Reported Decision : 156 A Crim R 113 New South Wales Supreme Court VELLA v. DPP [2005] NSWSC 897 CITATION : This decision has been amended. Please see the end of the judgment for a list of the amendments. HEARING DATE(S) : Thursday 4 August 2005 JUDGMENT DATE : 7 September 2005 JURISDICTION : Common Law JUDGMENT OF : Hall J at 1 DECISION : Orders: (a) that the plaintiff be granted an extension of time for leave to appeal; (b) that the orders of the second defendant be vacated; (c) that the convictions be quashed; (d) that the matter be remitted back to the second defendant to be dealt with according to law; (e) no order as to costs. CATCHWORDS : Plaintiff convicted of harassment and intimidation of a police officer - conduct - judicial notice taken of plaintiff's campaign against police - plea in bar - double punishment - charge of intimidation against the plaintiff subsumes the charge of harassment. Crimes Act 1900 (NSW) LEGISLATION CITED : Evidence Act 1995 Pearce (1998) 194 CLR 612 Meller v. Low (2000) 48 NSWLR 517 O'Sullivan v. Lunnon (1986) 163 CLR 545 CASES CITED : Island Maritime Limited v. Filipowski [2004] NSWCCA 453 Mathews (1992) 64 A. Crim. R. 305 O'Connell 8 ER 1061 VELLA, David Anthony v. PARTIES : DIRECTOR OF PUBLIC PROSECUTIONS FILE NUMBER(S) : SC No. 12570 of 2005 Plaintiff: J. Stratton, SC. COUNSEL : Defendant: P.I. Lakatos Plaintiff: S. E. O'Connor SOLICITORS : Defendant: S.C. Kavanagh LOWER COURT JURISDICTION : Local Court LOWER COURT JUDICIAL OFFICER : J. Stephenson, LCM. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION HALL, J. WEDNESDAY 7 SEPTEMBER 2005 No. 12570 of 2005 DAVID ANTHONY VELLA v. DIRECTOR OF PUBLIC PROSECUTIONS & ANOR JUDGMENT 1 HIS HONOUR: The plaintiff challenges a decision of a Local Court magistrate (the second defendant) by which he was convicted on charges that he harassed and intimidated a police officer while in the execution of the officer's duty. He seeks orders that the convictions be quashed and that the matters be remitted back to the magistrate to be dealt with according to law. 2 There are two issues raised in the proceedings. The first is whether the learned magistrate erred by taking into account "judicial notice" of other activities of the plaintiff, which were not the subject of evidence before the magistrate. The second is whether the learned magistrate erred in law in convicting the plaintiff of both harassment and intimidation of the police officer in question (Inspector Johnson) in respect of the same conduct. The evidence before the magistrate 3 The proceedings were heard on 18 April 2005. The brief of evidence tendered on the prosecution, is Annexure B to the affidavit in support of the plaintiff's summons (the affidavit of Paul Johnson sworn 17 June 2005). 4 According to the statement of Inspector Andrew William Johnson, he was walking across Byng Street, Orange at about 1.15 pm on Wednesday 13 November 2003 towards the main Police Station. At the time, he was wearing full police uniform. On approaching Byng Street, he saw the plaintiff standing on the kerb of Byng Street at the front of the Police Station. He was holding some papers in his hand. 5 Inspector Johnson's evidence was that the plaintiff approached him and said, "You are just fucken' corrupt as the rest of them, I'm going to get you and bring you down, you fucken' cunt. You set me up with all those parking tickets". Inspector Johnson stated that, as the plaintiff was threatening him, he walked closer to him, eventually being almost face to face with Inspector Johnson and still continuing a barrage of abuse towards him. He stepped backwards but the plaintiff again moved closer. Inspector Johnson said, "Dave, what are you talking about?". The plaintiff did not answer the question but continued his verbal abuse, primarily focusing on alleged police corruption. 6 At this point, Officer Senior Constable Sammut approached. The plaintiff remained abusive and stated, "I want you to read this document that I have, I now have proof that you bastards are taking drugs and are corrupt". 7 Inspector Johnson began to read the document. The plaintiff then said, "I will get you and bring you down and all the other coppers in this station. I have proof that you are all corrupt". Inspector Johnson said, "Dave, please leave the area and stop swearing". The plaintiff then walked away, although still abusing police. 