the Informant for Mr Ridgewell, gave evidence that he grabbed<br />
hold <strong>of</strong> Mr Ridgewell's left arm and other police also held onto him and took<br />
him to the loading dock. He told the court that Mr Ridgewell struggled when<br />
he was arrested and he recalled that someone else was holding onto him at<br />
the time. The police video footage indicates that Mr Ridgewell is pulled down<br />
from behind by his neck and the loading dock footage indicates that when Mr<br />
Ridgewell was carried into the loading dock he appeared unconscious and<br />
was placed on the ground where there was no movement by him for<br />
approximately 2 minutes whilst he was placed in the “recovery position” with a<br />
number <strong>of</strong> police standing around him and leaning over him.<br />
79. Sgt Robinson gave evidence that as Ms Kenway was being arrested by his<br />
POMT he noticed Mr Evans running through the crowd with his hands raised<br />
and his right hand in a fist shape which made contact with his jaw. He told the<br />
court that he and Mr Evans grappled and at one stage Mr Evans had him in a<br />
headlock and he was pushed and fell to the ground. In cross examination, Sgt<br />
Robinson gave evidence that when he first saw Mr Evans he was<br />
approximately 8 to 9 m away. After viewing the CCTV footage and police<br />
video, Sgt Robinson agreed that it does not depict Mr Evans having him in a<br />
headlock but rather him having Mr Evans in a headlock. He also agreed that<br />
the video depicts a struggle between him and Mr Evans but does not depict<br />
any punch being thrown by Mr Evans. He also agreed that when Mr Evans<br />
approached he raised his hands and Mr Evans responded by raising his<br />
hands. C Hall gave evidence that as Ms Kenway was being arrested he saw,<br />
from a distance <strong>of</strong> 1-3 metres, Mr Evans run at the police in the arrest group<br />
and throw a punch at Sgt Robinson. He told the court that he assisted the<br />
arrest <strong>of</strong> Mr Evans by grabbing his feet and dragging him to the loading dock.<br />
In cross examination, he agreed that Sgt Robinson put Mr Evans in a<br />
42 DECISION
headlock and agreed that the video shown to him does not depict a punch<br />
being thrown by Mr Evans. C Payne, the Informant for Mr Evans, told the<br />
court that he did not witness the assault on Sgt Robinson. Acting Detective<br />
Sgt Balthazzar gave evidence that he saw Mr Evans punch Sgt Robinson. In<br />
cross examination, he agreed that he did not record the assault in his notes<br />
but did include it in his Statement dated 31 August 2011.<br />
80. Senior Sgt Falconer gave evidence that he saw Mr Hassan hold onto Ms<br />
Kenway’s arms when she was being arrested. C Payne gave evidence that as<br />
he and C Rodwell were taking Ms Kenway to the loading dock along Red<br />
Cape Lane, he has a “vague recollection” that someone grabbed hold <strong>of</strong> C<br />
Rodwell and he saw C Rodwell knocking a hand away by swinging his arm in<br />
an outward motion. In cross examination, he disputed the suggestion that C<br />
Rodwell punched anyone. Acting Detective Sgt Balthazzar, the Informant for<br />
Mr Hassan, gave evidence that he noticed SC Leonard struggling with Mr<br />
Hassan whilst he was holding him. He told the court that he was<br />
approximately 3 m away at a time and he assisted SC Leonard by grabbing<br />
hold <strong>of</strong> Mr Hassan and telling him to stop resisting. He told the court that Mr<br />
Hassan would not put his arms behind his back so he put him to the ground<br />
and handcuffed him, told him he was under arrest and took him to the loading<br />
dock and then he returned to QV Square. He told the court that he could not<br />
recall Mr Hassan falling in Red Cape Lane. C Rodwell gave evidence that as<br />
he was leading Ms Kenway down Red Cape Lane to the loading dock with Mr<br />
Hassan being led behind, he turned and with a right clenched fist, drew his<br />
arm back and punched Mr Hassan in the arm in order to stop Mr Hassan<br />
holding him. He agreed that at the time Mr Hassan was being held by the<br />
police. He told the court that he did not see Mr Hassan hold on to him but “felt<br />
it”. In cross examination, he disagreed that his actions were unprovoked,<br />
gratuitous and unnecessary. He told the court that in his opinion his actions<br />
were reasonable in the circumstances. SC Leonard gave evidence that as Ms<br />
Kenway was being arrested he saw Mr Hassan trying to break the grip <strong>of</strong> the<br />
43 DECISION
police and he then tried to break the grip <strong>of</strong> Mr Hassan which he was<br />
eventually successful in doing. He told the court that his first contact with Mr<br />
