Director of Public Prosecutions (NSW) v Best

Supreme Court of NSW|2016-03-07|Before: Hulme J, Mr J

Solicitors: Solicitor for Public Prosecutions Aboriginal Legal Service File Number(s): 2015/262291

The facts on taking the prosecution evidence at its highest

Detective Matthew Fulham investigated Mr Best in relation to a homicide. In 2010 he charged him with murder but he was acquitted at trial.
On 21 November 2014 Mr Best walked into Blacktown police station and asked Sergeant Sameh Morgan if he, Mr Best, could speak with Detective Fulham on the telephone. Sergeant Morgan returned to his office and tried, unsuccessfully, to contact Detective Fulham. He returned to the counter and told Mr Best this. He asked if Mr Best knew the detective and Mr Best replied, "Yes. I got acquitted of murder. He is continuously harassing me".
Sergeant Morgan asked if Mr Best would like to make a complaint to police, the Ombudsman or a local Member of Parliament. Mr Best replied, "You are all corrupt, what are you going to do if I make a complaint?" Sergeant Morgan asked what Mr Best would like him to do; how he could help him. According to the sergeant, Mr Best replied: "Just tell him that if he doesn't back off I'm going to go and get a gun and kill him".
Mr Best was arrested on a charge of intimidation.
A short time later, Sergeant Morgan spoke to Detective Fulham by telephone and they had the following conversation: Morgan: "There's a guy here by the name of Robert Best, do you know him?" Fulham: "Yes, I know him well." Morgan: "Robert has come in and had a conversation with me and wanted to talk to you on the phone. I couldn't get in touch with you and during that conversation Robert had made a threat that he would go and get a gun and kill you. I want to know whether he is capable of doing that."
Sergeant Morgan also gave evidence that he asked the detective whether he felt intimidated or not and he confirmed that he did.
Detective Fulham gave evidence confirming that he had been informed of what Mr Best had said to Sergeant Morgan. He was asked how it made him feel and he replied: "Well obviously intimidated. I mean I have extensive knowledge of this man and I know many things about him including his antecedents, his daily lifestyle, the persons who he associates with, the criminal antecedents of those persons and I believe he was entirely capable of carrying out that threat, if given the opportunity."
In response to a question asked by the magistrate, Detective Fulham said that he still held those concerns at the time of giving his evidence.

Dismissal of the charge

At the close of the prosecution case the police prosecutor submitted that there was no requirement for a threat to be made directly to an officer for the purpose of establishing that there has been intimidation constituting an offence against s 60(1) of the Crimes Act.
The solicitor for Mr Best submitted that there was no intimidation in circumstances where what Mr Best was alleged to have said was conveyed to Detective Fulham by another officer; it could only be intimidation if Mr Best had directed his remarks to the detective in person.
The magistrate reserved his decision and subsequently gave written reasons. After summarising the evidence and referring to principles relating to the determination of a no case submission, his Honour referred to the terms of section 60. He quoted at length from the judgment of Simpson J in Meller v Low [2000] NSWSC 75; 48 NSWLR 517 which he said "does not assist me in determining the present issue as to whether or not the relaying of a threat to a police officer through a third party was intended by Parliament to fall [within] the meaning of 'intimidates'". Reference was made to principles of statutory interpretation. His Honour referred to an extract from Hansard relating to the Crimes Amendment (Assault of Police Officers) Act 1997 (NSW) which inserted the offence of intimidation (etc) of a police officer in s 60 of the principal Act. The judgment concluded as follows: Determination The word "intimidates" in section 60 is preceded by the words "A person who assaults, throws a missile at, stalks, harasses…" All of these words involve and/or connote the actual direct physical actions of a defendant in the presence of a Police Officer/Victim, whether he or she be on or off duty, and in this case the defendant submits that the word "intimidates" should be interpreted in the same way. On the other hand, the Prosecutor submits that there is evidence upon which the Court could find that the defendant intended to intimidate Det Fulham, that the defendant intended for Sgt Morgan to convey the threat to Det Fulham, that the threat was so conveyed, and that Det Fulham was intimidated. The Prosecutor submits that there is no requirement that Det Fulham be physically present when the threat was made. The Prosecutor's submissions have force notwithstanding that there is no authorities or extrinsic material relied upon for this interpretation. There were probably other charges that could have been laid against the defendant in the given circumstances however I am only dealing with the charge at hand. If Sgt Morgan had not conveyed the threat to Det. Fulham section 60 would not have been offended. It was Sgt Morgan's direct action which brought about Det Fulham feeling intimidated. Imagine the scenario if Sgt Morgan had withheld the information for months and then relayed it to Det Fulham. If one accepts the Prosecutor's submissions then the offence would have occurred. I do not accept that that sort of scenario is what Parliament intended when section 60 was introduced. There are competing interpretations of the meaning of "intimidates" in section 60 - direct and/or indirect communication of a threat. Applying the authorities and principles of statutory interpretation that I have summarised above the issue should be resolved by reading down the word to its more limited usage as a direct action by a defendant against a Police Officer in the presence of the Officer. This direct action is an essential element of the charge and there is no evidence of such before me. Accordingly, albeit that I have real reservations in so finding, the defendant has no case to answer and the charge is dismissed.

