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Law Handbook criminal law


  • pg 1
									       The Law Handbook
             Your Practical Guide to the Law in New South Wales
                               11th edition

Criminal Law


Andrew Haesler, Public Defender’s Office
Andrew Miles

The information contained in this document is as up-to-date and
as accurate as possible at time of publication in August 2009.
412 The Law Handbook

The words crime and criminal are easily applied              as crimes. They are separately recorded by the
to violence and theft. But crime also includes               Roads and Traffic Authority and, unlike serious
victimless crimes such as possession of marijuana,           offences, generally do not need to be disclosed in
parking violations and minor traffic offences.               job applications.
   In its widest sense, the term criminal law covers
any law declaring that certain conduct is an                    Drug offences are discussed in chapter 23, Drug
offence and lays down a penalty for it.                      offences. Sexual offences are discussed in chapter 39,
   In practice, however, parking violations and                                 Sexual offences.
minor traffic offences are not generally regarded

                            The difference between crimes and civil wrongs
It can be quite difficult to define the difference between   Who takes action?
crimes and civil wrongs.                                     Crimes are normally prosecuted by the state or Com-
Who is wronged?                                              monwealth, whereas it is generally up to the individual
One way of looking at it is to say that a crime is a wrong   to take court action against a person who has committed
against the community, which attracts community con-         a civil wrong.
demnation and punishment, while a civil wrong is a               It is possible for someone to commence criminal pro-
wrong against an individual, which requires compensa-        ceedings against a person who has committed a crime
tion or repayment to the person wronged.                     against them, such as assault, but it is rarely done.
    Thus, if a person takes money from someone’s bag         Actions that are both crimes and civil wrongs
without their permission, they are committing a criminal     Many acts, such as assault, can constitute a crime and a
offence for which they can be punished. If they are also     civil wrong at the same time. The police may be reluctant
ordered to pay compensation, this is separate from the       to commence criminal charges for minor assaults unless
punishment process.                                          there are witnesses or noticeable injuries, and they will
    On the other hand, a person who fails to pay back a      leave it up to the person assaulted to take action. In this
loan is not committing a crime. Although a civil case can    case the person may have to choose between starting
be taken against them to get the money back, the person      criminal proceedings and starting civil proceedings.
cannot be prosecuted for a criminal offence.                     If the police bring criminal proceedings, the person
    Of course, a crime is often (not always) also a wrong    can still bring a civil action.
against an individual.

Types of crime
Crimes may be tried by a magistrate, or by a judge           guilt. Because of the expense and delay involved in
and jury. Usually this depends on the seriousness            a trial by jury, most new offences created by
of the crime.                                                parliament are tried by a magistrate.
                                                             Time limits
Crimes tried by a magistrate                                 Proceedings for a summary offence must be
Crimes tried by a magistrate in a Local Court are            started within six months of the date of the alleged
called summary offences. They are less serious               offence (Criminal Procedure Act 1986 s.179(1)).
than those tried by a judge and jury (indictable
offences), and the penalties are less.
                                                                    Children and summary offences
    Examples of summary offences are driving
                                                             When a person under 18 is charged with a criminal
with the prescribed concentration of alcohol,                offence, the case is heard, at least initially, in the Chil-
smoking marijuana and offensive behaviour.                   dren’s Court, and special provisions apply (see
                                                             chapter 8, Children and young people).
Can the person have a jury?
A person charged with a summary offence cannot
insist on having a jury to decide their innocence or
                                                                                         16 Criminal law 413

Crimes tried by a judge and jury                           Time limits
Crimes tried by a judge and jury are generally             There is no time limit for the prosecution to lay a
more serious (indictable offences).                        charge for indictable offences that can be dealt
                                                           with summarily, even though they are heard in the
In the Supreme Court                                       Local Court.
Only extremely serious charges – generally murder
– are heard in the Supreme Court.                          Indictable offences dealt with summarily
                                                           A large number of relatively minor indictable mat-
In the District Court                                      ters listed in tables to the Criminal Procedure Act
Cases arising from other indictable offences such          (s.260) must be dealt with by a magistrate unless
as robbery, malicious wounding and dangerous               the prosecution (or the accused, in some cases)
driving causing death are heard in the District            chooses to have it dealt with in the District Court.
Court.                                                     These include most assaults and property offences,
                                                           generally where the amounts involved are under
Time limits                                                $500, and in some cases $15,000.
There is no time limit for a charge to be laid for an          The tables, which are found at the end of the
indictable offence.
                                                           Criminal Procedure Act, should be checked, as
The committal hearing                                      they are changed regularly.
Before people charged with indictable offences are
                                                           Choosing a District Court trial
tried there is usually a committal hearing (a pre-
                                                           An accused can choose between a Local Court
liminary hearing in a Local Court).
                                                           hearing and a District Court jury trial if property
    At the committal hearing, evidence is pre-
                                                           involved is more than $5000 or, in the case of an
sented to determine whether there is a reasonable
                                                           assault, the assault is serious.
prospect that a reasonable jury would convict the
person charged of an indictable offence (Criminal          Is a jury trial desirable?
Procedure Act s.65).                                       Because a magistrate in a Local Court may take a
                                                           view of the facts very different from that taken by
                                                           a jury of 12 citizens hearing the case in the District
The court hierarchy is discussed in chapter 1, About the
  legal system. Court proceedings are discussed in         Court, this is an important decision.
                  chapter 14, Court.                       What about penalties?
                                                           Once a matter goes to the District Court, that in
                                                           itself may result in the matter being viewed more
Crimes tried by either a magistrate                        seriously.
                                                               Maximum penalties available to judges are sig-
or a judge and jury                                        nificantly greater than those available to magis-
Many less serious types of indictable offences,            trates, who are restricted to a maximum of two
such as stealing and breaking and entering, may            years’ imprisonment for one offence and five years
(or must) be dealt with by a magistrate in the Local       for multiple offences (Criminal Procedure Act
Court under some circumstances. There are spe-             1986 (NSW) ss.267, 268; Crimes (Sentencing
cial procedures for dealing with these cases.              Procedure) Act 1999 (NSW) s.58).

