Court asked to define limits of dissent

Press, Volume CXII, Issue 33094, 8 December 1972, Page 17

Court asked to define limits of dissent

The police acted unlawfully wben they arrested several persons during the election address by the Prime Minister at the Christchurch Town Hall on November 8, defence counsel (Mr S. G. Erber) submitted in the Magistrate’s Court yesterday. Mr W. F. Brown, S.M., reserved decision until December 18 on a charge against John Thomas Anthony Peek, aged 20, a labourer, of assaulting Brian James Thompson, a constable in the execution of his duty. Peek was remanded on ball until December 18. Three other persons charged with wilful obstruction and resisting arrest were remanded on bail until the same date. Mr Erber said that the Magistrate’s decision was of central importance to the other cases. The matter which the Magistrate had to determine was the defendant’s right to dissent. •The limits of dissent; this is really what the case is about,” said Mr Erber.

The case resumed after being part-heard at a previous hearing. At the earlier hearing evidence was given by the police and by two defence witnesses. The police alleged that Peek struck Constable Thompson a blow to his stomach with both hands when Constable Thompson was attempting to remove him from the hall after Peek refused to leave when asked. Continuing evidence for the defence, Michael Patrick Conway, a senior reporter of “The Press,” said that he had not heard the chairman of the meeting (the Mayor of Christchurch, Mr N. G. Pickering) ask the police to remove anyone. "He may have, but I think I would have remembered if he had,” said Mr Conway. Cross-examined by SeniorSergeant F. G. Mulcare, Mr Conway agreed that there was some doubt in his mind about what Mr Pickering said. He agreed that the volume of noise just before the police moved in was such that the Prime Minister was unable to make himself heard. Bruce James Brown, a barrister and solicitor, said that he was seated downstairs in the back row on the right hand side as one faces the stage. He said he could not remember exactly what the Mayor said in his opening warning. The Mayor had commented that if anyone was offensive or rowdy he would be given one warning. Reaction of noise When the Prime Minister came to the topic of the tour there was a “pretty general” reaction of noise from the audience for about 10 to 15 seconds before Mr Pickering got up. “I could just hear the Prime Minister. When he lowered his voice I could barely hear him. He has a habit of dropping his voice as he tails off his sentences,” said Mr Brown. “Mr Pickering said something along the lines that the matter was now out of his hands and over to the police to do what action they thought necessary,” he said.

He said he could not recall the chairman inviting the police to remove people making noise. He was not in fear for his personal safety at the time.

“At that stage everyone thought it a bit of a joke. There was no likelihood of violence by any stretch of the Imagination,” said Mr Brown. Mr Brown agreed in crossexamination that the words Mr Pickering used in his opening warning were similar to the following: that he didn’t mind heckling but would not tolerate organised disruption. He would give one warning then ask the police to take action. Colin Leslie Knight, a senior inspector of secondary schools, said that he Was a witness on subpoena. He was affiliated to the National Party and had been a candidate at a previous election. He said he was sitting slightly to the right of the middle upstairs during the address by the Prime Minister. Opening warning The gist of Mr Pickering’s opening warning was that if necessary be would warn the audience'. If the warning was not heeded he wotild ask the police to intervene, said Mr Knight. He could not recall Mr Pickering giving the police instructions. When Mr Marshall spoke on the tour issue and the audience reacted noisily Mr Pickering said that he had Issued a warning and that he would now ask the

police to take appropriate or necessary action. He could not recall the Mayor asking the police to remove anyone. He would have recalled him saying so if he had. said Mr Knight. Cross-examined Mr Knight agreed that the disruption was organised and that this was what Mr Pickering had warned he would not tolerate. As a former candidate he would have reacted with resentment at organised interjection. Tlie defendant was not called to give evidence. In his submissions Mr Erber said that the police were not in the execution of duty at the time when the incident involving Peek occurred. The police were acting unlawfully in attempting to remove him. “I submit that it was their action which caused the consequent violence and disturbance. There is a liberty to speak but not a right to be heard,” said Mr Erber. Summary It was not for the Mayor to tell the police what their duty was. It was the duty of the police to use their own judgment, said Mr Erber. Summarising, Mr Erber said: 1. The protestors were not trespassing. 2. They were not behaving in what the police considered to be a disorderly manner. They were not committing any offence up to the time when they were asked leave by a constable. 3. The constable and all the police Involved acted unlawfully because they were not acting in the execution of duty. 4. As a matter of fact and in law there was no evidence to support a contention of a real likelihood of a breach of the peace. There appeared to be no public alarm or fear of violence. There had to be more than a likelihood of a breach of the peace. There had to be a real likelihood backed by objective and well-defined facts, said Mr Erber. The only remedy that could have been taken was to ask the persons to leave and if they did not then it was the duty of the police to remove them. “If the police were acting unlawfully my client is entitled to costs. He was arrested, placed in custody, and involved in a number of Court appearances with consequent expense and considerable cost of time. The defendant appears as a result of what I submit was an error of judgment,” said Mr Erber. Mr Mulcare said that the chairman at the outset had warned against organised demonstrations but his warning had been defied. The chairman had then called the police to take action.