Section 60 of the Crimes Act

The relevant provision in s 60 of the Crimes Act is as follows: 60 Assault and other actions against police officers (1) A person who assaults, throws a missile at, stalks, harasses or intimidates a police officer while in the execution of the officer's duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for 5 years.

Submissions for the Director

The Director submitted that there was sufficient guidance in what was said by Simpson J (as her Honour then was) in Meller v Low and by Mason P in R v Manton [2002] NSWCCA 316; 132 A Crim R 249 to resolve the issue.
The learned magistrate was in error in finding that Meller v Low did not assist. His Honour did not refer to R v Manton. It was contended that he was bound to follow these authorities and to accept that "intimidation" in s 60 had its natural meaning. No recourse to statutory interpretation was necessary. "Reading down" the word "intimidates" as his Honour did (judgment at [25]) was erroneous.
The Director also referred to the judgment of Hall J in Vella v Director of Public Prosecutions [2005] NSWSC 897; 156 A Crim R 113, noting that his Honour's listing of the elements of the offence did not include any requirement for the prosecution to prove there was direct action taken by the defendant in the physical presence of the police officer.
Whilst the Director's primary argument was that it was unnecessary for the magistrate to engage in any statutory interpretation exercise, it was submitted that his Honour erred in this respect as well. It was submitted that his Honour's construction of the provision did not promote its object; it was unnecessary to resort to extrinsic material; and it was unnecessary to examine the meaning of the word "intimidates" in its context in s 60(1). It was also submitted that even if the latter was an appropriate course to take, his Honour erred in the manner in which he did so.
The Director submitted that the "reading down" by his Honour of the word "intimidates" in s 60(1) would mean that a person who conveyed a threat to a police officer by, for example, email or voice mail, was not guilty of the offence; a result that was characterised as "extraordinary and perverse". It was also said to be contrary to the decision in R v Manton and completely against the ordinary plain English meaning of the word "intimidation".
Another error for which the Director contended was the finding by the magistrate, contrary to the authorities mentioned above, that there were "competing interpretations" of the meaning of "intimidates". Citing Director of Public Prosecutions v Priestley [2013] NSWSC 407, the Director argued that if his Honour was guided by the interpretative rule that ambiguity in a criminal statute is to be resolved by applying a limiting construction, then this was erroneous as well.

Submissions for Mr Best

Ms Loukas submitted that there was no authority in this State considering whether words expressed to a third party can establish the offence of intimidation. The three cases relied upon by the Director (Meller v Low, R v Manton and Vella v Director of Public Prosecutions) were not determinative. These cases were concerned with direct intimidation.
It was submitted that in the absence of binding authority on the point, it was incumbent upon the magistrate to construe the provision using conventional techniques of statutory interpretation.
Counsel referred to one of the elements of the offence identified by Hall J in Vella v Director of Public Prosecutions - "conduct directed at a law enforcement officer …". Dictionary definitions of the word "direct" founded a submission that this required that there be no third party human intermediary through whom a threat be conveyed. It was accepted that an intimidatory communication could be without the physical presence of the officer, such as by phone (as in R v Mathews [1992] QCA 462; [1993] 2 Qd R 316; 64 A Crim R 305) or email (as in Von Stalheim v Lusted [2014] TASSC 9).
Acknowledging that this interpretation was broader than that adopted by the magistrate, it was submitted that a finding of such error would not warrant the matter being remitted to the Local Court as the result would remain the same.
A contrast was sought to be drawn with the position in the United Kingdom where legislation concerning offences of intimidation specifically includes acts not done in the presence of the person sought to be intimidated but done to a third person: s 51 of the Criminal Justice and Public Order Act 1994 (UK) was cited but see similarly s 39 of the Criminal Justice and Police Act 2001 (UK).
In summary, it was contended that "the proper test for intimidation of a police officer is that the officer has been intimidated by the direct conduct of an offender. That direct conduct may be direct by virtue of it being in person or by automatic means such as telephone or email."