Basic principles of criminal law
The four basic aspects of our criminal law are:            Innocent until proven guilty
• a person is innocent until proven guilty                 The basis of our system of criminal justice is that a
• guilt must be proved by the prosecution                  person charged with an offence is innocent until
   beyond reasonable doubt                                 proven guilty, even though media reports can
• silence cannot be used to infer guilt                    sometimes give the impression that a person
• a person who has been acquitted cannot be                charged with an offence should be considered
   tried again for the same offence.                       guilty of it.

            Contact points and internet resources for this chapter begin on page 424
414 The Law Handbook

Proof beyond reasonable doubt                               Is silence evidence of guilt?
                                                            Under the law, the fact that a person chooses to
What the prosecution must prove
                                                            remain silent cannot be used as evidence of their
In accordance with the principle that a person is           supposed guilt (Evidence Act 1995 s.89) (see
innocent until proven guilty is the rule that the
                                                            chapter 4, Arrest, interrogation and bail).
prosecution must prove guilt.
    It is not up to the person charged to establish
their innocence, although sometimes the accused             Double jeopardy
has to show that there is sufficient evidence to            This principle requires that no-one should be pun-
raise an issue as a defence.                                ished more than once for the same offence, and
    The prosecution must satisfy the magistrate,            that no-one should be twice placed in jeopardy of
judge or jury that the accused person is guilty             being convicted for the one offence. This means
beyond reasonable doubt. If there is any reasona-           generally that if a person has been tried and
ble doubt about their guilt, they should be acquit-         acquitted of an offence, they cannot be tried again
ted (that is, found to be not guilty of the offence).       on the same charge.
                                                                Despite this, if police have evidence that an
What the defence may have to prove                          acquittal for a very serious offence was achieved
In some cases the defence merely has to raise a             by fraud or perjury, and there is fresh and compel-
defence, in others the burden of proving a partic-          ling evidence of guilt, they can apply to the
ular defence, such as insanity, may be on the               Supreme Court to retry the case (Crimes (Appeal
accused person. However, the defence only has to            and Review) Act ss.98–106).
be proved to the lesser standard of on the balance
of probabilities.                                                   Where to find the criminal law
                                                            Most crimes in NSW are covered by statutes passed by
The right to remain silent                                  parliament. The main Act is the Crimes Act 1900 (NSW),
There is no general right in the Australian Consti-         but specific areas are covered by other Acts such as the
                                                            Drug Misuse and Trafficking Act 1985 and the Summary
tution, or anywhere else in Australia, that says a          Offences Act 1988. Crimes affecting federal powers or
person is entitled to remain silent when questioned         property are generally regulated by Commonwealth Acts
by police.                                                  such as the Crimes Act 1914 and the Criminal Code Act
    However, a person is not required to answer             1995.
questions put by a police officer, except in certain            Some crimes only exist at common law as a result of
limited situations (see chapter 4, Arrest, interroga-       the rulings of courts over the years (for example, attempts
                                                            to commit some crimes and conspiracies).
tion and bail).                                                 References to the Crimes Act in the following sections
                                                            are to the NSW Act, unless otherwise specified.

Common crimes
Assault                                                     What about threats?
                                                            With the simplest case of assault, no physical
What is assault?                                            touching need be involved. A threat of immediate
Assault has been defined as ‘any act committed              physical violence is enough, so long as it is a real
intentionally or possibly recklessly, which causes          rather than a fanciful or impossible threat.
another person to apprehend immediate and
unlawful violence’.                                         What if the person consented?
                                                            Assaults, except where bodily harm is caused or
                                                            excessive force is used (R v Raabe (1985) 14
                       Battery                              A Crim R 381), require evidence that the victim
The actual striking of the victim is called a battery –
hence the old phrase ‘assault and battery’. The term bat-
                                                            did not consent.
tery has fallen into disuse and now, generally, the word
assault is used to cover both situations.
                                                                                             16 Criminal law 415

Types of assault                                            Stealing
The Crimes Act distinguishes between different
                                                            What is stealing?
types of assault, and each offence carries its own
penalty; for example:                                       If a person takes and carries away another person’s
• common assault (maximum penalty two                       personal property with the intention of perma-
                                                            nently depriving the owner of the property with-
   years’ imprisonment (Crimes Act s.61))
                                                            out their consent, that person can be guilty of
• assault occasioning actual bodily harm
                                                            larceny – that is, stealing (Crimes Act s.117).
   (maximum penalty five years (s.59))
• malicious wounding and malicious infliction               If a person finds something and keeps it
   of grievous bodily harm (maximum penalty                 Someone who finds property and keeps it for
   seven years (s.35)).                                     themselves can be guilty of stealing.
Assaults on police                                          Taking money from a closed or empty account
Assaults on police officers carry higher penalties.         A person who took money from an automatic
                                                            teller machine when they knew the account was
Sexual assault                                              closed or emptied could be guilty of stealing
Sections 61H–61O of the Crimes Act deal with
                                                            (Kennison v Dare (1985) 160 CLR 129).
sexual assaults.
                                                            ‘Borrowing’ money without consent
The law relating to sexual assault is discussed in detail
                                                            A person who took money intending to use it, for
            in chapter 39, Sexual offences.                 example, to bet on the races, and later return it,
                                                            could also be guilty of stealing (s.118).
Assaults causing death                                      Other stealing offences
The most serious form of assault is assault that            The Crimes Act also prohibits:
causes death. This is regarded as murder or man-            • receiving stolen property
slaughter where all the elements of those offences          • various frauds
are satisfied.                                              • obtaining money or goods by false pretences.

