Semaan v Poidevin

oadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536 Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381 Re K (1993) 46 FCR 336 Williams v DPP [2011] NSWSC 1085 Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd [1978] HCA 42; (1978) 139 CLR 410 Texts Cited: Wigmore, Evidence in Trials at Common Law Section 2 (Peter Tillers ed. 1983) Category: Principal judgment Parties: Richard Semaan (Plaintiff) Sergeant Damien Poidevin (Defendant) Representation: Counsel: M Dennis (Plaintiff) N Adams SC (Defendant) Solicitors: Nyman Gibson Stewart (Plaintiff) Crown Solicitor's Office (Defendant) File Number(s): 2012/149182 Publication restriction: None Decision under appeal Jurisdiction: 9109 Date of Decision: 2012-04-04 00:00:00 Before: Connell LCM

Judgment 1A woman walks into a bar. She is a police officer, but she is not in uniform. She walks up to the bar and asks another, whose face the officer recognises, for some ecstasy tablets. The bar attendant, overhearing the conversation, and incensed, says: "I will not have drug deals in my bar. Both of you get out and stay out." The officer was in the process of a "sting" (a controlled operation), the aim of which was the arrest of the drug dealer. The officer was acting in the execution of her duty. Is the bar attendant guilty of the offence of hindering a police officer in execution of her duty? Does it make a difference if the officer were in uniform? On one view of High Court authority, the attendant would be guilty and knowledge that the person is a police officer is irrelevant (R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381). 2In this appeal against conviction in the Local Court, Mr Semaan, the appellant, who was not under arrest at the time, was told to hand over his mobile phone to a police officer. He refused. The officer grabbed for it and Mr Semaan resisted. He was found guilty of resisting a police officer in the execution of his duty, because the officer was, it was found, so acting. 3The officer was fearful that Mr Semaan would call friends, who would arrive at the scene and breach public peace. There is no finding that Mr Semaan was ever relevantly speaking on his phone or sending a text at the time. Mr Semaan was not, at the relevant time, told of the officer's fear or the facts upon which the State of NSW now relies (and in the Local Court relied) to support the conviction. 4The issues in the appeal and in the opening hypothetical are the same. The State of New South Wales, relying on High Court authority (R v Reynhoudt, supra) submits that knowledge of the status of the "victim" as a police officer or that the conduct is in execution of duties is unnecessary for a conviction under s 546C of the Crimes Act 1900, for hindering or resisting a police officer in the execution of his or her duty. Further, the State of NSW submits that the officer was acting lawfully in the execution of his duty. 5Robert Semaan appeals his conviction by the Local Court on 4 April 2012 for resisting a police officer in the execution of his duty in contravention of s 546C of the Crimes Act. Mr Semaan seeks that the conviction be set aside, and other ancillary orders.

Nature of the appeal 6Mr Semaan appeals pursuant to the provisions of s 52 of the Crimes (Appeal and Review) Act 2001, which provides for an appeal as of right to the Court from a conviction or sentence "but only on a ground that involves a question of law alone". 7In different contexts the phrase "a question of law" will have different meanings or results and the phrase "a question of law alone" will involve different restrictions: Attorney General for the State of New South Wales v X [2000] NSWCA 199; (2000) 49 NSWLR 653; Kostas v HIA Insurance Services Pty Ltd [2010] HCA 32; (2010) 241 CLR 390; Collector of Customs v Agfa-Gevaert Ltd [1996] HCA 36; (1996) 186 CLR 389; Krishna v DPP (NSW) [2007] NSWCCA 318. 8Notwithstanding the slightly different context, I adopt the view of "question of law alone" that I took in Krishna, supra, (with which view Basten JA and Latham J agreed) and otherwise adopt the taxonomy in Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280 (cited with approval in Agfa-Gevaert, supra) and Australian Gaslight Co v Valuer-General (1940) 40 SR (NSW) 126.

Facts 9The judgment below, delivered ex tempore, summarised the evidence and came to conclusions of fact (Transcript, 4 April 2012, p 36, line 40 - p 37, line 4 and p 37, line 10 - p 38, line 34). 10The submissions filed on behalf of Mr Semaan summarised the facts relatively uncontentiously. 11On 14 September 2011, police were contacted in relation to a domestic incident at a property at Queens Street, Auburn. Next door to the unit complex was another unit complex in Marion Street, Auburn. 12The unit complex at Marion Street comprises inclosed lands for the purpose of the Inclosed Lands Protection Act 1901. 13One of the officers in attendance, Constable Lim, after being told certain things, went to the property next door in Marion Street. He could hear voices and he saw four males. He and his companions, Constable Singh and Senior Constable Hockey, went to the premises next door. Two of the observed males left to the rear of the unit block and a third male went to the front of the unit block with Mr Semaan (who was the fourth of the males observed). 14Constables Singh and Lim pursued the third male out of the unit block and back on to the street. 15Leading Senior Constable Ward, a fourth police officer, went to the rear of the subject premises, where he found a "bong", which was warm and appeared to have been recently used. There was cannabis residue in the bowl. The third male was arrested. Later he was released and proceeded against by service of a Court Attendance Notice. Senior Constable Hockey spoke to Mr Semaan and asked him: "What were you doing in the block of apartments?" 16Senior Constable Hockey also asked Mr Semaan to produce identification, which Mr Semaan did. Senior Constable Ward and Sergeant Poidevin then approached Mr Semaan. 17Senior Constable Hockey then walked away from the plaintiff and commenced to use the police radio to conduct checks on Mr Semaan. As Senior Constable Hockey walked away, Mr Semaan shouted: "What the fuck's happening, I want to go home." Sergeant Poidevin responded: "Wait here until we have finished doing our checks, but it looks like at this stage you will be getting done for trespass." Mr Semaan responded: "Oh come on get fucked, we will see about this, you wait and see, you're fucked now." 18Mr Semaan then reached for his phone and began dialling. Sergeant Poidevin said words to the effect of: "No mate, get off the phone!" 19Sergeant Poidevin's request or direction to cease using the phone was given while the Sergeant was attempting to reach Mr Semaan's phone. Mr Semaan turned his body in a way that moved the phone away from Sergeant Poidevin and placed his forearm against Sergeant Poidevin's chest. 20Sergeant Poidevin held Mr Semaan's upper body and Mr Semaan resisted Sergeant Poidevin. This resulted in a struggle where both Mr Semaan and Sergeant Poidevin fell to the ground. Mr Semaan was injured and an ambulance was called. Sergeant Poidevin was also injured, but there is no allegation of assault. It seems irrelevant for present purposes, but, as best as can be ascertained from the evidence, Mr Semaan had broken or seriously injured his ankle or leg. 21Mr Semaan continued to struggle and was handcuffed, but the handcuffs were released when he ceased struggling. He was not arrested. 