What is the Meaning of ‘Intimidate’ in the Criminal Law?

The act of intimidation forms part of many criminal offences in NSW, and indeed across Australia.

Some of the many offences containing the word intimidation, intimidatory, intimidates or intimidate appear are:

Crimes Act 1900 (NSW)

Section 12 – Compassing deposition of sovereign

Section 60 – Assaults etc against police officers

Section 60A – Assaults etc against other law enforcement officers

Section 60B – Assaults etc against those connected with law enforcement officers

Section 60C – Obtaining the personal information of law enforcement officers

Section 60E – Assaults etc at schools

Section 315 – Hindering investigation

Section 322 – Threatening or intimidating judges, witnesses or jurors

Section 545B – Intimidation or annoyance by violence

Section 545C – Knowingly joining or continuing in an unlawful assembly

The word ‘intimidatory’ is also contained in the definition of consent in section 61HE of the Act, which applies to sexual offences.

Crimes (Domestic and Personal Violence) Act 2007 (NSW)

Section 13 – Stalking or intimidation with intent to cause fear of physical or mental harm

Section 36 of the Act makes it mandatory for apprehended violence orders to contain a prohibition against ‘intimidating the protected person’.

Criminal Code Act 1995 (Cth)

Section 83.4 – Interfering with political rights and duties

Section 149.1 – Obstructing Commonwealth public officials

Section 268.25 – International war crime of torture

Section 268.73 – Domestic war crime of torture

Section 274.2 – Torture

But what is ‘intimidation’?

Definition of intimidation in the criminal law

Section 7 of the Crimes (Domestic and Personal Violence) Act 2007 defines intimidation as follows:

(a) conduct (including cyberbullying) amounting to harassment or molestation of the person, or

(b) an approach made to the person by any means (including by telephone, telephone text messaging, e-mailing and other technologically assisted means) that causes the person to fear for his or her safety, or

(c) any conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or of violence or damage to any person or property.

(2) For the purpose of determining whether a person’s conduct amounts to intimidation, a court may have regard to any pattern of violence (especially violence constituting a domestic violence offence) in the person’s behaviour.

In the context of the offence of ‘intimidation or annoyance’, section 545B(3) of the Crimes Act 1900 explains that:

‘Intimidation’ means the causing of a reasonable apprehension of injury to a person or to the person’s spouse, de facto partner, child or dependent, or of violence or damage to any person or property.

What about intimidating a police officer?

The Crimes Act does not define ‘intimidation’ as it relates to the offence of intimidating a police officer under section 60 of the Act.

However, in the case of Vella v DPP [2005] NSWSC 897, her Honour Carolyn Simpson made the following observations:

• It is necessary to resort to fundamental principles of statutory construction in order to ascertain the meaning to be ascribed to the word as it is used in [section 60].
• One thing common to the ordinary notion of intimidation, and to all the dictionary definitions given, is that the act constituting the intimidation has an effect on another person.
• The word “intimidate” is a transitive verb. While particular behaviour may be intimidatory in its nature without causing actual fear or apprehension, there is no intimidation unless and until the behaviour has affected its object in the required manner, that is, by inducing fear or affecting conduct.
• Behaviour that has a capacity to intimidate does not in fact intimidate until it has worked its effect in the person to whom it is directed. In other words, intimidation does not occur until the effect is created.

Her Honour found that the concept of intimidation is two-fold: it necessarily consists both of a particular form of conduct and the effect the conduct has on another person. There is no intimidation until another person has in fact been intimidated.

She concluded that in order to sustain a conviction for intimidation of a police officer , it is necessary for the prosecution to prove that the police officer was put in fear or apprehension, and was forced into or deterred from some action by being put in fear, or was overawed or cowed.

The case of Veller cited with approval the decision in Meller v Low (2000) 48 NSWLR 517, which found that intimidation in section 60 requires proof of ‘actual intimidation’ so as to ‘render timid, to inspire with fear, to overawe, to cow or to force to or deter from some action by threats or violence by inducing fear’.

What about threatening judges, witnesses, jurors, or public justice officials?

Under Section 322 of the Crimes Act 1900, it is an offence to threaten or intimidate judges, witnesses, jurors, or public justice officials. The maximum penalty for this offence is 10 years imprisonment, or 14 years if the threat of intimidation was intended to influence the conviction or acquittal of someone in relation to a serious indictable offence.

In the case of Gordon v R [2009] NSWCCA 72, the appellant was convicted under Section 322(a) of the Crimes Act 1900 for threatening to intimidate a witness, with the intent to influence his testimony during a trial. The Crown argued that Gordon’s actions, which included giving threatening gestures and stares at the witness during his testimony, were aimed at intimidating him into withholding evidence.

The appellant admitted to giving the witness a ‘dirty look’ and could not remember if it was more than once [33].

Despite the appellants defence that the threat was not intended or recognised by the witness at the time, the jury found the evidence compelling, especially the testimony of the judge’s associate. The court upheld the conviction, rejecting claims of an unfair trial or that the sentence was excessive, emphasising that crimes targeting the administration of justice, like witness intimidation, demand severe penalties to uphold the integrity of the legal system.