IN THE MAGISTRATES COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION

Case No. B11925216 & ors VPOL v S ANDERSON, S EVANS, S BOLTON, S MONSALVE - TOBON, J CRAFTI, M RYAN, S JAVED, N FARMER, L O’SHEA, O HASSAN, V KENWAY, C OAKLEY, J SMALL, D RIDGEWELL, T TYMMS, E WALSH

Accused

MAGISTRATE: S GARNETT

WHERE HELD: MELBOURNE

DATE OF HEARING: 1, 2, 3, 4, 7, 8, 10, 11, 14, 15, 16, 17, 18, 22, 23, 24 & 25 May 2012

DATE OF DECISION: 23 JULY 2012

CASE MAY BE CITED AS: VPOL V ANDERSON & ORS

REASONS FOR DECISION ---

Catchwords: Summary Contest: Demonstration 1 July 2011 at Max Brenner’s Chocolate Bar – QV Melbourne: Summary Offences Act 1966 – s 52 (1A) - Beset premises, S 9 (1)(d) - Wilful Trespass, S 52 (1) Resist, Hinder & Assault Police: “no-case” submissions: S 226 Criminal Procedure Act 2009 - Charter of Human Rights and Responsibilities Act 2006 – S 15: “Freedom of Expression”, S 16: “Peaceful Assembly” – S 458, S 461 & S 462 Crimes Act 1958: reasonable grounds for arrest – use of force must be reasonable and proportionate – in the execution of duty – Application for Prasad direction. --- APPEARANCES:

Counsel Solicitors

For VPOL Mr Howard & Ms Nadj VPOL For the Accused Mr Anderson & Mr Evans

Ms Bolger to 7 May then Mr Hughan

J Dowsley & Associates

Ms Bolton Mr Edney to 17 May then R Stary Lawyers Mr Norton Mr Mosalve -Tobon/Mr Crafti Mr Podmore J Dowsley & Associates Mr Ryan & Ms Javed Ms Taylor Spicer Lawyers Ms Farmer & Ms O’Shea Mr Button Spicer Lawyers

!Undefined Bookmark, I

!Undefined Bookmark, II

Mr Hassan Mr Bayles R Stary Lawyers Ms Kenway Ms O’Brien R Stary Lawyers Mr Oakley & Mr Small Ms Caruso J Dowsley & Associates Mr Ridgewell Ms L Murphy J Dowsley & Associates Mr Tymms Ms P Murphy R Stary Lawyers Ms Walsh Mr Wilson R Stary Lawyers

HIS HONOUR:

1 The 16 co-accused are charged with offences against the Summary Offences

Act (1966) arising out of their involvement in a demonstration at Max

Brenner’s Chocolate Bar at QV Melbourne on 1 July 2011. All of the accused

are alleged to have ‘wilfully and without lawful authority beset premises’

contrary to S 52(1A) and ‘wilful trespass’ contrary to S 9 (1)(d) of the Act. In

addition, 8 of the accused face charges of assaulting, resisting or hindering

police in the execution of their duties contrary to S 52(1). (The charge of

resisting arrest laid against Mr Crafti was withdrawn by the prosecution on the

final day of hearing).

2 The matter proceeded as a summary contest over a period of 17 days with

evidence being given by 26 police witnesses and 4 civilian witnesses. At the

conclusion of the prosecution case, all of the accused made “no-case”

submissions in respect to all of the charges in accordance with S 226 of the

Criminal Procedure Act 2009. The parties provided the court with

comprehensive written and oral submissions in support of their respective

positions.

3 The evidence revealed that two previous demonstrations occurred at Max

Brenner’s Chocolate Bar at QV on 1 April 2011 and 20 May 2011. The

protests were apparently organised and attended by members of a coalition

against Israeli Apartheid as part of a campaign of Boycotts, Divestments and

Sanctions (BDS) which also included members of a Socialist Alliance Group.

The court heard evidence that on 1 July there were approximately 150-200

protestors gathered in QV Square in front of Max Brenner’s taking part in the

demonstration and 132 police members on duty including general duty

members, members of the Public Order Response Team (PORT) and

members of the Public Order Management Team (POMT).

4 As indicated, the court heard evidence from 26 police officers who were

present on the night which included Inspector Beattie, the Field Commander

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managing the police operation and Senior Sergeant Falconer, the Operations

Commander of the Public Order Management Team who were the police

officers tasked to form arrest teams. Senior Sergeant Falconer gave evidence

over 3 days (approximately 9 hours) and was subject to intense cross-

examination in relation to the discussions that occurred between police and

QV management prior to the demonstration on 1 July, the operational tactics

and the arrests that occurred. Evidence was also given by the Operations

Manager of QV, Mr Appleford, Ms Fleming, General Manager of QV, Mr

Kandasamy, Technical Manager at QV who operated and monitored the

CCTV at the complex and Mr Shrestha, the State Manager of Max Brenner’s.

Importantly, in the context of this case, over 4 hours of QV CCTV and police

video footage taken by Senior Constables McLaughlin, Campbell and Oakley

was tendered and shown to a number of witnesses during their cross-

examination.

5 In order to understand the events that occurred on 1 July and the foundation

for the charges that have been laid against each of the accused it is

necessary to go into some detail of the evidence given in relation to events

preceding the demonstration on 1 July. Mr Appleford, Ms Fleming, Senior Sgt

Falconer and Inspector Beattie gave evidence that a number of meetings

occurred between them, Melbourne Central Management and other police in

the period between 20 May and 1 July as they were aware through social

media sites that a further demonstration would occur on 1 July. In addition, the

Victoria Police obtained legal advice from the Victorian Government Solicitors

Office as to what powers they had in relation to the protestors should certain

events occur and QV management also obtained legal advice as to their rights

to request the protestors to leave the site and what, if any, legal remedies

were open to the owners/occupiers.

6 Mr Appleford and Ms Fleming gave evidence that the QV site is private

property which is owned by Commonwealth Management Investments Ltd

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and Victoria Square QV Investments. The Title Search of the property in

question dated 10 May 2012 was tendered which indicates the registered

proprietor is Commonwealth Managed Investments Ltd. Mr Appleford and Ms

Fleming told the court that the property, although privately owned, is subject to

an agreement (which is registered on the Title) with the Melbourne City

Council in accordance with S 173 of the Planning and Environment Act 1987.

The agreement contains a covenant which requires QV to keep the laneways

and QV Square open to the public 24 hours a day and 7 days a week with

some exceptions.

7 Mr Appleford and Ms Fleming gave evidence that in preparation of the

demonstration occurring and as a result of their discussions with Melbourne

Central Management and the police they implemented a risk management

plan which included; retailers at QV were spoken to and given letters warning

them that the protest was to occur; QV Management was working closely with

Victoria Police on management plans which included police presence being

high and QV security to be present to protect the precinct and minimise any

disruption; Conditions of Entry signs were placed at entry points, within the

property and on pillars outside Max Brenner’s; the loading dock was closed to

allow the police to establish a base for their operational duties (including

where to take and “process” protestors who were arrested); additional security

was employed by QV for the night; the removal of tables, chairs and the

Perspex barrier at the front of Max Brenner’s; the closure of the “Light and

Sound” Exhibition Marquee in QV Square at 6 p.m.; and, written authorisation

was given by the owners of the site to Inspector Beattie, at his request, to use

police powers to remove persons from the site where their entitlement to enter

and remain had been revoked by QV management.

8 Inspector Beattie gave evidence that he obtained legal advice from the

Victorian Government Solicitors Office regarding; the wording on a Notice

which was distributed to protestors by Sgt Nash in front of the State Library

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prior to the protestors making their way to QV Square; the wording on signage

to be placed at QV; and, the announcement made by Mr Appleford to the

protestors at approximately 6.50 p.m. purporting to revoke their licence to be

on the property. The Notice distributed at the State Library stated:

29 June 2011

Boycott Apartheid Israel Rally

1st July, 2011

Victoria Police wishes to advise you of the following:-

Your demonstration activity will be closely monitored by police;

Police will act to prevent violence, and will take all reasonable steps to arrest anyone offending in this regard;

The interiors of Melbourne Central and Q.V. are private property.

If you propose to demonstrate disapproval of the political or social

Interests of any retail tenant within Melbourne Central or QV, or

create any form of disturbance in and around retail premises

within Melbourne Central or QV, then you are prohibited from

entering those shopping complexes;

Please carefully note signage at entry points to Melbourne Central

and QV complexes regarding behavioural conditions required

within those places. Any person who defies this advice may be

liable for breaching trespass laws;

Police may also act to prevent demonstrators besetting private

businesses (Offence – Beset Premises S.52 (1A) Summary

Offences Act 1966);

During the rally Police will attempt to communicate to

Demonstrators any proposed escalation in Police tactics. Police

will generally adopt a pro – prosecution policy for offences

against the person or against property.

Inspector M.Beattie (Operations Officer)

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9. The wording on the signage placed in and around QV by Jamie Rundell,

Security Officer, at QV at the direction of Mr Appleford and on the advice of

Inspector Beattie was:

Sign 1: ‘CONDITIONS OF ENTRY

All persons, acting individually or forming part of an assembly of people, who propose to intentionally obstruct, hinder or impede any member of the public from entering any retail premises in Melbourne QV, or who propose to demonstrate disapproval of the political or social interests of a retail tenant, or create any form of disturbance in and around retail premises in QV, are prohibited from entering QV.

QV Melbourne’

Sign 2: ‘CONDITIONS OF ENTRY

Any person, acting individually or forming part of an assembly of people, who are engaged in behaviour that obstructs, hinders or impedes any member of the public from entering any retail premise in QV, or who demonstrates disapproval of the political or social interests of a retail tenant, or who create any form of disturbance in and around retail premises within QV, will be ejected immediately from QV and consent to re-enter will be at the discretion of Centre Management.

QV Melbourne’

10. The announcement read by Mr Appleford at approximately 6.43 p.m. whilst

using a megaphone at the request of Inspector Beattie was:

“My name is Mark Appleford and I am the operations Manager at QV Shopping Centre.

Where you are presently located is private property. I am authorised in writing to act on behalf

of the owners of this private property being QV Melbourne Shopping Centre. You are

demonstrating disapproval of the political or social interests of a retail tenant of this shopping

centre. Accordingly you are breaching an express condition of entry to this property not to

perform this type of protest activity. You have no lawful right to remain. I require you all to

leave this private property immediately. Thank you.”

11. Inspector Beattie also confirmed that at his request he received a letter from

Ms Fleming dated 1 July requesting and authorising Victoria Police to use its

powers during the demonstration if the police considered it appropriate. Ms

Fleming told the court that the letter was provided with QV’s legal team

involved in its drafting. The letter stated;

“The retail, commercial and common areas of QV Melbourne (the site) are managed by

Colonial First State Property Management Pty Ltd (trading as Colonial First State Global

Asset Management, CFSGAM), as duly appointed agent of the owners of the site, Victoria

Square QV Investments Pty Ltd and Commonwealth Managed Investments Ltd pursuant to a

Property Management Agreement dated 30 November 2010 (PMA).

All parts of the Site are private property and the owners have the right to revoke an

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individual’s entitlement to enter the Site and to request Police Officers to assist in removing

persons from the Site should they not leave when asked. Under the PMA, the CFSGAM

Centre Management team have effective control of the running of the Site (including QV

Square and the laneways) and perform that function as agent for the owners.

With regard to Protestors at QV Melbourne, we request the Victoria Police use its powers to

remove them from the precinct where police consider this appropriate. We intend to revoke

the entitlement to enter the Site of any individuals who cause disruption to the lawful operation

of business within the Site and who refuse to leave the precinct when required by Centre

Management.”

12. Ms Fleming gave evidence that following the 20 May 2011 demonstration, she

had informed Victoria Police at their meetings that QV Management and the

owners wanted the site to be safe and did not want the retailers disrupted.

She told the court that QV management deferred to Victoria Police in relation

to the planning and “who, how and when to arrest”. She told the court that she

was aware of the plan for Mr Appleford to make his announcement and when

it was to occur as this issue was discussed in meetings with Melbourne

Central management and the police because QV management were

concerned about the times and duration of the demonstrations which were

occurring on Friday evenings between 6-6.30 p.m. Ms Fleming was adamant

that a time limit for the demonstration was not set in the meetings nor were

possible criminal charges discussed, if arrests were to be made. She was also

adamant (although later expressed reservations as to her recollection) that

QV did not seek and obtain legal advice as to possible civil action they could

take prior to 1 July. In relation to the S 173 agreement she described QV as;

“an unusual place because it is a public place that is privately owned”. She

noted that QV Square and the laneways are “public access space” and she

had not thought it relevant to inform Victoria Police of the S 173 agreement

prior to 1 July.