            The law about weapons                                                Shoplifting
Guns                                                        Summary stealing offences include shoplifting, perhaps
In 1996 there was a concerted effort by parliaments         the most common form of stealing or larceny.
across the country to reassess laws relating to firearms.       Because shoplifting is such a prevalent offence,
The Firearms Act 1996 was a result of this national         innocent shoppers can be wrongly accused. The simple
approach. Firearm possession is confirmed by the Act as     explanation ‘I forgot to pay’ is very often met with
being a privilege, not a right.                             disbelief. Medical evidence, character evidence and the
    The key provisions of the Act are:                      like can be called to show that there was no intention to
• the prohibition in most circumstances of the              steal; that is, to take property without paying for it.
    possession and use of automatic and self-loading        Can the person be searched or detained?
    rifles and shotguns                                     A person charged with a shoplifting offence can be
• a national licensing and registration scheme              searched by a police officer (s.353A).
• strict requirements for the licensing, sale and              A person suspected of theft in a store can be detained
    acquisition of firearms.                                by store staff until the police arrive, provided that there
The Act includes provision for compensation for now         are reasonable grounds for the suspicion.
illegal firearms surrendered under an amnesty.
Other weapons                                               Most shoplifting offences lead to a fine, but for repeat
The Weapons Prohibition Act 1998 regulates the posses-      offences jail is likely.
sion and licensing of such weapons as extendable
batons, machine guns, explosives, crossbows, flick          Counselling services
knives and star knives, missile launchers and flame         Some counselling is available for people who have been
throwers. See also Offences involving knives on             charged and are pleading guilty to shoplifting offences.
page 418.                                                   Court parole officers may do the counselling, or refer
                                                            people who plead guilty to an approved program.

            Contact points and internet resources for this chapter begin on page 424
416 The Law Handbook

Summary or indictable?                                         a crime such as assault or property damage is also
Stealing offences can be indictable or summary.                an offence.
    Summary offences are dealt with in the Local
Court by a magistrate. The maximum penalty for                 Proving the intention to steal
a stealing offence dealt with by a magistrate is two           A theft does not have to be completed for an
years’ jail and/or a fine of $11,000.                          offence to be committed (if theft is intended).
    Offences where the property is valued at over
$5000 can be dealt with by a judge and jury with                                 For example …
the consent of the prosecution or the accused.                 A person who is disturbed inside a house before
                                                               grabbing the loot and who runs into the arms of a waiting
                                                               off-duty police officer has committed the offence of
                     Car stealing                              breaking and entering with intent to commit a serious
Car stealing is a form of larceny (see Stealing on             indictable offence (s.113).
page 415). Anyone who steals a car is liable to a                  The prosecution must prove from the circumstances
maximum penalty of:                                            (and/or any admission by the accused) that there was an
• ten years’ jail if the case is dealt with by a judge         intention to commit a particular crime. It might, for
• two years’ jail if it is dealt with by a magistrate in the   example, prove that the accused was dressed in dark
   Local Court (s.154AA).                                      clothes, broke a lock, entered the house and then fled.
Driving or being a passenger in a stolen car                   There might be evidence that drawers were disturbed.
Section 154A(1) makes it a criminal offence to be a                This evidence together with any admissions made by
person who, knowing that a car has been taken without          the accused would probably be enough to prove that the
the owner’s consent, drives or allows themselves to be a       accused intended to steal while in the house.
passenger in the car.
   The maximum penalty before a judge is five years’ jail.     Offences involving intent
                                                               Section 114 specifies a number of offences involv-
                                                               ing intent, which means that a burglar can be
Burglary                                                       apprehended before actually breaking, entering or
The Crimes Act seeks to cover all aspects of the               stealing. This section covers anyone who:
range of activities involved in burglary.                      • is armed with a weapon or instrument with
Entering                                                           intent to commit an indictable offence
Section 109 specifies that ‘entering with intent to            • has with them implements for housebreaking
commit an indictable offence’ (such as stealing),                  or safebreaking, or implements that could be
and entering and actually committing a serious                     used to enter and/or drive a vehicle
crime, are both offences, carrying a maximum                   • has their face blackened or disguised (or who
penalty of 14 years’ imprisonment.                                 has the materials to disguise themselves) with
                                                                   the intention of committing an offence.
Aggravated entry                                               The maximum penalty is seven years’ jail.
If the offence is aggravated by violence or the use
of a weapon, heavier penalties, up to a maximum
of 25 years, apply (s.105A).                                            What are housebreaking and
                                                                         safebreaking implements?
Breaking out                                                   Housebreaking and safebreaking implements need not
Section 109 also covers situations where entry was             be marked ‘Acme Burglary Tools’. Ordinary household
                                                               items like screwdrivers, pliers, knives and chisels can be
not by force (such as through an open door), but               used as evidence. The prosecution must prove that the
exit was obtained by some breaking.                            items were in the possession of the accused for an illegal
                                                               rather than an innocent purpose.
                       Breaking                                    If the police arrest a disguised man in someone’s
                                                               backyard at 3 am with a chisel and screwdriver in hand,
In the context of burglary, breaking need not involve
                                                               he will have some explaining to do. If he was, in fact, on
smashing anything; it can be as little as opening a screen
                                                               his way home from a fancy dress party and he got lost, he
or internal door or an unlocked window.
                                                               might have a lawful excuse.
                                                                   The whole of the circumstances will be considered,
Breaking in                                                    and each case will depend on its own particular facts.
Breaking into a dwelling, school, shop, warehouse,
garage, factory or some such place and committing
                                                                                          16 Criminal law 417

