Crowd Control And Public Order Offences

Question 1

What is the primary role of police during crowd situations?

Answer 1

• maintain public order;
• Duty to keep peace;
• Take all reasonable steps to prevent and end breaches of the peace; and
• Protect persons/property.

Question 2

• According to DPP v GRIBBLE what power, authority and duty do police have?

Hint: in this matter police found a person in the middle of the road. He assaulted the police but was found not guilty because the court said that police had no right to restrain the man.

This was overturned as police were acting in their duty.

Answer 2

All police have the power, authority and duty to prevent crime, protect persons from injury or death.

Question 3

• What is the mission and function of the NSW Police force as per S6 Police Act 1990?

Answer 3

(1) The mission of the NSW Police Force is to work with the community to reduce violence, crime and fear.

(2) The NSW Police Force has the following functions—
(a) to provide police services for New South Wales,
(b) to exercise any other function conferred on it by or under this or any other Act,
(c) to do anything necessary for, or incidental to, the exercise of its functions.

(3) In this section—
police services includes—
(a) services by way of prevention and detection of crime, and
(b) the protection of persons from injury or death, and property from damage, whether arising from criminal acts or in any other way, and
(c) the provision of essential services in emergencies, and
(d) any other service prescribed by the regulations.

(4) A reference in this section to the functions of the NSW Police Force includes a reference to the functions of members of the NSW Police Force.
(5) The provision of police services in emergencies and rescue operations is subject to the State Emergency and Rescue Management Act 1989 and to the Essential Services Act 1988.
(6) Nothing in this section confers on the NSW Police Force a power to provide a police service in a way that is inconsistent with any provisions applicable to police officers under the Law Enforcement (Powers and Responsibilities) Act 2002.

Question 4

• As per S6(3) Police Act 1990 Mission and functions of the NSW Police Force what does police services include?

Answer 4

(A) prevention and detection of crime AND

(B) the protection of persons from injury/death AND property from damage, criminal or any other acts.

Question 5

• what is a breach of the peace as per Breach R v HOWELL 1981?

Answer 5

• Whenever harm is done or likely to be done to a person or in their presence their property or when a person is in fear of being so harmed through an assault, array, a riot and unlawful assembly a riot and unlawful assembly or other disturbance.

Question 6

Can a breach of the peace occur in private and public places?

Answer 6

Yes.

Question 7

Can police and others take steps to prevent a breach of the peace and if so when?

Answer 7

Yes.

• Before the event (reasonable apprehension);
• After the event; AND
• can take reasonable steps to prevent the breach.

Question 8

Can police enter a private premises to prevent a breach of the peace?

Answer 8

Yes.

Question 9

Where do police get their power to enter in emergencies?

Answer 9

Section 9 LEPRA 2002 Power to enter in emergencies

(1) May enter a premises if believes on reasonable grounds that:

(A) BOP is being/is likely to be committed AND it is necessary to enter the premises immediately to end the BOP OR

(B) Person suffered significant physical injury OR
- there is imminent danger of significant physical injury to a person AND

-it is necessary to enter the premises immediately to prevent further significant physical injury or significant physical injury to a person.

Question 10

A police officer who enters a premises under S9 Law Enforcement (Powers and Responsibilities) Act 2002 can remain for how long?

Answer 10

(2) ONLY as long as is reasonably necessary in the circumstances.

Question 11

What might you do after a breach of the peace?

Answer 11

• Formal arrest;
• Temporary detention;
• removal from the area;
• Speak to the person to persuade the person to keep the peace;
• remove articles that could cause a breach of the peace.

Question 12

What are the proofs of the offence of S546C Resist etc police?

Answer 12

Any person who:

• resists OR hinders OR incites;
• any person to assault, resist or hinder a police officer;
• In the execution of his or her duty;
• Shall be liable on conviction before a Local Court to imprisonment for 12 months or to a fine of 10 penalty units or both.

Question 13

What are the proofs of the offence of S58 Resist/wilfully obstruct officer?

Answer 13

1. Whoever;
2. Assaults, resists OR wilfully obstructs;
3. Any officer while in the execution of their duty
   - shall be liable to imprisonment for five years.

Question 14

Discuss Part 14 Powers to give directions S197 Directions generally relating to public places.

Answer 14

(1) A police officer may give a direction to a person:

• in a public place:
• if the police officer believes on reasonable grounds;
• behaviour/or presence in the (relevant conduct): is

A) obstructing person or traffic OR

B) harassment or intimidation of another person or persons OR

C) Is causing/likely to cause fear to another person (person or reasonable firmness);

D) supplying/intending/or soliciting another to supply prohibited drug;

E) obtaining/procuring/purchasing prohibited drug.

Question 15

• What are the limits on exercise of police powers as per S200?

Hint

IAPO

Answer 15

This part does not authorise a police officer to give directions relating to:

• A) an industrial dispute, or
  B) an apparently genuine demonstration or protest, or
  C) a procession, or
  D) an organised assembly

Question 16

When does S200 the limitation on exercise of police powers apply?

