REGINA v MANTON

IN THE COURT OF CRIMINAL APPEAL CCA 60106/2002

MASON P HULME J SIMPSON J

REGINA v Lance John MANTON Judgment 1 MASON P: This is an appeal by case stated by his Honour Judge Twigg QC. 2 The Stated Case is as follows: 1. DETERMINATION On 12 December 2001 the appellant appeared before me on his appeal against conviction on a charge: that he on 26 January 2001 at Ballina in the State of New South Wales did intimidate Constable Goeths, a police officer, whilst the said police officer was executing his duty. Crimes Act s60(1). At the conclusion of the case for the prosecution, following submissions by the solicitor for the appellant, I held that a prima facie case had been made out. 2. FACTS The evidence before me was capable of establishing the following facts: a) Following an incident at a hotel in Ballina the appellant was arrested by the informant and other police and taken to Ballina Police Station. b) Later the appellant was placed in a cell by the informant and Constable Martin and his handcuffs removed; c) As the two constables were leaving or had just left the cell the appellant looked directly at the informant and said "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". Constable Goeths then saw the appellant draw his finger across his throat simulating the cutting of his throat; d) The informant and Constable Martin then immediately left the cell area; e) The informant felt concerned and threatened by the words and actions of the appellant. The evidence before me comprised the oral evidence of the informant, his statement of 3 February 2001 and a transcript of his Local Court evidence of 14 September 2001 together with the statement of Constable Martin of 27 February 2001 and a transcript of his Local Court evidence. Transcript and copies of such evidence are attached to this case. 3. GROUNDS OF DETERMINATION I held that there was a prima facie case upon the ground that a) I rejected the appellant's submission that the offence cannot be committed merely by causing a police officer to experience fear or apprehension. There must be some effect on the police officer whilst he is in the execution of his duty. b) That there had, in any event, been sufficient impact upon the officer's performance of his duty in that he had, following the words of the appellant left the cell area immediately. 4. APPELLANT'S CONTENTIONS a) The offence of intimidation of a police officer under s60(1) requires proof, not merely that the officer was put in fear or apprehension, but that such fear overbore him or her to such an extent that he was influenced to or deterred from some action in the course of his duty. b) There was no evidence of any relevant interference with the officer's duty. QUESTIONS FOR DETERMINATION 1. Is the offence of intimidation of a police officer under s60 of the Crimes Act established by proof of no more than that the acts or words of the accused caused the officer to experience fear or apprehension? 2. Was I on the evidence presented on behalf of the Prosecutor, entitled to determine that there was a case for the appellant to answer?

3 Section 60 of the Crimes Act 1900 provides: Assault of police officers (1) A person who assaults, 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. (2) A person who assaults a police officer while in the execution of the officer's duty, and by the assault occasions actual bodily harm, is liable to imprisonment for 7 years. (3) A person who maliciously by any means: (a) wounds a police officer. or (b) inflicts grievous bodily harm on a police officer, while in the execution of the officer's duty is liable to imprisonment for 12 years. (4) For the purposes of this section, an assault on a police officer is taken to be an assault on the officer while in the execution of the officer's duty even though the officer is not on duty at the time of the assault, if the assault is committed as a consequence of, or in retaliation for, actions undertaken by the officer in the execution of the officer's duty.

4 It may be observed that the offences prescribed in the first three subsections all involve conduct directed at "a police officer while in the execution of the officer's duty". As to this term generally, see R v K (1993) 46 FCR 336. Subsection (4) gives an extended definition of this concept, but only in the context of an assault. 5 In this section, "assault" obviously includes battery as well as the commission of an act which intentionally or recklessly causes the officer to apprehend to immediate and unlawful violence (cf Knight (1988) 35 A Crim R 314). 6 Simpson J considered the meaning of "intimidates" in s60(1) in Meller v Low (2000) 48 NSWLR 517. Her Honour said (at 519 [9]-[10]): With these principles in mind I turn to consider what construction ought be placed on the word "intimidates" as it is used in s60(1). It is, first, an ordinary English word, readily understood, with no technical or 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. 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.

