Trevor Cottle v D.P.P

[2021] NSWDC 493

District Court

New South Wales

Medium Neutral Citation:

Trevor Cottle v D.P.P [2021] NSWDC 493

Hearing dates:

8/09/2021

Date of orders:

17/09/2021

Decision date:

17 September 2021

Jurisdiction:

Criminal

Before:

Gartelmann SC DCJ

Decision:

The appeal is dismissed. The convictions are confirmed.

Catchwords:

CRIME — Appeals — Appeal against conviction

CRIME — Impersonation of police officers

Legislation Cited:

Crimes Act 1900 (NSW)

Police Act 1998 (SA)

Police Service Act 2003 (TAS)

Victoria Police Act 2013 (VIC)

Criminal Code 2002 (ACT)

Criminal Code 1995 (CTH)

Criminal Code Act 1913 (WA)

Criminal Code 1899 (QLD)

Criminal Code 1983 (NT)

Texts Cited:

Oxford English Dictionary

Stroud’s Judicial Dictionary of Words and Phrases

Jowitt’s Dictionary of English Law

The Australian Encyclopaedic Legal Dictionary

Lexis Nexis Australian Legal Dictionary 

Macquarie Dictionary

Category:

Principal judgment

Parties:

Trevor Cottle
Director of Public Prosecution

Representation:

Counsel: Mr J Morris SC & Mr M Weightman for the appellant

Solicitor: Ms K Owens for D.P.P

File Number(s):

2019/0040606897

Introduction

1. The appellant appeals against conviction on two charges each of impersonate police officer and intimidation.

Elements

2. The elements of the former offence are in issue. Section 546D of the Crimes Act 1900 is relevantly in these terms:

Impersonation of police officers

(1)   General offence

A person who impersonates a police officer is guilty of an offence.

(2)   Aggravated offence

A person who, with intent to deceive—

(a)  impersonates a police officer, and

(b)  purports to exercise a power or function as a police officer,

is guilty of an offence.

…

(4)    In this section—

“impersonation” does not include conduct engaged in solely for satirical purposes.

3. The Act does not define ‘impersonate’.

4. The Macquarie Dictionary defines it as to assume the character or appearance of, especially for fraudulent purposes; pretend to be; to represent in personal or bodily form; personify; typify; to act (a part), especially on the stage.

5. The Oxford English Dictionary defines it as to represent or imagine (an immaterial thing or abstract quality) as a person or being; to attribute a personal nature or human characteristics to; to personify; to embody the essential characteristics of (something); to typify; to be an embodiment of (an idea, quality or feeling; to be an expression of (something abstract) in a concrete form; to provide (a soul or spirit: with a bodily form; to put into a body; to pretend to be (someone or something else), usually for the purpose of entertainment or fraud; to imitate (a person’s voice, mannerisms, etc.); to act the role of a character in a play, etc.).

6. Stroud’s Judicial Dictionary of Words and Phrases defines the cognate word ‘personate’ as to pretend to be a person (who it suggests must be real). Jowitt’s Dictionary of English Law defines ‘personation’ as the act of representing oneself to be someone else (whether living or dead, real or fictitious). The Australian Encyclopaedic Legal Dictionary and Lexis Nexis Australian Legal Dictionary both define ‘false impersonation’ as passing oneself off as another.

7. The provision may be considered in light of comparable ones repealed and in other jurisdictions.

8. Some specifically concern impersonation of police officers. Section 74 of the Police Act 1998 SA makes it an offence of ‘impersonate police’ for a person to represent him or herself by word or conduct to be a police officer. Section 78 of the Police Service Act 2003 TAS makes it an offence of ‘impersonation’ for a person to impersonate or represent him or herself as a police officer. Section 256 of the Victoria Police Act 2013 VIC makes it an offence of ‘impersonate police’ for a person to hold him or herself out to be a police officer. Section 362 of the Criminal Code 2002 ACT makes it an offence of ‘impersonate police’ for a person to represent him or herself to be a police officer.

9. Some concern impersonation of other officers. Section 148.1 of the Criminal Code 1995 CTH makes it an offence of ‘impersonation of an official’ for a person to impersonate or falsely represent him or herself as a Commonwealth official. Section 87 of the Criminal Code Act 1913 WA makes it an offence of ‘impersonate public officer’ for a person to represent him or herself by word or conduct to be a public officer.

