The People vs Danny Lim

Danny Lim is a gentle unassuming character that roams his way through Sydney’s diverse bustling community. He has with him colourful and provocative sandwich boards telling people to SMILE C∧NT and MAKE LOVE AND PEACE. He also has the odd thing to say about the local and federal wildlife known as politicians, bearing in mind, he was a local councillor in his more strident days.

To some, he is a polarising figure and pest. To others, he is a term of endearment and represents a diverseness in our rat race of a town. In the time I have come to be aware of Danny, I have never viewed him as a pest. In 2011 when I was on the Executive of the Police Association of NSW, Danny was marching in the rally with 5000 other off-duty police in Macquarie Street outside Parliament House. He was amongst us disobeying a direction not to protest by the then Commissioner Andrew Scipione.

In my experience, he is a man of peace who spends his days walking the streets and expressing his unique worldview.

However, in the last few years, something appears to have changed. I think the level of tolerance, particularly since the advent of COVID and the expansion of the State’s role in our lives. Danny has become a target, where he has consistently appeared before the courts, arrested for his alleged offensive sandwich boards which he parades in front of thousands of people, usually around the Sydney business district.

He is just a man standing in the street with a sign around his neck. How threatening can that possibly be to the thousands of people hurrying around completing their business? Most people wouldn’t even know he is there as they scurry to their offices.

In 2019 he was arrested at Barangaroo for wearing a sign referring to Tony Abbott as a C∧NT! In this incident, it was one woman out of thousands that passed him that day that called the police saying she was offended as a ‘woman’.

When this incident was heard at the Downing Centre Local Court, Magistrate Jacqueline Milledge also a former police prosecutor and ‘woman’, found that while the use of the word was cheeky, it was not criminally offensive. Magistrate Milledge was scathing of the arresting police, finding that the arrest was unnecessary and heavy-handed.

Milledge laboured the point that the law can only be concerned with what would offend a ‘hypothetical reasonable person’ a rather esoteric legal maxim. The hypothetical reasonable person is not someone who is thin-skinned or easily offended. It is someone who can ride out the crudities of life, and while the sign itself may be provocative and cheeky it is not offensive.

I felt sorry for the police prosecutor at the time, Senior Sergeant Rick Mansley who was tasked with presenting the matter. He put forward an argument, appealing to community expectations:

“How can the court say standards of society have sunk so low?”

I guess, according to a certain worldview it may have sunken, but to others, it was business as usual. Certainly, Danny’s form of communication is not everyone’s cup of tea but the intention behind it was not to offend or cause disgust. Only an authoritarian State could find satirising a politician a threat to community standards. The question might also be asked, what is the state of our society if it could be so easily rattled like a house of cards, by an old man wearing a sign?

I think Danny himself described it best under cross-examination:

“Everyone thinks differently; it’s only a few of them compared to thousands of them [not taking offence].”

On my viewing of the police body-worn camera tendered to the court, the acting sergeant at the time labelling bystanders as “f*cking pathetic…social justice warriors.” This statement is one which should question, how could policing standards sink so low. This statement is much more concerning and contrary to the tolerance expected of community leaders and the Statement of Values that the police force espouses to hold so dear.

Fast forward to 11.00 am on 22 November 2022 when Danny is at the QVB Building displaying a sandwich board displaying “Smile C∧NT! Why C∧NT!”

Remember this is “brunch time” where hundreds if not thousands of hypothetical persons are milling in and around the QVB Building. The QVB is another upward and mobile, uppity part of town where you can buy goods at an over-priced premium and have a High Tea at the Tea Room. One shop owner complained, and the building security called the police to eject Danny.

It is now well-reported what happened next. Two young male police officers, both with epaulettes displaying one ‘hook’ or chevron (which means less than 5 years in the job) arrested and restrained Danny as he allegedly refused to leave and obey a move-on direction. Danny was handcuffed to the rear and escorted from the location. He didn’t get too far as only moments later, as the two constables were leading Danny away, one of the police placed his leg in front of the frail 80-year-old tripping him in a classic front ‘leg sweep’. The two constables did not have hold of Danny securely enough, and it seems, lost their grip and Danny fell face first into the tiled floor resulting in a gasp from an onlooker. A pool of blood was left on the tiled floor and dripping from Danny’s right cheek.

It is clear the constable who performed the leg sweep was immediately concerned about Danny as it now dawned upon him that Danny was injured as he levered him to an upright position like a rag doll. The police officer was also probably thinking, how am I going to justify this?

The police later reported Danny was issued with a failure to obey a lawful direction infringement notice (section 9 of the Summary Offences Act 1988) which carries a $220 fine. The arrest was later reported as ‘discontinued’. While Danny was not formally charged what he did receive was some extra-curial punishment by way of serious ‘head injuries.’

This appears to be an exact repeat of what happened in 2019, except with more dire consequences, not only for Danny but the arresting police. They are currently under investigation by their own, the Professional Standards Command, which will no doubt land on the desk of one of my former colleagues at the Police Prosecutions and Licencing Enforcement Command to see whether there is sufficient admissible evidence to commence criminal proceedings for an assault offence?

