Australian Capital Territory bearing number SCC 21 of 1992 in which the

Commonwealth Director of Public Prosecutions was the prosecutor on behalf of

Her Majesty The Queen and in which Sean Kenan was accused

(1993) 118 ALR 596

Criminal Law - reference appeal by Commonwealth Director of Public Prosecutions - verdicts of acquittal of two offences of assaulting a member of the Australian Federal Police in the execution of his duty - scope of a member's duty

Australian Federal Police Act 1979, ss. 4, 8(1A), 9, 64(1)

Rice v. Connolly (1966) 2 QB 414

Thomson v. C. [1989] NTSC 23; (1989) 67 NTR 11

Innes v. Weate (1984) 12 A Crim R 45

R. v. Waterfield (1964) 1 QB 164

Donnelly v. Jackman (1971) 1 WLR 562

Collins v. Wilcock (1984) 1 WLR 1172

R. v. Westlie (1971) 2 CCC (2d) 315

Mr I. Bermingham

Solicitor for the Appellant : Commonwealth Director of Public

Prosecutions

Counsel for the Respondent : Mr R. Mildren

Solicitor for the Respondent : Messrs Snedden Hall and Gallop

(1) The question referred, namely:

"Whether his Honour was entitled, as a matter of law,

to hold that the evidence as it then was before the

jury, was not capable of establishing the offences as charged?"

be answered, "No.".

GALLOP, SPENDER AND BURCHETT JJ This is a reference appeal by the Commonwealth Director of Public Prosecutions of a question of law arising at or in connection with the trial of one Sean Kenan in the Supreme Court of the Australian Capital Territory on 18 and 19 March 1993 before Higgins J and a jury. On 18 March 1993 Sean Kenan was arraigned on an indictment charging him with two offences of assaulting Peter Bernard Stege and Alex Wallensky respectively, being members of the Australian Federal Police in the execution of their duty. The offence charged in each count is provided in s.64(1) of the Australian Federal Police Act 1979 as follows:

"64.(1) A person shall not assault, resist, obstruct

or hinder, or aid, incite or assist any other person to

assault, resist, obstruct or hinder, a member in the

execution of his duty.

Penalty:

(a) on conviction on indictment -

imprisonment for 2 years; or

(b) ..."

2. Sean Kenan was unrepresented at his trial and pleaded not guilty to both counts. A jury was empanelled and counsel for the Crown opened the case to the jury. The learned trial judge then invited the accused to address the jury, which he did. The substance of his opening address to the jury was a denial of either assault upon the police officers. He did not in that address advert to any issue of whether the police officers were members of the Australian Federal Police or whether they were acting in the execution of their duty at the relevant time.

3. The prosecution called the two police officers to give evidence and tendered two certificates certifying that at the relevant time they were members of the Australian Federal Police. The prosecution then closed its case.

4. At that point the learned trial judge raised with the prosecution whether there was any evidence of the duties the officers were performing at the time of the alleged assaults. On 18 and 19 March 1993 his Honour received submissions on that question from both the prosecution and the defence. He considered whether, accepting the evidence of the prosecution witnesses that they had been assaulted in the manner described in their evidence, there was sufficient evidence to establish a prima facie case on each count.

5. On 19 March 1993 his Honour held that the evidence was not capable of establishing that at the time of the alleged assaults the officers were acting in the execution of their duty, entered verdicts of acquittal on both counts and discharged the accused.

6. The question of law raised for determination by this Court is:

"Whether his Honour was entitled, as a matter of law, to hold that

the evidence as it then was before the jury, was not capable of

establishing the offences as charged?"

7. It is necessary to examine the evidence in some detail in order to determine the question raised.

8. The first prosecution witness was Sergeant Wallensky. He said that on 26 November 1991 he was working in Career Planning, but on the particular day he was at the National Exhibition Centre, Flemington Road, Mitchell, at the AIDEX exhibition. He said that the nature of his duty on that morning was "for crowd control". He arrived at the Exhibition Centre at about 8.45 am and spoke to a senior police officer, Superintendent Gary Griffith. The witness was then asked what Superintendent Griffith's role was. His Honour intervened, reminded counsel for the Crown that the accused was not aware of the rules of evidence and said that if the accused objected to the question he would rule it inadmissible. Counsel for the Crown then withdrew the question.

9. The witness then gave evidence that subsequent to being given a direction by that superior officer, he, together with Sergeant Stege, who was given a similar direction, went to the carpark, entering from the western end. He then gave evidence about certain events involving a motor car in the carpark.