22The learned Magistrate also accepted evidence from Senior Constable Ward to the effect that Sergeant Poidevin requested Mr Semaan twice to get off the phone and also requested Mr Semaan, in relation to the phone, to "give it to me now". Senior Constable Ward denied that Mr Semaan was on the phone during the time that Senior Constable Hockey was speaking to him. 23After the third male was released, the third male used his phone and shortly afterwards five males attended the location. 24Sergeant Poidevin's evidence was accepted by the learned Magistrate, at least insofar as he told Mr Semaan not to use the phone, as "based on his experience there was an issue of officer safety". The learned Magistrate determined that he accepted that evidence and "it was founded on a proper concern for his and other officers' safety. Police officers have to operate in the real world and Sergeant Poidevin was entitled to rely on his experience to make those judgments." 25Sergeant Poidevin in his statement (page 74 of the Affidavit of Chaddy Mardini of 30 July 2012) described Mr Semaan as "agitated and ... shouting profanities ...drug affected", the terms of which description are remarkably similar to the description by other officers: see for example page 84 at [5]. 26The third male did use his phone. Five males described by police as of "Middle Eastern" appearance attended. They were told to move on and did. There was, in fact, no breach of the peace. The third male was not, it seems, directed not to use his mobile phone. The relevance of their ethnic appearance is unclear, unless it, quite improperly, formed a criterion on which the reasonable apprehension of the police officer was based. 27The police charged Mr Semaan with two offences: (i) Enter inclosed lands, contrary to s 4 of the Inclosed Lands Protection Act 1901; and (ii) Resist police in execution of duty, contrary to s 546C of the Crimes Act 1900. 28The learned Magistrate dismissed the charge of entering inclosed lands and convicted Mr Semaan for the resist police in execution of duty.

Submissions and Legislation 29Essentially the submissions of Mr Semaan raise one ground, of which there are a number of particulars. Mr Semaan submits that the action of the attempt to seize Mr Semaan's telephone was unlawful. As a consequence of that unlawfulness, the attempted seizure of the phone was not an action in the execution of the duty of a police officer and, therefore, as a matter of law, the resistance was not to a police officer in the execution of his duty and, also as a matter of law, at least one element of the offence under s 546C of the Crimes Act has not been proved. 30No serious attempt was made to identify at the outset precisely the question of law, which alone forms the basis of the appeal, but, during the course of submissions, it became clear that the issues between the parties were the lawfulness of the attempt to seize the telephone either pursuant to the terms of the Law Enforcement (Powers and Responsibilities) Act 2002 (hereinafter, "LEPRA") or otherwise and an error of law by the Magistrate in the determination of the elements of the offence for which Mr Semaan was found guilty. 31Mr Semaan was not under arrest at the time that police sought to seize his telephone. The learned Magistrate made no finding as to whether Mr Semaan was talking on the phone at the time that the request was made of him to hand over the phone. There is no suggestion that, as a matter of fact, Mr Semaan was dialling persons to come to his assistance. For all we know he could have been telephoning his parents, his lawyer or his wife, partner or girlfriend. Mr Semaan was almost 29 at the time of the incident. He was described as agitated and drug affected. 32The submissions of both Mr Semaan and the Crown Solicitor's Office (representing Sergeant Poidevin) concentrated on the lawfulness of the conduct of Sergeant Poidevin in seizing (or attempting to seize) the telephone. Each party submitted that the question of whether the defendant, Sergeant Poidevin, was acting lawfully would answer the question in the proceedings, being, whether he was acting "in the execution of his duty", for the purpose of s 546C of the Crimes Act: see Re K (1993) 46 FCR 336; Williams v DPP [2011] NSWSC 1085. 33It is appropriate to recite the terms of the Crimes Act: "546C Resisting etc police Any person who resists or hinders or incites any person to assault, resist or hinder a police officer in the execution of his or her duty shall be liable on conviction before the Local Court to imprisonment for 12 months or to a fine of 10 penalty units, or both." 34It is also necessary, in order to understand the submissions of the parties, to recite the terms of s 201 of LEPRA. It is in the following terms: "201 Supplying police officer's details and giving warnings (1) A police officer must provide the person subject to the exercise of a power referred to in subsection (3) with the following: (a) evidence that the police officer is a police officer (unless the police officer is in uniform), (b) the name of the police officer and his or her place of duty, (c) the reason for the exercise of the power. (2) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (other than subsection (3) (g), (i) or (j)): (a) if it is practicable to do so, before or at the time of exercising the power, or (b) if it is not practicable to do so before or at that time, as soon as is reasonably practicable after exercising the power. (2A) A police officer must comply with subsection (1) in relation to a power referred to in subsection (3) (g), (i) or (j) before exercising the power, except as otherwise provided by subsection (2B). (2B) If a police officer is exercising a power to give a direction to a person (as referred to in subsection (3) (i)) by giving the direction to a group of 2 or more persons, the police officer must comply with subsection (1) in relation to the power: (a) if it is practicable to do so, before or at the time of exercising the power, or (b) if it is not practicable to do so, as soon as is reasonably practicable after exercising the power. (2C) If a police officer exercises a power that involves the making of a request or direction that a person is required to comply with by law, the police officer must, as soon as is reasonably practicable after making the request or direction, provide the person the subject of the request or direction with: (a) a warning that the person is required by law to comply with the request or direction (unless the person has already complied or is in the process of complying), and (b) if the person does not comply with the request or direction after being given that warning, and the police officer believes that the failure to comply by the person is an offence, a warning that the failure to comply with the request or direction is an offence. (2D) In addition, if a police officer exercises a power that involves the making of a direction under section 198 on the grounds that a person is intoxicated and disorderly in a public place, the police officer must provide the person the subject of the direction with a warning that it is an offence to be intoxicated and disorderly in that or any other public place at any time within 6 hours after the direction is given. Note: See section 9 of the Summary Offences Act 1988 . (3) This section applies to the exercise of the following