Director of Public Prosecutions (NSW) v Nikolovski

The offence against s 60(1) of the Crimes Act 1900 (NSW)

1. Section 60(1) of the Crimes Act provides: "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."

The offence against s 13(1) of the CDPV Act

1. Section 13(1) of the CDPV Act provides: "13 Stalking or intimidation with intent to cause fear of physical or mental harm (1) A person who stalks or intimidates another person with the intention of causing the other person to fear physical or mental harm is guilty of an offence. Maximum penalty: Imprisonment for 5 years or 50 penalty units, or both. (2) For the purposes of this section, causing a person to fear physical or mental harm includes causing the person to fear physical or mental harm to another person with whom he or she has a domestic relationship. (3) For the purposes of this section, a person intends to cause fear of physical or mental harm if he or she knows that the conduct is likely to cause fear in the other person. (4) For the purposes of this section, the prosecution is not required to prove that the person alleged to have been stalked or intimidated actually feared physical or mental harm. (5) A person who attempts to commit an offence against subsection (1) is guilty of an offence against that subsection and is punishable as if the offence attempted had been committed."
2. Section 7 of the CDPV Act defines intimidation in the following terms: "7 Meaning of "intimidation" (1) For the purposes of this Act, intimidation of a person means: (a) conduct amounting to harassment or molestation of the person, or (b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or (c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property. (2) For the purpose of determining whether a person's conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person's behaviour."
3. Section 10 of the CDPV Act sets out the objects of the Act in relation to personal violence in the following terms: "10 Object of Act in relation to personal violence (1) The object of this Act in relation to personal violence is to ensure the safety and protection of all persons who experience personal violence outside a domestic relationship. (2) This Act aims to achieve that object by: (a) empowering courts to make apprehended personal violence orders in appropriate circumstances to protect people from violence, intimidation (including harassment) and stalking, and (b) ensuring that access to courts is as safe, speedy, inexpensive and simple as is consistent with justice, and (c) ensuring that other avenues of dispute resolution are encouraged where appropriate."

The proceedings in the Court below

1. As the question to be determined turns on a point of statutory construction it is not necessary to narrate the detail of the proceedings in the Court below or the effect of the evidence before Milledge LCM. The following summary is sufficient for present purposes.
2. The defendant was, relevantly, charged with an offence of intimidate under s 13(1) of the CDPV Act arising from his conduct in the course of an altercation in Glebe on 6 March 2016. The defendant pleaded not guilty and the matter proceeded to hearing before Milledge LCM. Her Honour found that the defendant made intimidating statements to a police officer, which included remarks of a sexual nature about the officer's wife; and that the defendant's conduct had actually intimidated the officer. However, her Honour dismissed the charge on the ground that the charge should have been laid under s 60(1) of the Crimes Act, rather than s 13(1) of the CDPV Act because the victim was a police officer acting in the execution of his duties as a police officer. Her Honour said: "[T]here is a specific section that caters for a law enforcement officer, which is a police officer, which is the Crimes Act and Inspector Coffey was not acting in his personal capacity, he was acting in the execution of his duty, he was acting as a police officer. . . . this is a police officer who was acting in his capacity as a law enforcement officer and he has the special protection of s 60 [of the Crimes Act]. My view is, if it was under s 60, I would have found in favour of the prosecution, because I would have been more than satisfied, beyond a reasonable doubt that the prosecution has discharged its onus because looking at the demeanour and listening to the viva voce evidence of Inspector Coffey, it was something that he really took personally and it really had an effect on him. . . . BUT I FIND THAT THE ACT AND THE SECTION IS INCORRECT. IT IS NOT A PERSONAL VIOLENCE OFFENCE FOR THE PURPOSE OF THIS MATTER AND FOR THAT REASON, IT FAILS, BECAUSE IT SHOULD HAVE BEEN LAID UNDER S 60 OF THE CRIMES ACT AND NOT S 13 OF THE CRIMES (DOMESTIC AND PERSONAL VIOLENCE) ACT AND FOR THAT REASON, IT IS DISMISSED."