Penalties                                               • the conduct occurred near or within view of a
The penalties referred to above are maximum pen-          public place or school, and
alties. All other sentencing options such as fines,     • the conduct was offensive.
bonds, community service orders, periodic deten-
tion and home detention remain open (see                           Offences in private places
chapter 14, Court).                                     Some conduct that is an offence in a public place will be
The attitude of the courts                              an offence even if it occurs in a private place; for
It is quite clear, however, from decisions by the       example, certain prostitution offences (see Sex work on
                                                        page 421), and the offence of public disorder.
Court of Criminal Appeal (for example, R v Hayes
(1984) 1 NSWLR 740; Attorney General’s Appli-
                                                        The defence of reasonable excuse
cation No 1: Ponfield and others (1999) 45              Even if these elements are proved beyond reason-
NSWLR 327) that the courts take a hard line             able doubt, the accused can still be acquitted if
when sentencing offenders of this sort. Jail is fre-    they can show, on the balance of probabilities, that
quently seen as the appropriate punishment.             they had a reasonable excuse for the conduct.
Those with records of such offences, or commit-             What constitutes a reasonable excuse is not
ting multiple offences, can expect long jail terms.     entirely clear, but it may extend to a mistake of fact
Penalties for less serious offences                     or law based on reasonable grounds (Yeldham J in
Offences where the property involved is less than       Featherstone v Frazer (1983) ACLD 891).
$15,000 may be dealt with by a magistrate in the
Local Court, where the maximum penalty is lim-          The penalty for offensive conduct or language is a
ited to two years’ jail and/or $11,000.                 fine of up to six penalty units or three months’
Offences in public places
Thousands of people are charged each year with                               Penalty units
so-called public order offences under the Sum-          If the amounts of fines were specified in Acts, they would
mary Offences Act. Most are fined or given              have to be amended every time fines were increased. To
bonds, but some are imprisoned.                         avoid this, a system is used that specifies penalty units for
    Public order legislation is extensively used        an offence.
                                                             The value of one penalty unit is found in the Crimes
against young people and demonstrators. Many of
                                                        (Sentencing Procedure) Act 1999 (s.17), and is currently
the offences involved are fairly trivial, victimless    $110. Thus the value of six penalty units is currently
crimes, but the impact on the lives of the people       $660.
convicted may not be trivial. These matters are
noted in police records and count as convictions,                           What it means
which are often required to be disclosed on             What is a public place?
employment applications.                                Public place means a place (land, water or building) to
    As summary offences, these offences are dealt       which the public (even a limited section) has access (s.3).
with by a magistrate in the Local Court.                It does not matter whether entry is free or not, or whether
    Questions of law are rarely raised in relation to   the place is usually open to the public or not.
street offences. Most cases depend on the facts and         Schools are not included in this definition. They are
                                                        defined separately.
                                                        What is offensive?
Offensive conduct or language                           The NSW Court of Appeal, using the Oxford Dictionary,
Under s.4(1) of the Act, a person must not conduct      noted in Smith’s case (1974) 2 NSWLR 586 that offensive
                                                        means displeasing, annoying or insulting, though none
themselves in an offensive manner near or within
                                                        of those words is a precise alternative to ‘offensive’,
view or hearing of a public place or school, or use     which has its own meaning drawn from the context. The
offensive language in or near or within hearing of      word ‘fucking’ has been held by some Supreme Court
such a place.                                           judges to be of itself offensive, although some magis-
                                                        trates have taken a more realistic view.
What must be proved?
The prosecution must prove, beyond reasonable           What is conduct?
                                                        Conduct has not been specifically defined, but is usually
doubt (the standard of proof required in all crim-      taken to mean behaviour.
inal cases), that:

           Contact points and internet resources for this chapter begin on page 424
418 The Law Handbook