powers (whether or not conferred by or under this Act): (a) a power to search or arrest a person, (b) a power to search a vehicle, vessel or aircraft, (c) a power to enter premises (not being a public place), (d) a power to search premises (not being a public place), (e) a power to seize any property, (f) a power to stop or detain a person (other than a power to detain a person under Part 16) or a vehicle, vessel or aircraft, (g) a power to request a person to disclose his or her identity or the identity of another person (including a power to require the removal of a face covering for identification purposes), (h) a power to establish a crime scene at premises (not being a public place), (i) a power to give a direction to a person, (j) a power under section 21A to request a person to open his or her mouth or shake or move his or her hair, (k) a power under section 26 to request a person to submit to a frisk search or to produce a dangerous implement or metallic object. (3AA) Despite subsection (3), this section does not apply to the exercise of a power to enter premises or to search premises or a vehicle, vessel or aircraft that is conferred by a covert search warrant. (3A) If a police officer is exercising more than one power to which this section applies on a single occasion, and in relation to the same person, the police officer is required to comply with subsection (1) (a) and (b) in relation to that person only once on that occasion. (4) If 2 or more police officers are exercising a power to which this section applies, only one officer present is required to comply with this section. (5) However, if a person asks another police officer present for information as to the name of the police officer and his or her place of duty, the police officer must give to the person the information requested. (6) This section does not apply to the exercise of a power that is conferred by an Act or regulation specified in Schedule 1. Note: See section 5 (1), which provides that this Act does not limit the functions of a police officer under an Act or regulation specified in Schedule 1." 35In seizing the phone or attempting so to do, Sergeant Poidevin was exercising the power to which s 201(3)(e) of LEPRA refers. 36The defendant submits that the provisions of s 21 of LEPRA are also relevant. Section 21 of LEPRA provides that a police officer may, without warrant, search and detain a person and anything in the possession or under the control of a person, if the police officer suspects, on reasonable grounds: that the person is in possession of stolen goods or otherwise unlawfully obtained goods; that the person is in possession of anything intended to be used in connection with the commission of a relevant offence; that the person has in his possession, in a public place, a dangerous article that is or was used in connection with the commission of a relevant offence, or a prohibited drug. On the evidence before the Magistrate, and before the Court, and on the findings of the learned Magistrate, none of those circumstances arise. In my view, s 21 of LEPRA has no relevance to the current situation. 37The defendant submits that Mr Semaan was not under arrest, lawfully or otherwise, but that Sergeant Poidevin, pursuant to the terms of s 201 of LEPRA, particularly having regard to the power in s 201(3)(e) or (f), was acting lawfully and in execution of his duties. 38The defendant submits that the learned Magistrate accepted Sergeant Poidevin's evidence that he sought to grab Mr Semaan's phone because he did not want him making phone calls and because he had been involved in incidents in Auburn where people (not Mr Semaan) had contacted a number of other persons who have then attended the location within minutes and created public order incidents. 39As a consequence, the defendant submits the seizure of the phone was in execution of Sergeant Poidevin's duty. 40The defendant relies upon the statement of Hodgson J in Albert v Lavin [1982] AC 546, at 553, where his Honour (with whom the other members of the Court concurred) said: "It is however clear law that a police officer, reasonably believing that a breach of the peace is about to take place, is entitled to take such steps as are necessary to prevent it, including the reasonable use of force .... If those steps include physical restraint of someone then that restraint is not an unlawful detention but a reasonable use of force. It is a question of fact and degree when a restraint has continued for so long that there must be either a release or an arrest, but on the facts found in this case it seems to me to be clear that that point had not been reached. Obviously where a constable is restraining someone to prevent a breach of the peace he must release (or arrest) him as soon as the restrained person no longer presents a danger to the peace. In this case the justices found that the defendant continued in breach of the peace up to the time when he assaulted the constable." 41Justice Brennan in Gollan v Nugent [1988] HCA 59; (1988) 166 CLR 18 cited the foregoing with approval and said: "There are some situations where possession is unlawful because of the possessor's intention and where force may be used to deprive him temporarily of the thing possessed. A knife may be taken by force from the grasp of an intending murderer, though it is the knife he uses lawfully to carve the family dinner. But he must have it back once the murderous intention passes or is impossible to effect. Force may be used in such a case because there is a common law authority in any person to take reasonable steps to restrain a breach of the peace which he reasonably apprehends is about to be committed in his presence (Albert v. Lavin (1982) AC 546, at p 565), and the person who exercises that authority is not exposed to a civil liability in trespass or detinue because he takes possession of the weapon being used in breaching the peace. There are other instances where an intention to use a thing in the commission of crime may affect the extent of the liability of one who takes or keeps the thing. Thus, if one person who is drunk goes to drive his car and a second person takes the key out of the ignition, the second person incurs no liability in trespass for damages for depriving the driver temporarily of the key. Nor is he liable in detinue for damages for refusing the driver's immediate demand to return the key, but he would be liable in detinue if he did not return the key when the driver had sobered up or directed delivery of the key to a third person. These are cases where the act on which the plaintiff founds his claim for relief is an offence or an intended offence and the general principle precludes the grant of relief in respect of the criminal use or proposed use of the thing possessed." (Gollan at 32, per Brennan J.) 42The force of these observations is not affected by his Honour's dissent in the result in Gollan, supra. The majority judgment (Deane, Dawson, Toohey and Gaudron JJ), to similar effect, said: "Rights arising from ownership would not prevail against those powers but they only come into being when there is an immediate threat of a physical kind which is lacking in this case. See Albert v. Lavin (1982) AC 546." (Gollan at 45.) 