O'Sullivan v Lunnon [1986] HCA 57; 1986) 163 CLR 545; (1986) 60 LGRA 359; (1986) 67 ALR 423; (1986) 60 ALJR 672; (1986) 22 A Crim R 120; (1986) 16 IR 188 (30 September 1986)

HIGH COURT OF AUSTRALIA

COLIN JOHN O'SULLIVAN v. JOHN EDWARD LUNNON
F.C. 86/058

High Court of Australia
Gibbs C.J.(1), Mason(2), Brennan(3), Deane(4) and Dawson(5) JJ.

CATCHWORDS

HEARING

Canberra
30:9:1986
Solicitors for the Appellent: Hawthorn Cuppaidge & Badgery
Solicitor for the Respondent: R.P. Sammon, Crown Solicitor for the State of Queensland

DECISION

GIBBS C.J.: The appellant was convicted in the Magistrates' Court at Brisbane of an offence against s.5(1)(c)(i) of the Electricity (Continuity of Supply) Act 1985 (Q.), as amended ("the Act"), and was fined $300. He appealed to the Supreme Court of Queensland by way of order to review but the Full Court, by a majority (Kelly S.P.J. and Ryan J., Derrington J. dissenting) dismissed the appeal. He now appeals to this Court pursuant to a grant of special leave.

2. The complaint on which the appellant was convicted was in the following words:

"That on the seventeenth day of April 1985 at
Brisbane ... one Colin John O'Sullivan in concert
with others did an act namely gathered outside the
New Farm depot of the South East Queensland
Electricity Board situated at Lamington Street New
Farm Brisbane aforesaid which said act was
calculated to harass persons namely employees of
the South East Queensland Electricity Board on
account of their performance of duties ordinarily
performed by them in the course of their employment
in connection with a supply of electricity."
be alleged that at approximately 7.17 a.m. on 17 April 1985 your client was with a group of persons gathered outside the New Farm Depot of the South East Queensland Electricity Board. That your client was arrested and charged as per the attached"; the attachment was the charge sheet which set out the charge as it appears above.

3. The Act was passed in consequence of an industrial dispute involving employees in the electricity industry. Its long title is "An Act to declare with respect to securing continuity of supply within the electricity industry". It authorizes the Electricity Commissioner, inter alia, to direct any person who in his opinion is capable of carrying out the necessary work to maintain or to restore a supply of electricity (s.3) and provides for the dismissal of any employee of the Queensland Electricity Commission or of any Electricity Board who fails to comply forthwith with any such direction (s.4). It confirms certain dismissals already made (s.6). It enables the South East Queensland Electricity Board to employ certain employees on conditions less advantageous than those provided in existing awards (s.7) and limits the jurisdiction of the Industrial Commission (s.8). Section 5, which is headed "Obstruction or harassment prohibited", provides as follows:

"(1) A person shall not either alone or in
concert with any other person -

(a) do any act that is calculated to obstruct
or interfere with the proper performance
by any person of duties ordinarily
performed by him or her in the course of
his or her employment in connection with
a supply of electricity;

(b) do any act that is calculated to obstruct
or interfere with the proper provision of
services by any person who is voluntarily
providing his or her services in
connection with a supply of electricity
for the purpose of preserving life,
health, welfare or safety of any person
or persons or who is performing work in
compliance with a direction given by the
Electricity Commissioner;

(c) do or omit to do any act, which act or
omission is calculated to harass, annoy
or cause harm or distress to any person
on account of -

(i) his or her performance of duties
ordinarily performed by him or her
in the course of his or her
employment in connection with a
supply of electricity; or

(ii) his or her voluntarily providing
services in connection with a supply
of electricity for the purpose of
preserving life, health, welfare or
safety of any person or persons or
his or her performing work in
compliance with a direction given by
the Electricity Commissioner.

(2) A person who contravenes any provision of
subsection (1) is liable to a penalty not exceeding
$1 000."

4. The evidence was not in all respects clear and precise, but its effect was as follows. Shortly after 7.00 a.m. on 17 April 1985 a crowd of 200 or 300 people had gathered in Lamington Street, New Farm, outside the depot of the South East Queensland Electricity Board. One group of about fifty people was standing in front of the gateway to the depot, in a line three or four deep. The members of this group were standing in front of the gateway in a position which would have impeded entrance through it, and such entrance was further blocked by large boulders which had been rolled across the gateway. Another group nearby had a large wooden cross. The members of the former group, those in front of the gateway, all linked their arms together and some at least of them were chanting slogans, such as "Scab", "Reinstate the linesmen", "Give the sack to Joh", and "Victory for the E.T.U.". At about 7.17 a.m. a police sergeant gave a direction to the crowd to disperse but they did not do so. Some members of the group standing in front of the gateway were then taken into custody by the police. The appellant at that time had his arms linked with persons on either side of him and a police officer took him by the arm and moved him away and arrested him. Although clearly enough the appellant had been a member of the group blocking the gateway, there was no evidence that he was calling out any of the slogans.