The basis for the decision of the court below

1. The basis for the magistrate's decision was that, in essence, the offences covered the same conduct but that s 60(1) of the Crimes Act specifically applied to conduct of which the victim was a police officer in the execution of his or her duty. In those circumstances, her Honour concluded that the offence under s 13(1) of the CDPV Act had not been committed where the victim was a police officer acting in the execution of his or her duty, as in the present case.
2. There are several difficulties with her Honour's approach. First, it is based on the proposition that the specific offence (s 60(1) of the Crimes Act), which applies to the limited class of victims to which the victim in the present case belonged, displaces the general offence which applies to any person (s 13(1) of the CDPV Act) where the victim is a police officer acting in the execution of his or her duty, irrespective of any difference in the elements of the respective offences. Secondly, it presupposes that there is an obligation, which is reviewable by a court, which is imposed on a prosecutor to choose the most apposite offence.

Circumstances in which two offences might be found to overlap

Where a general provision and a specific provision are to be found in the same Act

1. Where an Act contains a specific provision and a general provision, questions of statutory construction may arise as to whether the specific provision displaces the general provision to the extent of the ambit of the specific provision. The maxims ejusdem generis (general matters are constrained by reference to specific matters) and expressio unius est exclusive alterius (an express reference to one matter indicates that other matters are excluded) are relevant to the discernment of statutory intention in such a case. Of the application of the latter maxim, D Pearce & R Geddes, Statutory Interpretation in Australia, (8th ed, 2014, LexisNexis Butterworths) said at [4.33]: "It is a reasonable assumption that where legislation includes provisions relating to similar matters in different terms, there is a deliberate intention to deal with them differently. . . . However, this need not necessarily be the case. . . The relevant legislation might be complex and the similarity between the provisions could have been overlooked. In short, factors other than a deliberate intention to make different provision could explain the variations. Much will depend upon the view that is taken of the particularity with which the legislature has addressed its mind to the subject matter of the legislation."
2. In the present case, as the two provisions are to be found in different statutes, no assumption can, in my view, be made that Parliament intended the specific provision (s 13(1) of the CDPV Act) to override the general provision (s 60(1) of the Crimes Act), even apart from the other differences between them, which will be addressed below.

Where the category to which a victim belongs is an aggravating factor

1. On occasion, Parliament might choose to make the category of victim an aggravating factor for an offence, such as in the case of sex offences against children of particular ages (see s 61M(1) and (2) of the Crimes Act). As Gageler J said, obiter, in Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 at [69]: "He [the Solicitor-General of the Commonwealth] also properly points out that there is nothing unusual about criminal laws enacted by a single legislature laying down a 'base level' offence, the elements of which are then wholly subsumed within the elements of another, 'aggravated' offence in the sense that conduct constituting the aggravated offence is conduct which also constitutes the base level offence."
2. Another instance of statutory differentiation based on the characteristics of the victim is provided by s 19B of the Crimes Act, which makes a life sentence mandatory in certain circumstances for the murder of a police officer in the execution of his or her duty. In other cases, where the deceased does not belong to this category, the judicial discretion in sentencing is not constrained by a mandatory sentence, although the maximum sentence for murder is life: s 19A of the Crimes Act.

The present case: whether the offence under s 13(1) could apply where the alleged victim was a police officer in the course of his or her duty

1. However, none of the instances postulated above has any application to the present case. Section 13(1) of the CDPV Act and s 60(1) of the Crimes Act are contained in different statutes and have different elements, even leaving aside the characteristics of the victim. In those circumstances, no statutory intention to have one provision give way to the other can be inferred. I note for completeness that there is nothing in the legislative history of, or the extrinsic materials relating to, either of these provisions which provides any warrant for the conclusion reached by the Court below that s 13(1) of the CDPV Act was to be read down by reference to the provisions of s 60(1) of the Crimes Act where the alleged victim was a police officer acting in the execution of his or her duties.
2. It follows that the only question for the magistrate was whether the prosecutor had proved to the requisite standard the elements of the offence against s 13(1) of the CDPV Act. All that the prosecution needed to establish about the identity of the alleged victim, for those purposes, was that he was a "person". This is sufficient to dispose of the appeal. However, as the magistrate's reasons also included a discussion about the prosecutor's decision to lay a charge under s 13(1) of the CDPV Act rather than s 60(1) of the Crimes Act, I propose to address the elements of the respective offences and the principles applicable to the prosecutor's discretion.