43The defendant submits that a police officer acts in the execution of his or her duty from the moment that the police officer embarks upon a lawful task connected to his or her functions as a police officer and continues to act in the execution of that duty for as long as the police officer is engaged in pursuing the task and until it is completed: Re K, supra, at 340-341 and Director of Public Prosecutions (NSW) v Gribble (2004) 151 A Crim R 256 at 263. This submission correctly states the law, but does not deal with the issue of what is "a lawful task". 44The submission of the defendant was that Sergeant Poidevin was attempting to seize Mr Semaan's phone as part of his duty to protect the public peace and ensure the safety of the police officers present. Mr Semaan resisted that attempt and, as a consequence, resisted the police officer in the execution of his duty. 45The defendant raises two submissions on the operation of s 201 of LEPRA. First, it is said that the immediacy of the situation meant that it was not practicable for the police officer to comply with s 201(1) of LEPRA before or at the time of the attempt to exercise the power to seize. Since no action taken by Sergeant Poidevin was outside the ambit of his duty such that he ceased to be acting in its execution, Mr Semaan has resisted the police officer in the execution of his duty. 46Secondly, the defendant submits (by subsequent written submissions filed by leave of the Court on 31 January 2013), that s 201(2) of LEPRA requires that the information must be provided "if it is practicable to do so, before or at the time of exercising the power". 47The defendant reiterates the impracticability of providing the information at the time or before its exercise. Whether or not the information was thereafter provided (see s 201(2)(b)) is, according to its submission, irrelevant. This is because at the time that the resistance occurred, the actions of Sergeant Poidevin were not unlawful, by virtue of the provisions of s 201 of LEPRA. Those actions were not unlawful, because the information required by s 201(1) of LEPRA can be provided as soon as is reasonably practicable after the exercise of the power and, therefore, a failure to advise Mr Semaan of the reason for the attempted seizure after the offence of resisting was complete could not affect the lawfulness of Sergeant Poidevin's actions at the time of the offence. 48As is clear from the foregoing, essentially the plaintiff, Mr Semaan, submits that the seizure of the telephone was unlawful, because s 201 of LEPRA requires, for a lawful seizure, certain information to be provided. It was not. Even if it were impracticable to provide it before the time of exercising the power, in order for the seizure to be lawful, the information is required to be provided as soon as is reasonably practicable after the exercise of the power, and it was not. As a consequence the actions of Sergeant Poidevin were unlawful and Mr Semaan was not resisting an officer in the execution of his duty. 49In its supplementary written submission, filed by leave on 6 March 2013, the plaintiff, Mr Semaan, emphasises the mandatory terms of s 201 of LEPRA and the principle of construction that all words should be given meaning and relies on the judgment of McHugh J in Krakouer v R [1998] HCA 43; (1998) 194 CLR 202 at [62]-[63] and Beckwith v R [1976] HCA 55; (1976) 135 CLR 569 at 574, per Gibbs J (see also Leon Fink Holdings Pty Ltd v Australian Film Commission [1979] HCA 26; (1979) 141 CLR 672 at 679; Project Blue Sky Inc & Ors v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at 382 (per McHugh, Gummow, Kirby and Hayne JJ). 50Further to the foregoing, the plaintiff, Mr Semaan, submitted that any arrest of Mr Semaan was unlawful. This is no longer a relevant consideration given the concession and/or acknowledgment that no arrest had been effected. 51Lastly, while acknowledging that the common law permits (or may permit) police to seize property to prevent an imminent breach of the peace, Mr Semaan submits that that power was still subject to the requirement that police make a lawful announcement as to the exercise of that power and was still dependent on a reasonable apprehension of an imminent breach of the peace or a communication to Mr Semaan of the purpose of the seizure.

Consideration 52I return to the hypothetical set of circumstances outlined in the opening paragraph of these reasons for judgment. The difficulty in this matter derives from that which is said to flow from the judgment of the majority of the High Court in R v Reynhoudt, supra. In that case, Taylor, Menzies and Owen JJ held that, in the offence of assaulting a police officer in the execution of his duty, it was sufficient to prove intent in relation to the assault only and it was not necessary to show intent in relation to, or the accused's knowledge of, the other aspects of the offence, namely, that the person assaulted was a police officer or that he was acting in the execution of his duty. 53Thus, on the majority view in Reynhoudt, supra, it is irrelevant whether the person charged with the offence knows that the person assaulted is a police officer or knows that the officer is engaged in conduct in execution of his or her duties (or, as it has sometimes been expressed since, knows the facts that would give rise to a conclusion that the officer was engaged in the execution of his or her duties). 54With great respect to the majority in Reynhoudt, the minority judgment of Dixon CJ is extremely persuasive, particularly in light of the reasons for judgment in He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523. Nevertheless, I am bound by the majority judgment in Reynhoudt, unless it has been overturned: see Leonard v Morris (1975) 10 SASR 528 at 530 (per Bray CJ), at 535 (per Walters, J) and at 540 (per Wells J). I respectfully adopt the comment of Bray CJ at 530.4 as to the views of the minority in Reynhoudt. 55While Reynhoudt deals with the offence of assault, the wording of the offence was relevantly aimed at a person who "assaults, resists or wilfully obstructs any member of the police force in the due execution of his duty" and, as a consequence, the analysis of the majority is difficult to escape, even in the different circumstances of resisting or wilfully obstructing. So much was the effect of the observations in Leonard v Morris, supra. 56The majority judgment in Reynhoudt has been applied for some significant period. As a consequence, a court would be even more reluctant to depart from a long-standing interpretation of the provision. 57While the proposition that the Court will continue to apply a construction in circumstances where the provision has been re-enacted has been the subject of much criticism and significant qualification, where, as here, the construction of the section is of long-standing and the section has, in very similar terms, been re-enacted, it is difficult to escape the assumption that the legislature intended to continue the interpretation already determined: see Geelong Harbour Trust Commissioners v Gibbs Bright & Co [1974] UKPCHCA 1; (1974) 129 CLR 576; Bradley v Commonwealth [1973] HCA 34; (1973) 128 CLR 557 at 572; Public Service Association of New South Wales v Industrial Commission of New South Wales (1985) 1 NSWLR 627 at 640; Chappell v A Ross & Sons Pty Ltd [1969] VR 376 at 383, per Winneke CJ and Smith J. 58In Farrell v Alexander [1977] AC 59 at 91, Lord Simon of Glaisdale said: "Mere repetition of language which has been the subject of previous judicial interpretation is entirely neutral in this respect - or at most implies merely the truism that the language has been the subject of judicial interpretation for whatever (and it may be much or little) that is worth." 