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[2025] ACTSC 153
General information, not legal advice.
Supreme Court of the ACT
2025-04-16
Mossop J
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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: Shoveller v Scott Citation: [2025] ACTSC 153 Hearing Date: 29 January 2025 Decision Date: 16 April 2025 Before: Mossop J Decision: (1) The conviction and sentence on each of charges CAN 6235/2023 and CAN 11079/2023 are set aside and verdicts of not guilty entered in relation to those charges. Catchwords: APPEAL – CRIMINAL LAW – Appeal from ACT Magistrates Court – sword-wielding man barricaded in a car outside Parliament House – yelling man with selfie stick approaches – refuses to stay outside cordon established by police – man, yelling, arrested – convicted of hindering public officials – no legal authority for purported cordon established – magistrate erred in declining to entertain the issue – appeal allowed APPEAL – APPEAL AND NEW TRIAL – Where magistrate did not examine the legality of cordon purportedly established by police – error led to miscarriage of justice – inappropriate to remit the matter – convictions reversed POLICE – RIGHTS, POWERS AND DUTIES – Whether police had statutory or common law power to establish cordon around critical incident – boundaries of cordon, and other operational details, not established by evidence – no power to establish a cordon relied upon before the magistrate or on appeal – availability of any such cordon power not established Legislation Cited: Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) Australian Capital Territory National Land (Road Transport) Ordinance 2025 (Cth) Australian Federal Police Act 1979 (Cth), ss 4, 8 Crimes Act 1900 (ACT), Pt 9, Div 10.4A Criminal Code 2002 (ACT), ss 38, 300, 361 Criminal Code Act 1995 (ACT), ss 149.1, Dictionary Magistrates Court Act 1930 (ACT), s 218 Minister for Urban Services, Road Transport (General) (Application of Road Transport Legislation) Declaration 2004 (No 9) (DI2004–208, 6 September 2004) Minister for Urban Services, Road Transport (General) Declaration of Areas to be Defined as Road Related Areas (NI2000–44, 29 February 2000) National Land (Road Transport) Ordinance 2014 (Cth) made under the Seat of Government (Administration) Act 1910 (Cth) Parliamentary Precincts Act 1988 (Cth) Road Transport (General) Act 1999 (ACT), ss 8, 12, Dictionary Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 30 Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT), s 84 Cases Cited: Conway v The Queen [2002] HCA 2; 209 CLR 203 Karpany v Police [2013] SASC 124 Laipato v Truman [2017] ACTSC 351 Leonard v Morris (1975) 10 SASR 528 Plunkett v Kroemer [1934] SASR 124 Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; 272 CLR 177 Strano v Yates [2016] ACTSC 363 Parties: Vaughn Shoveller (Appellant) Director of Public Prosecutions (Respondent) Representation: Counsel Self-represented (Appellant) K McCann (Respondent) Solicitors Self-represented (Appellant) Director of Public Prosecutions (Respondent) File Number: SCA 26 of 2024 Decision Under Appeal: Court/Tribunal: ACT Magistrates Court Before: Magistrate JT Campbell Date of Decision: 23 April 2024 Case Title: Scott v Shoveller Court File Numbers: 235056; 237909 MOSSOP J: Introduction
Vaughn Shoveller was charged with three offences arising out of events on 18 June 2023: (a) He was charged with hindering a public official, namely Constable Bethany Scott, in the exercise of her function as a public official contrary to s 361(1) of the Criminal Code 2002 (ACT) (CAN 6235/2023). (b) He was also charged with hindering protective service officers (PSOs) Jordan Wood, Dako Ceko and Robert Hedges in their performance of functions as Commonwealth public officials contrary to s 149.1(1) of the Criminal Code Act 1995 (Cth) (CAN 11079/2023). (c) The third charge was resisting a public official, namely Constable Scott, in the exercise of her function as a public official contrary to s 361(1) of the Criminal Code (ACT) (CAN 6236/2023).
After a trial before a magistrate of the ACT Magistrates Court, he was found guilty on 23 April 2024 of the first two charges, but not guilty on the third. On CAN 6235/2023 (hindering Constable Scott), he was convicted and given a 12-month good behaviour order. On CAN 11079/2023 (hindering PSOs Wood, Ceko and Hedges), he was convicted and required to enter into a recognisance to be of good behaviour for 12 months.
He has appealed against his convictions. He represented himself on the appeal. The only ground of appeal identified in the notice of appeal was “Error in Law”.
Offence provisions
As at 18 June 2023, the relevant Territory offence provision was s 361 of the Criminal Code (ACT): 361 Obstructing territory public official (1) A person commits an offence if— (a) the person obstructs, hinders, intimidates or resists a public official in the exercise of his or her functions as a public official; and (b) the person knows that the public official is a public official; and (c) the public official is a territory public official; and (d) the functions are functions as a territory public official. Maximum penalty: 200 penalty units, imprisonment for 2 years or both. (2) Absolute liability applies to subsection (1) (c). (3) Strict liability applies to the circumstance that the public official was exercising the official’s functions as a public official. (4) In this section: function— (a) in relation to a person who is a public official—means a function that is given to the person as a public official; and (b) in relation to a person who is a territory public official—means a function given to the person as a territory public official.
The term “public official” is defined in s 300: public official means a person having public official functions, or acting in a public official capacity, and includes the following: (a) a territory public official; … territory public official means a person having public official functions for the Territory, or acting in a public official capacity for the Territory, and includes the following: … (j) a police officer; …
As a result of these definitions, a police officer is a public official for the purpose of s 361.