10. Counsel for the Crown, anticipating some objection, then put the following question to the witness, and at the same time restrained the witness from answering the question until such time as any objection had been raised to the question, as he put it, "in case Mr Kenan or his Honour wanted to say something". The question was: "What was the purpose that you had been directed to in terms of your duty?". As had been anticipated, the following exchange took place:

"HIS HONOUR: How is that admissible?

MR BERMINGHAM: I put it on the basis to clarify precisely the

nature of the duty. That may not be necessary. But I do not put

it as to the truth of what was being said to officers but simply

that they were told to do something in particular and,

accordingly, they were there for the purpose of doing that.

HIS HONOUR: I have a little difficulty understanding how it is

relevant what they were told to do.

MR BERMINGHAM: Well, what it does, it clarifies precisely the

nature of their task. If it causes any problem, I do not press

it, your Honour.

HIS HONOUR: Yes, I think it would be better not to press it.

MR BERMINGHAM: I will withdraw it, thank you."

11. As the question (which was unnecessarily obscure) was withdrawn, his Honour did not have to rule upon it. But, to avoid misunderstanding, we should say that evidence of what the officer was told to do must have been relevant to the very issue with which we are now concerned, and would, of course, have raised no difficulty under the hearsay rule: see the article by Sir David Ferguson (1927) 1 ALJ 195-196, the clarity of which makes it unnecessary for us to elaborate.

12. In cross-examination the accused cross-examined the witness about the fact that no entry had been made in the witness's police notebook about the events of 26 and 27 November 1991. The witness said, in explanation of why no notes were prepared, that at the time he was attending a course at Barton Police College:

"We weren't operational police, everyone was just dragged out of

the classroom situation and taken out to NATEX so I had no police

notebook with me and I dare say all my colleagues wouldn't have

had either".

Is that normal procedure for members of the police force to be in

a situation where there's a possibility of a lot of arrests and no

notes to be taken?---Not for uniformed members, no. And I would

say any other person that was expecting to go on duty. We

certainly weren't expecting to go on duty that day. We were in

the classroom and we were dragged out of the classroom and told,

'You're on your way to AIDEX.' That was the situation."

13. Later in cross-examination there were the following questions and answers:

"What were you doing in the camp?---I'd been instructed to enter

the camp.

For what purpose?---There was intelligence that there may have

been - - -

HIS HONOUR: You weren't asked what was the intelligence,

sergeant; you were asked what your purpose was?---Well, we were

told to go and see if there was any evidence of incendiary

devices, or weapons being manufactured within the car park."

14. A little later the witness was asked whether the two police officers were in crowd control or looking for incendiary devices or both. He responded that they were walking through the carpark looking to see if they could see any incendiary devices or weapons and that they were constantly on crowd control. Later in cross-examination the witness said that after the incident in the carpark the two police officers went back and spoke to Superintendent Gary Griffith.

15. The next witness for the prosecution was Sergeant Stege. He gave similar evidence to that of Sergeant Wallensky, to the effect that on 26 November 1991 he was on duty at the NATEX Exhibition Centre, Flemington Road, and that the nature of his duty was crowd control. He said that with Sergeant Wallensky he left the muster area, which was in the western entrance to the NATEX Centre, crossed the road, followed the track through into the carpark adjacent to the NATEX Centre and walked through the carpark there. They were approximately 100 yards or so from the eastern entrance, after having walked through the area, and a car came up from behind them and pulled in front of them. He gave evidence of the confrontation with the accused. Following that, they returned to the police mustering area at the western entry near the NATEX Centre.

16. In cross-examination he was asked by the accused what his duties were when he was assigned to attend the AIDEX arms sales. His answer was that originally his duties were to take all students out of the college and take them to the NATEX Centre for crowd control duties, and that is what he did initially. When walking through the carpark he looked for incendiary devices, as he had been asked to do by Superintendent Gary Griffith at 9.10 am on 27 November.

17. Later in his evidence, he was asked by his Honour whether he was on crowd control duty as well as looking for incendiary devices. He answered, "No. When I was given other duties to do, your Honour, I would say that I was just looking out for anything they were building in the camp that could hurt people".

18. That was the state of the evidence given on 18 March 1993 when his Honour, on 19 March 1993, entered "a verdict of acquittal in relation to the two counts on the indictment".

19. The Australian Federal Police provides police services for the Australian Capital Territory pursuant to an arrangement made under s.8(1A) of the Australian Federal Police Act 1979. "Police services" is defined in s.4, and "includes services by way of the prevention of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or otherwise". A member of the Australian Federal Police providing police services in the Australian Capital Territory has powers and duties as provided by statute and the common law.