The elements of the respective offences

1. For present purposes, the principal distinction between s 13(1) of the CDPV Act and s 60(1) of the Crimes Act is that the prosecution must prove, in respect of an offence against s 60(1) that the defendant intimidated the victim. The term "intimidation" is not defined in the Crimes Act. Accordingly, the word bears its ordinary meaning. It is settled law that, for an offence under s 60(1) of the Crimes Act the prosecutor must prove both that the defendant intended to intimidate the victim and that the defendant's conduct had the effect of intimidating the victim: Meller v Low (2000) 48 NSWLR 517; [2000] NSWSC 75 at [10]-[11] (Simpson J); R v Manton [2002] NSWCCA 316; (2002) 132 A Crim R 249 at [6]-[12] (Mason P, R S Hulme and Simpson JJ agreeing); Director of Public Prosecutions (NSW) v Best [2016] NSWSC 261 at [50] (R A Hulme J).
2. By contrast, although the prosecution needs to prove as an element of an offence against s 13(1) of the CDPV Act that the victim was intimidated, the word "intimidation" is defined so as to alter its natural meaning. Thus, the prosecutor is not required to prove that the alleged victim actually feared physical or mental harm (s 13(4) of the CDPV Act). Moreover, if the defendant's conduct is such as to cause a reasonable apprehension of injury to a person (s 7(1)(c) of the CDPV Act), it does not matter whether the defendant's conduct caused such an apprehension in the alleged victim, since the use of the word "reasonable" shows that the test is an objective one.
3. There is a slight difference in the maximum penalty for each offence when tried on indictment, though not when dealt with summarily. When dealt with summarily, both offences are subject to the jurisdictional maximum of 2 years' imprisonment and a maximum fine of 50 penalty units (s 268 of the Criminal Procedure Act 1986 (NSW)). When tried on indictment, the maximum penalty for both offences is 5 years. However an additional or alternative penalty of 50 penalty units is available for an offence under s 13(1) of the CDPV Act when tried on indictment. I note these matters for completeness although they have no bearing on the independent operation of the two provisions. The result of these proceedings would be the same irrespective of the respective penalties provided for.

The prosecutor's discretion

1. The differences between the elements of the two offences are significant for two reasons. First, they provide further evidence to displace any inference that Parliament intended s 60(1) of the Crimes Act to displace s 13(1) of the CDPV Act (which was scarcely available in any event having regard to the circumstance that the two provisions are to be found in different statutes). Secondly, they may serve to explain why the prosecutor charged the defendant with an offence under s 13(1) of the CDPV Act rather than under s 60(1) of the Crimes Act.
2. The choice of charges to be laid is solely one for the prosecuting authorities and not for the courts: see Magaming v The Queen at [20] (French CJ, Hayne, Crennan, Kiefel and Bell JJ). As the plurality said in Magaming v The Queen at [25]: "Conduct of an accused may, if proved, establish the elements of more than one offence. Framing the charge or charges to be laid against an accused often requires a prosecutor to choose between available charges. The very notion of prosecutorial discretion about what charges will be laid depends upon the existence of a choice between charges."
3. The reasons for a prosecutor's discretion to decide what charges are to be laid not being susceptible to judicial review derive, in part, from the need to ensure that the impartiality of the judicial process is not compromised: Barton v The Queen (1980) 147 CLR 75 at 94-95 (Gibbs ACJ and Mason J); [1980] HCA 48, Maxwell v The Queen (1996) 184 CLR 501 at 534 (Gaudron and Gummow JJ); [1996] HCA 46; and Magaming v The Queen at [68] (Gageler J). It follows that, once it is accepted that an offence under s 13(1) of the CDPV Act can be committed against a police officer in the execution of his or her duty, the court has no role to question why the defendant was not charged with an offence under s 60(1) of the Crimes Act.

Extension of time

1. The order made by Milledge LCM on 4 November 2016 purported to extend time for the filing of the summons to 16 March 2016. This date is plainly an error. The defendant does not oppose the extension of time. In these circumstances, I propose to extend the time for filing the summons up to and including 17 February 2017, being the date on which the summons was filed.

Conclusion

1. For these reasons, the appeal ought be allowed, the dismissal of the charge set aside and the matter remitted to be determined by the Local Court according to law. There is no reason why the matter ought not be allocated to Milledge LCM.

Orders

1. I make the following orders: 1. Extend the time within which the plaintiff is to file the summons up to and including 17 February 2017. 2. Allow the appeal. 3. Set aside the order of Milledge LCM dismissing the charge against the defendant under s 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW). 4. Remit the matter to the Local Court for determination according to law.

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