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.