Questioning in a recent budget estimates hearing has revealed that a police ‘strike force’ was set up to monitor ‘friendlyjordies’ months prior to the arrest of one of its producers, Kristo Langker.
Langker’s arrest caused widespread outrage, across the country and internationally, after the producer was arrested and chargedwith two counts of ‘stalk and intimidate’ for conduct which many would classify as political satire.
Langker pleaded not guilty to both charges, with a hearing originally set down for May of this year.
Police prosecutors eventually ended up dropping both charges in April and were ordered to pay $12,000 in costs to Langker’s legal team.
During the recent parliamentary hearing, Labor MLC, Adam Searle questioned Deputy Police Commissioner David Hudson.
Hudson revealed that ‘Strike Force Wyargine’ had been set up to monitor the behaviour of ‘friendlyjordies’, focusing on Jordan Shanks, for months prior to the arrest.
This likely included a team of 5 detectives, connected to the Fixated Persons Unit.
As the police have now dropped all charges against Langker, who is likely to pursue civil action, focus has turned to how the arrest came about, and the process followed.
Hudson confirmed that the investigator viewed Langker’s conduct as: “a component of an escalating series of events by Mr Langker and Mr Shanks.”
Despite this, he conceded that “mistakes were made” and that the normal “process wasn’t followed”.
The latest revelation of the police action against the political satirists has contributed to a startling image of overreach.
- What actually occurred in the case against Kristo Langker?
- Criminal Defence Lawyers Australia recently discussed the issue, with Mr Langker’s lawyer, Mark Davis.
What actually occurred in the case against Kristo Langker?
‘Friendlyjordies’ is the name of the YouTube channel of Jordan Shanks, who works with Langker as his producer.
The channel has over 600,000 subscribers and publishes videos focused on Australian politics, with aspects of comedy.
Shanks made a series of videos, focused on the former Deputy Premier of New South Wales, John Barilaro, which detailed allegations of corruption and misconduct.
Barilaro filed a defamation suit against Shanks, which has since been settled out of court, with Shanks issuing an apology.
Despite this, no damages were paid by Shanks to Barilaro.
The defamation suit formed the genesis of the tumultuous events that followed.
The first of the alleged offences concerning Langker occurred on April 19 2021 at a Macquarie University ‘conservative club’ event, where Barilaro was a guest speaker.
Shanks and Langker gate crashed the event, for a video which was published on the friendlyjordies YouTube channel titled ‘bruz: eternal’.
During the interaction, Shanks was dressed as Super Mario’s Luigi.
The footage shows Langker playfully questioning Barilaro “why are you suing us” whilst being pushed and ordered out by various members in attendance.
The second of the alleged offences occurred in Sydney on June 4, 2021; the same day Mr Langker was arrested.
This interaction was also filmed, with Langker spotting Barilaro whilst walking to his university.
At the time, Barilaro was leaving the funeral of rugby league star Bob Fulton.
Langker approached Barilaro, who was getting into a car, exclaiming: “oi John….you’re suing my boss!”
Only hours later, numerous police officers from the Fixated Persons Unit attended Langker’s residence, to arrest and charge him with stalking and intimidation.
The Fixated Persons Unit was established after the Lindt Café siege and claims to focus on ‘lone actors’ who are at risk of partaking in grievance-fuelled violence.
It aims to target those who show the warning signs of extremism but have not reached a threshold at which they would be addressed by the counter-terrorism command.
Therefore, the use of the unit on Langker was viewed as incredibly questionable.
During the interaction, which was again filmed, a scuffle occurs, and it’s alleged that Langker’s mother and girlfriend were injured by officers in the process.
Whilst complaints the Law Enforcement Conduct Commission were discussed, Langker’s lawyers have confirmed that they are more likely to pursue a civil case against police over the incident.
Criminal Defence Lawyers Australia recently discussed the issue, with Mr Langker’s lawyer, Mark Davis.
In summarising the matter, Mr Davis noted: “Fortunately, he [Kristo] had the resources to fight that [the charges] vigorously, and ultimately, it’s gone his way, which inspires some level of confidence – thank God we got before the courts, rather than left within the nightmarish boundaries of NSW terror units.”
What does the recent revelation of ‘Strike Force Wyargine’ indicate?
“The really sinister thing here is that they assigned a dedicated strike force to a pair of journalists and/or comedians, whichever way you want to put it. That in itself is just staggering. Over the last 10 or 20 years, NSW Police and other agencies have tended to create dedicated task forces, generally in the ‘terror’ space – this fixated persons unit is the terror command, they’re given very large resources much more than an ordinary police investigation would get.
“They’re given enhanced powers and they have a modus operandi, which is quite distinct from ordinary police. Ordinary police are meant to firstly consider whether an offence has been committed and go about that in a calm and balanced manner, and if they believe there’s a case, we all know the process to follow.
“Units like the fixated persons unit are designed to, are instructed to, badger and harass, that is what they do, it’s how they shut down say bikie gangs or known criminal gangs, they are on their doorstep day and night, looking for the smallest misstep, or rouge regulation breach and they charge, charge, and charge.
“An entire unit such as that, on Jordan Shanks, which we now know – we didn’t know when we were in the middle of it, we didn’t know that they had been a strike force, we knew ultimately that the fixated persons unit had been involved, but there had been a strike force, on a journalist, who had done nothing, but tease a politician, and they put a terror strike force on him.
