Image credit: Rashays Facebook page.
Rashays founder Rami Ykmour was approached by at least 8 NSW police officers at his Chester Hill office on 8 July 2021 at about 3:30pm. Police initially attended the office after allegedly receiving an anonymous call complaining that staff were breaching the mandatory face mask orders inside the Rashays Chester Hill office.
Things escalated quickly. The Rashays Facebook page depicts the incident unfold.
After carefully observing the entire footage, here’s a legal breakdown of the situation, including an assessment on whether the NSW police officers acted unlawfully in this situation, by our CDLA criminal lawyers Sydney branch.
The Beginning- The Officers Claim of a Public Health Order Breach
The footage commenced with one NSW Police Officer who attended the front counter of Rashays Chester Hill office.
At this stage, the officer asserts making observations of a number of the Rashays staff breaching the mandatory facemask public health orders. He is clearly of the view that staff within the office are breaching public health orders, by failing to wear a fitted face-covering.
The footage depicts at least two female receptionists at the front of counter who appear to each have items of food in-front of them on their shared desk. Each receptionist is clearly depicted to be a sufficient distance away from each other.
The footage also depicts a number of other staff members at the back end of the office.
However, these staff members are a considerable distance away from the front of counter where the police officer is standing.
As the camera taking this footage moves to face towards the backend office area from where the police officer is standing, the view is clearly obscured/obstructed from a wall and glass partition, depicting only the top of certain staff member(s) head area.
Looking at the recorded camera footage, it’s difficult, if not impossible, to see how the police officer could possibly have made a clear enough observation of the kind he has asserted.
Arguably, there is real doubt that the police officer made observation of staff members breaching the mandatory face mask requirements.
If the court accepts this conclusion, then the police officers will be considered to have acted outside of their lawful powers to remain inside the Rashays Chester Hill office and arrest Rami. The entire process, from the moment the police officer remained on the premises, throughout the arrest process and thereafter, will be considered illegal. This may result in the dismissal of all charges.
Assuming a court accepts that the police officer at least suspected that staff in the office were breaching the mandatory face-mask public health orders, the police officer is authorised to direct the name and address to be provided under section 112 of the Public Health Act 2010 (NSW).
Failing to provide the requested identification details by way of hindering the police from ascertaining these details is classified as an offence under section 116 of the Public Health Act 2010 (NSW). This carries a maximum penalty of up to 6-months imprisonment and/or $11,000.
The recorded footage appears to depict Rami being arrested for allegedly, according to what the police officer says in the footage, for hindering police.
In determining whether Rami’s arrest was lawful, we will focus on just one aspect of the power to arrest that is ordinarily available to police under section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
It is arguable, that the police’s exercise of the power to arrest without a warrant here was illegal.
This is because, for an arrest without a warrant to be lawfully exercised by a police officer, section 99 must be complied with.
If section 99 is not complied with by the police officers, then the arrest will be considered unlawful.
Section 99 allows police to arrest you, only if:
- The police officer suspects on reasonable grounds that you are or have committed an offence i.e. hindering police, and
- If the police officer is satisfied that the arrest is ‘reasonably necessary’ for the reasons outlined in s99(1)(b), namely, to stop the offence or continuation of the offence, to stop the person from fleeing, to enable inquiries to be made to establish the person’s identity if it can’t readily be established, to ensure that the person appear before a court in relation to the offence, etc., and
- At the time of the arrest the police had an intention to charge the person.
Looking at the recorded footage, it is clear that police, at the time of the arrest, had an intention to charge him for hindering police.
It arguable, however, whether the police officer actually had the requisite ‘reasonable suspicion’ that an offence had in fact been committed.
However, assuming the officer had this requisite reasonable suspicion, we move to the question of whether the police officer was in fact satisfied that the arrest was ‘reasonably necessary’ for any one or more reasons outlined in s99(1)(b).
The meaning of ‘reasonably necessary’ is outlined in the case of Jankovic v DPP  NSWCA 31, which says, the term ‘necessary’ means reasonably appropriate and adapted, while ‘reasonably necessary’ requires that the police officer, at the time of the arrest, to assess the situation at hand and make an evaluative judgment by making a process of comparison and evaluation.
This is to be done by considering alternatives to arrest.
Alternatives to arrest here can, on a common-sense approach, includes other more sensible available options of issuing Rami with a warning, caution, penalty notice, or issuing him with a court attendance notice (a charge) instead of going straight to taking away his liberty by way of making a dramatic arrest.
Arguably, less drastic measures than arrest were available to the police officers.
Questions that also arise here are whether it was a proportionate response to any risk that the police officer actually perceived at the time? This requires the police officer to consider in his decision making process, at the actual time of the arrest, the extent that the continuation of his freedom will create a risk that the attainment of one or more of the States law enforcement outcomes will be jeopardised here.
It’s evident from the recorded footage that the police officers were made aware of Rami’s name, that he was an owner of the Rashays Chester Hill office. The police who perhaps had made up their mind to charge Rami, could have more appropriately dealt with the situation by simply issuing him with a Court Attendance Notice, knowing there is no risk of him fleeing, or committing further offending, or of anything that arises in s99(1)(b).
