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MODULES 10-13 > Law Policy & Procedure 10-13 > Flashcards

Law Policy & Procedure 10-13 Flashcards

1
Q

What is Lay opinion?

A

The court will permit a person who is not testifying as an expert to testify in the form of an opinion if the opinion is both rationally based on his/her perception, and helps to explain the witness’s testimony. For example, a witness describes a person as being drunk, but then explains what they actually experienced when watching the person; they say, “He was drunk because he was staggering all over the place, his speech was incoherent and he smelt of alcohol.”

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2
Q

What is Expert opinion?

A

The court will permit a person to give an opinion on a subject where they have a specialised knowledge by reason of “training, study or experience”, and on which the opinion is “wholly or substantially based on that knowledge” (Evidence Act 1995 (NSW), Section 79).

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3
Q

What are some other reasons for arrest?

A
  • OFFENCE (Lepra 99)
  • SPECIFIC POWER: an arrest under the Bail Act 2013 (NSW) where a person has breached a bail condition
    an arrest under the Road Transport Act 2013 (NSW) where a person has failed a roadside breath test,
  • an arrest made under the common law for a BREACH OF PEACE, or
  • WARRANTS.
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4
Q

What are some alternatives for arrest?

A
  • warning
  • caution
  • penalty notice
  • field or future service CAN, or
  • in the case of a child, dealing with the matter under the Young Offenders Act 1997 (NSW)
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5
Q

What does LEPRA 2002 (NSW), Section 202 entail?

A
  • Inform - reason for exercise of the power
  • Provide - name and place of duty
  • Evidence - that you’re a police officer (unless in uniform)
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6
Q

What are some sources of evidence police should consider obtaining?

A
  • Victim statement
  • Witness statements
  • Photographs
  • Physical evidence
  • CCTV footage
  • Offender admissions
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7
Q

What do police need to do to ensure that any electronic record of interview by a suspected person (E.R.I.S.P) is admissible at court?

A

The official caution must be provided at the appropriate time

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8
Q

What is the wording of the Official Caution?

A

I am going to ask you some questions in relation to (this matter). You don’t have to say or do anything if you do not want to. Do you understand that? (Record their answer). I/We will record what you say or do, and I/we can use this recording in court. Do you understand that? (Record their answer verbatim).

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9
Q

When are police not required to caution?

A

Police do not have to caution when other legislation gives police a power to do something, for example, demand a driver involved in a collision to supply a version of what happened.

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10
Q

What powers does LEPRA 2002 (NSW), Section 9, give the police?

A

(1) A police officer may enter premises if the police officer believes on reasonable grounds that—
(a) a breach of the peace is being or is likely to be committed and it is necessary to enter the premises immediately to end or prevent the breach of peace, or
(b) a person has 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.
(c) the body of a person who has died, otherwise than as a result of an offence, is on the premises and there is no occupier on the premises to consent to the entry
(1A) Before entering premises under subsection (1)(c), the police officer must obtain approval to do so (orally or in writing) from a police officer of or above the rank of Inspector.
(2) A police officer who enters premises under this section is to remain on the premises only as long as is reasonably necessary in the circumstances.

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11
Q

Road Rules 2014 (NSW), Rule 287 follow a certain criteria to determine minor and major crashes. What 3 factors determine these?

A
  1. Was any person killed or injured?
  2. Did any of the drivers leave the scene without providing their details (in accordance with Road Rules 2014 (NSW), Rule 287)?
  3. Was any driver involved under the influence of alcohol or other drugs?

If yes to any, it is a major, since investigation is needed. If No to all its a minor.

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12
Q

What must a driver do In accordance with Road Rule 2014 (NSW), Rule 287?

A

the driver is required to provide a verbal explanation of the circumstances surrounding the crash, and the explanation provided should be recorded in the driver’s exact words. There is no need to caution prior to this explanation because providing the explanation is a legal requirement that must be complied with.

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13
Q

Referring to Section 139(5)(a) of the Evidence Act 1995 (NSW), a police officer has the power to do what?