The result is not in dispute, Danny suffered injuries of what certainly amounts to “actual bodily harm.”

Whether criminal proceedings should start, will require an assessment of whether the police were in the course of their duty, whether the arrest was lawful, and whether the force used was reasonable. If the answer to any of these inquiries is no, then it is likely that an unlawful assault was committed.

Clearly, they were at the location in the execution of their duty, responding to, at the very least a complaint of trespass. The lines become blurred as to whether the arrest was necessary but, on the information, the arrest could be lawful if the police were, in fact investigating a trespass offence.

However, it only appears that Danny was issued an infringement notice for failing to obey a move on direction. It is not clear on what basis the officers were empowered to issue a move-on direction, but it might be assumed that Danny’s presence in the place may have constituted an obstruction, harassment or intimidation, or caused fear. It is not made clear exactly how Danny may have been causing any of these things, if at all, except perhaps that he was simply wearing his sandwich board.

Assuming they can establish all or any of these elements, the arrest may have been necessary to prevent a continuation of a trespass offence. But if the police cannot establish beyond a reasonable doubt any of these things, then arguably the arrest could be deemed unlawful.

Irrespective, looking through the police prosecutor’s lens, the use of the leg sweep is of grave concern for the police officer who performed the sweep. These two young police officers, probably in their twenties, at least 50 years younger than Danny, could overpower him quite easily. Danny is a frail elderly man in the backend of his 70s. He is handcuffed to the rear and shuffled roughly by the two police. He is marched a metre and then bizarrely his leg is swept from under him which results disastrously as he crashes face-first into the tiles that cause injuries to his face. Does all this sound reasonable?

On the information, I believe the restraint and use of force was unreasonable and excessive, therefore exposing the police officers to an unlawful touching and assault of Danny. The other question that follows is whether the conduct was deliberate and intentional or reckless.

Recklessness requires raising the question of whether a person foresaw the consequences of their actions, and through the application of the reasonable person test (an objective test), may have anticipated that an injury might result but nevertheless proceeded to act.

There is no question that the arrest and restraint was a deliberate and intentional act. However, what flowed from those acts, in handcuffing and then leg sweeping Danny could be both intentional and reckless. Intentional in that the police officer intended to leg sweep Danny, and reckless in what occurred immediately following the leg sweep, in that they lost control of him, causing Danny to crash to the tiles with only his face to break the initial fall.

Given the circumstances, the police officers involved should have concerns regarding their use of force, more particularly, the excessiveness of the force used in restraining what is clearly, a frail 80-year-old man and the consequences that could possibly flow if the force of their actions in restraining him did not go according to plan. That is, in the circumstances, is it reasonable that if a front leg sweep was performed, could an injury be foreseen if something happened, and he fell and had no way to break his own fall?

I suspect the police officers would have contemplated some injury if something like losing their grip on his arm occurred because of the decision to restrain Danny by handcuffing him to the rear and then performing the leg sweep. In fact, it is almost certain common sense that if a person has their legs taken from under them with no way to break their fall, then an injury of some kind will result. Looking through that lens, then it is clear, as a matter of common sense, leg sweeping an elderly man that is handcuffed to the rear is at the very least a reckless act.

The other question must also be asked, why handcuff? What danger is Danny to anyone, the police, or himself? Is he really a flight risk? I critically question the decision-making of the police officers to apply handcuffs in the first instance unless the police officers can justify the reason. Could they not call a supervisor with more experience to speak to Danny to negotiate his peaceful exit?

I do note however there is footage of Danny resisting the efforts of the police and he did not want them to touch him. However, if the arrest itself is unlawful, a court may find that Danny was fully entitled to resist the unlawful actions and battery of the police.

In all those contexts, I think there is a strong argument to suggest that the actions of the police were unlawful and not reasonable in the circumstances and culminated in a series of acts resulting in an assault against Danny that occasioned actual bodily harm.

Policing is not an easy profession, and sometimes incidents are unpredictable and dynamic, and it is entirely unfair to sit back in the relative coolness and calmness of a court or interview room and retrospectively look back and break down in minute detail what the police officers could or should have done in the circumstances.

The problem, however, is that I do not think the circumstances were so unpredictable or dynamic that the police officers could not have separated what might occur by chance and what was inevitably foreseeable.

Unfortunately for them, I think they may be looking at a long stint on the sidelines while they await whether they will be charged. Even if they are not charged, there is a lengthy administrative process awaiting them determining whether they will be issued a section 181D Loss of Commissioners confidence notice and nevertheless sacked for an incident that was worth a grand total of $220 in fines.

If you have been issued with a fine or charged with a public order offence don’t risk going it alone, call McDonald Law now on (02) 8824 4736 or 0411 460 034 to speak with one of Sydney’s most experienced public order and criminal lawyers.

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