As at 18 June 2023, the relevant Commonwealth offence provision was s 149.1 of the Criminal Code (Cth): 149.1 Obstruction of Commonwealth public officials (1) A person commits an offence if: (a) the person knows that another person is a public official; and (b) the first-mentioned person obstructs, hinders, intimidates or resists the official in the performance of the official’s functions; and (c) the official is a Commonwealth public official; and (d) the functions are functions as a Commonwealth public official. Penalty: Imprisonment for 2 years. (2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew: (a) that the official was a Commonwealth public official; or (b) that the functions were functions as a Commonwealth public official. (3) For the purposes of this section, it is immaterial whether the defendant was aware that the public official was performing the official’s functions. (4) Section 15.3 (extended geographical jurisdiction—category C) applies to an offence against subsection (1). (5) The definition of duty in section 130.1 does not apply to this section. (6) In this section: function: (a) in relation to a person who is a public official—means any authority, duty, function or power that is conferred on the person as a public official; or (b) in relation to a person who is a Commonwealth public official—means any authority, duty, function or power that is conferred on the person as a Commonwealth public official.
Evidence before the Magistrates Court
The witnesses who gave evidence at the hearing in the Magistrates Court were: (a) Constable Bethany Scott; (b) PSO Jordan Wood, who was at the time an Acting Protective Service Sergeant; (c) PSO Robert Hedges, a Protective Service Sergeant; and (d) Constable Ruby Spence.
The exhibits admitted at the hearing were: (a) an extract of Google Maps marked by Constable Scott; (a) body-worn camera footage from Constable Scott; (b) the appellant’s video of his interaction with PSO Hedges (among other officers); (c) the appellant’s video of his interaction with Constable Spence; and (d) body-worn camera footage from Constable Spence.
Bethany Scott
On 18 June 2023, Constable Scott was called to an incident at Parliament House where she understood, as a result of a radio communication, that a male had produced a sword to Protective Service Officers at that location and then retreated into a vehicle with a sword and a knife. She responded to that radio communication.
Once she arrived, she was tasked with setting up an outer cordon at the location. She was directed to the intersection of Queen Victoria Terrace and Federation Mall and was told to establish a cordon to prevent any foot or vehicle traffic approaching the front of Parliament House where the incident was taking place. She was working with Constable Spence. They were positioned at the intersection of Federation Mall and Queen Victoria Terrace. She was on the eastern side of that intersection, and she directed Constable Spence to attend the western side. She parked the police vehicle in the middle of the road, activated the emergency lights and displayed a signal that read “Road Closed”. She exited the vehicle. Both she and Constable Spence were on foot, speaking with members of the community about what was going on.
After some time at the location, she heard a male yelling. She saw that this was coming from where Constable Spence was standing. A male was yelling at Constable Spence. She approached Constable Spence and had a conversation with her. Constable Spence told her that the male had been recording her and that she had told the male that the area was currently closed due to an incident. The male was yelling, saying that he was unhappy about that.
She described what the male was wearing. It was uncontroversial at the hearing that the male was the appellant.
The appellant then walked in the direction of Old Parliament House. She told Constable Spence not to worry about it as he had moved on at that point. She and Constable Spence then returned to their respective locations and continued to direct traffic and people away from the area. The interaction with the man had occurred at approximately 12:47pm.
At approximately 1:35pm, the male reappeared. He was yelling quite loudly, holding a microphone on a pole and a mobile phone. He proceeded up the grass area towards Parliament House. He appeared quite agitated and unhappy and was yelling. Constable Scott made a radio transmission and requested that police resources redirect from the initial incident to address the appellant. She then proceeded up the grass area behind the appellant. She approached the appellant while he was speaking to PSOs. She observed PSOs explaining to the appellant that there was an incident up at Parliament House and he could not go any further due to the incident because it would be dangerous for him. She heard the appellant saying something along the lines of that “it was his right to record the incident”, and he proceeded past the PSOs towards the incident location. She and the PSOs were walking alongside the appellant, attempting to negotiate with him. He continued to yell. He was quite difficult to engage with. They ended up on the road on the western side of Federation Mall and crossed over the State Circle underpass.
Jordan Wood
PSO Wood was at the relevant time an Acting Protective Service Sergeant. He commenced his shift at 1:00pm. He was aware that there was an incident involving a male with a samurai sword who had approached the front of Parliament House and was then barricaded inside a car. At about 1:15pm, PSO Wood moved to the “inner cordon” and was to interact with anyone who had moved past the “outer cordon” that was being manned by ACT Policing. He interacted with the appellant. He saw the appellant walking towards PSO Ceko and PSO Hedges. He exited his vehicle and could hear shouting and abuse directed towards PSO Hedges. He moved closer and recognised the appellant from previous interactions. The appellant said “Jordan, please be reasonable. Don’t stop me”. He told the appellant he “couldn’t move any closer”, and that any further movement would be hindering the police operation and would result in him being arrested. The discussion continued back and forth, with PSO Wood giving the appellant “many reasonable opportunities” to stop before the appellant was eventually arrested by Constable Scott. PSO Wood was not involved in the arrest. He was shown some video of the incident and identified PSO Hedges and PSO Ceko.
He was cross-examined by the appellant. He was asked about his training and identified that he had done a 16-week PSO program. He said there were “five major offences” involving PSOs: “trespass on Commonwealth property, obstruct/hinder a Commonwealth official, cause harm to Commonwealth official, destruction of Commonwealth property.
PSO Wood was shown some video of PSO Hedges. It was suggested to him that PSO Hedges was holding a weapon and threatening the appellant. PSO Wood said he was focused on the appellant. He said that he did not perceive the appellant as being a threat to PSO Hedges whilst he (PSO Wood) was present. He could, however, hear the appellant shouting with aggressive and threatening language towards PSO Hedges and PSO Ceko.
PSO Wood was shown the video and agreed that the appellant asked: “If I move further south will I be arrested?”. PSO Wood answered “No”, and then straight after said: “No, you’re going to be arrested for hindering”. PSO Wood said that, in the specific circumstances, the appellant’s movement south “did hinder the police operation”. It was suggested that PSO Wood had used confusing language, something which he denied.
There was no re-examination.
Robert Hedges
PSO Hedges was a Protective Service Sergeant. He was stationed at Parliament House in June 2023. He was the sergeant on duty “in charge of the protection side”. He said that there had been a critical incident in front of Parliament House which involved a person who had brandished a sword and knife and barricaded himself in a vehicle.