Determination

It is first appropriate to refer to the decided cases in order to see what assistance they can provide. Of course, the Director submits that they provide a complete answer.

Meller v Low [2000] NSWSC 75; 48 NSWLR 517

In Meller v Low a magistrate had found the plaintiff guilty of two charges of intimidation contrary to s 60(1). Police endeavouring to arrest two other people were approached and one of them was threatened with physical harm by the plaintiff. He was arrested and he made further threats against another officer at the police station. The issue was whether the charges should have been dismissed where there was an absence of direct evidence that the officers were in fact intimidated.
Simpson J referred to the absence of any definition of "intimidates" in s 60 and discussed the approach to statutory interpretation that should be applied (at [6]-[8]). She continued: "[9] With these principles in mind I turn to consider what construction ought be placed on the word "intimidates" as it is used in s 60(1). It is, first, an ordinary English word, readily understood, with no technical or complex or concealed meaning. The Oxford English Dictionary, 2nd Edition, and the Macquarie Dictionary are in agreement that "intimidate" means to render timid, to inspire with fear, to overawe, to cow, or to force to or deter from some action by threats or violence or by inducing fear. [10] One thing common to the ordinary notion of intimidation, and to all the dictionary definitions given is that the act that constitutes the intimidation has an effect on another person. "Intimidate" is a transitive verb. While particular behaviour may be intimidatory in its nature without causing actual fear or apprehension, there is no intimidation unless and until the behaviour has affected its object in the required manner, that is, by inducing fear or affecting conduct. Behaviour may have a capacity to intimidate, it may be intended or designed to intimidate, but it does not intimidate until it has worked its effect in the person to whom it is directed. Intimidation does not exist in the air. It does not occur until the effect is created. The concept is twofold: intimidation necessarily consists both of a particular form of conduct and the effect the conduct has on another person. There is no intimidation until another person has been intimidated. [11] I am therefore satisfied that on the proper interpretation of the plain words as used in s 60(1) the offence is not committed unless and until there is proof that a person was in fact intimidated. There is no suggestion in the section that an attempt to intimidate, or an intention to intimidate would be sufficient to constitute the offence. It would have been a simple matter so to legislate had that been the legislature's intention. It is therefore unnecessary to look to extrinsic materials in order to construe the section. It is, however, permissible to look to such materials in order to confirm that the meaning of the section is the ordinary meaning conveyed by its text: Interpretation Act 1987, s 34(1)(a)."
Her Honour referred to the same Hansard material to which the learned magistrate in the present case had regard. She found it only confirmed the conclusion she had otherwise come to which she expressed as follows: "[14] … I am satisfied that in order to sustain a conviction for intimidation of a police officer acting in the execution of his duty under s 60 it is necessary for the prosecution to prove that the police was put in fear or apprehension, was forced into or deterred from some action by being put in fear, or was overawed or cowed."

R v Manton [2002] NSWCCA 316; 132 A Crim R 249

In R v Manton the defendant had been placed in a cell at a police station after having been arrested. As the constables were leaving he looked at one of them and, while drawing his finger across his neck simulating the cutting of his throat, he uttered a threat: "Wait till I see you on the street, I'll kill you, youse will get yours, I'll find where you live and get you". The officer to whom the threat was specifically directed said he felt concerned and threatened by the defendant's words and actions.
It was contended that in addition to the police officer being put in fear or apprehension, there must have been some overbearing of the officer to the extent that the officer was influenced to or deterred from some action in the course of the officer's duty. That contention was rejected.
Mason P (with whom RS Hulme and Simpson JJ agreed) referred to the portion of the judgment of Simpson J in Meller v Low extracted above, observing that the Court was not called upon to reconsider the part that treated "intimidates" as a transitive verb requiring proof of a particular impact upon the officer concerned. Mason P said, "I record this without inferring any view on the matter".
In short, R v Manton provides support by the Court of Criminal Appeal for the correctness of the judgment of Simpson J in Meller v Low. It does not otherwise add anything.