Answer 16

(3) Not precluded from giving a direction if believes on reasonable grounds direction is necessary to deal with a serious risk to the safety of the person or to any other person.

Question 17

What does S(4) 200 state about the limitation on exercise of police powers?

Answer 17

Not precluded from giving a direction if:

A) Not an authorised public assembly for the purposes of part 4 of the Summary Offences Act 1998 OR not being held substantially in accordance with authorisation, AND

B) OIC authorised the giving of directions AND

C) Direction limited to person obstructing traffic.

Question 18

As per s87a of Part 6A LEPRA what is a large-scale public disorder?

Answer 18

Riot or other civil disturbance that gives serious risk to public safety.

Question 19

Part S6A Emergency Powers LEPRA were brought in as a result of the Cronulla riots in 2005 with penalties increased for riot and affray.

What powers do police have in relation to the sale of alcohol S87B Emergency prohibition on sale or supply of liquor?

Answer 19

(1) Superintendent may close of any licensed premises if:

(A) reasonable grounds there is or there is a threat of a large-scale public disorder in the vicinity AND

(B) The closure/prohibition will assist prevent/control the public disorder.

Question 20

In relation to Part 6A S87C emergency alcohol-free zones what can police do?

Answer 20

(1) A police officer superintendent or above may by instrument in writing establish in an area in a public place an emergency alcohol-free zone if the police officer:

(A) has reasonable grounds for believing that there is a large scale public disorder occurring in the vicinity of the area or there is a threat such a disorder occurring in the near future AND

B) Is satisfied that the establishment of the zone will assist in preventing or controlling the public disorder.

Question 21

When can S87D authorisation special powers prevent/control public disorder in a public place be used?

Answer 21

(1) In a public place if officer giving the authorisation:

(A) reasonable grounds for believing there I/threat of large-scale public disorder occurring near future

AND

(B) powers reasonably necessary to prevent/control the public disorder.

(2) officer satisfied that the nature and extent of the powers authorised are appropriate.

Question 22

What does a S87E target of authorisation allow?

Answer 22

(1) May authorise special powers in a public place:

(A) In a particular area; OR

(B) Prevent persons travelling by a road to create/participate in a public disorder.

Question 23

What are the elements of the offence of Riot T1 S93B Riot Crimes Act 1900?

Answer 23

(1) Where 12 or more persons
- who are present together
- use or threaten unlawful violence
- for a common purpose AND
- the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety
- each of the person using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 15 years.

Question 24

Does it matter if the 12 or more threaten unlawful violence simultaneously?

Answer 24

No! (2) It is immaterial whether or not the 12 or more persons use or threatening unlawful violence simultaneously.

Question 25

Can common purpose be inferred from conduct?

Answer 25

(3) Yes!

Question 26

Does a person of reasonable firmness need actually be, or be likely to be, present at the scene?

Answer 26

(4) No!

Question 27

As per S(5) of S93(B) can riot be committed in private as well as in public places?

Answer 27

Yes!

Question 28

How does R v Asquith define riot?

…the offence is enacted by s93B(1) of the Crimes Act 1900 (NSW) the Crown has to establish:

Answer 28

1) That the appellant was one of 12 persons;
2) Who were present together; AND
3) Who did use or threaten unlawful violence for a common purpose AND
4) That the conduct of those person would cause a person of reasonable firmness at the scene to fear for his or her personal safety.

Question 29

Is Affray a table one or table 2 offence?

Answer 29

It is a table 1 offence.

Question 30

What are the elements of S93C(1) Affray Crimes Act 1900?

Answer 30

1. A person;
2. Who uses or threatens unlawful violence towards another; AND
3. Whose conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of affray

AND liable to imprisonment for 10 years.

Question 31

• (2) If two or more person use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).

Answer 31

Point is that the offence can be committed by one or more people. It does not require two or more people.

Question 32

Can a threat be made by the use of words alone?

Answer 32

No as per (3).

Question 33

Does a person of reasonable firmness need actually be or likely to be present at the scene as per (4)?

Answer 33

No.

Question 34

Can affray be committed in private as well as in public places as per (5)?

Answer 34

Yes.

Question 35

Affray is essentially designed for the protection of the bystander. What are the three distinct parties?

Answer 35

1. The person using or threatening unlawful violence;
2. A person onwards whom the violence or threat is directed; and
3. A person of reasonable firmness who need not actually be, or be likely to be present at the scene.

Question 36

What are the main differences between riot and affray?

Answer 36

• Riot must be 12 or more persons;
• Affray can be constituted by one;
• riot can be constituted by the use or threat of unlawful violence to person, property or other violence;
• Affray, the violence must be directed towards a person;
• Cannot use word alone for an affray.

Question 37

The mental element required for S93B Riot and S93C Affray is defined in S93D. What is it?

Answer 37

(1) Only guilty of riot:
- if person intends to use violence OR
- aware that conduct may be violent.

(2) Only guilty of affray:
- person intends to use; OR
- threatens violence; OR
- aware conduct may be violent or threaten violence.

