NSW Commissioner of Police v Folkes

NSW Commissioner of Police v Folkes - [2015] NSWSC 1887 - NSWSC 2015 case summary — Zoe

[3]

The legislative framework

Part 4 of the Act makes provision for public assemblies. Section 23 provides that a public assembly is an "authorised public assembly" if: 1. Notice in writing of the intention to hold the assembly is served upon the Commissioner and contains the particulars prescribed, including the date, time, and place at which the public assembly is to be held; where the assembly is a procession, the proposed route of the procession; the purpose for which the proposed public assembly is to be held; and the number of persons expected to participate (s 23(1)(a), (b), (c) and (d), and Sch 1 of the Summary Offences Regulation 2010); and 2. The notice is signed by, and gives an address of, a person who takes responsibility for organising and conducting the public assembly (s 23(1)(e)); and 3. Either, the Commissioner does not oppose the holding of the public assembly, or, where the notice is served at least 7 days before the date specified in the notice as the date on which it is proposed to hold the public meeting - the holding of the public assembly is not prohibited by the Court under s 25 of the Act (s 23(1)(f)).
Section 24 of the Act provides that, if an authorised public assembly is held substantially in accordance with the particulars furnished with respect to it, participants are 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."
It can therefore be seen that s 24 provides a measure of protection to a person who participates in an authorised assembly held substantially in accordance with a s 23 notice, from prosecution for participating in an unlawful assembly or obstructing any person, vehicle or vessel in a public place. The protection afforded does not prevent the prosecution of a person who engages in acts of violence or vandalism in that assembly: Commissioner of Police v Rintoul [2003] NSWSC 662 at [24] per Simpson J.
Although s 24 of the Act contemplates that particulars of the public assembly (date, time, place etc.) may be amended by agreement, the Court has no power to amend the notice or to authorise any assembly other than that specified in the notice. Accordingly, the assembly specified in the Third Notice is the one with which I am concerned.
Section 25 of the Act provides that the Commissioner may apply to this Court for an order prohibiting the holding of a public assembly in respect of which a notice referred to in s 23(1) has been served, if the notice was served 7 days or more before the date specified in the notice as the date on which it is proposed to hold the public assembly.
Section 27 of the Act provides that the Court to which an application in respect of a public assembly is made under s 25: "…shall decide the application with the greatest expedition possible so as to ensure that the application is not frustrated by reason of the decision of the Court being delayed until after the date on which the public assembly is proposed to be held."
The Court's jurisdiction to make the order sought depends on two notices having been given: first, the defendant must give notice to the Commissioner under s 23(1) of the Act indicating the intention to hold a public assembly and providing the particulars required; and, secondly, the Commissioner must give notice to the defendant under s 25(2) of the Act inviting the defendant either to confer with respect to the public assembly at a specified time and place, or to make written representations to the Commissioner with respect to the public assembly within a time so specified. I am satisfied that the requisite notices under the Act have been given such as to confer jurisdiction on the Court to determine the plaintiff's application, which was made within time.

[16]

