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My two cents worth: The 2013 Sydney Mardi Gras police incidents

Rainblow flagLast updated: 15 February 2014

Introduction
The Jamie Glenn Jackson Reed incident
The Bryn Hutchinson incident
The Gary Leeson incident
The general context
Postscript: all charges dismissed or dropped

Introduction

First, while I am a lawyer I do not practice in criminal law, but have volunteered at a community legal centre for many years in the past and as such I had significant practical exposure to criminal and police matters.

Second, I have a strong and active interest in human rights generally and, as a gay man, in LGBTI rights specifically.

There are two serious violent incidents under investigation from the night in question, both relating to potential police misconduct, and a third investigation has now been launched into an earlier, non-violent incident.

At the outset I note the incidents in question, although all three involve gay man, are not necessarily a ‘gay’ issue, but rather a rule of law, community expectations and police integrity issue.

However, in light of recent revelations of dozens of unsolved and ignored historical murders of gay men in Sydney and the indication of, possibly systemic, police involvement in atrocious gay-bashing incidents, it is especially critical NSW Police is seen to investigate these incidents impartially and promptly.

In light of the troubled history of the LGBTI community with the police, it is no wonder incidents such as the ones at Mardi Gras 2013 awaken tragic ghosts of the past and draw an emotional response from the LGBTI community …

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The Jamie Glenn Jackson Reed incident

NSW Police have stated they arrested this young man for ‘offensive language’.

Unfortunately, ‘offensive language’ is known to be one of the most abused, misused and thus controversial charge in the police arsenal. It has in fact been known to be used as an ‘excuse’ to arrest, intimidate and oppress minorities, such as the indigenous community.

So much so, in 2012 the NSW Law Reform Commission recommended an inquiry into the abolition of the offence of ‘offensive language’ in Report 132: Penalty Notices, February 2012.

‘Offensive language’ charges often don’t even make it to court and when they do, are often dismissed due to evolving community standards on the issue:

If an arrest is unlawful (and we must remember not all police actions or arrests are necessarily lawful, unfortunately), then generally charges related to resisting the arrest will fall away and the force (especially any unnecessarily brutal force) used by the police in such circumstances will be even more closely scrutinised.

I am aware recently, so far unsubstantiated, allegations surfaced, seemingly originating from police sources, that Jamie has ‘tickled a woman’s back’ and this led to a police warning and the subsequent altercation. If this information is accurate, hopefully the woman involved will come forward to clarify what happened. But Mardi Gras is a carnival, a joyous occasion where strangers interact throughout the night in a festive environment and what is being described does sound like a very normal interaction between women and gay men at this event.

In light of the above, in one very important sense, the later footage released showing Jamie scuffling with police is highly irrelevant until it has been clarified whether the initial arrest was lawful or not.

Consequently I am concerned most people automatically presume a person resisting arrest is wrong. If an arrest is unlawful, the consequent charges of resisting arrest and assaulting police will most likely fall away. As far as I can tell at this stage it is unclear, and disputed, whether police had sufficient reason to attempt to arrest this young man. That significant question must first be answered before the issues of resisting arrest and assaulting police are examined. And let’s remember youthful belligerence, while admittedly both annoying and unattractive, is, in itself, not a crime or an invitation for police assault.

The footage released shows the police officer delivering a vicious beating and exhibiting pure brutality, which will have a lasting negative impact on how the LGBTI community views the police. It’s important in the circumstances that a clear message is sent to the community that our police are professionals, not common thugs.

Just imagine if a stressed out high school teacher did something like this to an 18-year-old student just because he or she allegedly swore at them.

Are the police doing a difficult job? Yes! Are they exposed to dangerous situations? Yes! Do most of them do an amazing job? Yes!

But are they entitled to lie? No! Are they allowed to commit assault? No! Are they allowed to cover up their own criminal actions? No! Are they above the law? No!

The police must have the community’s respect and trust if they are to do their job and if you don’t know which police officer you can trust and which one is a violent thug, you have a serious problem on your hands.

If this young man’s purported arrest was purely on an ‘offensive language’ charge (and that appears to be the extent of the police charge justifying the initial arrest so far), depending on exactly what was said, I wouldn’t be surprised if he will end up acquitted and with a sizeable compensation package.

However, it’s depressing to think financial pain through compensation to victims of police violence may just be the only way to ensure the government and police take notice and realise there appears to be some behavioural and attitude problem within the police force and our police needs to be subject to the rule of law and the highest standards of professional behaviour.

