On 26 November 2021, Ricky Colbron (the appellant) was found guilty of an offence of public mischief contrary to s 547B Crimes Act 1900, at the Downing Centre Local Court. The appellant appeals as of right against the finding of guilt.
[2]
Facts
The appellant is a serving police officer. In about mid-2020, the appellant and other officers were concerned with what they perceived to be a breach of policy by a leading senior constable (the LSC) serving within their command. In particular, that he would leave the police station at the end of a shift wearing his police uniform including his appointments (firearm, handcuffs and capsicum spray) usually covered by a hoodie. The LSC had a routine at the time of leaving the police station at a particular time and picking up his children from a local primary school.
The appellant and others within his command believed that a formal complaint about the LSC's behaviour was futile because he was friends with senior officers at the command and/or that a complaint would put them at significant risk of reprisals. Experience suggested that complainants rarely remained anonymous in the internal complaints process.
On 29 June 2020, another officer saw the LSC in partial police uniform (as described) at the school. The incident was captured on in-car video footage, which was later viewed by the appellant.
The appellant and the officer referred to in the preceding paragraph attended an adjacent command to seek advice from the Local Area Commander on how to proceed with a complaint, whilst maintaining their anonymity. They received advice that a complaint could be made anonymously through the Police Assistance Line (PAL).
On 1 July 2020, the appellant asked another officer to inform him when she saw the LSC leave the police station, at the time that he usually went to the school.
At about 2.48pm, the appellant made a telephone call to the PAL. He reported that a male who may be a police officer, wearing blue cargo pants, a grey hoodie and wearing a firearm had got out of a Mercedes and was walking into the school grounds. He told the operator that "chances are he is a police officer". He confirmed that the male had walked into the school, and he assumed it was just a parent picking up his kids, but that he was only meant to wear his firearm whilst on duty. He told the operator he wanted to remain anonymous.
It was common ground before the magistrate and on appeal, that the appellant was not at the school when the call to the PAL was made and that he was at a location about 7 kms away.
The PAL arranged an urgent response to the job, requiring all units in the area to respond, including two detectives in an unmarked police vehicle. A senior officer at the police station heard the VKG broadcast and informed VKG that he would make enquiries. He rang the LSC and confirmed that he was at the school to pick up his children.
The LSC was at the school but seated in the vehicle that he was driving. Due to the COVID protocols in place at the time, he had not alighted from the vehicle. He was approached by the detectives and asked to produce his identification.
[3]
The Relevant Law
The applicable principles to be applied in determination of the appeal are as follows.
[4]
Nature of the appeal pursuant to s 18 Crimes (Appeal and Review) Act 2001
Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31].
The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22].
Whilst the magistrate's reasons are not part of the certified transcripts referred to in s 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24].
The Court is obliged to give the judgment which, in its opinion, ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23].
An appeal to the District Court under s 18 requires the demonstration of factual, legal or discretionary error to succeed: McNab v Director of Public Prosecutions [2021] NSWCA 298 at [24] (Bell P) and [83]-[90] (Basten and McCallum JJA).
The term "error" has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of "error" in the ordinary meaning of that term: AG v Director of Public Prosecutions [2015] NSWCA 218 at [34] (Basten JA) and McNab at [88] (Basten and McCallum JJA).
The requirement that the appellant demonstrate error does not reverse the onus of proof in that the prosecution, at all material times, bears the onus of establishing guilt beyond reasonable doubt: McNab at [26] (Bell P) and [91] (Basten and McCallum JA).
An appeal under s 18 does not require the District Court to undertake a complete review of the whole of the evidence and form its own view as to the appellant's guilt regardless of the issues raised by the appellant. The extent of the review will depend on the circumstances of the case and the kind of error alleged: Lumney v Director of Public Prosecutions [2021] NSWCA 186 at [44] (McCallum JA).