59However, the majority view in Reynhoudt has been applied on a number of occasions and, even if it were not, is binding on this Court. In Jones v Daire (1983) 32 SASR 369, Zelling J applied the same approach and took a broad view of the continuation of duties being executed by a police officer; and see the judgment of Full Court in Leonard v Morris, supra. A similar approach was taken by the Full Court of the Federal Court in Re K, in reference to s 64(1) of the Australian Federal Police Act 1979 (Cth). 60More recently Heenan J of the Supreme Court of Western Australia applied the majority reasoning in Reynhoudt in a judgment of that court in Hayward-Jackson v Mason-Walshaw [2012] WASC 107, in which his Honour said: "[18] In many, if not most, cases involving a prosecution for this offence, as in the present case, a crucial issue is likely to be whether or not the willed act or omission charged against the accused person did constitute an obstruction of the public officer in the performance of his or her functions within the meaning of the section - contrast the views of Taylor, Menzies and Owen JJ (majority) and Dixon CJ and Kitto J (dissenting) in R v Reynhoudt [1962] HCA 23; (1962) 107 CLR 381 where, as one of the majority, Menzies J, observed, at 403: Having regard, therefore, to the words of s 40 [of the Crimes Act 1958 (Vic)], to the object of the section and the longstanding acceptance of the view that to make a case thereunder it is not necessary for the prosecution to prove more than the facts that the person assaulted or resisted or wilfully obstructed by the accused was a police officer acting in the due execution of his duty, I consider that the decision in Reg v Galvin [No 1] [1961] VR 733 was correctly decided ... [19] As opposed to the view of the minority expressed by Dixon CJ at 386 387: My conclusion is that to be guilty of the offence of assaulting a member of the police force in the due execution of his duty the intent of the supposed offender must go to all the ingredients of the offence. I do not of course use the word 'intention' to refer to the consequences of an act or the desire that a result shall ensue but simply to the commission of what I regard as a compound offence. The offence is an aggravated assault, aggravated by the fact that the person assaulted is a policeman and is in the execution of his duty. That is a compound offence and I think that the guilty mind should go to the elements of which it is composed. [20] There are many authorities dealing with what constitutes 'obstruction' under comparable legislation. Several of these are collected in Carter's Criminal Law of Queensland (18th ed) [340.30] where the learned authors observe: As to what amounts to obstruction, see Bastable v Little [1907] 1 KB 59; Betts v Stevens [1910] 1 KB 1 (giving warning); Pankhurst v Jarvis (1910) 22 Cox CC 228; Despard v Wilcox (1910) 22 Cox CC 258 (refusal to disperse); Hinchcliffe v Sheldon [1955] 3 All ER 406 where it was held that 'to obstruct' means to do any act which makes it more difficult for the police to carry out their duty. See also Rice v Connolly [1966] 1 QB 414; Green v Moore [1982] 1 QB 144; Hills v Ellis [1983] 1 QB 681; Lewis v Cox [1985] 1 QB 509. In Carmichael v McGowan [1967] WAR 11 it was held that the ordinary meaning of the word 'obstruct' includes hinder, impede, retard and delay and the offence is not confined to physical obstruction. Rice v Connolly was explained and distinguished in Ingleton v Dibble [1972] 1 QB 480; where it was held that although a refusal to act could not amount to obstruction unless the accused person was under a legal obligation to act in the manner requested by the police officer, there was not a ground for saying that where the obstruction consisted of a positive act it must be unlawful independently of its operation as an obstruction of a police officer." 61Understandably, much of the authority tends to elide the elements that prove hindrance or obstruction with the requirement that the victim is a police officer executing duties. In some respects, the authorities subsequent to Reynhoudt have, by the manner in which they have treated the term hindrance or obstruction (depending upon the legislative context), applied the approach of the minority in Reynhoudt, rather than the majority. 62If hindrance or obstruction were to mean any act which makes it more difficult to do that which is sought to be done (and that the person is a police officer executing their duty is an irrelevant consideration in so determining), then the interference by the bar attendant with the purchase of ecstasy tablets, in the opening hypothetical circumstance, would amount to an obstruction or hindrance. 63Because, as the majority in Reynhoudt explains, the Crown is not required to prove knowledge of the status of the victim as a police officer or knowledge of the facts giving rise to the conduct being part of the execution of duties of a police officer, the bar attendant, in that hypothetical, would be guilty of an offence. If that were the result, it would be a very strange one. The fact, if it were so, that a prosecution would be unlikely in such circumstances does not assist a proper interpretation of the provision. 64It seems, relevant to the facts involved in this appeal, there are three aspects that require consideration. First, even if it were not relevant that the accused knows of the status of the person resisted or that the conduct is part of the execution of duties of a police officer, the defence of honest and reasonable mistake must be examined. 65Secondly, notwithstanding the Full Court in Leonard v Morris, attention must be paid to the meaning of the term "resists or hinders" in the context of s 546C, which words may significantly alter the effect of Reynhoudt, which judgment dealt with "assault". 66Thirdly, in the particular context of these proceedings, the capacity of a police officer to confiscate property (even temporarily) must be examined. 67Even in offences of strict liability, such as some statutory offences, it is a defence that the accused honestly and reasonably, but mistakenly, believed in a set of facts which, were they to exist, would have rendered the conduct of the accused innocent: Proudman v Dayman [1941] HCA 28; (1941) 67 CLR 536 at 540; Hardgrave v R [1906] HCA 47; (1906) 4 CLR 232. There are a number of particulars to the foregoing that require emphasis. First, the belief must be both honest and reasonable. The belief must also be mistaken. 68Secondly, if the mistaken belief were, in fact, the situation, the conduct must have been rendered innocent (not merely less seriously, or in a different way, criminal). In other words, if the facts believed by the accused were to exist, it must be that no offence would have been committed, not simply that some other offence would have been committed. 69Lastly, while described as a defence, honest and reasonable mistake of fact is a matter which the Crown or prosecutor must disprove, once there is some evidence upon which such a mistake is raised: He Kaw Teh v R, supra. 