CRIM NOTES (PROBLEM)

CONSTITUTING LEGAL PERSONHOOD

- Children under 10 in NSW are treated as incapable of committing criminal offences –
(Children (Criminal Proceedings) Act 1987 s 5).
- Children between 10 and 14 are presumed to be incapable of wrongdoing (doli
incapax). This presumption must be rebutted by the prosecution.
- To rebut, the prosecution must prove beyond a reasonable doubt that the child knew
that the act was seriously wrong “as distinct from an act of mere naughtiness or childish
mischief” – (C (A Minor) v DPP [1995]).
o This is a matter of morality judged according to the ordinary principles of
reasonable persons and not law.
- The older the child is, the easier it will be to rebut the presumption.
- Subjective test: Not what the child ought to have known, but what they actually knew,
and evidence must be presented about their state of mind (RH v DPP [2014]).
- The surrounding circumstances can be taken into account, but running away is usually
equivocal because it can simply stem from recognition of naughtiness.
o CRH: The furtive nature of the circumstances of the alleged offence (sexual
intercourse with a child under 10, involving fellatio), and the accused’s putting
a blanket over the head of the other child as it lay in his lap in order to conceal
the act were actions just as consistent with naughty as seriously wrong
behaviour.
o BP, SW: The fact that the person alleging sexual assault was crying, screaming
and struggling, and asking the accused to stop, could support the inference that
the latter knew what he was doing was causing serious distress and was
therefore seriously wrong.
- A parent who, “by wilful default, has contributed directly or in a material respect” to
the commission of the offence is also guilty of an offence (Children (Protection and
Parental Responsibility) Act 1977 s 11).

CONINCIDENCE OF AR AND MR
- Act and intent must coincide - Meyers (1997)

Thabo Meli [ 1954]

- Facts: Accused struck a man over the head with intent to kill. Thinking that the victim
had died, D rolled him off a cliff. The victim was only unconscious at that point, but
he died from exposure at the bottom of the cliff. If throwing the body over the cliff is
regarded as the relevant act causing death, then at that time D lacked the intent to kill.
- Law: The entire sequence of behaviours is considered to be conduct leading to the
victim’s death, despite there being a number of individual acts.

Le Brun [1992]
- Facts: D struck his wife’s head and dropped her without intent to kill. She struck her
head on the pavement and died.
- Law: The unlawful application of force and the eventual act causing death are parts of
the same sequence of events, and the fact that there is an appreciable interval of time
between the two does not exonerate D from liability.
o Departure from Meyers principle that there must be coincidence between AR
and MR.
INTERPRETING STATUTORY CRIMINAL OFFENCES (3.4.9, p. 188)
He Kaw Teh (1985)
Gibbs CJ:
To determine whether Parliament intended that the forbidden conduct should be punishable
even in the absence of some blameworthy state of mind:
(1) Consider the words of the statute.
a. Do the words contain clear indication of Parliament’s intention?
b. If the words stand in marked contrast to other pars of the subsection, all of which
deal with the relevant subject matter, we assume Parliament did not intend to
displace the presumption of subjective mens rea as an ingredient of the offence.
(2) Consider the subject matter with which the statute deals.
a. Seriousness of the threat to the well-being of the Australian community (e.g. its
potential to increase crime, corruption, ruin the lives of innocents).
b. Public obloquy, where convicted offenders of “truly criminal” offences are
exposed to public disgrace and liable to the highest penalty that be imposed
under the law.
(3) Gravity of the penalty for the offence
a. The graver the penalty, the more likely it is for knowledge to be a required
element (as Parl. is unlikely to intend that the consequences of committing a
serious offence should be visited on a person who had no intention to do
anything wrong and no knowledge that he was doing so).
(4) Utility of imposing strict liable – are there reasonable steps a person could take to avoid
engaging in the prohibited behaviour?

There are three categories of circumstantial mens rea (as summarised by Street CJ in Wampfler
(1987) citing HKT as authority):
(1) Subjective mens rea, where some positive state of mind such as intent, knowledge, or
recklessness must be shown.
(2) Strict liability, where the prosecution does not need to prove the existence of mens rea
a. The onus is on the defendant to prove an honest and reasonable belief that the
conduct was innocent, and to provide evidence that there was a relevant mistake
regarding the circumstance component
i. E.g. D was shown a fake licence which the reasonable person would not
have discerned was fake.
b. The prosecution must then prove beyond reasonable doubt no HRMF (by
knocking off the honesty or reasonableness components).
(3) Absolute liability, where there is no requirement of mens rea or HRMF

Determining an exculpatory HRMF requires:

(1) An honest belief (usually affirmative belief) – requires a subjective test
a. Deemed honest if in the case that the facts were as the defendant believed, his
conduct would have been legally innocent
(2) A reasonable mistake – objective test
a. Must be a mistake of fact and not law

Brennan J (in HKT):

- Criminal responsibility depends not only on an act or omission but also upon the
circumstances in which the act is done or the omission is made.
Ordinary mental states applicable to the involved:
- Act/Omission: Voluntariness and intent
o Voluntariness includes a conscious control of bodily movement.
o Intent, in one form, connotes a decision to bring about a situation so far as it is
possible to do so. In another form, it connotes knowledge.
- Circumstances: Knowledge or absence of HRMF
- Consequences (where it applies): Foresight of the possibility of their occurrence (if
recklessness is an element) or knowledge of the probability (or likelihood) of their
occurrence or an intention to cause them (if a specific intent is an element).

E.g. D was shown a fake licence which the reasonable person would not have discerned was
fake.
Act Circumstance Consequences
AR Permitting a person to drive Unlicensed driver n/a
MR Presumption of Intent K or SL (HRMF) n/a

E.g. Striking another person.

Act
AR Throwing a punch
MR Voluntariness of movement
Presumption of Intent (to
throw the punch)
Circumstance Consequences
Striking another person n/a OR
Bodily harm
Knowledge, (that n/a OR
another person is, or Specific or special
likely to be, in the path intent to cause bodily
of the movement; harm.
confirms intent).

Note the two types of intent:

- General intent relates to the doing of the act involved in an offence
- Specific intent relates to the results caused by the act.
Both may be established by knowledge:
- General by knowledge of the circumstances which give the act its character
- Specific by knowledge of the probability of the occurrence of the result to which the
intent is expressed to relate.

Essay Points:
Brennan J on:
The Presumption of Mens Rea
- “The purpose of the criminal law [is] to deter a person from engaging in prohibited
conduct. The penalties of criminal law cannot provide a deterrent against prohibited
conduct to a person who is unable to choose whether to engage in that conduct or not,
or who does not know the nature of the conduct which he may choose to engage in or
who cannot foresee the results which may follow from that conduct.”
Absolute Liability
- The presumption is that the statute does not impose criminal liability without mens rea
unless the purpose of the statute is not merely to deter a person from engaging in
prohibited conduct but to compel him to take preventive measures to avoid the
possibility that, without deliberate conduct on his part, the external elements of the
offence might occur.
STRICT LIABILITY (3.6.1, p. 222)
Genesis
Proudman v Dayman (1941)
- Facts: Accused was convicted of permitting H to drive a car when he was not the holder
of a licence.
- Issue: S 30 of the Road Traffic Act 1934 (SA) provided: “Any person who…permits
any person not being the holder of…a licence to drive a motor vehicle on any road shall
be guilty of an offence”.
- Rule: Dixon J rejected the argument that, as “permits” connotes knowledge of the thing
being permitted, the prosecution had to prove that the accused actually knew that the
driver was unlicensed. He held that “permits” only related to driving a motor vehicle
on a road, and that it only needs to be proved that the accused had intended to consent
to the driver driving a motor vehicle on a road. He did not decide that s 30 created an
offence of strict liability, but simply that in relation to one of the elements of the AR
(that the driver was unlicensed), liability was strict.

Positive Belief
State Rail Authority v Hunter District Water Board (SRA v Hunter)
- Facts: An underground PVC pipe failed, causing oil to leak and pollute a creek.
The SRA was prosecuted for polluting waters under the old s 61(1) Clean
Waters Act 19870 but argued reasonable mistake of fact. The manager argued
he understood the systems were working properly and that there had never been
previous leakage. He did, however, acknowledged that there could have been a
risk of pipe breakage. Despite the possibility of a check, it was never conducted.
- Issue: Whether there was an HRMF.
- Law:
o Three states of mind might exist:
i. A positive belief that the driver is licensed.
ii. Inadvertence: That there is no particular reason known to the owner why
the driver should not be permitted to drive.
iii. Ignorance: Simply not trouble to think about the subject at all.
o Only (i) constitutes a mistake of fact, the others do not.
o An affirmative belief in a certain fact or state of affairs must be shown, as
distinct from a mere absence of knowledge.
- Application: It would be insufficient for D to prove that they inadvertently lacked
knowledge, but would need to prove a positive belief.