Hassan was in Red Cape Lane. He told the court that he was trying to put Mr<br />
Hassan's arms behind his back but he resisted and he was assisted by Acting<br />
Detective Sgt Balthazzar. He told the court that he handcuffed Mr Hassan in<br />
the corridor leading to the loading dock and left him with Acting Detective Sgt<br />
Balthazzar. SC Leonard told the court that Mr Hassan was “thrashing his arms<br />
around” while being escorted down Red Cape Lane and was struggling both<br />
in Red Cape Lane and in the corridor leading to the loading dock.<br />
81. LSC Richards gave evidence that he was instructed to arrest Ms Walsh and<br />
when that was occurring, Mr Tymms “rugby tackled” her. He told the court<br />
that he informed Mr Tymms to “back <strong>of</strong>f because she’s under arrest”. He told<br />
the court that Mr Tymms grabbed Ms Walsh around the waist and that he held<br />
on to her as he was taking her away. Senior Sgt Falconer gave evidence that<br />
as Ms Walsh was being arrested he saw Mr Tymms running to shield her and<br />
hold her. He disagreed that Mr Tymms could not extract himself from the area<br />
when the POMT was arresting Ms Walsh. After viewing the police video he<br />
agreed that Mr Tymms did not run in and agreed that Mr Tymms was caught<br />
up in the “wedge formation” arrest <strong>of</strong> Ms Walsh which involved up to 7 police<br />
members. However, he told the court that in his opinion, Mr Tymms could<br />
have released his grip on Ms Walsh within a few seconds <strong>of</strong> her being<br />
arrested which he failed to do. Sgt Saunders gave evidence that when Ms<br />
Walsh was being arrested he saw Mr Tymms step in front <strong>of</strong> the arrest team<br />
and put Ms Walsh in a “bear hug”. He told the court that two policeman held<br />
on to Mr Tymms by each arm and he was struggling and two other police<br />
members were attempting to grab his legs. The police video indicates Mr<br />
Tymms struggling and falling down and being dragged away by the police and<br />
taken behind the police line. SC Jones, the Informant for Mr Tymms, gave<br />
evidence that he saw Mr Tymms put his arms around Ms Walsh as she was<br />
being arrested and he brought him to the ground and handcuffed him and took<br />
44 DECISION
him to the loading dock.<br />
82. Senior Sgt Falconer gave evidence that as Ms Walsh was being arrested and<br />
Mr Tymms stepped in to shield her, Mr <strong>Anderson</strong> approached and grabbed<br />
Mr Tymms arm. In cross examination, he agreed that the CCTV footage<br />
indicated that Acting Senior Sgt Ward had his arm around Mr <strong>Anderson</strong>'s neck<br />
as Ms Walsh was taken from QV Square. Sgt Saunders gave evidence that as<br />
Ms Walsh was being arrested and Mr Tymms put her in a “bear hug”, Mr<br />
<strong>Anderson</strong> grabbed Mr Tymms arm and tried to walk away. He told the court<br />
that Mr <strong>Anderson</strong> was pulled <strong>of</strong>f his feet and drawn towards the police line. He<br />
told the court that he took Mr <strong>Anderson</strong> by his right arm and told him to let Mr<br />
Tymms go but he retained his grip before letting him go. Sgt Saunders gave<br />
evidence that Mr <strong>Anderson</strong> became a “dead weight” on the ground so the<br />
police dragged him behind the police line to the loading dock. He agreed that<br />
when he told Mr <strong>Anderson</strong> that he was being arrested for hindering police he<br />
responded that he “got caught up in it”. In cross examination, Sgt Saunders<br />
told the court that it was clear to him that Mr <strong>Anderson</strong> attempted to hinder the<br />
arrest <strong>of</strong> Mr Tymms by linking arms with him and that Mr <strong>Anderson</strong> was still<br />
holding onto Mr Tymms behind the police line. He agreed that the CCTV<br />
footage indicates Sgt B Ward pulled Mr <strong>Anderson</strong> to the ground around his<br />
neck whilst he still had hold <strong>of</strong> Mr Tymms.<br />
83. SC Contarino, the Informant for Mr Oakley, gave evidence that he was<br />
instructed to arrest Mr Oakley for wilful trespass. He told the court that he<br />
approached Mr Oakley when he was in the “sit in” group to the side <strong>of</strong> Max<br />
Brenner’s and told him to get up but he linked arms with other protestors. In<br />
cross examination, he agreed after viewing the police video, that the<br />
protestors in the “sit in” had all linked arms before Mr Oakley's arrest. He<br />
agreed that other protestors held on to him and that he had to unlock Mr<br />
Oakley's arms which took approximately 10 seconds.<br />
84. Senior Sgt Falconer gave evidence that as the police pushed the protestors<br />
