REGINA v ORCHER [1999] NSWCCA 356 | Case summary

During the course of the alleged threats Constable Thorn, to use his words "continued to charge him". 5 The alleged offence was under s326(1)(c) of the Act: "326(1) A person who threatens to do or cause … any injury or detriment to any person on account of anything lawfully done by a person: (a) as a witness or juror in any judicial proceeding; or (b) as a judicial officer; or (c) as a public justice official in or in connection with any judicial proceeding, is liable to penal servitude for ten years." 6 Section 311(1) contains the following relevant definitions: "Judicial officer means a person who is, or who alone or with others constitutes, a judicial tribunal and includes a coroner; Judicial proceeding means a proceeding in or before a judicial tribunal in which evidence may be taken on oath; Judicial tribunal means a person (including a coroner and an arbitrator) court or body authorised by law, or by consent of parties, to conduct a hearing for the purpose of the determination of any matter or thing and includes a person, court or body authorised to conduct a committal proceeding; Public justice official means a person who is a public officer employed in any capacity (other than as a judicial officer) for the investigation, detection or prosecution of offenders." 7 The words "public officer" are not defined. 8 It is also pertinent to set out s322: "322 A person who threatens to do or cause, or who does or causes, any injury or detriment to any person: (a) intending to influence a person called or to be called as a witness in any judicial proceeding to give false evidence or withhold true evidence or to not attend as a witness or not produce anything in evidence pursuant to a summons or subpoena; or (b) intending to influence any person (whether or not a particular person) in the person's conduct as a juror in any judicial proceeding or to not attend as a juror in any judicial proceeding, whether he or she has been sworn as a juror or not; or (c) intending to influence any person in the person's conduct as a judicial officer; or (d) intending to influence any person in the person's conduct as a public justice official in or in connection with any judicial proceeding, is liable to penal servitude for 10 years." 9 Rummery DCJ found that a police officer was not a "public justice official" within the definition of that term found in s311. His Honour found it unnecessary to decide the second question argued before him. It had been submitted that, even if the police officer was a public justice official, the conduct that had occurred was not "conduct … in or in connection with any judicial proceeding" as that term is defined in s311. Although his Honour did not make any finding with respect to this second argument, on the application of the parties, he formulated this issue as the second question of law in the stated case now before the Court. 10 The two questions of law which this Court is asked to answer are as follows:

2 Was the action of Constable Paul Thorn, in arresting the appellant and taking him to Bourke Police Station, an act done in or in connection with a judicial proceeding? 11 Section 322 is found in Part 7 of the Crimes Act entitled "Public Justice Offences". It is within Div 3 of that Part which is entitled "Interference with Judicial Officers, Witnesses, Jurors, etc". The new Part 7 was inserted by the Crimes (Public Justice) Amendment Act 1990. It replaced and codified a significant part of the common law. A range of common law offences was abolished by s341 and a number of new offences were inserted. Some were expressed in the same terms as an abolished common law offence, although a statutory definition was included (eg 'perverting the course of justice' in s319 and s312; 'perjury' in s327). 12 The issue that falls for determination in the present case is the proper construction of the words "public justice official" and "in connection with judicial proceedings". 13 In reaching his decision that a police officer was not a "public justice official" his Honour referred to the specific identification of police in other sections of the Crimes Act, eg s58 and s60. This aspect of his Honour's reasoning was supported by the Respondent in this Court. 14 In a context of legislation such as the Crimes Act 1900, which has been amended over many years at many different times, it is unlikely that the expresso unius "rule" of statutory interpretation will be of any assistance. It is not of any assistance in this case, where the Court is concerned with a discrete Part of the Act, inserted at a specific point in time to deal comprehensively with a cognate group of offences. The "rule" may have some utility within the Part, but not between provisions in the Part and others. 15 Both in the judgment below and in the submissions in this Court reliance was placed on the decision of the High Court in R v Rogerson (1991-92) 174 CLR 268 where, for the purposes of the common law offence of perverting the course of justice, police investigations were found not to form part of the course of justice (see at 276 per Mason CJ and 303-304 per McHugh J). This decision is more relevant for the second question, as to what is the proper scope of "judicial proceedings". Nothing in the High Court's decision in Rogerson is, in my opinion, of any assistance for interpreting the statutory definition of "public justice official". 16 In submissions to the Court the Respondent asserted that there was some uncertainty or ambiguity in the definition and accordingly that this Court should approach the construction of the statutory definition in accordance with the well establish principle of statutory construction that an ambiguous statutory provision which affects the liberty of the subject should not be read to restrict liberty. This depends on there being any relevant uncertainty or ambiguity. In my opinion there is no such uncertainty or ambiguity. 17 The words "public justice official" are defined to include a "public officer" who is employed "for the investigation, detection or prosecution of offenders". 