Statutory mistake of fact defences (3.6.1.3, p. 225)

Burden of Proof (Generally) - (p. 239)
- Persuasive burden (golden thread) – prosecution bears the burden of proving the
accused’s guilt BRD – Woolmington [1935]
- Evidential burden – (Lord Devlin): When the accused bears the evidential burden, the
evidence must be enough to “suggest a reasonable possibility” - Jayasena v R [1970]

HRMF that makes the act “Innocent” (3.6.1.1, p.224)

Mayer v Marchant (1973): HRMF that would not make the act innocent would still amount to
breach.
Due Diligence
State Rail Authority v Hunter District Water Board: Due diligence is not an extension of
HRMF. If defendants are fully aware of all the facts which go to make up an offence of SL,
they must be convicted, regardless of how much care they have taken to prevent the incident
from taking place. To this extent, liability is absolute.

Irrelevance of mistakes of law

Ostrowski v Palmer [2004]:
- Facts: Accused was charged with fishing in an area prohibited to commercial
fishermen. It was not disputed that he believed that the area in which he fished was not
a prohibited area. He had actually gone to an office of the government seeking a copy
of the current regulations, but the information that he had been given contained no
reference to a regulation which made the area in which he fished a prohibited area.
- Issue: Whether HMRF is available for mistakes of law.
- Rule: No access to HRMF if the mistake is one of law and not fact (mistakes of fact
apply only to mistakes pertaining to the actual elements of an offence).
o Hypothetical access to HRMF: If D thought he was going to fish at a non-
prohibited area but accidentally turned up and fished in a prohibited area.
 The accident would have to be honest and reasonable (e.g. a broken GPS
would be honest but not reasonable, while a strong current which blew
his boat into a prohibited area would satisfy both H&R components).
- Note: Judges have no control over prosecuting authorities, even if they believe the
discretion to prosecute to be oppressive (expressed explicitly in this case).

ABSOLUTE LIABILITY
- Where the mistake is one of law, liability is essentially absolute – Pollard v DPP (1992)
- Only imposed if the words of the statute show a clear intention for liability to be
absolute.
- Often includes a statutory defence.

GUMBOOT EXERCISE: DETERMINING CIRCUMSTANTIAL MR

- Knowledge: There is a severe prison term penalty, suggesting knowledge (i.e. Parl
wouldn’t want to send someone to prison unless they had knowledge of the wrong they
had committed).
- SL:
o Utility argument - in an ideal world, how does every react to this bill? You hope
that people will check the new legislation before they walk on the lawn. In this
situation, the person has the opportunity to check the legislation and not walk
on the lawn. The person has the opportunity to check the legislation and not
walk on the lawn.
o Given that the penalty is not insignificant, the social component is grave and
that there is a social utility argument, it may be concluded that parliament
intended for a SL component to apply to this legislation.
- AL: Ruled out unless the legislation expresses an explicit intention for AL to apply
(HKT). The existence of the statutory defence in that form lends the legislation to AL.
Defences:
- SL: Honesty – no notice of any evidence of rain.
- Could the prosecution prove BRD no HRMF?
o Three times the amount of rain had fallen and she made no attempt to determine
if it was in fact raining – no HRMF.
PUBLIC ORDER OFFENCES

What is a Public Place?

SUMMARY OFFENCES ACT 1988 - SECT 3
Definitions
3 DEFINITIONS

(1) In this Act:

"public place" means:
(a) a place (whether or not covered by water), or
(b) a part of premises,
that is open to the public, or is used by the public whether or not on payment of money or
other consideration, whether or not the place or part is ordinarily so open or used and
whether or not the public to whom it is open consists only of a limited class of persons,
but does not include a school.
- Simplified definition: “A public road, public reserve or other place which the public
are entitled to use” – SOA s 22
- Public space does not define the distinction between a private or public property. A
public place is any place that people may go, whether or not they have a legal right to
do so – McAneny v Kearney [1966].

Semple v Howes (1985)

- Facts: Demonstrators entered upon land in an area where uranium mining was being
carried on.
- Law: The land was considered a “public place”, and the court rejected a submission
that trespassers could never turn private land into a public place: “the emphasis in the
so-called common law test is not on proprietary rights but on actual user”.

Stutsel v Reid (1990)

- Facts: Ab man charged under s 4(1)(b) for using offensive language “within hearing
from a public place”. D was on a front yard 3m from the street. Magistrate dismissed
the charge on grounds that there was no one in the public place at the time of the
incident to hear.
- Law (Loveday J):
o The magistrate characterised the offence as “using indecent language within
the hearing of a person passing in a public place”.
 Thompson v Higgs – Court emphasised a narrow view that it had to be
within the hearing of a passing person in the public place at the time.
o Benson – It is unnecessary to prove that D was actually seen or heard by any
passer-by, only that D was in the view of could have been seen if anyone was
present.
 Facts were analogous to Benson, and thus offence held.
o Some offences must be committed in public places; others may be committed
in, or within view or hearing of, a public place.
OFFENSIVE BEHAVIOUR (6.4.1, p. 519)
SUMMARY OFFENCES ACT 1988 - SECT 4
Offensive conduct
4 OFFENSIVE CONDUCT

(1) A person must not conduct himself or herself in an offensive manner in or near, or
within view or hearing from, a public place or a school.
Maximum penalty: 6 penalty units or imprisonment for 3 months.
(2) A person does not conduct himself or herself in an offensive manner as referred to in
subsection (1) merely by using offensive language.
(3) It is a sufficient defence to a prosecution for an offence under this section if the
defendant satisfies the court that the defendant had a reasonable excuse for conducting
himself or herself in the manner alleged in the information for the offence.

SUMMARY OFFENCES ACT 1988 - SECT 4A

Offensive language
4A OFFENSIVE LANGUAGE

(1) A person must not use offensive language in or near, or within hearing from, a public
place or a school.
Maximum penalty: 6 penalty units.
(2) It is a sufficient defence to a prosecution for an offence under this section if the
defendant satisfies the court that the defendant had a reasonable excuse for conducting
himself or herself in the manner alleged in the information for the offence.
(3) Instead of imposing a fine on a person, the court:
(a) may make an order under section 8 (1) of the Crimes (Sentencing Procedure)
Act 1999 directing the person to perform community service work, or
(b) may make an order under section 5 (1) of the Children (Community Service
Orders) Act 1987 requiring the person to perform community service work,
as the case requires.

Identifying the elements

- The AR of the crimes defined by ss 4 and 4A may be broken down into three
elements:
o Conduct or language (the act/conduct)
o The conduct or language is offensive (1st circumstance)
o The conduct was in or near or within view or hearing from a public place or
school or that the speech was in or near or within hearing from a public place
or school (proximity requirement; 2nd circumstance)

Act Circumstance 1 Circumstance 2 Consequence

Actus Reus Language/speaking Offensive Proximity n/a
Mens Rea Intent Intent SL (Absence of n/a
HRMF)
What is offensive?
Ball v McIntyre (1966)
- Objective standard of the reasonable person
o Kerr J: “I doubt that the reasonable man seeing such conduct would have his
feelings wounded or anger, resentment, disgust or outrage roused.

Beck v NSW [2012]

- Facts: Off-duty police officer charged with offensive conduct under s 3 for urinating in
public. A parked vehicle hid the accused the waist down. It was about 3am, the street
was empty aside from his friends, there were no streetlights within his vicinity, and no
other cars.
- Rule (Adams J):
o Considered Spence v Loguch which held that the surrounding circumstances,
specifically whether any other persons were present at the time of the conduct,
are integral to determining whether an act constitutes OB.
o Citing Inglis v Fish [1961]: It was not necessary that there be evidence that a
reasonable person was in fact offended but it is sufficient that “such behaviour
occurred in a place where the presence of members of the public might
reasonably have been anticipated”.
 i.e. The relevant test is hypothetical.
o “There was no person in the vicinity who was capable of seeing what the
plaintiff was doing. It follows that…he had committed no offence.”