45 DECISION
forward in an “arc” away from the front <strong>of</strong> Max Brenner's, he observed Mr<br />
Monsalve-Tobon push C Lavars in the back which caused her to move<br />
forward approximately 2 metres. He told the court that he grabbed Mr<br />
Monsalve-Tobon and they both fell to the ground and Mr Monsalve-Tobon<br />
struggled and was violent with him. In cross examination, he agreed after<br />
viewing the police video, that a policewoman did raise her elbow in the<br />
direction <strong>of</strong> Mr Monsalve-Tobon prior to him pushing C Lavars. SC Bray, the<br />
Informant for Mr Monsalve-Tobon, told the court that he dragged Mr<br />
Monsalve-Tobon approximately 20 metres because he refused to stand up.<br />
He told the court that the police had to carry him in order to take him to the<br />
loading dock where they placed him facedown. C Lavars gave evidence that<br />
she felt a “shove” to her side when she was in between the protestors after<br />
they had been moved from the front <strong>of</strong> Max Brenner’s. She denied raising her<br />
arm and making contact with Mr Monsalve-Tobon’s throat.<br />
85. The applicable provisions in relation to the alleged <strong>of</strong>fences are;<br />
S 52 (1) <strong>of</strong> the Summary Offences Act, which provides:<br />
Any person who assaults resists obstructs hinders or delays or incites or encourages any<br />
other person to assault resist obstruct hinder or delay any member <strong>of</strong> the police force or a<br />
protective services <strong>of</strong>ficer in the execution <strong>of</strong> his duty under this Act or otherwise, or any<br />
person lawfully assisting any such member or <strong>of</strong>ficer in the execution <strong>of</strong> his duty under this<br />
Act, or any member <strong>of</strong> the staff <strong>of</strong> the local authority in the execution <strong>of</strong> his duty under this Act<br />
shall be guilty <strong>of</strong> an <strong>of</strong>fence.<br />
S 458 <strong>of</strong> the Crimes Act 1958 provides:<br />
(1) Any person, whether a member <strong>of</strong> the police force or not, may at any time without warrant<br />
apprehend and take before a bail justice or the Magistrates’ <strong>Court</strong> to be dealt with according<br />
to law or deliver to a member <strong>of</strong> the police force to be so taken, any person –<br />
(a) he finds committing any <strong>of</strong>fence (whether an indictable <strong>of</strong>fence or an <strong>of</strong>fence punishable<br />
46 DECISION
on summary conviction) where he believes on reasonable grounds that the apprehension <strong>of</strong><br />
the person is necessary for any one or more <strong>of</strong> the following reasons, namely – (relevant to<br />
this matter)<br />
(ii) to preserve public order;<br />
(iii) to prevent the continuation or repetition <strong>of</strong> the <strong>of</strong>fence or commission <strong>of</strong> a further <strong>of</strong>fence;<br />
or<br />
(iv) for the safety or welfare <strong>of</strong> members <strong>of</strong> the public or <strong>of</strong> the <strong>of</strong>fender;<br />
(b) when instructed so to do by any member <strong>of</strong> the police force having power under this Act to<br />
apprehend that person…<br />
S 462 <strong>of</strong> the Crimes Act 1958 provides:<br />
In this Act the expression finds committing and any derivatives there<strong>of</strong> extends to the case<br />
<strong>of</strong> a person found doing any act or so behaving or conducting himself or in such<br />
circumstances that the person finding him believes on reasonable grounds that the person so<br />
found is guilty <strong>of</strong> an <strong>of</strong>fence.<br />
Importantly, in the context <strong>of</strong> this case, S 461 <strong>of</strong> the Crimes Act 1958<br />
provides:<br />
(1) Where an apprehension is made under a belief on reasonable grounds in accordance with<br />
the provisions <strong>of</strong> section 458 or section 459 the apprehension shall not cease to be lawful or<br />
be taken to be unlawful where it subsequently appears or is found that the person<br />
apprehended did not commit the <strong>of</strong>fence alleged.<br />
86. In this case, all <strong>of</strong> the accused were arrested initially on the basis that they<br />
were wilful trespassers. Some, as indicated were arrested for additional<br />
<strong>of</strong>fences including resist, assault and hinder police. All <strong>of</strong> the arrests were<br />
made on the basis <strong>of</strong> an individual police <strong>of</strong>ficer making a decision to arrest or<br />
being instructed to do so by his/her superior pursuant to S 458 (1)(b).<br />
