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Soapbox preachers “moved on” by police from a street corner in Nambour in September 2013 have claimed $120k for wrongful arrest and unlawful imprisonment.
Ryan Hemelaar and Kevin Red – both preachers with an organisation called “Operation 513” – gave notice of their intention to local police and the council to hold a public assembly on the footpath at the corner of Lowe and Ann streets “to preach the Gospel of Jesus Christ”.
The Sunshine Coast Council responded with a temporary event approval allowing the assembly at another location on the dates proposed.
The preachers defied the council’s direction and set up to give forth to passers-by on the Lowe/Ann corner outside a shoe shop that had opened just the day before.
In response to complaints from the manager, police attended and requested the evangelists move to the nearby town square, in accordance with the council approval.
When they refused, a “move on” direction was given which was also ignored. The pair were then arrested placed in handcuffs and removed.
The events were repeated on the very next Saturday. On this occasion handcuffs were only applied to Red.
The pair sued the State of Queensland as well as two police officers for battery charges and for infringement with their liberties.
They alleged that the assembly was lawful at the chosen location because notice of it was given at least five business days before the date of the event.
The Magistrates Court and then the District Court on appeal, agreed. The Sunshine City Council had no authority to require the event occur at a different location.
“If an assembly notice is given 5 or more days in advance and the relevant authority does not take steps to obtain an order from a Magistrate,” ruled Judge Helen Bowskill “the assembly will deemed to be an authorised public assembly”.
The council’s only remedy to change the location for the event was to seek a Magistrate’s order.
In the absence of such an order, the activity was lawful. It followed that all of the actions of the police were thereafter unlawful.
Rather than the six figures contended for by the protagonists, a far more modest sum was awarded to them as compensation.
The pair had argued repeatedly and robustly on both occasions and knew they would be arrested if they did not move on as directed.
Judge Bowskill noted in her written judgement that Mr Red openly defied the police and “smirked/smiled at them” saying “that’s all I wanted, to be arrested and heard in court”.
For those reasons – and the compelling conclusion that they could not have felt any intimidation from the actions of the officers – they were disqualified from any award of aggravated damages.
Neither had any physical injury or financial loss resulted.
On appeal her honour increased the damages awarded to $4k in favour of Hemelaar for his single arrest without handcuffs and about 5 hours of unlawful detention in the watchhouse.
The award in favour of Red was increased to $3k for the first arrest in handcuffs which occasion he was held in custody for 2 hours and to $5k for the second handcuff arrest and 5 hours in the cooler.
In both cases, the damages were as compensation for “curtailment of liberty, inconvenience and the sense of injustice for being unlawfully arrested” as well as in Mr Red’s case, an additional amount reflective of some “discomfort from the use of handcuffs”.
Hemelaar v Walsh [2017] QDC 151 (16/5012) Bowskill QC DCJ 9 June 2017
Categories: Personal Injury , Litigation & Law Practice