10. Others concern impersonation generally. Section 514 of the Criminal Code 1899 QLD makes it an offence of ‘personation’ for a person to falsely represent him or herself to be another. Section 272 of the Criminal Code 1983 NT makes it an offence of ‘personation’ for a person to falsely represent him or herself to be another. The repealed s 184 of the Crimes Act 1900 NSW made it an offence of ‘fraudulent personation’ for a person to falsely personate or pretend to be another.

11. The minister said in the second reading speech when introducing the legislation inserting the provision:

“The impersonation of a police officer has the potential to have very serious consequences.

Many people when faced with a person who is wearing a police uniform, or claiming to be a police officer, would feel obliged to comply with any requests or instructions given by that person provided that they seemed reasonable. This could have serious consequences.

I am deeply concerned that persons impersonating police officers for criminal purposes can do considerable harm, both as a direct consequence of their criminal activity, and as a result of the loss of trust and the decline in co-operation by members of the community with the police if they are uncertain that they are dealing with authentic police officers.”

12. The minister also noted the proposed amendments included an aggravated offence to be charged “where a person has impersonated a police officer and purported to exercise some power, or powers, of a police officer”.

13. The appellant contends impersonating a police officer differs from pretending to be one and that is not enough for a person merely to represent him or herself as one; the person must engage in a police activity. The Crown contends it is enough for a person merely to represent him or herself as a police officer.

14. Dictionary definitions of impersonate and personate all comprehend the meaning of a person pretending to be or representing him or herself as someone or something.

15. Comparable offences concerning impersonation in other jurisdictions variously proscribe a person impersonating, pretending to be, or representing or holding him or herself out as, someone or something.

16. The reference to both ‘personates’ and ‘pretends to be’ in the repealed s 184 does not necessarily imply the legislature differentiated conduct constituting each. It may reflect a concern to capture conduct whether its object was fictitious or real: cp. Clarkson v R [2007] NSWCCA 70 at [49].

17. It is not apparent any distinction is recognised in legal usage between impersonation on the one hand and a person pretending to be, or representing him or herself as, someone or something on the other.

18. The aggravated offence in s 546D(2) comprises additional elements of specific intent and exercise of a power or function of a police officer. The latter would be redundant if inherent in the basic offence. It is difficult to conceive of such activities not comprising exercise of police powers or functions. The elements of the aggravated offence militate against a construction of the basic offence requiring any police activity.

19. The second reading speech confirms the legislature was concerned to address the potential loss of community trust in and cooperation with police that a person simply claiming to be a police officer might cause and to provide for the greater penalty in the aggravated offence where a person purports also to exercise police powers.

20. In summary, dictionary definitions, the statutory context, and the legislature’s purpose all support a construction of the offence as constituted where a person pretends to be or represents him or herself as a police officer. No police activity need be involved and a mere representation may suffice. Whether particular words and conduct constitute impersonation will depend on their context and all the circumstances.

21. The elements of the offence of intimidation are uncontroversial and relevantly as follows. Intimidation includes conduct that causes a reasonable apprehension of injury. The conduct must be done with the intention of causing the person to fear physical or mental harm. This includes causing the person to fear such harm to another in a domestic relationship with him or her. Knowledge that the conduct is likely to cause the other person to fear such harm will suffice. No proof the other person was actually caused fear is required.

Evidence

22. The offences were allegedly committed in two incidents at the appellant’s brother’s children’s school.

23. The first was on 1 March 2019. Mr Muller, a teacher there, gave evidence that he was on playground duty before classes started. He said the appellant’s father approached and asked why his grandson had been put in an alternate education setting. Mr Muller said he explained it was school policy where a child had assaulted a teacher. He said the appellant then approached and said he was a Detective Sergeant at Lake Macquarie Command; that it was his job to put away paedophile police officers; that he already had one rotting away in gaol; and that there were ongoing investigations into sexual and physical abuse of [the child] from his mother.

24. Mr Muller described the appellant’s manner as very passionate, quite direct, remonstrating and assertive. He said the appellant was wide eyed and ‘almost karate chopping the air’ when speaking about paedophile police officers. He said the appellant was quite close. He estimated the distance at 40 to 50 centimetres. He said he was ‘a little bit’ nervous and intimidated. He saw it as a veiled threat because he was a male teacher. He said it felt like the appellant was saying, “Look I can do this to police officers, I can do this to you.” He denied he was mistaken the appellant had said he was a police officer and that other staff had told him this.