47 DECISION
87. It was submitted by the accused that neither the police command or individual<br />
<strong>of</strong>ficers making arrests had reasonable grounds for a belief that an <strong>of</strong>fence<br />
was being committed by any <strong>of</strong> the accused. In particular, it was contended<br />
that Inspector Beattie, the Field Commander, managing the operation, could<br />
not have formed a belief on reasonable grounds that <strong>of</strong>fences were being<br />
committed and therefore his direction to Senior Sgt Falconer and his team to<br />
commence arresting the accused was unlawful.<br />
88. I disagree. The evidence given by Inspector Beattie, Senior Sgt Falconer and<br />
the arresting <strong>of</strong>ficers/Informants was to the affect that they all attended pre-<br />
demonstration briefings where possible breaches <strong>of</strong> the law by the protestors<br />
was discussed. Members <strong>of</strong> the PORT and POMT were informed <strong>of</strong> the<br />
likelihood <strong>of</strong> arrests being conducted on the basis that the protestors would be<br />
committing wilful trespass by conducting the demonstration and refusing to<br />
leave if requested to do so. Inspector Beattie formed a belief on reasonable<br />
grounds, based on the factual information he was given by QV management<br />
and the legal advice from the <strong>Victoria</strong>n Government Solicitors Office, that the<br />
protestors actions breached S 9 (1)(d) <strong>of</strong> the Summary Offences Act. I find<br />
that the arrests <strong>of</strong> each <strong>of</strong> the accused was executed on the basis <strong>of</strong> a belief<br />
by the police command and/or the arresting <strong>of</strong>ficers that the accused were<br />
committing the <strong>of</strong>fence <strong>of</strong> wilful trespass and that it would continue.<br />
Additionally, that belief was reasonably held on the basis <strong>of</strong> information<br />
previously conveyed to them. The police were not engaging in unlawful<br />
conduct or acting outside their duty. 27<br />
89. In relation to Mr Hassan, it was also submitted that if the court found the<br />
arrest <strong>of</strong> Ms Kenway to be lawful (which it has), excessive force was used in<br />
effecting her arrest which justified the intervention <strong>of</strong> Mr Hassan in defence <strong>of</strong><br />
her. As previously indicated, Ms Kenway was forcibly removed from QV<br />
Square by Constables Payne and Rodwell. The removal <strong>of</strong> her by C Payne’s<br />
27<br />
As discussed in Nguyen v Elliott Unreported Supreme <strong>Court</strong> Hedigan J 6 February 1995 and Coleman v<br />
Power [2004] 220 CLR 1.<br />
48 DECISION
28<br />
[2001] NSWCA 35.<br />
29<br />
[1981] QB 128.<br />
30<br />
Para 37.<br />
31<br />
(1980) 43 FLR 112 at 123.<br />
arm around her neck over a not inconsiderable distance, was “heavy handed”,<br />
in the circumstances. The law provides that the use <strong>of</strong> force in an arrest must<br />
be reasonable and proportionate to the requirement <strong>of</strong> the arrest. This issue<br />
was considered in Woodley v Boyd 28 , where Heydon JA referred to the<br />
decision <strong>of</strong> Lindley v Rutter 29 where Donaldson LJ said;<br />
“It is the duty <strong>of</strong> any constable who lawfully has a prisoner in his charge to<br />
take all reasonable measures to ensure that the prisoner does not escape or<br />
assist others to do so, does not injure himself or others, does not destroy or<br />
dispose <strong>of</strong> evidence and does not commit further crime such as, for example,<br />
malicious damage to property. The list is not exhaustive, but it is sufficient for<br />
present purposes. What measures are reasonable in the discharge <strong>of</strong> this<br />
duty will depend upon the likelihood that the particular prisoner will do any <strong>of</strong><br />
these things unless prevented. That in turn will involve the constable in<br />
considering the known or apparent disposition and sobriety <strong>of</strong> the prisoner.<br />
What can never be justified is the adoption <strong>of</strong> any particular measures without<br />
regard to all the circumstances <strong>of</strong> the particular case”.<br />
Heydon JA then said; 30 “The same duties and considerations apply where a<br />
police <strong>of</strong>ficer is deciding how to effect an arrest. And, in evaluating the police<br />
conduct, the matter must be judged by reference to the pressure <strong>of</strong> events<br />
and the agony <strong>of</strong> the moment, not by reference to hindsight”. He referred to<br />
the decision in McIntosh v Webster 31 where Connor J said;<br />
