Reported Decision : 48 NSWLR 517 New South Wales Supreme Court CITATION : Meller v Low [2000] NSWSC 75 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12658/99 HEARING DATE(S) : 15 February 2000 JUDGMENT DATE : 23 February 2000 PARTIES : Anthony John MELLER (Plaintiff) Garry LOW (Defendant) JUDGMENT OF : Simpson J at 1 COUNSEL : Mr P Lakatos - Plaintiff Mr P Berman - Defendant SOLICITORS : T Murphy - Plaintiff S E O'Connor - Defendant Crimes Act 1900 LEGISLATION CITED : Interpretation Act 1987 Crimes Amendment (Assault of Police Officers) Act 1997 Crimes Act 1914 (Cth) R v Adams (1035)53 CLR 563 Beckwith v R (1976) 135 CLR 569 Waugh v Kippen (1986) 160 CLR 156 Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134 at 139 Neale v Colquohoun [1944] SASR CASES CITED : Ex parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 360 at 365 Bond v Goudie [1937] SASR 417 at 419 R v Mathews (1993) 2 Qd R 316 Connor v Kent [1891] 2 QB 545 Judge v Bennett (1887) JP 247 DPP v Mills [1997] 2 CR App R 6. DECISION : Orders deferred THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SIMPSON J 23 February 2000 12648/99 Anthony John MELLER v Garry LOW Judgment HER HONOUR : 1 On 12 August 199 the plaintiff was convicted by a magistrate of two charges of intimidating police officers (Garry Low and Mark Carter in the first charge, Jon Pearce in the second charge). In the present proceedings he seeks an order quashing the convictions and a declaration that the magistrate erred in holding that the prosecution had made out a prima facie case. 2 The charges were laid under s 60(1) of the Crimes Act 1900 which is in the following terms: "60(1) A person who assaults, stalks, harasses or intimidates a police officer in the execution of the officer's duty, although no actual bodily harm is occasioned to the officer, is liable to penal servitude for 5 years." 3 The only evidence given in the proceedings was provided to the magistrate by way of statements made by the prosecution witnesses, all police officers. There was no challenge to any of the facts asserted. The evidence established that, at about 2.40 pm on 28 April 1999 police were present at a location in Waterloo where they were arresting two individuals (not the plaintiff). A conversation took place between the plaintiff and Constable Low to the following effect: Plaintiff: What have you got my brother for, you dog? Constable Low: He is under arrest for an attempt stealing. Plaintiff: Fucken let him go you cunts, you're fucked. Constable Low: Shut your mouths or you will be arrested as well. Plaintiff: Fuck you cunts. You're nothing. I'll have you. I'm going to kill you fucken dogs, we have out own ways of getting you cunts back. Immediately before making the last threat the plaintiff took off his shirt. A woman who was with the plaintiff pulled him back into a nearby house. 4 Subsequently police returned and arrested the plaintiff and took him to the Redfern police station. At about 3.50 pm he was in the dock of the police station when he saw Constable Pearce. The plaintiff said: "Pearcey, we're gonna find where you live. You're gonna get it good prick." 5 It was on the basis of this evidence that the magistrate held, firstly that a prima facie case had been established, and secondly that each offence had been proved beyond reasonable doubt. The significant fact to be noted is that there was no direct evidence that any of the police officers to whom the words were directed was in fact intimidated, put in fear or experienced any apprehension as a result of what the plaintiff said. It is the absence of any such evidence that gives rise to the challenge to the magistrate's rulings. The plaintiff's submission is that proof of actual intimidation is essential to support a charge under s 60(1). I have concluded that this submission should be accepted. 6 S 60 appears in Part 3 of the Crimes Act and is entitled and concerned with "Offences Against the Person". No definition of "intimidates" as it appears in s 60 is given in the Act. The concept of intimidation appears elsewhere in the Act, where it is defined (s 545B(2) and s 562A(2)) but in each case the definition is expressly limited in its application to the specific section or Part of the Act in which it appears. The definitions, which are in similar terms in each case, have no application to the concept of intimidation as it appears in s 60(1). It is necessary to resort to fundamental principles of statutory construction in order to ascertain the meaning to be ascribed to the word as it is used in the section. By s 33 of the Interpretation Act 1987 a construction that would promote the purpose or underlying object of the statutory provision in question is to be preferred to one that would not. 7 While criminal statutes are to be construed by reference to the same rules and principles as other statutes, where the language is doubtful or ambiguous the doubt or ambiguity is to be resolved by limiting, not expanding, the conduct encompassed: R v Adams (1935) 53 CLR 563; Beckwith v R (1976) 135 CLR 569; Waugh v Kippen (1986) 160 CLR 156. Although in Beckwith Gibbs J (as he then was) expressed the view that: "The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times" The rule appears to have undergone a revival by reason of its subsequent endorsement in the High Court in Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134 at 139. 8 It is insufficient, to found a criminal conviction, that the conduct of the accused comes within the spirit of the legislation if it does not also come within its expressed terms: Neale v Colquhoun [1944] SASR 119 at 122; or that the legislature intended to bring that conduct within the statute but through inadvertence failed to do so: Ex parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 182 at 186. Where the relevant statutory provision is open to more interpretations than one, or where an answer favourable to the accused person may reasonably be given on the application of the statute to the facts as found, the benefit of the doubt must in all cases be given to the accused person: Ex parte Zietsh: Re Craig (1944) 44 SR(NSW) 360 at 365; Bond v Goudie [1937] SASR 417 at 419. 