25. He said he told the principal Ms Wassim what happened and Ms Stafford, another teacher on playground duty. He said he made a record of the incident in a central database.

26. Mr Muller stated in the database record that the appellant introduced himself as a detective sergeant whose job was to “put away cops”; that he said there were ongoing investigations into [the child] being physically and sexually assaulted; and that he said he had put one policeman from Lake Macquarie district into jail.

27. Ms Wassim, the school principal, gave evidence that Mr Muller told her the appellant said he was in charge of putting away paedophiles and had already put some away. She described Mr Muller as quite stressed and shaken. She said he asked, “Should I be worried?” and she told him to document it.

28. Ms Stafford, the other teacher on playground duty, gave evidence that she saw the appellant and his father approach Mr Muller in the playground. She estimated they were within a metre of him. She said she could tell from the appellant’s body language he was quite upset about something. She said she spoke with Mr Muller later that day and he said it had rattled and shaken him.

29. The appellant gave evidence that his father had been speaking with Mr Muller about the child. He said he told Mr Muller that he was obliged to report the matter to DOCS. He said the conversation ended there. He denied saying he was a detective sergeant from Lake Macquarie or that he put away paedophile police. He said he was about 2 and a half metres away from Mr Muller. He denied he used any ‘karate chop’ motion.

30. The appellant’s father gave evidence that he was speaking with Mr Muller about the child. He said the appellant came up half way through. He said the appellant told Mr Muller to report the matter. He denied the appellant said anything about being a police officer. He said he was at least 3 feet from Mr Muller and the appellant another 2 feet behind him. He denied the appellant was ‘wide eyed’ or used any ‘karate chop’ motion.

31. The second incident was on 19 March 2019. Ms Stein, another parent of children at the school, gave evidence that her son told her the appellant had spoken nastily to him in the playground. She said she spoke with the appellant about it and he said, “Do you know who I am and what I am capable of?” and “I’m a police officer and I’m also an AVO advocate.” She said he called her a “stupid bitch” and told her he knew where she lived and would deal with it himself. She said she went to the office and reported it. She denied she called him “a stupid old cunt”; threatened to “smack the fuck” out of him; pushed his father in the chest causing him to fall back; said she was a “domestic violence victim” and would “smack” him out. She denied anyone told her the appellant was a police officer and said she did not know this until she was subpoenaed.

32. Ms Wassim gave evidence that she contacted police about the appellant around 19 March 2019 after the incident was reported and that she had a letter sent to him directing him not to come onto school grounds.

33. The appellant gave evidence that Ms Stein approached him and his father. He said she called him a “fucking cunt”; threatened to “smack” him “the fuck out”; pushed his father in the chest causing him to fall back; said she was a “domestic violence victim” and would “smack” his father out. He denied that he said he was a police officer or an AVO advocate.

34. The appellant’s father gave evidence that Ms Stein approached him and the appellant. He said she called him a “fucking cunt”; threatened to “smack the shit out” of him; hit him in the chest with both hands causing him to fall back on the ground; and said she was a “domestic” person and would not take any of their “shit”. He denied the appellant said he was a police officer. He conceded his loyalties lay with his son but denied lying or discussing the matter with his son.

Consideration

35. The magistrate’s assessments of witnesses’ credibility should be noted.

36. He considered Mr Muller to be ‘very earnest’ and a ‘really good witness’, and his evidence to be ‘extremely convincing’. These observations should be given weight as they were based on demeanour. He made no express comment regarding Ms Stein’s credibility. Her evidence was plausible and consistent. No reason to doubt its credibility is apparent on the transcript, subject to its limitations.

37. The magistrate considered the appellant and his father “not good witnesses” and their evidence “somewhat problematic”. These observations can be given no weight as their basis was unexplained. The evidence of each was not inherently implausible. Nor was it internally inconsistent. The evidence of each was generally consistent with that of the other. The appellant’s father sometimes did not answer questions directly or responded with questions, such as “Were you there?” This combativeness was consistent with his partiality to the appellant’s case. No reason to doubt their credibility is otherwise apparent on the transcript, again subject to its limitations.

38. However, the complaint evidence is significant.

39. The fact that Mr Muller reported the incident on 1 March 2019 to Ms Wassim and made a record in the database shortly after the incident accords with what one might reasonably expect in the circumstances if it had happened as he recounted. The terms of his complaint and record are also consistent with his account. Ms Wassim and Ms Stafford’s observations of his distress following the incident are also consistent with his account. Mr Muller’s conduct and demeanour, and the terms of his complaint and record, all strongly support the prosecution case as to the alleged offences in the first incident as well as Mr Muller’s credibility.

