Antaw v R; Kitson v R; Lee v R

Background

1. On 12 December 2019 Moira Williams, on behalf of "Friends of the Earth Australia", gave to the Commissioner of Police written Notice of Intention to Hold a Public Assembly [1] involving approximately 250 to 1,000 participants on Thursday, 19 December 2019 at 109 Kirribilli Ave, Kirribilli (the address of Kirribilli House, the Prime Minister's Sydney residence) at approximately 8.45am and disperse at approximately 11.30am. The Notice informed of matters relevant to "regulating the flow of traffic", including that there would be no vehicles, animals or floats involved, but about three to five entertainers addressing the assembly, using a megaphone or PA system.
2. The Notice was signed by Ms Williams in the capacity of "Organiser".
3. On about 17 December 2019 Chief Inspector McFadden for the New South Wales Police Force, in a letter co-signed by the Assistant Commissioner, responded to Ms Williams. The letter relevantly stated: "NSWPF consent to Friends of the Earth Australia, to conduct the public assembly 'School Strike 4 Climate' on Thursday 19th of December 2019 from 8:45am - 1030am, outside Kirribilli House, 109 Kirribilli Ave, Kirribilli, subject to the following conditions being agreed to and met: … ∙ The organiser is to be present and remain identifiable at all times and they are to actively maintain protester control and behaviour. They must ensure that the protestors disperse at the conclusion of the assembly in an orderly and proper manner. ∙ At the conclusion of the event, all protestors must utilise the footpath to leave, this is to be assisted by the Marshalls at the event for compliance. ∙ Any reasonable police direction is to be promptly obeyed by participants. ∙ No Road Closures will be implemented for the above protest. No procession has been authorised. Should the crowd numbers get too large to be contained safely on the footpath, police will conduct a risk assessment and implement a road closure on Kirribilli Avenue, East of Plunkett Street, Kirribilli, until 1030am. ∙ Participants are not to block vehicular or pedestrian traffic. The organiser is to ensure no participants spill out into any roadway. There will be no vehicles permitted to participate in the event. ∙ Access for residents in Plunkett Street and Kirribilli Avenue are to be kept open at all times. ∙ A letter drop to residents of Kirribilli Avenue (East of Carabella Street) and Plunkett Street is required to inform them of the event and contact details of the event organiser; times and date of the event. This should occur in a timely manner a few days prior to the protest. ∙ Participants involved in the event are not to interfere with or impede members of the public. ∙ If any of the conditions are disobeyed it will be at the discretion of the North Shore Police Area Commander or his representative to cease the assembly. … ∙ The use of any speaker/s or hand-held PA systems must not be offensive and maintained at acceptable level of volume that does not cause disruption or disturbance to nearby locations or businesses. … ∙ The organiser will to the best of her ability assist police in identifying person/s responsible for the commission of any criminal offence. ∙ Marshalls will need to be in attendance on the day and clearly identifiable by way of fluorescent vests. A ratio of 1 Marshall per 20 Participants will need to be in place. ∙ Compliance with any fire ban restrictions on the day to be met. ∙ Police from North Shore Police Area Command will monitor the event and ensure compliance with these conditions. ∙ This approval is valid between 0845 - 1030 on 19/12/2019, unless revoked earlier." [2]
4. The letter included space for but no signature by the organiser. There was evidence from Chief Inspector McFadden that at her request, [3] "North Sydney Council had placed a 'work zone' signs along Kirribilli Avenue to accommodate the number of protesters attending". She stated: "This was to create a safe protest space. I wanted to ensure the safety of the protestors against the local traffic and residential traffic within the area. Within this zone, Police were managing the traffic flow between Plunkett Street and Kirribilli Avenue to provide safe passage for vehicles; as well as the number of protestors. This vehicle access lane was manned by Police for the duration of the protest time." [4]
5. From about 8.20am, the Chief Inspector sought to speak directly to Ms Williams, and did so with others, at 8.47am at about the commencement of the protest. Ms Williams "refused to sign the Conditions Letter though did agree to this verbally". [5] The Chief Inspector several times refused a request to set up tents on the roadway.
6. A speaker announced at 10.14am to the approximately 200 person crowd to "Post on Facebook or Instagram to head over to the Kirribilli Camp out right now" and, according to Chief Inspector McFadden, the: "speaker was encouraging a Camp out at Kirribilli Avenue amongst the protestors until Boxing Day…10 small orange and grey tents that had been set up with on the roadway … [which had] not previously been there at the commencement of the protest". [6]
7. Chief Inspector McFadden informed Ms Williams and others that the "Form 1 [Notification Letter] was due to expire at 11.30am and Police would take action at the cessation of the Form 1".
8. After 11.30am, the Chief Inspector took steps to open the roadway, although it seems this did not occur. She also enquired about the welfare of the protestors and children, and held further conversations with Ms Williams and others about a move on direction. At about 12.50pm, two move on demands were made to the crowd as they were chanting and cheering at the request of one of the organisers.
9. At about 1.30pm, each of the appellants were separately approached by police officers, and given a direction to move on, and in each case, as recorded on video in evidence, [7] each appellant refused, saying, "No" or "I will not" in response to the police direction after a warning that they may be arrested if they fail to comply. Each appellant was arrested after they orally refused to comply with the direction. The conversations with each appellant in respect of the directions were as follows.
10. Mr Antaw: [8] Senior Constable Rolph: Hello, Sir. My name is Senior Constable Mick Rolph North-West LSG. What's your name? Senior Constable Rolph: Ok I need to let you know that this recording is being recorded on body worn video camera it can be used as evidence in court if necessary. Do you understand that? Mr Antaw: I do. Senior Constable Rolph: Ok. Just listen up while I read you some important spiel. I'm Senior Constable Mick Rolph from North-West LSG I'm directing you to cease your actions which are preventing police from reopening this closed road. The road was temporarily closed in accordance with the Road Transport Act to allow your safe movement. I'll now direct you to move off this temporary closed roadway, so that we can reopen the road. I warn you that should you fail to comply with my directions you may be arrested, force may be used. Will you comply with my direction? Mr Antaw: I'm resisting passively. Senior Constable Rolph: Thank you very much 500 metres. Senior Constable Rolph: Sir, 500 metres move on direction. Will you comply? Mr Antaw: No.

