Pullen v R

"A person must not in or on a public passenger vehicle or train, or in a public area:

a) behave in an offensive manner; or

b) use any offensive language; or

c) wilfully interfere with the comfort or safety of other persons; or

d) put any of the person's feet on a seat; or

e) spit.

Maximum penalty: 10 penalty units."

5. I note that the charge before the Court is one under subclause 50(c), which refers to "wilfully interfere with the comfort or safety of other persons". I note, however, that the prosecutor in the Local Court particularised the charge as being limited to interference with the comfort, and did not argue that the actions of the appellant were such as to interfere with the safety of other persons.

6. The elements of the alleged offence, which the prosecution had to prove beyond reasonable doubt, were as follows:

Element 1: That the appellant did “wilfully”.

Element 2: Interfere with the comfort of other persons.

Element 3: That it was in or on a public passenger vehicle or train, or in a public area.

7. In relation to the second element, the words "interfere" and "comfort" are not defined. That is, no doubt, because they are everyday English words. They should, in my view, be given their ordinary English meaning and require no more explanation. The offence in subclause 50(c) requires, therefore, that there be some interference in the feeling of comfort of another person or persons.

8. In relation to the third element, "in or on a public passenger vehicle or train, or in a public area", I note that the phrase "public area" is defined in cl 48 of the Regulation as meaning "any part of railway premises that the public uses or is entitled to use".

9. There is no dispute that the events in question occurred in or on a train, and/or on a part of railway premises that the public uses, or is entitled to use. There is, therefore, no dispute as to this third element. There is, however, a dispute about elements 1 and 2.

10. The appellant was spoken to by police on the day in question and eventually provided details of his identification and residential address. He declined, however, to provide some other information. The fact that he so declined involved an exercise of his right to silence, and this cannot be used against him or in support of the prosecution case in any way.

11. The appellant did not give evidence in the Local Court. This does not change the fact that the onus of proof is always, and was always, on the prosecution. The fact that he did not give evidence is not a matter that can be used against him in any way, nor could it, or can it, be used to support the prosecution case in any way.

12. Turning then to a summary of the evidence. The prosecution called evidence from two police officers, those being Constable White and Chief Inspector Thorp. Through the evidence of Constable White, there was tendered the contents of a triple-0 call; some CAD, that is computer assisted dispatch, entries; some CCTV material from Artarmon railway station; and a body-worn video interview with the appellant, which took place on North Sydney railway station on the afternoon of Australia Day, 26 January 2024.

13. Officer White said, by way of background, that police had received information via triple-0 calls about a group of men being in Artarmon Reserve and that police were instructed to prevent them heading into the city because of information suggesting an intention to clash with "Invasion Day" protestors.

14. Chief Inspector Thorp gave evidence to the effect that on 26 January 2024, he was the inspector-in-charge of the North Shore Police Area Command. He said he became aware of reports about a group of males in Artarmon Reserve and noted that there was no approved planned protests relating to such a group.

15. He said that he attended at North Sydney railway station, where the group had been stopped on the train by police, and that subsequently, when the group were being moved from the railway station to Blue Street, North Sydney, where the railway station is based, he observed people crossing to the other side of the road to avoid the group.

16. He was asked about a logo which was depicted on a T-shirt being worn by the appellant, which was captured on body-worn video, and said that he recognised it as a white supremacist logo.

17. In cross-examination, he was asked if he was aware of any particular people whose comfort had been interfered with, and he referred to his observations of members of the public crossing the road to avoid the group. He also was asked in cross-examination what behaviour it was that led him to believe that the comfort of some other persons was being interfered with. In response, he said that he had made an assessment that a reasonable person would not have entered the carriage where the group was located.

18. The prosecution also relied on some audio and audio visual material, as well as some CAD entries relating to triple-0 calls. There were also some body-worn video and audio recordings made by police at North Sydney railway station, where they stopped the train and spoke to the appellant and others.

19. It was agreed that this material showed the large group of men seated and/or standing inside a railway carriage, dressed in the same manner and carrying the same items as were depicted on CCTV material from Artarmon railway station, a matter about which I will make comment and description shortly.

20. There is little or no dispute about the evidence that was admitted in the Local Court proceedings and what it depicted. There was, and is, however, a dispute as to what conclusions ought to be drawn from the evidence, and whether it proved beyond reasonable doubt all of the elements of the alleged offence.