Question 38

• What does COLOSIMO and ORS v DPP state about the mental element?

Does the second alternative that is conduct may be violent or threaten violence a lesser mental element?

Answer 38

The mental element in S93D(2) is expressed in the alternative.

The first alternative requires an intent to use or threaten violence.

The second, alternative requires an awareness that the person’s conduct may be violent or threaten violence.

The second alternative involves a lesser mental element.

Question 39

How does S93A define violence?

Answer 39

Any conduct:

A) (except S93C Affray) violent conduct towards property and persons

AND

B) Not restricted to conduct causing/intended to cause injury/damage BUT includes:

any other violent conduct (for example, throwing a missile that falls short).

Question 40

The little cousin is S11A VIOLENT disorder (summary Offences Act). What is required?

Answer 40

(1) Three or more persons present together:
- Use or threaten unlawful violence AND
- conduct taken together would cause a person of reasonable firmness present at the scene to fear for personal safety.

10 penalty units or 6 months imprisonment.

Question 41

As per S11A(2) is it immaterial whether or not the three or more person use or threaten unlawful violence simultaneously?

Answer 41

Yes.

Question 42

As per S11A (3) violent Disorder does a person of reasonable firmness need actually be, or likely be, present at the scene?

Answer 42

No.

Question 43

As per S11A(4) Violent Disorder can an offence be committed in a private as well as a public place?

Answer 43

Yes.

Question 44

What are the mental elements as per S11A(5) Violent disorder?

Answer 44

• Must intend to use/threaten violence OR

- aware conduct may be violent or threaten violence.

Question 45

As per S11A(6) does Subsection (5) concerning intent affect the determination of subsection (1) of the number of person who use or threaten violence.

Answer 45

No.

Question 46

How does S11A(7) Summary Offences Act 1988 define violence?

Answer 46

Any violent conduct:

(A) towards property/persons; AND

(B) NOT restricted to conduct causing/intended to cause injury/damage includes any other violent conduct (for example throwing a missile capable of causing injury which does not hit).

Question 47

Is three or more persons being present together and participating in a violent disorder integral?

Answer 47

Yes.

Question 48

Does this mean that three people must be charged to prove the offence occurred?

Answer 48

No!

• Must be proved three were three present together and their conduct taken together would cause person of reasonable firmness at scene to fear for personal safety;
• If If one person was caught and charged and the other two escaped detection, witnesses could still give evidence to prove that the conduct of the three together was sufficient.

Question 49

What happens if one defendant is acquitted?

Answer 49

• Depends on number of persons involved in the violent disorder;
• If alleged to involve only three persons it may be the case that if one acquitted all charges may fail;
• Depends on reasoning by magistrate why charge against first offender dismissed.

Question 50

• Is self defence available in riot, affray and violent disoder?

Answer 50

• At common law self-defence was an answer to a charge of affray, and as such the prosecution bore the onus of negativing BRD;
• There is no express reference to self-defence in Part 3A Crimes Act however the word unlawful is used;
• An act that is done in self-defence is not an unlawful act.

Question 51

• What does COLOSIMO and others v DPP state about self defence provisions contained in Common Law as they relate to riot, affray and violent disorder?

Answer 51

Statute is to be interpreted in conformity with the common law UNLESS

There is an intention within the statute to alter that position.

Question 52

How much force can police use as per S230 LAW ENFORCEMENT (POWERS AND RESPONSIBILITIES) ACT 2002?

Answer 52

Use of force generally by police officers
230 Use of force generally by police officers

It is lawful for a police officer exercising a function under this Act or any other Act or law in relation to an individual or a thing, and anyone helping the police officer, to use such force as is reasonably necessary to exercise the function.

Question 53

Where does the power to conduct random breath test come from I. Road Transport (Safety and Traffic Management) Act 1999 No 20?

Answer 53

13 Power to conduct random breath testing(cf Traffic Act, s 4E (2A), (2B), (6) and (8))
(1) A police officer may require a person to undergo a breath test in accordance with the officer’s directions if the officer has reasonable cause to believe that the person:
(a) is or was driving a motor vehicle on a road or road related area, or
(b) is or was occupying the driving seat of a motor vehicle on a road or road related area and attempting to put the motor vehicle in motion, or
(c) being the holder of a driver licence, is or was occupying the seat in a motor vehicle next to a holder of a learner licence while the holder of the learner licence is or was driving the vehicle on a road or road related area.
(2) A person must not, when required by a police officer to undergo a breath test under subsection (1), refuse or fail to undergo the breath test in accordance with the directions of the officer.
Maximum penalty: 10 penalty units.
(3) It is a defence to a prosecution for an offence under subsection (2) if the defendant satisfies the court that the defendant was unable on medical grounds, at the time the defendant was required to do so, to undergo a breath test.
(4) Without limiting any other power or authority, a police officer may, for the purposes of this section, request or signal the driver of a motor vehicle to stop the vehicle.
(5) A person must comply with any request or signal made or given to the person by a police officer under subsection (4).
Maximum penalty: 10 penalty units.