Vella v Director of Public Prosecutions [2005] NSWSC 897; 156 A Crim R 113

The facts in Vella v Director of Public Prosecutions were that the plaintiff had approached a police officer and directed a barrage of expletive laden abuse at close arrange. The abuse included an assertion that the officer and his colleagues were corrupt and that the plaintiff was "going to get you and bring you down". The officer gave evidence that the plaintiff had continually walked towards him, waving his arms in a threatening manner. He said it was "extremely intimidating".
One of the issues in the proceedings in this Court was whether a plea in bar was available in circumstances where the same conduct founded a charge of intimidating the officer under s 60(1) as well as a charge of harassing the officer, also under s 60(1). After having earlier referred to the judgment of Simpson J in Meller v Low, Hall J expressed his analysis and conclusion as follows: "[37] In determining the submissions made on behalf of the plaintiff based on the principles enunciated in Pearce (supra) in reference to the rule of plea in bar, it is essential to identify the elements of the offence of intimidation arising under s 60(1) of the Crimes Act assisted by the observations of Simpson, J to which I have earlier referred. [38] Additionally, in Regina v Mathews (1992) 64 A Crim R 305 at 307, McPherson, JA examined the offence of intimidation of a witness in contravention of s 36A of the Crimes Act 1914 (Cth). In the course of the analysis in that case, the following observations were made:- • In a context like s 36A, the word "intimidate" and its derivatives is not a technical term, or a term of art, but a word in common use employed in its popular sense: O'Connell (1988) 11 Cl & Fin 155 at 235; 8 ER 1061 at 1092; • Ordinarily intimidation would involve some threatening words or conduct tending to coerce the other person; • Whether there has been intimidation is a question for the jury to decide on the evidence. [39] The essence of the offence under s 60(1) involves conduct of a particular character, namely words and/or actions which are threatening in nature or have a tendency or capacity to coerce another person and which does impact upon a police officer as discussed in paragraph [25]. [40] In establishing an offence in relation to intimidatory conduct, the elements of the offence under s 60(1) include:- (a) a particular form of conduct, whether words or actions or both; (b) conduct that is capable of inspiring fear or is capable of coercing another to do or defer from some action; (c) conduct directed at a law enforcement officer while in the execution of the officer's duty; (d) actual intimidation of such an officer. [41] The legislative intention behind s 60(1) of the Crimes Act 1900 (NSW) can be taken to be the protection of police officers from unlawful and other specified conduct which is capable of, and does, interfere with the execution of an officer's duty. Conduct consisting of words and/or actions that vexes or troubles a police officer in the execution of duties is conduct that harasses such an officer. The proved intimidation of a police officer, in the sense discussed above, would necessarily subsume or embrace a conclusion that by such conduct that person had also harassed the police officer. [42] I am accordingly of the opinion that the charge of intimidating Inspector Johnson against the plaintiff necessarily subsumes the former charge of harass him."
Senior counsel for the defendant in the present case focussed upon the expression "conduct directed at a law enforcement officer" in the third of the elements set out by Hall J. Reference was made to dictionary definitions of the word "direct". This led to the submission that there must be communication between the alleged offender and the police officer that is "direct and not through a third party intermediary". Communication with the officer via telephone or email were said to be examples of "direct" communication and so it was conceded that there was no necessity for the officer to be present at the place where the intimidatory conduct occurs.
Logic and common sense defeat the defendant's argument. If an email with threatening content addressed to a police officer can found a charge of intimidation under s 60(1), does it matter whether the defendant operated the keyboard of the computer or dictated the content of the email to someone else who did? Is it necessary for the defendant to be the person who clicks "send" or could a third party intermediary do the clicking? Ms Loukas conceded during argument that the involvement of a third party in such circumstances would not stand in the way of a charge of intimidation being proved. There seems to be no logical distinction between a person causing an intermediary to send an intimidating message by email to a police officer and a person asking an intermediary to orally convey an intimidating message.
The Tasmanian case referred to in Ms Loukas' written submissions (Von Stalheim v Lusted) highlights the very point raised against her primary contention. That case involved intimidation of a member of the Tasmanian Anti-Discrimination Tribunal, Ms Anita Smith. But the email was sent to another person at the tribunal, Ms Emily Briggs. Indeed, the email commenced, "Dear Emily". No issue was raised as to the fact the intimidation of Ms Smith was conveyed through an intermediary.