A

the police officer believes ‘that there is sufficient evidence to establish that the person has committed an offence that is the subject of the questioning.’
ANY OTHER QUESTIONS TO CLARIFY OTHER THAN THE FIRST TWO QUESTIONS MUST CAUTION.

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14
Q

What are the statute of limitations for traffic matters?

A

Complete within 6 months.

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15
Q

Remember, there are three basic components in every motor vehicle crash. (ELEMENTS).

A
  1. The driver/s: Information from a driver should always include licence details and their explanation of how the crash occurred.
  2. The vehicles/s: may simply require a description of the car (that is, make, model & colour), as well as the registration number and a description of the damage.
  3. The road environment/conditions: it will suffice to record the name of the road and at what point the impact occurred,
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16
Q

What does ROAD TRANSPORT ACT Section 108 entail?

A

The different concentrations of alcohol content:

novice range prescribed concentration of alcohol - zero grams, but less than 0.02 grams, of alcohol in 210 litres of breath or 100 millilitres of blood.

special range prescribed concentration of alcohol - 0.02 grams or more, but less than 0.05 grams, of alcohol in 210 litres of breath or 100 millilitres of blood.

low range prescribed concentration of alcohol - 0.05 grams or more, but less than 0.08 grams, of alcohol in 210 litres of breath or 100 millilitres of blood.

middle range prescribed concentration of alcohol - means a concentration of 0.08 grams or more, but less than 0.15 grams, of alcohol in 210 litres of breath or 100 millilitres of blood.

high range prescribed concentration of alcohol - concentration of 0.15 grams or more of alcohol in 210 litres of breath or 100 millilitres of blood.

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17
Q

What is the most crucial thing to know about ROAD TRANSPORT ACT Section 109.

A

(a) in the case of a sample of breath that is measured by a breath analysing instrument or other breath testing device that provides a reading or result by reference to alcohol present in the breath—the amount of alcohol in grams in 210 LITRES OF BREATH
(b) in the case of a sample of breath that is measured by a breath analysing instrument or other breath testing device that provides a reading or result by reference to alcohol present in the blood—the amount of alcohol in grams in 100 MILLIMETRES OF BLOOD

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18
Q

What section can you find all the offences for PAC?

A

ROAD TRANSPORT ACT Section 110

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19
Q

What Act and Section prohibits the suspected driver of a motor vehicle to continue driving and have to immediately hand over the keys to the vehicle to the police officer who is/believed to be under the influence of drugs or alcohol? (IMPORTANT)

A

ROAD TRANSPORT ACT 148E

(1) If a police officer is of the opinion that a person who is driving (or about to drive) a motor vehicle is under the influence of alcohol or any other drug, or a combination of drugs, the police officer may—
(a) prohibit the person from driving the vehicle while the person is under the influence of alcohol or that other drug or a combination of drugs, and
(b) require the person to immediately hand over all ignition or other keys of the motor vehicle in the person’s actual possession—
(i) to the police officer, or
(ii) to another person in the company of the person who the police officer is satisfied is responsible and capable of exercising proper control of the motor vehicle, and
(c) take such other steps as, in the opinion of the police officer, are necessary in order—
(i) to immobilise the motor vehicle, or
(ii) to remove the motor vehicle to a place of safety and detain it at that place.

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20
Q

148I Detention of keys or vehicles may be continued

A

(1) It is lawful for a police officer to retain any keys that are confiscated under section 148E or 148G, or for any motor vehicle to be immobilised or detained under either of those sections, until such time as—
(a) the return of the keys or the motor vehicle is requested by—
(i) in relation to a power exercised by a police officer under section 148E—any person, or
(ii) in relation to a power exercised by a police officer under section 148G—any person (other than the person referred to in section 148G(1)), and
(b) the police officer to whom the request is made—
(i) is satisfied that the person making the request is capable of exercising proper control of the motor vehicle, or
(ii) is informed by a medical practitioner (not being the person making the request) that the person making the request is not under the influence of alcohol or any other drug.

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21
Q

What Act is DUI (Driving under the influence) offence under?

A

Road Transport Act 2013 (NSW), Section 112

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22
Q

What does a prescribed alcohol content Act under?