Police v Butler [2003], (p. 522)

- Facts: D (intoxicated Aboriginal woman) charged for offensive language. She was
initially inside the house, came out and shouted at police and the neighbours. She
continued to use offensive language despite the police’s efforts to quiet her. The
language was spoken within 10m of a public place and, according to police evidence,
could be heard from that distance.
- Law:
o Words that would be legally offensive change over time (Citing Phelan J).
“Shit” is no longer prima facie offensive as it was in the early 1990s.
o Then quoted Ball v McIntyre regarding the objective test for offensiveness.
o Cited Yeldham J from McNamara v Freeburn: The words “fucked” and “cunt”
are part of language of common usage in contemporary society and thus would
not offend a reasonable man.
 The reasonable man is contemporary.
o Studdert J in McCormack v Hangham (1991) found it relevant to consider the
circumstances in which the language is used - that the words were spoken in a
loud voice in the presence of children could make words offensive.
o Community standards – the word fuck is extremely common place now and has
lost most of its punch – word used twice in a PG movie
- Conclusion: No offence.
Mens Rea for Offensive Behaviour/Language
Pregelj and Wurramurra v Manison
- Facts: A couple (WM, AbW) were accidentally caught engaging in sexual intercourse
by a passing police officer. The officer saw the two through a bedroom window which
had no curtains. The constable “was a bit annoyed” by what he saw. The magistrate
found under s 47(a) of the SOA that indecent behaviour within the view of any person
in a public place was an offence and convicted the couple.
- Law:
Nader J:
o (Citing HKT): MR is an essential element in every statutory offence unless,
having regard to the language of the statute and to its subject matter, it is
excluded expressly or by necessary implication.
o Offensive behaviour is “an act which causes offence to another”.
o Excused from criminal responsibility unless the offending were intended or
foreseen as a possible consequence of his conduct
Rice J:
o The legislature did not intend that sexual activity within the privacy of one’s
own home to be offensive just because someone can see it.
o Criminal responsibility only arises where there is an element of intention to be
“in or within the view of any person in any…public place”.

Pfeifer
- Facts: D wore a shirt that read “too drunk to fuck” and was charged with offensive
behaviour under s 7(1)(c) (equivalent to s 4(1)). He argued that the shirt was the name
of a song of a band he liked and there was no intention to offend anyone.
- Issue: What MR, if any, must be established to obtain conviction under s 7(1)(c).
- Law (Doyle CJ):
o Provisions are intended to protect the sensibilities of the average member of the
community  Parliament intends to punish an offensive act even if the person
charged did not intend that the act have the relevant quality of being offensive.
o The issue is one of SI
 Did parliament intend to punish only those who intend or foresee that
their behaviour will be offensive, or
 Did it intend to punish those whose conduct gives offence unless they
reasonably thought that it would not do so?
o “Confirmed by the subject matter of the legislation – we must all consider the
interests and activities of others. We must refrain from doing things either
because society could not function unless we all adhere to some particular rule
of conduct.
o Nature of the offences: The social stigma is not serious though the penalties are
maximum penalty of three months’ imprisonment or $1000.
o Absolute liability would not be intended as it would be unreasonable to punish
a luckless offender. Therefore, parliament intended for it to be SL.
- Notes: HKT is the mechanism that courts have to use when cases are ambiguous as to
their elements.
Defence of “reasonable excuse” (p. 535)
- S 4(3) and 4(A)(2) provide a defence for the accused if they are able to prove that they
had a reasonable excuse for conducting themselves in the alleged manner.

Karpik v Zisis (1979)

- Reasonable where the behaviour (profanity in public) is almost a reflex action, e.g. if a
heavy object fell on the accused’s foot, or if they were suddenly hurt or angered by a
sudden outrageous outburst or provocation.

Conners v Craigie (1994)

- Facts: Accused was an Aboriginal man charged with OL under s 4(1)(b) for swearing
at two police officers.
- Law: LC Magistrate Horler held no offence considering the circumstances of the case
– occurring in Redfern and considering the context of the negative Aboriginal sentiment
towards white settlers and that a reasonably tolerant person would have disregarded the
language.
o SC appeal held Horler erred because the words fell within the definition of
offensive language. Matter sent back to LC where Horler dismissed the charge
on the grounds of reasonable excuse.
o SC 2nd appeal arguing error on the basis of applying a “purely subjective test”:
 Dunford J: Reasonable excuse involves both subjective and objective
considerations, but these considerations must be related to the
immediate circumstances in which the offensive words are used, just as
in self-defence or provocation the response of the accused must be
related in some way to the actions of the victim.

Jolly [2009]
- Facts: D swore at police in the aftermath of a street brawl. D argued under s 4A(2) that
the pain he was experiencing from the police dog’s bit on his neck caused his swearing.
- Law (Cogswell DCJ):
o The nature of the language in relation to the dog bite is justified, i.e. “Get the
fucking dog off me”.
o The language when it makes references to members of the police officers’
families having sexual relations with each other is not justified.
o (Citing Loveday J in Stutsel v Reid): The purpose of the section is to protect
members of the public who are in a public place from being assaulted by the
sound of such offensive language.

Beck v NSW [2012]

- “Busting” (that “he was unable to prevent himself from urinating”) is a reasonable
excuse for public urination.
DRUGS OFFENCES
Summary Offences (12.7.2, p. 1085)
- See textbook for relevant legislation.

POSSESSION
- Possession generally requires proof of:
o A degree of physical control of the item;
o An intention to control the item (generally inferred from proof of an awareness
of its existence)
o An intention to control a prohibited drug (generally inferred from proof of an
awareness of the likelihood of its nature).

AR
Physical Control
Filippetti (1984)
- Facts: Drug bust in a 3-bedroom house occupied by 6 people. Appellant handed over a
bag of Buddha sticks, and the police found a small amount of Indian hemp in the
appellant’s bedroom and over 800g of Indian hemp under a chair in the lounge room
shared by all 6 occupants. The appellant denied any knowledge of the drugs.
- Issue: Whether the finding was sufficient to establish beyond reasonable doubt that the
appellant had exclusive physical control over the drugs.
- Law (Street CJ):
o The finding of Buddha sticks in the chair would not readily establish that there
was exclusive physical control in any one of the occupants unless there were
some other evidence to accompany the finding of the Buddha sticks.

Dib (1991)
- Facts: Mr and Mrs Dib had a trafficable amount of heroin hidden in a vase in the
premises which they occupied. Their daughter and three other persons were present at
the time the drugs were found.
- Law:
o The Crown must prove not only the element of knowledge (Teh v The Queen
(1985)), but also that the accused had the right to exclude any persons not acting
in concert with him from interference with the property in question.
o He must have that property either in his manual possession or in a place to which
he may go without physical bar in order to obtain such manual possession of it.
o Where the Crown seeks to establish an accused’s possession of property found
not within his manual possession but rather in premises to which he has access,
it must persuade the jury that the accused has the legal right to exclude all
persons from the premises in which the property is situated (to prove BRD).
o The physical control or custody may be shared, but must be to the exclusion of
other persons or persons other than those with whom it is shared.
- Conclusion: The Court found them guilty of deemed supply and each was sentenced to
the maximum term (4y, 7m).

Delon (1992)
- Possession can include a case where the accused has hidden the drugs effectively so
that he can take it into his physical custody when he wishes and where others cannot
discover it unless by accident.
MR
Intention to Control and Awareness of the drug
He Kaw Teh (1985)
- The accused must have intended to control a prohibited drug, and hence had to have
some awareness that the item was of such a nature (“knew of the existence and nature,
or of the likely existence and likely nature”).

Baird (1985)
- It is enough if the accused believed that the substance in question is prohibited (large
step down from the high standard of HKT, i.e. Knowledge; belief; awareness).

Saad (1987)
- Intent is established if the accused knew or was aware that an article which was
intentionally in his possession comprised or contained a narcotic drug.
- Actual knowledge or awareness is not an essential element of the MR – belief, falling
short of actual knowledge, would sustain an inference of intention.

Lau (1998)
- Applying Saad:
o D must have known or believed that the white bag we had in his physical
possession contained drugs or be aware that there was a significant or real
chance that it did, and that the amount was not less than the commercial quantity
or there was a significant real change that it was.

Amanatidis [2001]
- Facts: Amanatidis and his daughter were heroin users. Police apprehended D attempting
to purchase heroin, and D was convicted for supply of heroin found in a car for which
he had the keys. He denied any knowledge of the heroin.
- Law (Giles JA):
o The appellant had physical control even though his daughter had driven the car
the previous night as D had driven it on this occasion and had the keys.
o He did not admit knowledge and in the circumstances knowledge could not be
established BRD simply by proof that the heroin was found in the car.
 His conversation with the officer about bring around more heroin, and
his lie that he had come in a taxi instead of driving himself (possibly
from consciousness of guilt or knowledge of his daughter’s drug abuse
and fear that she may have left drugs in the car) were insufficient to
constitute knowledge BRD.
Minute Quantities
Williams (1978)
- Gibbs and Mason J:
o The Common Sense and Reality test - It is not an offence to have minute
quantities of prohibited drugs on them that are invisible to the naked eye.
o Then apply MR from HKT: if you don’t have knowledge of the minute
quantities, then no MR.

