PARTIES: THE QUEEN
WHITTINGTON, ROBERT GREGORY
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO: No 20304540
DELIVERED: 11 August 2006
HEARING DATES: 8-9 August 2006
JUDGMENT OF: MILDREN J
CRIMINAL LAW – motion to quash indictment for failure to provide particulars – police officer in the execution of his duties- whether accused can rely on s 26 of the Code – whether act was authorised – whether particulars of why the act was not authorised required to be given – motion dismissed
Criminal Code (NT) s 26(1), s 26(1)(a), s 26(1)(b), s 29(2)(b), s 27, s 28, s 29, s 408
Police Administration Act s 25, s 26, s 27, s 28
Cintana v Burgoyne (2003) 13 NTLR 130
Gardiner v Marinov (1998) 7 NTLR 181
MacKinley v Wiley (1971) WAR 3
R v Slade (1995) 1 Qd.R 390
Plaintiff: J Tippett QC and D Lewis
Defendant: M L Abbott QC and I Rowbottam
Plaintiff: Office of the Director of Public Prosecutions
Judgment category classification: B
Judgment ID Number: Mil 06382
Number of pages: 4
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
The Queen v Whittington  NTSC 65
ROBERT GREGORY WHITTINGTON
CORAM: MILDREN J
REASONS FOR JUDGMENT
(Delivered 11 August 2006)
 This is a motion to quash the indictment.
 The accused, a serving police officer, is charged with doing a dangerous act with circumstances of aggravation by discharging a firearm which act caused the death of one Robert Jongmin.
 The charge arises from an incident which occurred on 23 October 2002 at Wadeye in the Northern Territory. It is alleged by the Crown that at approximately 2:00 pm that day the accused discharged his police issued Glock pistol by firing four shots in quick succession over a distance of approximately 40 to 50 metres in a public place in which a large number of members of the public, including men, women and children were present, in the direction of the deceased and one Tobias Worumbu, both of whom were in close proximity to one another and in the direction of domestic housing in circumstances which caused actual damage to Robert Jongmin who was shot dead. The accused is a serving member of the Northern Territory Police Force and was the relieving officer in charge of the Wadeye (Port Keats) Police Station. The accused intends to claim that his actions were authorised as well as justified and that he accordingly committed no offence. Mr Tippett QC concedes that, on the evidence led at the committal, the accused has raised s 28 and s 29 of the Criminal Code, which means that the Crown must prove that his acts were not justified by either of those provisions. It is not clear to me which limb of s 28 will be relied upon. Section 29 deals with defensive conduct. It is not clear to me precisely which of the provisions of s 28 and s 29 are, or will become engaged once the trial begins, but Mr Tippett QC has informed me that in either case the Crown intends to prove that the force used was unnecessary force or, in terms of s 29(2)(b) was not a reasonable response in the circumstances as the accused reasonably perceived them to be.
 Originally this matter was listed for trial before Martin AJ and the motion to quash was based upon an indictment which the accused then faced for manslaughter as well as for dangerous act. The accused sought certain particulars of the indictment which the Crown declined to provide. Martin AJ referred certain questions of law arising therefrom to the Court of Criminal Appeal pursuant to s 408 of the Criminal Code. The Court of Criminal Appeal answered the questions which arose, but the trial was subsequently relisted before me and the motion to quash had not been dealt with.
 In my opinion, the answers to the questions of law provided by the Court of Criminal Appeal meant that the only course open was to dismiss the motion as it was originally framed. However, Mr Abbott QC withdrew that motion and instead pursued a fresh motion before me that the Crown is obliged to provide particulars of why the accused’s actions were not authorised. After hearing submissions, I ordered that that motion be dismissed. I provided at the time only short reasons and said that I would provide full reasons at a later time. These are those reasons.
 The submission of Mr Abbott QC is that s 26(1)(a) or s 26(1)(b) of the Code is engaged if the accused at the time he discharged his weapon, was acting honestly in the purported execution of his duty as a police officer to keep the peace. I accept that a police officer has, by virtue of his office, a duty to keep the peace: see Police Administration Act s 25, s 26, s 27, s 28 and the form of oath set out in the Schedule to the Act. I accept also that a police officer is, by virtue of his office, entitled to exercise the powers at common law necessarily incidental to the discharge of his functions as a peace officer or a conservator of the peace: see Gardiner v Marinov (1998) 7 NTLR 181 at 190-191 per Martin CJ; Cintana v Burgoyne (2003) 13 NTLR 130 at  to . However, the common law did not permit the use of unnecessary force by a police officer to effect the keeping of the peace. Where a police officer was entitled to use force, his acts were said to be “justified”. The common law did not provide for such acts being “authorised”.
 There is no authority for the proposition that a police officer is, at common law, entitled to use deadly force in order to keep the peace. The case cannot therefore be brought within s 26(1)(a) of the Code. In my opinion, the position, so far as keeping the peace is concerned, is governed solely by s 27 of the Code which specifically provides for the circumstances under which force may be used to prevent a breach of the peace.
 Nor in my opinion is a police officer entitled to pray in aid s 26(1)(b) of the Code merely because he is acting in the execution of his duty. It has been held that this provision applies only where the act, which would otherwise be criminal, was necessary in the performance of the officer’s duty so that it could be said to be an act done under the compulsion of that duty in the sense that the failure to perform the duty would have led to sanctions for non-performance: see MacKinley v Wiley (1971) WAR 3; R v Slade (1995) 1 Qd.R 390 especially at 399. No submission was made that the facts went this far.
 As s 26(1) of the Code is not engaged in the circumstances of this case, there is no basis upon which the motion to quash can be granted.