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[2013] NSWDC 204
District Court of NSW
2013-10-10
Ms J, Mason P
Original judgment source is linked above.
Introduction 1The charge the subject to this appeal is as follows: "Intimidate Police Officer in execution of duty without causing actual bodily harm. Between 12.05am and 12.10am on 16 September 2012 at Gymea, did attempt to intimidate a police officer while the said Leading Senior Constable Inglis was executing his duty."
Crimes Act 1900 S 60 (1) "(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". 2The penalty imposed by the learned Magistrate in respect of the offence was six months imprisonment which was backdated and had been already served.
The Appeal 3The appeal was heard on 10 October 2013. At that time the appellant was in custody in respect of other matters. He was to be released on parole on 11 October 2013. An order had been previously made that he appear on the appeal by way of a video link and he did so for part of the appeal. The appellant did not apply to give any further evidence and the video link was terminated at his request. 4The maximum penalty imposed in respect of the matter in the jurisdiction of the Local Court was two years imprisonment. The maximum penalty provided by statute in respect of the offence was 5 years imprisonment. 5The appeal is by way of a re-hearing based on the transcript of evidence before the learned Magistrate. In determining the appeal I am to apply the principles governing appeals from a Judge sitting without a jury, and I am to form my own judgment of the facts on the basis of the transcript evidence, recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called in the lower court - see Charara v R [2006] NSWCCA 244 per Mason P at [18]. I have also had regard to the exhibits tendered in the Local Court and I have read the remarks of Magistrate Bartley in his judgment dated 21 June 2013. 6I am mindful of the limitations that therefore exist in proceeding wholly on the record of the proceedings in the Local Court and the advantages held by the learned Magistrate in considering the evidence, particularly in respect of the issue of credibility in respect of any witness.
The Appeal as to Conviction 7At the hearing before the learned Magistrate the Crown relied on five particulars of intimidation supporting the charge pursuant to s 60 (1). The learned Magistrate's decision to convict was based on the second of those particulars, namely: "2. After Mr Goddard stopped walking, in a highly aggressive manner, he shouted to leading Senior Constable Inglis, 'Have your go you fucking dogs, I'll kill you fucking dogs, I'll take a fucking swing and kill you cunts'." 8The learned Magistrate, for various reasons, acquitted the appellant on the other four particulars of intimidation. 9The appeal was confined only to the conviction on the basis of the second alleged intimidation outlined above. The Crown did not seek to re-agitate the other matters on appeal. In this way the appeal was confined. 10It was also conceded by the appellant that it was open for the Court to find that the words particularised were said by the appellant and in fact it was conceded that they were said. The question on appeal therefore became whether the Crown had proved beyond reasonable doubt actual intimidation of SC Inglis by the appellant's words. It was common ground that it was sufficient for the offence if the Prosecution proves that the actual words of the appellant actually caused the officer to experience fear or apprehension for his personal safety, relying on R v Manton (2002) 132 AcrimR 249; (2002) NSWCCA 316. 11The appellant submitted first, that there was no mens rea established for the offence, namely, that the appellant did not intend to intimidate SC Inglis and secondly, that the Court could not be satisfied on all of the evidence beyond reasonable doubt that there was any actual intimidation of SC Inglis.
The Evidence 12I have read the statement of SC Inglis and the evidence given by him on 5 December 2012. It established that the words attributed to the appellant were spoken by him (para 4) and that as a result of those words SC Inglis stated that he felt he was going to be assaulted by Mr Goddard. 13In his evidence in chief, SC Inglis said: "Q: You state at the bottom paragraph 4 the accused was standing directly in front you shouting, can you tell the Court how far away it was that he was standing away from you, to the best of your recollection? A: Probably within a metre Q: You state to the Court that he said, 'Have you fucking' - sorry, did you mean your- A: Yes, I did, yes. Q: 'You fucking dogs, I'll kill you you fucking dogs. I'll take a fucking swing and kill you cunts', can you tell the Court how loud it was that he said this on a scale of one to 10 where one is a whisper and 10 is a yelling at the top of his voice? A: It was probably around eight. Q: As a result of those words being said how is it that you felt? A: I felt he was going to assault me. I felt intimidated. Q: In the middle of paragraph 5 you tell the Court that the accused said, 'I'm going to smash you dogs'. Now, once again, how did that make you feel? A: Where are we now? Q: Sorry, paragraph 5, in the middle, 'The accused immediately raised his right fist and shouted, "I'm going to smash you dogs"'? A: Was that in section number 4 or 5? Q: Sorry, paragraph 5, the middle of paragraph 5. Apologise if I've misled you? A: And can you repeat the question? Q: Yes, so in your statement you tell the Court, 'The accused immediately raised his right fist and shouted, "I'm going to smash you dogs"'? A: Yeah. Q: How did that make you feel? A: Intimidated, felt like he was going to assault me." 14In cross-examination SC Inglis conceded that during the incident he was facing Mr Goddard, who was walking backwards as SC Inglis walked forwards. 