Kenan Director of Public Prosecutions

[1994] HCATrans 52

IN THE HIGH COURT OF AUSTRALIA

Registry         No C21 of 1993

B e t w e e n -

SEAN KENAN

Applicant
  and

DIRECTOR OF PUBLIC
  PROSECUTIONS

Respondent

Application for special
  leave to appeal

MASON CJ
DEANE J
GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 12 OCTOBER 1994, AT 11.38 AM

Copyright in the High Court of Australia

MR G.C CORR:   May it please the Court, I appear for the applicant in this matter.  (instructed by Stacy & Nyman)

MR I.R. BERMINGHAM:   May it please the Court, I appear for the respondent in this matter.  (instructed by M. Rozenes, QC, Director of Public Prosecutions (Commonwealth))

MASON CJ:   Yes, Mr Corr.

MR CORR: Your Honours, the judges in the Full Federal Court wrongly made a decision that section 64 of the Australian Federal Police Act 1979 should be construed broadly at page 17 of the application book. It is the submission of the applicant that this section should be construed as broadly or as narrowly as any other provision relating to the criminal law, that if there is a broadening of this particular provision, it must be at the expense of the liberty of the subject, and that this is contrary to the general principles embodied in the criminal law. It is submitted that there should be the normal requirement that there should be a proof ‑ ‑ ‑

GAUDRON J:   And how would you construe it, Mr Corr?

MR CORR:   Just as broadly or as narrowly as any other provision.

GAUDRON J:   Yes, but what meaning would you give the words “in execution of his duty”?

MR CORR:   That it is when a police officer is carrying out his or her duty as they are so ordered.  They are not in the execution of their duty from the moment that they put their police cap on to the moment they take it off.

GAUDRON J:   Was it interpreted that way?

MR CORR:   It would appear so, based on the judgment of the judge at first instance, Justice Higgins, that he said that police officers had been given a particular duty to perform, namely, going through a particular camp to see whether there were any incendiary implements, et cetera, and that they had completed that particular duty and that when they had ceased completing that they were no longer acting in the execution of their duty.  That was the basis of His Honour’s decision at first instance.  I would submit that Their Honours, in the Full Federal Court, when they said that he was wrong in law in so finding were incorrect. 

GAUDRON J:   But the question was whether there was evidence that they were acting in the execution of their duty, was it not?  It was only a question whether there was evidence to go to the jury.

MR CORR:   There was some evidence that they may have been but I would submit that that may be considered that His Honour may have been wrong in fact rather than in law in so finding and that that is something that I would submit that Their Honours in the Full Federal Court made an error of.

MASON CJ:   They were still in the area, were they not?

MR CORR:   They were, Your Honour.

MASON CJ:   In other words, they had gone to this area for the purpose of making the search and they had not left the area.

MR CORR:   They were in the process of walking to their vehicles to depart from the area.

MASON CJ:   Yes.  So that they had, in effect, completed the search.

MR CORR:   That is correct, Your Honour.

MASON CJ:   But they were, none the less, in the area with the intent of leaving it.

MR CORR:   Yes, Your Honour, though they had left the particular area where they had been detailed to search.

GAUDRON J:   Also with the intent of reporting to their superior officer as to the results of their search.

MR CORR:   Yes, but, you know, there could be a number of intervening factors between officers completing one duty and then going to another.  That does not necessarily mean that they are acting in the execution of their duty at all times, and that is what we ‑ ‑ ‑

MASON CJ:   But, why would they not be acting in the execution of their duty when, having completed the search, intending to leave the area, they were proceeding to do so with the intention, ultimately, of making a report?  Why is it said they are not acting in the execution of their duty?

MR CORR:   Well, it may well be that they were, but whether Their Honours in the Full Federal Court were correct in saying that the judge at first instance was wrong in law in finding that that was not the case, I would submit that it was always open to him to do that, that there can be error creep in and so on, but as, I would submit, Their Honours in the Full Federal Court were suggesting was that he could not in any instance find that that was the particular case and, I would submit, that is incorrect.

GAUDRON J:   Well, the issue was not what His Honour could or could not find at first instance, was it, it was whether there was any evidence fit to go to the jury on the issue?

MR CORR:   Yes, Your Honour, and whether he was able to make a finding of law that it was not something that should be put to the jury, not whether there was evidence or not.  We would submit that if the finding of the Full Federal Court is followed it would in fact place an undue burden on people who are, in fact, charged with offences of this nature, particularly given the position in Reynhoudt’s case, where the Court held that the mens rea for an assault on police constituting an aggravated assault was merely the mens rea for assault rather than for both elements of that particular offence.  It is submitted that if that is the case then there is an undue burden that all that has to be required for a more serious offence, that of aggravated assault, to be proved is that a person has assaulted a police officer, that the other elements, namely, that the officer is acting in the execution of their duty, basically, do not have to be proved and this is unacceptable.

We would also submit that this decision is at odds with the decision of the Court in Webster v Lampard, a

decision of this Court, where it was held that where a provision exists in an Act that gives some protection to a police officer against a civil action, so long as they are acting in their execution of their duty, that the obligations on the police officer or person claiming that protection to show that they were in fact acting in their execution of their duty.  We would submit that in this particular instance the criminal law has been changed so that it is basically placing the onus on the defendant to show that the police were not acting in the execution of their duty rather than there being an obligation on the prosecution to show that the police were acting in the execution of their duty. 

Therefore, if this case is allowed to stand, there is, in fact, a greater protection for people in the civil law than there is in the criminal law, in relation to actions of police, and that would appear to be anomalous and unjust.  Those would be the submissions for the applicant in this matter.

MASON CJ:   Thank you, Mr Corr.  The Court need not trouble you, Mr Bermingham.

MR BERMINGHAM:   If it please the Court.

MASON CJ:   The Court is of opinion that the decision of the court below was plainly right.  The application for special leave to appeal is therefore refused.

AT 11.48 AM THE MATTER WAS ADJOURNED SINE DIE