There was another troubling aspect of this incident, in respect of the filming of the events, whereby a police officer attempted to prevent a member of the public recording what happened. I think it must be made clear you are entitled to film or photograph the police in a public space and they are not entitled to ask you to stop or to confiscate your photos or film. There is no law that prevents you from filming or photographing the police in a public space.

Clearly, the officer who was trying to stop the filming of the incident needs to brush up on the law and the powers of the police. Thankfully, at the police news conference it was indicated this would happen.

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The Bryn Hutchinson incident

This incident appears to have arisen from Bryn crossing Oxford Street after the parade has passed and the road was still closed to the traffic. The result is a charge of ‘disobeying a lawful police direction’ and … resisting arrest and assaulting police. In respect of these latter two charges my comments above apply equally.

As for the offence of ‘disobeying a lawful police direction’, again it’s worth remembering not all police directions are necessarily lawful.

In a public place, police generally have no right to move you on unless they reasonably believe you are causing, or likely to cause, harm to others. Causing harm means ‘threatening’, ‘intimidating’ ‘obstructing’ or ‘being offensive’.

The police may also give you a direction to move on if they believe you are intoxicated in a public place and are misbehaving in a disorderly manner or posing a risk to public safety or property.

As I noted above, police do work hard, under difficult conditions, but have been known to get it wrong, or ‘over police’. Conversely, sometime citizens also make mistakes or break the law, in which case the police are entitled to take action.

However, Australia is a democracy, not a police state and if you are given a direction by police you are generally entitled to:

  • ask whether you are getting a formal direction to do something;
  • ask under what law the direction has been given;
  • ask the reason why you are being given the direction;
  • ask what the exact ‘prescribed place’ is from which you are being directed to move on;
  • record the names of any witnesses to the incident, if possible; and
  • record the name, number and station of the police officer giving the direction.

These questions are not ‘mouthing off’ at the police but are questions Australian citizens are legally entitled to put to police officers.

While police must give you a reasonable opportunity to comply with a direction, what is reasonable will of course vary from one situation to another. If a police officer lawfully gives you a move on direction and you fail to move, then you may be charged with failing to obey a police direction and arrested.

I do note, unless you are exceptionally knowledgeable on the applicable laws and absolutely sure of the factual circumstances, it is advisable to comply with police directions, if only to avoid any unnecessary altercation with the police and resulting legal wrangles.

However, if the direction you have been given does in fact turn out to be unlawful and consequently you have been arrested by the police inappropriately (and perhaps even hurt in the process), you will likely have cause to take action against the police.

I wasn’t a witness to the Bryn Hutchinson incident. Consequently I’m not fully versed in all aspects of the case and I am only aware of the facts which have been made public by the media.

Nevertheless, when analysing the charges I would take into account the surrounding circumstances, including that at the time of the incident Oxford Street was still closed to traffic given the parade has just taken place, and pedestrians were trying to make their way home or elsewhere in the area. In such circumstances it is accepted crowd-control practice to allow pedestrian traffic overflow onto the roadway in order to achieve a speedy removal of people from overcrowded areas and avoid crushing.

It will be interesting to see whether a magistrate with all the facts presented to him or her, provided the matter gets that far, will agree that in the circumstances the police direction was lawful (or even reasonable).

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The Gary Leeson incident

The latest complaint to surface relates to the strip searching of a 55-year-old man while trying to collect tickets to a Mardi Gras event, allegedly in a manner that enabled the public to observe.

What caught my eyes in this article is a curious inconsistency. Acting Commander of the Dog Squad Mark Watters states in the article that more than 80% of people pinpointed by drug-sniffing dogs last year admitted to carrying drugs, or having been in ‘contact’ with them recently.

However, a recent report noted a record 80% of sniffer dog searches for drugs resulted in ‘false positives’ in 2012.

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The general context

Finally, when we are evaluating the various allegations in these incidents, I do think it is relevant to take into account the track-record of NSW Police:

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Postscript: all charges dismissed or dropped

2 April 2013: It seems that just as I anticipated when I wrote this piece in March, Jamie Jackson has in fact found a good lawyer, one of the best in the business, Chris Murphy, and they announced the charges will be vigorously defended.

29 August 2013: An interesting development is reported by the Star Observer following a hearing in the Bryn Hutchinson case at Downing Centre Local Court in August 2013.

According to the report, CCTV footage taken from the Colombian Hotel at around 11:28pm on the night of Saturday, 2 March 2013, shows a police officer with the badge identification number ‘Fairfield LAC 266’, involved in the detainment and arrest of well-known gay rights activist Mr Bryn Hutchinson, who suffered bruises and contusions during the arrest and was later charged with assaulting police.