21. The appellant, who represented himself, both in the Local Court and in this Court, made a number of submissions as to why the alleged offence should not have been found to have been proven. The appellant's main arguments were as follows.

22. Firstly, that the offence requires proof that the appellant intended to interfere with the comfort of other persons and cannot be made out on the basis of recklessness.

23. Secondly, that the prosecution had not proven that the appellant's actions, or the actions of the group, had interfered with the comfort of any particular person or persons.

24. Thirdly, and related to this second point, that the only evidence that the prosecution had of anyone feeling uncomfortable was the triple-0 call from a man who the appellant suggested was Sri Lankan and might have been a tourist.

25. Fourthly, but also related to the second point that I have set out earlier, the appellant argued that the CCTV, which showed the reaction to the group by other people on the train premises at Artarmon, did not support the conclusion that they were intimidated or made to feel uncomfortable.

26. In further support of his arguments, the appellant made a submission in which he sought to draw an analogy to a homeless and dishevelled person, or a rowdy group of football fans getting onto a train. He argued that this might make other rail users feel uncomfortable, but argued that such a person would not be charged with committing this offence. In my view, it is unnecessary to examine these analogies however, because each case must depend on its particular facts.

27. The appellant also submitted that the decision to charge him was frivolous and likely a decision from some "higher ups", and that the Magistrate, in finding him guilty, was following an "agenda", although it was never made clear to me what this agenda was, or what was meant by the submission.

28. Turning then to my consideration of the evidence and the issues that have been raised.

29. Firstly, in relation to the appellant's argument that the Magistrate, in finding the offence proven, was subject to some "agenda", I immediately record the fact that there is no evidence whatsoever to support this suggestion, and it should not have been made. There is no basis to suggest that the Magistrate did anything other than treat the appellant fairly, attempt to apply the law to the evidence and arguments presented to her, and to give a prompt decision, which she did on the day, without the benefit of a transcript, and without the luxury of time to reflect on and refine her reasons.

30. As to the appellant's suggestion that the decision to charge him was frivolous and likely directed by some "higher ups", again, there is no evidence to support such a suggestion. In any event, the ultimate question of whether or not there was, or is, any basis to the charge brought by police is a matter for the Courts, which are independent of police and government.

31. I have already noted in summary the evidence that was admitted. However, it is necessary to examine that evidence closely, and to be clear as to what it was admissible to prove, and what the evidence did prove.

32. Firstly, there was played to the Court the audio of a triple-0 call that was received on the morning of 26 January 2024. That call appears to have been made by a person located at Artarmon Reserve who reported having seen a group of men dressed in black who were gathered in the Reserve with drums and a large sign saying, "Australia for the white men".

33. The caller went on to say that he was not white, and that he felt a little bit intimidated, although he noted that the men in black were "not really doing anything to anyone".

34. In tendering that recording, the prosecutor in the Local Court indicated that it was relied on as providing "context" to CCTV footage from Artarmon railway station, which was subsequently admitted into evidence "in relation to fears of members of community and the like". In closing arguments, the prosecutor again referred to the triple-0 call as providing "context" and conceded that it did not go towards the elements of the offence.

35. In my view, there was no error in the Magistrate admitting into evidence the contents of the triple-0 call, but this evidence was admissible for a very limited purpose. That purpose was to explain how it was that police later came to obtain CCTV footage from Artarmon railway station, and why police stopped the train at North Sydney railway station, where the appellant and others were taken from the train and spoken to.

36. Specifically, I note that in my opinion, the contents of the triple-0 call, being things said by a person who was not called to give evidence, and who was not present at any railway station, was not admissible to prove that the men were carrying a sign with the words, "Australia for the white men", and was not admissible to prove that the caller, or anyone else, felt intimidated.

37. Secondly, I reach the same conclusion as to the use that could be made in the proceedings of the contents of the CAD materials. In other words, they were admissible to explain why police subsequently stopped the men at North Sydney and obtained CCTV footage from Artarmon railway station. However, the CAD materials were not admissible to prove the truth of any of their factual contents.

38. A third and important category of evidence from the perspective of both the prosecution and the appellant was the CCTV recordings from Artarmon railway station. There were a number of locations and different angles from which this material was recorded, but in summary, the pertinent parts showed, on my examination of them, the following.

39. The group of men, comprising more than 60 in total, were all dressed in black clothing, which essentially covered their bodies from head to toe. All of them were wearing a covering over their head, being either a black hat or cap. With the exception of one man, whose face was uncovered, each of the men was wearing some sort of black face covering, being either a balaclava type of item and/or dark sunglasses. One of the men was carrying a bass drum and drumsticks, and at least one other was carrying a megaphone.