Other summary offences                                      • the number of people expected to attend
Other summary offences include obscene expo-                • the name and address of a person willing to
sure and being in possession of a knife (see                  take responsibility for organising the
Offences involving knives below) and annoying or              assembly (s.23).
harassing behaviour.                                        What the Police Commissioner may do
    Police can move people on and give them                 Where the commissioner is notified (at least seven
directions if they see them in public engaging in           days in advance), they may either:
such behaviour (s.25F).                                     • authorise the assembly, or
    Some summary offences (such as possession of            • apply to the District Court or Supreme Court
an offensive implement) carry penalties of up to               for an order prohibiting it (s.25).
50 penalty units or six months’ imprisonment.
Defacing property using a spray can could see the           Before the commissioner applies to the court
culprit in jail for six months, or doing community          Before applying to the court, the commissioner
service removing graffiti.                                  must invite the organisers to:
                                                            • confer with a specified police representative,
Lesser summary offences                                        at a specified time and place, or
Lesser offences under the Act include:                      • make written representations within a fixed
• obstructing traffic                                          time.
• damaging fountains, shrines, monuments and
    statues                                                 Application for court orders by the organiser
• defacing walls.                                           If notification prohibiting the assembly is received
                                                            less than seven days before it is to be held, the
The maximum penalty for these offences is four
penalty units.                                              organiser can apply to the District Court or
    Demonstrations are covered by the sections of           Supreme Court for an order to authorise it (s.26).
                                                                The court’s decision is final and not subject to
the Act dealing with public assemblies.
           Offences involving knives                        Participation
It is an offence to be in possession of a knife in public
                                                            Taking part in an authorised public assembly is
without reasonable excuse.                                  not an offence, and the offence of obstructing
    The Summary Offences Act gives police the power to      traffic does not apply (s.24).
search anyone they reasonably suspect of having a knife
in a public place or school (s.11C).
    Maximum penalties for knife-related offences are:
                                                                       Unauthorised assemblies
• five penalty units for the first offence, or              An unauthorised public assembly may take place, but
• in the case of a person dealt with once previously for    participants do not have any immunity from prosecution
    a knife-related offence, ten penalty units or           for obstructing traffic or unlawful assembly (Crimes Act
    imprisonment for 12 months, or both, or                 s.545C).
• in the case of a person dealt with more than once
    previously for a knife-related offence, 20 penalty      Violent disorder
    units or imprisonment for two years, or both.           Section 28 deals with violent disorder. This offence
Being present in a high crime area can be sufficient        occurs when:
grounds for a search (s.28A).
                                                            • there are three or more people ‘present
                                                                together’, and
Public assemblies                                           • any of them intentionally uses or threatens
The Summary Offences Act requires that the                      violence, or carries on so that a hypothetical
Police Commissioner be notified of an intention to              ‘person of reasonable firmness’ would be
hold a public assembly. There is a form for the pur-            afraid.
pose in Sch.1 of the Summary Offences (Public               All members of the group will be guilty of the
Assemblies) Regulations 1988.                               offence, which carries a maximum penalty of ten
Information required                                        penalty units or six months’ imprisonment.
The form asks for details such as:                              This offence can be committed in private as
• the date, time, place and purpose of the                  well as in public.
   assembly (or route for a procession)
                                                                                                  16 Criminal law 419

                  What is violence?                                   Powers of the owner, occupier or
Violence is defined to include threats to property as well              person apparently in charge
as people, and can include acts which are intended to be        Section 6 of the Inclosed Lands Protection Act gives
harmful but in fact do not result in any harm.                  powers of arrest to the owner, occupier or person in
                                                                charge, and it is an offence for the trespasser to give them
                                                                a false name or address.
Criminal trespass
Entering or remaining on ‘inclosed lands’                       Time limits under the Inclosed Lands
It is an offence, without lawful excuse, to:                    Protection Act
• enter inclosed lands without the consent of                   Unlike most summary offences, offences alleged to
     the owner, occupier or person apparently in                have occurred under the Inclosed Lands Protec-
     charge                                                     tion Act must be prosecuted within two months
• remain on inclosed lands after being                          (s.9).
     requested to leave by that person (Inclosed                Prosecution under both Acts
     Lands Protection Act 1901 s.4).                            Section 4 of the Summary Offences Act applies to
                                                                people on private lands (that is, land that fits the
            What are inclosed lands?                            definition of inclosed lands) where they are
Inclosed lands means any land, either public or private,        already trespassing. For example, a squatter or
surrounded by a fence or wall, or by a fence or wall and        demonstrator involved in a sit-in who uses offen-
a canal or some natural feature such as a river or cliff that
provides recognisable boundaries. It includes any part of       sive language may well be convicted of both tres-
a building or structure and any land occupied or used in        pass and offensive behaviour.
connection with a building or structure (s.3).                      The likelihood of conviction for offensive lan-
Prescribed premises                                             guage is, of course, subject to the court’s attitudes
Some premises including schools, childcare centres,             to the words used.
hospitals and nursing homes are specially prescribed,
and unlawful entry to them carries a double penalty.
                                                                       If a person is charged under the
                                                                             Summary Offences Act
The defence of lawful excuse                                    The right to be given details of charges
The accused is required to establish that they had a            A person charged with an offence under the Summary
lawful excuse for being on the land.                            Offences Act may ask police for further details of the
    It is not necessary to show a legal right to be             charges. They are entitled to know where, when and
there, and an accused can rely on a mistaken and                how the police claim the offence occurred.
genuine belief that, if true, would justify their                   If someone requests these details and the police do
being there; for example, they were invited to visit            not supply them, the court must either adjourn the
                                                                charge until they are supplied, or dismiss it (s.13(1)).
a friend and mistakenly entered the wrong house                     A request for particulars should be made in writing at
(Darcy v Preterm Foundation (1983) 2 NSWLR                      least 14 days before the date of the hearing.
49; Minkley v Munro (unreported, Supreme                            If the accused pleads not guilty the police are obliged
Court of NSW, August 1986, per Grove J)).                       to serve them with a copy of all witnesses’ statements on
                                                                which the police rely, and a copy of any exhibits or
Penalty                                                         details of where they can be inspected (Criminal Proce-
The maximum penalty is five penalty units.                      dure Act ss.183, 184).
                                                                Liability to pay compensation if convicted
Failing to leave and behaving offensively
                                                                Anyone convicted of an offence under the Summary
A person is guilty of a further offence if they:                Offences Act is liable to pay up to 20 penalty units for the
• commit an offence by failing to leave when                    repair or restoration of anything damaged (s.33).
    asked by an appropriate person (the owner,
    occupier or person apparently in charge), and
• behave in an offensive manner.                                Drunkenness
Penalty                                                         An intoxicated person may be guilty of offensive
The maximum penalty is ten penalty units, or                    conduct, but public drunkenness is not an offence.
20 penalty units for prescribed premises.