Paul v Collins Jnr [2003]

- Concerning the common mixing of prohibited drugs with other substances and often in
small quantities, the definition of a dangerous drug includes any amount of that drug,
however small.
SUPPLY OFFENCES
- Definition, Drug Misuse and Trafficking Act 1985 s3, and deemed supply s 29 (p. 1094)

The Ordinary Meaning of Supply

Carey (1990)
- Facts: D found with amounts of hashish and cocaine beside her bed and charged with a
deemed supply because of the quantity involved. She told police she did not smoke or
use drugs, and that the drugs belonged to her sister. She had been given the drugs to
keep overnight, and said she intended to flush the drugs down the toilet if her sister did
not collect the next day as promised.
- Law (Hunt J):
o The definition of “supply” in s 3 is inclusive, not exclusive. “Supply includes
sell and distribute…”
o None of the various limbs include the mere return of the drugs to their owner or
person reasonably believed to be the owner.
o The word “supply” also retains its ordinary meaning, “to furnish or to provide
something which is needed or wanted or required by the person to whom it is
given”. They do not suggest that the use of the word is appropriate when that
something is merely returned to its owner.
o The mere transfer of physical control does not amount to supply – R v Delgado
[1984]
- Note: Burden to prove intention to return the drug rests on the accused. If the accused
chooses rather to argue that they had no knowledge of the presence of the drug, they
will not be able to rely on the argument that they were merely looking after it – Small
(1991).
- Those returning drugs will often be accessories to supply if the person they hand them
back to intends to supply the drugs at a later point – Liberti (1991).
- At the very least, they will be guilty of possession.

Asim (1997)
- Facts: D in possession of drugs with intention of using the drugs as a lever to persuade
the owner to repay money.
- Law: Possession for leverage is possession for supply.

The Extended Meaning of Supply

- Statutorily extended meaning: Drug Misuse and Trafficking Act 1985, s 3 (p.1094)

Cause Supply
Castle v Olen (1985)
- Facts: Castle and Pearce arrested in Pearce’s car, Pearce in possession of LSD.
Evidence that Castle had run Pearce and asked him whether he could get “speed”.
Pearce said he “could get trips”, to which Castle replied, “That’s okay”, and an
arrangement was made for the men to meet the next day. Castle argued that this request
was insufficient to have “caused” the supply of LSD.
- Law (Yeldham J):
o The causing of supply under s 3(1) is limited to cases where the prohibited act
is done on the actual authority, express or implied, of the party said to have
caused it or in consequence of his exerting some capacity which he possesses
in fact or law to control or influence the acts of another.
o It requires more than a mere request to a friend to obtain and sell.
Suffer or Permit Supply
Jasper (2003)
- Facts: Corrupt NSW Police officer arranged with a heroin dealer, Caccamo, to allow
him to continue his drug-dealing activities in return for weekly payments of $1000.
- Law (Mason P):
o A person does not suffer or permit conduct over which he or she has no control
or of which he or she is ignorant. For a person to permit or suffer another to sell
and distribute requires more than awareness of the act in question.
- App: TJ held that the respondent lacked the power to prevent in advance the
commission by Caccamo of the offence of supply.
o This was too narrow a view of the facts and the relationship. It is at the very
least arguable that D “suffered” Caccamo to supply heroin on one day when,
knowing of Caccamo’s intent to do so, D failed to take or initiate any action
with a view to Caccamo’s arrest. Caccamo was dealing daily for a period of
many months, using a modus operandi known to the respondent.
o There was ample opportunity for arrest, and D had the legal capacity to control
a situation (arrest based on suspicion with reasonable cause as regards past
offences, cf Crimes Act s 352(2)(a)). By doing nothing, D suffered and/or
permitted the supply with the requisite accompanying state of mind.
o Knowledge of something likely to be done in the future may suffice, at least if
that knowledge rises to the level of “shutting one’s eyes to the obvious”.

Offer to Supply
Dendic (1987)
- Offence is complete on the making of an offer – it is irrelevant whether any supply
eventuates or whether the accused actually intends to supply.
o It must be genuine and intended, with the intention that it is regarded as genuine
by the offeree.
- For the offer to be genuine, the prosecution only has to prove intention to make an
agreement, not an intention to honour the agreement - Addison (1993)

Send
The drugs don’t have to be received by anyone to constitute send - Pinkston (2004)

Deemed Supply
- Those in possession of the trafficable quantity of a drug are presumed to be in
possession for the purposes of supply under s 25 unless they can convince the court that
they were in possession “otherwise than for supply” (s 29(a)).
o This is a legal, not an evidentiary, burden and must be established by the
accused on the balance of probabilities (Carey (1990)).
- Trafficable quantities – Sch 1 to the Drug Misuse and Trafficking Act (p 1098).
- Trafficable quantities can include mixtures “containing any proportion of the prohibited
drug” – (DMTA, s 4).
- It is irrelevant whether or not the trafficable quantity comprises the pure drug or a small
amount of the drug adulterated with another substance – R2 (1990).

Deemed Drugs
- DMTA s 40(1)&(2) (p.1098) prevents an accused who erroneously believes they are
supplying prohibited drugs from escaping liability – Haggard v Mason [1976].
Fraudulent Transactions
- S 40 covers fraudulent transactions – Swan (2003)

Swan (2003)
- Facts: Accused took a prepayment from an undercover officer who tried to buy cocaine,
promising to return with the drugs, but never returned.
- Law (Howie J):
o It can’t be proved by the Crown that the person making the offer or instigating
the agreement actually intended to supply a drug unless the offer or agreement
was carried through to conclusion or the accused confessed to such an intention.
 Thus, it is likely that Parliament intended for the legislation to cover
such dishonest conduct.

Ongoing Supply
- DMTA(OD)A 1998 s 25A – (p. 1099)

KNOWINGLY TAKE PART IN MANUFACTURE, PRODUCTION OR SUPPLY

- Requisite knowledge is that the accused knew or was aware that the commodity which
was being supplied was a prohibited drug – Karam (1995)
o E.g. making a telephone call to arrange a meeting
- Conviction even if they only knowingly took part in an action that fell within the
extended definition of supply - Derbas (1993)

Zaiter [2005]
- Facts: Police intercepted phone conversations between dealers Zaiter and McMillan.
McMillan asked for a kg of cocaine to on-sell, and Zaiter agreed to obtain the drugs.
He was charged with knowingly taking part in the supply of a prohibited drug.
- Law (Barr J):
o The applicant knowingly concerned himself in agreeing or offering to supply
the cocaine.
o It is possible to knowingly take part in one’s own activities.

Provision of premises in which a step in the process of supply occurs

Ruiz-Avila (2003)
- Facts: D was the lessee of a unit in which police found supply quantities of cannabis
and ecstasy. There was no evidence that D had occupied the unit, and other people had
been seen entering and leaving. He was convicted of knowingly taking part in the
supply of both drugs.
- Law (Hidden J):
o Nothing less than actual knowledge of the presence of the drug is sufficient.
 If D’s knowledge of the presence of the tablets were proved, it would
not be necessary to prove that he knew that they contained the drug
ecstasy. Knowledge or even belief that they contained a prohibited drug
would be sufficient – Dunn (1988)
o The tablets were found in a place where they would not be immediately
observable to anyone entering the unit.
Knowingly taking part in a step in the process of manufacture of drugs
- S 6 – p.1100.
- One cannot be engaged in a step in the process of manufacture if the process is
incapable of producing a prohibited drug - McCoy (2001)

BD (2001)
- Facts: Accused stopped for a RBT and found to be driving a vehicle containing large
quantities of some substances used to manufacture speed. D was charged with
knowingly taking part in a step in the process of manufacture of a prohibited drug.
- Law:
o The acquisition and/or the transport of chemicals or equipment do not, without
more, constitute steps in the process of manufacture. They are steps preparatory
to the process of manufacture.
 The statute does not refer to such acts – it refers to step taken in the
process of manufacture (emphasis added).

Inciting Supply
- It is an offence to aid, abet, counsel, procure or incite a person to commit any of the
indictable offences, punishable with the same penalty as the offence of supply – s 27.

Eade
- Facts: Eade was a police officer recorded seeking drugs from a dealer, Hart. The
recording included a statement by D “Steve wants some eccies”; a statement by Ms
Hart “Well, which is more important, your coke or Steve’s eccies?”
- Law (Hodgson JA):
o A mere request by an addict to the addict’s supplier for drugs would not
normally amount to the offence of inciting
o Incitement occurs only where a person is seeking a supply of drugs from another
person not understood by the former to be ready, willing and able to supply
drugs forthwith to the acquirer; it does not occur where it is not required.