5. After the crowd had been moved away from the gateway, it was possible for about six vehicles, which had been standing in the street facing the depot, to proceed into the depot and they did so. There was no evidence as to the identity or occupation of the persons in the motor vehicles and there was no evidence that anyone else was in the depot. There was tendered in evidence a certificate which certified that "During the period commencing on 10 April 1985, and concluding on 18 April 1985, the following persons namely (then follow the names of ten persons) were attached to the New Farm depot of the South East Queensland Electricity Board situated at Lamington Street, New Farm, Brisbane, and were employed by the said South East Queensland Electricity Board to perform duties in connection with the supply of electricity." This certificate was given in intended reliance on the provisions of s.9A(c) of the Act, which provides as follows:

"In any proceedings under or for the purposes
of this Act -

...

(c) a certificate purporting to be signed by
the Electricity Commissioner or, as the
case may be, the General Manager of an
Electricity Board certifying that on a
specified date or during a specified
period a person named therein was
employed by the Queensland Electricity
Commission or, as the case may be, the
Electricity Board in question to perform
duties specified therein shall be
evidence and, in the absence of evidence
to the contrary, conclusive evidence of
the matters contained in the certificate;

..."

Objection was taken that s.9A(c) gives no evidentiary force to a statement in a certificate as to the place at which the persons named in the certificate were employed. There seems at first sight to be substance in that objection but it is unnecessary to decide the question because there was no evidence that in fact any of the persons named in the certificate were at or near the New Farm depot at 7.17 a.m. that morning. The certificate was, in the circumstances, quite useless.

6. Before I consider whether the evidence supports the conviction for an offence against s.5(1)(c)(i) of the Act there is a question of construction which falls for consideration. The word "calculated" may be used in two senses, as meaning either devised with forethought, or "likely". There are many cases in which the latter meaning has been given to that word in various statutory provisions: see, for example, Thurley v. Hayes [1920] HCA 28; (1920) 27 CLR 548, at p 551. However its meaning in any case must of course depend on the context in which it is found. Section 5(1)(c) refers to an act or omission which is "calculated to harass, annoy or cause harm or distress to any person on account of" his or her performance of certain duties, or his or her voluntarily providing certain services. As the Shorter Oxford English Dictionary shows, the phrase "on account of" means "because of". Mr Callinan, who appeared for the respondent, submitted that in s.5(1)(c) the phrase means "in respect of", but that is not its natural meaning. In the section the expression "on account of" appears clearly enough to be used in its ordinary sense of "because of" and to indicate the reason why the person charged did or omitted to do the act in question. Once it is understood that the concluding words of s.5(1)(c) speak of the reason for or purpose of the act or omission, it becomes apparent that "calculated" in that paragraph imports an element of intention or design. This was the view taken by the Full Court and I agree with it.

7. The question that then arises is whether the conduct of the appellant was calculated, in the sense of intended, to harass, etc. any person because that person was performing duties ordinarily performed by him or her in the course of his or her employment in connexion with the supply of electricity. There was no evidence that the persons in the vehicles which were waiting in the street were attending at the depot to perform duties ordinarily performed by them in the course of their employment in connexion with the supply of electricity and it would seem to go too far in a criminal case without further evidence to draw that inference. However even if it be assumed that the persons in the vehicles were endeavouring to enter the depot to resume performance of the ordinary duties of their employment, the evidence does not show that the acts of the appellant were done with an intention to harass, annoy or cause harm or distress to them or any of them. The members of the crowd who called out "Scab" plainly enough intended to annoy any person to whom that word was addressed, and no doubt intended to do so because of the performance by that person of the duties of his or her employment. The other words which were uttered by members of the crowd revealed an intention rather to express support for one of the sides in the industrial conflict than to harass, annoy, harm or distress anyone. However, the appellant was not proved to have said anything; he was one of the persons standing in line with linked arms in front of the gateway, but there is no evidence that he had any responsibility for the remarks made by other members of the group. No doubt it may be inferred that he intended to prevent persons from entering the depot. That does not mean however that he intended to harass, annoy or cause harm or distress to anyone because of that person's performance of duties of the kind referred to in the provision. The magistrate concluded that the purpose of the gathering was to harass - to trouble or vex - any person who was regarded as a strike breaker. The majority of the Full Court took a similar view. With all respect I cannot agree that an intention to prevent workers from entering the depot was an intention to harass or annoy them. It is quite consistent with the evidence that the appellant's intention was to join in picketing the depot, so as to prevent workers from entering it, as a protest against the passing of the Act or the dismissal of some employees, but that he had no intention to harass or annoy anyone who ordinarily worked at the depot. There is no evidence that any of the persons in the cars was annoyed at the enforced delay in commencing their duties.

