Presence in Public Places

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This article is a topic within the subject Crime & the Criminal Process.

Contents

Required Reading

Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011), pp. 778-779; 784-802.

Introduction

[1] As previously observed, the so-called ‘general principles’ of criminal law and liability have been called into question by not requiring mens rea for some statutory offences, and by reversing the burden of proof. This is furthered by the development of ‘status offences’, where no positive act or conduct is required.

  • For certain public order offences, as long as you are in a public place and certain circumstances are met, you have completed the actus reus component.
  • The rationale of this is pre-empting public disturbance. This is concerning because it can restrict people from using public space without having committed a wrong.

Loitering

[2] Loitering is the act of hanging around aimlessly at a place. Loitering offences are intended mainly to prevent property offences, (eg, pickpocketing, shoplifting, breaking and entering).

  • There are currently several public order offences which are known colloquially as ‘loitering offences’.
  • The rationale to extend criminal liability to behaviour such as those in all offences like this is the same: it is considered to be in the interest of public safety and general crime prevention for police to have the power to intervene and remove a person posing a risk or threat.

Loitering with Intent

[3] Loitering with intent offences are preliminary offences, where behaviour is objectively innocent but suspected of being preparatory to more serious criminal activity such as larceny or housebreaking. This is another extension of the law of attempt.

Suspicion can be based on history or reputation.

  • s 546B (1) of the Crimes Act 1900 (NSW) provides that people with prior convictions who hang around a public place with an intent to commit an indictable offence are guilty of an offence.
  • s 11G of the Summary Offences Act 1988 provides that convicted child sex offenders who hang around a public place where children are in or a school without a reasonable excuse will be guilty of an offence.

The mere possession of certain items in a public place can also be a crime, as per s 114 (1), Crimes Act 1900:

Any person who:
  • (a) is armed with any weapon, or instrument, with intent to commit an indictable offence,
  • (b) has in his or her possession, without lawful excuse, any implement of housebreaking or safebreaking, or any implement capable of being used to enter or drive or enter and drive a conveyance [vehicles],
  • (c) has his or her face blackened or otherwise disguised, or has in his or her possession the means of blacking or otherwise disguising his or her face, with intent to commit an indictable offence,
  • (d) enters or remains in or upon any part of a building or any land occupied or used in connection therewith with intent to commit an indictable offence in or upon the building,
shall be liable to imprisonment for seven years.

Note that (a), (c) and (d) all require that the defendant has an intention to commit an offence (mens rea requirement), whilst (b), which deals with housebreaking tools, does not.

  • Whether a lawful implement such as a screwdriver is a housebreaking/safe-breaking/ car-stealing tool is a question of fact to be determined by the circumstances of the case.
  • Intention to commit the breaking offence is generally required, in order to rebut the defence of lawful excuse.
  • Onus of proving lawful excuse for possession is on the accused.[4]

Under s 26 (1) of the Law Enforcement (Rights and Responsibilities) Act 2002 (NSW) ('LEPRA'), a police officer may search ‘a person who is in a public place or a school’ if the officer suspects on reasonable grounds that the person ‘has a dangerous implement in his or her custody’.

  • Under subsection 26 (3), reasonable grounds to suspect may be created by the person being in a location with a high incidence of violent crime.

Possession or use of a laser pointer in a public place is prohibited by s11FA of the Summary Offences Act 1988.

Knife Laws

Possession of a knife is dealt with in s 11C of the Summary Offences Act 1988, which makes it is an offence to carry a knife in a public place without a reasonable excuse. Reasonable excuse examples are listed in subsection (2).

  • Note that an intention to commit an offence is not an element of the knife possession offence under s 11C.
  • s 11D makes a parent who authorised a child to commit an offence under s 11C also guilty of that offence.
  • s 11F prohibits the selling of knives to a child under 16 .
    • The onus of proving an honest belief on reasonable grounds that the child was 16 or older rests on the defendant (reversed).
  • s 11B prohibits to possession of an 'offensive implement'.

Research suggests that many police consider the knife laws to effectively empower them to freely search young people in any situation.

  • The rationale behind criminalising knife possession is that in order to increase the safety of the community, police powers need to be increased in order to maintain law and order on in public places.
  • The criticism to these laws is that they allow a practice where people are searched on the basis of their presence in such a location effectively establishes a random or arbitrary search power.
    • Teenagers are the most common targets.
    • These powers are all about discretion.

Move Along Powers

[5] Police have the power to ‘move along’ a person in a public place in certain circumstances, even without any evidence that the person committed, or was likely to commit, an offence. The ‘move-along’ powers are found in s 197 of LEPRA.

  • Failure to comply with a move-on direction is an offence, punishable by two penalty units.[6]

In 1998-1999, almost 15,000 move-on directions were given. The Ombudsman found that the very broad discretion of police to decide when and whom to ‘move-on’ is sometimes exercised in wrong circumstances and disproportionately against Aboriginals and young people.

Public Assemblies

[7] Public meetings and demonstrations are considered fundamental in a democratic society, and are recognised in ICCPR.

  • However, there is no positive guarantee of this right in Australia, either in the common law or on a constitutional basis.

This was discussed in Evans v NSW:[8]

  • Held that World Youth Day Regulation 2008 was invalid to the extent that it prohibited conduct that ‘caused annoyance or inconvenience’, as annoyance is so broad as to curtail the freedom of speech.