He said that cordons had been put in place, and it was “declared a critical incident, so all public access was restricted which is where we had officers positioned”.
PSO Hedges was stationed 50m from the incident. He was the “forward commander”. He responded to a radio call that a person had broken through the barrier and refused to stop. He went in a vehicle and saw the appellant walking up the grassed area. He knew the appellant from previous interactions. He and another officer went up to the appellant. He tried to explain to the appellant that the area was closed off to members of the public due to a critical incident. He said that the appellant refused to listen and just kept moving forward. He described the appellant as vocal and “very agitated”. PSO Hedges said that, notwithstanding other officers informing him that he could not go any further, he just kept moving forward. PSOs Wood and Ceko were the other officers. Constable Scott joined them. After Constable Scott had arrested the appellant, PSO Hedges and another officer took hold of his arms and took him to the ground. He said there was “minor resistance to the arrest” and that he “struggled slightly when handcuffs were being applied”. There was no cross-examination of this officer, the appellant saying, “He’s not truthful so there’s no point”.
The hearing was then adjourned until 23 April 2024.
Ruby Spence
Constable Spence was an officer who, on 18 June 2023, was called to attend Parliament House in relation to a sword incident. She and Constable Scott were advised to cordon off the area at the corner of Federation Mall and Queen Victoria Terrace. Constable Spence was on the western side and Constable Scott on the eastern side. She interacted with the appellant, who was quite agitated and verbally abusive. That occurred at about 12:30pm, and then again at about 1:00pm. He initially approached her and asked why police were attending Parliament House. He began to swear and indicated that he was not happy, but then left the area.
He then returned with a selfie stick to film the interaction. He approached her and was swearing about the incident. Constable Scott returned. He moved up towards Parliament House.
Her body-worn camera footage was played and tendered, becoming Exhibit 5.
Constable Spence was cross-examined by the appellant. She said that, in the first interaction, she had simply advised that he was unable to get to Parliament House. She agreed with the appellant that he had said to her: “You fucking bitch. You have no fucking right to do this. You’re all fucking idiots”.
There was no re-examination.
Closing addresses in the Magistrates Court
The prosecutor correctly identified that the issue was whether the appellant’s conduct amounted to hindering police and resisting arrest in each instance. She identified that the prosecution case was that the appellant engaged in continuous hindering of the police and PSOs “who were exercising their duty to keep the community safe while there was a critical incident unfolding, including by maintaining a cordon around the area”. She submitted that the appellant hindered police by ignoring directions (namely, by proceeding further), which forced Constable Scott to leave her post guarding the “outer cordon” and forcing PSOs away from the critical incident to deal with this incident. She referred to the magistrate’s earlier ruling: Your Honour has already ruled that you will not entertain questions as to the powers of police to enact that cordon around the critical incident and there is, in my submission, no question as to that power or the power of police to enact cordons to keep people away from areas of potential danger.
She accepted that, on any other day or time, the appellant would have been entitled to walk across the lawns, but submitted that, on this particular day and time, police had “lawfully established a cordon to keep members of the public away from a specific and discrete location and threat”. She therefore submitted that the magistrate would have no difficulty finding beyond reasonable doubt that the appellant’s conduct amounted to hindering police in the execution of their duties.
She then addressed the charge of resisting police, which related to the appellant’s conduct after he was arrested. She answered questions posed by the magistrate in relation to the charge of resisting police after the appellant’s arrest. She indicated that she had prepared some submissions in relation to the lawfulness of the arrest, but her Honour indicated that she had “no difficulty with the lawfulness of the arrest”.
Before the appellant made submissions, the magistrate indicated that she would not be finding the resist charge proved. She indicated that he only needed to address her on the hindering charges. She posed the question as being whether “your actions [made] it more difficult for the police or the Protective Services officers to exercise their functions”. The magistrate indicated that the hindering started at the beginning of the appellant’s interactions with the PSOs and then Constable Scott.
The appellant indicated that he was “pretty vocal the whole time”. He said that the real issue was the language Constable Spence used in the very first interaction, shown on the USB he had provided. He said: [T]he prosecution was saying that I was ignoring directions. That's - and that's why I hindered. My point is that directions from Constable Ruby Spence was inadequate …
The magistrate then gave her decision and reasons.
The magistrate’s reasons
The magistrate gave herself some general and appropriate directions. She indicated that the facts were not in dispute. She recorded that there was a man with a sword who had retreated to his vehicle at “Old Parliament House”, that a critical incident was declared, and police were called. (The references to “Old Parliament House” in the reasons were clearly errors; it was uncontroversial that the incident was at Parliament House). The police officers were instructed to cordon off the area and station themselves on either side of Federation Mall in order to prevent people approaching Parliament House.
She referred to the first interaction with Constable Spence in the footage showing the appellant being abusive but complying with her direction.
She referred to when, at 1:35pm, the appellant returned. The body-worn camera footage of Constable Spence included the appellant yelling. PSOs Ceko and Hedges then attended. There was an interaction with the appellant. During that interaction, PSO Hedges drew his baton out of its holster. At some point thereafter, PSO Wood attended. The interaction with the PSOs was captured on the body-worn camera of Constable Scott. She had left her post and approached the four men. Constable Spence remained in her position. The body-worn camera footage shows PSO Wood telling the appellant that he could not proceed further. The magistrate observed that PSO Wood seemed to have a good relationship with the appellant.