9 With these principles in mind I turn to consider what construction ought be placed on the word "intimidates" as it is used in s 60(1). It is, first, an ordinary English word, readily understood, with no technical or complex or concealed meaning. The Oxford English Dictionary, 2nd Edition, and the Macquarie Dictionary are in agreement that "intimidate" means to render timid, to inspire with fear, to overawe, to cow, or to force to or deter from some action by threats or violence or by inducing fear. 10 One thing common to the ordinary notion of intimidation, and to all the dictionary definitions given is that the act that constitutes the intimidation has an effect on another person. "Intimidate" is a transitive verb. While particular behaviour may be intimidatory in its nature without causing actual fear or apprehension, there is no intimidation unless and until the behaviour has affected its object in the required manner, that is, by inducing fear or affecting conduct. Behaviour may have a capacity to intimidate, it may be intended or designed to intimidate, but it does not intimidate until it has worked its effect in the person to whom it is directed. Intimidation does not exist in the air. It does not occur until the effect is created. The concept is twofold: intimidation necessarily consists both of a particular form of conduct and the effect the conduct has on another person. There is no intimidation until another person has been intimidated. 11 I am therefore satisfied that on the proper interpretation of the plain words as used in s 60(1) the offence is not committed unless and until there is proof that a person was in fact intimidated. There is no suggestion in the section that an attempt to intimidate, or an intention to intimidate would be sufficient to constitute the offence. It would have been a simple matter so to legislate had that been the legislature's intention. It is therefore unnecessary to look to extrinsic materials in order to construe the section. It is, however, permissible to look to such materials in order to confirm that the meaning of the section is the ordinary meaning conveyed by its text: Interpretation Act 1987, s 34(1)(a). 12 S 60 in its present form was introduced into the Act via the Crimes Amendment (Assault of Police Officers) Act 1997. The original draft bill which apparently was limited in its terms to assaults on police officers was amended in committee by the insertion of the words "stalks, harasses or intimidates". Accepting the amendment, the Attorney General Mr Shaw said: "Initially it was suggested that threats against the police should be encompassed in that proposition. However, that would create legal difficulties. In any event, threats that cause police to fear the immediate infliction of unlawful violence are covered by the common law definition of assault. Consequently, police officers are protected against threats which cause them to fear violence." (Hansard, Legislative Council, 27 June 1997, p 11333.) 13 The passage extracted shows that the decision to exclude "threats" against police officers (in which would plainly be included the behaviour of the plaintiff) from the behaviour caught by the section was a deliberate and considered one. (Quite what "legal difficulties" would be created by their inclusion escapes me, but that is immaterial.) 14 My view independently formed and stated above that the proper construction of "intimidates" in the section requires actual intimidation is confirmed by reference to the remarks of the Attorney General. I am satisfied that, in order to sustain a conviction for intimidation of a police officer acting in the execution of his duty under s 60 it is necessary for the prosecution to prove that the police officer was put in fear or apprehension, was forced into or deterred from some action by being put in fear, or was overawed or cowed. 15 Further support for the proposition is to be derived from the words between the commas in the sub section, showing that the attention of the legislature was drawn to incompleted acts or attempts or assaults that fall short of causing physical harm. That the legislature did not adopt the same course in relation to intimidation confirms the view I have taken. 16 I should add that I was referred to a number of decided cases concerning charges of intimidation under various statutes and from various jurisdictions. These included R v Mathews (1993) 2 Qd R 316; Connor v Kent [1891] 2 QB 545; Judge v Bennett (1887) JP 247; DPP v Mills [1997] 2 CR.App.R 6. In none of these cases did the specific question with which I am confronted arise. Some reliance was placed by counsel for the plaintiff on passages in Mathews to the effect that proof of the charge (which was in that case brought under s 36A of the Crimes Act 1914 (Cth)) required proof that the victim had been intimidated, but this was of little assistance because the issue in that case was confined to the mental element involved in the offence. The passages relied upon assumed the need to prove the effect on the person intimidated. The issue in the present case simply did not arise in Mathews, and so far as counsel's researches have disclosed, has not arisen elsewhere. 17 The conclusion which I have reached in relation to the construction of the subsection is not necessarily the end of the matter. The DPP argued that the magistrate was entitled to and did infer that the plaintiff's behaviour had the requisite effect on the officers. For the purpose of this argument it is unnecessary to attempt to delineate the circumstances in which an essential element of a prosecution case can be proved by inference. That even a charge as serious as murder may be proved by circumstantial evidence shows that a Crown case, including essential elements, can be made out by evidence sufficient to give rise to an inference, if the relevant inference is drawn by the tribunal of fact. However, the circumstances must be such as to permit that inference properly to be drawn. Those circumstances are not here present. It is one thing to acknowledge that the plaintiff's behaviour in this case bore an intimidatory character. There can be little doubt that it was capable of causing intimidation. But it is quite another thing to conclude, in the absence of direct evidence, that police officers were intimidated. The evidence shows that some at least of the police officer knew and were known to the plaintiff, were in the company of one another at the time of the first incident, and in company and in the security of the police station at the time of the second. True it is that the plaintiff's threats there concerned something he might do or have done away from the police station, but, in the absence of evidence from the police officers, the inference that they were in fact put in fear or apprehension was not properly open. 18 It is appropriate to make orders of the kind sought in the summons. Since there was no argument directed to the precise form of the orders I direct the parties to bring in short minutes of order reflecting the conclusions in this judgment. ********** Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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