             Contact points and internet resources for this chapter begin on page 424
420 The Law Handbook

Power to detain an intoxicated person
There are significant powers of detention under                  Is the intoxicated person a prisoner?
                                                             A person detained under this Act is not a prisoner. Only
the Law Enforcement (Powers and Responsibili-                someone arrested for a criminal offence, whether intox-
ties) Act 2002. A person who is intoxicated in a             icated or not, is a prisoner.
public place may be detained by a police officer if
they are found to be:
• behaving in a disorderly manner                            The Inebriates Act
• behaving in a manner likely to cause injury to             The Inebriates Act 1912 deals with persons who
                                                             habitually uses intoxicating or narcotic drugs to
    themselves or someone else, or damage to
    property                                                 excess. People falling within this definition may be
• in need of physical protection because of their            subject to special court orders, including detention
                                                             in hospitals or other institutions.
    intoxication (s.206(1)).
The power extends to juveniles.
    The person must be released if they cease to be              Prohibition of alcohol consumption
intoxicated (s.207(2)(f)).                                   Some local councils have ordinances prohibiting the
                                                             consumption of alcohol in certain areas, with fines for
        Who is an intoxicated person?
A person is considered to be intoxicated if they are seri-
ously affected by alcohol or another drug. This leaves a     Summary offences in the Crimes Act
wide area for police discretion.
                                                             A number of summary offences can be found in
                                                             the Crimes Act, in the part which deals with
Police protection from liability
Police and other people authorised to detain                 offences to be tried summarily.
intoxicated persons are protected from liability for         Resisting police
legal action (such as an action for false imprison-          Resisting or hindering police in the execution of
ment), provided they act in good faith (s.210).              their duty or inciting someone else to resist, hinder
Release into the care of a responsible person                or assault police is a summary offence under the
The person must be released if:                              Crimes Act (s.546C). The maximum penalty is ten
• a responsible person is willing to undertake               penalty units and/or 12 months’ imprisonment.
    their immediate care, and
• there is no sufficient reason for not releasing                Police powers in relation to vessels
    them into that person’s care.                                       and vehicle searches
A person who is detained has the right to be                 There are a number of other sections relating to the
                                                             powers of police officers to board vessels, stop and
informed about this, and given a reasonable                  detain vessels, and stop and search people and vehicles
opportunity to contact a friend or relative who can          (Crimes Act ss.357C, 357D, 357E; Law Enforcement (Pow-
look after them.                                             ers and Responsibilities) Act ss.36, 42).
Police search powers
Police and authorised people have the power to               Other offences
search intoxicated people in detention (s.208), but          Other summary offences under the Act include:
anything taken under this power must be returned             • being habitually with someone known to
when the person is released.                                    have been convicted of an indictable offence
Offences committed while intoxicated                         • being found in or near a public place with
Where an intoxicated person commits a criminal                  intent to commit an indictable offence,
offence the provisions of the Law Enforcement                   having already been convicted of an
(Powers and Responsibilities) Act do not apply                  indictable offence (s.546B)
(s.206(2)), and the person is dealt with in the same         • obtaining money by false representation
way as any other arrested person.                               (s.527A)
                                                             • making a false invoice (s.527B)
                                                             • being in possession of goods suspected to be
                                                                stolen (s.527C)
                                                                                            16 Criminal law 421

• ‘peeping or prying’ on another person                     When a convicted person can be discharged
   without reasonable cause (s.547C).                       without penalty
Maximum penalties for these offences range from             First offenders or those convicted of relatively triv-
two to four penalty units or three to six months’           ial offences who are found guilty may seek leni-
imprisonment.                                               ence from the court under s.10 of the Crimes
                                                            (Sentencing Procedure) Act (see chapter 14,
Penalties                                                   Court), which allows the magistrate a discretion to
                                                            discharge them without penalty and without a
Sentencing in the Local Court                               conviction being recorded against their name.
Although magistrates have the power to impose a
sentence of imprisonment for most summary
offences (see chapter 14, Court), a prison sentence                     Complaints about police
                                                            If you are mistreated by a police officer or denied your
should not be imposed unless the magistrate has             legal rights when being questioned or arrested, you
considered all possible alternatives and decided            should make a complaint to the patrol commander at the
that none of them is appropriate (Crimes (Sentenc-          police station, the Police Commissioner or the relevant
ing Procedure) Act 1999 s.5).                               Ombudsman. Complaints about NSW police officers are
    The most common penalty is a fine or good               referred to the NSW Ombudsman and complaints about
behaviour bond. In more serious matters, where a            Australian Federal Police to the Commonwealth
                                                            Ombudsman (see chapter 10, Complaints). If the matter
prison sentence is available, a magistrate can              is serious, legal action may also be appropriate. You
require a person to serve up to 500 hours of com-           should contact your nearest community legal centre for
munity service, or to serve a jail term by way of           advice about this (see Contact points for chapter 5,
periodic detention (for example, by spending                Assistance with legal problems for a list of community
weekends in jail), or by way of home detention.             legal centres).
                                                                Remember: complaining about the police may
                                                            require persistence, and may not seem worth the effort at
                                                            times. However, it is important that people who have
                                                            been mistreated or denied their rights by police take the
                                                            opportunity to use the complaint mechanisms available.