13. Inspector Beattie gave evidence that there were a number of planning

meetings in anticipation of the 1 July demonstration with QV management and

Melbourne Central management. He recalled that at a meeting on 16 June the

participants did discuss civil options that were available to the owners

including “banning notices” and injunctions but it was left to them to obtain

their own legal advice on that issue and they subsequently informed him that

they would not pursue that avenue. He also told the court that on the night it

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was left to QV Management as to if, and when, to request the protestors to

leave. He confirmed that prior to 1 July, he had requested documentation from

QV in order to satisfy himself that QV Management had the right to withdraw

an individual’s right to be on the premises. Inspector Beattie agreed in cross

examination that a 20 minute time frame for the demonstration was discussed

in those meetings but it was not pre-determined.

14 Senior Sergeant Falconer gave evidence that he took part in the planning

meetings with Melbourne Central management and QV management after the

demonstration on 20 May. He told the court that the police attended QV on 1

July at the request of QV management to prevent a breach of the peace and

potential damage to property. He also confirmed that it was planned that if

arrests were to be made those identified as leaders of the demonstration

would be targeted. He told the court that QV management informed him at a

meeting on 2 June that they were “happy” for the demonstration to occur

providing there was no interruption to the operation of businesses and

providing the demonstration did not last too long. He told the court that Mr

Allen, from Melbourne Central management suggested a time frame of 20

minutes but that it was up to QV management on the night as to how long

they were prepared to allow the demonstration to occur. He confirmed the

evidence given by Inspector Beattie that the option of the shopping centres

taking civil action was discussed at the meetings conducted prior to 1 July and

that he had advised them that the police could only intervene if the protestors

committed criminal offences. He confirmed that Victoria Police obtained legal

advice from the Victorian Government Solicitors Office regarding the law of

trespass and beset and that he also researched the law and explored the

police powers of arrest should those laws be breached. He gave evidence that

at the meeting with the shopping centres on 29 June they informed him they

had decided not to pursue civil action. He also told the court that he had no

knowledge of the existence of the S 173 agreement between QV and the

Melbourne City Council.

The Demonstration

15. The evidence indicates that prior to making their way to QV Square on Level

2, many of the protestors gathered at the front of the State Library on

Swanston St where a number of speeches were made. Sgt Nash gave

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evidence that he distributed Notices to the protestors, as referred to above,

including Ms Kenway, Mr Oakley and Mr Hassan. The protestors then went to

Melbourne Central before attending QV at approximately 6.29 p.m. It appears

from the police video footage that many of the protestors entered QV Square

via the stairs and escalators on Level 1. Once in QV Square, the protestors

formed solid lines, 3-4 deep in front of Max Brenner’s whilst the others “milled”

in the Square between Max Brenner’s and the Marquee situated in the middle

of the Square. On viewing the CCTV and the video recordings from Senior

Constables McLaughlin, Campbell and Oakley, the following general

observations can be made;

when the protestors arrived at QV Square, there were customers both

inside and outside Max Brenner’s on Red Cape Lane at the tables and

chairs provided and there were approximately 15 police at the corner of

Max Brenner’s and Red Cape Lane;

Members of the public are seen to move up and down Red Cape Lane

passing between the police situated near Max Brenner’s and further

down Red Cape Lane;

At 6.28 p.m. a police line is formed across Red Cape Lane between

Max Brenner’s and the “Grill’d” restaurant;

Police members on that line prevent members of the public from

proceeding down Red Cape Lane towards Swanston St;

a solid police line is established across the front of Max Brenner’s

inside the line of pillars facing the Square;

protestors form solid lines (4 deep) in front of the police line outside

Max Brenner’s facing the Square;

by 6.32 p.m. a solid police line is observed at the bottom of Red Cape

Lane near Swanston St;

a loose line of police extends from the corner of Max Brenner’s across

Red Cape Lane;

a security guard is observed at the Red Cape Lane entrance to Max

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Brenner’s;

a number of customers are seen entering and leaving Max Brenner’s;

a number of protestors gather in front of the police line across Red

Cape Lane;

a number of protestors are making speeches and chanting aided by the

use of megaphones;

Mr Anderson approaches the police line on Red Cape Lane;

the police line and protestor lines immediately in front of Max Brenner’s

appear to engage in pushing forward and backwards;

a member of the public engages in argument with some of the

protestors in the middle of QV Square;

members of the public are seen moving through protestors in the

middle of QV Square;

POMT members move behind the police line in front of Max Brenner’s;

members of the public who approach the police line across Red Cape

Lane are directed to proceed to the north east side of QV Square and

not down Red Cape Lane;

Inspector Beattie is observed standing on a chair/table using a

megaphone at approximately 6.43 p.m. to introduce Mr Appleford who

proceeds to make an announcement;

whilst the announcement is being made the protestors are chanting;

Inspector Beattie makes a further announcement at approximately 6.48

p.m. regarding the protestors trespassing and requesting them to leave

whilst the chanting continues;

Inspector Beattie makes further announcements at approximately 6.50

p.m., 6.52 p.m. and 6.54 p.m. that the protestors are trespassing and

are required to leave whilst the chanting continues;

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POMT members file into QV Square and form a line in front of the

protestors line at the front of Max Brenner’s and in doing so Mr

Anderson is bumped out of the way;

Senior Sergeant Falconer is observed approaching Ms Kenway;

POMT members form arrest teams and proceed to arrest Ms Kenway,

Mr Small, Mr Hassan and Mr Ridgewell;

prior to and after the initial arrests various speeches are made by

protestors on megaphones and repetitive chanting is heard;

after the initial arrests Senior Sergeant Falconer is observed at

approximately 6.58 p.m. walking part way along the line of protestors in

front of Max Brenner’s;

shortly thereafter, the police line in front of Max Brenner's push the line

of protestors out towards the Marquee in QV Square and towards the

Lonsdale Street exit;

approximately 20-25 protestors are then observed to sit down in front of

“Della Nonna Ristorante” to the southern side of Max Brenner’s;

Inspector Beattie makes two further announcements to that group to

leave at approximately 7.17 p.m. and 7.19 p.m. and further arrests are

then made;

protestors are then observed moving down Artemis Lane towards

Russell St.

16. Mr Appleford gave evidence that once the protestors arrived at QV the police

prevented access to Max Brenner's by “blocking” Red Cape Lane and forming

a line in front of Max Brenner’s facing QV Square. He told the court that the

decision to block the laneway was made by the police in consultation with QV

management. In cross-examination, he agreed with the suggestion that it was

the police action that prevented access by members of the public to Max

Brenner’s but added that the public were impeded from entering the store by

both the protestors and police. He also agreed that during the demonstration

customers were inside Max Brenner’s, at the tables outside Max Brenner's in

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Red Cape Lane and that he observed some customers leaving the shop via

the door on Red Cape Lane.

17. Ms Fleming told the court that as soon as the protestors arrived at QV the

police formed a line in front of Max Brenner’s facing the Square and they also

formed a line at the bottom of Red Cape Lane. She gave evidence that she

observed protestors pushing backwards against the police line in front of Max

Brenner’s and that the shop “closed” its doors for the duration of the

demonstration although she observed customers inside the shop and at the

tables outside on Red Cape Lane. She told the court that she was not aware

that the police would form a line across Red Cape Lane near Swanston

Street. She said that she was aware that they would be forming a line in front

of Max Brenner’s as they had requested that the shop remove tables, chairs

and barriers from that location. Ms Fleming told the court that it was her

understanding that the purpose of the police line in front of Max Brenner's was

to allow the protestors to go up to the line but not beyond it.

18. Inspector Beattie gave evidence that he observed protestors pushing against

the police line in front of Max Brenner's and therefore he directed that the

police line be reinforced. In his opinion, the actions of the protestors did not

allow Max Brenner’s to continue to operate as it was physically difficult for

people to enter the shop because of the police lines in place which he

established to stop the protestors “invasion” of the shop. He confirmed that

he instructed Senior Sgt Falconer to approach Ms Kenway to ask her to

request that the protestors leave QV. He also confirmed that he gave

directions to the police to use force to move the line of protestors in front of

Max Brenner’s away, so they were not besetting the premises. He told the

court that after the protestors decided to leave the “sit-in” they had established

to the side of Max Brenner's they did attempt to return to Max Brenner’s but

the police prevented them from doing so. He told the court that once the

police had moved the protestors from QV Square it was “rehabilitated”.

Inspector Beattie also gave evidence that the police action on the night was

dependent on the behaviour of the protestors and the fact that the line of

protestors in front of Max Brenner's was pushing against the police line was

the primary reason he gave instructions to arrest the protestors rather than the

trespass issue as he considered their actions to be an insidious form of

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assault. He told the court that, but for that action by the protestors, he may

have allowed the demonstration to continue longer.

19. In cross-examination, Inspector Beattie told the court that it was the decision

of QV management to request the protestors to leave. He told the court that

the police decided to put a line in front of Max Brenner's to keep the protestors

out and to stop it being “invaded”. He gave evidence that in his opinion, the

police line in front of Max Brenner's was passive but the protestors were

pushing back against it which required the police to reinforce the line to

maintain their position. He agreed that the police decided to form a line

across Red Cape Lane near Swanston Street for operational reasons.

20. Senior Sergeant Falconer gave evidence that the initial police line in front of

Max Brenner's was two deep with the protestors line being four to five deep.

He said that in order to stop the “surge” by the protestors he increased the

police line to three deep to prevent the protestors breaking through the line to

Max Brenner’s. He told the court that he observed approximately 20

customers inside Max Brenner's during the demonstration and a few

customers outside on Red Cape Lane. He gave evidence that he had

previously requested Max Brenner's to have their own security so they could

open and close their doors when required. He told the court that he made the

decision to block Red Cape Lane at the Swanston Street end and agreed that

it was “probable” that members of the public could not proceed up Red Cape

Lane because of the police line established at that point. He told the court it

would depend on the police on that line exercising their discretion to allow

them to do so. In cross-examination, he agreed that the police did not stop

people from entering Max Brenner's until after the protestors arrived in QV

Square. He also agreed that members of the public did move through QV

Square whilst the demonstration was occurring and that he did not receive

any complaints that people were not able to access Max Brenner's. He told

the court that QV management made the decision as to when they wanted the

protestors to leave and that no time frame was set for that to occur. He said

that the police only acted when the protestors refused to leave after being

requested to do so.

21. Mr Shrestha gave evidence that he arranged for an extra security guard to be

on duty at both Melbourne Central and QV that night. He confirmed that on

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police recommendations he arranged for some of the outdoor tables and

chairs and barriers to be removed from the front of Max Brenner's. He told the

court that he was prepared to shut and lock both entry and exit doors and that

the security guards role was to screen customers coming into the shop in

order to ensure the safety of his staff and customers. He gave evidence that

he placed his security guard on the main door facing Red Cape Lane which

was open prior to the protestors arriving but once they arrived it was closed

and locked. He said that during the demonstration there were approximately

10 to 15 customers inside the shop and some at tables outside the shop on

Red Cape Lane, that new customers could enter, but it was left to the security

guard’s discretion to let them, if he felt they were of no danger. He told the

court that at the beginning of the demonstration three protestors entered the

shop with one of them attempting to chain himself to a table but he was

prevented from doing so and forcibly removed by the police. He recalled that

a number of customers left the shop during the demonstration.

22. In cross-examination, Mr Shrestha told the court that when he arrived at QV

there was an existing police line in front of the shop and the police had

blocked off Red Cape Lane near Swanston Street. He agreed that in the

statement he made to the police on 19 July 2011 he had said; “we locked the

doors and told the customers if they wanted they could leave and the

protestors arrived soon after”. In cross-examination, he also agreed that

customers could enter or leave the shop if they wished if they were able to get

past the police lines or through QV Square.

23. All of the police witnesses who gave evidence and were involved on the police

line in front of Max Brenner’s told the court that the protestors were pushing

against them which required them to push back to maintain their line. SC

Beaumont told the court that he observed protestors on the line “cow kicking”

police members on the line and Leading Senior Constable Richards gave

evidence that his toes were stood on and that his shins were kicked and he

was elbowed to the stomach whilst on the police line.