18 The conduct so described is quintessentially a range of tasks performed by police officers. In particular the "investigation" and "detection" of offenders and, quite commonly, the "prosecution" of offenders, is performed by such officers. Other persons who may answer the description of a "public officer" also perform functions of this character. However, the overwhelming bulk of conduct related to the system of justice which could be described as either "investigation" or "detection" is done by police officers. 19 Although the word "public officer" is not defined, I do not see that there is any warrant for reading a term of such generality down so as to exclude police officers. The terminology of the definition in s311 refers to a public officer who is "employed in any capacity" for the relevant purposes. The relevant purposes are broadly defined to encompass a range of matters customarily done by police officers and which have a connection to the system of public justice, which the provisions of Part 7 are designed to protect and preserve. 20 The drafter of the legislation would have been well aware that the police undertake a considerable body of prosecutions. The submissions made on behalf of the Respondent would lead to the conclusion that where a prosecution is conducted by some person other than a police officer, that person will be protected from threats by s322(b) and s326(1)(c) of the Crimes Act. However, a police officer conducting the prosecution would not be so protected. 21 Furthermore, if a police officer was not a "public officer" for purposes of either s322 or s324, nor would he or she be such an officer for purposes of s315(2). Section 315(1) creates an offence for a person doing an act intending to hinder the investigation of a serious offence, the discovery of evidence concerning a serious offence, or the apprehension of another person who has committed a serious offence. Subsection (2) then provides: "315(2) For the purposes of subsection (1) a person is to be considered to have committed a serious offence if a public officer engaged in the detection or investigation of offenders suspects on reasonable grounds that a person has committed the offence." 22 If a police officer was not a "public officer" within s315(2), then a significant gap would exist in the legislative scheme, which is plainly not the Parliamentary intention. If a police officer is a "public officer" within s315, then I see no basis for concluding that he or she is not such an officer within s311. 23 In my opinion, the first question should be answered "No". 24 At the time of the alleged threats, the Respondent had been arrested and charged with an offence of malicious damage contrary to s195(a) of the Crimes Act, for which he had earlier been released on bail. 25 He had been arrested a second time and was in the course of being charged with further offences including assault contrary to s61 of the Crimes Act and breach of bail under the Bail Act 1978 (NSW). 26 The Crown focussed on the second arrest as constituting the lawful conduct "on account of which" the alleged threat was uttered. This conduct was, it was submitted, conduct "in connection with" the "judicial proceeding", if it be such, arising from the first arrest and offence charged. This could only be so, it appears to me, if the second arrest were regarded as the determination of conditional liberty on bail with respect to that offence. A more direct link, however, exists with respect to the new offences alleged committed prior to the second arrest. 27 The second question in the stated case turns on the proper construction of the words "in connection with any judicial proceedings". Words of such generality are often read down in the process of interpretation. (See eg R v Young [1999] NSWCCA 166 at [22]-[25], and my Sir Ninian Stephen Lecture "Statutory Interpretation: Identifying the Linguistic Register" to be published in the Newcastle University Law Review accessible at www.lawlink.nsw.gov.au/sc). 28 The phrase "in connection with" is capable of considerable breadth, however it always takes its colour from its surroundings. The full scope of the dictionary definition is rarely, if ever, appropriate. 29 In Customs & Excise Commissioners v Top Ten Promotions Ltd [1969] 1 WLR 1163, the House of Lords had before it a statutory formulation of "activities ancillary thereto or connected therewith". Lord Upjohn said (at 1171): "It is highly dangerous, if not impossible, to attempt to place an accurate definition upon a word in common use; you can look up examples of its many uses if you want to in the Oxford Dictionary but that does not help on definition; in fact it probably only shows that the word normally defies definition. The task of the court in construing statutory language such as that which is before your Lordships is to look at the mischief at which the Act is directed and then, in that light, to consider whether as a matter of commonsense and every day usage the known, proved or admitted or properly inferred facts of the particular case bring the case within the ordinary meaning of the words used by Parliament." 30 Furthermore, as the Full Court of the Federal Court has said: "The words 'in connection with' are words of wide import and the meaning to be attributed to them depends on their context and the purpose of the statute in which they appear." ( Burswood Management Limited v Attorney-General (Cth) (1990) 23 FCR 144 at 146). 31 The Court went on to quote with approval from the judgment of Davies J in Hatfield v Health Insurance Commission (1987) 15 FCR 487 at 491: "Expressions such as 'relating to', 'in relation to', 'in connection with' and 'in respect of' are commonly found in legislation but invariably raise problems of statutory interpretation. They are terms which fluctuate in operation from statute to statute … The terms may have a very wide operation but they do not usually carry the widest possible ambit, for they are subject to the context in which they are used, to the words with which they are associated and to the object or purpose of the statutory provision in which they appear." 32 Finally, the Full Federal Court returned to this matter in Health Insurance Commission v Freeman (1998) 158 ALR 267 at 273 where the Court said: "The words 'in connection with' have been accepted as capable of describing a spectrum of relationships between things, one of which is bound up with or involved in another: See Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 288. However as was pointed out by Sackville J in Taciak v Commission of Australian Federal Police (1995) 59 FCR 285 at 295, the question that remains in a particular case is what kind of relationship will suffice to establish the connection contemplated by the statute. That requires a 'value judgment about the range of the statute': See Pozzolanic (at FCR 289)." 