The magistrate found that the footage showed the appellant being “extremely abusive towards the PSO officers and Constable Scott”. She estimated that he moved about 200m up from the lawn across the overpass bridge. He was then told by PSO Wood that he could stay there and record from that position, but the appellant continued to move forward and was then arrested by a number of officers. As to the words said by PSO Wood, the magistrate found that, when asked by the appellant whether he was going to be arrested, the first word PSO Wood answered was “No”, but that it was clear he was going on to say something else. The magistrate said she was satisfied that there were lawful grounds for the arrest of the appellant for hindering the police and PSOs. The magistrate’s reasons continued: My view is that the defendant’s entire conduct from the grass area of the Federation Mall and moving to just past the overpass bridge made it more difficult for the police to engage in their or exercise their functions as public officials and exercise the functions of - for the Protective Services officers exercise their functions as a Commonwealth public official. It is clear from the circumstances of that day that there was a need for an area to be cordoned off because of the critical incident. Police and Protective Services officers had the ability to create the cordon and that was a lawfully established cordon. It is a matter then for the community safety, as well as the police officers’ and Protective Services officers’ safety who are dealing with the critical incident, that no other persons are able to come into that area. It is clear, in my view, from the conduct of the defendant continuing to move towards that area, despite those police and Protective Services officer requests to stop and to leave the area, that he was hindering the exercise of that function. It was clearly making the exercise of those officers’ function much more difficult. The police officers and Protective Services officers had to spend time dealing with the defendant. They were thereby effectively prevented from dealing with the incident. Constable Scott had to leave her post from where she was meant to be directing traffic. The Protective Services officers were called away from the critical incident to be dealing with the defendant on the lawn.
Submissions on appeal
In the respondent’s comprehensive and helpful submissions, counsel identified two potential errors in the approach taken by the magistrate.
The first related to the reliance by the magistrate on the decision in Strano. As is apparent from the reasons of the magistrate (reproduced at [59] and [61] above), she proceeded on the basis that it was not necessary to be satisfied that there was any substantial hindrance of police. Counsel referred to the commonly-cited decision in Leonard v Morris (1975) 10 SASR 528, which involved an offence arising if a person “hinders or resists any member of the police force in the execution of his duty”. In the course of his judgment, Bray CJ held that the offence of hindering must involve “any act of interference or obstruction which makes the duty of the police officer substantially more difficult of performance”. The reference to “substantially” arose from the earlier decision in Plunkett v Kroemer [1934] SASR 124 at 127. Counsel pointed out that the inclusion of “substantially” appears to have been out of concern to ensure that “trivial or ineffective impediment or obstruction” would not constitute the offence: Leonard at 535; Karpany v Police [2013] SASC 124 at [21]-[24].
Counsel for the respondent recognised that whether or not conduct amounted to hindering in the circumstances of any given case would involve a question of fact and degree. However, she submitted that it was not necessary in the present case to determine whether the magistrate’s formulation of the test was strictly correct because she submitted that the appellant’s proven conduct fell well within the concept of hindering.
A second matter identified was that the magistrate did not expressly deal with an element of the offence, namely the fault element involved in the result that the public official was hindered in the public official’s function. The relevant fault element was recklessness, which could also be satisfied by a finding of intention.
Counsel for the respondent submitted that, notwithstanding that the absence of an express finding on this element may constitute error, the findings of guilt should stand because of the findings of fact that: (a) the appellant was aware of the cordon; (b) he was repeatedly told by police officers and PSOs that he was not to proceed any further; (c) he was belligerent and deliberately ignored those requests; and (d) his actions necessitated the involvement of numerous officers.
In those circumstances, the respondent submitted that it was reasonable to infer that the appellant intended to, or was reckless as to the possibility that his actions would, obstruct and impede the actions of police or PSOs.
In response to questions that I asked concerning the source of power of police, counsel for the respondent filed supplementary written submissions. Those submissions included reference to the fact that the magistrate did not permit the appellant to cross-examine Constables Scott or Spence as to the power which permitted police to cordon off the relevant area. The submissions accepted that the appellant ought to have been entitled to explore whether or not the officers were performing a lawful function. However, if that was an error, the respondent contended that the court would conclude that no different result would be reached and, hence, that the appeal should be dismissed.
Hindering of the substantive operation not proved
There are two ways in which the charges of hindering police and PSOs in their official duties could be established. The first, immediate allegation of hindering was in failing to comply with the direction not to proceed further towards the critical incident. That direction was given to the appellant because the police officers had been directed to establish a cordon to prevent persons and vehicles from approaching the site of the “critical incident”. The lawfulness of that direction, and the capacity of that direction to be part of the official functions of the police and PSOs, is addressed in the next section.
The second, more general claim of hindering relates to the role of the police and PSOs in relation to the critical incident itself.
There was only limited evidence about the “critical incident”. It involved a man with a sword and a knife who had approached Parliament House and subsequently retreated to his vehicle. The precise location of his vehicle was not identified in the evidence. There was evidence that there were a number of general duties police present, along with tactical response police, police negotiators and ambulance officers. Where all of these people were was not disclosed by the evidence. There was no attempt to establish the particular distances between the events the subject of the charges and the “critical incident” itself. Although there was a reference to a “critical incident” being “declared”, this declaration did not appear to have any statutory basis. Whatever administrative or operational basis it had was not disclosed in evidence.
The evidence was sufficient to disclose that the police officers and PSOs immediately addressing the subject vehicle, attempting to avoid any threat to persons and arrest the sword-wielding man, were performing their duties as public officials.
The evidence was insufficient to establish beyond reasonable doubt that the conduct of the appellant in approaching Parliament House had any operational consequence for the capacity of the police and other officials present near the subject vehicle. There was evidence that PSOs Hedges and Ceko had been closer to the incident but then diverted to join the attempts to stop the appellant approaching Parliament House. Insofar as they were diverted from their other tasks by a desire to enforce the cordon, that was at least in part dependent upon the lawfulness of the establishment of the cordon. If that diversion was to be relied upon as the basis for establishing the charge relating to the PSOs, additional evidence as to the functions from which they were diverted would need to have been given.
Further, there was no attempt to establish the prospect of any immediate risk of harm to the appellant if he approached, to any particular distance, the “critical incident”. PSO Wood, whose conduct the magistrate quite properly praised, attempted to have him stop at a point immediately prior to him being arrested. There is no evidence that moving from there to any specific point beyond that point subjected him to any particular risk from the “critical incident”.
General policing powers not sufficient
The issue is whether police had a legally-enforceable power to direct people and vehicles to stay out of the relevant area. The magistrate refused to allow questioning of Constable Scott about this.