24. The CCTV and video evidence indicates that a number of the accused formed

part of the protestors line in front of Max Brenner’s. Those depicted are; Mr

Ryan, Mr Tymms, Mr Evans, Mr Crafti, Ms Bolton, Mr Monsalve-Tobon and

Ms Farmer. Those observed using megaphones are; Ms Kenway, Mr

13 DECISION

Anderson, Ms Javed, Ms Walsh, Mr Hassan, Mr Ridgewell, Mr Oakley and Ms

Bolton. The repetitive chanting that occurred throughout the demonstration

was; “Free Free Palestine”, “Out, Out, Israel Out”, “Max Brenner you can’t

hide, you’re supporting genocide”, “Occupation No More, Israel is a puppet

State”, “Israel Out, USA, How many kids have you killed today?”, and, after

the POM team arrived in the Square; “This is not a Police State, We have the

Right to Demonstrate”.

25. Shortly after the protestors arrived in the Square, Ms Kenway is observed on

the megaphone and heard to say; “What we are going to do now is spread

right across so we need an even row of people right across in front of Max

Brenner’s, because we want to shut this store down” and then, “So we need

one line right across, right up to the edge of Grill’d. Okay, I don’t think people

are getting the concept. There is sort of the bulk of people up this end. Let’s

move, come down, come down, that’s it”. After there appears to be a

strengthening of the police line, Ms Kenway is observed on a megaphone and

heard to say; “Okay, we are going to stand here because the police are trying

to move us on, and I think that we need to say that we are not going to move

on tonight”. Ms Kenway is also observed and heard to say; “to everyone who

is blockading the front of Max Brenner, you need to link your arms and stand

firm, because behind you, there are lines of police which are mounting, and

trying to drive us out from here. And I think we need to stand firm and defend

our democratic right to make our voice heard in Australia today”. Mr Anderson

is also observed and heard to say; “We’ve been told police are arresting

people” and, “We’re gonna stay here, we’re not moving on. We’re not gonna

let the police move us on. We are having a non violent protest and they have

no reason to push us. Do you understand?”. Other statements can also be

heard which include; “We are not your targets, we are a non violent

movement, and we would appreciate it if you would just settle down please

and refrain from violence” and “we are here for a peaceful non violent

demonstration. There’s absolutely no need to push anybody. We are here

peacefully”.

“No-Case” Submissions

26. The test to be applied in a “no-case” submission is the same in a contested

summary hearing as it is in a criminal trial. The High Court in May v

14 DECISION

O’Sullivan1 said;

“When, at the close of the case for the prosecution, a submission is

made that there is “no case to answer”, the question to be decided is not

whether on the evidence as it stands the defendant ought to be convicted, but

whether on the evidence as it stands he could lawfully be convicted. This is

really a question of law”.

27. In Doney v The Queen2 the High Court held;

“ if in a criminal trial there is evidence (even if tenuous or inherently

vague) which can be taken into account by the jury and that evidence is

capable of supporting a verdict of guilty, the matter must be left to the jury.

The judge has no power to direct the jury to enter a verdict of not guilty on the

ground that, in his view, a verdict of guilty would be unsafe or unsatisfactory”.

28. In Attorney-General’s Reference (No.1 of 1983)3 the Full Court of the

Supreme Court said;

“The question whether the Crown has excluded every reasonable

hypothesis consistent with innocence is a question of fact for the jury and

therefore, if the Crown has led evidence upon which the accused could be

convicted, a trial judge should not rule that there is no case to answer or direct

the jury to acquit simply because he thinks that there could be formulated a

reasonable hypothesis consistent with the innocence of the accused which the

Crown has failed to exclude. Similarly a trial judge should not rule that there

is no case for the accused to answer because he has formed the view that, if

the decision on the facts were his and not the jury’s, he would entertain a

reasonable doubt as to the guilt of the accused. It is always a question for the

jury whether a reasonable doubt exists as to the guilt of the accused and as

Menzies, J. explained in Plomp’s Case, in a case based on circumstantial

evidence, the necessity to exclude reasonable hypothesis consistent with

innocence is no more than an application to that class of case of the

requirement that the case be proved beyond reasonable doubt.

Where the same tribunal is judge both of law and fact the tribunal may be

1 (1955) 92 CLR 654 at 658. 2 (1990) 171 CLR 207.

15 DECISION

satisfied that there is a case for an accused to answer and yet, if the accused

chooses not to call any evidence, refuse to convict on the evidence. That this

is the correct logical analysis appears clearly from May v O’Sullivan. There is

no distinction to be drawn between cases sought to be proved by

circumstantial evidence and other cases”.

29. In applying these principles, the court must determine on the facts of this case

as found and the applicable law, whether at the completion of the prosecution

case, it has proved beyond reasonable doubt each of the necessary elements

of the offences alleged to have been committed by each of the accused.

Did the protestors actions constitute the offence of wilfully and without

lawful authority besets any premises contrary to S 52 (1A) of the Act?

30. S 52 (1A) provides;

Any person who together with others wilfully and without lawful authority besets any premises,

whether public or private, for the purpose and with the effect of obstructing, hindering, or

impeding by an assemblage of persons the exercise by any person of any lawful right to

enter, use, or leave such premises shall be guilty of an offence.

31. All of the accused are charged with committing this offence at QV on 1 July

2011 from approximately 6.30 p.m. The prosecution are required to establish

that;

i. Max Brenner’s Chocolate Bar was beset;

ii. each of the accused beset the shop with others;

iii. that it was beset wilfully and without lawful authority;

iv. that it was beset for the purpose and with the effect of obstructing,

hindering or impeding by an assemblage of persons the exercise by

any persons of a lawful right to enter, use or leave Max Brenner’s

Chocolate Bar.

3 [1983] 2 VR 410 at 415-6.

16 DECISION

32. The word “beset” is not defined in the Act. The Concise Oxford Dictionary

defines it to mean; “hem in, occupy, to make impassable”. The Australian

Concise Oxford Dictionary defines it as; “attack or harass persistently,

surround or hem in, cover around with”. The Oxford English Dictionary

defines it as; “to set about, surround, to set or station around, to surround with

hostile intent, to surround, encircle, cover round, to set upon or assail on all

sides, to invest or surround, to besiege, to occupy so as to prevent anyone

from passing, to circumvent, entrap, catch, to encompass, surround, assail,

possesses detrimentally”. The Macquarie Dictionary defines it as; “to attack on

all sides, assail, harass, to surround, hem in”.

33. The parties were not able to provide the court with any reported criminal

decisions involving the offence of beset premises. There are however,

decisions involving the tort of Nuisance where the word “besetting” has been

considered in an industrial context. In Dollar Sweets Pty Ltd v Federated

Confectioners Association of Australia4 , employees of the plaintiff company

and officials from the defendant union formed and enforced a picket outside

the plaintiff’s factory. Their actions obstructed the passage of vehicles to the

plaintiff’s premises which prevented a truck driver from Rowntree Hoadley

from delivering 2 tonnes of material to the company. The plaintiff applied for

and was granted an interlocutory injunction against the nine named

defendants. Murphy J said; “I am also satisfied that the acts of all the

defendants which now have been repeatedly performed over many months

cannot be considered to be a lawful form of picketing, but amount to a

nuisance involving, as they do, obstruction, harassment and besetting. The

form of picketing which the evidence discloses here is not peaceful but

amounts clearly to interference with the rights of a person wishing to enter or

at least to proceed and make deliveries or take supplies to or from the

plaintiff's premises. In fact, so often as they are able, the defendants

physically prevent persons and vehicles from approaching and entering the

4 [1986] VR 383.

17 DECISION

plaintiff's premises. This, as I have said, is done by obstruction, threats and

besetting, the latter meaning, in this context, to set about or surround with

hostile intent. Besetting is appropriately a term applied to the occupation of a

roadway or passageway through which persons wish to travel, so as to cause

those persons to hesitate through fear to proceed or, if they do proceed, to do

so only with fear for their own safety or the safety of their property”.

34. The decision of Murphy J was referred to by the Full Court of the Supreme

Court in Animal Liberation (Vic) Inc and Anor v Gasser & Anor5. In this case,

the appellants and others demonstrated outside the respondents circus in

order to dissuade members of the public from attending the performances of

that circus. It was alleged that they were hostile and argumentative and they

obstructed patrons by forcing them to walk the gauntlet of shouting

demonstrators who were waving placards so as to obstruct their entrance to

the ticket office. The trial judge ordered an interlocutory injunction which

included restraining the demonstrators from conducting demonstrations. The

appellants argued in the Full Court that “picketing” did not become a nuisance

unless there is a besetting, and that there is not a besetting unless there is a

surrounding with hostile intent. The Full court said;6 “We think it clear that a

besetting is only one of the ingredients that may make a picketing into a

nuisance, and that a besetting may include, for example, lining up so as to

compel would-be patrons to “walk the gauntlet” of shouting picketers, so as to

cause such patrons to hesitate through fear to proceed or, if they do proceed,

to do so only with fear for their safety or fear of harmful effects upon the

accompanying children. A besetting includes a surrounding with hostile

demeanour so as to put in fear of safety”. The Full Court held that the

evidence justified interlocutory injunctions.

35. There are a number of English authorities which have considered the meaning

of “watching and besetting” premises but they have also arisen in the context

5 [1991] 1 VR 51.

6 Page 58.

18 DECISION

of industrial picket lines. The only case found which arose in the criminal

context is DPP v Fidler7 which involved two defendants who were opposed to

abortion, standing outside a clinic with the intent to dissuade women attending

the clinic from having their pregnancies terminated. They were charged with

“watching and besetting” the clinic contrary to S 7 of the Conspiracy and

Protection of Property Act 1875. S 7 made it an offence to compel others to

“watch or beset” places or businesses. The court held that the words “with a

view to compel” meant that an essential ingredient of the offence was

compulsion and not mere persuasion and that in the absence of evidence that

anyone was prevented from having an abortion meant that no offence was

committed. The court also noted that the means employed to implement the

purpose were confined to verbal abuse and no physical force was used or

threatened. On the basis that “watching and besetting” occurred for the

purpose of persuasion as opposed to coercion meant that a breach of the

criminal law did not occur.

36. In the present case, only Mr Ryan, Mr Tymms, Mr Evans, Mr Crafti, Ms Bolton,

Mr Monsalve-Tobon and Ms Farmer are seen on CCTV or police video to form

part of the protest line at the front of Max Brenner’s. The other accused are

observed to be at various locations in the middle of QV Square during the

demonstration. It is not contended by the prosecution that the “sit in” to the

side of Max Brenner’s near the end of the demonstration would constitute

besetting of the premises. For the reasons that follow, it is not necessary for

me to determine whether the actions of the protestors not involved in the line

can be considered as “acting in concert” with those who formed part of it.

37. It is not in dispute that at the time the protestors arrived in QV Square the

police were forming a line across the front of Max Brenner’s extending across

Red Cape Lane to the “Grill’d” restaurant in order to, according to Inspector

Beattie, “stop the protestors invasion of the shop”. Within a few minutes of

7 [1992] 1 WLR 91.

19 DECISION

their arrival the police also formed a solid line across the bottom of Red Cape

Lane near Swanston St. It is also not in dispute that the police decided to re-

inforce their line at the front of Max Brenner’s because of the actions of the

protest line in pushing backwards against them for intermittent periods of time.

The CCTV footage indicates that it was the police line across Red Cape Lane

near Max Brenner’s that prevented members of the public from proceeding

down the Lane towards Swanston St or into Max Brenner’s, if they so chose.

Although the protest line extended across Red Cape Lane, there is no

evidence that the protest line prevented anyone from proceeding past it. The

CCTV footage also indicates that once the police formed a line across the

bottom of Red Cape Lane, the only movement of members of the public were

those seen leaving Max Brenner’s or other shops in the Lane. Members of the

public were prevented by that police line from proceeding up Red Cape Lane

towards Max Brenner’s and QV Square.

38. The CCTV footage also indicates that members of the public moved freely

through the protestors in QV Square and one gentleman also engaged in

debate with a number of the protestors. In my opinion, it can not be said that it

was the actions of the protestors that caused any obstruction, hindering or

impediment to members of the public from entering Max Brenner’s, if they

chose to do so. In reality, and notwithstanding Ms Kenway’s message to the

protestors who were “blockading” the store “because we want to shut this

store down”, it was the establishment of the police lines at the front of Max

Brenner’s extending across Red Cape Lane and at the other end of Red Cape

Lane that caused the obstruction, hindrance and impediment to members of

the public who may have wished to exercise their lawful right to enter or use

the premises.