8 Inspector Johnson claimed that the plaintiff's behaviour was "extremely intimidating". He said that the plaintiff had continually walked towards him "waving his arms in a threatening manner". The magistrate's decision 9 The magistrate's decision is recorded in the transcript of 18 April 2005. It recited the facts in evidence and reference is made in it to the provisions of s.60(1) of the Crimes Act 1900 (NSW). The learned magistrate recorded the fact that the population of the country town of Orange was approximately 30,000 people. She recorded the fact that the Police Station is located alongside the courthouse and stated:- "… I take judicial notice that the accused, David Vella, has an ongoing campaign against police alleging corruption. On many an occasion a large sign alleging such corruption was placed on the back of the truck and parked outside the police station in close proximity to this Court, invisible from the Court registry windows. On the front windows of the accused's business premises, which faces a main thoroughfare of Orange, a sign naming certain police as corrupt had been painted, although such painting cannot be directly attributed to the accused. Printed notices appeared throughout Orange town, the CBD, placed it on windows and shops and nearby streets alleging police corruption. It appears in furtherance of this campaign the accused and the Inspector came into proximity on 13 November 2003." 10 The second defendant then made findings that the plaintiff's actions, including, in particular, his abuse whilst moving towards the police inspector, constituted harassment of Inspector Johnson within the meaning of the provisions of s.60(1) of the Crimes Act. In due course, the learned magistrate also made a finding that the actions of the accused came within the meaning of the provisions of s.60(1) of the Act and also constituted intimidation of Inspector Johnson. 11 It is clear from the decision challenged in the proceedings that the learned magistrate did place weight upon what was described as the plaintiff's "campaign against the police" on the basis of judicial notice. Towards the end of the decision, the statement appears:- "Should the accused not have been prominent in his campaign against the police, judicial notice would not have been able to have been taken of his prior actions in relation to his campaign and hence the prosecution may well have lacked some salient evidence in this matter …" 12 I turn to the grounds relied upon by the plaintiff. Ground 1: Her Honour erred by taking into account "judicial notice" of other activities of the plaintiff not in evidence 13 It is clear from the terms of the magistrate's decision that the "campaign" of the plaintiff was expressly relied upon by her in finding the offences proved. 14 The provisions of s.144 of the Evidence Act 1995 provides as follows:- "Matters of common knowledge (1) Proof is not required about knowledge that is not reasonably open to question and is:- (a) common knowledge in the locality in which the proceedings is being held or generally, or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The judge may acquire knowledge of that kind in any way the judge thinks fit. (3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account. (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced." 15 The plaintiff submitted that the learned magistrate's personal observations of other conduct of the plaintiff were not matters of which she could properly take "judicial notice". 16 It was also submitted that her Honour failed to comply with the requirement of s.144(4) to give him an opportunity to make submissions or to refer to relevant information before taking "judicial notice" of the facts concerning the plaintiff's campaign. 17 Mr. P.I. Lakatos of counsel, who appeared on behalf of the defendants, did not contest the issue of judicial notice and, in fact, agreed:- (a) that material or information related to the alleged campaign of the plaintiff was not knowledge within the meaning of s.144(1) of the Evidence Act 1995 (NSW) ; (b) that, in any event, no opportunity had been provided in accordance with the provisions of s.144(4) of the Evidence Act . 18 The substantive issue on this summons, accordingly, turned on Ground 3, namely, the contention that her Honour erred in convicting the plaintiff on both counts of intimidation and harassment of Inspector Johnson based on the same conduct. 19 The provisions of s.60(1) of the Crimes Act 1900 (NSW) are as follows:- "(1) A person who assaults, stalks, harasses or intimidates a police officer while in the execution of the officer's duty, although no actual bodily harm is occasioned to the officer, is liable to imprisonment for five years." 20 The resolution of Ground 3 essentially turns upon the application of the principles as to a plea in bar which was discussed by the High Court in Pearce v. The Queen (1998) 194 CLR 612, in particular, at 616-617 (paragraphs [18] to [19]). 21 Mr. J. Stratton, SC. submitted on behalf of the plaintiff that, where an accused is charged with both intimidating and harassing a police officer, the latter offence is necessarily subsumed in the former. Reliance was placed upon the decision of Simpson, J. in Meller v. Low (2000) 48 NSWLR 517 in which her Honour adopted, at p.519, the Oxford English Dictionary definition of "intimidate" as meaning "to render timid, to inspire with fear, to overawe, to cow, or to force to or defer from some action by threats or violence or by inducing fear". 