A witness in the Ben Roberts-Smith defamation trial has pleaded guilty to the offence of hindering or obstructing a commonwealth public official.

While magistrate Miranda Moody found he acted "like a drunken fool", she ultimately chose not to record a conviction against him.

The witness cannot be named for legal reasons.

What is Hindering or Obstructing a Commonwealth Public Official?

Hindering or obstructing a commonwealth public official is an offence that carries a maximum penalty of 2 years imprisonment.

Sections 149.1 of the Commonwealth Criminal Code states:

(1) A person is guilty of an offence if:

(a) The person knows that another person is a public official; and

(b) The first mentioned person obstructs, hinders, intimidates or resists the official in the performance of the official's functions; and

(c) The official is a Commonwealth public official; and

(d) The functions are functions as a Commonwealth public official.

(2) In a prosecution for an offence against subsection (1), it is not necessary to prove that the defendant knew:

(a) That the official was a Commonwealth public official; or

(b) That the functions were functions as a Commonwealth public official.

(3) For the purposes of this section, it is immaterial whether the defendant was aware that the public official was performing the official's functions

(4) Section 15.3 (extended geographical jurisdiction-category C) applies to an offence against subsection (1)

(5) The definition of "duty" in section 130.1 does not apply in this section.

What Happened?

Australian Federal Police sought the phone of the witness as part of an investigation into war crimes potentially committed by Australian soldiers in Afghanistan.

As the witness was a former soldier, police believed he may have information which could have assisted them.

In April last year, AFP officers approached the former SAS soldier after he had finished giving evidence in Ben Roberts-Smith's defamation trial.

The court heard that he was drinking at Sydney's Marriott hotel when police approached him and asked for his phone as part of a search warrant.

The witness, labelled 'Person X' during the trial refused to hand over the phone. He then tried to exit by the lift. While attempting to escape he made contact with a police officer, although this was "not deliberate".

Magistrate Miranda Moody, said Person X had acted "like a drunken fool" and "made a jolly nuisance of himself" in being "extremely discourteous and rude".

"There seemed to be no basis in his reacting in the hostile fashion as he did."

"The facts indicate he'd been drinking some alcohol," magistrate Moody said. However, she accepted that his court obligations had been "extremely exhausting, and mentally taxing . his behaviour was quite out of character".

This was a reference to his previous good record which included a military career in both the UK and Australia and assignments that included guarding an Australian prime minister.

The magistrate also noted he was, at the time of the warrant being executed, extremely stressed having spent a number of days in the witness box in court, giving evidence and being cross-examined.

Due to these factors, the magistrate did not record a conviction against him pursuant to section 19B of the Commonwealth Crimes Act 1914.

Pleading Not Guilty

If you wish to plead not guilty to hindering or obstructing a commonwealth official, you will need to argue that Police have not proved one or more of the elements of the offence. You can also argue that one of the defences apply.

How to beat a Charge of Hindering or Obstructing a Commonwealth Public Official?

You can beat a hindering or obstructing a commonwealth public official charge if the Police cannot prove, beyond reasonable doubt, that:

  1. You knew that the person was a public official; and
  2. You obstructed, hindered, intimidated or resisted the official while they were performing their functions; and
  3. The official was a Commonwealth public official; and
  4. They were performing functions as a Commonwealth public official.

If police cannot prove all of the above elements, you will be found not guilty of the offence.

Defences

Defences to hindering or obstructing a commonwealth public official are:

  1. The accused did not know that another person is a public official; and
  2. The first mentioned person did not obstruct, hinder, intimidate or resist the official in the performance of the official's functions; and
  3. The official was not a Commonwealth public official; and
  4. The functions were not functions as a Commonwealth public official.

Examples of Hindering or Obstructing a Commonwealth Public Official

Examples include:

  • Hindering a uniformed Australian Federal Police officer who is attempting to investigate a possible criminal offence.
  • Obstructing a commonwealth public official from carrying out their duties.
  • Intimidating a Member of Commonwealth Parliament to not perform parliamentary duties.

Pleading Guilty

If you wish to plead guilty to hindering or obstructing a Commonwealth Public Official, you will need to have a lawyer experienced in commonwealth sentencing practices act for you.

This is because there is a different sentencing scheme for commonwealth offences than state offences.

An experienced criminal lawyer will also be able to prepare and present your case with important material to obtain the most favourable outcome.

Penalty

The maximum penalty for the offence of hindering or obstructing a Commonwealth Public Official is 2 years jail.

Which court will hear the case?

This offence is heard in the Local Court or Magistrates Court.

Sentencing for Hindering or Obstructing a Commonwealth Public Official

You can be sentenced as follows for an offence of hindering or obstructing a Commonwealth Public Official:

  1. Section 19B non conviction
  2. Fine
  3. Section 20 Conditional Release (with conviction)
  4. Community Correction Order
  5. Recognizance Release Order (suspended sentence)
  6. Intensive Corrections Order
  7. Full Time Imprisonment

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.