39. Furthermore, as depicted on the CCTV footage, customers remained inside

and outside Max Brenner’s while the demonstration occurred. Apart from what

appeared to be a robust and vigorous debate with the gentleman referred to,

20 DECISION

there is no evidence of any “hostile intent” by any of the protestors towards

members of the public in QV Square or at the outside tables at Max Brenner’s.

The protestors did not prevent anyone from leaving the shop and there were a

number of customers who left the shop and proceeded down Red Cape Lane

during the protest without any interference by the protestors. The evidence of

Mr Shrestha was to the effect that once the protestors arrived the doors were

shut and locked and that it was left to their security guard as to whether he

would allow customers to enter.

40. In these circumstances, the charges against all accused of besetting the

premises is not made out. They did not surround the premises with hostile

intent or demeanour nor did their actions obstruct, hinder or impede any

member of the public who wished to enter, use or leave Max Brenner’s

Chocolate Bar. Therefore, I uphold the no-case submissions in relation to this

charge and will dismiss the charge laid under S 52 (1A) against each

accused.

Did the accused wilfully trespass in a “public place” and neglect or

refuse to leave after being warned to do so by the owner, occupier or a

person authorised by or on behalf of the owner or occupier contrary to S

9 (1)(d) of the Act?

41. The relevant statutory provisions is;

S 9 (1) Any person who—

(d) wilfully trespasses in any public place other than a Scheduled public place and

neglects or refuses to leave that place after being warned to do so by the owner occupier or a

person authorized by or on behalf of the owner or occupier;

shall be guilty of an offence.

(1A) In any proceedings for an offence against subsection (1) the statement on oath of any

person that he is or was at any stated time the owner or occupier of any place or a person

21 DECISION

authorized by or on behalf of the owner or occupier thereof shall be evidence until the contrary

is proved by or on behalf of the accused that such person is or was the owner or occupier of

that place or a person authorized by or on behalf of the owner or occupier thereof (as the case

requires).

(1B) A person may commit an offence against paragraph (d), (e), (f) or (g) of subsection

(1) even though he or she did not intend to take possession of the place.

(2) For the purposes of section 86 of the Sentencing Act 1991 the cost of repairing or

making good anything spoiled or damaged in contravention of this section shall be deemed to

be loss or damage suffered in relation thereto.

(3) Nothing contained in this section shall extend to any case where the person offending

acted under a fair and reasonable supposition that he had a right to do the act complained of

or to any trespass (not being wilful and malicious) committed in hunting or the pursuit of game.

42. S 3 defines “public place” to include and apply to, relevant to this matter;

(a) any public highway road street bridge footway footpath court alley passage or

thoroughfare notwithstanding that it may be formed on private property;

(o) any open place to which the public whether upon or without payment for admittance

have or are permitted to have access; or

(p) any public place within the meaning of the words "public place" whether by virtue of

this Act or otherwise.

43. Schedule 1 lists the Scheduled public places as:

SCHEDULED PUBLIC PLACES

1. Land used for the purposes of a Government school within the meaning of the

Education and Training Reform Act 2006.

2. Premises or place where a children's service within the meaning of the Children's

Services Act 1996 operates in respect of which the Secretary within the meaning of

22 DECISION

that Act provides grants, payments, subsidies or other financial assistance.

3. Premises that are a residential service, residential institution or residential treatment

facility within the meaning of the Disability Act 2006.

4. Premises that are an approved mental health service within the meaning of the

Mental Health Act 1986.

5. Land held or managed by a cemetery trust of a public cemetery to which the

Cemeteries and Crematoria Act 2003 applies.

6. Premises or place where an education and care service within the meaning of the

Education and Care Services National Law (Victoria) operates in respect of which the

Regulatory Authority within the meaning of that Law provides grants, payments,

subsidies or other financial assistance.

44. All of the accused are charged with contravening S 9(1)(d) of the Act. The

prosecution are required to prove that;

(i) each of the accused trespassed in any place other than a scheduled

public place;

(ii) each of the accused did so wilfully;

(iii) each of the accused was warned to leave the QV site by the owner/

occupier or a person authorised by or on behalf of the owner or

occupier;

(iv) each of the accused neglected or refused to leave after being so

warned.

45. In support of the charges the prosecution rely on the evidence given by;

Ms Fleming; that the property including the Square and laneways are

private property; (although she described it as “an unusual place

23 DECISION

because it is a public place that is privately owned”);

Ms Fleming; that the S 173 Agreement provides that QV has the

control, care and management of the public areas which includes the

Square and laneways;

Ms Fleming; that in her position as General Manager of QV

Management, she had authority from the owners to manage the site

and to remove people from the site who were disruptive or threatening

the business of the retail tenants;

Ms Fleming; that she gave authority to the Victoria Police in her letter to

Inspector Beattie dated 1 July to remove protestors if they were

requested to leave the site and did not do so;

Mr Appleford, Inspector Beattie, Senior Sgt Falconer and Ms Fleming

as to the placing and contents of the Conditions of Entry signage

placed in and around QV and the contents of and announcements

made by Mr Appleford, Inspector Beattie and Senior Sgt Falconer to

the protestors at various times during the demonstration that they were

trespassers and were required to leave;

The video footage to the effect that both Ms Kenway and Mr Anderson

were aware of the requests made for the protestors to leave the site by

informing the protestors on megaphones that; “the police are trying to

move us on” and “We’re gonna stay here, we’re not moving on. We’re

not gonna let the police move us on”; and

Sgt Nash, concerning the distribution of the Notice from Inspector

Beattie to a number of protestors, including; Ms Kenway, Mr Oakley

and Mr Hassan outside the State Library prior to the demonstration at

QV about what behaviour would not be permitted on the property.

46. QV Square and the laneways on the site are subject to a covenant between

24 DECISION

the owners of the property and Melbourne City Council pursuant to S 173 of

the Planning and Environment Act 1987. S 173 of the Act provides that;

(1) A responsible authority may enter into an agreement with an owner of land in the area

covered by a planning scheme for which it is a responsible authority.

(2) A responsible authority may enter into the agreement on its own behalf or jointly with

any other person or body.

47. S 174 of the Act provides that;

(1) An agreement must be under seal and must bind the owner to the covenants specified in

the agreement.

The agreement made between the owners of QV and the Melbourne City

Council is registered on the Title pursuant to the Transfer of Land Act 1958.

For the purposes of these proceedings, the relevant provisions of the

agreement are;

5.1 QV must keep:

(a) the Lanes open to the public 24 hours a day and 7 days a week in a

manner which is reasonably analogous to Comparable Lanes; and

(b) the QV Square open to the public 24 hours a day and 7 days a

week in a manner which is reasonably analogous to Comparable

Squares.

5.4 (a) Subject to the rights of the Council under this agreement and the

obligations of QV under this agreement, QV has the control, care and

management of the Public areas including all aspects of traffic.

(b) Subject to QV complying with its obligations under this agreement,

the Council does not object to QV temporarily closing or interfering with

public pedestrian traffic to Public Areas where the closure or

25 DECISION

interference is reasonably required due to any works, alterations or

other activities required to be carried out by QV in accordance with this

agreement.

48. In my opinion, on the basis of this agreement, QV Square and the laneways

fall within the definition of “public place” in S 3 of the Summary Offences Act

as members of the public have access as of right 24 hours per day, 7 days a

week subject to the limited exceptions in 5.4 (b). It is therefore necessary to

consider the rights and obligations of members of the public who wish to

access QV Square and the owners/occupiers of the QV site.

49. S 9 (1) imposes different trespass offences which distinguish between private

places, Scheduled public places (as listed in Schedule 1) and public places.

50. Prior to an amendment in 1997, S 9 (1)(d) referred to “place” with the

amendment confining its application to “public places” other than a Scheduled

public place. The other trespass categories are contained in (1)(e), (1)(f) and

(1)(g), with (1)(g) applicable to all places (whether private or public) and (1)(e)

and (1)(f) only applying to private places and Scheduled public places.

Furthermore, S 9 distinguishes between situations where the owner/occupier

must give authority (express or implied) for a person to enter, (sub section(e)),

and public places, (sub section (d)), where authority to enter is not required

and accordingly the owner/occupier cannot refuse or prohibit entry.

51. In my opinion, the owners of QV and therefore QV management, by virtue of

the Square and laneways being subject to the S 173 Planning and

Environment Act agreement and therefore a “public place” by virtue of S 3 of

the Summary Offences Act, did not have the legal authority to apply

conditions on members of the public who wished to enter QV Square or the

laneways on the site.

52. In order to contravene S 9 (1)(d), the accused must be categorised as wilful

trespassers and they must be found to have neglected or refused to leave

26 DECISION

after being warned by the appropriate person to do so.8 The prosecution

submitted that the accused entered QV “without lawful excuse” or did so

“wilfully”, or without a legitimate purpose and refused to leave after being

requested to do so by Mr Appleford, on behalf of the owners/occupiers of QV.

53. The accused jointly submitted that “wilful trespass” should be interpreted to

mean entering or being in a public place, with the intention to commit a

criminal offence. In support of this submission, the accused relied on the

decision of Ormiston J in Bergin v Brown.9 In that case, the applicant was

charged with committing an offence pursuant to S 9 (1)(c) of the Summary

Offences Act 1966 in that he “wilfully damaged property”, being a car. The

court was required to determine the proper meaning of the word “wilfully”.

After reviewing numerous decisions His Honour held that; “to satisfy the test

of “wilfully” damaging property one must show either direct intention to cause

damage or recklessness on the part of the accused as to the consequences of

his acts”.

54. The accused submitted that in the context of this case, wilful trespass must

mean something more than entering QV without permission of the

owners/occupiers or in contravention of the terms set by them on the basis

that they cannot limit entry by virtue of QV Square being a “public place”.

55. The accused submitted that the demand to leave QV Square by Mr Appleford

was also not capable of transforming them from being members of the public

with a lawful right to be there to being wilful trespassers on the basis that QV

management does not have authority to request members of the public to

leave a “public place” unless they are wilful trespassers. It was submitted that

the announcement by Mr Appleford that the owners/occupiers of QV no longer

gave permission for the accused to remain in QV Square because of their

expression of political opinion cannot render them wilful trespassers as to

8 See Lewis v Hollowood Unreported Ormiston J 3 October 1988 and Latrobe University v Robinson & Pola

[1972] VR 883.

9 [1990] VR 888.

27 DECISION

interpret S 9 (1)(d) as having that purpose and effect would impermissibly limit

their right to “freedom of expression” and the right to “peaceful assembly”

which are protected by the Charter of Human Rights and Responsibilities Act

2006.

56. S 15 of the Charter of Human Rights and Responsibilities Act 2006

provides:

Freedom of Expression

(1) Every person has the right to hold an opinion without interference.

(2) Every person has the right to freedom of expression which includes the freedom to seek,

receive and impart information and ideas of all kinds, whether within or outside Victoria and

whether –

(a) orally; or

(b) in writing; or

(c) in print; or

(d) by way of art; or

(e) in another medium chosen by him or her.

(3) special duties and responsibilities are attached to the right of freedom of expression and

the right may be subject to lawful restrictions reasonably necessary –

(a) to respect the rights and reputation of other persons; or

(b) for the protection of national security, public order, public health or public morality.

57. S 16 of the Charter provides:

Peaceful Assembly and freedom of association

(1) Every person has the right of peaceful assembly.

28 DECISION

(2) Every person has the right to freedom of association with the others, including the right to

form and join trade unions.

58. S 7 of the Charter provides:

Human rights – what they are and when they may be limited

(1) This Part sets out the human rights that Parliament specifically seeks to protect and

promote.

(2) A human right may be subject under law only to such reasonable limits as can be

demonstrably justified in a free and democratic society based on human dignity, equality and

freedom, and taking into account all relevant factors including –

(a) the nature of the right; and

(b) the importance of the purpose of the limitation; and

(c) the nature and extent of the limitation; and

(d) the relationship between the limitation and its purpose; and

(e) any less restrictive means reasonably available to achieve the purpose that the

limitation seeks to achieve.

(3) Nothing in this Charter gives a person, entity or public authority a right to limit (to a greater

extent than is provided for in this Charter) or destroy the human rights of any person.

