By Matthew Drogemuller and Ugur Nedim
Intimidation-type offences have been enacted to prohibit the making of threats towards the personal safety of others.
For instance, section 60(1) of the Crimes Act 1900 (NSW) makes it an offence to assault, throws a missile at, stalk, harass or intimidate a police officer who is in the execution of his or her duty. The offence carries a maximum penalty of 5 years’ imprisonment.
Until now, it has generally been understood that laws prohibiting intimidation require the defendant to make threats directly to the intimidated party, rather than indirectly through another person.
However, a decision by the New South Wales Supreme Court, handed down in March, has found that intimidation can indeed occur through a third party; for example, where one person tells another they are going to cause harm to a third person, who is then made aware of the threat.
Facts of the case
The decision involved a threat by Robert Best, who was well known to Blacktown police officer Matthew Fulham.
Detective Fulham testified in court that he had “extensive knowledge” of Mr Best, including “his antecedents, his daily lifestyle, the persons who he associates with… [and] the criminal antecedents of those persons.”
In fact, Mr Fulham had previously charged Mr Best with murder, a charge which Best was later acquitted of at trial.
On 21 November, 2014, Mr Best attended Blacktown police station and attempted to speak with Mr Fulham about his conduct during that case, but Fulham was unavailable at the time.
When Sergeant Sameh Morgan, who was working at the station, asked how he might help, Best allegedly said: “Just tell him [Mr Fulham] that if he doesn’t back off I’m going to go and get a gun and kill him.”
Mr Best was arrested and charged under section 60(1). During a hearing in Blacktown Local Court, Fulham testified that when he heard about the threat, he was genuinely fearful and thought Fulham had the capacity to carry it out.
However, the charge was dismissed after the Local Court Magistrate found that a threat must be made directly to the person who is threatened.
The Director of Public Prosecutions (DPP) appealed to the Supreme Court on a matter of law – arguing it was possible to ‘intimidate’ someone without directly interacting with them.
The Supreme Court
In the Supreme Court, the DPP argued that giving a narrow definition to the word “intimidates” could result in “extraordinary” acquittals, such as where threats are made by email or voice mail.
Justice Hulme was asked with deciding the meaning of the word.
His Honour found that the mental element of the offence requires the accused to have intended to “induce fear or affect conduct”, and that it does not matter whether the threat is made directly or indirectly.
Consequently, he found no requirement for “intimidatory conduct” to be carried out directly in the presence of the threatened person.
The case has been returned to the Local Court to decide whether the specific facts support a conviction under the law as it is now interpreted.
Impact
The Supreme Court’s broad interpretation of “intimidation” may impact upon a number of other ‘intimidation-type’ offences, potentially including the meaning of “intimidation” under the frequently-used section 13 of the Crimes (Domestic and Personal Violence) Act 2007 (NSW), which typically relates to domestic situations. That offence also carries a maximum penalty of 5 years’ imprisonment.
There are a number of other NSW offences which may also be affected, including sending documents containing threats (section 31, maximum penalty of 10 years) and conveying false information that a person is in danger (section 93Q, maximum penalty of 5 years).
Whether the facts of Mr Best’s case support a conviction remains to be seen.