15It was shortly after the relevant words were spoken that SC Inglis placed Mr Goddard under arrest. 16SC Inglis also gave the following evidence: "Q: Well when he's waving his arms around and-- A: Yeah I still-- Q: --saying 'Have your go you fucking dogs'? A: Yes. Q: So he doesn't take a step or lunge towards you does he? A: No. Q: And where are the other officers at this time? A: They're nearby I can't see exactly where they were. Q: But nearby? A: Yeah. Q: And sir you then, you say you feared he might assault you, you step towards him? A: Yes. Q: That's an interesting way to stop being assaulted isn't it? A: Well there's less chance of getting assaulted if I'm standing right next to him, if he's got within - he can swing at me isn't it? Q: Well you're more than arms length away? A: Was close by but he can still step towards me. Q: Did you think of stepping back? A: No. Q: Did he take any step towards you? A: No. Q: You didn't consider just stepping back to de-escalate the situation? A: No. Q: And you've stepped towards him and you've said 'You've been warned now you're under arrest'? A: Correct. Q: What was the reason for putting him under arrest? A: For intimidate police. Q: Of course you didn't tell him that at the time? A: No." 17I have also had regard to exhibits A and B on the appeal, which were the DVDs produced from CCTV footage from the adjacent nightclub of the incident. There was no sound recorded by the CCTV, however, the video shows the area outside the nightclub and the relevant incident taking place in the background in a car park and garden area opposite the nightclub. It clearly shows SC Inglis advancing towards the appellant and the appellant walking backwards at the time when SC Inglis gave evidence that the conversation took place.
The Appellant's Submissions 18The appellant submits that the credit of SC Inglis was successfully impugned in two ways. First, he gave evidence that when he first approached a young man, Mr O'Connor, outside the nightclub, he "never noticed Joshua Goddard" who was standing next to him. Notwithstanding that Mr Goddard was well known to him from previous dealings, SC Inglis adhered to his evidence that he did not see him at the front entrance of the nightclub. The second matter relied on in respect of SC Inglis' credit was that he gave evidence that he referred to the facts sheet when he made his statement. That facts sheet had been created by Constable Parish. 19The appellant further submitted that whilst the Magistrate was correct in his finding Mr Goddard's evidence was unreliable in some respects, his account of the incident was borne out by the CCTV video shown in exhibits A and B. 20It was on the basis of the clear evidence that SC Inglis was advancing towards Mr Goddard, and Mr Goddard was walking backwards, that the appellant submitted there could be no finding of actual intimidation. In support of that was the evidence of SC Inglis referred to above, that he neither thought of stepping back away from Mr Goddard, nor did he consider just stepping back to de-escalate the situation. It was submitted, in those circumstances, the words attributed to Mr Goddard were "empty words" of a young man who was upset and frightened at the time. To that extent, they were the type of words uttered by many people confronted by Police, and further that SC Inglis' conduct was not the action of someone who was intimidated at all. Ultimately, the issue of SC Inglis' credit goes to his assertion that he felt intimidated when the words were spoken by Goddard.
The Crown's Submissions 21The Crown submitted that the Court could accept, as the learned Magistrate did, that SC Inglis was intimidated by the words spoken. The learned Magistrate had carefully dealt with all of the elements of the offence and was satisfied that the Crown case had been proved beyond reasonable doubt. It was further submitted that the postscript to the judgment of Mason P in R v Manton, setting out that the word "fear" was not included in the oath of the Police Officer was highly relevant. The Crown further submitted that the appellant was an evasive witness whose credit was successfully impugned at the hearing. No note or statement had been made by him prior to giving his evidence in March 2013, whereas the Police Officers' statements had been compiled shortly after the incident and were by comparison contemporaneous records.