Offences involving prohibited plants

- Plants prohibited under s 23 of DMTA
- It is an offence to cultivate, supply or possess these plants other than for authorised
scientific research (s 23(4)(b)) or as part of a policed controlled operation (s 39RA).
- Cultivate includes planting, nurturing and harvesting plants (s 3).
o The watering of germinated or unterminated seed in order to keep it alive until
planted, with the intention of producing from it fully grown plants, amounts to
cultivation – Eager v Smith (1988).
o Storage of a crop might be seen as the last stage of the harvesting process.
Determination of whether it constitutes cultivation is a question of fact – Ruiz-
Avila (2003).
- Required MR is that the accused knew that a plant was involved.
- Specific defence for those who claim that they did not know that the plant in question
was a prohibited plant. They must show not only lack of knowledge or suspicion, but
also that they could not reasonably be expected to have known or suspected that the
planted was a prohibited plant (s 23(4)(a)).

Penalties (p. 1104).

- Hamzy – accumulated supply.
MOVE-ON POWERS
- Power to give reasonable directions in public places – LEPRA Pt 14, s 197 (p. 555).
- Safeguards – LEPRA Pt 15 – before giving a move-on direction, the police officer must:
o Identifying him or herself as a police officer and provides reasons (s 202), and
o Warn the person that he or she is required by law to comply with the direction
(s 203).

LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002 - SECT

197
Directions generally relating to public places
197 DIRECTIONS GENERALLY RELATING TO PUBLIC PLACES

(1) A police officer may give a direction to a person in a public place if the police
officer believes on reasonable grounds that the person's behaviour or presence in the place
(referred to in this Part as "relevant conduct"):
(a) is obstructing another person or persons or traffic, or
(b) constitutes harassment or intimidation of another person or persons, or
(c) is causing or likely to cause fear to another person or persons, so long as the
relevant conduct would be such as to cause fear to a person of reasonable firmness,
or
(d) is for the purpose of unlawfully supplying, or intending to unlawfully supply, or
soliciting another person or persons to unlawfully supply, any prohibited drug, or
(e) is for the purpose of obtaining, procuring or purchasing any prohibited drug that
it would be unlawful for the person to possess.
(2) A direction given by a police officer under this section must be reasonable in the
circumstances for the purpose of:
(a) reducing or eliminating the obstruction, harassment, intimidation or fear, or
(b) stopping the supply, or soliciting to supply, of the prohibited drug, or
(c) stopping the obtaining, procuring or purchasing of the prohibited drug.
(3) The other person or persons referred to in subsection (1) need not be in the public
place but must be near that place at the time the relevant conduct is being engaged in.
(4) For the purposes of subsection (1)(c), no person of reasonable firmness need actually be,
or be likely to be, present at the scene.

Failure to Comply
Failure to comply with direction
199 FAILURE TO COMPLY WITH DIRECTION

(1) A person must not, without reasonable excuse, refuse or fail to comply with a direction
given in accordance with this Part.
Maximum penalty: 2 penalty units.
(2) A person is not guilty of an offence under this section unless it is established that the
person persisted, after the direction concerned was given, to engage in the relevant
conduct or any other relevant conduct.
- S 204B states that a person has not committed a “failure to comply” offence unless a
warning has been given by the police officer.
POLICE POWERS OF ARREST (p. 426-437 for essay)
- Arrest without warrant: LERPA s 99 – p. 437

Arrest as a last resort

Lake v Dobson (1981)
- Facts: Appellants arrested for nude sunbathing.
- Law: Since nude sunbathing can scarcely be regarded as ranking high in the criminal
calendar, it is to be hoped that police will employ a summons in these cases whenever
possible. Arrest, for the great majority of people, is equivalent to an additional
penalty…and should not be employed where the issues of summons will suffice.

DPP v Carr
- Facts: D was arrested for offensive language and was accused of being uncooperative
by resisting arrest, assaulting police and intimidating police. The constable on patrol
knew he had the option of issuing a summons or field court attendance notice and
argued that the latter was more convenient to issue. He justified the arrest by stating
that the offensive behaviour would continue if he allowed D to continue to walk away.
- Issue: Whether the constable acted ‘improperly’ by arresting instead of issuing a
summons.
- Law: The arrest was not unlawful pursuant to s 352 of the Crimes Act 1900 and s
100AD(4) of the Justices Act 1902.
o S 352 (which is now repealed but can be found in s 99 of LEPRA) authorises
the power of arrest without warrant if the person is in the act of committing an
offence or has just committed an offence.
o Courts have recognised arrest as a last resort, especially minor offences and
where the defendant’s name and address are known and there is no reason to
believe that a summons will not be effective.
- App: The magistrate held that the arrest was improper given the maximum penalty for
the offence was a fine, there was no issue of public safety, the officer failed to consider
alternatives to arrest, and that he did not use arrest as a last resort, choosing to do so
because it was “far quicker” to arrest.

Essay Points
Smart AJ on:
Arrest as a Last Resort
- Arrest is an additional punishment involving deprivation of freedom and frequently
ignominy and fear.
- The consequences of the employment of the power of arrest unnecessarily and
inappropriately and instead of issuing a summons are often anger on the part of the
person arrested and an escalation of the situation leading to the person resisting arrest
and assaulting the police. The pattern in this case is all too familiar.
Suspects on Reasonable Grounds
- Two tests to meet before an arrest is lawful (LEPRA):
o The police officer “suspects on reasonable grounds” that the person is
committing or has committed and offence – s 99 (1)(a)
o The officer is “satisfied that the arrest is reasonably necessary” for any one of
the reasons set out in s 99(2)

Rondo [2001]
- Facts: Police stopped D’s vehicle and found money and weed. He was arrested and
taken to Chatswood police Station where he refused to answer questions. Police
obtained a detention warrant and search warrant, and found more weed at his home.
- Issue: Whether the police reasonably suspected at the time they stopped D that in the
vehicle being driven by D there was anything stolen or otherwise unlawfully obtained
or anything used or intended to be used in the commission of an indictable offence.
- Law:
o Referred to Streat v Bauer; Streat v Blanco: “A reasonable suspicion involves
less than a reasonable belief but more than a possibility”, and “some factual
basis must be shown”.
o The mere fact that the appellant was driving a car which he did not own or lease
or hire is not sufficient to give rise to a reasonable suspicion.
o The stopping of the vehicle amounted to unlawful interference with the
appellant’s freedom of movement, and harassment.
o All else flowed from this unlawful interference, and whether D’s act of putting
something in the glovebox was sufficient to raise reasonable suspicion is a
“borderline case”
o Any evidence obtained in consequence of an impropriety (s (138 (1)(b)) is
unlawful evidence.

McClean [2008]
- Facts: D charged for assault police and resist arrest after being suspected of aggravated
break and enter offence. She was held against her will for questioning, without having
been arrested in relation to the original suspected offence.
- Issue: Whether the arrest was lawful.
- Law: For an arrest to be lawful the officer must have had reasonable suspicion the
defendant committed an offence.
- App: Reasonable suspicion was justified through evidence of radio information,
communication with other police, information from the alleged victim, location of the
accused, manner and appearance.
o However, the arrest was unlawful because her arrest for the purposes of “further
investigation” of a reasonable suspicion is neither consistent with the common
law nor codified in s 99(3).
 Zaravinos v New South Wales [2004]: Arrest for the purposes of
question or unreasonable suspicion are ‘extraneous’.
 Williams v R [1987]: Arrest for the purposes of investigation or
interrogation is unlawful.
 Adams v Kennedy: It is the right of every citizen to be free from arrest.
o Detention following arrest may be permissible for the purposes of s 109 to 114
of LEPRA, but only if the arrest is lawful in the first instance. Arrest is unlawful
unless an officer does so to achieve one or more of the purposes set out in
99(3)(a)-(f).
Voluntary Attendance
S and J (1983)
- Facts: Two young Aboriginal men suspected of breaking and entering were detained
for questioning by police. The police involved said that they had not carried out a formal
arrest as the youths had voluntarily agreed to accompany them to the station and assist
in their inquiries.
- Issue: Whether there was real consent.
- Law
Mitchell J:
o Voluntary compliance does not deprive one of liberty, however, it is incumbent
upon the police officer to make it clear that the suspect is not under arrest and
is free to refuse to accompany him.
o In the absence of such an intimation, the apparent invitation or request may
constitute an apprehension.
White J (Dissenting):
o The police must do two things to ensure clarity:
 Inform the suspect that they are not under arrest.
 Inform them that they are free to refuse to accompany the police or are
free to go.