8. It is understandable that opinions might differ as to the effect of the rather meagre evidence, but in my opinion it is insufficient to support a conviction for an offence against s.5(1)(c) of the Act. The evidence might well have established that the appellant had committed an offence against s.5(1)(a) of the Act. It may be that the magistrate should have exercised the powers conferred on him by s.48 of the Justices Act 1886 (Q.), as amended, and amended the complaint so that it charged an offence under s.5(1)(a), since, although the offences created by the three paragraphs of s.5(1) are different offences, they may be regarded as cognate. However the question whether there is a "variance" within the meaning of s.48 between a complaint and the evidence often involves fine distinctions and it is unnecessary to decide whether the magistrate could have amended, since he did not consider that question and no application for an amendment was made to him or to the Full Court or to this Court.

9. For these reasons I would allow the appeal and quash the conviction.

MASON J.: For the reasons given by the Chief Justice, I would allow the appeal and quash the conviction.

BRENNAN J.: When an offence is created by statute, the starting point in determining whether a person is liable to conviction is the construction of the statute. Thereby the several elements of the offence are identified and defined. Only then is it possible to determine whether the evidence is sufficient to prove and does prove each element beyond reasonable doubt.

2. The appellant was convicted of an offence created by the Electricity (Continuity of Supply) Act 1985 (Q.), s.5(1)(c)(i). That section provides:

" (1) A person shall not either alone or in
concert with any other person -

...

(c) do or omit to do any act, which act or
omission is calculated to harass, annoy
or cause harm or distress to any person
on account of -

(i) his or her performance of duties
ordinarily performed by him or her
in the course of his or her
employment in connection with a
supply of electricity;"

3. Under this provision, the appellant was charged that on 17 April 1985 he -

" In concert with others did an act namely gathered
outside the New Farm depot of the South East
Queensland Electricity Board situated at
Lamington Street New Farm Brisbane aforesaid
which said act was calculated to harass persons
namely employees of the South East Queensland
Electricity Board on account of their performance
of duties ordinarily performed by them in the
course of their employment in connection with a
supply of electricity."

4. The complexity of s.5(1)(c)(i) is obvious, and the concatenation of "in concert", "calculated" and "on account of" enhance the uncertainty of its application in particular cases. That is regrettable. The provisions of s.5(1) were evidently intended to control the conduct of persons involved in an industrial dispute with the South East Queensland Electricity Board ("SEQEB") and the conduct of their protagonists. Uncertainty in the meaning and application of s.5(1) makes it difficult for law-abiding citizens to know what they might and what they might not lawfully do in making known their views about the dispute and exacerbate the problems of the police force in enforcing the law. What s.5(1)(c) did not do was to create an amorphous offence into which any conduct which produced discomfort to a worker in the electricity industry would fall. The elements of the offence must now be defined - a task more easily performed in the cool of the courtroom than in the heat of the situations to which this law was directed.

5. The several elements of the offence are expressed in particular words or phrases of s.5(1)(c)(i), the meaning of which must be ascertained in the context of the whole sub- section. At the heart of s.5(1)(c) is a proscribed act or omission. In this case, as the charge shows, we are concerned only with an act. The act must have the characteristics prescribed by s.5(1)(c)(i) and must be done either alone or in concert with another.

6. The first element is expressed in the words: "A person shall not in concert do any act which". The concert relates not merely to the physical aspects of the act but to the act identified by reference to the characteristics introduced by "which". The concert must relate to the doing of an act of the prescribed kind. It is convenient, in the light of the offence charged, to use the shorthand "harassing act" to describe the act proscribed by s.5(1)(c), although that description does not accurately reflect the elements of the offence.