[5]
The offence
Section 547B Crimes Act 1900 provides:
547B PUBLIC MISCHIEF
(1) Any person who, by any means, knowingly makes to a police officer any false representation that an act has been, or will be, done or that any event has occurred, or will occur, which act or event as so represented is such as calls for an investigation by a police officer, shall be liable on conviction before the Local Court to imprisonment for 12 months, or to a fine of 50 penalty units, or both.
(2) For the purposes of subsection (1), a person shall be deemed to make a representation to a police officer if the person makes the representation to any other person and the nature of the representation reasonably requires that other person to communicate it to a police officer and that person does so communicate it.
The elements of the offence are:
1. That a person knowingly;
2. Makes a false representation to a police officer (or another person by extension in s 547B(2));
3. About an act that has been done or will be done or an event that has occurred or will occur; and
4. The act or event, as represented, calls for investigation by a police officer.
[6]
Consideration
The resolution of the appeal depends on the proper construction of s 547B and it is not necessary to set out the magistrate's findings, which were for the most part not challenged.
[7]
The appellant's argument
The appellant's argument was that the s 547B is not engaged where the represented event is actually worthy of investigation. In other words, s 547B is primarily concerned with false reports of non-existent crimes, such as bomb hoaxes and false allegations of assault.
The appellant contended that the difference in this case was that the appellant genuinely believed the report he made to be true, or that he at least had reasonable grounds for making it because of what he had been told by the other officer about what had occurred on 29 June 2020 and seen on the in-car video footage, and it was something that needed to be investigated.
The appellant contended that the magistrate found the representation to be false on the basis that the appellant had omitted to tell the PAL operator things that he knew, such as the LSC's name, that he actually was a police officer and that he had been seen similarly dressed on school grounds on 29 June 2020. At [31] of the appellant's written submissions, his counsel stated:
[The magistrate's approach was] erroneous because it considered a representation but not the relevant representation. That is, the Court failed to focus upon the representation that caused a Police investigation. It was not relevant nor to the point whether [the LSC] was known, or whether or not he was a Police officer. What was relevant, is that a representation was made that he was in public with a gun and that representation caused the investigation and that representation was not a false statement but accurate. (emphasis in the original)
[8]
Disposition
On the basis of the established facts, I am satisfied beyond reasonable doubt that the elements of the offence are established for the reasons that follow.
The appellant intended to represent to the operator of the PAL that the LSC was present on school grounds in partial police uniform and wearing his firearm. That was the conduct that he wanted investigated. There can be no doubt that he intentionally set out to make that representation to the operator of the PAL.
The representation was false. The appellant told the operator of the PAL that he was witnessing the conduct. The appellant was not present at the school to see the alleged conduct. The alleged conduct did not in fact occur. The appellant was inferring from what had occurred on 29 June 2020, that the same conduct was occurring at the time of the call to the PAL, but that was not the conduct that he was reporting to the operator.
The representation was false as to the fact that an event had occurred. The appellant represented that at the time of the call that the LSC was walking on school grounds, in partial uniform and wearing his firearm. That event had not occurred. The appellant was not reporting what had happened on an earlier date or what might occur in the future, but what was happening at the time of the call. His representation was not that he had reasonable grounds to believe that the conduct may be occurring at the time of the call, which would have been a true representation.
It was common ground that the act as represented called for an investigation by a police officer, and that an investigation was in fact commenced.
For the sake of completeness, the appellant's arguments should be rejected for the following reasons. First, they seek to isolate particular representations within the appellant's call to the PAL rather than considering what was conveyed by the call as a whole. Second, those isolated parts of the representation miss the point. The appellant was permitted to remain anonymous in his report and to do so he was entitled to distance himself from knowledge of the LSC's identity. I do not accept on a fair reading of the magistrate's reasons that she convicted the appellant on what he omitted to say. Third, there was an element of public mischief in the conduct of the appellant. The report he made led to a priority response from a number of units, called for the intervention of a senior officer to de-escalate the job, put the LSC and the detectives in a potentially dangerous situation and caused the LSC unwarranted embarrassment.
For all of these reasons, the orders that I make are:
1. Appeal dismissed.
[9]
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Decision last updated: 23 August 2022