1. Ms Kitson: [9] Ms Kitson: I can stand on this road. I'm a resident. I can stand wherever I want. Sergeant Garai: Good afternoon. My name is Sergeant Garai. I'm from the Public Order and Riot Squad. Our conversation and interaction is going to be recorded on body worn video. Ms Kitson: Good. Sergeant Garai: As I have informed you, my name is Sergeant Garai from the Public Order and Riot Squad. I am directing you to cease your actions which are preventing police from reopening this closed road. This road was temporarily closed in accordance with the Road Transport Act to allow safe movement. Now I direct you to move off this temporary closed roadway, so that we can reopen the road. I warn you that should you fail to comply with my direction you may be arrested and force may be used. So will you comply with my direction today? Ms Kitson: No. Sergeant Garai: Arrest team.

1. Ms Lee: [10] Sergeant Garai: Good afternoon, my name is Sergeant Garai from the Public Order and Riot Squad. Our conversation and interaction today will be filmed on body worn camera, both audio and visually. As I have informed you, I'm Sergeant Garai from Public Order and Riot Squad. I am directing you to cease your actions which are preventing police from reopening this closed road. This road was temporarily closed in accordance with the Road Transport Act to allow your safe movement. Now I direct you to move off this temporary closed road, so we can reopen the road. I warn you that should you fail to comply with my direction may be arrested or force may be used. Will you comply with my direction today? Ms Lee: I will not. Sergeant Garai: I'll ask you again. Will you comply with my direction today? Ms Lee: No. Sergeant Garai: Arrest team.