Detention for the purposes of questioning

- See p. 455 for legislation (Part 9 LERPA)

Williams (1986)
- Facts: Williams was arrested at 6am and brought before a justice at 10am on the
following day. The intervening 28-hour period was used for questioning about a
number of offences additional to those for which he had been arrested.
- Law (Mason and Brennan JJ):
o Detention for interrogation is unlawful
o S 34A(1) of the Justices Act 1959 (Tas) required a person in custody to be
brought before a justice “as soon as is practicable after he has been taken into
custody”.
o If a person cannot be taken into custody for the purpose of interrogation, he
cannot be kept in custody for that purpose, and the time limited by the words
“as soon as reasonably practicable” cannot be extended to provide time for
interrogation.

Essay Point
- It is not for the courts to erode the common law’s protection of personal liberty in order
to enhance the armoury of law enforcement.
Campbell [2008]
- Facts: Aboriginal plaintiffs were drinking at a park when they saw racist graffiti and
became upset. This led to violent incidents involving the plaintiffs and two white men.
- Law:
o Whilst many of the required procedures under LEPRA regarding detention and
questioning were followed and the rights of the detained persons were
recognised, the custody manager failed to inform Aboriginal Legal Service
under Clause 27 of LEPRA Regulation 2005.
 ABTI are classified as ‘vulnerable persons’, entitled to have a ‘support
person’ present during any investigative procedure.
 Clause 33(1) provides that the custody manager aware that the detained
is an ABTI must immediately inform the person that an ALS
representative will be notified
 The custody manager’s non-compliance with 33(1) during their custody
and questioning was unlawful, given that the officers knew the plaintiffs
were Aboriginals and were familiar with the LEPRA requirements.
o Their non-compliance was deliberate
 A fax was sent to the ALS which the officers knew would not be
received as it was sent outside of ordinary business hours
o It is unclear as to why the plaintiffs had to be arrested and interviewed on the
evening as it is inferred that there was no fear of evade arrest and the option of
adjournment until the following day during business hours was available.

ARREST AND REASONABLE FORCE

- Use of force generally and in making an arrest: LEPRA Pt 18, ss 230 & 231 (p. 494)
o S 230: As “reasonably necessary” to exercise a function.
o S 231: As reasonably necessary to make an arrest or prevent the escape of a
person after arrest.
- Compliance and restraint techniques can include pushing, holding, applying pressure.
- Devices or weapons used include hand-cuffs, batons, OC spray, Tasers, and firearms.
- Use of force operates according to a Tactical Options Model (TOM), which requires an
officer to consider factors such as age, gender, size, fitness and skill level of officers or
the target, and the number of offenders or officers at the scene.

Use of Tasers
Ali Alkan – Unnecessary and unreasonable use of a Taser.
- Man was tasered twice and the court found his arrest unlawful because of unnecessary
and excessive use of force. There was no reasonable basis for the view that there was a
risk to human life.
- The man showed compliance with police commands and no signs of resistance.
- There was no reasonable basis for resorting to violent confrontation.
- Evidence for possession of drugs inadmissible because of the breaches of law and
deliberate intention of officers to taser D, and because the evidence could have been
obtained without violent resort.

Bugmy – What should a reasonable officer have done?

- Facts: The steak knife and wife, kneeling with hands behind head, tasered.
- A taser should only be used when violent confrontation is occurring or imminent.
- A reasonable officer would have allowed a calmer head to prevail.
SEARCH POWERS AND REASONABLE FORCE
- Power to search without warrant: LEPRA Pt, 4 s 21 (p. 481)
- Types of searches (s 3 definitions).
- Safeguards to ensure dignity and privacy: s 32 (p. 482).
- Rules for strip searches: s 33 (p. 484)
- S 30 In conducting the search of a person, a police officer may:
(a) quickly run his or her hands over the person's outer clothing, and
(b) require the person to remove his or her coat or jacket or similar
article of clothing and any gloves, shoes, socks and hat (but not, except
in the case of a strip search, all of the person's clothes), and
(c) examine anything in the possession of the person, and

USE OF DRUG DETECTION DOGS

- Drug detection dogs: LEPRA s 146-148 (p. 489).

Darby v DPP (2004)

- Facts: Officers were patrolling the vicinity of a nightclub known to be frequented by
drug users. A sniffer dog sensed illegal substances and made its way to D where it
located substances in his genital area. It sniffed his genital area and put its nose directly
at the pocket, and sat down.
- Issue: Whether the dog’s search constituted trespass to the person.
- Law
((Ipp JA, McColl JA agreeing):
o Magistrate ruled that the use of a police sniffer dog constituted a search and was
unlawful under s 37(4) of the DMTA 1985 due to an absence of “reasonable
suspicion”. There was no finding of trespass against the person.
o Search means to examine a person for the purpose of finding out whether they
have prohibited drugs in their clothing or on their body (s 37(4)(a) DMTA).
o Rocky’s actions were for the purpose of identifying which person within the
crowd was in possession of the drug – this does not constitute a search
o Once a dog has acted in this way, there is reasonable suspicion that would
ground a subsequent search by a police officer under s 21 of LEPRA.

S Bolt (2005)
- Facts: D was approached by a sniffer dog and had his genitals nudged. The dog then
sat down next to him. Police subsequently searched D and found 26gms of cannabis.
- Issue: Whether the sniffer dog’s conduct constituted battery.
- Law:
o Dog’s act was not incidental but intentional, however it occurred before police
formed any reasonable suspicion of illegal activity.
o Admission of evidence is up to the court’s discretion
 Court held that despite the fact that they don’t condone the use of drugs,
exclusion of the evidence would not threaten social stability
o Any touching by a sniffer dog could amount to battery, depending on the
circumstances.
o S 9 requires police to take “all reasonable precautions to avoid sniffer dogs
making contact with anybody”.
POLITICAL MARCHES AND PROTESTS
The right of peaceful assembly
Evans v NSW [2008]
- Facts: “No to Pope” were communicating their views about sexual tolerance and
contraception by handing out merchandise bearing slogans at World Youth Day, while
wearing condom costumes.
- Issue: Whether cl 7 of the WYD Regulation 2008 (which provides that people who
“caused annoyance or inconvenience” to WYD participants within declared areas could
be directed to cease conduct )could be invoked.
- Law:
o The principle of legality should prevent Acts from encroaching upon common
law rights and freedoms where constructional choices are open.
o Personal liberty, including freedom of speech, is subject to regulation for the
purposes of an ordered society.
o “Annoyance” may extend to expressions of opinion which neither disrupt nor
interfere with the freedoms of others, nor are objectively offensive in the sense
traditionally used in the State criminal statutes.

Exclusion to Move-On Powers

- LEPRA s 200 - Move-on powers cannot be used in relation to:
(a) an industrial dispute, or
(b) apparently genuine demonstration or protest, or
(c) a procession, or
(d) an organised assembly.

Unlawful Assembly
- Crimes Act 1900, s 545C(3): “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 legally entitled to do”.
- Offence punishable summarily up to 5 penalty units ($550) or 6-months imprisonment
(s 545C(1)), or twice that if the person convicted was armed at the time (s 545C(2)).
- 2R justification: Massing of persons around a premises can cause sufficient
intimidation for an ordinary man from conducting himself by normal means, despite
the absence of the massing to exercise any form of violence, making of threats, or
deliberate insults.

Authorisation
- s 23 requires that organisers of a public assembly seek authorisation for their proposed
event by notifying the Police Commissioner in writing of the details.
- Public assemblies are not prohibited is:
o S 23(f): The Commissioner notifies the public assembly that the Commissioner
does not oppose the holding
o S 25(1): Commissioner may apply to the Supreme Court for an order prohibiting
the holding of the public assembly.
o S 25(2): The Commissioner is obliged to invite the organisers to confer with a
member of the police force before he may approach the courts.
o S 26: Where less than 7 days’ notice is provided by organisers and the
Commissioner has not responded, the organisers may themselves apply to a
court for an order authorising the holding of the public assembly.
p. 569 for criteria in determining authorisation by Courts
CROWD CONTROL AND PUBLIC ‘DISORDER’
- Riot and affray: Criminal Procedure Act 1986 (NSW) – (p.563)
- Violent disorder: Three or more persons together 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” – SOA s 11A
o It must be proved that the accused intended to use or threaten violence or was
“aware that his or her conduct may be violent or threaten violence” (s 11A(5)).
o It is not necessary that any person of reasonable firmness was actually or was
likely to be at the scene (s 11A(3)).