The boundaries of the area which was alleged to have been cordoned off were not established by the evidence. While it was clearly alleged to cover the whole of the Federation Mall from Parliament House down to Queen Victoria Terrace, it is not clear whether it was limited to Federation Mall or extended to other areas around Parliament House. It is therefore not clear from what area the police, on the prosecution case, were asserting a legal entitlement to exclude people.
There is no doubt that they had the capacity to request persons and vehicles to not travel closer to the location of the “critical incident”. A person failing to comply with such a request may commit the offence of hindering or obstructing police if some substantial (in the sense of not being trivial or insubstantial) hindrance or obstruction in fact occurred to the police who were managing the “critical incident” itself. However, in the absence of a legally-enforceable power to exclude persons from the relevant area, a person would not be hindering or obstructing the police officer who made a request to stay out of the area if they entered the area. If it were otherwise, then a police officer could attract to themselves a legally-enforceable power that otherwise did not exist simply by asserting that a failure to comply amounted to a hindrance or obstruction. It is therefore necessary to examine the powers that were relied upon by the respondent.
The powers identified in the submissions made on behalf of the respondent were the general policing functions that are identified in s 8 of the AFP Act. As pointed out earlier, those functions are clearly sufficient to establish that the actions of the police immediately related to addressing the “critical incident” were functions appropriate for police to carry out, but the evidence was insufficient to prove beyond reasonable doubt that those functions were hindered in any relevant way. The general functions did not themselves provide to the police any legal authority to create an enforceable cordon or exclusion zone.
The reference in s 8 to “police services” picks up the definition in s 4 of the AFP Act: police services includes services by way of the prevention of crime and the protection of persons from injury or death, and property from damage, whether arising from criminal acts or otherwise. Neither that definition, nor the general statement of the functions in s 8, give to police a legally-enforceable power to exclude persons from particular areas. It is necessary to look for such a power in Commonwealth or Territory statute, or the common law. The other statutory provisions pointed to by counsel for the respondent (see [71] above) were identified only to point out that they had no application.
Potential alternative statutory basis not relied upon
As at 18 June 2023, s 30 of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) (RTSTM Act) provided: 30 Road or road related area may be closed temporarily to traffic (1) A police officer may— (a) close a road or road related area to traffic during a temporary obstruction or danger to traffic or for any temporary purpose; and (b) give directions to prevent the traffic of any vehicles, people or animals in or on a road or road related area closed to traffic under paragraph (a) or under the authority of another Act. (2) A person must not, without reasonable excuse, contravene a direction of a police officer under this section. Maximum penalty: 20 penalty units.
The definition of “road” and “road related area” are provided by the Dictionary to the Road Transport (General) Act 1999 (ACT) (see s 8 of that Act): road, for the road transport legislation or a provision of the road transport legislation (the relevant legislation)— (a) means an area that is open to or used by the public and is developed for, or has as 1 of its main uses, the driving or riding of motor vehicles; but (b) does not include an area that would otherwise be a road so far as a declaration under section 12 (Power to include or exclude areas in road transport legislation) declares that the relevant legislation does not apply to the area. road related area, for the road transport legislation or a provision of the road transport legislation (the relevant legislation)— (a) means— (i) an area that divides a road; or (ii) a footpath or nature strip adjacent to a road; or (iii) an area that is open to the public and is designated for use by cyclists or animals; or (iv) an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles; or (v) a shoulder of a road; or (vi) any other area that is open to or used by the public so far as a declaration under section 12 (Power to include or exclude areas in road transport legislation) declares that the relevant legislation applies to the area; but (b) does not include an area that would otherwise be a road related area so far as a declaration under that section declares that the relevant legislation does not apply to the area.
It is notable that a declaration under s 12 of the Road Transport (General) Act may mean that “any other area that is open to or used by the public” may become a “road related area”.
Pursuant to s 12, a potentially relevant declaration has been made. The Road Transport (General) (Application of Road Transport Legislation) Declaration 2004 (No 9) (DI2004– 208, 6 September 2004) (the Declaration), provided: 3 Declaration Under section 12(1)(a) of the Road Transport (General) Act 1999 I declare that the road transport legislation applies to the following areas that are open to or used by the public: (a) a wharf, pier or jetty; (b) the lake foreshores (within the meaning of the Lakes Act 1976) of any lake; (c) any part of a park, reserve, recreational or sporting ground, racecourse, or any other open place, to which the public has access whether with or without payment for admission.
Remittal for rehearing not appropriate
For the reasons given above, I am satisfied that the magistrate erred in preventing the appellant from asking Constable Scott about matters relevant to the power to establish a cordon and erred in impliedly concluding that, when giving a direction to enforce that cordon, the police officers and PSOs were carrying out their official duties.
On the case as run at trial and upon appeal, the accused ought to have been found not guilty.
I have identified in these reasons a possible alternative basis upon which the police might have given the appellant a legally-enforceable direction. However, having regard to the fact that this possibly available power was not relied upon before the magistrate, or before this court, and may have been only available to be charged under a different statutory provision, it is not appropriate to remit the proceedings to be reheard by a magistrate in a manner that would permit the prosecution to proceed on a different basis.
The power of the court under s 218(1)(a) of the Magistrates Court Act includes a power to “reverse” a conviction and a sentence. Pursuant to that power, I will set aside the convictions and sentences, and enter a verdict of not guilty on each of the charges. Orders
The order of the Court is: (1) The conviction and sentence on each of charges CAN 6235/2023 and CAN 11079/2023 are set aside and verdicts of not guilty entered in relation to those charges.
