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.