A

Road Transport Act 2013 (NSW), Section 110)

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23
Q

form of demand for Random Breath test:

A

My name is …. from …..You have been stopped for the purpose of a breath test. In accordance with the Road Transport Act, I require you to undergo a breath test for the purpose of indicating the concentration of alcohol present in your blood and I direct you to exhale air from your lungs in one continuous breath, directly into this approved device until I direct you to stop.

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24
Q

Who can we breath test under Road Transport Act 2013 No 18 Schedule 3 Part 2 Division 3?

A
  • Is or was the driver of a motor vehicle, or
  • Is or was occupying the driver’s seat of a motor vehicle and attempting to put it in motion, or
  • Is the holder of a driver’s licence and is or was seated next to a learning licence holder who is or was driving a motor vehicle, on a road or road-related area
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25
Q

When will we breath test?

A
  • Random Breath Testing (mobile or stationary)
  • Collisions
  • Manner of driving
  • Breach of road rules (traffic offence)
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26
Q

When can’t we breath test under Road Transport Act 2013 No 18, Schedule 3, Part 2, Division 1, Section 2?

A
  • If the driver has been admitted to or treated at a hospital where a blood sample is/has been taken and the doctor says ‘no’
  • If it appears that, due to injury or illness, it would be dangerous to their condition/health
  • Any time after the expiration of 2 hours after the incident/collision which brought the driver under notice
  • At that person’s place of abode. Some examples of these circumstances are listed below;
  • If the driver of the vehicle is within their driveway or curtilage of their home which would be generally considered past their letterbox.
  • If they reside in an apartment complex and have parked their vehicle in the common car spaces of their apartment building.
  • If they have registered to stay at a motel or hotel for the night and have parked within the car spaces for that hotel or motel.
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27
Q

Under what legislation can a blood sample be taken from a driver involved in a crash?

A

Schedule 3, Clause 11 - Road Transport Act

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28
Q

What is the age of restriction for breath testing?

A

There is no age restriction.

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29
Q

What are the issuing timeframes for FPN’s when investigation is INCOMPLETE?

A

3 months.

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30
Q

Where do police get the power to demand that a driver produces their licence and state their name and address?

A

Section 175 - Road Transport Act 2013

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31
Q

Is there an age limit for having a compulsory blood sample taken in accordance with Schedule 3, Clause 11 - Road Transport Act 2013?

A

Must be 15 years and over.

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32
Q

Where do police get the power to demand the registered owner, or the person responsible, the details of who was driving their motor vehicle at the time of a particular incident?

A

Road Transport Act, Section 177

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33
Q

Under Section 4, Road Transport Act, what is the definition of a motor vehicle?

A

means a vehicle that is built to be propelled by a motor that forms part of the vehicle.

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34
Q

Where do police get the power to arrest for a breath test analysis?

A

Schedule 3, Clause 4 - Road Transport Act 2013

35
Q

How many FPNs can you issue at any one time?

A

Four.

36
Q

What are the issuing time frames for FPNs when enquiries are COMPLETE?

A

1 Month.

37
Q

When we can suspend licences for a positive breath analysis reading? (IMPORTANT TOO)

A

• Novice Range PCA
• Special Range PCA
• Low Range PCA
• Mid-Range PCA
• High Range PCA
• Refuse Breath Analysis
• Wilfully Alter Concentration of Alcohol
• Refuse/hinder blood sample (crash patients)
• Any indictable (driving ) offence causing GBH
• Any indictable (driving) offence causing death
Source: Road Transport Act 2013 No 18 Sect 224

38
Q

Road Transport Act 2013 (NSW), Schedule 3, Clause 12 Compels police officers to do what?

A

you DO NOT require a reasonable cause to suspect that a driver may be under the influence of a drug other than alcohol. Do not need to have reasonable cause to make such a request. The seriousness of the crash is sufficient grounds to warrant the testing for other drugs.