Promotion of the rally by the Party for Freedom

The Party for Freedom has extensively promoted the rally, on its website, Facebook page and through other social media. It has distributed leaflets. It posted, on its Facebook page, an invitation to the Socialist Alliance (a group known to hold opposing views on immigration): "We invite Socialist Alliance to our massive Cronulla Beach Party!"
The defendant, in cross-examination, described the relationship between the Party for Freedom and the Socialist Alliance in the following terms: ". . . we are in complete opposite ends of the political spectrum on cultural issues"
On 7 December 2015 the website of the Party for Freedom contained an article entitled "2015 Cronulla Riots Memorial" which began as follows: "This year marks the ten year anniversary of the Cronulla Riots, a very important date in the Australian calendar that will be commemorated on Saturday 12th December 2015 at Cronulla Beach, Cronulla. Party for Freedom will be holding a memorial service, and invites you to attend. We ask you to invite your friends and family and reach out to Cronulla locals who were affected by the devastating and brutal cover-up perpetrated by the state and federal governments. For many years prior to the Cronulla Riots, Middle Eastern gangs from southwest Sydney were cruising the streets of Sydney looking for trouble. Many of these Islamic gangs targeted Australians especially Anglo-Australians who lived in the Shire. For many Australians, the Cronulla Riots represents a time 'when Aussies stood their ground' against years of oppression and intimidation committed by southwest Sydney gangs . . ."
The views of the members of the Party for Freedom are revealed by the following paragraph from its "Mission Statement" in its constitution: "2.3 The Party for Freedom rejects multiculturalism, and advocates an immigration policy based on cultural compatibility; where new migrants should not be sourced from countries or ethnicities in greater proportion than their current share of the population; rejects Islam as fundamentally incompatible with these values, and is committed to regaining control of Australia's borders."

[17]

The evidence

The plaintiff read the following affidavits in support of the summons: 1. the affidavit of Elizabeth Wells sworn 3 December 2015 (in support of the dates of the notices served under the Act); 2. the affidavit of Commissioner O'Toole sworn 7 December 2015 (as to the factual background and the media reports of the events in December 2005); 3. two affidavits of Bridget Turk sworn 7 and 9 December 2015 (to which are annexed screenshots downloaded from the websites of the Party for Freedom and the "Great Aussie Patriot"); and 4. an affidavit of Chief Inspector Michael Rochester sworn 7 December 2015 as to the events at Cronulla in 2005 and the risk of conflict and public disorder proposed by the public assembly.
Of the plaintiff's witnesses, only Superintendent O'Toole was cross-examined.
The plaintiff's affidavit evidence established: the Court's jurisdiction to make an order; the concerns of the police about the potential for disruption to public order; and the rejection by the defendant of alternatives which it contended were reasonable; and the defendant's determination to hold the public assembly irrespective of the outcome of these proceedings.
The defendant relied on his own affidavit of 9 December 2015. He deposed that the Party for Freedom has 380 financial members. The party intends to become registered as a political party but presently has insufficient members as 500 are required for that purpose. He also deposed that the rally is the largest organised by the party. He deposed that if the police advise him on Saturday 12 December 2015 that they fear the rally is about to turn violent, he will tell those present that they ought to leave, and he, too, will leave the area.
In cross-examination, the defendant accepted that any prediction of numbers attending the rally was no more than a "guesstimate" and accepted that no confident, accurate assessment of numbers could be given. He agreed that, since 22 October 2015 when he had provided the estimate of 400 to 1,000 in the Second Notice, the Party for Freedom had heavily promoted the event including by posters, social media, its website and by the distribution of leaflets. The defendant also learned that supporters and like-minded people would come by bus from Melbourne and Canberra to attend the public assembly.
The defendant agreed that one of the speakers, Mr Burgess, is an "excitable speaker", whom some might see as provocative, and who has a "phenomenal following". The defendant said that people would turn up to the rally, even if the Party for Freedom did not. When pressed in cross-examination to give his best estimate of numbers the defendant responded: "I have to be honest, I don't know, I don't have a crystal ball, I don't know what tomorrow holds."
The defendant, in the course of his cross-examination, accepted that his power to control the rally he had arranged was limited. The following exchanges provide illustrations: "Q. You can't stop people bringing alcohol to this event on Saturday? A. Possibly. I couldn't stop somebody bringing an explosive on the day, no." . . . Q. I want to put to you the proposition that you lack the capacity to control the people, whatever their numbers turn out to be, who attend your rally if it goes ahead on 12 December? A. Well that is, with due respect, that is not my job to control the crowd. HER HONOUR Q. That is not what was asked. Could you answer Mr Temby's question, you lack the capacity to control the people who attend your rally? A. I don't have the capacity, I don't have the capacity. TEMBY Q. You can't do it no matter how hard you try, you just can't do it? A. I am not the Police Force, that is not my definition of who I am or what I'm undertaking . . ."
The defendant admitted in cross-examination that one could interpret the invitation issued by the Party for Freedom to the Socialist Alliance as a "deliberately provocative act", although he did not admit that this was its purpose.