Parhizhar [2014]
- Facts: D participated in a protest on the roof of the Villawood Immigration Detention
Centre with other protestors on the ground. The defendant was convicted of riot and
appealed that, according to s 93B, the definition of riot was not satisfied because there
were not 12 men on the roof, and the men on the ground were too far to be considered
part of the “riot”.
- Law: Court dismissed the appeal.
o (Price J): The phrase “present together” should be given its ordinary meaning,
and it is not necessary for the prosecution to establish that the alleged
participants were in close proximity to each other, noting that “mutual
assistance” is not part of the statutory definition of riot.

Colosimo [2005]
- Facts: Three men who had been involved in a fight with security staff at the Star City
Casino were charged in the LC for a number of charges including affray under s 93C
and aggravated assault.
- Law (Johnson J): Court dismissed the assault charges but found each guilty of affray.
o Smith [1997]: Affray typically involves a continuous course of conduct, the
criminal character of which depends on the general nature and effect of the
conduct as a whole and not on particular incidents and events which may take
place in the course of it.
 Where reliance is placed on such a continuous course of conduct it is
not necessary for the Crown to identify and prove particular incidents.
o Identification of particular acts by particular persons involved in the incident
may not be easy.
o The elements of the offence under s 93C may be satisfied where a finding is
open that persons charged with affray have engaged in unlawful violence even
if the specific acts committed by each individual cannot be precisely identified.
 CRIM NOTES (ESSAY)

TASKS
(1) Technical
a. What does this statute do?
b. What is the offence?
c. What are its elements? Ambiguity? – HKT
d. Does it produce powers, limitations?
e. What are the consequences?
(2) Express Opinion
a. Appropriateness, desirability, effectiveness, fairness
b. Normative POI (point of interest/investigation?)

DEFINING CRIME
Harm
- Harm has immediate plausibility as a justification for criminalising a given form of
behaviour.
Mill, “On Liberty”, 1970
- The only purpose for which power can be rightfully exercised over any member of a
civilised community, against his will, is to prevent harm to others.

Risk and Preventative Justice

Ashworth, Zedner and Tomlin, Prevention and the Limits of the Criminal Law, 2013.
- The criminal law is a backward-looking institution.
- Its implementation punishes people for their past behaviour.
- Increasingly states use the criminal law or criminal-law like tools to try to prevent or
reduce the risk of (anticipated) future harm.
o Such measures include the criminalisation of ordinarily harmless and
seemingly innocent behaviour.

O’Malley, 2013
- Preventive justice focuses on risk of harm.
- Deterrence has long been a key aim of law
- Drink driving is almost a paradigm of preventive justice for the risk-neutralisation of
offenders. The offence is defined by risk. At issue is that they are in a risk-creating
condition, and this risk is detectable by scientific instruments, defining the offence.
NORMATIVE THEORIES OF CRIMINALISATION (p. 61)
- Legal conditions/values that should apply before particular behaviours are criminalised.

Ashworth, “Is the criminal law a lost cause?” (2000)

The Principled Core of Criminal Law
The criminal law is a lost cause from the point of view of principle.
- New offences have been created to penalise non-serious misbehaviour, attached with
disproportionate sentences.
- The criminal law should only be used to punish for substantial wrongdoing
o Prevention is the reason for identifying and criminalising serious wrongdoing.
o However, prevention is not sufficient reason alone, and the criminal law isn’t
necessarily an effective means of prevention.
o Crime prevention strategies are usually designed to minimise the risk that
certain situations will come about, but alone, its deterrent efficacy is over-
estimated.
o Appropriately targeted social, educational and housing policies may well have
greater preventive effect than the enactment of criminal offence and the
conviction of a relatively small proportion of offenders.
- Enforcement authorities are improperly assessing the seriousness of the wrongdoings,
and the criminal policies reflect this

Ashworth and Horder, Principles of Criminal Law (2013)

- A minimalist approach should be adopted as guided by the principles of autonomy and
welfare (minimum criminalisation): (a) respect of human rights; (b) Right not to be
subject to state punishment; (c) Criminal law should not be used unless other techniques
are deemed inappropriate relative to the offence; (d) Offences should not be
criminalised where the outcome of criminalisation has a worse impact.
- The main determinants of criminalisation are political opportunism and power.
- Emphasis on fair warning and predictability in the law, respecting autonomy and the
ROL, need to control the exercise of power by state officials.

Lacey (2012) (Reflection on Ashworth)

- Ashworth’s normative account can’t change the underlying dynamics of the society
which has championed pragmatic criminalisation
- However, progress can be made towards liberal minded goals shared with Ashworth by
locating criminal law more firmly within the political economy of criminal justice – i.e.
analyse the recent legislative changes for its meaning, functions, and significance as a
social institution.

A Duff, Answering for Crime (2007)

- Defendant should be treated and addressed as a citizen in a “communicative” or
“relational” theory of criminal responsibility.
- Restorative and moral justice: if we fail to treat a person or group with the respect or
concern due to them as fellow citizens, we may lose the moral standing to call them to
account, to judge them or condemn them, for the wrongs that they commit as citizens.
Law Creation has to be Justified
Husak, Overcriminalziation: The Limits of the Criminal Law (2008)
- For what conduct may the state subject persons to be punished?
- Proposes limits to state authority to enact penal offences and define the barriers to
punishment:
- Internal constraints – derived from the criminal law itself – punishments are justifiable:
o If the offence was intended to illegalise a non-trivial harm
o If the defendant’s conduct was wrongful
o When and if deserved
- External Constraints/justification – imported from normative theory outside the
criminal law itself
o State must have substantial interest in whatever objective the statute aims to
achieve, determine the legitimacy, decide whether its substantial to criminalise
o Law must directly advance that interest
o Law must not be more extensive than necessary to achieve the interest
- Penalising for the “crimes of risk prevention” (inchoate crimes) – may be unjustified.
It is justified in reducing substantial risk, if it decreases likelihood of ultimate harm.

Creation and Construction of Criminal Offences

A Loughnan, Drink Spiking and Rock Throwing, (2010)
- Overarching trend toward increasingly punitive and populist law-making, facilitated by
‘law and order’ political rhetoric and widespread fear of crime.
o Conviction that more law will produce more order
- Speed and timing: Loughnan criticises the rapid response to media and public interest
is concerned more with political ideology and popular perception rather than an
effective form of social control. He argues the insufficient consultation process without
informed research is only to ally public concern.
o Examples: Crimes (Criminal Organisations Control) Act 2009 (NSW) was a
response to ‘bikie’ concerns and consorting laws.
o He argues that the repetitive nature of governmental responses to repeating
social problems deteriorates the legitimacy of the criminal law and
unnecessarily questions the adequacy of existing provisions
- Expansion of law enforcement powers
- Changes to the Laws of Evidence and Procedure: Giving power to police over certain
areas weakens the standard criminal procedure by deteriorating the principle of placing
the burden of proof on the prosecution.
o E.g. criminalising individuals on the spot such as through the Crimes (Criminal
Organisations Control) Act 2009 (NSW) which criminalises individuals who
associated with members of particular organisations.
o Standard criminal procedural protections have been sacrificed in order to
facilitate prosecution and conviction.
- Increased use of preparatory offences: Whilst some offences are justified on the basis
of necessity of police intervention, it creates risk of over-criminalisation
- What constitutes good, effective or ideal communication through criminal law
prohibitions?
o E.g. Protection of the community by preventing further serious offending.
CONSORTING
- Offence of consorting is one of Australia’s dubious contributions to the criminal law.
Johanson v Dixon (1979):
- Mason J: Consorting laws were designed “because the association might expose the
individual to temptation or lead to his involvement in criminal activity”.
- Murphy J (Dissenting): The legislative contravenes generally accepted standards of
human rights… i.e. Freedom of association
Jan v Fingleton (1983)
- King CJ: The conduct punished may be quite innocent. A person is to be punished not
for any harm which he has done to others, but merely for the company which he has
been keeping.
o The courts may comment on the unjustness of the laws but inevitably can only
apply the law – “imprisonment for four months may seem a harsh penalty for
doing nothing more than keeping undesirable company. However, while the
statutory provision is there, it must be applied”.
As a Police Power
- Police acknowledge the main purpose of the old consorting offences was to use the
threat of prosecution as a lever to extract information.
- The Police continue to jealously protect consorting and see it as a discretionary power
rather than as a substantive offence (A Steel, 2003).
Current Law
- Current law – 93X of Crimes Act 1900 (p. 1214)
- S 93Y provides a “defence” that consorting was “Reasonable in the circumstances”
because it was with “family members”, among others.
- This defence does not extend to long-time friends – Charlie Forster who had known
his friends since they were 4, can’t have a drink because they’ve been to gaol.
- The current legislation did not emerge out of a process of sober reflection, research
and consultation on whether reform of this area of the criminal law was necessary.
o 93X was the govt.’s response to heightened anxiety about organised crime
gangs and gun violence, and directed at “outlaw” bikie gangs.
o AG: The goal is not to criminalise individual relationships, but to deter people
from associating with criminals. Police can “make a judgment about whether
observed behaviour reaches the level sought to be addressed by the bill.
NSW Ombudsman Review, 2013
- Contrary to the AG’s claim, the majority of warnings issued related to individuals
who were not associated with bikie or other organised crime gangs.
- Targets certain groups – those who spend a lot of time in areas open to the public
(young people, Aboriginal, homeless), disadvantaged who are more likely to have
prior convictions – R v B, homeless man with pancreatic cancer – “not who the
legislation is designed to be targeting” - An Aboriginal person was the target in 40%
of cases in NSW.
McNamara, 2014
- HC is conservative and judges will only work with the tools the Constitution gives
them – when it comes to rights and liberties there are few. Neither statute nor the
Constitution formally recognises the right to freedom of association.
- The HC only ever adjudicates on narrow technical constitutional issues when
scrutinising legislation, rather than undertaking a holistic review of the merits of a
law.
- Legislators need to be discouraged from passing bad laws – tough when governments
are willing to overlook principles in favour of pragmatic (read knee-jerk) reform.
THE BURDEN OF PROOF AND THE GOLDEN THREAD IN PRACTICE (3.7, p.233)
- (Arbitrary) Distinction is drawn between the substantive and procedural criminal law.