39
Q

Road Transport Act 117 is what offence? and what are the elements? (IMPORTANT)

A

FOR: Negligent, furious or reckless driving!
A person must not:
• Driver
* motor vehicle
• Upon a road or road related area
• NEGLIGENTLY, or
• At a SPEED or in a MANNER DANGEROUS TO THE PUBLIC

40
Q

Road Transport Act 118 is what offence? and what are the elements? (IMPORTANT)

A

FOR: Menacing driving!
A person must not:
• driver & motor vehicle
• on a road
• in a MANNER THAT MENACES another person,
AND
• INTENDS to menace that other person, OR
• OUGHT TO HAVE KNOWN that the other person might be menaced

41
Q

Road Transport Act 117 is what offence? and what are the elements? (IMPORTANT)

A

FOR: Negligent, furious or reckless driving!
A person must not:
• Driver
* motor vehicle
• Upon a road or road related area
• NEGLIGENTLY, or
• At a SPEED or in a MANNER DANGEROUS TO THE PUBLIC

42
Q

Road Transport Act 118 is what offence? and what are the elements? (IMPORTANT)

A

FOR: Menacing driving!
A person must not:
• driver & motor vehicle
• on a road
• in a MANNER THAT MENACES another person,
AND
• INTENDS to menace that other person, OR
• OUGHT TO HAVE KNOWN that the other person might be menaced

43
Q

Examples of menacing driving?

A

• Tailgating extremely close to the vehicle in front
• Travelling behind another vehicle and flashing headlights and sounding the horn
• Speeding in front of another vehicle and then braking harshly
• Driver on road points his vehicle at a person on private property / footpath /
road, causing the wheels to spin and screech so as to frighten the other person

44
Q

SECTION 51A, CRIMES Act 1900 is what offence? and what are the elements? (IMPORTANT)

A

PREDATORY DRIVING
The driver of a vehicle who:
• While in pursuit of or travelling near another vehicle,
• Engages in conduct that causes or threatens an impact involving the other
vehicle; and
• Intends to cause a person in the other vehicle actual bodily harm,
• Is guilty of an offence

IMPACT INVOLVING A VEHICLE INCLUDES:
• An impact with any other vehicle or with a person or object, OR
• The vehicle overturning or leaving the road

45
Q

SECTION 52A, CRIMES Act 1900 is what offence? and what are the elements? (IMPORTANT)

A

DANGEROUS DRIVING CAUSING DEATH OR GBH PROOFS
• Driver
• Vehicle
• Involved in an impact
• Occasioning death or grievous bodily harm
AND AT THE TIME OF THE IMPACT, was driving;
• Under the influence of intoxicating liquor or drug, OR
• At a speed dangerous to another person(s), OR
• In a manner dangerous to another person(s)
THIS OFFENCE IS NOT RESTRICTED TO DRIVING ON A ROAD
1. the vehicle causes an impact between:
- other vehicles, or
- another vehicle and any object or person, OR 2. causes another vehicle to overturn or leave the road,
AND
The prosecution proves the offender’s vehicle caused the impact.

46
Q

For SECTION 52A, CRIMES Act 40/1900
AGGRAVATED DANGEROUS DRIVING CAUSING DEATH OR GBH, what is the difference between Dangerous driving causing death or GBH proofs and Aggravated?

A

CIRCUMSTANCES OF AGGRAVATION
At the time of the impact:
• The prescribed concentration of alcohol ( > 0.150) was present in the accused’s blood, OR
• The accused was driving on a road at more than 45kph over the applicable speed limit, OR
• The accused was driving the vehicle to escape pursuit by a police officer, OR
• The accused’s ability to drive was very substantially impaired by being under the influence of a drug (other than intoxicating liquor) or a combination of
drugs.

47
Q

Under Summary Offences Act Section 3, What is the definition of ‘Public Place’

A

(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 (Outside the premise is public).

48
Q

Definition of offensive?

A

such as is CALCULATED TO WOUND the feelings, arouse anger or resentment or disgust in the mind of a reasonable person

49
Q

What test is used in determining what is offensive?

A

‘Subjective’ & ‘Objective’ tests
• The ‘Subjective Test’ is taken from the point of view of the victim, offender, or any other person involved in the incident.
• The ‘Objective Test’, also known as the Reasonable Third Person Test, is about the opinion of a reasonable third person who was not involved in the situation but who may have been a bystander and witnessed the incident. Location and circumstances should also be considered (e.g church)

50
Q

What act can you fine someone for offensive language? what does it entail?