22 Mr. Stratton further submitted that a finding that an accused had harassed a police officer would not necessarily lead to the conclusion that the accused had intimidated the police officer but that a finding that an accused person had intimidated a police officer would necessarily lead to the conclusion that he had harassed him or her. 23 In order to evaluate the submission, it is necessary to identify with as much precision as possible what conduct constitutes intimidation of a police officer and what conduct is embraced within the word harasses in s.60(1). The offence of intimidation of police officers 24 In Meller (supra), there was an absence of any direct evidence that any of the police officers to whom the words were directed was in fact intimidated, put in fear or that they experienced any apprehension as a result of what the plaintiff said. It was the absence of such evidence that gave rise to the challenge to the magistrate's rulings in that case. The issue was whether proof of actual intimidation is essential to support a charge under s.60(1). The court concluded that it was. 25 In the course of her decision in that case, Simpson, J. made a number of observations, including the following:- • There is no definition of the expression "intimidates" as it appears in s.60 of the Crimes 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. • 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. • One thing common to the ordinary notion of intimidation, and to all the dictionary definitions given, is that the act constituting the intimidation has an effect on another person. • The word "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 that has a capacity to intimidate does not in fact intimidate until it has worked its effect in the person to whom it is directed. In other words, intimidation does not occur until the effect is created. • The concept of intimidation is two-fold: it 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 in fact been intimidated. 26 Simpson, J. concluded in Meller (supra) 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, and was forced into or deterred from some action by being put in fear, or was overawed or cowed (at p.520). The meaning of "harasses" in s.60(1) Mr. Stratton, SC. submitted that the meaning of "harass" or "harasses" should be given its ordinary dictionary meaning of "troubling" or "vexing" . Mr. Lakatos of counsel agreed that the dictionary meaning was appropriate for the purposes of s.60(1). 27 In the context of a statutory provision creating an offence, inter alia, in respect of any act calculated to harass, annoy or cause harm of distress to any person on account of his or her performance of duties ordinarily performed in the course of his or her employment in connection with the supply of electricity under s.5(1)(c) of the Electricity (Continuity of Supply) Act 1985 (Q), Gibbs, CJ. was prepared to accept that the word harass meant to trouble or vex: O'Sullivan v. Lunnon (1986) 163 CLR 545, 550. 28 The Macquarie Dictionary, Revised 3rd Edition, defines harass as including:- 1. to trouble by repeated attacks, incursions, etc., as in war … harry; raid. 2. to disturb persistently; torment, as with troubles, cares, etc." 29 In light of the meanings to be ascribed to the words intimidates and harasses it is necessary to consider the principles subjacent to a plea in bar. Plea in bar 30 The submission on behalf of the plaintiff in essence is that he cannot be convicted of both intimidation and harassment of Inspector Johnson based upon the same conduct and maintains that the prosecution should have been put to its election and not to proffer both charges against the accused. The plaintiff, it was contended, had available to him a plea in bar on the charge of harassing Inspector Johnson. 31 Senior Counsel for the plaintiff did observe that the prosecution's submissions in the Local Court refer to the two charges in the alternative (prosecution's submissions, paragraph one) but that this appears to have been overlooked by her Honour. 32 Accordingly, it is necessary to examine the principles underpinning a plea in bar in respect of the charge of harassment of Inspector Johnson in the event of a new hearing and in the event that the plaintiff were to be found guilty of the offence of intimidating. 33 In Pearce (supra) at 616 to 620, the High Court (McHugh, Hayne and Callinan, JJ.) examined the principles underpinning a plea in bar. See also Island Maritime Limited v. Filipowski [2004] NSWCCA 453 The following propositions may be taken from the joint judgment in Pearce (supra):- (a) It is clear that the plea in bar goes to offences the elements of which are the same as, or are included in, the elements of the offence for which an accused has been tried to conviction or acquittal. (b) Difficulties arise in determining whether a plea in bar is available when a person is charged with different offences arising out of substantially the same facts and these may stem from two sources: the first concerns the uncertainties inherent in the proposition that it is enough that the offences are "substantially" the same. The second arises from the attempt to identify the "sameness" of two offences by reference to the evidence that would be adduced at trial. (c) In identifying what must be proved to establish the commission of each of the offences, it is necessary to identify the elements of the offences. 