The Queen v Whittington [2007] NTCCA 2

PARTIES: THE QUEEN

v

WHITTINGTON, Robert Gregory

TITLE OF COURT: COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION: CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO: CA 14 of 2006 (20304540)

DELIVERED: 26 February 2007

HEARING DATES: 26 February 2007

JUDGMENT OF: MARTIN (BR) CJ, THOMAS &
RILEY JJ

CATCHWORDS:
CRIMINAL LAW - APPEAL
Appeal against decision to quash indictment – police offences – limitation of time for prosecution – whether the Criminal Code displaces the operation of s 162(1) of the Police Administration Act – appeal dismissed.

Criminal Code (NT) s 1, s 66 and s 154; Criminal Code Act, s 5; Police Administration Act s 162.

R v Cooling (1989) 44 A Crim R 171 applied.
Hamilton v Halesworth (1937) 58 CLR 369; Little v The Commonwealth (1947) 75 CLR 94; Trobridge v Hardy (1955) 94 CLR 147; Rose v Hvric (1963) 108 CLR 353; Webster v Lampard (1993) 177 CLR 598; Ferdinands v Commissioner for Public Employment (2006) 224 ALR 238, followed.

REPRESENTATION:

Counsel:
Appellant: J Tippett QC
Respondent: M Abbott QC

Solicitors:
Appellant: Office of the Director of Public Prosecutions
Respondent: Withnalls

Judgment category classification: A
Judgment ID Number: Mar0701
Number of pages: 10

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

The Queen v Whittington [2007] NTCCA 2
No. CA 14 of 2006 (20304540)

BETWEEN:

THE QUEEN
Appellant

AND:

ROBERT GREGORY WHITTINGTON
Respondent

CORAM: MARTIN (BR) CJ, THOMAS & RILEY JJ

REASONS FOR JUDGMENT

(Delivered 26 February 2007)

The Court:
[1] This is an appeal by the Director of Public Prosecutions against a decision of a Judge to quash an Indictment charging the respondent with the crime of Dangerous Act contrary to s 154 of the Criminal Code (“the Code”). The Indictment also charged an Aggravating Circumstance that by the dangerous act the respondent thereby caused the death of another.


[2] In substance the learned trial Judge found that s 162(1) of the Police Administration Act (“the Act”) applied and required that the prosecution be brought within two months of the act said to amount to the crime. As the prosecution was not brought within that time, his Honour quashed the Indictment.


[3] At the conclusion of submissions we dismissed the appeal. We now set out our reasons.


Background
[4] On 23 October 2002 the respondent was a serving police officer and a relieving sergeant at Wadeye. Acting in the course of his duties, the respondent attended a disturbance involving a number of people and, while attending the disturbance, discharged his police firearm on four occasions. One of the bullets struck and killed the victim. It was the discharge of the firearm that was the basis of the Crown case that the respondent committed the crime of Dangerous Act.


[5] A number of preliminary issues were argued before the trial Judge. During submissions his Honour drew the attention of counsel to s 162(1) of the Act which, at the relevant time, was in the following terms:

“(1) Subject to this section, all actions and prosecutions against any person for anything done in pursuance of this Act shall be commenced within two months after the act complained of was committed, and not otherwise.”


[6] It is common ground that the prosecution against the respondent was not brought within two months of the respondent’s act of discharging his police firearm. It was also common ground before the Judge and in this Court that if s 162(1) applied, the Judge was required to quash the Indictment.


Proceedings before the Trial Judge
[7] From the outset of submissions relating to the application of s 162(1), the trial Judge expressed concern that the question whether the respondent was acting “in pursuance of” the Act for the purposes of s 162(1) was a question of fact to be determined by a jury. His Honour correctly indicated that if this question of fact was to be determined by a jury, his Honour could not, as a preliminary issue, determine whether s 162(1) applied.