7. The second element is expressed in the words: "act which is calculated to harass". The meaning of "calculated" depends on the context in which it is used. If it is used in a phrase such as "calculated to deceive" to describe a set of words (as in Potter and Clarke, Ld. v. The Pharmaceutical Society of Great Britain (1947) Ch 483) or a company's title (as in North Cheshire and Manchester Brewery Company v. Manchester Brewery Company (1899) AC 83), it describes a quality of the set of words or of the title irrespective of any actual intention to deceive or purpose of deceiving on the part of the person who uses the words or adopts the title. If a similar phrase is used to describe an act, it might connote the intention or purpose of the person who does the act, or it might connote the likelihood of the act to have an effect in the circumstances in which it is done (as in Thurley v. Hayes [1920] HCA 28; (1920) 27 CLR 548, at p 551). In choosing between these two meanings, it is relevant to consider whether the latter meaning might penalize the innocent: see Wishart v. Aust. Builders Labourers' Federation (1960) 2 FLR 298, at p 301. When "calculated" is used in a phrase descriptive of an act that is penalized, prima facie it connotes the actual intention or purpose with which the person who does the act does it. Depending on the meaning to be attributed to "calculated" in the context, the second element may require either that the harassing act be done with the actual intention or purpose of harassing or that the act be of such a kind that, looked at objectively, it was in fact likely to result in harassment. In order to determine which meaning the word should be given in the present context, it is necessary to consider the next element.

8. The third element is expressed in the words "on account of his or her performance of duties". The primary meaning of the phrase "on account of" is "because of" (Shorter Oxford Dictionary). Counsel for the respondent submitted that the statutory phrase means "in respect of", but that phrase does not reflect the notion of causality which inheres in "on account of". Giving "on account of" its primary and natural meaning, the third element requires that the doer of the harassing act should do it because of the harassed person's performance of his duties. This element relates to the state of mind of the doer of the act, namely, his motive. That casts light on the second element. Once it is clear that the provision imposes a penalty on a person who does a harassing act because of another's performance of his duties, the obvious meaning of "calculated" in the second element is that the doer of the act intended to do an act which would result in harassment to that other. If "calculated" in its context is truly ambiguous in meaning, the stricter meaning - that is, actual intention or purpose - must be adopted for liberty should not be diminished by words of uncertain intendment: see R. v. Adams (1935) 53 CLR 563, at pp 567-568; Beckwith v. The Queen [1976] HCA 55; (1976) 135 CLR 569, at p 576. The second element thus defines an aspect of the doer's state of mind, namely, his intention. Defining the relevant elements in this way, it was incumbent on the prosecution to prove beyond reasonable doubt, inter alia, that -

(i) the appellant and the persons with whom he
gathered outside the SEQEB depot at New Farm
intended their gathering to harass SEQEB
employees or they gathered with that purpose;
and

(ii) they gathered with that intention or purpose
because of the performance of their duties by
SEQEB employees.

9. The evidence for the prosecution showed that on the morning of 17 April 1985, a Wednesday, a number of people were assembled at the end of Lamington Street, New Farm, outside the entrance of the SEQEB depot. The entrance was blocked by these persons and facing the gateway there was a line of six cars in the roadway. There were two groups of people in this area. One group had a large wooden cross. They numbered about 75. There were in all some 200 or 300 people present and some of the other people were calling out "scab", "victory to the ETU" and other slogans. A large number of people had their arms linked together. A police officer through a loud-hailer gave them a direction to disperse. Thereafter members of the police force moved into the group of people and made arrests. A police officer arrested the appellant who had his arms linked with persons on either side of him. The appellant "came freely from the other people that he was hanging on to". The time was then about 7.28am. He was taken to the Watchhouse. After the persons standing in front of the gateway left or were removed, the line of cars entered the SEQEB depot.

10. That evidence falls short of proving the elements of the offence numbered (i) and (ii). The police instruction to disperse is not, of course, any evidence that an offence was being committed. The act of linking arms may have been no more than a gesture of solidarity with others who were expressing their views but who did not have the intention or purpose of harassing SEQEB employees. The evidence does not show whether or not harassment was the appellant's intention or purpose. Nor does the evidence show that he gathered with others because SEQEB employees were performing or proposing to perform their duties.

11. An attempt was made to prove that certain employees were employed by SEQEB at the New Farm depot, presumably in order to show that those employees were the employees who were intended to be harassed on account of the performance of their duties. A certificate purportedly under s.9A(c) of the Act (introduced by an amending Act, No.13 of 1985) was tendered stating that certain named persons were employed by SEQEB at the New Farm depot. But it was not shown that any of those persons had been in the cars awaiting entry to the depot. If the evidence was insufficient to prove an act calculated to harass the persons in the cars, it was certainly insufficient to prove an act calculated to harass the persons named in the certificate. If it matters, there was no evidence to prove that any of the SEQEB employees named in the certificate was performing or intending to perform the ordinary duties of "his or her employment in connection with a supply of electricity".