33 The Crown relied on a number of cases which indicated that, with respect to certain areas of the law, an arrest was sufficiently closely connected with proceedings in court to have affected rights and obligations with respect to the matter there under consideration. 34 In Rogerson, Mason CJ concluded: ""But police investigations do not themselves form part of the course of justice. The course of justice begins with the filing or issue of process invoking the jurisdiction of a court or judicial tribunal or the taking of a step that marks the commencement of criminal proceedings." (at 276) 35 However, his Honour went on to refer to the Court's decision in James v Robinson (1963) 109 CLR at 606 in the following terms: "In James v Robinson Kitto, Taylor, Menzies and Owen JJ stated: 'The proposition that proceedings are pending in criminal cases after a person has been arrested and charged is firmly established.'" 36 McHugh J in Rogerson (at 303), also referred to James v Robinson and said: "For the purpose of the law of contempt, it is firmly established 'that proceedings are pending in criminal cases after a person has been arrested and charged' and not before. In James v Robinson , this Court held that two newspaper articles which 'clearly identified Robinson as the gunman' who had murdered two persons were not contempts of court because the articles appeared two days before any complaints against him were sworn. In Williams v The Queen (1986) 161 CLR 278 at 306, which was not a contempt case, Wilson and Dawson JJ said: 'The point at which an arrested person is brought before a justice upon a charge is the point at which the machinery of the law leading to trial is put into operation. It is the point from which the judicial process commences and purely ministerial functions cease.' It follows that for the purpose of the offence of perverting the course of justice, the course of justice does not commence in criminal proceedings until the laying of an information against or the arrest of an accused person." 37 On the basis of these authorities referred to above, an arrest can be described as being 'connected with' a "judicial proceeding", namely the criminal trial for the offence for which the accused was arrested. The issue is whether or not there was a sufficiently close connection for purposes of the particular statutory regime here under consideration, namely s326 of the Crimes Act. 38 A mere investigation would not have a sufficiently close connection with judicial proceedings, on the basis of an analogy with the decision in Rogerson. However, an arrest is more closely connected with a judicial proceedings than is a mere investigation. 39 The Crown submitted that at the time of the second arrest, the course of justice had commenced in the sense that Constable Thorn was doing something "in connection with judicial proceeding", namely the prospective presentation of the Respondent before the Local Court for the offence for which he had been arrested. The second question posed in the stated case identifies the arrest as the relevant act said to be done "in or in connection with a judicial proceeding". 40 In both s322, where similar issues arise, and s326 the words "in or in connection with any judicial proceeding" appear in the context of the creation of offences relating to a person's function as either a witness, a juror or a judicial officer and, relevantly for present purposes, a "public justice official in or in connection with any judicial proceeding". The context indicates that the degree of connection between the conduct of the public justice official and a judicial proceeding should be of a similar quality to the relationship between a witness, a juror and a judicial officer in any such proceedings. This suggests a significant degree of closeness. 41 It is a necessary element of the offence created by s326(1) that a person does something or threatens to do something "on account of" anything lawfully done by a person in the specified role. The purpose of the provision is directed to actions of an accused which have the potential to detrimentally affect the conduct of a judicial proceeding. The same is true of the terminology in s322(d) with respect to a person threatening or causing injury or detriment "intending to influence any person in the person's conduct as a public justice official in or in connection with any judicial proceeding". The provision is not directed to actions which may affect whether or not a person is presented to a court. 42 The scope and purpose of the statute requires a close connection with the conduct of a judicial proceeding. It requires some form of possible impingement on the conduct of a public justice official with respect to the proper conduct of a judicial proceeding. 43 In my opinion threats to an arresting officer do not have the potential to detrimentally affect the conduct of a judicial proceeding. No doubt an arrest ensures that it is possible to commence such a proceeding, but the arresting officer does not, as such, have a role in the proceedings. The arrest is a necessary preliminary step. However, it is not part of the conduct of a judicial proceeding. The conduct in question here may have affected the course of justice by deterring the commencement of judicial proceedings. In my opinion that is not within the scope of the words "in connection with" such proceedings. 44 As Mason CJ said in Rogerson (at 276-277): "… the expression 'the course of justice' is synonymous with the expression 'the administration of justice'. In no relevant sense do the police administer justice, notwithstanding that they investigate crime, initiate prosecutions (where appropriate) and assist in bringing prosecutions." 45 In my opinion, in s326 the words "in connection with judicial proceedings" has a similar scope to the words "the administration of justice" as explained by Mason CJ in this passage. 46 I would answer the second question "No".

REGINA v ORCHER

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