70Because of the effect of the majority judgment in Reynhoudt, the mistake of fact in proceedings for resisting or hindering a police officer in the execution of duty cannot be a mistake as to whether the person is a police officer or whether the police officer is acting in the exercise of duty. Whether particular conduct falls within the class of conduct that would be in execution of the duty of the police officer is not a question of fact, but rather a question of law. Honest and reasonable mistake is confined to a mistake of fact. 71In this regard the question of honest and reasonable mistake of fact may overlap with the issues that arise from the proper definition of the words "hinder" or "resist". 72In the judgment of Dixon CJ, as earlier stated in minority, in Reynhoudt, the then Chief Justice said: "It is perhaps proper to add that no one denied that a defendant might set up honest and reasonable mistake but the facts in which he honestly and reasonably believed must be such as would make his act innocent, e.g. a justification of the assault." 73In the judgment of the majority (Wells J, with whom Walters J relevantly agreed) in Leonard v Morris, at 541-542, this issue was discussed: "It must be borne in mind that the sub-section says nothing about the offender's knowledge or belief. If what the alleged offender did amounts to the prohibited act then, for all that appears expressly in the section, the offence is committed. ... The Act explicitly penalizes 'hindering' or 'resisting'; it does not forbid an act that has the effect of hindering, or that amounts to the resistance of, the execution of his duty by a police officer. I shall consider, first, the word 'hinder' alone. What must be proved against an alleged offender is conduct that, as a whole, is correctly characterized as a hindering. 'Hindering' is a complex fact comprising, in my opinion, acts by the alleged offender-movements or sounds or both; knowledge or appreciation that something is apparently being done or attempted by another; a realization that the probable consequence of what he, the offender, is doing will be to impede or obstruct the other person's acts or attempted acts; and an actual impeding or obstruction of the other person's acts or attempted acts in consequence of what the alleged offender did." Following Farah Constructions v Say-Dee [2007] HCA 22; (2007) 230 CLR 89 I am constrained to follow the foregoing. 74Assaulting a police officer (or anyone) is a criminal offence. Thus, when one is applying Reynhoudt to the offence of assaulting a police officer, the fact that the person assaulted is a police officer in the execution of duty is an aggravating circumstance to what is otherwise a criminal act. On the other hand, it is not a criminal act to resist or hinder a person. It is only, relevantly, a criminal act when one resists or hinders a police officer in the execution of duty. 75If the criminal conduct were an assault, then an honest and reasonable mistake may be that the accused (or another person) is being assaulted. Thus, if a police officer, not in uniform, seemingly attacks an accused (or another person) otherwise than in self-defence, the accused, who grabs the police officer in order to stop the assault, would not, himself, be committing an assault, and, therefore, would not be assaulting a police officer in the execution of duty. The accused would not be committing an assault because of the doctrine of self-defence or defence of another (s 418 Crimes Act). Could it seriously be suggested, in the foregoing circumstances, that the putative accused, having a defence to assault, is guilty of hindering or resisting? 76In the foregoing illustration, the mistake of fact (assuming it be both reasonable and honest) is the circumstance pertaining to the motive/reason for the attack by the police officer. Motive is a question of fact. If an accused had an honest and reasonable mistaken belief as to the motive or reason for the action, which belief, if true, would have rendered the action innocent, the accused is not guilty. It is for the prosecutor to disprove the mistake. Often, but not always, the reason or motive for an officer's conduct will be critical in determining whether the exercise of power is within or outside the exercise of an officer's duty. Because the High Court has determined (R v Reynhoudt) that the prosecutor does not have to prove that an accused knows that the conduct was in execution of the officer's duty, a mistake of fact as to motive/reason, of itself, although honest and reasonable, will not give rise to a "defence". Rather, there must be a justification for the conduct said to amount to assault, resist or hinder [e.g. defence of self or another (s 418 of the Crimes Act); entitlement to assert the right to possess one's own property (Mr Semaan); or to ensure one's property is not being used for the commission of a felony (the bar attendant)], which, when considered with the honest and reasonable mistaken belief as to the reason for the officer's conduct, gives rise to a "defence". 77Thus, be it the bar attendant or Mr Semaan, if the putative accused mistook the reason for the purchase of drugs or the seizing of the phone, respectively, which misunderstanding would have put the conduct of the police officer outside the scope of her or his duty, and which mistaken belief was both reasonable and honest, the person charged must be found not guilty, if there were otherwise a justification (or defence) to the conduct, being, for example, relevantly, the assertion of an existing legal right, which gave rise to the conduct said to be an assault, resist or hinder. Moreover, it is for the prosecutor to prove there was no such mistaken belief. In the case now on appeal, it did not. Error of law has occurred, because there is no evidence going to this issue and because the learned Magistrate did not consider it. This is the first basis for the orders I make. Likewise, the foregoing analysis would have been a defence in the example given at [75] above. 78In Plunkett v Kroemer [1934] SASR 124, Napier J of the Supreme Court of South Australia determined that the sounding of an alarm to warn persons of the impending arrival of police was an attempt to hinder the police in the execution of duty. His Honour said: "It must be conceded that, for the purposes of this charge, the complainant has to prove an actual hindrance, in the sense of some appreciable obstruction to, or interference with, the performance by the constable of his duties; but 'hinder' is not a word of art, or capable of precise definition, and it is a question of fact and of degree whether in the circumstances of the particular case the obstruction or interference was appreciable. If the constable is frustrated in his attempt to perform his duty, or retarded in the execution thereof, then, clearly, he has been 'hindered'; but I think that the fair and natural meaning of the word goes further than that. I think that a constable is 'hindered' by any obstruction or interference that makes his duty substantially more difficult of performance." 79A similar example in every day life would be a person flashing headlights at oncoming traffic to warn of a mobile speed camera or random breath test. That conduct would probably amount to hindering a police officer in the execution of duty. 80In the foregoing factual scenario, like that before the High Court in Reynhoudt, no real difficulty arises relating to the duty to be performed by the police officer. Here, however, Mr Semaan asserts his right to possess his own property. Is that a hindrance to the execution of duty by the police? 