59. S 32 of the Charter provides:

Interpretation

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions

must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and

tribunals relevant to a human right may be considered in interpreting a statutory provision.

29 DECISION

(3) This section does not affect the validity of –

(a) an Act or provision of an Act that is incompatible with a human right; or

(b) a subordinate instrument or provision of a subordinate instrument that is

incompatible with a human right and is empowered to be so by the Act under which it

is made.

60. In the Second Reading Speech when introducing the bill, the Attorney-

General, Mr Hulls said;10

“Importantly, the Charter recognizes that with rights come responsibilities, and

that everyone in the community has a responsibility to respect the human

rights of others. The bill explicitly states that nothing in the Charter gives a

person, entity or public authority a right to limit or destroy the human rights of

any person. In other words, nothing in the Charter may be interpreted as

giving any group or person any right to engage in any activity aimed at

destroying any of the rights recognized by the Charter or aimed at limiting

them to a greater extent than is provided for in the Charter. Human rights

cannot be used as a pretext to violate the rights of others. For this reason, the

bill provides that rights should not generally be seen as absolute but must be

balanced against each other and against other competing public interests”.

61. In relying on the application of the Charter, the accused referred the court to

the decision of the Court of Appeal in Noone (Director of Consumer Affairs

Victoria) v Operation Smile (Australia) Inc & Ors11, which referred to the High

Court decision in Momcilovic v The Queen12, where the effect of S 32 (1) and

S 7 (2) of the Charter was discussed. Nettle JA held, that given that there was

no majority view expressed by the High Court it was appropriate to follow the

view of the Court of Appeal in R v Momcilovic13, that is; “that S 7 (2) is to be

10 4 May 2006. Legislative Assembly. Page 1289. 11 [2012] VSCA 91. 12 [2011] HCA 34.

13 [2010] VSCA 50.

30 DECISION

considered only after the statutory provision in question has been interpreted

in accordance with S 32 (1)”.14 The approach to be adopted is:

Step 1: Ascertain the meaning of the relevant provision by applying S 32 (1) of

the Charter in conjunction with common law principles of statutory

interpretation and the Interpretation of Legislation Act 1984 (Vic);

Step 2: Consider whether, so interpreted, the relevant provision breaches a

human right protected by the Charter;

Step 3: If so, apply S 7 (2) of the Charter to determine whether the limit

imposed on the right is justified15.

62. The accused submitted that it would not be appropriate to interpret S 9 (1)(d)

in such a way so as to allow the owner/occupier of a “public place” the

authority to revoke the licence of a person to be in that place because of an

expression of political opinion that is at odds with that of the owner/occupier.

To do so, it was submitted, would not be compatible with human rights. In

support of their submission, the accused referred the court to English cases

which discussed the fundamental importance in a democracy of “freedom of

expression”.16 In Hammond’s case, Lord Justice May referred to what the

European Court of Human Rights said in Sunday Times v United Kingdom

(No 2)17;

“Freedom of expression constitutes one of the essential foundations of a

democratic society subject to paragraph (2) of Article 10.18 It is applicable not

only to information or ideas that are favourably received or regarded as

inoffensive, or as a matter of indifference, but also to those that offend, shock

or disturb. Freedom of expression as enshrined in Article 10 is subject to a

number of exceptions which, however, must be narrowly interpreted and the

14 Para 142. 15 Para 35. 16 Hammond v DPP [2004] EWHC 69, Redmond-Bate v DPP [1999] EWHC 732. 17 [1992] 14 EHRR 123.

18 Which is similar to S 15 of the Victorian Charter.

31 DECISION

necessity for any restrictions must be convincingly established”.

In Redmond-Bate, Lord Justice Sedley, with whom Mr Justice Collins agreed,

said;19 “free speech includes not only the inoffensive but the irritating, the

contentious, the eccentric, the heretical, the unwelcome and the provocative

provided it does not tend to provoke violence. Freedom only to speak

inoffensively is not worth having. What Speakers’ Corner (where the law

applies as fully as anywhere else) demonstrates is the tolerance which is both

extended by the law to opinion of every kind expected by the law in the

conduct of those who disagree, even strongly, with what they hear”.

63. The court was also referred to a decision of Mr Justice Harper In Ferguson v

LSC Walkley & Constable Pearson20. In that case, Mr Justice Harper was

required to decide the test to be applied when determining whether words

were insulting pursuant to S 7 (1) of the Summary Offences Act 1966. He

said; “There is, with respect much to be said for an approach which,

consistently with the will of Parliament, declines to impose the sanctions of the

criminal law on behaviour that is not properly categorised as criminal, and

which seeks to avoid unnecessary limits on the right to freedom of speech”.

He also said;21 “As Professors Bronitt and McSherry point out, the Summary

Offences Act has the potential to be used as an instrument of oppression -

whereas, properly employed, it should protect minorities as well as members

of the majority; and in the former instance afford that protection to those who,

because of their vulnerability, need it more than others. It is the duty of the

police and the courts to ensure that the Act is given its proper role”.

64. I do not accept the prosecutions submission that the accused entered QV

Square without lawful excuse, wilfully or without a legitimate purpose. They

entered for the purpose of conducting a “political demonstration”. As I have

already found, they had a lawful right to enter QV Square. There is no

19 Para 20. 20 [2008] VSC 7 at para 29.

21 At para 37.

32 DECISION

evidence to suggest that they had criminal intent or were reckless as to the

consequences of their acts whether it be by causing criminal damage to

property, causing a significant breach of the peace or a threat to public order.

The evidence indicates that the demonstration was; noisy; consisted of

virtually non stop politically based chanting and speeches; the displaying of

banners; and, involved some intermittent physical interaction between the

protestors line and police line immediately in front of Max Brenner’s, of

unknown origin. The presence of the protestors in QV Square for the purpose

of conducting a political demonstration, or “peaceful protest”, as it was

referred to in some of the speeches made, does not, in my opinion, cause the

protestors to be classified as wilful trespassers. The purpose and conduct of

the demonstration does not render them as wilful trespassers. The protestors

had a lawful right to enter QV Square without restriction. They had a lawful

right to conduct the “political demonstration”. Their conduct within QV Square

does not convert them from having a lawful right to be there to being wilful

trespassers. The conduct of the protestors did not promote violence. To

interpret S 9 (1)(d) as submitted by the prosecution would, in my opinion,

contravene their right to “freedom of expression” as enacted in the Charter. In

addition, a refusal to leave after being requested to do so on the basis that the

protestors were; “demonstrating disapproval of the political or social interests

of a retail tenant of this shopping centre” is also not compatible with those

human rights. I accept as valid the submission made by the accused that to

interpret S 9 (1)(d) otherwise, would unjustifiably interfere with their rights to

“freedom of expression” and “peaceful assembly”. The prosecution submitted

that although the protestors have the right to “freedom of expression”, that

right is restricted where it involves interference with the rights of others, and in

this case, the rights of members of the general public to perform their normal

activities in QV. The Charter contemplates lawful restrictions on the right of

“freedom of expression” as provided in S 15(3) because special duties and

responsibilities attach to the right. What is required in circumstances such as

33 DECISION

these is a balancing process after taking into account the matters referred to

in S 7 of the Charter. Whilst the actions of the protestors may have caused

some inconvenience to members of the public, the nature and extent of it, was

not such as to warrant a prohibition of their right to demonstrate and express

their political opinions. Although it was not contended by the prosecution, I

would also not categorise the behaviour of the protestors as a significant

breach of the peace or threat to public order so as to justify a lawful restriction

on their human rights as contemplated by S 15 (3)(b) of the Charter.

65. This issue was considered by the New Zealand Supreme Court in Brooker v

Police22. In this case, Mr Brooker was convicted of disorderly behaviour when

making a public protest in the street outside the house of a policeman contrary

to S 4 (1)(a) of the Summary Offences Act 1981. The protest constituted

behaviour protected by S 14 of the New Zealand Bill of Rights Act 1990 which

provides that; Everyone has the right to freedom of expression, including the

freedom to seek, receive, and import information and opinions of any kind in

any form”. Elias CJ said;23 “ I accept that what disrupts public order cannot be

divorced from the circumstances and ultimately entails a value judgement.

But its measure must not be too nice. I agree with the views expressed by

Douglas J in Terminiello v Chicago: freedom of speech should be restricted

for reasons of public order only when there is a clear danger of disruption

rising far above annoyance”.

66. Blanchard J said;24 “Disorderly behaviour is not necessarily offensive in that

way. It is behaviour which disturbs or violates public order. To fall within s

4(1)(a) it must be behaviour in or within view of a public place which

substantially disturbs the normal functioning of life in the environs of that

place. It must cause a disturbance of good order which in the particular

circumstances of the time and place any affected members of the public could

22 [2007] NZSC 30. 23 Para 42-3.

24 Para 56.

34 DECISION

not reasonably be expected to endure because of its intensity or its duration

or a combination of both those factors”.

67. Importantly, in the context of this case, he also said;25 “But when the

behaviour in question involves an exercise of the right to convey information

or express an opinion, which is protected by s 14 of the New Zealand Bill of

Rights Act 1990, or engages in some other right guaranteed by that Act there

is a further and most important consideration. A characterisation of the

behaviour of the defendant as disorderly then cannot be made without an

assessment against the overriding requirement of s 5 of the Bill of Rights that

the exercise of any guaranteed right may be subjected only to such

reasonable limits prescribed by law as can be demonstrably justified in a free

and democratic society. The value protected by the Bill of Rights must be

specifically considered and weighed against the value of public order. The

court must ask itself whether treating the particular behaviour in the particular

circumstances as disorderly constitutes a justified limitation on the defendant's

exercise of the right in question. As a result, public order will less readily be

seen to have been disturbed by conduct which is intended to convey

information or express an opinion than by other forms of behaviour. The

manner in which the defendant chose to exercise the right and the time and

place are of course relevant to that inquiry”.

68. Tipping J said;26 “Any modern test for determining when conduct is disorderly

must be capable of application both to ordinary cases and to those that are

less simple because aspects of the rights and freedoms affirmed by the New

Zealand Bill of Rights Act are engaged. With that in mind I would reformulate

earlier tests in the following way. Conduct in a qualifying location is disorderly

if, as a matter of time, place and circumstance, it causes anxiety or

disturbance at a level which is beyond what a reasonable citizen should be

expected to bear. Unless that is so, the conduct will not warrant the

25 Para 59. 26 Para 90.

35 DECISION

intervention of the criminal law. If it is so, the public has a legitimate interest

in proscribing the behaviour, and thereby protecting citizens from it. In this

way public order is protected”. At paragraph 92 he said; “Where, as here, the

behaviour concern and involves a genuine exercise of the right to freedom of

expression, the reasonable member of the public may well be expected to

bear a somewhat higher level of anxiety or disturbance than would otherwise

be the case. This may be necessary to prevent an unjustified limitation of the

freedom and is consistent with the purpose of s 6 of the Bill of Rights. There

must, however, come a point at which the manner or some other facet of the

exercise of the freedom will create such a level of anxiety or disturbance that

the behaviour involved becomes disorderly under s 4(1)(a) and,

correspondingly, the limit thereby imposed on the freedom becomes justified

under s 5. No abstract guidance can be given as to when that level will be

reached. That decision is a matter of judgment according to all the relevant

circumstances of the individual case”.

69. In my opinion, the principles stated in Brooker’s case are pertinent to the

factual circumstances before the court. The protestors behaviour in QV

Square consisted of chanting and speeches relating to; the alleged Israeli

occupation of Palestine; the support of Max Brenner to the Israeli army; the

support of the USA to Israel; and, the displaying of anti Israeli banners. The

gathering of the protestors in QV square and the expression of their political

beliefs, notwithstanding the limited physical activity between the protest line

and police line immediately in front of Max Brenner’s did not, in my opinion,

constitute a threat to public order or a significant breach of the peace so as to

warrant a restriction on their rights to express their political opinions. In fact,

the evidence revealed that a large number of members of the public appeared

to be watching with interest and one even engaged in robust discussions with

a number of the protestors. Furthermore, as already mentioned, a number of

customers at Max Brenner’s remained at the tables outside observing the

activities. The demonstration only lasted 15 minutes before the protestors

36 DECISION

were requested to leave and the arrests occurred shortly thereafter. There

was no threat to public order or breach of the peace to the extent necessary

so as to justify a lawful restriction on the right of the protestors to express their

political beliefs as is contemplated in S 15 (3)(b) of the Charter. I do not

categorise the protestors behaviour as being; “a clear danger of disruption

rising far above annoyance”, or it being behaviour that “any affected member

of the public could not reasonably be expected to endure” or that it caused,

“anxiety or disturbance of a level which is beyond what a reasonable citizen

should be expected to bear”.