[18]

The potential for violence and other breaches of public order and violence

The plaintiff also adduced evidence, which was not objected to, of contemporaneous reports of the Cronulla riots in 2005. The affidavit of Chief Inspector Rochester sworn 7 December 2015 was read without objection. He was not required for cross-examination. I accept his summary of what occurred between 11 and 13 December 2005 as follows: "8 The Cronulla Riot on the 11 December 2005 and the reprisal attacks during the nights of 11 and 12 December 2005 was the third significant public order incident that NSW had experienced within a short period of time. The consequences of the Cronulla riot included the introduction of new legislation and the formation of the Public Order & Riot Squad, which commenced operations on 12 February 2006. 9 Based on my knowledge I can state that, in summary, the events of Sunday 11 December 2005 started at North Cronulla Beach with the presence of a large crown behaving in an orderly fashion. As the day progressed, the predominately Caucasian Australian crowd, fuelled by racial prejudice and excessive alcohol consumption became violent. The immediate result of this was that people of ethnic appearance were attacked on sight, with little or no provocation. 10 Sunday 11 December 2005, a crowd had commenced to gather in the vicinity of Dunningham Park and North Cronulla Surf Club from about 8:00am. About 10.00am a rally took place in the vicinity of the North Cronulla Surf Club with about 5,000 people in attendance. Whilst the rally commenced peacefully, a number of speakers incited the crowd, and that, coupled with excessive alcohol consumption, led to the violence that followed shortly thereafter. 11 About 1:00pm the violence commenced when a large crowd meeting near Prince Street saw a Middle-Eastern male near the surf club. About the same time two pigs heads were found on the door step of the Arncliffe RSL club. Later in the afternoon, Police were dealing with riotous behaviour on three fronts, Dunningham Park / North Cronulla Hotel, Prince Street and Cronulla Railway Station. 12 Later that evening the first sign of reprisal activity surfaced. As the evening progressed groups of Middle-Eastern males were being reported at Sans Souci, Arncliffe Park and Punchbowl Park. Later further reports of convoys of vehicles leaving Punchbowl Park heading to Cronulla, Maroubra, Brighton-Le-Sands and even Wollongong, were being received by the police command post. A secondary site of significant public disorder occurred at Maroubra Beach where it is reported that over 100 Middle-Eastern males, some armed with baseball bats and assorted weapons caused damage to vehicles parked in the vicinity. 13 I am aware that, as the evening progressed, Tom Ugly's Bridge was locked down to filter traffic into one lane, in an attempt to stem the flow of vehicle convoys coming from the Punchbowl Park area. A further vehicle checkpoint was needed at Grand Parade and Bay Street, Brighton-le-Sands. Numerous groups of between 100-200 Middle-Eastern males were causing extensive property damage and attacking Police responding to the incidents. The reports and incidents of public disorder continued at Brighton-Le-Sands until approximately 11:00pm. Order had been restored to a certain extent shortly after midnight. … 17 … Immediately after or during the incident, 27 persons were arrested and charged with a range of offences. In total 104 persons were charged with 285 charges relating to offences committed over that three day period. 30 persons received minor to serious injuries as well as two ambulance officers and seven police officers being injured. Many of the injured persons required ambulance transport to and hospital treatment at nearby Sutherland Shire Hospital. The property damage was significant with numerous shop windows smashed and damage to the Brighton-le-Sands Post Office. More than 50 vehicles alone were extensively damaged. Numerous Police and Ambulance vehicles were also damaged throughout the incident."
Chief Inspector Rochester (who was not cross-examined) deposed to the risk of violence posed by the proposed public assembly in the following terms: 23 Based on my experience, and the information available to Police regarding the nature of the proposed assembly and the participants, I have no doubt that elements of the proposed assembly will not only ignore Police directions, but, will deliberately commit offences. Should the Police need to arrest an individual/s I have no doubt they will be hindered significantly in the execution of their duties. I am very concerned that the placing of Police between two opposing rallies may degenerate into serious public disorder. I am very concerned that injuries will be occasioned to participants, bystanders and Police. Property damage will ensue and significant policing resources will need to be diverted from their normal community policing duties to restore public order. 24 …The risk of conflict, injuries, property damage and significant public disorder is HIGH and cannot be mitigated due to the geography, topography and demographics of the proposed assembly."
Superintendent O'Toole deposed as to his concerns for the safety of the public given the numbers expected to attend and the "highly controversial" nature of the event. His concerns were not limited to the Don Lucas Reserve and its environs but extended to the Woolooware and Cronulla railway stations, the beaches and pedestrian walkways in the area.