If a court concludes that the arrest was not ‘reasonably necessary’ in these circumstances, the police will be found to have acted outside their police powers. The arrest would then be considered unlawful.
This may open up a gate for suing the NSW Police for illegally arresting and detaining Rami. It can also mean, that any evidence police obtain as a result of this illegality will not be allowed to be used as evidence against Rami in court proceedings relating to the charge(s).
It will be interesting to see, should Rami fight the charges, what power the police were trying to exercise to even enter and remain on the premises given the limited power given to police to enter premises under section 108 Public Health Act 2010 (NSW). If the police officer is found to not be permitted to have entered and remain inside the office, then the hindering police charge and any penalty notice offences arising may be dismissed in court.
Sections 7 and 8 of the Public Health Act 2010 (NSW) gives the Minister the power to take such action and give such directions as considered necessary to deal with the risk and its possible consequences. This includes the direction of mandatory face masks in context of the current COVID-19 pandemic.
Anybody who does not have a reasonable excuse for not complying with the direction will face up to a fine of $11,000 and/or 6 months imprisonment. If the offence continues, the maximum penalty is a further $5,500 fine for each day that the offence continues, under section 10 Public Health Act 2010 (NSW).
In the case of a company who fails to comply, the maximum penalties are, $55,000 fine. For each day the offence continues, the fine is up to $27,500.
The above penalties only apply if the matter is dealt with by a court. If dealt with by a court, a person guilty can end up having a criminal record in addition to the above penalties. The only way to avoid this if a ‘not guilty’ finding is made, or a non-conviction sentence is imposed (i.e. section 10 or CRO non-conviction penalty) even after pleading guilty to it.
These matters are referred to as ‘penalty notice offences’. This means that they are usually dealt with by police by simply issuing an infringement notice (penalty notice fine).
Paying a penalty notice fine for failing to wear a face mask will not result in a criminal record, nor does it result in the above outlined penalties. A court appearance will not be required unless you court elect it.
Fines for Not Wearing Face Masks
Not wear face mask
Another offence of not complying with Ministerial Direction under s10 (26 March 2020 – 31 December 2021)
The above penalties are outlined in schedule 4 of the Public Health Regulation 2012 (NSW).
Mandatory Face Covering Orders (Current)
The new mandatory face masks orders commenced at the beginning of 26 June 2021 and is currently in force.
The most recent public health order on face masks is the Public Health (COVID-19 Mandatory Face Coverings) Order (No 3) 2021, created under the Public Health Act 2010 (NSW).
What does it say? In summary it says the following:
- You are required to wear a fitted face covering at all times:
- In an indoor area of a NSW airport, including passengers waiting area
- In a domestic commercial aircraft while it’s in a NSW airport or NSW airspace
- At a public transport waiting area, public transport vehicle or vessel in Greater Sydney
- In any indoor area, or parts of premises in Greater Sydney, which includes retail premises, business premises that provides goods or services to members of the public who attend the premises (other than hospitality venue or a kiosk), including:
- Shopping centres, but not a recreation facility (indoor) in a shopping centre
- Bank branches
- Post offices
- Hairdressing salons
- Nail salons
- Tattoo parlours
- Massage parlours
- Betting agencies
- In any indoor area or parts of premises in Greater Sydney, including any part of premises licensed under the Liquor Act 2007 that’s used primarily for the purposes of gaming (i.e. pubs, registered clubs and casinos), or gaming lounge, entertainment facilities, premises including places of worship being used for public worship or religious services or residential aged care facilities.
- If working at a hospitality venue in Greater Sydney whose functions require the person to deal directly with members of the public who are carrying out such functions.
Exception to Wearing a Face Mask
You are NOT REQUIRED to wear a fitted face covering if:
- You’re engaged in work on premises if you don’t interact with members of the public, in Greater Sydney.
- You’re a resident in a residential aged care facility.
- You’re aged 12 or under
- You have a physical or mental health illness or condition, or disability that makes wearing a fitted face covering unsuitable i.e. a skin condition, intellectual disability, autism or trauma.
- You’re eating or drinking
- You’re communicating with another person who is deaf or hard of hearing
- While at work, the nature of your work makes wearing a fitted face covering a risk to you or another person’s health and safety
- While at work, and the nature of your work means clear enunciation or visibility of your mouth is essential (i.e. lawyers in court or where you need to provide a speech)
- You are asked to remove your mask to ascertain your identity
- An emergency arises
- Necessary for the proper provision of the goods or services
- Members of a flight crew of an aircraft who is not interacting directly with passengers, including if you are on an aircraft with no passenger boarded, or airport worker who is not interacting directly with passengers on an aircraft, including because you’re on an aircraft with no passengers boarded (however, will be required to resume wearing the fitted face covering as soon as practicable after the circumstance ends)
Currently, according to section 71A Public Health Act, a police officer can arrest you if the officer suspects on reasonable grounds that you are breaching a public health order relating to the COVID-19 pandemic. This includes a circumstance an officer forms a reasonable suspicion that you are not wearing a face mask in circumstances you are otherwise required to.
On being arrested by police, you may then be returned to your home, usual place of residence, or if you’re a public health detainee, a place of detention.
Click here for an outline on the law on police powers to arrest in NSW.