70. Accordingly, consistent with my view that; the accused had a lawful right to

enter QV Square, it being a “public place”; that QV management could not

impose conditions of entry; that the demonstration was lawful in that the

protestors were engaging their right of “freedom of speech”; and, the demand

to leave could not convert the accused into wilful trespassers; S 9 (1)(d) of

the Act has not been contravened.

71. If I am incorrect in my conclusions and the owners/occupiers of QV had the

legal authority to request that the accused leave QV Square because they

were “demonstrating disapproval of the political or social interests of a retail

tenant”, it is still necessary for the prosecution to prove that each of the

accused heard the request or warning to leave and refused or neglected to do

so in order to be guilty of the offence in accordance with the principles in

Lewis v Hollowood and Latrobe University v Robinson & Pola. The evidence

indicates that when Mr Appleford made his announcement requesting the

protestors leave, there was considerable noise in QV Square from the

protestors on the megaphones and the protestors chants. Mr Appleford gave

evidence that when Inspector Beattie spoke on the megaphone to introduce

him, “his voice was drowned out and I could not hear him”. He also told the

court that when he made his announcement he could not see everyone in QV

Square because of the position in which he was standing. Ms Fleming gave

37 DECISION

evidence that she saw but could not hear the announcements made by Mr

Appleford or Inspector Beattie because of the noise. She agreed in cross-

examination that it would take between 30 seconds to one minute for a person

to read the contents of the Conditions of Entry signs displayed at the

entrances to and within QV and the owners/occupiers could not force people

to read them. Senior Sgt Falconer gave evidence that he could only hear the

start of Inspector Beattie’s announcement because of the noise and did not

hear Mr Appleford’s announcement at all. Inspector Beattie gave evidence

that although he heard the announcement of Mr Appleford (because he was

standing next to him) “the noise drowned him out”. He also told the court that

when he made a further announcement to the protestors that they were

trespassing and that they should leave, the chanting by the protestors

continued. Mr Shrestha gave evidence that he saw Inspector Beattie on a

megaphone but could not hear what he said. SC McLaughlin told the court

that he heard the start of the announcement by Inspector Beattie “but the

crowd became louder and drowned out his voice”. SC Oakley told the court

that he heard Inspector Beattie attempt to address the crowd “but every time

he spoke the crowd became louder”. Sgt Saunders gave evidence that he

heard Inspector Beattie announce to the protestors that they were on private

property and that they were trespassing, but “the crowd drowned him out”. Sgt

Whibley gave evidence that he was close to Inspector Beattie when he made

his announcements but “it was hard to hear”. Sgt Nash told the court that

when Inspector Beattie made his announcements, “the crowd was chanting”.

SC Lynch told the court he was 20 metres away from Inspector Beattie when

he made his announcements “but I could not hear him”. SC Bray, SC

Contarino and C Lavars gave evidence that they heard the announcements

but LSC Richards and C Pehlivan told the court they only heard parts of them.

72. The prosecution contend that the court can infer from the announcements

made by Ms Kenway and Mr Anderson (see para 25) that they heard and

understood the directions given to them by Inspector Beattie and conveyed

38 DECISION

those directions to the other protestors. In my opinion, there is simply no

evidence to substantiate that any of the accused; read any of the Condition of

Entry signs or heard or understood any of the announcements made by Mr

Appleford or Inspector Beattie, nor can the court draw the inference as

suggested by the prosecution that they did on the evidence presented. The

evidence of most of the witnesses and the police video footage clearly

indicates that the announcements of Mr Appleford and Inspector Beattie were

“drowned out” by the noise in QV Square. In fact, when Mr Appleford was

making his announcement, Ms Kenway is seen and heard addressing the

protestors on a megaphone. Throughout the demonstration the protestors

were chanting loudly which seemed to increase in volume when further

announcements were made by Inspector Beattie. The court cannot be

satisfied on the evidence presented that any of the accused heard or

understood the contents of any announcement made by Mr Appleford,

Inspector Beattie or Senior Sgt Falconer. Neither can the court be satisfied

that Ms Kenway heard Senior Sgt Falconer’s personal request to her for the

protestors to leave. He agreed that she moved away as he approached her,

the noise escalated when he approached her and his interaction with her

lasted no more than 9 seconds.

73. The announcement made by Inspector Beattie to the protestors involved in

the “sit-in” occurred at approximately 7.17 p.m.. The accused depicted in the

“sit-in” are; Ms Bolton, Mr Oakley and Ms Farmer who were arrested within a

few minutes of the announcement being made. During his announcement

further speeches and chants were occurring from that group and other

protestors at the fringes of QV Square and from protestors on the level above.

Those chants were; “Palestine will be free from the river to the sea” and “Max

Brenner you can’t hide, you’re supporting genocide”.

74. I am not satisfied on the evidence presented that the accused who formed

part of the “sit-in” heard or understood the direction given to them by Inspector

39 DECISION

Beattie to leave and on this basis, it cannot be said that they neglected or

refused to leave after being warned to do so thereby contravening S 9 (1)(d)

of the Act.

75. Accordingly, I uphold the “no-case” submissions made by the accused in

relation to the charges laid pursuant to S 9 (1)(d) of the Summary Offences

Act 1966. The charges will be dismissed. The remaining “no-case”

submissions relate to Mr Anderson (hindering the arrest of Mr Tymms by SC

Jones); Mr Evans (hindering Sgt Robinson in the arrest of Ms Kenway and

assaulting Sgt Robinson); Mr Monsalve-Tobon (assaulting C Lavars); Mr

Hassan (resisting Acting Det Sgt Balthazaar); Mr Oakley (resisting SC

Contarino); Mr Small (hindering Senior Sgt Falconer); Mr Ridgewell (hindering

SC Contarino in the arrest of Mr Small); and, Mr Tymms (hindering LSC

Richards in the arrest of Ms Walsh and resisting LSC Richards).

76. In order to consider the “no-case” submissions by each of the accused in

relation to these charges, it is necessary to describe in some detail the

planning involved and actions of the police in conducting the arrests of the

accused. Senior Sgt Falconer gave evidence that in police meetings prior to

the demonstration it was decided that if arrests were to be made the police

would target those they believed were the leaders who would exert influence

on the other protestors. He told the court that the Public Order Management

Team were tasked with forming arrests teams at his direction or on the

direction of Senior Sgt Ward. Senior Sgt Falconer told the court that the police

had decided that arrests would occur if the demonstration became violent or it

was illegal. Inspector Beattie gave evidence that he may have allowed the

demonstration to continue longer, after the request to leave was made by Mr

Appleford, but he viewed the protestors actions in pushing against the police

line as an “insidious tactic of assaulting the police”. He confirmed that he

instructed Senior Sgt Falconer to approach Ms Kenway to request that she

and the protestors leave QV Square, but when that failed he decided to

40 DECISION

proceed with the arrests of the accused.

77. Senior Sgt Falconer gave evidence that he approached Ms Kenway in order

to ask her to request that the protestors leave QV Square as he had

previously identified her as being a leader with influence. He told the court

that as he approached her he held her arm to get her attention but she moved

away and proceeded to make further announcements on a megaphone. He

told the court that as he approached her, Mr Small grabbed hold of his

shoulder across his chest. He gave evidence that the action by Mr Small was

deliberate and disagreed in cross examination that Mr Small put his arm out

only to remonstrate. He told the court that approximately 1 minute later Ms

Kenway was arrested by members of the POMT and in the course of being

arrested she fell to the ground. The evidence of Constables Payne and

Rodwell together with the CCTV footage and police video indicates that Ms

Kenway was forcibly removed from QV Square with Constable Payne’s arm

around her neck. SC Contarino gave evidence that he witnessed Mr Small put

his arm out between Senior Sgt Falconer and Ms Kenway and he decided to

act by taking Mr Small behind the police line. He told the court that as a result

of Mr Small’s resistance they both ended up on the ground. In cross

examination, he agreed that in the statement he made on 29 September 2011

he said that; “it appeared Mr Small was going to grab Senior Sgt Falconer”. C

Tamarua, the Informant for Mr Small, told the court that she was not part of

the arrest team and was not aware why Mr Small had been arrested.

78. Senior Sgt Falconer gave evidence that when Mr Small was being arrested he

observed Mr Ridgewell linking arms with Mr Small which had the effect of

hindering his arrest. SC Contarino gave evidence that as he was attempting to

arrest Mr Small, Mr Ridgewell tried to grab hold of Mr Small to pull him back

into the crowd. In cross examination, he agreed that when Senior Sgt

Falconer moved in to talk to Ms Kenway, Ms Kenway moved in between both

Mr Small and Mr Ridgewell while the police were pushing Mr Small and Mr

41 DECISION

Ridgewell and other protestors away. He also agreed that Mr Ridgewell could

not extract himself from that situation and he was not sure whether it was Mr

Small holding onto Mr Ridgewell or Mr Ridgewell holding onto Mr Small. SC

McKinnon, the Informant for Mr Ridgewell, gave evidence that he grabbed

hold of Mr Ridgewell's left arm and other police also held onto him and took

him to the loading dock. He told the court that Mr Ridgewell struggled when

he was arrested and he recalled that someone else was holding onto him at

the time. The police video footage indicates that Mr Ridgewell is pulled down

from behind by his neck and the loading dock footage indicates that when Mr

Ridgewell was carried into the loading dock he appeared unconscious and

was placed on the ground where there was no movement by him for

approximately 2 minutes whilst he was placed in the “recovery position” with a

number of police standing around him and leaning over him.

79. Sgt Robinson gave evidence that as Ms Kenway was being arrested by his

POMT he noticed Mr Evans running through the crowd with his hands raised

and his right hand in a fist shape which made contact with his jaw. He told the

court that he and Mr Evans grappled and at one stage Mr Evans had him in a

headlock and he was pushed and fell to the ground. In cross examination, Sgt

Robinson gave evidence that when he first saw Mr Evans he was

approximately 8 to 9 m away. After viewing the CCTV footage and police

video, Sgt Robinson agreed that it does not depict Mr Evans having him in a

headlock but rather him having Mr Evans in a headlock. He also agreed that

the video depicts a struggle between him and Mr Evans but does not depict

any punch being thrown by Mr Evans. He also agreed that when Mr Evans

approached he raised his hands and Mr Evans responded by raising his

hands. C Hall gave evidence that as Ms Kenway was being arrested he saw,

from a distance of 1-3 metres, Mr Evans run at the police in the arrest group

and throw a punch at Sgt Robinson. He told the court that he assisted the

arrest of Mr Evans by grabbing his feet and dragging him to the loading dock.

In cross examination, he agreed that Sgt Robinson put Mr Evans in a

42 DECISION

headlock and agreed that the video shown to him does not depict a punch

being thrown by Mr Evans. C Payne, the Informant for Mr Evans, told the

court that he did not witness the assault on Sgt Robinson. Acting Detective

Sgt Balthazzar gave evidence that he saw Mr Evans punch Sgt Robinson. In

cross examination, he agreed that he did not record the assault in his notes

but did include it in his Statement dated 31 August 2011.