Determination 22As set out above, the appeal concerns the conviction in respect of the second particular relied on by the Crown supporting the charge pursuant to s 60(1) of intimidation of a Police Officer in the execution of his duty. The evidence has established beyond reasonable doubt, and the appellant has conceded, the use of the words attributed to him. 23Whilst the words spoken may be offensive to some members of the community, the appellant was not charged with the use of offensive language. For such a charge the appellant could have been issued with a Court Attendance Notice. It is also relevant that SC Inglis would have had to comply with s 99(3) of LEPRA, would have had to inform the appellant that he was arresting him for offensive language and would have had to comply with s 201 of that Act. 24However, SC Inglis did not arrest him for that reason, nor did he inform the appellant that he was arresting him for an offence pursuant to s 60(1). 25When considering this matter regard must be had to the whole of the evidence, and the context in which this and the other charges were determined. I have had regard to the learned Magistrate's careful consideration of each of the five alleged instances of intimidation relied on by the Crown and his determination in respect of each of those five alleged intimidations. I have also had regard to the learned Magistrate's findings in respect of the credit and demeanour of each of the Crown witnesses and the appellant. Senior Constable Byrnes was clearly a most impressive witness whose evidence was accepted by the learned Magistrate. The learned Magistrate accepted the following evidence from Senior Constable Byrnes' statement (exhibit 8 at the hearing): "3. I remained on the footpath. I watched Senior Constable Inglis and Parish speak with a male for a short time. While they were speaking with this male, who I do not know, another male that was standing next to him began yelling something. I could not really hear what he said at this stage. The male who was yelling was the accused, Joshua Goddard. I saw Senior Constable Inglis grab the accused's arm and move him away from the entrance of the nightclub. While Senior Constable Inglis was doing this I heard the accused yelling, 'I'll smash you dogs'. I began walking towards Senior Constable Inglis and the accused. As I was walking towards them I could see Senior Constable Inglis saying something but could not hear all of it. All I heard at the end was, 'Leave'. 4. The accused continued to yell at Senior Constable Inglis. He was within inches of Senior Constable Inglis' face, he had his chest puffed out, was waving his arms around in an aggressive manner with his fists clenched. I moved within a metre of the two of them. The accused was yelling abuse at Senior Constable Inglis, saying 'I'll smash you fucking dogs', and 'I'll kill you cunts'. Senior Constable Inglis said to the accused 'You are under arrest'. The accused raised his fists and again yelled, 'I'll smash you dogs'. At this point Senior Constable Parish has moved in front of me and drawn her taser at the accused yelling, 'Taser, taser, taser'. The accused turned away from Police and faced the car park to the north of the Vinyl Room. Whilst doing this the accused yelled, 'Shoot me'. 5. I could see the red light from the taser on the accused. I then saw Senior Constable Parish switch off the taser, as the red light went out. Senior Constable Inglis and I moved in and I grabbed hold of the accused's left arm. We tried to restrain the accused by taking him to the ground but he was resisting by thrashing his torso, arms and kicking his legs out. ..." 26The learned Magistrate also held that Constable Parish gave evidence that was clear, cogent and compelling, and essentially corroborated the evidence of Senior Constable Byrnes. On the other hand, the evidence of Probationary Constable Efimov was held to be somewhat unreliable. That finding has marginal relevance for this appeal. 27SC Inglis gave evidence that he arrested Mr Goddard instead of issuing a Court Attendance Notice because the appellant was not moving away from the scene and he was continuing with the offence of threatening and intimidating him. He gave evidence that he thought the appellant was going to assault him, and gave further evidence: "I warned him, 'Threaten me again and you'll be arrested' and he did. He clearly wasn't going to be - wasn't going to leave." 28The learned Magistrate held that SC Inglis copied a substantial portion of the facts sheet (exhibit 2) which had been prepared by Constable Parish, when preparing his statement (exhibit 1). The substance of his evidence was found to be cogent on the relevant matters. 29The learned Magistrate found the appellant's evidence most unreliable, and that he was a most unimpressive witness. Where his evidence conflicted with the evidence of the four Prosecution witnesses, that evidence was rejected. The central finding of the learned Magistrate was that he accepted and found beyond reasonable doubt that SC Inglis was put in fear of harm by each of the five intimidations and that such fear was intended by Mr Goddard who was angry and who had lost his self-control. He rejected the submission that the intimidatory words were merely empty words not intended to intimidate. The learned Magistrate went on to find in respect of the four other particulars of intimidation, the offence had not been proved beyond reasonable doubt. 