1. The Manager of Rangers and Parking Services at North Sydney Council, Mark Richardson, gave evidence that North Sydney Council had given no permit for the protest and that he attended the protest at "about 11:30am on Thursday 19th December 2019 where [he] received two complaints in person from residents about the noise and protestors blocking the roadway". [11]

Authorised public assembly

1. Section 23 of the Summary Offences Act specifies the requirements for a public assembly to be an authorised public assembly. There must be notice in writing on the prescribed form signed by the responsible person with their address, stating the date, the place or places, the purpose and the anticipated number of participants. None of these matters were in issue. Section 23 also provides a requirement, that "the Commissioner has notified the organiser of the public assembly that the Commissioner does not oppose the holding of the public assembly". [12] Different rules apply where there has been no notification by the Commissioner, [13] but none of the parties raised this as a relevant matter.
2. The Police Force letter of 17 December 2019 confirms that the Police Force consents to, and thus the Commissioner does not oppose, the public assembly. But it attaches certain conditions amending the particulars.
3. As indicated earlier, s 24 of the Summary Offences Act provides some protection against committing an offence in the case of persons participating in an authorised public assembly.
4. Section 24 provides: "24 Participation in authorised public assembly If an authorised public assembly is held substantially in accordance with the particulars furnished with respect to it under section 23 (1) (c) or, if those particulars are amended by agreement between the Commissioner and the organiser, in accordance with those particulars as amended and in accordance with any prescribed requirements, a person is not, by reason of anything done or omitted to be done by the person for the purpose only of participating in that public assembly, guilty of any offence relating to participating in an unlawful assembly or the obstruction of any person, vehicle or vessel in a public place."
5. As the section indicates, the particulars of an authorised public assembly are found on the notice, or, "if those particulars are amended by agreement between the Commissioner and the organiser, in accordance with those particulars as amended". The letter of conditions from the Chief Inspector [14] indicates both that the completion time was amended to 10.30 and amendment by supplementation of the other particulars in the Notice.
6. A question arises as to the application of the word "substantially" in s 24. It clearly applies to the circumstance where the particulars are governed by the Notice. It is less clear whether it applies to the circumstance where the particulars are "amended by agreement". However, I think on balance the better construction is that the word "substantially" applies to both circumstances. But it is plain from s 24 that the disjunctive does not permit an option. Once the particulars are agreed, the agreed particulars displace those on the Notice.
7. Although there was agreement by the organiser with the matters in the Conditions Letter, the forbearance of the police until 11.30am and statements of the Chief Inspector might indicate a subsequent agreement to an 11.30am completion time as originally specified on the Notice, or might indicate some leeway to the specified time being allowed by police.
8. So the public assembly described in the Notice is an "authorised public assembly". But the protection afforded by s 24 only applies to an authorised public assembly held substantially in accordance with the Conditions Letter, or any later agreement between the Commissioner and the organiser. Is an authorised public assembly held "substantially" in accordance with the particulars if it continues beyond 10.30am, or perhaps 11.30am? For a meeting of two to three hours, if it concludes within 30 minutes of the agreed authorised time, such as perhaps 12 noon in this case, it might remain, so far as time is concerned, "substantially" in accordance with the particulars. But after 12 noon, and certainly by 12.30pm, the public meeting was no longer being held substantially in accordance with the particulars.
9. The circumstance that tents were and remained erected on the roadway, contrary to the directions (directions that were contemplated in the letter of conditions), and that participants were on the roadway, again contrary to the clause in the letter of conditions, evidence that the assembly was not, at this time, an authorised public assembly (because it was not one as particularised on the Notice) nor one being held "substantially in accordance with the particulars" (because it did not then comply with the Conditions Letter). This is not to say that participants spilling onto the roadway of itself, within the agreed time, would make the public assembly not an authorised public assembly substantially in accordance with the particulars.
10. Accordingly, by at least 12.30pm, the public assembly no longer attracted the protection against an offence afforded by s 24. Section 24 therefore cannot in the circumstances preclude the police issuing directions in accordance with s 197 of LEPRA. There is no applicable exemption from compliance as the public assembly was no longer an authorised public assembly held substantially in accordance with the agreed particulars. It follows that s 24 had no application to the appellants at the time they were individually given a direction by the police.

