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Court of Criminal Appeal 12 November 1999

REGINA v ORCHER

[1999] NSWCCA 356

Also reported as (1999) 48 NSWLR 273
Public order & justice offences
CRIMINAL LAW PARTICULAR OFFENCES CRIMES ACT 1900 (NSW), S326(1)(C)

Citation: [1999] NSWCCA 356; 48 NSWLR 273
Court: Court of Criminal Appeal, New South Wales
Date: 12 November 1999
Judge(s): Spigelman CJ; Grove J; Sully J

Background

The respondent was arrested at Bourke and taken to the police station, where he was charged with malicious damage to property and granted conditional bail. Later that evening, police arrested him again for breaching his bail conditions. While seated in the charge dock, the respondent made serious threats to the arresting officer, Constable Thorn, including threats to shoot him and to kill his family.

The respondent was charged under s 326(1)(c) of the Crimes Act 1900 (NSW), which prohibits threatening injury or detriment to a person on account of anything lawfully done by them as a "public justice official" in or in connection with a judicial proceeding. A magistrate convicted him, but on appeal, Rummery DCJ proposed to quash the conviction on a question of law and stated a case for the Court of Criminal Appeal.

The case turned on two distinct questions: whether a police officer falls within the statutory definition of "public justice official," and, if so, whether an arrest constitutes conduct "in or in connection with" a judicial proceeding.

  • Whether Constable Thorn, as a member of the NSW Police Service, was a "public justice official" for the purposes of s 326(1)(c) of the Crimes Act 1900 (NSW).
  • Whether the act of arresting the respondent and taking him to Bourke Police Station was an act done "in or in connection with a judicial proceeding" within the meaning of that provision.

Decision

Question 1: Is a police officer a "public justice official"?

The Court answered this question "No" in the specific context of Question 2, but the judgment's reasoning on Question 1 is significant. Spigelman CJ found that the statutory definition of "public justice official" in s 311(1) covers persons employed in any capacity (other than as a judicial officer) for the investigation, detection or prosecution of offenders. The Court accepted that police officers ordinarily perform duties falling within that definition and confirmed that a police officer is, in principle, a "public justice official" for the purposes of the provision. The answer of "No" to Question 1 as framed reflects the particular framing of the stated case, which asked whether the District Court was correct to find that Constable Thorn was not a public justice official. The Court disagreed with the District Court on that point.

Question 2: Was the arrest "in or in connection with" a judicial proceeding?

The Court answered this question "No." Spigelman CJ reasoned that the phrase "in connection with" does not carry its fullest dictionary meaning in every context, and its scope must be calibrated to the statutory purpose. Drawing on the structure of s 326 and the analogous provision in s 322, his Honour held that the required connection must be of a similar quality to the relationship that a witness, juror, or judicial officer bears to a proceeding. The provision targets conduct with the potential to detrimentally affect the conduct of a judicial proceeding itself, not merely conduct that might deter one from commencing.

An arrest, the Court held, is a necessary preliminary step toward a judicial proceeding but is not part of its conduct. Threats directed at an arresting officer do not have the potential to impinge on the way a judicial proceeding is conducted. Citing Mason CJ's observation in R v Rogerson that police do not administer justice in any relevant sense, Spigelman CJ concluded that threats made during an arrest fall outside the scope of s 326(1)(c). Grove J and Sully J agreed.

Orders Made

  • Question 1 (whether Constable Thorn was not a public justice official): answered "No" (that is, the District Court was incorrect; a police officer can be a public justice official).
  • Question 2 (whether the arrest was an act done in or in connection with a judicial proceeding): answered "No."

Key Takeaways

  • A police officer can qualify as a "public justice official" under s 311(1) of the Crimes Act 1900 (NSW), given that the definition encompasses persons employed for the investigation, detection or prosecution of offenders.
  • The phrase "in connection with any judicial proceeding" in s 326(1)(c) does not carry its broadest possible meaning; its scope is constrained by the statutory purpose and requires a connection of similar quality to that borne by a witness, juror, or judicial officer to the proceeding.
  • Under s 326(1)(c), the relevant conduct must carry the potential to detrimentally affect the conduct of a judicial proceeding itself; conduct that might merely deter the commencement of proceedings does not satisfy this requirement.
  • An arrest is a necessary preliminary step toward a judicial proceeding but does not form part of its conduct, meaning threats made to an arresting officer during that process do not fall within the provision.
  • The Court of Criminal Appeal drew support from Mason CJ's reasoning in R v Rogerson (1991-92) 174 CLR 268, treating the words "in connection with judicial proceedings" in s 326 as carrying a similar scope to "the administration of justice" as that concept was explained in that High Court decision.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 311(1), 322, 326(1)(c), 341
- Crimes (Public Justice) Amendment Act 1990 (NSW)
- Bail Act 1978 (NSW)

Cases
- R v Rogerson (1991-92) 174 CLR 268
- Customs & Excise Commissioners v Top Ten Promotions Ltd [1969] 1 WLR 1163
- Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144
- Hatfield v Health Insurance Commission (1987) 15 FCR 487
- Health Insurance Commission v Freeman (1998) 168 ALR 267