“[Arrests] are frequently made in circumstances <strong>of</strong> excitement, turmoil and<br />
panic [and it is] altogether unfair to the police force as a whole to sit back in<br />
the comparatively calm and leisurely atmosphere <strong>of</strong> the courtroom and there<br />
make minute retrospective criticisms <strong>of</strong> what an arresting constable might or<br />
might not have done or believed in the circumstances”.<br />
49 DECISION
90. In applying these principles to the present case, although C Payne’s actions in<br />
grabbing Ms Kenway around the neck and pulling her sideways for a number<br />
<strong>of</strong> metres, in hindsight, appeared to be unnecessary, the evidence indicates<br />
that he did lower his arm when C Rodwell said to him; “go lower” or “no too<br />
high”, and given the situation he found himself in, that being; directed to form<br />
part <strong>of</strong> her arrest team with at least 5 other police <strong>of</strong>ficers involved; a large<br />
number <strong>of</strong> protestors in the immediate vicinity with there being considerable<br />
excitement, noise and turmoil; his actions could not be said, in all the<br />
circumstances, to be unreasonable and disproportionate when effecting her<br />
arrest.<br />
91. Having witnessed the circumstances <strong>of</strong> Ms Kenway’s arrest, it is contended<br />
that Mr Hassan was justified in intervening on her behalf. I disagree. The<br />
evidence <strong>of</strong> Senior Sgt Falconer was that he saw Mr Hassan grabbing Ms<br />
Kenway’s arms as she was being arrested. SC Leonard said he saw Mr<br />
Hassan attempting to break the grip that the police had on her and that he told<br />
Mr Hassan to let go but he did not do so. Notwithstanding the actions <strong>of</strong> C<br />
Payne, Mr Hassan had no legal right to intervene in what was obviously the<br />
arrest <strong>of</strong> Ms Kenway.<br />
92. It was also submitted on behalf <strong>of</strong> Mr Hassan that if his arrest was lawful, he<br />
should not be found guilty <strong>of</strong> resisting Acting Detective Sgt Balthazaar. In my<br />
opinion, the evidence indicates that Mr Hassan was punched in the ribs by C<br />
Rodwell when he was being escorted down Red Cape Lane to the loading<br />
dock by SC Leonard. I find that the use <strong>of</strong> force by C Rodwell was<br />
unnecessary in the circumstances and an unreasonable use <strong>of</strong> force. The<br />
evidence given by SC Leonard and Acting Detective Balthazzar was in conflict<br />
regarding what occurred in Red Cape Lane in that SC Leonard recalled that<br />
he handcuffed Mr Hassan in the corridor leading to the loading dock and then<br />
left Mr Hassan with Acting Detective Sgt Balthazzar whereas Acting Detective<br />
Sgt Balthazzar recalled that he handcuffed Mr Hassan after he took him to the<br />
50 DECISION
ground in Red Cape Lane.<br />
93. The CCTV footage indicates that at 26.25 Mr Hassan was punched by C<br />
Rodwell (who was in front <strong>of</strong> him escorting Ms Kenway) as he was being<br />
escorted by SC Leonard. It was only after Mr Hassan was struck by C Rodwell<br />
and lurches to the right in a downwards motion that Acting Detective Sgt<br />
Balthazzar becomes involved. The charge <strong>of</strong> resist involves Acting Detective<br />
Balthazzar not SC Leonard. The CCTV footage does not indicate any<br />
resistance by Mr Hassan to the point in time where he is struck by C Rodwell,<br />
who at that time was not acting in the execution <strong>of</strong> his duties. I find that any<br />
subsequent resistance, if any, was warranted. His reaction in falling to the<br />
right, was in response to being forcibly struck in the ribs, and not any<br />
deliberate act on his part to physically resist being arrested. Accordingly, I<br />
uphold the “no-case” submission <strong>of</strong> Mr Hassan in relation to the charge <strong>of</strong><br />
resisting Acting Detective Sgt Balthazzar in the execution <strong>of</strong> his duty and will<br />
dismiss the charge.<br />
94. It was submitted on behalf <strong>of</strong> Mr Small that he has “no-case” to answer in<br />
32 [2011] VSC 598.<br />
relation to the charge that he did hinder Senior Sgt Falconer in the execution<br />
<strong>of</strong> his duty. It is not disputed that at the time Mr Small stepped in between<br />
Senior Sgt Falconer and Ms Kenway was when Senior Sgt Falconer<br />
approached her to make a request that she and the protestors leave QV<br />
Square. Senior Sgt Falconer was not in the process <strong>of</strong> arresting Ms Kenway<br />
at that time. He merely wished to speak to her. What Mr Small did was to<br />