81Another illustration may be useful. Assume a police officer stops the driver of a car for a random breath test. Assume that the driver has not been drinking and does not register any, or any prohibited, content of alcohol on the device utilised. At that point in time the officer, who is in uniform, observes an occurrence a distance away that is either a breach of the peace or that would give rise to a breach of the peace. The officer directs the owner of the vehicle to alight from the car, and to give the officer the keys, so that the officer can seize the car and use it temporarily in order to go to the location of the breach of the peace and to prevent it. 82In those circumstances, the officer is taking a step that the officer reasonably believes is to prevent a breach of the peace (see Albert v Lavin, supra). She or he is informing the driver of the vehicle that s/he is a police officer; we can assume that s/he tells the driver her/his name and place of duty and the reason for the exercise of the power. Is the owner of the vehicle hindering a police officer in the execution of duty if the owner refuses to allow the police officer to take the car and to drive it? 83If the defendant's submission is given full force, the person could be charged and, on the defendant's view of the law, would be found guilty. 84In my view, it is not resisting a police officer in the execution of duty to assert a right to possess one's own property, if that property is not to be used directly in the breach of peace or criminal conduct, other than in circumstances where the person is under arrest. 85More obviously, the third of the issues that need to be examined, relating to the confiscation of property, relieves Mr Semaan of liability. It also applies to the illustration above relating to the motor vehicle. The capacity of a police officer to seize property, otherwise than in circumstances where the property belongs to a person under arrest, extends to seizing property to prevent a breach of the peace, where the police officer reasonably believes that a breach of the peace is about to take place. 86However, in the illustration of the motor vehicle above, the possession of the motor vehicle by the driver was not reasonably believed by the police officer to be the cause of a breach of the peace, and the seizing of it would not have prevented a breach of the peace. The seizing of the property was for the purpose of enabling the police officer to travel to a location at which certain steps would be taken in order to seek to prevent a breach of the peace. 87Likewise, the evidence before the learned Magistrate, in this case, did not extend to the proposition that the telephone, which the officer sought to seize, was being used to breach the peace. Even if the telephone were being used, it is not the telephone (or the telephone call) that causes the breach of the peace. A communication to his friends, if that were the intent of Mr Semaan (which was and is unknown), to obtain their presence at the scene would not cause a breach of the peace. If Mr Semaan were to incite his friends to attend in order to intimidate the police, he may be inciting an affray, which would be a criminal offence and give rise to a power of seizure for different reasons than the breach of peace; a reason upon which neither the prosecutor nor the State of New South Wales has relied. 88The breach of the peace, if any, would be caused by a new intervening act, being the unlawful and illegal acts of those that were, on the foregoing hypothetical, called and subsequently attended. 89A difficulty arises from allowing the police officer to establish reasonable apprehension of a breach of public peace based upon nothing more than a person commencing to dial a telephone. In so doing, the officer is relying on the conduct of other people on other occasions unrelated to this incident or to this accused. Given the request for identification, I infer that the police were not familiar with Mr Semaan. Perhaps, as seems to be the case, it was something about Auburn that triggered the officer's suspicion. 90The learned Magistrate found, as a fact, that the officer was executing his duty. In doing so, the learned Magistrate took the view that the suspicion as to the breach of the peace was reasonable and, therefore, lawful. The conclusion as to the existence of a reasonable suspicion and the lawfulness of the officer's conduct are questions of law based on the primary facts proved. 91In Agfa-Gevaert, the High Court (Brennan CJ, Dawson, Toohey, Gaudron and McHugh JJ) recited, with approval, the reasons for judgment of Fullagar J in Hayes v Federal Commissioner of Taxation [1956] HCA 21; (1956) 96 CLR 47: "Where the factum probandum involves a term used in a statute, the question whether the accepted facta probantia establish that factum probandum will generally - so far as I can see, always - be a question of law." Note: In the above passage "factum probandum" means a fact to be proved or, more accurately in this context, proposition to be established; and "facta probantia" means the evidentiary (or primary) facts: see Wigmore, Evidence in Trials at Common Law Section 2, at 14 - 15 (Peter Tillers ed. 1983). 92Here, the primary facts proved were the actions (including statements) of the accused (Mr Semaan) and the actions (including statements) of the police officer, including his belief. The conclusion that the conduct of the officer is lawful is a question of law alone only if the primary facts found were incapable of being lawful: see the Australian Gaslight taxonomy at (4) or the Pozzolanic taxonomy at (4) referred to at [8] of this judgment, as adapted to refer to the common law rather than statute. 93In other words, the question whether facts, fully found, fall within the lawful conduct of a police officer (either under statute or at common law) is a question of law and, to the extent that that conduct is incapable of being lawful (as distinct from being regarded as within or without the categorisation as lawful depending on the relative significance of some of those facts), the question is a question of law alone: see by way of contrast my judgment in L & B Linings Pty Ltd v WorkCover Authority of New South Wales [2011] NSWSC 474 at [79] and Assadourian v Roads and Traffic Authority of New South Wales (Northern Region) [2011] NSWSC 1052 at [31]. 94The confiscation of Mr Semaan's property, being the mobile telephone, was not a step necessary to prevent a breach of the peace, which is the circumstance upon which the defendant relies. The telephone call would be a communication. It had not yet been made. Even if it were made, the communication would not be a breach of the peace. Moreover, the property, being the mobile telephone, could not (assuming it were used otherwise than as a weapon, e.g. to hit someone) be property that would cause a breach of peace. 95For the foregoing reasons, the seizing of the property was not lawful as justified by a breach of the peace. As a consequence of that conclusion, Mr Semaan was entitled to assert his ownership and possession of the mobile telephone and was not resisting or hindering a police officer in the execution of duty: Williams v DPP [2011] NSWSC 1085; McLiney v Minister [1911] VLR 347; Coleman v Power [2004] HCA 39; (2004) 220 CLR 1. 96In Coleman v Power, McHugh J said: "[117] Each of the sub-sections under which the appellant was charged is predicated on the lawfulness of the action being resisted or obstructed. It is not part of an officer's duty to engage in unlawful conduct. If the officer acts outside his or her duty, an element of the offence is missing. In Re K, after reviewing the authorities on the scope of an officer's duty, the Full Court of the Federal Court said: '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.'" 