Reference to legislation in the United Kingdom which includes in explicit terms that direct contact with the person intended to be intimidated is not required does not assist the defendant's argument either. The question here is whether it is correct to confine the word "intimidates" in s 60(1) by reading additional words into the provision such as those suggested by the magistrate: "as a direct action by a defendant against a police officer". His Honour came to such a view by comparing "intimidates" with the other things listed in s 60(1) that would constitute an offence: "assaults, throws a missile at, stalks, harasses". True it is that assaulting or throwing a missile at a person both necessitate physical presence but stalking or harassing do not.
The defendant's reliance upon the words "directed at" used by Hall J in Vella v Director of Public Prosecutions requires a strained and pedantic precision in interpreting words in a judgment by recourse to dictionary definitions of the word "direct". What his Honour was intending to convey was that there must be some conduct directed at a police officer in the sense of the conduct being targeted or aimed at the officer.
Statutory construction begins and ends with a consideration of the statutory text: Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; 250 CLR 503 at [39]; Thiess v Collector of Customs [2014] HCA 12; 250 CLR 664 at [22]. A construction that promotes the purpose of the legislation is to be preferred: s 33 of the Interpretation Act 1987 (NSW); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [78].
As to the latter, the legislative purpose has been clearly articulated in the judgment of Hall J in Vella v Director of Public Prosecutions. This was not in issue in the present proceedings. What is plain is that neither the construction of the legislative provision favoured by the magistrate nor the slightly more expansive construction advanced in this Court by the defendant would promote that purpose.
In my respectful view, it was unnecessary for the magistrate to have recourse to parliamentary debates in order to construe the provisions of s 60(1). Having regard to the clear authority of the cases I have referred to the meaning of "intimidates" is well settled. There is nothing ambiguous or obscure about it and acceptance of the Director's argument, and that of the prosecutor in the Local Court, does not give rise to a result that is manifestly absurd or unreasonable: s 34(1)(b)(ii) Interpretation Act. Indeed, it is acceptance of the argument advanced on Mr Best's behalf that would lead to a result that may be so characterised.
In the course of oral submissions, Ms Loukas endorsed a submission made by her counterpart in the proceedings below: that the offence "included a mental element requiring an intent on the part of the accused to 'induce fear or affect conduct'" and that "in the absence of a direct conversation this could not be established". She asked rhetorically, "what is the mental element precisely in circumstances where it is not a direct offence"? Ultimately, Ms Loukas agreed, as did the Director (drawing upon Meller v Low and R v Manton) that it is the intentional doing or saying of something that is intended or designed to intimidate an officer.
Such a formulation of the mental element will raise factual issues in cases where the defendant's conduct occurred in the presence of the officer or otherwise. Where it occurred in the officer's presence, it highlights the need for the prosecution to establish that the conduct was directed towards the particular officer alleged to have been intimidated, or that the officer was one of a number or group of officers alleged to have been intimidated. Where the conduct occurred otherwise than in the officer's presence, it highlights the need for the prosecution to establish that the conduct was intended or designed to come to the officer's attention so as to intimidate him or her.

Conclusion

To summarise, I am satisfied that the meaning of "intimidates" in s 60(1) of the Crimes Act is as explained in Meller v Low. I am satisfied that commission of the offence of intimidating a police officer in s 60(1) requires proof that a person deliberately engaged in conduct (be it by words, deeds or both) intending or designed to intimidate a police officer in the execution of the officer's duty and that such conduct in fact had that effect. Whether that is done in the presence of the officer or communicated to the officer by some other means is a question of fact and not determinative in itself.
That was the issue that the magistrate was required to address at the end of the prosecution case in determining whether the defendant had a case to answer. As a matter of law it was not necessary for the prosecution to establish that the conduct was carried out in the presence of the relevant police officer and the magistrate erred in holding otherwise.

Orders

I make the following orders: 1 The order made in the Local Court at Blacktown on 26 June 2015 dismissing proceedings against the defendant for the offence of intimidate police officer in execution of duty be set aside. 2 The proceedings be remitted to the Local Court to be dealt with according to law.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 March 2016

Crimes Amendment (Assault of Police Officers) Act 1997(NSW)

Crimes Act 1900(NSW)s 60(1)

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