A senior NSW police officer heading the charge to stop a Sydney Black Lives Matters protest on health grounds says Mick Fuller never instructed her to go to court, despite him implying as much on radio.
Comments by Mr Fuller, the NSW Police Commissioner, have played a central role in the case to have the state's Supreme Court "de-authorise" the public assembly planned for Tuesday.
A decision is not expected until noon on Sunday after Justice Mark Ierace accepted parties could make written submissions on Saturday.
Rally organiser Paddy Gibson says the action must fail as police decided to go to court before a legally required conference with him on Monday.
Mr Fuller went on radio hours before the meeting and said he had spoken to the assistant commissioner for the CBD.
"He's been instructed to take the matter to the Supreme Court," the police chief said.
The officer acting in that role told the court on Friday she'd learned of the comments before making the decision, but insist no one instructed her to go to court.
"I had made up my own mind," Acting Assistant Commissioner Stacey Maloney said.
"The commissioner has his own view but my name has to sign off on the (court papers)."
She read Mr Gibson's COVID safety plan, including promises for all demonstrators to wear masks, but remained concerned it wasn't enforceable like at shops or pubs.
"You were never going to make a decision different to the one your boss had already made?" barrister Felicity Graham said.
"I don't agree," the officer replied.
Ms Maloney "personally" saw how social distancing couldn't be maintained at a July 5 protest in The Domain, despite marshals being present.
Public health physician Jeremy McAnulty described the risk of transmission at the rally as "medium".
The senior NSW Health official said singing, chanting and speaking loudly would enhance the risk.
While conceding similar activities can occur at football stadiums now, he said football events had specific ticketing and seating and required names and contact details.
"I'm still concerned about the ability to socially distance in this setting," Dr McAnulty said of the protest.
Should the NSW Supreme Court rule the threat of COVID-19 outweighs the right to protest, demonstrators blocking roads will be liable to arrest and those breaching restrictions could face $1000 fines.
Mr Gibson said he wouldn't instruct anyone to manhandle demonstrators disobeying social distancing, saying his only enforceable power was "the power of persuasion".
"Senior Aboriginal people who carry quite a bit of cultural authority ... will be making it very clear ... that we're taking COVID seriously," he said.
He described the July 5 protest as "very well-spaced out" and believed 30 marshals was enough to keep tabs on a crowd of about 1000.
Mr Gibson's rally calls for justice for Indigenous man David Dungay Jnr, who died in a Sydney jail in 2015.
While prone, Mr Dungay repeatedly screamed "I can't breathe", to which one officer replied: "You're talking, you can breathe."
A coroner in 2019 found the prone restraint was a contributory factor to Mr Dungay's death but cleared the five prison officers of malicious intent.
The rally is scheduled to begin at Town Hall before proceeding to Parliament House where a petition will be delivered.
Police on Friday rejected Mr Gibson's offer to move the rally starting point to The Domain.