40. Amongst the group were men carrying a total of three large flags on long poles. One of them appears to have been an Australian flag; another a Union Jack; and a third being mostly blue and otherwise unidentifiable.

41. One of the men was carrying a banner on a pole, but it is not possible to read any words on that banner on the CCTV recording. Also, two of the men each had a shield attached to one arm.

42. The CCTV material shows the men at Artarmon railway station walking and running in the entrance tunnel under the platform; walking or running up the stairs; and then entering a carriage, or carriages, of a train that had arrived on the platform. The CCTV also shows other commuters in the entrance tunnel, on the stairs, and on the platform. In the footage taken from the tunnel under the station, there can be seen two women accompanying a small child, and another male, who stop and wait while the group of 60 plus men run or walk up the stairs before following them up to the platform.

43. As I have earlier set out, it was necessary for the prosecution to prove beyond reasonable doubt each of the elements of the offence. The first element requires proof that the appellant acted "wilfully". The word "wilfully", when appearing in a statutory provision, is not always given the same meaning: see Environmental Protection Authority v N (1992) 26 NSWLR 352 at p 355 para B.

44. The meaning of the words "wilful" and "wilfully", where they appear in a statute or legislative instrument, are ordinarily to be determined by reference to the context in which they are used, and by reference to the purpose of the statute or legislative instrument in which they appear. In other words, the terms "wilful" and "wilfully" have no fixed meaning in law. Their meaning is to be determined by principles of statutory construction.

45. Nonetheless, it seems generally to be accepted that where the words "wilful" or "wilfully" are used in a criminal context, they will ordinarily require that intention and/or knowledge be proved: see Iannella v French [1968] 119 CLR 84.

46. However, and as was said in that case by Barwick CJ:

"The problem is to determine in the particular circumstances what is to be intended and what known. The answer, as I said, must vary with the nature of the act proscribed and the context of the statutory provision creating the offence."

47. While Barwick CJ was in the minority as to the actual result in that case, this and other passages from his judgment have been quoted with approval in a number of subsequent cases.

48. Returning to the case at hand. There can be no doubt that the appellant acted "intentionally" or "wilfully" by attending at Artarmon railway station and travelling by train to North Sydney railway station with a large number of other men, all dressed in black, all of them wearing a black hat or cap, and, with the exception of one man, all wearing black balaclavas and/or dark sunglasses. As I have said, there is no dispute that the actions of the appellant in so acting were intentional, and therefore "wilful".

49. In my view, therefore, the Magistrate was correct in finding that the first element was proved beyond reasonable doubt. However, this on its own is not enough to make out the offence because the prosecution had to prove all elements beyond reasonable doubt. This brings me to the second element, which is that the actions of the appellant did "interfere with the comfort of other persons".

50. This element raises two questions. The first question relates to the mental element, which the prosecution had to prove under this second element. The second question relates to whether it was necessary for the prosecution to prove that the comfort of some person, or persons, was, in fact, interfered with.

51. Dealing firstly with the mental aspect of this second element. This raises a question of construction and interpretation. Does the offence, created by subclause 50(c), require proof that the person (in carrying out an intentional/wilful act) intended to bring about a particular result? Is it necessary for the prosecution to prove that the person intended to "interfere with the comfort" of other persons? Such an interpretation would be to import what might be called "full mens rea" into the offence.

52. Alternatively, is it sufficient for the prosecution to prove some lesser level of advertence (such as recklessness) as to the "comfort of other persons", or indeed is it not necessary for the prosecution to prove advertence to the comfort of others at all?

53. In 1985, the High Court of Australia in He Kaw Teh v The Queen [1985] 157 CLR 523, reaffirmed the common law presumption that knowledge of the wrongfulness of one's acts is ordinarily an essential element of every criminal offence, although one that is liable to be displaced by either the words of the statute creating the offence, or by the subject matter with which it deals.

54. One of the factors to be taken into account in determining whether an offence provision requires a guilty mind (rather than merely a deliberate act) is the gravity of the offence: see He Kaw Teh at pp 535 and 583.

55. The gravity of the offence that is the subject of this appeal is marked by a maximum penalty of ten penalty units; that is, $1,100 in total. It does not carry a potential prison term. The offence is, therefore, near the very lowest level of seriousness when compared with other criminal offences in New South Wales. This is a matter which points away from an interpretation of the provision as being one involving "full mens rea".