7 Neither party to this appeal invited this Court to reconsider that portion of the decision in Meller that treated "intimidates" as a transitive verb requiring proof of a particular impact upon the officer concerned. I record this without inferring any view on the matter. Questions about the impact of words or conduct upon officers of abnormal sensitivity can therefore be put aside. There is a useful discussion by McPherson JA about the meaning of "intimidate" in Mathews (1992) 64 A Crim R 305 at 307. 8 The Stated Case records that the evidence before the primary judge was capable of establishing that the informant "felt concerned and threatened by the words and actions of the appellant". Such evidence is, of course, capable of acceptance of proof that the officer was, in truth, put in fear (see Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 6). 9 Mr Rosser QC, who represented the appellant, submitted that the Crown case is defective for want of proof of a further element, namely that the officer's fear had some effect on him while he was in the execution of his duty. The appellant further submitted that the "effect" had to be more than the emotional impact of the intimidatory conduct. Accordingly, the evidence that the informant left the cell area immediately after hearing and observing the intimidatory conduct was not even sufficient when added to the accepted evidence that the officer was put in genuine fear by the appellants words and actions. At one stage it was suggested that there had to be evidence that the officer had been diverted or corrupted from exercising his duty, although (when pressed) I did not understand the appellant's case to rest entirely upon such a position. 10 The appellant accepted that this approach to s60(1) was at variance with that adopted by Simpson J in Meller who said that: "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 (emphasis added). 11 The appellant sought to make good these submissions by raising concerns about the open-ended nature of the offence unless confined in some such way. It was accepted that the interpretation stemming from Meller requires the Court to be satisfied that the offending conduct had an intimidatory impact upon the officer if the prosecution is based upon that portion of subs (1). Nevertheless, the complaint based upon the broad and indeterminate nature of the offence was maintained. 12 In my view, the appellant's argument should be rejected because it seeks in effect to add words to the subsection, being words that change the natural meaning of the language used. Such an amendment of the legislative text may not be undertaken lightly (see R v Young (1999) 46 NSWLR 681 at 686-91 for a review of the cases). There is no warrant for doing so in the present case. 13 A further branch of the argument involved reliance upon subs (4) which, as indicated, provides an extended definition of the concept of being in the execution of duty, but only for "an assault on a police officer". Implicit in that argument was an unstated assumption which should be noted, without the necessity of it being resolved in this appeal. The implicit suggestion is that conduct that constitutes stalking, harassing, intimidating and, presumably. maliciously wounding or inflicting grievous bodily harm (cf subs (3)) falls outside subs (4) even if that conduct would otherwise constitute an assault. I venture to doubt the correctness of that assumption, although it is a matter upon which Parliament might perhaps clarify its intention. 14 I return to the argument which the appellant sought to erect upon subs (4). It was to the effect that conduct involving stalking, harassing or intimidation has to be directed at a police officer while in the execution of the officer's duty as that expression is generally known (ie without the extended scope provided by subs (4)). Let that be granted. It does not change the expressed operation of subs (1), nor does it add into that subsection words such as "causing the officer to be deflected from the execution of his or her duty". 15 One example raised in argument was that of the person who merely said "You will regret this, officer" in a context free from any intent to frighten. I would have thought that this fell outside s60(1) for two reasons namely absence of mens rea and difficulty of proof that the officer was actually put in fear. 16 Likewise with the person who told an arresting officer of his intent to report the officer to a body such as the Independent Commission Against Corruption. Although such an intimidation might well cause a sense of fear in some circumstances, it would not be the type of fear (ie for personal safety) contemplated by the dictionary definitions of "intimidation" adopted by Simpson J in Meller.

Postscript 17 Before a person exercises any of the functions of a police officer, he or she must take the prescribed oath or make the prescribed affirmation of office as a police officer (Police Service Act 1990, s13). The Police Service Regulation 2000, cl 8 provides the substance of the oath as follows: I, do swear that I will well and truly serve our Sovereign Lady the Queen as a police officer without favour or affection, malice or ill-will until l am legally discharged, that I will cause Her Majesty's peace to be kept and preserved, and that I will prevent to the best of my power all offences against that peace, and that while I continue to be a police officer I will to the best of my skill and knowledge discharge all my duties faithfully according to law. So help me God.

18 An oath in this form can be traced back to at least 1852 in this State (see An Act for the Regulation of the Police Force, 16 Vict 33, s8). A virtually identical oath was required by the Special Constables Act 1831 (Imp) (1 & 2 Will IV 41). 19 The oath bears certain similarities to the judicial oath, although (of present relevance) it speaks of serving the monarch "without favour or affection, malice or ill-will", thereby omitting the reference to "fear" found in the traditional judicial oath. Be that as it may, the absence of a reference to "fear" in the police officer's oath or affirmation does not mean that officers are immune from fear. Parliament has seen fit to prescribe an offence one of whose integers is the intimidation of a police officer while in the execution of the officer's duty. If the tribunal of fact is satisfied on the criminal standard that the officer was put in fear by the offender's intentional conduct, then it is not necessary to establish that the 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 duty. 20 The questions for determination should be answered: 1. Yes 2. Yes. 21 HULME J: I agree with Mason P. 22 SIMPSON J: I agree with Mason P. **********

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