[8] In this context, the Crown identified the factual basis upon which it sought to proceed against the respondent. In summary, the factual basis advanced by the Crown was as follows:

• At the time the respondent attended the disturbance and up to the point at which he discharged his firearm, the respondent was acting in pursuance of the Act in the performance of his duties as a police officer.
• The respondent’s act in discharging his firearm amounted to “unnecessary force” and, as a consequence, the discharge of the firearm was not authorised, justified or excused and amounted to the crime of Dangerous Act.
• At the time the respondent discharged his firearm, the respondent genuinely believed that he was acting in the proper performance of his duties as a police officer.


[9] The concession by the Crown that at the time the respondent discharged his firearm he genuinely believed he was acting in the proper performance of his duties necessarily confined the basis upon which the Crown contended that the respondent used “unnecessary force”. Section 1 of the Code defines unnecessary force as follows:
“‘unnecessary force’ means force that the user of such force knows is unnecessary for and disproportionate to the occasion or that an ordinary person, similarly circumstanced to the person using such force, would regard as unnecessary for and disproportionate to the occasion.”


[10] If the respondent knew that discharging his firearm was using force that was unnecessary for and disproportionate to the occasion, he could not have genuinely believed he was acting in the proper performance of his duties. It necessarily followed from the Crown concession that the respondent held such a genuine belief that the Crown was not advancing a case that the force was unnecessary because the respondent knew the force was unnecessary. The Crown case was based solely upon the second limb of the definition of unnecessary force, namely, that an ordinary person, similarly circumstanced to the respondent, would regard the force as unnecessary for and disproportionate to the occasion.


[11] The factual basis of the Crown case having been identified, in response to a question from the Judge senior counsel for the Crown agreed that the sole issue to be determined was whether s 162(1) applied to the circumstances of the respondent. In contending that s 162(1) had no application, counsel advanced two submissions. First, that the Code covers the field with respect to prosecutions under the Code and s 162(1) has no application. Secondly, and in the alternative, that the enactment of the Code impliedly repealed s 162(1) to the extent that s 162(1) is inconsistent with the Code. Both submissions were rejected by the Judge.


The Appeal
[12] On the appeal to this Court, after discussion and consideration of the proceedings before the trial Judge, senior counsel for the Crown agreed that before the trial Judge the Crown had conceded that at the moment he discharged his firearm the respondent genuinely believed he was acting in the proper performance of his duties. The Crown maintained that concession in this Court. The concession having been made, neither the trial Judge nor this Court was required to consider the evidence. The factual basis upon which the trial Judge and this Court were to proceed was agreed between the parties.


[13] There was a further concession made in this Court which should be mentioned. At the outset counsel for the Crown sought to agitate, for the first time, the contention that even if the respondent genuinely believed he was acting in the proper performance of his duties nevertheless s 162(1) did not apply because the act of discharging the firearm was unlawful and, therefore, was not “in pursuance of” the Act. However, after consideration of the proceedings before the trial Judge and relevant authorities, the Crown conceded that the proposition could not succeed. That concession was well made. A succession of High Court authorities plainly establishes that provisions such as s 162(1) apply if the unlawful act is committed by a person who genuinely believes that the act was done in the proper execution of that person’s duties: Hamilton v Halesworth (1937) 58 CLR 369 at 374 and 380; Little v The Commonwealth (1947) 75 CLR 94 at 108; Webster v Lampard (1993) 177 CLR 598 at 605 and 619.


[14] In essence, in this Court the Crown advanced the single proposition that s 162(1) is inconsistent with the Code because the Code covers the field with respect to prosecutions for offences against the Code, including any time limits for such prosecutions. As the Code does not contain any time limit for instituting a prosecution for an offence against s 154 of the Code, s 162(1) is inconsistent with the Code and, therefore, has no application to the prosecution of the respondent. If that contention succeeded, it would necessarily follow that the trial Judge was in error and the order quashing the indictment would be set aside. The Crown agreed that if that contention failed, the appeal should be dismissed.


[15] Inconsistency between the Code and s 162(1) is not readily apparent. The Code does not prescribe a time limit within which a prosecution for the crime of Dangerous Act must be instituted. In 2002 the only time limit prescribed by the Code was found in s 66(6) which provided that a prosecution for any crime defined in s 66 must be instituted within one year after the crime was committed. Section 66 was concerned with offences relating to riotous assembly. In other words, the Code was silent on the question of time limits for the prosecution of all other crimes against the Code.