A

Summary Offences Act 1988 (NSW), Section 4A(1)
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.

51
Q

What are alternative forms of punishment for offensive language?

A

Summary Offences Act 1988 (NSW), Section 3, 6.

(3) Instead of imposing a fine on a person, the court:
(a) may make a community correction order under section 8 of the Crimes (Sentencing Procedure) Act 1999 that is subject to the standard conditions of a community correction order and to a community service work condition (despite the offence not being punishable by imprisonment), 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.
(4) , (5) (Repealed)
(6) However, the maximum number of hours of community service work that a person may be required to perform under an order in respect of an offence under this section is 100 hours.

52
Q

What are the elements of offensive language offence?

A
  1. the accused
  2. used offensive language
  3. in or near, or within hearing from, a public place or a school
53
Q

What act could you penalise someone for offensive conduct?

A

Summary Offences Act 1988 (NSW), Section 4(1)

(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.
e.g urinating in public, public nudity, littering, spitting etc.

(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.

54
Q

What are the elements of offensive conduct?

A
  1. the accused
  2. conducted him/herself in an offensive manner
  3. in or near, or within view or hearing from a public place or a school
55
Q

What act can you penalise someone for Obscene exposure?

A

Summary Offences Act 1988 (NSW), Section 5
5 Obscene exposure
A person shall not, in or within view from a public place or a school, wilfully and obscenely expose his or her person. (Person refers to genitalia ONLY not ASS)
Maximum penalty: 10 penalty units or imprisonment for six months

56
Q

What Act allows you to cease relevant conduct? (IMPORTANT MUST KNOW SECTION 2)

A 
LEPRA 2002 (NSW), Section 197 subsections (2) to (4) 
197 Directions generally relating to public places (cf Summary Offences Act 1988, s 28F)

(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.

57
Q

Under LEPRA 2002 (NSW), Section 197 subsections (1), what is defined as relevant conduct? (WILL BE IN EXAMS)

A

(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) 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.

58
Q

Mnemonic Used to Remember 197 (1)

A 
C – Causing Fear
H – Harassment / Intimidation 
O – Obstructing Traffic (person/vehicle) 
P – Procuring Prohibited Drug 
S – Supplying Prohibited Drug
59
Q

What Act can you penalise someone for failure to comply with direction?

A

LEPRA 2002 (NSW), Section 199
199 Failure to comply with direction (cf Summary Offences Act 1988, s 28F)
(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.

60
Q

SCENARIO:
Let’s say you give a 197 direction that includes a move-on because a person’s behaviour is causing harassment (relevant conduct) to people walking past. The person does not move-on but stops the harassing behaviour (relevant conduct).

A

The elements of the 199 offence of failure to comply with direction have not been met, and therefore the person is not guilty of a Section 199 offence, even though they have not moved-on.

61
Q

What must you do before issuing a Section 197 or 198 Direction?

A

should consider sections 11(2) and 19 of LEPRA.
11 (2): (2) A police officer may require a person whose identity is unknown to the officer to disclose his or her identity if the officer proposes to give a direction to the person in accordance with Part 14 for the person to leave a place.
19: Power of police officer to request proof of identity (cf Crimes Act 1900, s 563)
A police officer may request a person who is required under this Part to disclose his or her identity to provide proof of his or her identity.

You must exercise the powers under LEPRA 2002 (NSW), Section 11(1) or 11(2) before using LEPRA 2002 (NSW), Section 19.

NOTE: Only do 19 if you have suspicions that their identity and information is false.

62
Q

In terms of the direction, the recommended wording is:

A

“I am Constable ______ from _____ Police Station. I believe your yelling out to people as they walk past is intimidating people in this area. I am directing you to stop this conduct. Do you understand that? I must warn you that you are required by law to comply with this direction”.

63
Q

LEPRA 2002 (NSW), Section 202 is your power to IPE. what does Section 203 entail?

A

203 Police officers to give warnings when giving or making directions, requirements or requests that must be complied with
(1) A police officer who exercises a power to which this Part applies that consists of a direction, requirement or request must give a warning to the person subject to the exercise of the power that the person is required by law to comply with the direction, requirement or request.