interfere in that process. In support <strong>of</strong> his submission, Mr Small referred the<br />
court to a decision <strong>of</strong> Mr Justice Kaye in DPP v Hamilton 32 . His Honour<br />
referred to a number <strong>of</strong> authorities regarding the issue <strong>of</strong> whether police, at<br />
the relevant time, were acting in the “execution <strong>of</strong> their duties”. In the case<br />
before him, the accused was suspected <strong>of</strong> committing the <strong>of</strong>fence <strong>of</strong> obtaining<br />
property by deception by leaving a restaurant without paying. The Informant<br />
51 DECISION
wished to speak to the accused but he fled and was pursued. The issue on<br />
appeal was whether, by fleeing when the police wished to speak to him, the<br />
accused resisted police in the execution <strong>of</strong> their duty contrary to S 52 (1) <strong>of</strong><br />
the Summary Offences Act 1966. His Honour held that in requesting the<br />
accused to speak to them they were acting in the course <strong>of</strong> their duties as<br />
police constables, but were not at that point, acting “in the execution” <strong>of</strong> their<br />
duties as police members for the purposes <strong>of</strong> S 52 (1) <strong>of</strong> the Act. 33 He found<br />
that in the absence <strong>of</strong> any legislative authority imposing an obligation on Mr<br />
Hamilton to remain and speak to the police, he was not guilty <strong>of</strong> the <strong>of</strong>fence.<br />
95. In the present case, Senior Sgt Falconer was not in the process <strong>of</strong> arresting<br />
Ms Kenway. As he approached her she moved away. He gave evidence that<br />
he simply wished to speak to her at that point. In doing so, he was acting in<br />
the course <strong>of</strong> his duty but not in the execution <strong>of</strong> it and accordingly, Mr Small<br />
can not be held to have hindered Senior Sgt Falconer contrary to S 52 (1) <strong>of</strong><br />
the Act. Therefore, I uphold the ‘no-case” submission made on his behalf and<br />
will dismiss the charge.<br />
96. It was submitted on behalf <strong>of</strong> Mr Ridgewell that he has “no-case” to answer in<br />
33 Para 32.<br />
34 [1934] SASR 124 at 127.<br />
relation to the charge that he did hinder SC Contarino in the execution <strong>of</strong> his<br />
duty. The prosecution case against Mr Ridgewell in relation to this charge is<br />
that Mr Ridgewell hindered SC Contarino by linking arms with Mr Small when<br />
he was being arrested for hindering Senior Sgt Falconer. However, the<br />
evidence <strong>of</strong> SC Contarino was that he could not recall whether Mr Ridgewell<br />
was holding onto Mr Small when Mr Small was being arrested or whether Mr<br />
Small was holding onto Mr Ridgewell. Furthermore, he agreed that when this<br />
incident occurred Mr Ridgewell could not extract himself from the activity that<br />
was occurring. Their interaction at that point lasted a few seconds only before<br />
Mr Ridgewell was forcibly removed from QV Square. In Plunkett v Kroemer 34 ,<br />
52 DECISION
which was approved by Phillips J in Botton v Winn 35 , Napier J said;<br />
“Hinder” is not a word <strong>of</strong> art or capable <strong>of</strong> precise definition and it is a question<br />
<strong>of</strong> fact and <strong>of</strong> degree whether, in the circumstances <strong>of</strong> the particular case, the<br />
obstruction or interference was appreciable. If the Constable is frustrated in<br />
his attempts to perform his duty or retarded in the execution there<strong>of</strong>, then<br />
clearly he has been hindered but I think the fair and natural meaning <strong>of</strong> the<br />
word goes further than that. I think that a constable is hindered by any<br />
obstruction or interference that makes his duty substantially more difficult <strong>of</strong><br />
performance”.<br />
97. On the evidence presented, there is insufficient evidence for the court to<br />
conclude that Mr Ridgewell obstructed or interfered in the arrest <strong>of</strong> Mr Small.<br />
Therefore, I uphold the “no-case” submission made on behalf <strong>of</strong> Mr Ridgewell<br />
and will dismiss the charge.<br />
98. It was submitted on behalf <strong>of</strong> Mr Evans that he has “no-case” to answer in<br />
relation to the charges <strong>of</strong> hindering or assaulting Sgt Robinson whilst he was<br />
supervising the arrest <strong>of</strong> Ms Kenway on the grounds that her arrest was not<br />
lawful. However, as previously stated, I have found that it was lawful. The<br />
evidence <strong>of</strong> Sgt Robinson and Acting Detective Balthazaar was to the effect<br />
that Mr Evans punched Sgt Robinson in the jaw and Constable Hall gave<br />