30In respect of the DVD evidence (exhibits 3 & 5 at the hearing), the learned Magistrate found beyond reasonable doubt that the appellant and SC Inglis were too far away from the camera to hear what was said after each had crossed the northern gutter of South Street outside the nightclub. He also found that they were too far away and too late onto the relevant part of the roadway to observe with precision the actions of the appellant and SC Inglis after they had stopped walking towards the car park. 31The learned Magistrate found that the relevant intimidation occurred shortly before the arrest of the appellant. At that time, he held that SC Inglis was observing and monitoring the appellant, that he was entitled to do so and that he was executing his duty at that time. On that basis, he held that the appellant committed the second intimidation. The learned Magistrate stated that the Court must evaluate Police conduct by reference to the pressure of events and the agony of the moment, not by reference to hindsight, referring to Linley v Rutter [1981] QB128 at [134] per Donaldson LJ, cited in Woodley v Boyd [2001] NSWCA 35 at [37]. He further held as follows: "Reacting on the need to make quick operational decisions as to what action to take, many such decisions by police officers will be 'almost spontaneously reactive to the circumstances presenting themselves to the police officer': State of New South Wales v Nominal Defendant [2009] NSWCA 225 at [46]." 32In finding for those reasons the second intimidation proved beyond reasonable doubt, the learned Magistrate made no express finding that he accepted the evidence of SC Inglis that he felt intimidated at the use of the relevant words, nor did the learned Magistrate make a determination in respect of what was clearly evident from the CCTV footage, that at the time the words were spoken, Mr Goddard was walking away from and SC Inglis was walking towards him. 33Also relevant is the fact that at the time he was arrested, the appellant was not informed that he was being arrested for an offence pursuant to s 60(1) of the Crimes Act. 34In Meller v Low (2000) 48 NSWLR 517, Simpson J considered the definition of "intimidation" as: "9. It is, first, an ordinary English word, readily understood, with no technical, complex or concealed meaning. The Oxford English Dictionary, 2nd Ed 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 on 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." 35In that case, there was no direct evidence that any of the police officers to whom words were directed was in fact intimidated, put in fear or experienced any apprehension as a result of what was said to them. 36In Vella v Director of Public Prosecutions (2005) NSWSC 97, Hall J stated as follows: "[26] Simpson J concluded in Meller 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 officer was put in fear or apprehension, and was forced into or deterred from some action by being put in fear, or was overawed or cowed." 37It was submitted that the actus reas of the offence is constituted by the actual presence of fear or apprehension in the officer, relying on R v Manton [2002] NSWCCA 316 at [12], per Mason P, with whom Simpson and Hulme JJ agreed. The appellant further submitted that the mens rea required for the offence amounted to an intention to instil fear, relying on R v Manton. 38In Manton, which involved a stated case to the Court of Appeal, the Court was not invited to reconsider the construction by Simpson J of "intimidates" as a transitive verb requiring proof of a particular impact upon the Police Officer concerned. The Court of Appeal declined to find that it was necessary to establish that a police officer was overborne to the extent that he or she was influenced to or deterred from some action or otherwise corrupted in the execution of his or her duty. Rather, what was required was for the tribunal of fact to be satisfied on the criminal standard of beyond reasonable doubt that as a result of the offender's intentional conduct, that officer was put in fear or his or her conduct was affected. That has to be determined objectively having regard to the whole of the evidence. 39I am not persuaded beyond reasonable doubt that SC Inglis was intimidated by the language conceded by the appellant for the following reasons: (1)In paragraph 5 of his statement (exhibit 1), after the relevant words were spoken, SC Inglis stated as follows: "5 Fearing the accused may assault me, I stepped towards him to prevent this and at the same time said, 'You've been warned, now you're under arrest'." (2)His evidence in chief did not establish that he was in fear of being assaulted, or that he felt intimidated after the relevant words were spoken, but rather, after other words were spoken just prior to the arrest. (3)SC Inglis knew the appellant and had had previous dealings with him. (4)The CCTV evidence showed SC Inglis walking towards the appellant, and the appellant walking away from him at the relevant time. Inferentially, this was at the time when the relevant words were spoken. (5)SC Inglis admitted that action in cross-examination. (6)To the extent that he stated that he felt intimidated, not only was that in respect of different words, but he did not inform the appellant at the time of his arrest that that was the reason for his arrest. (7)SC Inglis gave no evidence as to the manner in which the relevant words placed him in fear or affected his conduct. His actions do not support a finding that he was intimidated. His evidence that he felt he was going to be assaulted applied not just to the words relevant to the second intimidation, but to other words spoken by the appellant. They are not borne out by his subsequent conduct. (8)Nor does the evidence of SC Byrnes outlined above support a finding of intimidation by the appellant, but rather, that he submitted when SC Parish drew her taser on him. 40As to the question of the intention of the appellant, the offensive words he used were part of a continuum of abuse towards the police officer. They were clearly offensive words, but that was not what he was charged with. I am not satisfied that he had the necessary mens rea, namely, that he intended to intimidate SC Inglis. Nor am I satisfied that the words induced fear in SC Inglis or affected his conduct. In the absence of proof of any effect on SC Inglis, there could be no intimidation - see Vella v Director of Public Prosecutions at [25], supra.
Conclusion 41For the above reasons I uphold the Appeal and dismiss the charge pursuant to s 60(1) against the Appellant. 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: 18 October 2013
R
Joshua Goddard