64
Q

What Act can give you the power to give a move on direction to an INTOXICATED person?

A

LEPRA 2002 (NSW), Section 198 (1)
198 Move on directions to intoxicated persons in public places
(1) A police officer may give a direction to an intoxicated person who is in a public place to leave the place and not return for a specified period if the police officer believes on reasonable grounds that the person’s behaviour in the place as a result of the intoxication (referred to in this Part as relevant conduct)—
(a) is likely to cause injury to any other person or persons, damage to property or otherwise give rise to a risk to public safety, or
(b) is disorderly.

65
Q

Relevant conduct of Section 198 LEPRA?

A

1(a). is likely to cause injury to any other person or persons, damage to property or otherwise give rise to a risk to public safety, or
1(b). is disorderly.

66
Q

What Act provides you with the power to request proof of identity

A

19 Power of police officer to request proof of identity (cf Crimes Act 1900, s 563)
A police officer may request a person who is required under this Part to disclose his or her identity to provide proof of his or her identity.

You must exercise the powers under LEPRA 2002 (NSW), Section 11(1) or 11(2) before using LEPRA 2002 (NSW), Section 19.

67
Q

What Act gives you the power to give a move on direction for groups of people?

A

LEPRA 2002 (NSW), Section 198A
198A Giving of directions to groups of persons
(1) A police officer may give a direction under this Part to persons comprising a group.
(2) In any such case, the police officer is not required to repeat the direction (or the warning referred to in section 198(6) in the case of a direction given under section 198), or to repeat the information and warning referred to in Part 15, to each person in the group.
(3) However, just because the police officer is not required to repeat any such direction, information or warning does not in itself give rise to any presumption that each person in the group has received the direction, information or warning.

68
Q

What Act allows you to penalise someone for failure to complete with direction?

A

LEPRA 2002 (NSW), Section 199
199 Failure to comply with direction (cf Summary Offences Act 1988, s 28F)
(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.

69
Q

What Act allows you to penalise an intoxicated person for continued behaviour after move on direction?

A

Summary Offences Act 1988 (NSW), Section 9
9 Continuation of intoxicated and disorderly behaviour following move on direction
(1) A person who:
(a) is given a move on direction for being intoxicated and disorderly in a public place, and
(b) at any time within 6 hours after the move on direction is given, is intoxicated and disorderly in the same or another public place,
is guilty of an offence.
Maximum penalty: 15 penalty units.
(2) For the purposes of this section, a move on direction is a direction given to a person by a police officer, under section 198 of the Law Enforcement (Powers and Responsibilities) Act 2002, to leave a public place and not return for a specified period.

70
Q

Under Summary Offences Act 1988 (NSW), Section 9, A person is intoxicated if:

A

(6) For the purposes of this section, a person is intoxicated if:
(a) the person’s speech, balance, co-ordination or behaviour is noticeably affected, and
(b) it is reasonable in the circumstances to believe that the affected speech, balance, co-ordination or behaviour is the result of the consumption of alcohol or any drug.

71
Q

What does Section 204A of LEPRA MEAN?

A

if you are exercising a power that consists of a direction, requirement or request, YOU MUST IPE! However, if you are exercising a power that does not consist of a direction, requirement or request, for example, arrest and you don’t IPE the arrest or exercise of the power is still valid. However, if you are asked for your name and place of duty by the person you are arresting or exercising the power upon and don’t supply your name and place of duty, the arrest or exercise of the power is unlawful.

72
Q

Identify some knife offences?

A
  • Custody of knife
  • Parents allowing children to carry knives
  • Wielding of knives
  • Sale of knives to children
73
Q

What Act can you penalise someone for carrying a knife?

A

Summary Offences Act 1988 (NSW), Section 11C (1)
11C Custody of knife in public place or school
(1) A person must not, without reasonable excuse (proof of which lies on the person), have in his or her custody a knife in a public place or a school.
Maximum penalty: 20 penalty units or imprisonment for 2 years, or both.