12. The prosecution evidence did not prove the elements of the offence and the charge ought to have been dismissed. I would allow the appeal, set aside the judgment of the Full Court and in lieu thereof order that the conviction and order of the Magistrates Court be quashed. The appellant is entitled to his costs at all stages of the litigation.

DEANE J.: Section 5 of the Electricity (Continuity of Supply) Act 1985 (Q.) ("the Act") creates a number of different offences involving acts likely to adversely affect the performance of work or the provision of services in relation to the supply of electricity in Queensland. Both in the heading of the section ("Obstruction or harassment prohibited") and in the sub-section defining the ingredients of the various offences (s.5(1)), it is possible to discern an obvious legislative distinction between acts "calculated to obstruct or interfere with" the "proper performance" of work or the "proper provision of services" and "act(s) or omission(s) ... calculated to harass, annoy or cause harm or distress to (a) person on account of" his or her performance of such work or provision of such services. The offences specified in s.5(1)(a) and s.5(1)(b) fall into the former category, that is, acts aimed at obstructing or interfering with the actual performance of work or the actual provision of services. The offences specified in s.5(1)(c)(i) and (ii) fall into the latter category, that is, acts or omissions aimed at the person himself or herself on account of his or her performance of work or provision of services.

2. If, notwithstanding the criminal onus of proof, one were prepared to make a number of assumptions, the case against the present appellant could be stated at its highest by saying that he was one of a number of persons who, by placing boulders and locking arms in front of the entrance to the South East Queensland Electricity Board's depot in the Brisbane suburb of New Farm and by shouting abusive terms and slogans, sought to prevent the entry of workers into the depot and that the appellant and those other persons thereby impeded the entry of some unidentified depot workers who were sitting in cars which were parked a short distance from that entrance and which were subsequently driven into the depot. The assumptions involved in that statement of the case are that the appellant himself actually participated in the placing of the boulders and the shouting of abusive terms and slogans and that the occupants of the cars in question were in fact depot workers. If those assumptions could properly be made, it would seem to me that the appellant was guilty of an offence under s.5(1)(a) of the Act, namely, of doing an act that was "calculated" to obstruct or interfere with the proper performance by the workers waiting in the cars of their ordinary duties in the course of their employment in connection with a supply of electricity. That is not, however, the offence of which the appellant stands convicted. The offence of which the appellant was convicted was that he did an act of a type referred to in s.5(1)(c), namely, an act calculated to harass workers at the depot on account of their performance of the ordinary duties of their employment. Even if all the assumptions mentioned be made, that is an offence which the evidence simply failed to establish against the appellant. Indeed, subject to one qualification, there was no evidence at all which would warrant a finding that the acts of the appellant were calculated (in the sense of "intended") to harass, annoy or cause harm to any worker at the depot "on account of" (i.e. "because of" or "by reason of") the performance of his or her ordinary duties as distinct from obstructing, deterring or dissuading such workers from performing those duties at all. The one qualification is that there is evidence that the emotive word "scab" was one of the terms shouted. There is, however, nothing to suggest that the appellant sang out that particular word. Even if it be assumed that the word was used by a person or persons associated with the appellant, that would not suffice, in the context of the other evidence, to transform the case against the appellant from one of picketing for the purpose of preventing the performance of work into one of doing an act that was calculated or intended "to harass, annoy or cause harm or distress to" persons on account of their actual performance of that work. Indeed, there was nothing in the evidence to indicate that any person was performing his or her ordinary work at the depot at the relevant time. It may be that, if the stage had been reached where an electricity worker had run the gauntlet and entered or attempted to enter the depot, the acts of the appellant and those with whom he was associated would have passed into the territory covered by s.5(1)(c). It is plain, however, that that stage had not been reached at the time of the appellant's arrest.

3. There was, in the course of argument, some discussion of the meaning of the word "calculated" and of the phrase "on account of" in the context of s.5(1). While I consider that the outcome of the present appeal would be the same on any of the suggested alternative meanings of that word and that phrase, it should be apparent from the foregoing that I agree with the Chief Justice and with Brennan J. that the word "calculated" is used, in that context, to import an element of subjective intention or design and that the phrase "on account of" is used in the sense of "because of" or "by reason of".

4. The appeal should be allowed and the conviction should be quashed.

DAWSON J.: I agree with the reasons for judgment of the Chief Justice.

ORDER

Appeal allowed with costs.

Set aside the judgment and order of the Full Court of the Supreme Court of Queensland and in lieu thereof order that the conviction and order of the Magistrates Court at Brisbane of 16 May 1985 be quashed and that the respondent pay the costs of the hearing of the complaint.

Order that the respondent pay the costs of the application for the order to review and the proceedings in the Full Court of the Supreme Court.