Trevor Cottle v D.P.P [2021] NSWDC 493

District Court New South Wales

Medium Neutral Citation: Trevor Cottle v D.P.P [2021] NSWDC 493 Hearing dates: 8/09/2021 Date of orders: 17/09/2021 Decision date: 17 September 2021 Jurisdiction: Criminal Before: Gartelmann SC DCJ Decision: The appeal is dismissed. The convictions are confirmed. Catchwords: CRIME — Appeals — Appeal against conviction CRIME — Impersonation of police officers Legislation Cited: Crimes Act 1900 (NSW) Police Act 1998 (SA) Police Service Act 2003 (TAS) Victoria Police Act 2013 (VIC) Criminal Code 2002 (ACT) Criminal Code 1995 (CTH) Criminal Code Act 1913 (WA) Criminal Code 1899 (QLD) Criminal Code 1983 (NT) Texts Cited: Oxford English Dictionary Stroud's Judicial Dictionary of Words and Phrases Jowitt's Dictionary of English Law The Australian Encyclopaedic Legal Dictionary Lexis Nexis Australian Legal Dictionary Macquarie Dictionary Category: Principal judgment Parties: Trevor Cottle Director of Public Prosecution Representation: Counsel: Mr J Morris SC & Mr M Weightman for the appellant

Solicitor: Ms K Owens for D.P.P File Number(s): 2019/0040606897

Introduction 1. The appellant appeals against conviction on two charges each of impersonate police officer and intimidation.

Elements 1. The elements of the former offence are in issue. Section 546D of the Crimes Act 1900 is relevantly in these terms: Impersonation of police officers (1) General offence A person who impersonates a police officer is guilty of an offence. (2) Aggravated offence A person who, with intent to deceive— (a) impersonates a police officer, and (b) purports to exercise a power or function as a police officer, is guilty of an offence. … (4) In this section— "impersonation" does not include conduct engaged in solely for satirical purposes. 1. The Act does not define 'impersonate'. 2. The Macquarie Dictionary defines it as to assume the character or appearance of, especially for fraudulent purposes; pretend to be; to represent in personal or bodily form; personify; typify; to act (a part), especially on the stage. 3. The Oxford English Dictionary defines it as to represent or imagine (an immaterial thing or abstract quality) as a person or being; to attribute a personal nature or human characteristics to; to personify; to embody the essential characteristics of (something); to typify; to be an embodiment of (an idea, quality or feeling; to be an expression of (something abstract) in a concrete form; to provide (a soul or spirit: with a bodily form; to put into a body; to pretend to be (someone or something else), usually for the purpose of entertainment or fraud; to imitate (a person's voice, mannerisms, etc.); to act the role of a character in a play, etc.). 4. Stroud's Judicial Dictionary of Words and Phrases defines the cognate word 'personate' as to pretend to be a person (who it suggests must be real). Jowitt's Dictionary of English Law defines 'personation' as the act of representing oneself to be someone else (whether living or dead, real or fictitious). The Australian Encyclopaedic Legal Dictionary and Lexis Nexis Australian Legal Dictionary both define 'false impersonation' as passing oneself off as another. 5. The provision may be considered in light of comparable ones repealed and in other jurisdictions. 6. Some specifically concern impersonation of police officers. Section 74 of the Police Act 1998 SA makes it an offence of 'impersonate police' for a person to represent him or herself by word or conduct to be a police officer. Section 78 of the Police Service Act 2003 TAS makes it an offence of 'impersonation' for a person to impersonate or represent him or herself as a police officer. Section 256 of the Victoria Police Act 2013 VIC makes it an offence of 'impersonate police' for a person to hold him or herself out to be a police officer. Section 362 of the Criminal Code 2002 ACT makes it an offence of 'impersonate police' for a person to represent him or herself to be a police officer. 7. Some concern impersonation of other officers. Section 148.1 of the Criminal Code 1995 CTH makes it an offence of 'impersonation of an official' for a person to impersonate or falsely represent him or herself as a Commonwealth official. Section 87 of the Criminal Code Act 1913 WA makes it an offence of 'impersonate public officer' for a person to represent him or herself by word or conduct to be a public officer. 8. Others concern impersonation generally. Section 514 of the Criminal Code 1899 QLD makes it an offence of 'personation' for a person to falsely represent him or herself to be another. Section 272 of the Criminal Code 1983 NT makes it an offence of 'personation' for a person to falsely represent him or herself to be another. The repealed s 184 of the Crimes Act 1900 NSW made it an offence of 'fraudulent personation' for a person to falsely personate or pretend to be another. 9. The minister said in the second reading speech when introducing the legislation inserting the provision: "The impersonation of a police officer has the potential to have very serious consequences. Many people when faced with a person who is wearing a police uniform, or claiming to be a police officer, would feel obliged to comply with any requests or instructions given by that person provided that they seemed reasonable. This could have serious consequences. I am deeply concerned that persons impersonating police officers for criminal purposes can do considerable harm, both as a direct consequence of their criminal activity, and as a result of the loss of trust and the decline in co-operation by members of the community with the police if they are uncertain that they are dealing with authentic police officers." 1. The minister also noted the proposed amendments included an aggravated offence to be charged "where a person has impersonated a police officer and purported to exercise some power, or powers, of a police officer". 2. The appellant contends impersonating a police officer differs from pretending to be one and that is not enough for a person merely to represent him or herself as one; the person must engage in a police activity. The Crown contends it is enough for a person merely to represent him or herself as a police officer. 3. Dictionary definitions of impersonate and personate all comprehend the meaning of a person pretending to be or representing him or herself as someone or something. 4. Comparable offences concerning impersonation in other jurisdictions variously proscribe a person impersonating, pretending to be, or representing or holding him or herself out as, someone or something. 5. The reference to both 'personates' and 'pretends to be' in the repealed s 184 does not necessarily imply the legislature differentiated conduct constituting each. It may reflect a concern to capture conduct whether its object was fictitious or real: cp. Clarkson v R [2007] NSWCCA 70 at [49]. 6. It is not apparent any distinction is recognised in legal usage between impersonation on the one hand and a person pretending to be, or representing him or herself as, someone or something on the other. 7. The aggravated offence in s 546D(2) comprises additional elements of specific intent and exercise of a power or function of a police officer. The latter would be redundant if inherent in the basic offence. It is difficult to conceive of such activities not comprising exercise of police powers or functions. The elements of the aggravated offence militate against a construction of the basic offence requiring any police activity. 8. The second reading speech confirms the legislature was concerned to address the potential loss of community trust in and cooperation with police that a person simply claiming to be a police officer might cause and to provide for the greater penalty in the aggravated offence where a person purports also to exercise police powers. 9. In summary, dictionary definitions, the statutory context, and the legislature's purpose all support a construction of the offence as constituted where a person pretends to be or represents him or herself as a police officer. No police activity need be involved and a mere representation may suffice. Whether particular words and conduct constitute impersonation will depend on their context and all the circumstances. 10. The elements of the offence of intimidation are uncontroversial and relevantly as follows. Intimidation includes conduct that causes a reasonable apprehension of injury. The conduct must be done with the intention of causing the person to fear physical or mental harm. This includes causing the person to fear such harm to another in a domestic relationship with him or her. Knowledge that the conduct is likely to cause the other person to fear such harm will suffice. No proof the other person was actually caused fear is required.