[16] Notwithstanding silence of the Code as to time limits, the Crown submitted that as the Code covers the field with respect to all aspects concerned with the prosecution of criminal offences under the Code, by inference the Legislature intended that the Code deal exclusively with time limits for the institution of prosecutions. In particular, counsel referred to the various provisions which circumscribe the power of the police to use force, including lethal force, by specifying the circumstances in which the use of force by police officers is justified. By inference, argued counsel, the Legislature intended that no time limits would apply for the institution of prosecutions of police officers for the use of unjustified force and the operation of s 162(1) is thereby ousted. To determine otherwise would be to treat police officers differently from the rest of the community in connection with prosecutions under the Code.


[17] As the trial Judge observed, the purpose of s 162(1) “is not to make lawful that which would otherwise be unlawful”. Section 162(2) is not a substantive provision concerned with the elements of a crime. Nor does it provide a defence in respect of unlawful conduct committed by a police officer. Section 162(1) is a provision concerned solely with the process of prosecution: R v Cooling (1989) 44 A Crim R 171 at 173. It governs an aspect of the process about which the Code is silent.


[18] Section 162(1) of the Act was in force at the time of the enactment of the Code. There is nothing in the Criminal Code Act or the Code from which an inference could reasonably be drawn that time limits for prosecutions of offences under the Code were to be found exclusively within the Code itself. To the contrary, s 5 of the Criminal Code Act which was the Act that established the Code tends to suggest otherwise:

“5. Establishment of Code
On and from the commencement of the Parts of the Code, those Parts shall be the law of the Territory in respect of the various matters therein dealt with.”


[19] As we have said, other than in respect of riotous assembly, the question of a time limit for the institution of a prosecution under the Code is not “therein dealt with”.


[20] Section 162(1) is not the only legislative provision outside the Code concerned with time limits for the institution of prosecutions. Section 49 of the Justices Act provides that a complaint may be made to a Justice where a person has committed a “simple offence”. The offence of common assault contrary to s 188 of the Code is a simple offence. Section 52 of the Justices Act provides that where no time is specified for the making of a complaint, “the complaint shall be made within six months from the time when the matter of the complaint arose”. If the Crown contention is correct, s 52 has no application because no time limit is prescribed in the Code for the laying of a complaint alleging common assault contrary to s 188. That contention cannot be accepted.


[21] There is no inconsistency between the Code and s 162(1). No “explicit or implicit contradiction” exists between the Code and s 162(1): Rose v Hvric (1963) 108 CLR 353 at 358. There is no indication in the Code of a legislative intention to oust the operation of s 162(1). They can readily be read and applied together.


[22] A determination that s 162(1) applied to the circumstances of the respondent does not lead to an absurd result. Section 162(1) only has application if an officer was acting in good faith in the sense that the officer believed that the conduct in question occurred in the proper performance of the officer’s duty. Section 162(1) has no application if the conduct of the officer was motivated by bad faith or was “actuated solely or predominately by a wrong or indirect motive”: Trobridge v Hardy (1955) 94 CLR 147 at 162. In the absence of a concession as to the mental state of the police officer whose conduct is called into question such as the concession made with respect to the respondent’s mental state, the question whether an officer was acting in good faith or otherwise will be a question for the jury. If an officer is found to be acting in bad faith, s 162(1) will not have application. Whatever one may think of the policy underlying the prescription of a time limit, it is not difficult to recognise that a policy founded on special considerations applying to officers acting in pursuance of their duty could lead the Legislature to the view that it is desirable to incorporate a time limit such as that found in s 162(1). We note that subsequent to the events under consideration s 162(1) was amended and now applies only to offences against the Act. It no longer applies to prosecutions under the Code.


[23] The presumption that two laws made by the one legislature are intended to work together “is not displaced”: Ferdinands v Commissioner for Public Employment (2006) 224 ALR 238 per Gummow and Hayne JJ at 252 [49].


[24] For these reasons, in our view the trial Judge was correct in determining that s 162(1) applied to the prosecution of the respondent and in quashing the Indictment.
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