Burden of Proof – MR
- The burden of proof under criminal law is the rule that the burden to prove D’s guilt
beyond reasonable doubt is allocated to the prosecution – D is presumed innocent until
proven guilty and has the right to silence in the face of criminal accusation.
- This “golden thread” established explicitly in Woolmington has been gradually worn
away by contemporary criminal law policy through statute which places the burden
upon D
- Departments from the “golden thread” can be seen in legislation which reverses the
burden onto the accused to prove their innocence on the balance of probabilities.
- This shifting of the burden is contrary to the normative principles of law making
propounded by scholars such as Ashworth and Loughnan whose theories suggest that
such legislation flies in the face of the cornerstone principles of the criminal law.
- The reversal of the BOP has arisen controversially as a feature in drugs legislation.
o In Momcilovic, a presumption under the Victorian Drugs, poisons and
Controlled Substances Act 1981 s 73(2) that the accused was in possession for
the purposes of supply because of the quantity of the drug involved and
therefore guilty of the more serious offence of trafficking allocated the BOP on
the accused
o This is analogous to DMTA s 29 for ‘possession taken to be for supply’, as
applied in the case of Carey in which the burden to prove intention to return the
drug fell on the accused.
o Demonstrates the tarnishing of the principled core of the criminal law as
observed by Ashworth and Horder, and in defiance of their ideal of a minimalist
approach to criminalisation.
- Pragmatic stances argue that the ideal theoretical position should be measured against
the practical reality, and in reality, there is a large premium placed on the prosecution
obtaining confessional evidence where offences are defined to require proof of MR.
o Lacey – the ideal cannot change nor oppose the societal forces which have
championed pragmatic criminalisation
o Media coverage and the ‘court of public opinion’ tend towards the presumption
of guilt against accused offenders, and politicians respond in turn through
populist law-making. These realities reflect...(Loughnan)

Senate Standing Committee on Constitutional and Legal Affairs, The Burden of Proof in
Criminal Proceedings (1982)
- Evidential burden: One party’s duty of producing sufficient evidence for a tribunal to
call upon the other party to answer. When the accused bears the evidential burden, it is
necessary that the evidence, if believed and un-contradicted, would induce a reasonable
doubt in the minds of a reasonable jury as to whether his version might not be true. If
there is sufficient evidence, the burden falls again on the prosecution of satisfying the
jury BRD the ordinary way in criminal prosecutions.
RACIST LANGUAGE (p. 541)
- Racist slurs and other forms of racial vilification in public have rarely been the basis
for offensive language charges under s 4A of the SOA 1988. “Whilst the legislation
could be used as an anti-racial-hate law, it has actually been overwhelmingly used by
police against Aborigines” (W Sadurski, 1999).
- Racial vilification has been characterised as a civil wrong in Australia.
- The civil regulation approach represents an appropriate balance between the right to
free speech and the right to be free from discrimination and the promotion of hatred.
- If the criminal law is meant to serve as an indicator of shared values and social mores,
and to label certain behaviour as unacceptable, it is curious that criminal sanctions can
be imposed on persons who use mildly offensive scatological language in public, but
only civil remedies are available to the victims of persons who seriously harass or vilify
others on the basis of race.
- Constitutional validity – implied right of freedom impeded (Coleman v Power [2004])
–never been absolute, boundaries need to be set with clarity though – legality.

Gelber and McNamara, Private litigation to address a public wrong (2014)

- Duff has argued that the conception of a public wrong should not be limited to whom
it harms, but instead should rest on whom it concerns
- Lee has argued that ‘a wrong properly concerns the public, in virtue of it violating the
shared values that normatively define the political community in which fellow citizens
are participants” - Hate speech meets this definition of violation
- From the point of view of both regulatory efficacy and fairness, we have identified three
positives from the experience of implementing hate speech legislation of this kind,
which taken together show that the regulatory scheme is of benefit to those it is intended
to protect from the harms of hate speech.
o The scheme provides a framework within which hate speech is recognised as a
public harm to the extent that it requires a public act.
o In recognition of the public nature of the harm, damages are limited both in
practice in the amounts awarded, and statutorily by providing for a cumulative
cap on damages that may be payable.
o Hate speech laws offer an important and valued mechanism for combatting the
public vilification of vulnerable minorities.
- The benefits are offset by procedural difficulties in pursuing actions against hate
speech, all of which rest on the scheme’s placing of the burden on individual victims.
o It is victims who are expected to enforce the normative standard struck by hate
speech legislation.

PUBLIC DRUNKENNESS
McNamara and Quilter, 2015
- Motivation for heavy criminalisation was moral judgment of excessive drinking and a
concern to maintain the amenity of public places and thoroughfares by “removing”
public drunks from the visible environment.
- Reforms abolished the offence of being found drunk in public– “the drunken person
will no longer suffer the stigma of being a criminal” – AG, 1979 – the removal of this
stigma was central to the motivation for decriminalisation.
- Restrictions on AFZs illustrate an important shift in the orientation of public
intoxication regulation towards pre-emptive risk management, where public amenity
and community safety concerns are paramount.
 - Recent developments have been more punitive and less welfare-based, associated with
policy positions that the “public drunk” is not vulnerable and in need of care, but
reckless and dangerous and in need of constraint and condemnation.

PUBLIC ORDER OFFENCES

 Public order offences concerned with regulating, controlling and sanctioning
public behaviour deemed as anti-social, risky or undesirable
 Justification behind public order offences  behaviours have a degree of
blameworthiness (e.g. morality or diminished public amenity) or risk
 Purposes
o Thoroughfare
o Meeting place
o Commercial interactions/aspects (advertising, fruit stalls) – major driver
of regulation
o Recreation/Leisure – appropriation of the space (skateboarding)
o Cultural
o In blurred public/private spaces (quasi-public spaces such as malls)
commercial imperatives are paramount.
 What powers do police have?
o Non-punitive move on powers – LEPRA – common goals (street
sweeping, maintaining/producing order)
o Did creation of MOPs result in a decline in the use of ss4/4A?
o No, the use of offensive conduct/language laws have not reduced
- Net widening – more tools at disposal, more people subjected to police
intervention – introduction of CINs – more people getting prosecuted for a
larger range of offences where they might have received warnings in the past

DRUGS
- Hyper-criminalisation, stigmatisation of drugs, depart from ‘general principles of
criminal liability’, “the war on drugs”.
- Drug law is not found in common law, but in legislation – govt.’s see criminal law and
process as a flexible way of responding to social and administrative problems rather
than setting out the minimum conditions which must be present before the state is
entitled to interfere with the individual. E.g. deemed drug provision, BOP reversal
- Criminalisation founded on the premise that there is a relationship between drug use
and diminished social productivity – Mills harm principle – paternalistic (youths esp.)
- Relationship between adolescent use of cannabis and later use of other illicit
drugs
- Adverse criminal justice consequences (employment, distrust, damaged
relationships etc.) prompted the National Cannabis Task Force in 1994 to
recommend that all Australian jurisdictions to repeal penalties for simple
personal use or possession of cannabis