evidence that he saw Mr Evans throw a punch at Sgt Robinson.<br />
Notwithstanding the absence <strong>of</strong> CCTV/video footage <strong>of</strong> a punch being thrown<br />
by Mr Evans, I am not satisfied that he does not have a case to answer on the<br />
assault charge, noting that the hinder charge was laid in the alternative.<br />
99. It was submitted on behalf <strong>of</strong> Mr Tymms that he has “no-case” to answer on<br />
the charges that he hindered and resisted LSC Richards in the execution <strong>of</strong><br />
his duties. The prosecution evidence indicates that Mr Tymms put Ms Walsh<br />
in a “bear hug” when she was being arrested. Although it was conceded by<br />
35 Unreported 18 December 1987.<br />
53 DECISION
Senior Sgt Falconer that Mr Tymms was caught up in the “wedge formation”<br />
arrest <strong>of</strong> Ms Walsh, his evidence and that <strong>of</strong> LSC Richards, Sgt Saunders and<br />
SC Jones was consistent that Mr Tymms held onto Ms Walsh as she was<br />
being arrested. On the basis <strong>of</strong> this evidence, it is open to the court to find that<br />
Mr Tymms actions obstructed and interfered with the police efforts to arrest<br />
Ms Walsh. Accordingly, I am not satisfied that Mr Tymms does not have a<br />
case to answer on this charge.<br />
100. In relation to the charge <strong>of</strong> resisting arrest, the prosecution allege that Mr<br />
Tymms did so by; ignoring police demands to get on the ground; pushing<br />
against the police and moving his arms around to prevent himself from being<br />
handcuffed. The evidence presented in support <strong>of</strong> this charge was from Sgt<br />
Saunders who said; Mr Tymms was “struggling” when two policemen were<br />
holding him and two others were attempting to grab his legs; that as one <strong>of</strong> his<br />
arms was being held he turned his shoulders, fell down, struggled and was<br />
dragged away with police holding his arms to control him. The prosecution<br />
evidence is <strong>of</strong> sufficient weight to support the charge that, by his actions, Mr<br />
Tymms sought; “to oppose” or “strive against” or “put a stop to” his arrest as<br />
discussed in the decisions <strong>of</strong> R v Galvin 36 , R v Hansford 37 and Hamilton’s<br />
case. Accordingly, Mr Tymms has a case to answer in relation to this charge.<br />
101. It was submitted on behalf <strong>of</strong> Mr <strong>Anderson</strong> that he has “no-case” to answer in<br />
36 [1961] VR 740.<br />
37 [1974] VR 251.<br />
relation to the charge that he hindered SC Jones in the arrest <strong>of</strong> Mr Tymms by<br />
holding onto one <strong>of</strong> Mr Tymms arms. In support <strong>of</strong> the charge the prosecution<br />
relied on the evidence <strong>of</strong> Senior Sgt Falconer and Sgt Saunders, In particular,<br />
Sgt Saunders told the court that Mr <strong>Anderson</strong> maintained his grip on Mr<br />
Tymms when he was being arrested and continued to do so after he was<br />
taken behind the police line. Notwithstanding the absence <strong>of</strong> evidence from<br />
SC Jones, it is open on this evidence to find that Mr <strong>Anderson</strong>’s actions made<br />
SC Jones duties substantially more difficult in effecting the arrest <strong>of</strong> Mr<br />
54 DECISION
Tymms. On this basis, I find that he does have a case to answer in relation to<br />
this charge.<br />
102. It was submitted on behalf <strong>of</strong> Mr Oakley that he has “no-case” to answer in<br />
relation to the charge <strong>of</strong> resisting SC Contarino by his actions in continually<br />
holding onto other protestors arms when he was being arrested. It was<br />
contended that his arrest was unlawful and therefore he could not be said to<br />
be resisting arrest because SC Contarino arrested him on the direction <strong>of</strong><br />
Acting Senior Sgt Ward and did not have his own belief that Mr Oakley had<br />
committed an <strong>of</strong>fence as is required by S 458 (1)(a) <strong>of</strong> the Crimes Act.<br />
However, as I have already held, S 458 (1)(b) allows for arrests to occur on<br />
the instruction <strong>of</strong> another police <strong>of</strong>ficer who has power to do so. I have also<br />
found that police command, which included Acting Senior Sgt Ward, formed<br />
the necessary belief, which was based on reasonable grounds, that an<br />
<strong>of</strong>fence was being committed by the protestors. On this basis, Mr Oakley’s<br />
arrest was lawful. Therefore, I find that he does have a case to answer in<br />
relation to this charge.<br />
103. It was submitted on behalf <strong>of</strong> Mr Monsalve-Tobon that he has “no-case” to<br />