Sex work
It is legal to work as a sex worker in NSW if you           Offences
are over 18 (Crimes Act s.91C).
     It is not an offence to operate or live off the        Inducement to an act of prostitution
earnings of a brothel in NSW (Restricted Premises           The NSW Summary Offences Act (s.15A) and the
                                                            federal Criminal Code Act 1995 make it an
Act 1943), and brothels are regulated by local
                                                            offence to induce someone to commit an act of
councils (Environmental Planning and Assess-
                                                            prostitution. A person can be charged with an
ment Act 1979).
                                                            offence if they put pressure on someone or offer
                                                            money or any other inducement to influence them
            What is a sexual service?                       to commit an act of prostitution with someone
A sexual service is sexual intercourse – the introduction   else.
into the vagina, anus or mouth of a person any part of
another person’s body or an object controlled by them –     Keeping a person in sexual servitude
or masturbation for payment (Summary Offences Act s.3).
The courts have extended the definition to include any
                                                            Under the NSW Crimes Act (s.80D) and the fed-
act of offering the body that involves physical contact     eral Criminal Code Act it is an offence to keep
with another person for sexual gratification in exchange    someone in sexual servitude, where the person is
for money, regardless of whether or not sexual inter-       not free to:
course is provided.                                         • stop sex work due to force or threat to
                                                                themselves or others, or
                                                            • leave premises where sexual services are

            Contact points and internet resources for this chapter begin on page 424
422 The Law Handbook

Recruiting a sex worker by deception                             provisions regulating their location, design and
It is an offence to recruit a sex worker by the                  operation.
deception that sexual services will not be expected                  If a brothel operates without, or contrary to,
of them.                                                         their development consent or with adverse impact
                                                                 on the community, the council may fine the oper-
Advertising for sex workers                                      ators (Environmental Planning and Assessment
Under the Summary Offences Act (s.18) it is an                   Act 1979 (NSW)). Brothel closure orders against
offence to advertise a sex industry business or to               the operator or staff of unlawful brothels and
advertise for sex workers.                                       related sex service premises can be made effective
Living off the earnings of a sex worker                          within five working days (Environmental Plan-
Living off the earnings of a sex worker is not a                 ning and Assessment Act s.121ZR(1)). If a brothel
crime unless the worker is a street sex worker                   closure order is not complied with, the court can
(Summary Offences Act s.15).                                     make a Utilities Order directing a provider of
                                                                 water, electricity or gas to cease providing those
                                                                 services (Environmental Planning and Assessment
              Children and sex work
                                                                 Act s.121ZS). Utilities orders cannot be made for
It is illegal to involve children (people under 18) in pros-
titution (Crimes Act), and children can be seen to be at         premises used for residential purposes.
risk if they are on premises that are used for prostitution          Councils can seek an order to stop the owner
(Children and Young Persons (Care and Protection) Act            or occupier of premises from using or allowing the
1998).                                                           use of premises as a brothel (Restricted Premises
     Premises used for live adult entertainment, where           Act s.17(2A)) due to a complaint(s) against
there is no legal prohibition on minors entering the
premises, may be deemed by the minister to be sex clubs
                                                                 premises with ‘two or more prostitutes’ because of
in which minors are prohibited (Summary Offences Act             the adverse impacts caused by the location and
s.21).                                                           operation of the premises on people who live or
                                                                 work, or who use, or whose children use, facilities
                                                                 in the vicinity of the brothel.
Sex industry workplaces                                              It is an offence for businesses to provide sexual
There are a number of workplaces in the sex                      services in premises that pretend to be for
industry:                                                        massage, sauna/steam baths, photo/health studios
• brothels, including home occupation sex                        or services of a like nature (Summary Offences Act
   service premises                                              s.18). Workers, clients (s.16) and management
• street-based sex work                                          (s.17) all commit offences in such circumstances.
• licensed premises.                                             Private workers
                                                                 Home occupation sex service premises, where a
                 What is a brothel?                              person provides sexual services from their resi-
The Restricted Premises Act 1943 s.2 defines brothels as         dence, are defined as brothels (Restricted Premises
places used habitually for the purposes of prostitution          Act). Council planning policies may restrict or
and premises that have been and are likely to be used for        prohibit home occupation sex service premises
prostitution, or that have been advertised or represented
as being used for prostitution and that are likely to be
                                                                 from operating in specific zones or building types,
used for the purposes of prostitution. Premises may con-         constrain the maximum number of sex workers in
stitute a brothel even though used by only one sex               a complying use, or require the operator to seek
worker for the purposes of prostitution.                         consent as a brothel.
    The Environmental Planning and Assessment Act 1979               Home occupation sex service premises operat-
s.4(1) brothel definition differs in that it excludes premises   ing in strata title apartment buildings may require
used by only one sex worker from this definition.
                                                                 the consent of the owners’ corporation and those
                                                                 in public or community housing may require the
Brothels                                                         consent of the letting agency. Premises with a res-
In NSW, brothels and the sexual services they offer              idential tenancy agreement must comply with the
are legal provided the brothel is run according to               requirements of the agreement.
the law. Brothels are regulated by councils as legal
land uses requiring development consent, with
                                                                                        16 Criminal law 423

