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District Court 19 August 2022

Colbron v R

[2022] NSWDC 370

Public order & justice offences

Citation: Colbron v R [2022] NSWDC 370
Court: District Court of New South Wales
Date: 19 August 2022
Judge: Scotting DCJ

Background

The appellant, a serving police officer, was concerned that a colleague (referred to throughout as the leading senior constable, or LSC) was leaving his police station at the end of shifts wearing his uniform and police appointments, including a firearm, concealed under a hoodie. The appellant believed the LSC's conduct breached internal policy but considered formal complaints futile due to the risk of identification and reprisals.

On 1 July 2020, the appellant called the Police Assistance Line (PAL) and reported that a man, who appeared to be a police officer and was armed, was walking into a nearby primary school. The appellant framed the report as a contemporaneous observation. It was common ground that he was approximately 7 kilometres from the school at the time of the call and that the LSC was in fact seated in his vehicle and had not entered the school grounds.

The Downing Centre Local Court found the appellant guilty of public mischief under s 547B of the Crimes Act 1900. The appellant appealed that conviction to the District Court as of right.

  • Whether the representation made to the PAL operator was "false" within the meaning of s 547B of the Crimes Act 1900, particularly where the appellant held a genuine belief that similar conduct had occurred previously.
  • Whether s 547B is limited to reports of entirely fictitious events (such as bomb hoaxes), or whether it also captures representations about real underlying concerns that are falsely framed as presently occurring.
  • Whether the magistrate erred by finding the representation false on the basis of omissions rather than the content of what was actually said.

Decision

Scotting DCJ dismissed the appeal, finding all elements of the public mischief offence established beyond reasonable doubt. The central issue was the proper construction of s 547B and whether the appellant's call to the PAL constituted a false representation.

The Court found the representation was plainly false as to fact. The appellant told the PAL operator that he was witnessing the LSC walking into school grounds in partial uniform and carrying a firearm. That event was not occurring at the time of the call. The appellant was not present at the school and the LSC had not left his vehicle. A truthful representation in those circumstances would have been that the appellant had reasonable grounds to believe the conduct might be occurring, not that he was observing it in real time.

The Court rejected the appellant's argument that the representation should be assessed by isolating individual statements within the call rather than by reading it as a whole. His Honour also rejected the proposition that s 547B applies only to entirely invented events. The statute is engaged where the representation of a presently occurring event is false, even if an underlying concern has some factual basis.

Finally, the Court found no merit in the submission that the magistrate convicted on the basis of omissions. The real falsity lay in the appellant actively representing a present event that was not happening, not in what he failed to disclose. His Honour also noted that the call produced real consequences: a priority response from multiple units, the need for a senior officer to intervene, a potentially dangerous situation for the detectives and the LSC, and unwarranted embarrassment to the LSC.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • Under s 547B of the Crimes Act 1900, a representation is false where the event described as currently occurring was not in fact occurring, even if the caller had a genuine belief that similar conduct had taken place on an earlier occasion.
  • The public mischief offence is not confined to wholly fabricated events such as bomb hoaxes. It extends to representations that falsely portray an underlying concern as a present, observable incident.
  • A conviction for public mischief under s 547B requires assessment of the representation conveyed by the communication as a whole, not isolated extracts taken out of context.
  • In dismissing the appeal, the District Court confirmed that an appeal under s 18 of the Crimes (Appeal and Review) Act 2001 requires demonstration of factual, legal or discretionary error, while the prosecution continues to bear the onus of establishing guilt beyond reasonable doubt throughout.
  • The prosecution's burden does not shift simply because the appellant demonstrates that the underlying concern motivating the report had some factual basis.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 547B (public mischief)
- Crimes (Appeal and Review) Act 2001 (NSW), s 18

Cases
- AG v Director of Public Prosecutions [2015] NSWCA 218
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Gianoutsas v Glykis [2006] NSWCCA 137
- Lumney v Director of Public Prosecutions [2021] NSWCA 186
- McNab v Director of Public Prosecutions [2021] NSWCA 298