20. Section 9 of the Australian Federal Police Act provides:

"9.(1) In addition to any other powers and duties, a

member has:

(a) the powers and duties that are conferred or imposed on a

constable by or under a law of the Commonwealth; and

(b) when performing functions in the Australian Capital

Territory - the powers and duties conferred or imposed on a

constable or on an officer of police by or under any law

(including the common law) of the Territory; and

..."

21. The common law of the Australian Capital Territory is the common law of Australia save where it has been abrogated by statute or other enactment. No Territory legislation has dealt with the common law as it applies to the powers and duties of a constable or a police officer.

22. The powers and duties of police officers have always been expressed in the most general terms. In Rice v. Connolly (1966) 2 QB 414, in the course of allowing an appeal against a conviction of wilfully obstructing a constable in the execution of his duty, Lord Parker CJ said:

"... that it is part of the obligation and duties of a police

constable to take all steps which appear to him necessary for

keeping the peace, for preventing crime or for protecting property

from criminal injury. There is no exhaustive definition of the

powers and obligations of the police, but they are at least those,

and they would further include the duty to detect crime and to

bring an offender to justice."

23. In Thomson v. C [1989] NTSC 23; (1989) 67 NTR 11 at 13, Angel J, addressing what are the duties of police officers, said that courts have sensibly been loath to clothe the ambit of a police officer's duties in specifics and said that his duties have always been expressed in the most general of terms. He cited Rice v. Connolly and the next case to which we refer, Innes v. Weate (1984) 12 A Crim R 45 at 51 where Lord Parker CJ's observations were endorsed by Cosgrove J, who also referred to the fact that the concept of duty cannot be stated in other than general terms:

"... the range of circumstances in which the duty to act may arise

is too wide, too various, and too difficult to anticipate for the

compilation of an exhaustive list. The other is that the

existence and nature of the duty often depends upon a reasonable

assessment by the constable of any given situation. That

assessment may be examined in the courts and held to be right or

wrong. These difficulties cannot be overcome. It is important

that a constable should have a wide discretion to act swiftly and

decisively; it is equally important that the exercise of that

discretion should be subject to scrutiny and control so that he

should not too easily or officiously clothe himself with the

powers of the State and by so doing affect the rights and duties

of other citizens: cf. for example, s.28 of the Criminal Code."

24. The Commonwealth Director of Public Prosecutions referred to other authorities which demonstrate the need to examine what a police officer was actually doing to determine whether he was in the execution of his duty and decide whether such conduct falls within the general scope of any duty imposed by statute or recognised at common law, or outside that general scope of duty. Reference was made to R. v. Waterfield (1964) 1 QB 164; Donnelly v. Jackman (1971) 1 WLR 562; Collins v. Wilcock (1984) 1 WLR 1172; Coffin v. Smith (1980) Crim App R 221; and the Canadian case of R. v. Westlie (1971) 2 CCC (2d) 315. In the last case, McFarlane JA expressed the view that in order to support a conviction on a charge of obstructing a police officer in the execution of his duty, it is not necessary to show that the officer was at the time of the obstruction engaged in the performance of a specific duty. McFarlane JA cited a number of authorities approved by the Supreme Court of Canada to that effect.

25. The effect of all those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein.

26. It was submitted on behalf of the accused that the learned trial judge was correct in holding that the police officers had ceased executing their duty at the time the alleged assaults took place. The substance of the submission was that there has to be a start and a finish to a duty executed by a police officer, that the evidence at the trial established that the duty of crowd control and looking for incendiary devices or weapons had finished at the time the alleged assault took place and that, although the police officers at that time may be said to have been "on duty", they were not acting "in the execution of their duty".

27. In our judgment there was clearly evidence that at the time of the assaults the two police officers were still inspecting the carpark for incendiary devices and weapons and, at the very least, acting in the execution of a general duty as police officers to preserve the peace and detect crime, as well as a specific duty of returning from inspecting the carpark to report to their superior officer on what they had observed and receive further instructions. They were certainly not performing any unlawful activity that would have taken them out of the ambit of their general and specific duties.

28. Section 64 should not be construed in any narrow or restricted sense, but should be given a broad operation to protect the performance of all police duties, and not just some. The section is general: "in the execution of his duty". That means that the section applies whenever the police officer is doing something which can fairly and reasonably be regarded, given the existing circumstances, as a carrying out of his duty. The generality of the section is further confirmed by the consideration that it attempts to cover a very wide range of possible interferences with the work of the police - assault, resistance, obstruction, or hindrance, or aid incitement or assistance in relation to any of those things. It is not limited to violence of the sort that was in issue in the present case.

29. Accordingly, we determine that the question of law arising in the trial should be answered "No".