[21]

Whether an order ought be made

I regard the plaintiff's application for a prohibition order as strong. The risk to public order has been demonstrated. Indeed, it could not be seriously controverted. The selection of the date and location for the public assembly as well as its express purpose are, of themselves, both telling and ominous. However law-abiding and peaceful the defendant himself might be, he would be wholly unable to control a crowd of hundreds, even if they were all like-minded.
The literature disseminated by the Party for Freedom, the logo on the T-shirt and the express purposes of the rally itself (as disclosed in the First, Second and Third Notices) are, at least, provocative, if not inflammatory. The invitation issued by the Party for Freedom to the Socialist Alliance to the "massive" party is nothing short of a challenge. Although the Party for Freedom and Socialist Alliance may be old antagonists whose disagreements are not generally resolved by force, the same cannot be said of others who hold similar views. The prospect that the members of the opposing camps would resolve their differences by discussion and debate is no more than fanciful.
I reject the submission made by Mr Loxton that the order ought not be made because the rally would go ahead irrespective of the order. The submission misapprehends the purpose of the application, which is to ensure that the police have available to them all relevant powers and are not inhibited in exercising those powers by the limited protections that would otherwise be afforded to those who had served a notice under s 23 of the Act.
I reject the distinction drawn by Mr Loxton between the risk of violence posed by those holding similar views to the defendant and the risk posed by those holding opposing views. There is no reliable evidence that the adherents to either camp could be distinguished on the basis of their preparedness to resort to violence or other anti-social acts. Chief Inspector Rochester, who deposed to his expectation that "elements of the public assembly" (including those who share the defendant's views on immigration) will "deliberately commit offences", was not cross-examined.
That the defendant served a notice under the Act and no notice has apparently been served by any opposing group is, in the circumstances of the present case, immaterial. The refusal of a prohibition order is not a reward for acquaintance with the Act or compliance with its procedures, any more than its making is a punishment.
Moreover I regard as entirely speculative the proposition that, if those attending the defendant's rally were afforded the protection of s 24 of the Act, they would be more likely to be law-abiding and comply with directions given by the police.
I reject the defendant's submission that I should refuse the prohibition order because the proceedings have been heard so close to the proposed event that no alternative location or format is practically available. The Act itself contemplates that the Commissioner is entitled to bring an application for a prohibition order under s 25 as long as it is served seven days or more before the public event in question. Moreover, the Commissioner is entitled to bring only one application under ss 25(1) or 26 in respect of the same public assembly: s 27(3). Accordingly, it is prudent for the Commissioner to wait until an applicant has served a notice which represents his or her final position before commencing proceedings. I note that there were, in the present case, relatively substantial differences between the First and Third Notices. Furthermore, the Commissioner is not entitled to commence proceedings until the Commissioner has conferred with the organiser and taken into consideration matters raised by the organiser.

At a glance

Court

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Judgment (25 paragraphs)

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Legislation Cited (1)

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Cited By (4)