97Once the seizure of the property was unlawful, the Crown cannot prove an element of the charge of resisting a police officer in the execution of his or her duty and the conviction should be set aside. 98Notwithstanding the foregoing, the learned Magistrate found as a matter of fact that the action was taken for that reason and that the officer held that belief reasonably. As a consequence, I am unable to overturn the judgment on that basis, particularly, because it is not a ground of appeal. 99Nevertheless, underpinning the proceedings below was the lawfulness of the conduct of the officer. That is also the central issue in this appeal. Once Mr Semaan asserts his right to retain his own property and the inability of the police to seize it, there is material upon which the issue of the mistaken motive arises, requiring the prosecutor to negative an honest and reasonable belief that the motive of the officer was one outside the class that would render the seizure lawful. That is a purpose of s 201 of LEPRA. 100I need to deal with the effect of non-compliance with s 201 of LEPRA. The criterion of practicability that governs the timing of the announcements required by s 201(1) may significantly affect the consequence of non-compliance. 101If, as is alleged in these proceedings, it were impracticable to make the announcements required by s 201(1) of LEPRA before (or at the time of) the seizure of property, it is necessary to comply with the announcement requirements as soon as reasonably practicable thereafter. Circumstances may arise that would render it never reasonably practicable, for example, where the person arrested or subject to the exercise of the power were to die or to flee. Such an eventuality does not seem, in my view, to lead to a view that the original exercise of power was therefore unlawful. 102The answer to the question may reside in the determination of the effect of the breach of a mandatory provision. The breach of a mandatory provision does not always result in unlawfulness and does not always render the conduct void (or even voidable): Hunter Resources Ltd v Melville [1988] HCA 5; (1988) 164 CLR 234 at 251-252 (per Dawson J); Yango Pastoral Company Pty Ltd v First Chicago Australia Ltd [1978] HCA 42; (1978) 139 CLR 410 at 423 (per Mason J); Nelson v Nelson [1995] HCA 25; (1995) 184 CLR 538 at 590-591 (per Toohey J) and at 610 (per McHugh J). 103To question the consequences of a failure to comply with the provisions of s 201 of LEPRA does not detract from the proposition that the provisions are mandatory. Such a failure may not result in the conduct being unlawful if, as is contended in these proceedings, the conduct would otherwise be lawful. 104In these proceedings, the defendant has made no (and the prosecutor below did not) attempt to prove that provision of the information required by s 201(1) of LEPRA remained impracticable. Therefore, there is no evidence upon which it was open to the learned Magistrate to find that the occasion for the provision of the material had not yet arisen. The prosecutor, therefore, did not prove that the police officer had complied with s 201 of LEPRA. 105The provisions of s 201 must be given a purposive construction: Project Blue Sky. The purpose of the provision includes overcoming the difficulty to which I have already averted, namely, a mistaken, honest and reasonable belief as to the motive of the officer. 106The officer is required to inform the person of the fact that s/he is a police officer; the station from which the officer derives; and the reason [or motive] for the exercise of power. After being so informed, the possibility of honest and reasonable mistake would not ordinarily arise (or, at least, would require some evidence to overcome the necessary inference from the provision of the information). 107The effect of s 201(2) of LEPRA is that the time for compliance does not arise until (or as soon as) it is not impracticable to comply. When it is first "not impracticable", the duty arises. Failure to comply (or compliance) with the duty, if that time were later than the exercise of the power, has a retrospective effect on the status of the conduct. In so doing, the officers are protected from any "unlawfulness" associated with the exercise of power. 108In the absence of evidence of compliance with s 201(1) of LEPRA, when first "not impracticable", prosecuting authorities are not entitled to rely on or to assert that the conduct was lawful. In other words, even if the conduct may not, at the time of the exercise of power, be "unlawful", in the absence of compliance with the mandatory provisions of s 201(1) of LEPRA, at the time prescribed, prosecuting authorities are not entitled to rely on the "lawfulness" of the conduct, unless, again reverting to a purposive construction, they can prove that the person, against whom the lawfulness is to be asserted, was otherwise aware of the facts prescribed in s 201(1) of LEPRA, or that it had not yet become "practicable". Neither has been proved in this prosecution. 109The prosecuting authority must prove that the police officer was executing his duty, and, to do so, must assert and prove the "lawfulness" of the officer's conduct. Because of the non-compliance with s 201(1) of LEPRA, and the failure to prove that the time for compliance had not yet arisen or passed, the prosecution is unable to do that and, therefore, it is unable to prove that Mr Semaan has resisted the officer in the execution of his duty. 110This latter conclusion forms an alternative basis for the orders that I make. Alternatively, as earlier stated, in the absence of such evidence, the prosecutor is unable to negative an honest and reasonable mistake as to the reason/motive of the officer, when Mr Semaan was asserting a right or justification for the conduct. The two issues are, in that sense, related. 111Given the nature of the conclusions at which I have arrived, there is no purpose in the proceedings being remitted to the Local Court. The evidence would allow no other result than the dismissal of the charge and I will so order. 112Mr Semaan's summons seeks an order for costs. No submission has been made that exceptional circumstances, relating to the conduct of the proceedings by the prosecutor, arise, such that the terms of s 70(1)(d) of the Crimes (Appeal and Review) Act 2001 apply and no other provision of s 70(1) of the Crimes (Appeal and Review) Act applies. In those circumstances no order for costs will be made. 113For the foregoing reasons, the Court makes the following orders: (1)The order made by the Local Court of New South Wales on 4 April 2012 at Burwood convicting Richard Semaan of the offence of resist a police officer in the execution of his or her duty, contrary to s 546C of the Crimes Act 1900, be set aside; (2)The charge against Richard Semaan, being that on 14 September 2011 at Auburn, he did resist Sergeant Poidevin, a member of the Police Force in the execution of his duty, is dismissed; (3)No order for costs.

Amendments 05 April 2013 - Amended to reflect later draft, mistakenly not included, which better reflects the original intention of the Court. Amended paragraphs: 76, 77 and 110 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: 05 April 2013