Curiously the same badge identification number, ‘Fairfield LAC 266’, is worn by the police officer who is seen assaulting Jamie Glenn Jackson Reed on the same night in the now infamous video of that incident.

In light of this latest revelation I have to pose the question: with the number of police involved in managing the event, what are the chances of the same police officer getting involved in two violent altercation, both with a gay man, on the same night?! I am not saying there can not possibly be a good explanation to that question but, if there is one, the community needs to hear it and it needs to be convincing to ensure continuing good faith between NSW police and the LGBTI community.

5 September 2013: The latest hearing of the matter involving Jamie Glenn Jackson Reed took place at the Downing Centre Local Court on 5 September 2013, before Magistrate Barko.

In court, one of the two police officers involved in Jamie’s arrest for ‘assault’, explained his version of the initiating incident as follows: ‘He ran towards [a] female person and kicked out with his foot … not making contact. The woman reacted in a surprised manner, stepping back but continuing to talk on the phone. The accused turned and left and walked towards Oxford Street … and I intercepted the accused’ (emphasis added). Due to the lack of any corroborating evidence on the ‘pretend kick’ many questions remain regarding the police account of events.

Jamie’s version of the same event essentially appears to be, as I understand it, that he saw someone in the crowd, talking on a mobile phone, he thought he knew from school and he tried to get their attention. However, it seems he was wrong and in fact did not know the person in question and he walked away upon realising his mistake, at which stage he was intercepted by police accusing him of assault.

From there, events seem to have escalated into the bloody mess captured by the viral video very quickly. At this stage, in light of the evidence given by the Constable, I am still highly dubious of the legality of the attempted arrest for ‘assault’ and look forward to finding out further details of the events of the night.

6 September 2013: The hearing of the Jamie Glenn Jackson Reed case continued before Magistrate Barko at the Downing Centre Local Court on 6 September 2013.

Another interesting revelation by The Sydney Morning Herald from the previous day’s hearing was that despite NSW Police announcing an internal investigation into this, and another Mardi Gras, incident back in March, a Constable involved stated that he has not yet been questioned in respect of this matter by Professional Standards Command or anyone else within NSW Police in the six months that have passed since the incident. The explanation given for this delay by a spokesman for NSW Police is that the ‘departmental investigation was on hold until the criminal proceedings were complete’.

28 November 2013: I am very pleased, and not at all surprised, to report that Bryn Hutchinson has been found not guilty of assaulting police and all charges against him have been thrown out.

This is in fact the outcome I have been anticipating all along on the face of the facts that have been reported about the matter. Mr Hutchinson is quoted to have responded to this outcome by noting ‘[j]ustice in my case is not the end. There are clearly systemic issues with policing in NSW – my experience is one amongst many.’

29 January 2014: Not that you would be aware of this if you relied on mainstream media, which has largely moved on as soon as it became clear that these matters would be quite unflattering for the NSW Police, but the gay media has reported the charges against Jamie Glenn Jackson Reed have been dropped due to the fact ‘there were no reasonable prospects of conviction’ … as predicted above almost a year ago now.

I sincerely hope Jamie and his lawyers will pursue NSW Police vigorously for appropriate compensation and it is also essential NSW Police complete a transparent investigation into these matters and take appropriate action against the officers involved, to ensure similar incidents are avoided in the future. In September last year a spokesman for NSW Police stated a ‘departmental investigation was on hold until the criminal proceedings were complete’. Given the dropping of the charges those investigations should be immediately progressed.

6 February 2014: ABC News reports at the latest hearing in the Jamie Glenn Jackson Reed matter this morning, before Magistrate Barko at the Downing Centre Local Court, the Magistrate has found police used excessive force against Jamie Glenn Jackson Reed in his violent arrest at the Mardi Gras parade in 2013.

Magistrate Barko is reported to have stated the teenager was ‘brutalised’ by NSW Police and suggested the likely inference from the police dropping the charges is ‘the Commissioner wants no further bad publicity’.

Jamie was awarded $39,000 in legal costs (this is not an award of damages; it is merely intended to cover the legal costs he incurred defending the dropped charges). Jamie and his lawyer are now considering whether he will sue for damages.

In a subsequent statement, NSW Police stated they are conducting an internal investigation into the arrest.

14 February 2014: SameSame reports NSW Police gave formal assurances to the 2014 Mardi Gras festival crew that its attendees will be treated fairly and respectfully, and also signed an accord to that effect.

While this is welcome news, it’s also a very sad and a less than encouraging sign that this kind of thing still needs to be said, and formally captured, in this day of age.

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