40. The fact Ms Stein reported the incident on 19 March 2019 to Ms Wassim shortly afterward similarly accords with what one might reasonably expect in the circumstances if it had happened as she recounted. There is no first hand evidence as to the terms of her complaint or evidence of her distress but her conduct supports the credibility of her evidence regarding the alleged offences in the second incident.

41. Tendency and coincidence evidence are also important.

42. The Crown contends the appellant had tendencies to behave in an intimidating manner when confronting others about issues regarding his brother’s children and to claim to be a police officer while seeking to intimidate them and to have an intention to intimidate them when doing so.

43. The evidence of each complainant supports that the appellant had these alleged tendencies. These in turn support that he did the act and had the state of mind alleged for each offence. The evidence of each has the capacity significantly to affect the determination of facts in issue for the alleged offences against the other. The evidence thus has significant probative value. It was neither contended nor apparent that it would have any prejudicial effect. Its probative value therefore substantially outweighs any prejudicial effect it might have.

44. The Crown also contends the similarities between the events according to each complainant’s account are such that the explanation is unlikely to be coincidence and likely that the appellant did as it alleges in each. The similarities have the capacity significantly to affect the determination of the improbability that the accused did not do as alleged against each. Their evidence thus has significant probative value. It was again neither contended nor apparent that this would have any prejudicial effect. Its probative value therefore substantially outweighs any prejudicial effect it might have.

45. Tendency and coincidence evidence thus strongly supports the prosecution case. The evidence of each complainant indicates the accused did have tendencies to behave in an intimidating manner when confronting others about issues regarding his brother’s children, to claim to be a police officer while seeking to intimidate them, and to intend to intimidate them while doing so. These tendencies in turn support that he did the act and had the state of mind alleged for offences against the other complainant. Their evidence viewed together reveals significant similarities including that the appellant confronted both of them in the school grounds about an issue with his brother’s child, claimed to be a police officer, and behaved in an aggressive and intimidating manner. It is highly unlikely the explanation for these similarities is coincidence and far more likely that the appellant did as the prosecution alleges in both incidents.

46. In summary, the complainants’ evidence when combined with the complaint evidence, and tendency evidence and coincidence evidence leaves no reasonable doubt such as may have existed were the evidence of each viewed in isolation against that in the defence case.

47. Finally, an issue of procedural fairness was raised regarding the offence of intimidation in the second incident. The prosecution did not particularise the conduct alleged to constitute the offence in the CAN or its opening address. However, the prosecution adduced evidence of all the appellant’s words and conduct it relied on in its case then put to him in cross-examination that he said and did as alleged before it relied on them in its closing address. The defence was not deprived of an opportunity properly to respond to the prosecution case regarding this alleged offence in these circumstances. It is not apparent that there was any unfairness in practice.

Findings

48. The evidence as a whole warrants the following findings beyond reasonable doubt.

49. In the incident on 1 March 2019, the appellant told Mr Muller he was a detective sergeant at Lake Macquarie command; that it was his job to put away paedophile police officers; that he already had one rotting away in gaol; and that there were ongoing investigations into sexual and physical abuse of [the child] from his mother. In doing so he pretended he was and represented himself to be a police officer, and so impersonated one. He was in close proximity to Mr Muller and assertive when he said these things. His assertions in the context and circumstances of their interaction conveyed an implicit threat that he may do something adverse to Mr Muller as he had done and could do to others. This was conduct such as to cause a reasonable apprehension of injury. The only reasonable inference is that he did so as he knew it would likely cause Mr Muller fear.

48. In the incident on 19 March 2019, the appellant asked Ms Stein if she knew who he was and what he was capable of; told her he was a police officer and AVO advocate; called her a stupid bitch; and told her he knew where she lived and would deal with it himself. In doing so he pretended he was and represented himself to be a police officer, and so impersonated one. His assertions in the context and circumstances of their interaction conveyed an implicit threat that he would do something adverse to her or her child. This was conduct such as to cause a reasonable apprehension of injury. The only reasonable inference is that he did so as he knew it would likely cause her fear.

Conclusion

51. In conclusion, the evidence established beyond reasonable doubt the elements of each offence. Accordingly, the orders I make are these. The appeal is dismissed. The convictions are confirmed.

Decision last updated: 20 September 2021