I certify that the preceding one hundred and nine [109] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date:
Shoveller
Scott [2025] ACTSC 153
(1975) 10 SASR 528
The term “Commonwealth public official” is defined in the Dictionary to the Criminal Code (Cth), and is relevantly as follows: Commonwealth public official means: … (k) an individual employed by the Commonwealth otherwise than under the Public Service Act 1999; or … (m) a member or special member of the Australian Federal Police; or (n) an individual (other than an official of a registered industrial organisation) who holds or performs the duties of an office established by or under a law of the Commonwealth, other than: (i) the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or (ii) the Australian Capital Territory (Self-Government) Act 1988; or (iii) the Corporations Act 2001; or (iv) the Northern Territory (Self-Government) Act 1978; or (r) an individual (other than an official of a registered industrial organisation) who exercises powers, or performs functions, conferred on the person by or under a law of the Commonwealth, other than: (i) the Corporations (Aboriginal and Torres Strait Islander) Act 2006; or (ii) the Australian Capital Territory (Self-Government) Act 1988; or (iii) the Corporations Act 2001; or (iv) the Northern Territory (Self-Government) Act 1978; or (v) a provision specified in the regulations; …
PSOs Wood, Ceko and Hedges were protective service officers within the meaning of that term in the Australian Federal Police Act 1979 (Cth) (AFP Act). While not “members” of the Australian Federal Police under that Act, they were within one or more of paras (k), (n) or (r) of the above definition. Hence, each was a “Commonwealth public official”.
Eventually, the appellant stopped walking. He had a conversation with PSO Wood who explained that, if he were to proceed any further, he would be arrested. The appellant moved past PSO Wood. At that point, Constable Scott approached the appellant and told him he was under arrest. She was not sure if she informed him of the reason at that point of time, but the arrest “was for hinder”. A number of other police officers came over and assisted with the arrest. The appellant was “highly verbally agitated”, requesting for the PSOs to become involved in the arrest and for them to break his arm.
Body-worn camera footage was played of the incident. Constable Scott identified the PSOs shown in the footage.
Constable Scott marked an extract of Google Maps showing where Constable Spence was standing when the cordon was established, where the appellant came into contact with the PSOs, and where he was arrested. This became Exhibit 1. The body-worn camera footage became Exhibit 2.
Constable Scott was cross-examined by the appellant. He asked at what point she considered that he had committed an offence. She said that it was the point at which PSO Wood had explained that, if the appellant proceeded any further, he would be arrested for hindering, and he moved around PSO Wood anyway. At that point, she said she formed the belief that the appellant was going to interfere with the incident and place himself and others at serious risk of harm. She could not recall PSO Wood’s precise words.
She was asked about the charges laid that day and said that, on the afternoon of his arrest, he was charged with two criminal offences: a hinder and a resist arrest. Constable Scott said that the appellant “was arrested on the day based upon repeated and multiple attempts to negotiate and explain what was happening with the situation”. She was asked whether “fail to negotiate” was a criminal offence. She answered, “I don’t know”. She explained that the appellant remained agitated and aggressive throughout the interaction and that, up to the point of his arrest, the appellant had been allowed to continue in an attempt to negotiate with him. The appellant suggested to the witness that she had not arrested the appellant because PSO Hedges had his retractable baton out and was threatening to hit the appellant with it. Constable Scott said that she did not see the retractable baton drawn, or see or hear PSO Hedges threaten to use it. She said she had been made aware that the baton was used after the incident.
She could not recall exactly the words that were said by all the parties involved. She observed the PSOs talking to the appellant and did not initially attempt to intervene because she thought the appellant may respond better to PSOs whom he knew.
Later in the cross-examination, Constable Scott explained that, while the appellant was walking, he was yelling quite aggressively. She also said he was holding a pole which had a microphone and a mobile phone attached to it. When she placed him under arrest, she believed that the appellant was going to continue to walk towards the critical incident that was unfolding. She said that the risk to the appellant and others would be “significantly high” should he move any closer to the incident. She said that the risk was in relation to the samurai sword and a large knife that had been produced towards the PSOs. She said that negotiations at the incident were ongoing.
Constable Scott said that she had been called to the area as a result of the incident at 11:55am and made the arrest at between 1:35pm and 1:45pm. She said that, when she arrived in the area, a large number of police resources were already there, including general duties police, police negotiators and tactical response officers, as well as ambulance officers.
The appellant was stopped from asking further questions about the police that were at the incident, with the magistrate saying: Mr Shoveller, the fact that there was a large number of police up there and they were dealing with this incident doesn't really have any impact on my determination of whether you hindered the police at that point. He responded: “But I got arrested because she thought I was going to get hurt.” The magistrate replied: “You got arrested because you were not complying with the orders or directions.”
In explaining her ruling, the magistrate said: [T]he issue I have to determine is whether there was a direction made and whether your actions hindered the police in their duties, and the hinder is that the police were there for a certain purpose that was to cordon off the area and to prevent vehicles and pedestrians going up to that incident.
In relation to the existence of the cordon, the witness said that there was a cordon established on her arrival and that she was tasked by the commander of the incident to create an outer cordon further back at the intersection. There was then the following exchange: MR SHOVELLER: … And you did that in your official capacity, right?---That’s correct. And what powers gives you that if you might?---I was directed by the commander of the critical incident. We’re talking about powers, like legislation, laws. HER HONOUR: I have no difficulty that the officer has those relevant powers. MR SHOVELLER: She hasn’t? HER HONOUR: She has. MR SHOVELLER : Yes, and I’m just curious to know what it is. HER HONOUR: Well, she has to comply with the directions from her superiors. MR SHOVELLER: And what legislation is that? HER HONOUR: It doesn't matter what that's – I mean, that is the role of the police officer. I'm not going to entertain that there was – whether or not there was legislation about that particular aspect of the role.
The cross-examination continued, the appellant asking about when the criminal offence started. He asked whether it commenced when he came back to the bottom of the lawn. The police officer said: [A]s I’ve previously explained, I guess it was all of those instances, the repeated attempts to speak with the defendant, to explain to him what was going on. It was not one specific point in time. It was the incident in its entirety which led to the defendant’s arrest.