Street-based sex workers                                • allow striptease dancers to perform acts in an
Soliciting in the public domain is legal in NSW. It         indecent manner (including full nudity,
is, however, an offence for street workers to solicit       simulated sex and audience participation) on
near or within view from a dwelling, school,                the premises.
church, hospital or public place, or in a school,       It is illegal for sex workers to work in licensed
church or hospital.                                     premises (Liquor Act 2007).
     A worker who harasses someone while solicit-
ing near or within view from a dwelling, school,        Health and safety
church, hospital or public place is committing an       The operators of premises providing sexual serv-
offence (s.19).                                         ices must ensure the health and safety of employ-
     A client (kerb crawler) on or near a road which    ees, clients and visitors to the workplace (Occup-
is near or within view from a dwelling, school,         ational Health and Safety Act 2000; Workplace
church or hospital who solicits someone for pros-       Injury Management and Workers Compensation
titution is committing an offence (s.19a).              Act 1998; Workers Compensation Act 1987).
     Anyone involved in an act of prostitution in or        Anyone with a transmissible infection must
within view from a church, hospital, school or          obtain the other person’s informed consent before
public place or in a car or within view from a          having sex with them in any circumstances (Public
dwelling is committing an offence (s.20).               Health Act 1991).
     Anyone involved in a sexual act in a public
place is committing an offence (Crimes Act s.61n).
                                                        For further information and assistance in relation to sex
Liquor licensed premises                                 work and the law, contact the Sex Workers Outreach
It is an offence for a liquor licensee to:              Project (SWOP) or your local community legal centre.
• allow a sex worker to solicit or provide a
     sexual service on licensed premises

           Contact points and internet resources for this chapter begin on page 424
424 The Law Handbook

Contact points
If you are deaf or have a hearing or speech impairment and/or you use a tty or a computer with a modem,
you can ring any number through the National Relay Service by phoning 133 677 (local and chargeable
calls) or 1800 555 677 (free calls). For more information, see www.aceinfo.net.au.

A list of courts is in the Contact points for chapter 14, Court.

Australian Federal Police                NSW Police                                Crimestoppers
www.afp.gov.au                           (including Witness Assistance Program)    www.crimestoppers.com.au
ph: 9286 4000                            www.police.nsw.gov.au                     ph: 1800 333 000
                                         customer assistance unit:
Immigration and Citizenship,              1800 622 571
Department of                            general enquiries: 131 444
ph: 131 881

Support, legal aid and advice
A list of community legal centres and    LawAccess NSW                             A list of Sydney metropolitan,
Legal Aid Commission offices is in       www.lawaccess.nsw.gov.au                  regional and specialist legal aid
Contact points for chapter 5, Assist-    ph: 1300 888 529                          offices is in Contact points for
ance with legal problems.                                                          chapter 5, Assistance with legal
                                         Law Society of NSW                        problems.
Bar Association, NSW                     www.lawsociety.com.au
www.nswbar.asn.au                        ph: 9926 0333                             SWOP (Sex Workers Outreach
ph: 9232 4055                                                                      Project)
                                         Legal Aid Commission of NSW               www.swop.org.au
Council for Civil Liberties,             www.legalaid.nsw.gov.au                   ph: 1800 622 902 or 9319 4866
NSW                                      ph: 9219 5000
www.nswccl.org.au                        legal aid youth hotline:
ph: 9286 3767                              1800 101 810

Government bodies
Director of Public                       Independent Commission                    Ombudsman, NSW
Prosecutions, Office of                  Against Corruption (ICAC)                 www.ombo.nsw.gov.au
www.odpp.nsw.gov.au                      www.icac.nsw.gov.au                       ph: 1800 451 524 or 9286 1000
ph: 9285 8606                            ph: 1800 463 909 or 8281 5999
                                                                                   Public Defender’s Office
Domestic Violence Line                   Juvenile Justice, Department of           www.lawlink.nsw.gov.au
(Dept of Community Services)             www.djj.nsw.gov.au                        ph: 9268 3111
ph: 1800 656 463                         ph: 9219 9400
                                                                                   Witness Assistance Service
A complete list of contacts relevant     For a list of Juvenile Justice Centres,   (Office of the Director of Public
to domestic violence is in the Contact   see the Contact points for chapter 8,     Prosecutions)
points for chapter 21, Domestic vio-     Children and young people.                www.odpp.nsw.gov.au/was/was.html
lence.                                                                             ph: 1800 814 534 or 9285 2502
                                         Ombudsman, Commonwealth
                                         ph: 1300 362 072
                                                                                              16 Criminal law 425

Victims of crime
A list of contacts relevant to victims of crime is in the Contact points for chapter 44, Victims’ compensation.

•   Australasian Legal Information Institute (AustLII) – www.austlii.edu.au
•   Commonwealth Ombudsman’s Office – www.comb.gov.au
•   Department for Women – www.women.nsw.gov.au
•   LawAccess NSW – www.lawaccess.nsw.gov.au
•   Law and Justice Foundation of New South Wales – www.lawfoundation.net.au
•   Justice Action – www.justiceaction.org.au
•   National Women’s Justice Coalition – www.nwjc.org.au

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