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District Court 5 March 2021

Antaw v R; Kitson v R; Lee v R

[2021] NSWDC 820

Public order & justice offences
REFUSE/FAIL TO COMPLY WITH A DIRECTION WHETHER AUTHORISED PUBLIC ASSEMBLY WHETHER OBSTRUCTING TRAFFIC WHETHER BELIEF ON REASONABLE GROUNDS WHETHER APPELLANTS “PERSISTED”

Citation: Antaw v R; Kitson v R; Lee v R [2021] NSWDC 820
Court: District Court of New South Wales
Date: 5 March 2021
Judge: P Taylor SC DCJ

Background

Three appellants were each convicted in the Local Court of failing to comply with police directions to move off a roadway during a climate protest held on 19 December 2019 outside Kirribilli House, the Prime Minister's Sydney residence. Each was fined $150. They appealed separately against both conviction and sentence.

The protest had been organised under a formal Notice of Intention to Hold a Public Assembly, and police had consented to the assembly subject to conditions, including that participants not spill onto the roadway and that any reasonable police direction be promptly obeyed. After the approved assembly period expired at 10.30am, tents were erected on the roadway and the protest continued. At around 1.30pm, each appellant was personally approached by a police officer and directed to move on. Each refused, saying words to the effect of "No" or "I will not," and was subsequently arrested.

The appeals were conducted as fresh hearings on the evidence before the Magistrate, including body-worn video footage of each direction and refusal. On the core facts, the judge was satisfied beyond reasonable doubt that a direction was given to each appellant and that each refused to comply. The three issues raised by the appellants were the focus of the appeals.

  • Whether the appellants were participating in an authorised public assembly at the time of the directions, which under s 24 of the Summary Offences Act 1988 would preclude a finding of guilt.
  • Whether a police officer could hold a belief on reasonable grounds that each appellant was obstructing traffic, as required by s 197 of the Law Enforcement (Powers and Responsibilities) Act 2002 (LEPRA), given that police had restricted traffic in the area and other people and objects were also present on the roadway.
  • Whether each appellant "persisted" in the relevant conduct after the direction was given, as required for an offence under s 199 of LEPRA.

Decision

Authorised public assembly: The District Court found that the assembly's authorised period had expired at 10.30am, well before the 1.30pm directions. The conditions attached to the consent letter had also been breached in material respects, including the erection of tents on the roadway and the organiser's refusal to sign the conditions letter. The court was satisfied that, at the time of the directions, the appellants were not participating in an authorised public assembly within the meaning of the Summary Offences Act 1988. Accordingly, the s 24 defence was not available to them.

Reasonable grounds for believing obstruction of traffic: The court accepted that police had restricted traffic in the area using "work zone" signs. However, Taylor SC DCJ found that the relevant question under s 197 of LEPRA was whether the officer held a genuine belief on reasonable grounds that the appellant's presence was obstructing traffic, not whether the appellant was the sole or primary cause of any obstruction. The presence of other people and objects on the road did not negate the reasonableness of the officers' belief. The court was satisfied the requisite belief existed in each case.

Persistence: The appellants argued that the brief exchange between each officer and appellant was insufficient to constitute "persistence" within s 199 of LEPRA. The court rejected this. Taylor SC DCJ held that persistence does not require any particular period of time to elapse. Each appellant remained stationary after the direction was given, heard the warning, and then refused to comply in clear terms. That sequence of conduct was sufficient to establish persistence.

The court dismissed all three conviction appeals and found the offence proven in each case.

Orders Made

  • Conviction appeals dismissed for each of the three appellants.
  • The offence under s 199 of LEPRA found proven in respect of each appellant separately.

(Note: The provided text does not include the court's final orders on the sentence appeals.)

Key Takeaways

  • The District Court confirmed that an assembly can lose its authorised status before a formal revocation if the consent period has expired or conditions have been materially breached, leaving participants without the protection of s 24 of the Summary Offences Act 1988.
  • A police officer's belief that a person's presence is obstructing traffic (required under s 197 of LEPRA) need not be premised on that person being the only, or principal, source of obstruction. The existence of other people or objects on the roadway does not, of itself, defeat the reasonableness of the belief.
  • Under s 199 of LEPRA, "persistence" in the relevant conduct does not require any specific timeframe to elapse after a direction is given. Remaining stationary, receiving a warning, and then verbally refusing to comply is sufficient.
  • Consent conditions attached to a public assembly authorisation carry real legal weight: breaches of those conditions, including failure to keep participants off the roadway, can affect the lawful status of the assembly as a whole.
  • In dismissing the appeals, the court underscored that each direction was given personally to each appellant, making the lawfulness of earlier group-wide directions (which referenced an incorrect statutory provision) irrelevant to the individual offences.

Legislation and Cases Referenced

Legislation:
- Law Enforcement (Powers and Responsibilities) Act 2002 (NSW), Pt 14, ss 197, 199, 200
- Summary Offences Act 1988 (NSW), ss 23, 24

Cases cited: No cases were cited in the judgment.