Involvement in a public procession or assembly could potentially lead to various criminal offences, for example:

  • Unlawful assembly or hindering police (Crimes Act 1900, ss 545C and 546C).
  • Offensive behaviour or violent disorder (Summary Offences Act 1988, ss 4 and 11A).
  • Obstructing persons or traffic (Summary Offences Act 1988, s6).
  • Riot and affray (Crimes Act 1900, ss 93B – 93C).

There used to be quite a lot of laws regulating public assemblies, such as the Riot Act, under which it was a capital offence to fail to disperse within one hour. Today, such broad regulation methods have been removed, but there still are some laws regarding public assemblies.

Offences Related to Unlawful Assemblies

[9] Under s 545C of the Crimes Act, knowingly joining or continuing in an unlawful assembly is an offence.

  • Unlawful assembly is defined as ‘any assembly of 5 or more persons whose common object is by means of intimidation or injury to compel any person to do what the person is not legally bound to do or to abstain from doing what the person is legal entitled to do’.
  • For example, mass picketing, where the workers on strike stare at men going in – possible intimidation that discourages people from going to work.
  • Charges here are very rare in recent times.

Statutory Regulation of Street Marches

Under Part 4 of the Summary Offences Act 1988, the organisers of a public assembly or procession are to notify the Police Commissioner of the relevant details.

  • The organiser should notify the Commissioner in writing at least 7 days before.[10]
    • If it is already within 7 days, the organisers may apply themselves to the Supreme Court for an order authorizing the holding of the public assembly.[11]
  • The Commissioner may oppose the assembly by applying to the Supreme Court for an order prohibiting the holding of public assembly.[12]
  • The Commissioner may agree to the assembly and authorise it, in which case if the public assembly is held to be in accordance with its notified plans, persons participating in it may not be held guilty in any relation to the protest.[13]
  • If the police officer opposes, before approaching the courts, the Commissioner has to invite the organisers to confer with a member of the police.[14]
  • Courts are to hear with 'greatest expediency' so as not to frustrate or delay the organizers in their ambitions.[15]

The making of a prohibition order and the granting of authorisation have been discussed in the has been discussed in Commissioner of Police v Rintoul:

  • The making of a prohibition order under s 25 merely deprives participants of protection that s 24 would otherwise afford them - it does not render the protest unlawful.
  • A prohibition order means they can still march, but are open to the risk of being convicted.

Special Event Regulation

[16] There is a trend for specific laws to be passed for specific events, such as the 2000 Olympics, World Youth Day, APEC Meeting

Riot and Affray

[17] Riot and affray are are non-trivial, serious public order offences – they attract penalties of 15 and 10 years imprisonment. They are dealt with in Part 3A, Division 1 (ss 93A - 93D) of the Crimes Act 1900:

  • s 93A - defines violence as both to person and property. Includes cases where there was no actual injury (eg, throwing a rock and missing).
  • s 93B - deals with riot offences (where there are 12 or more people):
    1. Where 12 or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons...is guilty of riot and liable to imprisonment for 15 years.
  • s 93C - deals with affray offences (a single person):
    1. A person who uses or threatens unlawful violence towards another and whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray and liable to imprisonment for 10 years.
  • s 93D - sets the mens rea requirements for both offences as intent or recklessness.
    • Note: When working out mens rea for riot, the person must have intended to use violence/was reckless to the fact his conduct may be violent. For affray, the person will satisfy the mens rea requirement even if he only intended to use violence/was reckless to the fact that his conduct might threaten violence.

There are also offences of violent disorder, which are provided for in s 11A of the Summary Offences Act 1988:

  • Where three or more persons together use or threaten unlawful violence towards a person or property such as would ‘cause a person of reasonable firmness present at the scene to fear for his or her personal safety’.
  • It must be proved that the accused person intended to use or threaten violence or was ‘aware that his or her conduct may be violent or threaten violence’.[18]
    • This means a mens rea standard of intent or recklessness.
  • It is not necessary that any person of reasonable firmness was actually or was likely to be at the scene.[19]

The maximum penalties for riot and affray were increased (from 10 to 15 years, and 5 to 10 years respectively) following significant ‘social panic’ following the events of the Cronulla riots.

  • However, it is questionable whether increasing penalties for affray was an effective approach.

End

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References

Textbook refers to Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales, (5th edition, Federation Press, 2011).

  1. Textbook, pp. 778-9.
  2. Textbook, p. 784.
  3. Textbook, pp. 785-9.
  4. Crimes Act 1900 (NSW), s 417.
  5. Textbook, pp. 789-91.
  6. LEPRA, [1].
  7. Textbook, pp. 791-2.
  8. [2008] FCAFC 130.
  9. Textbook, pp. 793-4.
  10. Summary Offences Act 1988 (NSW), s 23.
  11. Summary Offences Act 1988 (NSW), s 26.
  12. Summary Offences Act 1988 (NSW), s 25.
  13. Summary Offences Act 1988 (NSW), s 24; Commissioner of Police v Rintoul [2003] NSWSC 662.
  14. Summary Offences Act 1988 (NSW), s 25 (2).
  15. Summary Offences Act 1988 (NSW), s 27.
  16. Textbook, pp. 789-9.
  17. Textbook, pp. 800-802.
  18. Summary Offences Act 1988, s 11A (5).
  19. Summary Offences Act 1988, s 11A (3).
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