56. The Crown, in written submissions, drew to my attention the decision of Beech-Jones J (as his Honour of the High Court then was) in R v Obeid (No. 11) [2016] NSWSC 974, where the Court considered the meaning of the word "wilful" for the purposes of the offence of wilful misconduct in public office. In that case, after reviewing case law and academic discussion, the Court concluded that where a statutory offence requires mens rea as to the wrongfulness of the person's conduct, recklessness as to that circumstance will generally be sufficient.

57. In subclause 50(c) of the Regulation which is the subject of this appeal, the relevant "circumstance" is the capacity of a person's conduct to "interfere with the comfort or safety of other persons". It might therefore be argued on behalf of the appellant that the prosecution must prove that he wilfully engaged in conduct with the intention that his conduct would, or should, "interfere with the comfort or safety of other persons". I accept that that is one possible interpretation of the operation of subclause 50(c).

58. However, in my opinion, based on the context of subclause 50(c) and the apparent object of cl 50 as a whole, such an interpretation would involve an inappropriate restriction on the intended operation of the provision. It would mean that a person could only be found guilty of the offence in subclause 50(c) where there was an actual intention to interfere with the comfort or safety of others.

59. There would be no liability where a person acted recklessly with no concern for the comfort or safety of others. That would, in my view, be a surprising result, and would not appear to be in accordance with the apparent intention of cl 50, which is to preserve the comfort and safety of persons using public transport.

60. There are indications in other parts of cl 50 which support the conclusion that the clause is not intended to be so restricted. Subclauses (50)(a) and (b) refer, respectively, to behaving in "an offensive manner" and to using "offensive language". It is clear, in my view, that with each of these subclauses, an objective test is to be applied to whether something is "offensive".

61. In other words, these subclauses do not require the prosecution to prove that the defendant subjectively intended, believed, or thought that their behaviour or language was offensive. Rather, the test is an objective one. The question being whether an ordinary respectable member of the community would, in the circumstances, regard the behaviour or language as offensive.

62. On that interpretation, it is not necessary for the prosecution to prove that a defendant had an intention to be offensive, although it would be necessary to prove that the defendant was at least reckless, in that she or he realised the possibility that their conduct may be offensive to others, but went ahead and acted, regardless of this possibility.

63. In my view, the matters which I have discussed above support the conclusion, which I have reached, that subclause 50(c) does not require proof of an intention to interfere with the comfort or safety of others. All that is required is proof that a person carried out an intentional, that is, wilful, act and that the person was at least reckless as to whether that act would, or could, interfere with the comfort or safety of other persons.

64. Turning then to the second question that I have identified as arising from this second element. Does the prosecution have to prove that there was, in fact, some interference with the comfort or safety of other persons, or is it enough, as the Magistrate concluded, that there would have been interference to the comfort of the "hypothetical reasonable person"?

65. There are offences on the criminal calendar where it is not necessary to prove that any identified individual was affected by the offending behaviour. A very good example is the offence of affray in s 93C of the Crimes Act 1900. To make out the offence of affray, all that is required is proof of unlawful violence towards another person, which, in the circumstances, would cause a person of reasonable firmness, present at the scene, to fear for their personal safety. However, s 93C includes a specific provision stating that there is no need to prove that a "person of reasonable firmness" was actually present at the scene.

66. There is no similar provision in subclause 50(c) of the Regulation. In the absence of such a provision, it would only be appropriate to apply a "hypothetical reasonable person" test to the terms of subclause 50(c) where such a test is clearly intended or implied by the terms of the provision, or where the intended operation of the provision would be frustrated by not applying such a test.

67. In my view, there is no clear intention in subclause 50(c) to incorporate a "hypothetical person" test as opposed to proof of interference in the comfort of actual persons. Also, I am not satisfied that the operation of subclause 50(c) would necessarily be frustrated by failing to apply a "reasonable hypothetical person" test.

68. In my view, therefore, it was necessary for the prosecution to prove that, even if only to some minimal extent, there was actual interference in the comfort of some person or persons. However, in my view, the Court, in considering whether there was proof of an interference in the comfort of other persons, was entitled to take into account, as one relevant consideration, what a hypothetical reasonable person would have felt.

69. No evidence was called by the prosecution from any person who said that their comfort had been interfered with on the day by the group of men, of which the appellant was a part. However, I do not think it was essential for the prosecution to call such evidence. Rather, it was, and is, open to the prosecution to rely partly on the CCTV evidence taken from Artarmon railway station, where the events began.

