Criminal law: September 2017

Director of Public Prosecutions (NSW) v Nikolovski [2017] NSWSC 1038

Intimidation – assault of a police officer –choice of charges

In this decision, the Supreme Court looked at the subtle differences between two different intimidation offences, and reminded courts that the prosecution is the sole decision-maker when it comes to choice of charges.

The defendant was charged with intimidation, pursuant to s 13 of the Crimes (Domestic and Personal Violence) Act 2001. The victim was an on-duty Inspector of Police; the defendant had made intimidating remarks to him, including remarks of a sexual nature about the officer’s wife (remarks that, the magistrate found, the officer had taken to heart). Since the officer was acting in the execution of his duty, the matter could alternatively have been dealt with under s 60(1) of the Crimes Act 1900, which provides offences for a number of varieties of assault against police officers. In the Local Court hearing, the magistrate dismissed the charge under the Crimes (Domestic and Personal Violence) Act on the basis that it should have been charged under s 60(1) of the Crimes Act – otherwise, said the magistrate, she would have found the charge proven.

The prosecution appealed the dismissal. Adamson J, sitting alone, allowed the appeal and remitted the matter for hearing according to law.

The first basis upon which the magistrate’s decision was wrong was that there was no reason to find that the specific offence under the Crimes Act displaced the more general offence under the Crimes (Domestic and Personal Violence) Act. Secondly, the decision presupposed that a prosecutor is obliged to choose the most appropriate offence – and that the Court was entitled to review that decision (at [11]).

Although there are rules of statutory interpretation to the effect that specific provisions override the general provisions (her Honour referred to the Latin maxims ejusdem generis and expressio unius est exclusive alterius – phrases which see disappointingly rare usage outside university courses on statutory interpretation), these provisions were in different pieces of legislation. As a result, no presumption could be made that the specific offence relating to police officers overrode the general intimidation offence which applies to everybody (at [13]).

The offences carry subtly different elements. In particular the element in s 61(1) of the Crimes Act that the accused ‘intimidates’ an officer carries its natural meaning – and so requires that the prosecution prove that the victim actually felt intimidated. In the Crimes (Domestic and Personal Violence) Act, the natural meaning is changed and there is no obligation to prove actual intimidation (only a reasonable apprehension of injury to a person) (at [18]-[19]).

The difference in the elements perhaps explained why the prosecution chose the offence it did. The choice of charge is solely one for the prosecutor, not the courts. So, once it is accepted that the offence in the Crimes (Domestic and Personal Violence) Act can be committed against a police officer, the court has no role to question why another offence was not chosen (at [23]).