Obstructing the road

1. Section 197 of LEPRA provides that: "(1) A police officer may give a direction to a person in a public place if the police officer believes on reasonable grounds that the person's … presence in the place … - (a) is obstructing … traffic …"
2. The appellants argued that the directions given were invalid because they were given for the purpose of reopening the road and none of the appellants were obstructing traffic. The conversations in which the directions were contained, in each case as quoted earlier, identified the reopening of the road as the purpose of the direction, which was earlier closed for the "safety of the protestors against the local traffic" as the Chief Inspector stated. I do not regard the removal of the traffic closures as a prerequisite to a factual finding of protestors obstructing traffic, at least so long as the presence of the protestors on the roadway is a reason for the continued closure of the road. It is obvious enough that the presence of the protestors can obstruct traffic by preventing the road from being opened to afford safety to the protestors. The alternative would present a Catch-22 or chicken and egg dilemma: the road cannot be opened because it would be unsafe to the protestors, and the protestors cannot be removed by direction because the road is closed.
3. A similar argument advanced was that the presence of several other people, tents and other objects were obstructing traffic, not the appellants. The circumstance that other persons or things are also obstructions to traffic does not deny the obstruction constituted by the presence of the appellants on the roadway.
4. The appellants also argued, somewhat faintly, that there was no road access to premises on Kirribilli Ave east of Plunkett St. There did appear to be one driveway accessible from Kirribilli Ave just east of Plunkett St. But whether or not this is so, and whether the protestors on the roadway were by their presence inhibiting vehicle access to Plunkett St, does not alter the circumstance that the eastern end of Kirribilli Ave provided vehicular access to parking spaces located on the sides of the roadway and to the harbourside park at the end of the street. The presence of persons, including the appellants, was obstructing traffic to these locations.
5. In any event, a direction under s 197 does not require the obstruction of traffic, but only that the police officer giving the direction believes on reasonable grounds that the person's presence is obstructing traffic. There was no challenge to the belief of the police officer giving the direction that he believed the direction was necessary to enable the road to be safely reopened to permit traffic for the reasons I have given. The presence of a person on the roadway, in the circumstances indicated by the video recording constituted a reasonable ground for that belief.
6. Mr Antaw also complained about the direction that he should move 500 metres. It is doubtful if that is part of the initial direction to Mr Antaw, but if it is, it is, in my view, reasonable in the circumstances under s 197(2) of LEPRA for "reducing or eliminating the obstruction" by ending the public assembly blocking the road.
7. Section 200 of LEPRA expressly provides that a police officer is not precluded from giving directions to an "organised assembly" in certain circumstances. These include where the assembly or protest "is not an authorised public assembly" under s 24, or when the assembly or protest "is not being held substantially in accordance" with the authorisation granted, [15] so long as the police officer in charge has authorised the giving of directions [16] (as occurred by the Chief Inspector's reference to "any reasonable police direction is to be promptly obeyed by participants" in the Conditions Letter and by the Superintendent [17] and by the Chief Inspector's directions at the scene), and where the direction is limited to the persons who are obstructing traffic, [18] such as the three appellants on the roadway here. The fulfilment of each of these matters confirms that the directions were within the liberty granted to the relevant police officers under s 200 of LEPRA.
8. I am satisfied beyond a reasonable doubt that the directions given to Ms Kitson and Ms Lee by Inspector Garai and by Senior Constable Rolph to Mr Antaw, were issued by the officers holding a belief based on reasonable grounds that in each case the presence of Ms Kitson, Ms Lee, and Mr Antaw was obstructing traffic in the way I have identified.