34 The decision of the High Court in Pearce (supra) established that it is necessary to confine the availability of a plea in bar to cases in which the elements of the offences charged are identical or in which all of the elements of one offence are wholly included in the other. The principle focus of the rule underlying a plea in bar is the rule against repeated prosecution for a single offence. 35 Mr. Lakatos contended that the plaintiff's submission in relation to the asserted plea in bar was not made out. He stated that there are different elements to the offence involved and in support referred to the joint judgment in Pearce (supra) at 621, double punishment. Reference was also made to comments of the prosecutor recorded in the transcript before the magistrate on 21 January 2005 commencing at line 40. 36 In relation to the question of double punishment addressed by the High Court in Pearce (supra), the following propositions are propounded:- (a) In creating offences, legislatures must necessarily proscribe conduct by reference to particular elements. A complex act by an accused may contain all the elements or more than one offence. (b) It follows that to punish the whole of the accused's criminal conduct, there will be cases where more than one offence must be charged and punishment exacted for each. (c) To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. (d) The punishment to be exacted should reflect what an offender has done; it should not be effected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means the offences overlap. To punish an offender twice if conduct falls in that area of overlap would be to punish offenders according to the accidents of legislative history, rather than according to their just desserts. Analysis 37 In determining the submissions made on behalf of the plaintiff based on the principles enunciated in Pearce (supra) in reference to the rule of plea in bar, it is essential to identify the elements of the offence of intimidation arising under s.60(1) of the Crimes Act assisted by the observations of Simpson, J. to which I have earlier referred. 38 Additionally, in Regina v. Mathews (1992) 64 A. Crim. R. 305 at 307, McPherson, JA. examined the offence of intimidation of a witness in contravention of s.36A of the Crimes Act 1914 (Cth). In the course of the analysis in that case, the following observations were made:- • In a context like s.36A, the word "intimidate" and its derivatives is not a technical term, or a term of art, but a word in common use employed in its popular sense: O'Connell (1988) 11 Cl. & Fin 155 at 235; 8 ER 1061 at 1092; • Ordinarily intimidation would involve some threatening words or conduct tending to coerce the other person; • Whether there has been intimidation is a question for the jury to decide on the evidence. 39 The essence of the offence under s.60(1) involves conduct of a particular character, namely words and/or actions which are threatening in nature or have a tendency or capacity to coerce another person and which does impact upon a police officer as discussed in paragraph [25]. 40 In establishing an offence in relation to intimidatory conduct, the elements of the offence under s.60(1) include:- (a) a particular form of conduct, whether words or actions or both; (b) conduct that is capable of inspiring fear or is capable of coercing another to do or defer from some action; (c) conduct directed at a law enforcement officer while in the execution of the officer's duty; (d) actual intimidation of such an officer. 41 The legislative intention behind s.60(1) of the Crimes Act 1900 (NSW) can be taken to be the protection of police officers from unlawful and other specified conduct which is capable of, and does, interfere with the execution of an officer's duty. Conduct consisting of words and/or actions that vexes or troubles a police officer in the execution of duties is conduct that harasses such an officer. The proved intimidation of a police officer, in the sense discussed above, would necessarily subsume or embrace a conclusion that by such conduct that person had also harassed the police officer. 42 I am accordingly of the opinion that the charge of intimidating Inspector Johnson against the plaintiff necessarily subsumes the former charge of harass him. 43 It follows that in my opinion the plaintiff is entitled to raise a plea in bar to the count of harassing Inspector Andrew Johnson. I accordingly make the following orders:- (a) that the plaintiff be granted an extension of time for leave to appeal; (b) that the orders of the second defendant be vacated; (c) that the convictions be quashed; (d) that the matter be remitted back to the second defendant to be dealt with according to law; (e) no order as to costs. ********** 08/09/2005 - Orders on front cover (template) did not coincide with orders in main judgment - Paragraph(s) 44 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.