74
Q

What are the exceptions to carrying a knife under Summary Offences Act 1988 (NSW), Section 11C (2)?

A

(2) Without limitation, it is a reasonable excuse for the purposes of this section for a person to have custody of a knife, if:
(a) the custody is reasonably necessary in all the circumstances for any of the following:
(i) the lawful pursuit of the person’s occupation, education or training,
(ii) the preparation or consumption of food or drink,
(iii) participation in a lawful entertainment, recreation or sport,
(iv) the exhibition of knives for retail or other trade purposes,
(v) an organised exhibition by knife collectors,
(vi) the wearing of an official uniform,
(vii) genuine religious purposes, or

75
Q

Is carrying a knife in public for the purpose of self defence reasonable reason to carry?

A

No.

76
Q

What is meant by “custody”?

A

On their person. Anything they have access to. E.g bag, locker, pocket etc.

77
Q

What is the definition of a knife under Summary Offences Act 1988 (NSW), Section 3?

A

(a) a knife blade, or
(b) a razor blade, or
(c) any other blade,

Note: does not include anything that is of a class or description declared by the regulations to be excluded from this definition. (e.g plastic knife from takeaway store).

78
Q

What Act penalises parents who allow their children to carry knives?

A

Summary Offences Act 1988 (NSW), Section 11D(1)
11D(1) Parents who allow children to carry knives
(1) The parent of a child, being a child:
(a) who is under the age of 18 years, and
(b) who commits an offence against section 11C,
is guilty of an offence if the parent knowingly authorised or permitted the child to commit the offence.
Maximum penalty: 5 penalty units.
(2) The parent of a child may be proceeded against and dealt with under this section whether or not the child has been proceeded against or dealt with under section 11C.

79
Q

What Act penalises a person who wields a knife in public without reasonable excuse?

A

Summary Offences Act 1988 (NSW), Section 11E
11E Wielding of knives in a public place or school
(1) A person who, without reasonable excuse (proof of which lies on the person):
(a) uses a knife, or
(b) carries a knife that is visible,
in the presence of any person in a public place or a school in a manner that would be likely to cause a person of reasonable firmness present at the scene to fear for his or her personal safety is guilty of an offence.
Maximum penalty: 50 penalty units or imprisonment for 2 years.
(2) No person of reasonable firmness need actually be, or be likely to be, present at the scene.

To satisfy the elements of this offence, the offender must have the knife out and in public view or be using it in such a way as to cause a person of reasonable firmness (objective test) to fear for their safety.

80
Q

What Act penalises a person who sells a knife to a person under the age of 16?

A

Summary Offences Act 1988 (NSW), Section 11F(1)
11F(1) Sale of knives to children
(1) A person who sells a knife to a child under the age of 16 years is guilty of an offence.
Maximum penalty: 50 penalty units.

It is an offence to sell a knife to anyone under the age of 16 years unless there were good reasons for the retailer to believe that the person was over 16. However, the onus is on the retailer to satisfy themselves as to the age of the person buying the knife, for example, by the production of suitable Identification.

81
Q

What Act penalises a person that has a custody of an offensive implement?

A

Summary Offences Act 1988 (NSW), Section 11B(3)
11B Custody of offensive implement
(1) A person shall not, without reasonable excuse (proof of which lies on the person), have in his or her custody an offensive implement in a public place or a school.
Maximum penalty: 50 penalty units or imprisonment for 2 years.
(2) If a person is convicted of an offence under this section, the court may, in addition to any penalty it may impose, make an order that the offensive implement be forfeited to the Crown, and the implement is forfeited accordingly.

82
Q

Under Summary Offences Act 1988 (NSW), Section 11B(3), what does it mean by ‘offensive implement?’

A

offensive implement means:

(a) anything made or adapted for use for causing injury to a person, or
(b) anything intended, by the person having custody of the thing, to be used to injure or menace a person or damage property.

83
Q

What Pneumonic is used when searching a person for a knife Police must “suspect on reasonable grounds” that the person is in possession of a knife?

A

Time, date and place

History of the person and location

Intelligence available (must be current)

Situation in which the interaction is taking place

MODULES 10-13 (9 decks)

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