Persisting

1. Section 199 of LEPRA creates the offence of refusing without reasonable excuse to comply with a direction, the offence for which each of the appellants was charged. No reasonable excuse was asserted and the refusal was in each case patent from the recording. The circumstance that reassurance may have been given by the organiser or others about the rightness of their cause, or to not be troubled about the police directions, is at least in the case of the appellants as shown on the video recording, not a reasonable excuse. But s 199(2) precludes guilt for the offence unless the person persisted, after the direction, to engage in the relevant conduct.
2. Persisted in this context is especially relevant where a person, contrary to s 199(1), fails, rather than refuses, to comply with a direction. In that case, it is necessary that the failure persists and is not merely momentary. This is to ensure that a person receiving a direction is given a reasonable opportunity to comply. A momentary failure is insufficient to constitute the offence.
3. But where there is, as in this case, an express refusal to follow the direction and desist from the relevant conduct the requirement that the person "persisted" adds little to the refusal. After the direction was given, each of the appellants persisted to engage in the conduct of remaining present on the roadway throughout the remainder of the conversation, including the time when each appellant was given a warning of a possible arrest if they did not comply, and continuing when the officer asked if they would comply, and up to and during the time they refused to comply by replying in the negative to the officer. This was not a momentary failure, but a clear and persistent refusal, and is sufficient to place the appellants outside the exemption provided in s 199(2). This is confirmed by the terms and manner of the refusal in each case.
4. Mr Antaw in submissions asked rhetorically whether it would be different if he "walked away whilst saying 'No'" or if he "stood still and said, 'Yes' or even walked two steps after saying 'Yes'". It is unnecessary to determine these hypothetical matters, which have no application to Mr Antaw or any of the appellants. Plainly enough, if the circumstances had been different, the offence might in those different circumstances not have been proven. It is not relevant to the present circumstances.
5. I am satisfied beyond reasonable doubt that each of the appellants persisted to engage in the relevant conduct of remaining present on the roadway after the direction was given, remaining unmoved whilst the warning was given, and a request for compliance was made, and by thereafter refusing to comply by the words and behaviour indicated earlier and as shown on the video recording. Persistence does not, in my view, require any particular time period to elapse after the direction before non-compliance constitutes an offence. The submitted "quick exchange", if that is what occurred here as the appellants submit, was sufficient to manifest that the appellants persisted in the conduct.

Other matters

1. Argument occurred in relation to earlier move on directions given to the whole group which made references to the Traffic Act. It might be doubted whether a reference to an incorrect provision invalidates the direction, but, in any event, the appellants' knowledge of the more general directions is not clearly established by the evidence on the footage, so it is unnecessary to explore this issue. The determinations of guilt of the appellants are, in each case, in relation to a refusal to comply with a direction given personally to each of them. It also means there is no utility in exploring the possible meaning of a note in the notebook of Senior Constable O'Rourke that: "Obstruction traffic - Cannot proceed with" since, as the note then indicates, a "direction given under LEPRA". [19]
2. For these reasons, I am satisfied beyond reasonable doubt of the guilt, in respect of each appellant separately, of an offence under s 199 of LEPRA for a persisted refusal to comply with a direction made under s 197(1)(a) of LEPRA.
3. For each appellant, I find the offence proven and dismiss the conviction appeal.

Endnotes

1. Exhibit A, p 35.
2. Exhibit A, pp 43-44.
3. Exhibit A, p 29.
4. Exhibit A, p 29 at [9].
5. Exhibit A, p 30 at [11].
6. Exhibit A, p 30 at [13].
7. Exhibit B.
8. Exhibit B, GRIMES folder, VTS_01_1.VOB at 8:00-8:49; cf Exhibit A, p 137 at [6].
9. Exhibit B, CLIFT folder, VTS_01_1.VOB at 19:25-20:08; cf Exhibit A, p 69 at [6]-[8].
10. Exhibit B, CLIFT folder, VTS_01_1.VOB at 21:30-21:47 and VTS_01_2.VOB at 00.00-00.29 cf Exhibit A, p 71 at [6].
11. Exhibit A, p 135 at [9].
12. At [23(f)].
13. S 23(1)(f)(i) and (ii).
14. Exhibit A, pp 43-44.
15. S 200(4)(a).
16. S 200(4)(b).
17. Exhibit A, p 18 at [16].
18. LEPRA, s 200(4)(c).
19. See Exhibit A, p 52. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 October 2022