80. Senior Sgt Falconer gave evidence that he saw Mr Hassan hold onto Ms

Kenway’s arms when she was being arrested. C Payne gave evidence that as

he and C Rodwell were taking Ms Kenway to the loading dock along Red

Cape Lane, he has a “vague recollection” that someone grabbed hold of C

Rodwell and he saw C Rodwell knocking a hand away by swinging his arm in

an outward motion. In cross examination, he disputed the suggestion that C

Rodwell punched anyone. Acting Detective Sgt Balthazzar, the Informant for

Mr Hassan, gave evidence that he noticed SC Leonard struggling with Mr

Hassan whilst he was holding him. He told the court that he was

approximately 3 m away at a time and he assisted SC Leonard by grabbing

hold of Mr Hassan and telling him to stop resisting. He told the court that Mr

Hassan would not put his arms behind his back so he put him to the ground

and handcuffed him, told him he was under arrest and took him to the loading

dock and then he returned to QV Square. He told the court that he could not

recall Mr Hassan falling in Red Cape Lane. C Rodwell gave evidence that as

he was leading Ms Kenway down Red Cape Lane to the loading dock with Mr

Hassan being led behind, he turned and with a right clenched fist, drew his

arm back and punched Mr Hassan in the arm in order to stop Mr Hassan

holding him. He agreed that at the time Mr Hassan was being held by the

police. He told the court that he did not see Mr Hassan hold on to him but “felt

it”. In cross examination, he disagreed that his actions were unprovoked,

gratuitous and unnecessary. He told the court that in his opinion his actions

were reasonable in the circumstances. SC Leonard gave evidence that as Ms

Kenway was being arrested he saw Mr Hassan trying to break the grip of the

43 DECISION

police and he then tried to break the grip of Mr Hassan which he was

eventually successful in doing. He told the court that his first contact with Mr

Hassan was in Red Cape Lane. He told the court that he was trying to put Mr

Hassan's arms behind his back but he resisted and he was assisted by Acting

Detective Sgt Balthazzar. He told the court that he handcuffed Mr Hassan in

the corridor leading to the loading dock and left him with Acting Detective Sgt

Balthazzar. SC Leonard told the court that Mr Hassan was “thrashing his arms

around” while being escorted down Red Cape Lane and was struggling both

in Red Cape Lane and in the corridor leading to the loading dock.

81. LSC Richards gave evidence that he was instructed to arrest Ms Walsh and

when that was occurring, Mr Tymms “rugby tackled” her. He told the court

that he informed Mr Tymms to “back off because she’s under arrest”. He told

the court that Mr Tymms grabbed Ms Walsh around the waist and that he held

on to her as he was taking her away. Senior Sgt Falconer gave evidence that

as Ms Walsh was being arrested he saw Mr Tymms running to shield her and

hold her. He disagreed that Mr Tymms could not extract himself from the area

when the POMT was arresting Ms Walsh. After viewing the police video he

agreed that Mr Tymms did not run in and agreed that Mr Tymms was caught

up in the “wedge formation” arrest of Ms Walsh which involved up to 7 police

members. However, he told the court that in his opinion, Mr Tymms could

have released his grip on Ms Walsh within a few seconds of her being

arrested which he failed to do. Sgt Saunders gave evidence that when Ms

Walsh was being arrested he saw Mr Tymms step in front of the arrest team

and put Ms Walsh in a “bear hug”. He told the court that two policeman held

on to Mr Tymms by each arm and he was struggling and two other police

members were attempting to grab his legs. The police video indicates Mr

Tymms struggling and falling down and being dragged away by the police and

taken behind the police line. SC Jones, the Informant for Mr Tymms, gave

evidence that he saw Mr Tymms put his arms around Ms Walsh as she was

being arrested and he brought him to the ground and handcuffed him and took

44 DECISION

him to the loading dock.

82. Senior Sgt Falconer gave evidence that as Ms Walsh was being arrested and

Mr Tymms stepped in to shield her, Mr Anderson approached and grabbed

Mr Tymms arm. In cross examination, he agreed that the CCTV footage

indicated that Acting Senior Sgt Ward had his arm around Mr Anderson's neck

as Ms Walsh was taken from QV Square. Sgt Saunders gave evidence that as

Ms Walsh was being arrested and Mr Tymms put her in a “bear hug”, Mr

Anderson grabbed Mr Tymms arm and tried to walk away. He told the court

that Mr Anderson was pulled off his feet and drawn towards the police line. He

told the court that he took Mr Anderson by his right arm and told him to let Mr

Tymms go but he retained his grip before letting him go. Sgt Saunders gave

evidence that Mr Anderson became a “dead weight” on the ground so the

police dragged him behind the police line to the loading dock. He agreed that

when he told Mr Anderson that he was being arrested for hindering police he

responded that he “got caught up in it”. In cross examination, Sgt Saunders

told the court that it was clear to him that Mr Anderson attempted to hinder the

arrest of Mr Tymms by linking arms with him and that Mr Anderson was still

holding onto Mr Tymms behind the police line. He agreed that the CCTV

footage indicates Sgt B Ward pulled Mr Anderson to the ground around his

neck whilst he still had hold of Mr Tymms.

83. SC Contarino, the Informant for Mr Oakley, gave evidence that he was

instructed to arrest Mr Oakley for wilful trespass. He told the court that he

approached Mr Oakley when he was in the “sit in” group to the side of Max

Brenner’s and told him to get up but he linked arms with other protestors. In

cross examination, he agreed after viewing the police video, that the

protestors in the “sit in” had all linked arms before Mr Oakley's arrest. He

agreed that other protestors held on to him and that he had to unlock Mr

Oakley's arms which took approximately 10 seconds.

84. Senior Sgt Falconer gave evidence that as the police pushed the protestors

45 DECISION

forward in an “arc” away from the front of Max Brenner's, he observed Mr

Monsalve-Tobon push C Lavars in the back which caused her to move

forward approximately 2 metres. He told the court that he grabbed Mr

Monsalve-Tobon and they both fell to the ground and Mr Monsalve-Tobon

struggled and was violent with him. In cross examination, he agreed after

viewing the police video, that a policewoman did raise her elbow in the

direction of Mr Monsalve-Tobon prior to him pushing C Lavars. SC Bray, the

Informant for Mr Monsalve-Tobon, told the court that he dragged Mr

Monsalve-Tobon approximately 20 metres because he refused to stand up.

He told the court that the police had to carry him in order to take him to the

loading dock where they placed him facedown. C Lavars gave evidence that

she felt a “shove” to her side when she was in between the protestors after

they had been moved from the front of Max Brenner’s. She denied raising her

arm and making contact with Mr Monsalve-Tobon’s throat.

85. The applicable provisions in relation to the alleged offences are;

S 52 (1) of the Summary Offences Act, which provides:

Any person who assaults resists obstructs hinders or delays or incites or encourages any

other person to assault resist obstruct hinder or delay any member of the police force or a

protective services officer in the execution of his duty under this Act or otherwise, or any

person lawfully assisting any such member or officer in the execution of his duty under this

Act, or any member of the staff of the local authority in the execution of his duty under this Act

shall be guilty of an offence.

S 458 of the Crimes Act 1958 provides:

(1) Any person, whether a member of the police force or not, may at any time without warrant

apprehend and take before a bail justice or the Magistrates’ Court to be dealt with according

to law or deliver to a member of the police force to be so taken, any person –

(a) he finds committing any offence (whether an indictable offence or an offence punishable

46 DECISION

on summary conviction) where he believes on reasonable grounds that the apprehension of

the person is necessary for any one or more of the following reasons, namely – (relevant to

this matter)

(ii) to preserve public order;

(iii) to prevent the continuation or repetition of the offence or commission of a further offence;

or

(iv) for the safety or welfare of members of the public or of the offender;

(b) when instructed so to do by any member of the police force having power under this Act to

apprehend that person…

S 462 of the Crimes Act 1958 provides:

In this Act the expression finds committing and any derivatives thereof extends to the case

of a person found doing any act or so behaving or conducting himself or in such

circumstances that the person finding him believes on reasonable grounds that the person so

found is guilty of an offence.

Importantly, in the context of this case, S 461 of the Crimes Act 1958

provides:

(1) Where an apprehension is made under a belief on reasonable grounds in accordance with

the provisions of section 458 or section 459 the apprehension shall not cease to be lawful or

be taken to be unlawful where it subsequently appears or is found that the person

apprehended did not commit the offence alleged.

86. In this case, all of the accused were arrested initially on the basis that they

were wilful trespassers. Some, as indicated were arrested for additional

offences including resist, assault and hinder police. All of the arrests were

made on the basis of an individual police officer making a decision to arrest or

being instructed to do so by his/her superior pursuant to S 458 (1)(b).

47 DECISION

87. It was submitted by the accused that neither the police command or individual

officers making arrests had reasonable grounds for a belief that an offence

was being committed by any of the accused. In particular, it was contended

that Inspector Beattie, the Field Commander, managing the operation, could

not have formed a belief on reasonable grounds that offences were being

committed and therefore his direction to Senior Sgt Falconer and his team to

commence arresting the accused was unlawful.

88. I disagree. The evidence given by Inspector Beattie, Senior Sgt Falconer and

the arresting officers/Informants was to the affect that they all attended pre-

demonstration briefings where possible breaches of the law by the protestors

was discussed. Members of the PORT and POMT were informed of the

likelihood of arrests being conducted on the basis that the protestors would be

committing wilful trespass by conducting the demonstration and refusing to

leave if requested to do so. Inspector Beattie formed a belief on reasonable

grounds, based on the factual information he was given by QV management

and the legal advice from the Victorian Government Solicitors Office, that the

protestors actions breached S 9 (1)(d) of the Summary Offences Act. I find

that the arrests of each of the accused was executed on the basis of a belief

by the police command and/or the arresting officers that the accused were

committing the offence of wilful trespass and that it would continue.

Additionally, that belief was reasonably held on the basis of information

previously conveyed to them. The police were not engaging in unlawful

conduct or acting outside their duty.27

89. In relation to Mr Hassan, it was also submitted that if the court found the

arrest of Ms Kenway to be lawful (which it has), excessive force was used in

effecting her arrest which justified the intervention of Mr Hassan in defence of

her. As previously indicated, Ms Kenway was forcibly removed from QV

Square by Constables Payne and Rodwell. The removal of her by C Payne’s

27 As discussed in Nguyen v Elliott Unreported Supreme Court Hedigan J 6 February 1995 and Coleman v

Power [2004] 220 CLR 1.

48 DECISION

arm around her neck over a not inconsiderable distance, was “heavy handed”,

in the circumstances. The law provides that the use of force in an arrest must

be reasonable and proportionate to the requirement of the arrest. This issue

was considered in Woodley v Boyd28, where Heydon JA referred to the

decision of Lindley v Rutter29 where Donaldson LJ said;

“It is the duty of any constable who lawfully has a prisoner in his charge to

take all reasonable measures to ensure that the prisoner does not escape or

assist others to do so, does not injure himself or others, does not destroy or

dispose of evidence and does not commit further crime such as, for example,

malicious damage to property. The list is not exhaustive, but it is sufficient for

present purposes. What measures are reasonable in the discharge of this

duty will depend upon the likelihood that the particular prisoner will do any of

these things unless prevented. That in turn will involve the constable in

considering the known or apparent disposition and sobriety of the prisoner.

What can never be justified is the adoption of any particular measures without

regard to all the circumstances of the particular case”.

Heydon JA then said;30 “The same duties and considerations apply where a

police officer is deciding how to effect an arrest. And, in evaluating the police

conduct, the matter must be judged by reference to the pressure of events

and the agony of the moment, not by reference to hindsight”. He referred to

the decision in McIntosh v Webster31 where Connor J said;

“[Arrests] are frequently made in circumstances of excitement, turmoil and

panic [and it is] altogether unfair to the police force as a whole to sit back in

the comparatively calm and leisurely atmosphere of the courtroom and there

make minute retrospective criticisms of what an arresting constable might or

might not have done or believed in the circumstances”.

28 [2001] NSWCA 35. 29 [1981] QB 128. 30 Para 37.

31 (1980) 43 FLR 112 at 123.

49 DECISION

90. In applying these principles to the present case, although C Payne’s actions in

grabbing Ms Kenway around the neck and pulling her sideways for a number

of metres, in hindsight, appeared to be unnecessary, the evidence indicates

that he did lower his arm when C Rodwell said to him; “go lower” or “no too

high”, and given the situation he found himself in, that being; directed to form

part of her arrest team with at least 5 other police officers involved; a large

number of protestors in the immediate vicinity with there being considerable

excitement, noise and turmoil; his actions could not be said, in all the

circumstances, to be unreasonable and disproportionate when effecting her

arrest.

91. Having witnessed the circumstances of Ms Kenway’s arrest, it is contended

that Mr Hassan was justified in intervening on her behalf. I disagree. The

evidence of Senior Sgt Falconer was that he saw Mr Hassan grabbing Ms

Kenway’s arms as she was being arrested. SC Leonard said he saw Mr

Hassan attempting to break the grip that the police had on her and that he told

Mr Hassan to let go but he did not do so. Notwithstanding the actions of C

Payne, Mr Hassan had no legal right to intervene in what was obviously the

arrest of Ms Kenway.