70. That footage shows the confronting images of the large number of men, dressed as I have described, and carrying various items, and their apparent effect on some members of the public with whom they came into contact. That footage shows, as I have earlier set out, three persons and a child standing aside as the group run or walk up the steps to the railway platform.

71. There was also the evidence given by Chief Inspector Thorp. That evidence included his observations that in the public transport area where North Sydney railway station is located, he saw members of the public crossing to the other side of the road to avoid the group of men.

72. I pause here to note that although I earlier referred to Chief Inspector Thorp's evidence about the appellant wearing a T-shirt with what was described as a white supremacist logo on it, I have not given consideration to that as any part of the evidence supporting the charge, because there is no evidence that that logo was being displayed at any relevant time. It was only displayed, I note, after the appellant was asked to remove a jacket.

73. In my view, it was, and is, open also to the prosecution to rely on inferences which can be drawn from the evidence as a whole. That evidence included the following.

74. Firstly, the events took place near the middle of the day on 26 January 2024, being the public holiday known as Australia Day. The events commenced at Artarmon railway station and ended at North Sydney railway station. I take judicial notice of the fact that these stations, and the railway line between them, are busy inner city stations where, on the day and at the time in question, there would have been many members of the general public. This conclusion is supported by the CCTV evidence from Artarmon railway station, where the group's journey began, and which shows numerous other persons using the railway premises.

75. Secondly, the CCTV material from Artarmon railway station shows, as the Magistrate found, that the group of men, of which the appellant was a member, were intending to convey some sort of message. Exactly what the message was is not entirely clear on the admissible evidence.

76. However, whatever the message was, it does not appear to have been a particularly friendly and welcoming one. Rather, in my view, it was a somewhat intimidating message.

77. The group were dressed from head to toe in black clothing. All of them, but for one, had their faces covered by black balaclavas or dark sunglasses, in a manner that obviously was intended to conceal their identities. They were all men. There were more than 60 of them. Two of the men had shields strapped to their arms. The group of men chose to use public transport and congregated in public places on a day of national significance, and of some controversy, and when it must have been obvious there would have been many members of the public in attendance.

78. Some of the men in the group were carrying large flags, including an Australian flag and a Union Jack. In this regard, I note that, regrettably and sadly for Australia, the sight of a group of men carrying or displaying the Australian flag has, in recent years, and especially since the "Cronulla race riots" of 2005, become a symbol often associated with extreme right-wing and anti-immigration beliefs and protest groups.

79. In making this comment about the display of the Australian flag, I hasten to add that that act, in itself, could, of course, never provide a proper ground for the commission of any criminal offence. It is merely one circumstance which must be taken into account with all of the other surrounding circumstances I have described.

80. In my view, the Magistrate was correct in her conclusion that members of the public confronted with this large group of men in the circumstances described would have felt significant discomfort and would have avoided the group.

81. In considering the matter and in reaching that conclusion, there was no error in her Honour having regard to what a "hypothetical reasonable person" would have felt. That is because there can be no doubt that, in addition to the members of the public depicted on CCTV, the group of men would have come into contact with other members of the public in their train journey from Artarmon to North Sydney.

82. In my view, in those circumstances, the only rational inference available is that members of the public (ie. "other persons") would have, and did, experience an interference with their comfort in the form of discomfort or disquiet arising from the confronting appearance of the group of men.

83. My conclusion that the comfort of other persons was, in fact, interfered with is also supported by the reactions of some members of the public at Artarmon railway station and the observations of Chief Inspector Thorp at North Sydney railway station.

84. Having regard to the inferences which I have drawn from the circumstances, and having regard to the evidence of Chief Inspector Thorp and the CCTV footage from Artarmon railway station, I am satisfied beyond reasonable doubt that the appellant's actions, as part of the larger group, were such that they did, in fact, interfere with the comfort of other persons, being persons using the railway facilities between Artarmon and North Sydney.

85. I have, as I have set out earlier in this judgment, found that there were some errors by the Magistrate in her approach to the admissibility of some evidence, and in relation to the element requiring proof of some interference with the comfort of other persons.

86. However, having myself reviewed the evidence and the conclusions that can be drawn from it, I am independently satisfied that each of the elements of the offence charged have been proved beyond reasonable doubt.

87. I therefore dismiss the appeal against conviction, and I confirm the finding of guilt.

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