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Meller v Low

Meller v Low

Case [2000] NSWSC 75 23 February 2000

Breach of Contract

Causation

Compensatory Damages

Statutory Construction

Criminal Liability

Criminal Law

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Reported Decision: 48 NSWLR 517

New South Wales

Supreme Court

CITATION: Meller v Low [2000] NSWSC 75

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): SC 12658/99

HEARING DATE(S): 15 February 2000

JUDGMENT DATE: 23 February 2000

PARTIES :

Anthony John MELLER (Plaintiff)
Garry LOW (Defendant)

JUDGMENT OF: Simpson J at 1

COUNSEL : Mr P Lakatos - Plaintiff
Mr P Berman - Defendant

SOLICITORS: T Murphy - Plaintiff
S E O'Connor - Defendant

LEGISLATION CITED: Crimes Act 1900
Interpretation Act 1987
Crimes Amendment (Assault of Police Officers) Act 1997
Crimes Act 1914 (Cth)

CASES CITED: R v Adams (1035)53 CLR 563
Beckwith v R (1976) 135 CLR 569
Waugh v Kippen (1986) 160 CLR 156
Smith v Corrective Services Commission (NSW) (1980) 147 CLR 134 at 139
Neale v Colquohoun [1944] SASR
Ex parte Fitzgerald; Re Gordon (1945) 45 SR (NSW) 360 at 365
Bond v Goudie [1937] SASR 417 at 419
R v Mathews (1993) 2 Qd R 316
Connor v Kent [1891] 2 QB 545
Judge v Bennett (1887) JP 247
DPP v Mills [1997] 2 CR App R 6.

DECISION: Orders deferred

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
SIMPSON J
23 February 2000
12648/99

Anthony John MELLER v Garry LOW

Judgment

HER HONOUR :

1 On 12 August 199 the plaintiff was convicted by a magistrate of two charges of intimidating police officers (Garry Low and Mark Carter in the first charge, Jon Pearce in the second charge). In the present proceedings he seeks an order quashing the convictions and a declaration that the magistrate erred in holding that the prosecution had made out a prima facie case.
2 The charges were laid under s 60(1) of the Crimes Act 1900 which is in the following terms:

“60(1) A person who assaults, stalks, harasses or intimidates a police officer in the execution of the officer’s duty, although no actual bodily harm is occasioned to the officer, is liable to penal servitude for 5 years.”

3 The only evidence given in the proceedings was provided to the magistrate by way of statements made by the prosecution witnesses, all police officers. There was no challenge to any of the facts asserted. The evidence established that, at about 2.40 pm on 28 April 1999 police were present at a location in Waterloo where they were arresting two individuals (not the plaintiff). A conversation took place between the plaintiff and Constable Low to the following effect:

Plaintiff: What have you got my brother for, you dog?

Constable Low: He is under arrest for an attempt stealing.
Plaintiff: Fucken let him go you cunts, you’re fucked.

Constable Low: Shut your mouths or you will be arrested as well.

Plaintiff: Fuck you cunts. You’re nothing. I’ll have you.

I’m going to kill you fucken dogs, we have out own ways of getting you cunts back.

Immediately before making the last threat the plaintiff took off his shirt. A woman who was with the plaintiff pulled him back into a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Meller v Low

Details

AGLC: Meller v Low [2000] NSWSC 75
Case: [2000] NSWSC 75
Decision Date: 23 February 2000

CaseChat Overview and Summary

In the case of Meller v Low, the plaintiff, Anthony John Meller, sought to quash his convictions for intimidating police officers under s 60(1) of the Crimes Act 1900 and to obtain a declaration that the magistrate erred in finding that the prosecution had established a prima facie case. The defendant, Garry Low, was one of the police officers involved in the incidents leading to the charges against Meller. The dispute centred on the interpretation of the term "intimidates" within s 60(1) of the Crimes Act 1900 and whether actual intimidation was necessary for a conviction under this section.

The court was required to decide whether the prosecution needed to prove that the police officers were actually intimidated or whether the mere act of intimidation, without actual intimidation, was sufficient for a conviction. The legal issues involved statutory interpretation, the principle of strict construction of criminal statutes, and the requirement of proving actual intimidation under the statute.

Simpson J held that the term "intimidates" in s 60(1) of the Crimes Act 1900 required actual intimidation to be proven for a conviction. The judge concluded that the word "intimidate" had a plain and ordinary meaning, which included the effect on another person. The court found that the offence was not committed unless there was proof that a person was in fact intimidated. The decision was supported by the principle of strict construction of criminal statutes, which meant that the conduct must come within the expressed terms of the statute. The judge further held that there was no direct evidence that the police officers were intimidated, and thus the inference that they were intimidated was not properly open. Consequently, the magistrate's rulings were erroneous, and the convictions were quashed.

The final orders of the court were to quash the convictions for intimidating police officers and to direct the parties to bring in short minutes of order reflecting the conclusions in the judgment.

Orders