Constable Scott was then shown some footage that had been taken by the appellant on the day of the incident. She was asked some questions about the interaction between the appellant and PSO Wood. In particular: (a) Constable Scott was asked about whether there was anybody else who breached the cordon. She was only aware of the appellant. However, she said: “But I would not have complete knowledge if people had breached that cordon … It was a large area.” (b) The appellant sought to further question the witness about whether or not others had breached the cordon. Those questions were disallowed because the magistrate considered that she was “only interested in your conduct on that day”. (c) Constable Scott was asked whether being aggressive was a criminal offence. She said it was not. She was asked whether walking on the lawn was a criminal offence and said: The situation needs to be looked at in its entirety, the context, the situation that was going on, the repeated requests to the defendant. It was not one singular event. It was the entirety of the interaction with the defendant.
She was asked about resistance of arrest. (This related to the third charge, on which the appellant was acquitted). She said that the appellant had tensed his arm and that, although he was directed to the ground, “his torso resisted, so that he couldn’t be placed prone easily” and that he “continued to yell that additional police officers become involved and requested that they break his arm”. She was asked what she meant by his torso resisting. She said: “You can feel by their muscles tensing and usually in how easy they are to move into a certain position, and in this case it was difficult.” She was then shown more video and asked further questions about the appellant’s body tensing and resisting arrest. She agreed that him talking was not a criminal offence.
She agreed that the offence of hindering her was occurring at the same time as hindering PSO Wood. That occurred because the appellant “failed to comply with the multiple requests and breached the cordon that had been established at that particular point in time”.
She was asked why a move-on direction was not given. She said that this was due to the appellant’s “demeanour and I guess the acuity of the incident”. She said she had no doubt that the appellant “was going to approach that critical incident”.
The appellant suggested to Constable Scott that he was engaging with PSO Wood the whole time. She said that, at the point she arrested the appellant, he was walking away and the negotiation for him to stand at a particular location and record from there — as a compromise — had failed.
She was asked about the manner in which the appellant was “taken down” as part of the arrest. She said, “I believe the voice [sic] used was reasonable and necessary” and “[t]he force that was used was reasonable and necessary in the circumstances and I used the least amount of force required to effect that arrest”.
The video taken by the appellant talking to PSO Wood was marked as Exhibit 3. There was also a video taken by the appellant of an interaction with Constable Spence which became Exhibit 4.
She then made observations about the conduct of the various officers: My overall impression was that the police dealt with the defendant very respectfully and politely. It is clear they were attempting to negotiate with the defendant so he would not keep approaching the area. I make an exception there in respect to the conduct of PSO Hedges. In my view, he acted in a way that very likely could have escalated the situation and in fact did in fact escalate the defendant’s response. In my view, particularly PSO Woods [sic] acted in an extremely polite and respectful way to the defendant, to the point where the officer was happy for the defendant to film the incident from a certain point that was inside the cordoned area that they were allowing an exception for the defendant.
The magistrate then found that it had been established that Constable Scott was a territory public official carrying out the functions of a territory public official, and that the appellant hindered her in the exercise of her functions as a territory public official “during his behaviour on the lawn moving up towards Parliament House till the point where he was arrested”. She reached the same conclusion in relation to PSOs Ceko, Hedges and Wood. She explained her conclusion by reference to the decision in Strano v Yates [2016] ACTSC 363, saying: I note that in the case of Strano v Yates [2016] ACTSC 363, where Burns J considered the action of closing a door and locking a screen door on police was an obstruction contrary to section 361 of the Code, the same provision in this matter. His Honour found that the actions did amount to an obstruction in the sense that it made it more difficult for the police to carry out their function, that although it was not an issue before his Honour, his Honour said that there is no reference in that section that the actions had to substantially obstruct or hinder the police in the exercise of their functions. So I’m not required to find that there has to be a substantial obstruction. It is merely enough for me to find that there was a hinder, that is, that the defendant’s actions made it more difficult for the police to carry out their functions.
She therefore indicated that she had found the appellant guilty on the two charges of hindering: (d) CAN 6235/2023, relating to a territory public official; and (e) CAN 11079/2023, relating to a Commonwealth public official.
She proceeded to sentence and gave reasons for the imposition of good behaviour orders.
The submissions noted that, although PSO Hedges referred to a critical incident being “declared”, “there does not appear to be a clear and specific statutory provision which provides for the general cordoning and/or exclusion of members of the public in the circumstances as described in the evidence”. The submissions identified that none of the following powers applied in the circumstances: (a) crime scene powers under Div 10.4A of the Crimes Act 1900 (ACT); (b) the power to give an exclusion direction pursuant to Pt 9 of the Crimes Act 1900; and (c) the capacity to cordon off a “target area” under s 84 of the Terrorism (Extraordinary Temporary Powers) Act 2006 (ACT).
However, the respondent submitted, relying upon the dicta of Gageler J in Smethurst v Commissioner of the Australian Federal Police [2020] HCA 14; 272 CLR 177 at [116], that this did not mean that the functions performed were not lawful functions.
The respondent referred to the powers of the Australian Federal Police under s 8 of the AFP Act. Those functions include: (a) the provision of police services in relation to: (i) the ACT: s 8(1)(a); (ii) laws of the Commonwealth: s 8(1)(b)(i); (iii) property of the Commonwealth, including Commonwealth places: s 8(1)(b)(ii); (iv) safeguarding of Commonwealth interests: s 8(1)(b)(iii) and (b) “anything incidental or conducive to the performance of the … functions”: s 8(1)(c).
The respondent submitted that the cordoning off of an area around the person with the sword to prevent members of the public from coming near the incident fell within the scope of “police services” within the meaning of s 8 of the AFP Act, read with the definition of that term in s 4. For example, the cordoning off was said to be a service “by way of the … protection of persons from injury or death” in relation to the laws of the Commonwealth, the property of the Commonwealth or the investigation of a relevant State or Territory offence, or a function which is “incidental or conducive to the performance of” that function.
The respondent submitted that the possibility that the critical incident occurred in the parliamentary zone, as defined by the Parliamentary Precincts Act 1988 (Cth), was not significant in determining whether or not the functions being performed by the PSOs and police officers fell within the scope of s 8(1) of the AFP Act.
