Citation: Cottle v DPP [2021] NSWDC 493
Court: District Court of New South Wales
Date: 17 September 2021
Judge: Gartelmann SC DCJ
Background
The appellant was convicted in the Local Court on two charges each of impersonating a police officer and intimidation, arising from two separate incidents at a school in 2019. In both incidents, the appellant attended the school in connection with a dispute involving his brother's child and made representations to school staff that he was a police officer.
In the first incident, on 1 March 2019, the appellant told a teacher he was a Detective Sergeant at Lake Macquarie Command, claimed it was his job to put away paedophile police officers, and stated that ongoing investigations into the child's treatment were underway. In the second incident, on 19 March 2019, the appellant told a school staff member he was a police officer and an AVO advocate, used abusive language, and told her he knew where she lived and would deal with it himself.
The appellant appealed to the District Court against his convictions on all four charges. The central contest on the impersonation charges concerned what conduct the offence actually requires.
Legal Issues
- Whether the offence of impersonating a police officer under section 546D of the Crimes Act 1900 (NSW) requires the accused to engage in some form of police activity, or whether a mere representation that one is a police officer is sufficient.
- Whether the elements of the intimidation offences were made out on the evidence.
- Whether any procedural unfairness arose in relation to the particulars relied on by the prosecution for the second intimidation charge.
Decision
On the meaning of "impersonation": The appellant argued that pretending to be a police officer is not enough on its own. He contended the accused must actually engage in a police activity. Gartelmann SC DCJ rejected that construction, finding that dictionary definitions, comparable interstate and Commonwealth legislation, the structure of the section itself, and the second reading speech all pointed to the same conclusion: a person impersonates a police officer by pretending to be, or representing themselves as, a police officer. No police activity is required.
The court drew particular support from the structure of section 546D itself. The aggravated offence under subsection (2) requires the additional elements of specific intent and the purported exercise of a police power or function. If engaging in a police activity were already required for the basic offence, that element in the aggravated offence would be redundant. The legislature's stated purpose in the second reading speech also confirmed the provision was directed at the harm caused by a person simply claiming to be a police officer, including damage to public trust and cooperation with police.
On the intimidation charges: The elements of intimidation were not in dispute. The court found that, in both incidents, the appellant's words and conduct were such as to cause a reasonable apprehension of injury. The court inferred that the appellant knew his conduct would likely cause the relevant school staff members to fear harm, which satisfied the mental element of the offence. No proof of actual fear experienced by the complainants was required.
On procedural fairness: The appellant raised a concern that the prosecution had not adequately particularised the conduct relied on for the second intimidation charge. The court found no practical unfairness had resulted, as the prosecution had adduced all the relevant evidence in its case, put the conduct to the appellant in cross-examination, and relied on it in closing address. The defence had a proper opportunity to respond.
Orders Made
- The appeal is dismissed.
- The convictions are confirmed.
Key Takeaways
- Under section 546D of the Crimes Act 1900 (NSW), the offence of impersonating a police officer is made out where a person pretends to be, or represents themselves as, a police officer. The prosecution does not need to prove the accused engaged in any police activity.
- The structure of section 546D supports this construction: requiring police activity for the basic offence would render the "exercise of a power or function" element in the aggravated offence meaningless.
- Comparative legislation across Australian jurisdictions (South Australia, Tasmania, Victoria, the ACT, the Commonwealth, Western Australia, Queensland, and the Northern Territory) consistently frames impersonation offences as requiring only a representation or holding-out, reinforcing the District Court's interpretation.
- On intimidation, proof that the accused knew his conduct was likely to cause fear of physical or mental harm is sufficient. Proof that the complainant actually experienced fear is not required.
- Where a prosecution case has not been formally particularised, procedural unfairness may still be avoided if the accused has had a genuine opportunity to respond to the evidence and conduct relied upon, including through cross-examination.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 546D (impersonation of police officer), 184 (repealed, fraudulent personation)
- Police Act 1998 (SA), s 74
- Police Service Act 2003 (TAS), s 78
- Victoria Police Act 2013 (VIC), s 256
- Criminal Code 2002 (ACT), s 362
- Criminal Code 1995 (Cth), s 148.1
- Criminal Code Act 1913 (WA), s 87
- Criminal Code 1899 (QLD), s 514
- Criminal Code 1983 (NT), s 272
Cases:
- Clarkson v R [2007] NSWCCA 70 (referred to in passing on statutory interpretation)