answer in relation to the charge that he assaulted C Lavars. The prosecution<br />
alleged that he pushed C Lavars in the back as she was executing her duties.<br />
The evidence given by Senior Sgt Falconer and the incident as depicted on<br />
CCTV footage and police video supports the charge. I find that Mr Monsalve-<br />
Tobon has a case to answer.<br />
104. The accused also submitted that if the court rejected the “no-case”<br />
38 (1979) 2 A Crim R 45.<br />
submissions, it should follow the principles in R v Prasad 38 , and acquit the<br />
accused. In that case, the accused was convicted on a charge <strong>of</strong> obtaining by<br />
false pretences. At the conclusion <strong>of</strong> the prosecution case, a “no-case”<br />
submission was made, or, alternatively, the evidence was so unsatisfactory<br />
that it would not be safe to allow the case to go to a jury. The application was<br />
55 DECISION
ejected and the matter proceeded. On appeal, the principal ground <strong>of</strong> appeal<br />
was that the evidence tendered by the prosecution was so tenuous and<br />
unsatisfactory that it was unsafe to leave the case to the jury for their<br />
consideration, notwithstanding that there was a case to answer. The accused<br />
submitted that the trial judge had a discretion to direct the jury to return a<br />
verdict <strong>of</strong> not guilty. King CJ said, after discussing the principles relating to a<br />
“no-case” submission;<br />
“It is, <strong>of</strong> course, open to a jury at any time after the close <strong>of</strong> the case for the<br />
prosecution to inform the judge that the evidence which they have heard is<br />
insufficient to justify a conviction and to bring in a verdict <strong>of</strong> not guilty without<br />
hearing more. It is within the discretion <strong>of</strong> the judge to inform the jury <strong>of</strong> this<br />
right, and if he decides to do so he usually tells them at the close <strong>of</strong> the case<br />
for the prosecution that they may exercise the right then or at any later stage<br />
<strong>of</strong> the proceedings…but a verdict by direction is quite another matter. Where<br />
there is evidence which, if accepted, is capable in law <strong>of</strong> proving the charge, a<br />
direction to bring in a verdict <strong>of</strong> not guilty would be, in my view, usurpation <strong>of</strong><br />
the rights and functions <strong>of</strong> the jury. I think there is a clear distinction for this<br />
purpose between a trial before a magistrate or other court which is the judge<br />
<strong>of</strong> both law and facts and a trial by a judge and jury. I have no doubt that a<br />
tribunal, which is the judge <strong>of</strong> both law and fact, may dismiss a charge at any<br />
time after the close <strong>of</strong> the case for the prosecution, notwithstanding that there<br />
is evidence upon which the defendant could be lawfully convicted, if that<br />
tribunal considers that the evidence is so lacking in weight and reliability that<br />
no reasonable tribunal could safely convict on it. This power is analogous to<br />
the power <strong>of</strong> the jury, as judges <strong>of</strong> the facts, to bring in a verdict <strong>of</strong> not guilty at<br />
any time after the close <strong>of</strong> the prosecution’s case. It is part <strong>of</strong> the tribunal’s<br />
function as judge <strong>of</strong> the facts”.<br />
105. In response, the prosecution submitted that the evidence against the accused<br />
is not so weak so as to justify the dismissal <strong>of</strong> the charges in accordance with<br />
56 DECISION
the decision in Prasad. The prosecution referred the court to the decisions in<br />
R v Pahuja 39 and Dean v R 40 , which indicated that the use <strong>of</strong> a Prasad<br />
direction should be used sparingly and only given if the evidence is inherently<br />
weak. On the basis <strong>of</strong> the evidence presented against Mr Evans (assault), Mr<br />
Tymms (hinder & resist), Mr <strong>Anderson</strong> (hinder), Mr Oakley (resist) and Mr<br />
Monsalve-Tobon (assault), I do not find that; “the evidence is so lacking in<br />
weight and reliability” that they could not be convicted on those charges. I<br />
therefore reject the applications made by each <strong>of</strong> the accused to dismiss the<br />
charges on the basis <strong>of</strong> the decision in Prasad.<br />
106. On the basis <strong>of</strong> my findings, I will invite counsel to consider the appropriate<br />
39 (1987) 49 SASR 191 at 201.<br />
40 (1995) 65 SASR 234.<br />
Orders that should be made and the future conduct <strong>of</strong> the proceedings.<br />
57 DECISION