The submissions of the appellant raised a variety of matters but included: Arresting Officer Scott gave evidence that they were to set up a Cordon on the Lower Lawn. Doesn’t seem they had the Power to do so. … Proper Police Procedure was not adhered to … Consideration
The appellant was undeniably a very difficult person for the police and PSOs to deal with. He was rude, aggressive and uncooperative. His behaviour on the day does him no credit. He appeared to be determined to create a confrontation with police and PSOs. The police dealt with him fairly, patiently and politely. So far as the PSOs were concerned, having observed the video footage, I agree with the conclusion reached by the magistrate quoted above (at [60]) in which she praised the polite and respectful conduct of PSO Wood. However, I also agree with the criticism that her Honour made of the conduct of PSO Hedges.
The significance of two issues raised in the respondent’s submissions (see [65]-[67] above), and of the refusal of the magistrate to permit any cross-examination concerning the function the police were performing ([26]-[28] above), depends upon both the factual question as to how the hindering was alleged to have occurred and the legal question as to the source of power for the relevant police and PSOs to be performing that function.
In the event that the evidence adduced inevitably established beyond reasonable doubt that the police and PSOs were performing their official functions, were hindered in doing so, and the appellant was at least reckless as to hindering them, then, notwithstanding an error in the approach taken by the magistrate, it would be appropriate to dismiss the appeal. That is because no miscarriage of justice would be demonstrated and the terms of s 218 of the Magistrates Court Act 1930 (ACT) accommodate the proviso that an appeal will not be allowed where it is shown that no miscarriage of justice has occurred: Laipato v Truman [2017] ACTSC 351 at [72]; Conway v The Queen [2002] HCA 2; 209 CLR 203 at [4]-[39].
However, if the evidence did not inevitably establish each of those matters, then the appeal would be allowed and it would be necessary to determine whether to remit the proceedings for rehearing or, alternatively, reverse the decision appealed from and enter a verdict of not guilty.
The conclusions I have reached below may be summarised as follows: (a) The evidence was inadequate to establish beyond reasonable doubt any hindering of police or PSOs in relation to dealing with the man with the sword outside Parliament House, except in relation to the maintenance of a cordon. (b) The only applicable common law or statutory powers identified in relation to the maintenance of a cordon were the generally-stated policing powers in s 8 of the AFP Act. Those were not sufficient to give a power to create a legally-enforceable exclusion zone around the incident outside Parliament House. (c) While it is possible that there were other statutory sources of power which might have given police power to cordon off an area and give a legally-enforceable direction to the appellant to stay out of that area, no such source of power was relied upon by the prosecution at the hearing before the magistrate or for the purposes of this appeal. (d) In those circumstances, the respondent has not demonstrated that this is a case in which, accepting the magistrate erred, there has nevertheless not been a miscarriage of justice. (e) Having regard to the fact that the statutory basis upon which the respondent contended that the police and PSOs were exercising their official functions has not been established, it would not be appropriate to remit the matter for rehearing so that the prosecution could attempt to rely upon a statutory or common law basis not previously relied upon.
Given the limited evidence as to what was occurring at the “critical incident”, and the fact that the immediate reason for the appellant’s arrest was his refusal to comply with directions designed to enforce the cordon, whether or not the police were performing lawful functions when establishing the cordon was a matter of significance for the determination of the charge.
No case was pointed to by the respondent which established that the statement of the functions of police in s 8 was sufficient to permit police to establish a legally-enforceable cordon around an area where a police operation was taking place. The decision in Strano, which was relied upon by the magistrate, did not establish that the taking of any step that was contrary to the direction of a police officer could amount to a breach of s 361 of the Criminal Code (ACT). Strano involved a person who was confronted by police at his front door who wished to enter his premises in order to arrest another person whom police had seen inside. The person was directed to open a screen door, but he instead locked the screen door and closed the main wooden door. This was found to amount to obstruction. However, the critical aspect of the facts, not referred to in the reasons of the magistrate, was that a warrant had been issued for the other person inside the premises, and police had a statutory power to enter premises to arrest a person on those premises for whom an arrest warrant was in existence. It was in those circumstances that Burns J found that the positive steps taken by the appellant to prevent the police from entering the premises amounted to hindering or obstructing police in the exercise of their official duties. Despite this, his Honour ultimately upheld the appeal because of the failure by the magistrate to make findings of fact relevant to a claim of right under s 38 of the Criminal Code (ACT).
The area outside Parliament House potentially falls within the scope of para (c) (“any other open place, to which the public has access whether with or without payment for admission”).
For reasons which are not clear, there is also an earlier declaration (NI 2000-44, dated 25 February 2000) which is, relevantly, in the same terms as the declaration quoted above. 102 ․ Whether or not they would apply of their own force, as at 18 June 2023, the RTSTM Act and instruments made under it were been conditionally applied to national land within the meaning of the Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) by the National Land (Road Transport) Ordinance 2014 (Cth) made under the Seat of Government (Administration) Act 1910 (Cth), noting that the relevant Ordinance has since been replaced by the Australian Capital Territory National Land (Road Transport) Ordinance 2025 (Cth).
As such, if: (a) the area where the incident occurred was within the scope of para (c) of the Declaration and hence within para (a)(vi) of the definition of “road related area” in the Road Transport (General) Act; (b) the purpose of the cordon fell within the scope of “any temporary purpose” in s 30(1)(a) of the RTSTM Act; and (c) there was no other impediment to the application of the RTSM Act to the area or the appellant; then this could provide a statutory basis for the actions of police and hence establish that the functions being performed by those who were alleged to be hindered were lawful in so far as they involved directions to the appellant to stay out of the area.
However, these provisions were not relied upon by the prosecutor in the Magistrates Court and not relied upon by counsel for the respondent in the Supreme Court. Had they been relied upon, an issue would have arisen about the relationship between the specific offence provision in s 30(2) in the RTSTM Act and the hinder offences relied upon.