92. It was also submitted on behalf of Mr Hassan that if his arrest was lawful, he

should not be found guilty of resisting Acting Detective Sgt Balthazaar. In my

opinion, the evidence indicates that Mr Hassan was punched in the ribs by C

Rodwell when he was being escorted down Red Cape Lane to the loading

dock by SC Leonard. I find that the use of force by C Rodwell was

unnecessary in the circumstances and an unreasonable use of force. The

evidence given by SC Leonard and Acting Detective Balthazzar was in conflict

regarding what occurred in Red Cape Lane in that SC Leonard recalled that

he handcuffed Mr Hassan in the corridor leading to the loading dock and then

left Mr Hassan with Acting Detective Sgt Balthazzar whereas Acting Detective

Sgt Balthazzar recalled that he handcuffed Mr Hassan after he took him to the

50 DECISION

ground in Red Cape Lane.

93. The CCTV footage indicates that at 26.25 Mr Hassan was punched by C

Rodwell (who was in front of him escorting Ms Kenway) as he was being

escorted by SC Leonard. It was only after Mr Hassan was struck by C Rodwell

and lurches to the right in a downwards motion that Acting Detective Sgt

Balthazzar becomes involved. The charge of resist involves Acting Detective

Balthazzar not SC Leonard. The CCTV footage does not indicate any

resistance by Mr Hassan to the point in time where he is struck by C Rodwell,

who at that time was not acting in the execution of his duties. I find that any

subsequent resistance, if any, was warranted. His reaction in falling to the

right, was in response to being forcibly struck in the ribs, and not any

deliberate act on his part to physically resist being arrested. Accordingly, I

uphold the “no-case” submission of Mr Hassan in relation to the charge of

resisting Acting Detective Sgt Balthazzar in the execution of his duty and will

dismiss the charge.

94. It was submitted on behalf of Mr Small that he has “no-case” to answer in

relation to the charge that he did hinder Senior Sgt Falconer in the execution

of his duty. It is not disputed that at the time Mr Small stepped in between

Senior Sgt Falconer and Ms Kenway was when Senior Sgt Falconer

approached her to make a request that she and the protestors leave QV

Square. Senior Sgt Falconer was not in the process of arresting Ms Kenway

at that time. He merely wished to speak to her. What Mr Small did was to

interfere in that process. In support of his submission, Mr Small referred the

court to a decision of Mr Justice Kaye in DPP v Hamilton32. His Honour

referred to a number of authorities regarding the issue of whether police, at

the relevant time, were acting in the “execution of their duties”. In the case

before him, the accused was suspected of committing the offence of obtaining

property by deception by leaving a restaurant without paying. The Informant

32 [2011] VSC 598.

51 DECISION

wished to speak to the accused but he fled and was pursued. The issue on

appeal was whether, by fleeing when the police wished to speak to him, the

accused resisted police in the execution of their duty contrary to S 52 (1) of

the Summary Offences Act 1966. His Honour held that in requesting the

accused to speak to them they were acting in the course of their duties as

police constables, but were not at that point, acting “in the execution” of their

duties as police members for the purposes of S 52 (1) of the Act.33 He found

that in the absence of any legislative authority imposing an obligation on Mr

Hamilton to remain and speak to the police, he was not guilty of the offence.

95. In the present case, Senior Sgt Falconer was not in the process of arresting

Ms Kenway. As he approached her she moved away. He gave evidence that

he simply wished to speak to her at that point. In doing so, he was acting in

the course of his duty but not in the execution of it and accordingly, Mr Small

can not be held to have hindered Senior Sgt Falconer contrary to S 52 (1) of

the Act. Therefore, I uphold the ‘no-case” submission made on his behalf and

will dismiss the charge.

96. It was submitted on behalf of Mr Ridgewell that he has “no-case” to answer in

relation to the charge that he did hinder SC Contarino in the execution of his

duty. The prosecution case against Mr Ridgewell in relation to this charge is

that Mr Ridgewell hindered SC Contarino by linking arms with Mr Small when

he was being arrested for hindering Senior Sgt Falconer. However, the

evidence of SC Contarino was that he could not recall whether Mr Ridgewell

was holding onto Mr Small when Mr Small was being arrested or whether Mr

Small was holding onto Mr Ridgewell. Furthermore, he agreed that when this

incident occurred Mr Ridgewell could not extract himself from the activity that

was occurring. Their interaction at that point lasted a few seconds only before

Mr Ridgewell was forcibly removed from QV Square. In Plunkett v Kroemer34,

33 Para 32.

34 [1934] SASR 124 at 127.

52 DECISION

which was approved by Phillips J in Botton v Winn35, Napier J said;

“Hinder” is not a word of art or capable of precise definition and it is a question

of fact and of degree whether, in the circumstances of the particular case, the

obstruction or interference was appreciable. If the Constable is frustrated in

his attempts to perform his duty or retarded in the execution thereof, then

clearly he has been hindered but I think the fair and natural meaning of the

word goes further than that. I think that a constable is hindered by any

obstruction or interference that makes his duty substantially more difficult of

performance”.

97. On the evidence presented, there is insufficient evidence for the court to

conclude that Mr Ridgewell obstructed or interfered in the arrest of Mr Small.

Therefore, I uphold the “no-case” submission made on behalf of Mr Ridgewell

and will dismiss the charge.

98. It was submitted on behalf of Mr Evans that he has “no-case” to answer in

relation to the charges of hindering or assaulting Sgt Robinson whilst he was

supervising the arrest of Ms Kenway on the grounds that her arrest was not

lawful. However, as previously stated, I have found that it was lawful. The

evidence of Sgt Robinson and Acting Detective Balthazaar was to the effect

that Mr Evans punched Sgt Robinson in the jaw and Constable Hall gave

evidence that he saw Mr Evans throw a punch at Sgt Robinson.

Notwithstanding the absence of CCTV/video footage of a punch being thrown

by Mr Evans, I am not satisfied that he does not have a case to answer on the

assault charge, noting that the hinder charge was laid in the alternative.

99. It was submitted on behalf of Mr Tymms that he has “no-case” to answer on

the charges that he hindered and resisted LSC Richards in the execution of

his duties. The prosecution evidence indicates that Mr Tymms put Ms Walsh

in a “bear hug” when she was being arrested. Although it was conceded by

35 Unreported 18 December 1987.

53 DECISION

Senior Sgt Falconer that Mr Tymms was caught up in the “wedge formation”

arrest of Ms Walsh, his evidence and that of LSC Richards, Sgt Saunders and

SC Jones was consistent that Mr Tymms held onto Ms Walsh as she was

being arrested. On the basis of this evidence, it is open to the court to find that

Mr Tymms actions obstructed and interfered with the police efforts to arrest

Ms Walsh. Accordingly, I am not satisfied that Mr Tymms does not have a

case to answer on this charge.

100. In relation to the charge of resisting arrest, the prosecution allege that Mr

Tymms did so by; ignoring police demands to get on the ground; pushing

against the police and moving his arms around to prevent himself from being

handcuffed. The evidence presented in support of this charge was from Sgt

Saunders who said; Mr Tymms was “struggling” when two policemen were

holding him and two others were attempting to grab his legs; that as one of his

arms was being held he turned his shoulders, fell down, struggled and was

dragged away with police holding his arms to control him. The prosecution

evidence is of sufficient weight to support the charge that, by his actions, Mr

Tymms sought; “to oppose” or “strive against” or “put a stop to” his arrest as

discussed in the decisions of R v Galvin36 , R v Hansford37 and Hamilton’s

case. Accordingly, Mr Tymms has a case to answer in relation to this charge.

101. It was submitted on behalf of Mr Anderson that he has “no-case” to answer in

relation to the charge that he hindered SC Jones in the arrest of Mr Tymms by

holding onto one of Mr Tymms arms. In support of the charge the prosecution

relied on the evidence of Senior Sgt Falconer and Sgt Saunders, In particular,

Sgt Saunders told the court that Mr Anderson maintained his grip on Mr

Tymms when he was being arrested and continued to do so after he was

taken behind the police line. Notwithstanding the absence of evidence from

SC Jones, it is open on this evidence to find that Mr Anderson’s actions made

SC Jones duties substantially more difficult in effecting the arrest of Mr

36 [1961] VR 740.

37 [1974] VR 251.

54 DECISION

Tymms. On this basis, I find that he does have a case to answer in relation to

this charge.

102. It was submitted on behalf of Mr Oakley that he has “no-case” to answer in

relation to the charge of resisting SC Contarino by his actions in continually

holding onto other protestors arms when he was being arrested. It was

contended that his arrest was unlawful and therefore he could not be said to

be resisting arrest because SC Contarino arrested him on the direction of

Acting Senior Sgt Ward and did not have his own belief that Mr Oakley had

committed an offence as is required by S 458 (1)(a) of the Crimes Act.

However, as I have already held, S 458 (1)(b) allows for arrests to occur on

the instruction of another police officer who has power to do so. I have also

found that police command, which included Acting Senior Sgt Ward, formed

the necessary belief, which was based on reasonable grounds, that an

offence was being committed by the protestors. On this basis, Mr Oakley’s

arrest was lawful. Therefore, I find that he does have a case to answer in

relation to this charge.

103. It was submitted on behalf of Mr Monsalve-Tobon that he has “no-case” to

answer in relation to the charge that he assaulted C Lavars. The prosecution

alleged that he pushed C Lavars in the back as she was executing her duties.

The evidence given by Senior Sgt Falconer and the incident as depicted on

CCTV footage and police video supports the charge. I find that Mr Monsalve-

Tobon has a case to answer.

104. The accused also submitted that if the court rejected the “no-case”

submissions, it should follow the principles in R v Prasad38, and acquit the

accused. In that case, the accused was convicted on a charge of obtaining by

false pretences. At the conclusion of the prosecution case, a “no-case”

submission was made, or, alternatively, the evidence was so unsatisfactory

that it would not be safe to allow the case to go to a jury. The application was

38 (1979) 2 A Crim R 45.

55 DECISION

rejected and the matter proceeded. On appeal, the principal ground of appeal

was that the evidence tendered by the prosecution was so tenuous and

unsatisfactory that it was unsafe to leave the case to the jury for their

consideration, notwithstanding that there was a case to answer. The accused

submitted that the trial judge had a discretion to direct the jury to return a

verdict of not guilty. King CJ said, after discussing the principles relating to a

“no-case” submission;

“It is, of course, open to a jury at any time after the close of the case for the

prosecution to inform the judge that the evidence which they have heard is

insufficient to justify a conviction and to bring in a verdict of not guilty without

hearing more. It is within the discretion of the judge to inform the jury of this

right, and if he decides to do so he usually tells them at the close of the case

for the prosecution that they may exercise the right then or at any later stage

of the proceedings…but a verdict by direction is quite another matter. Where

there is evidence which, if accepted, is capable in law of proving the charge, a

direction to bring in a verdict of not guilty would be, in my view, usurpation of

the rights and functions of the jury. I think there is a clear distinction for this

purpose between a trial before a magistrate or other court which is the judge

of both law and facts and a trial by a judge and jury. I have no doubt that a

tribunal, which is the judge of both law and fact, may dismiss a charge at any

time after the close of the case for the prosecution, notwithstanding that there

is evidence upon which the defendant could be lawfully convicted, if that

tribunal considers that the evidence is so lacking in weight and reliability that

no reasonable tribunal could safely convict on it. This power is analogous to

the power of the jury, as judges of the facts, to bring in a verdict of not guilty at

any time after the close of the prosecution’s case. It is part of the tribunal’s

function as judge of the facts”.

105. In response, the prosecution submitted that the evidence against the accused

is not so weak so as to justify the dismissal of the charges in accordance with

56 DECISION

57 DECISION

the decision in Prasad. The prosecution referred the court to the decisions in

R v Pahuja39 and Dean v R40, which indicated that the use of a Prasad

direction should be used sparingly and only given if the evidence is inherently

weak. On the basis of the evidence presented against Mr Evans (assault), Mr

Tymms (hinder & resist), Mr Anderson (hinder), Mr Oakley (resist) and Mr

Monsalve-Tobon (assault), I do not find that; “the evidence is so lacking in

weight and reliability” that they could not be convicted on those charges. I

therefore reject the applications made by each of the accused to dismiss the

charges on the basis of the decision in Prasad.

106. On the basis of my findings, I will invite counsel to consider the appropriate

Orders that should be made and the future conduct of the proceedings.

39 (1987) 49 SASR 191 at 201. 40 (1995) 65 SASR 234.