“We now have some idea that they had means of surveillance – we don’t know exactly what they were, whether that’s physical surveillance, or tapping of phones or residence, whether he was being shadowed – the powers that were given to combat global terrorist. And here we have in a very short window of time, since the Lindt café siege, when the unit was established, to monitor, harass and arrest lone wolf terrorists, it’s now being applied to someone who dared tease, the Deputy Premier – its chilling.”
Will Langker be pursuing a civil claim against the NSW Police?
“He’s highly likely to, his family almost definitely will, that is his mother and his girlfriend, who both suffered physical injuries – and the family is generally traumatised. They, I’m quite sure, will.
“Kristo’s considering his options, and in some ways, we’re waiting until we get a complete picture of what really happened, and that’s going through the materials that’s been put before parliament – and they’re still coming.”
In the 2020-21 financial year, NSW Police spent $33 million on civil claims for police misconduct.
This was spread across 398 successful claims.
This was a substantial increase from the 298 successful claims in 2019-20, which results in $24 million being spent.
Claims include suits for assault, battery, unlawful imprisonment, malicious prosecution, breach of duty, and more.
The below information will analyse suits for battery, assault, and false imprisonment.
These claims are considered ‘trespass to the person’.
Civil claims against police, with respect to whether they have acted outside of their powers, come under the law of ‘intentional torts’.
The person pursuing the claim is called the ‘plaintiff’ and has to prove a number of matters before damages (a monetary award) will be ordered, against the other party, referred to as the ‘defendant’.
The elements of the relevant tort must be proven to the ‘Briginshaw’ standard.
This standard requires matters to be proven on the balance of probabilities and may be satisfied by proof of “circumstantial evidentiary facts” and “inference and circumstance”.
Battery & Assault
Whilst the term ‘assault’ is often used interchangeably, in tort law a distinction must be made between assault and battery.
Battery requires the application of physical contact, whereas an assault occurs as a result of conduct which inspires an apprehension, or fear, of immediate unlawful contact.
With respect to claims against police, battery usually occurs where it is alleged that officers used excessive force, without the plaintiff’s consent or other legal justification.
The plaintiff must demonstrate the following elements:
- There was a positive, intentional, or negligent act of physical contact or interference with the plaintiff (Scott v Shepherd).
- This can include contact with a plaintiff’s clothes, throwing an object which connects with them, causing an object to touch them, and spitting on someone.
- The requisite intention that must be satisfied is that the defendant intended the consequence of the contact with the plaintiff.
- The interference or contact was direct or immediate upon the defendant’s act (Scott v Shepherd),
- The defendant’s conduct was not in the course of everyday life or was without lawful justification.
This element confirms that acts which are apart of everyday life, such as touching someone’s shoulder to get their attention, will not be considered battery (Rixon).
In considering whether a legal justification was present, assessing officer’s conduct will largely centre on Part 18 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (‘LEPRA’).
Sections 230 and 231 detail that officers may use such force as is reasonably necessary to exercise their functions under LEPRA, including when making an arrest or preventing the escape of a person after arrest.
The onus is on the plaintiff to demonstrate that the conduct went beyond what was reasonably necessary in the circumstances.
Often in situations where a battery has been proven, an assault will also have occurred, and the two actions may be jointly pleaded.
To prove an assault occurred, the plaintiff must demonstrate the following elements:
- There was a positive, direct action by the defendant which caused the plaintiff to have an apprehension of imminent physical contact with their body,
- The defendant intended to or was reckless to the fact that this caused such fear in the plaintiff.
- Notably, whilst it is not necessary to prove that the defendant in fact intended to carry out the threat, but there must have been reasonable means to carry out the threat (Stephens v Meyers).
- The apprehension of fear by the plaintiff was reasonable, which is assessed objectively,
- The defendant’s conduct was without lawful justification.
With respect to interactions with police officers, assaults may arise in numerous situations ranging from conduct in public, in private, such as when accessing property, or during arrest.
In the case of New South Wales v Ibbett, an assault was ruled to have occurred when officers pointed a gun at a woman and demanded she open up her garage door, whilst pursuing her son to arrest him on suspicion of traffic offences.
Suing police for wrongful imprisonment: The tort of false imprisonment involves the wrongful, intentional act causing restraint on the liberty of another person, for any period of time.
The plaintiff must demonstrate the following elements:
- An intentional, positive, and direct act of the defendant caused the total restraint of the plaintiff’s liberty,
- The deprivation must be total in all directions, and not merely a partial restraint of movement (Bird v Jones).
- However, the act need not be by physical restraint or force, and words alone may suffice (Symes v Mahon).
- The restraint was without lawful justification.
The only defence to an action in false imprisonment is that the restraint was performed pursuant to lawful authority, which the defendant must prove.
This will turn to considerations of whether an arrest was lawfully conducted, pursuant to section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
Common claims include where a police officer has mistakenly arrested someone for breach of bail, where their bail has since been dispensed with or varied.
Others include where they have detained persons beyond the allowed time, or for purely the purpose of questioning or investigation, which is not permitted, or where a charge may have been laid by issuing a Court Attendance Notice in the ‘field’.
In the case of Konneh v NSW, whilst the plaintiff’s criminal charges were dismissed, police officers mistakenly believed he was still on bail and arrested him for an alleged breach.
Konneh made a successful false imprisonment claim due to this, with the Supreme Court ruling that the officers had no lawful excuse for mistakenly arresting him.
It is important to note that there is a time limit to file a claim against NSW Police, with the actions above having a limitation period of 6 years, as per the Limitation Act 1969 (NSW).