PPP145 - Law, Policy and Procedure. Flashcards

Question

LEPRA Section 231 Part 18 - (Use of force in making an arrest):

Answer 1

A Police officer or other person who exercises a power to arrest another person may use as much force as necessary to make the arrest or to prevent the escape of the person after arrest

Answer 2

A PO may discontinue an arrest in any of the following circumstances: • If the arrested person is no longer a suspect or the reason for the arrest no longer exists. • If it is more appropriate to deal with the matter in some other manner - E.G. By issuing a warning or caution or a penalty notice or court attendance notice or, in the case of a child, dealing with the matter under the Young Offenders Act 1997 .

Answer 3

* Subjective- Police officers point of view. | * Objective- Would a reasonable person come to the same conclusion?

Answer 4

You will need to assess: • Whether there's some evidence to support each "proof" of offence. • Whether it can or cannot be said that there's "on reasonable grounds" Prospect of conviction. • Whether it's in the "public interest" to commence proceedings.

Answer 5

We must establish: | Actus Reus and Mens Rea.

Answer 6

2-5 years imprisonment.

Answer 7

5+ Years in Gaol.

Answer 8

Offences that are minor and are presented in local courts.

Answer 9

The mental element of as crime.

Answer 10

The Physical Elements of a crime.

Answer 11

It's all about the Actus reus regardless of mens reus e.g traffic fine.

Answer 12

It is the responsibility of the prosecution to prove each of the elements.

Answer 13

the burden of proof lies with the plaintiff who is the person who has initiated the action and the standard of proof is on

Answer 14

Between the ages of 10 and 14 years, police (the investigator) have to prove that the child knew that what they were doing was seriously wrong and must ask questions to that effect during the interview.

Answer 15

Children (Criminal Proceedings) Act 1987 (NSW), Section. Age of criminal responsibility: It shall be conclusively presumed that no child who is under the age of 10 years can be guilty of an offence.

Answer 16

1. The accused e.g William Smith 2. Conducted himself in an offensive manner (describe their behaviour) – urinating 3. In or near, or within view or hearing from, a public place/school (describe the location of the incident) - Auburn Street, Goulburn NOTE: Always say 'the accused' don't name them. anything else!

Answer 17

This is the timeframe to put before local court, this is 6 months after the offence has been done.

Answer 18

To prove Beyond Reasonable Doubt that they’re guilty.

Answer 19

Information captured in the admissible format that once tendered and accepted by the court proves or disproves the existence of a fact in issue in the court proceedings..

Answer 20

* Direct- the object, hart of the matter (knife, gun). | * Circumstantial- secondary evidence (fingerprints, blood).

Answer 21

* Original: Facts perceived by the witness (seeing, touching tasting hearing or smelling), Police statement. * Real: Physical evidence, weapon(DNA) * Documentary: Evidence in documents (written records, electronic records, audio visual records)

Answer 22

Evidence that can establish guilt.

Answer 23

Evidence that points toward innocents.

Answer 24

* Evidence that can be used in court. | * (evidence act 1995).

Answer 25

* Relevance- Relevance of evidence. * Reliable- Test of credibility. * Fair- Obtained lawfully.

Answer 26

* S.114 Evidence Act 1995 – Exclusion of visual evidence. * Visual identification evidence is not admissible unless an identification parade was held – the accused must be afforded the opportunity to participate in an ID parade.

Answer 27

* Accused refuses. * It is not reasonable. * It is unfair.

Answer 28

Written notes by a person at the | time or after the event (up to 7 days).

Answer 29

Oral testimony of a sworn witness from | the witness box.

Answer 30

Preliminary hearing of an indictable matter in a lower court by a magistrate to determine if the prosecution has sufficient evidence against the accused to commit to trial.

Answer 31

Person from the other party questions the witness/suspect.

Answer 32

Person from same party has an opportunity | to ask questions in relation to cross examination.

Answer 33

Providing an accused or legal representative a copy of the evidence.

Answer 34

Evidence handed to magistrate to examine.

Answer 35

Taking all reasonable steps to avoid acts or omissions which could be reasonable foreseen to harm a person/s. As a Police officer: Take all reasonable steps to avoid an act or omission that might harm another.

Answer 36

All people of NSW.

Answer 37

Something you can foresee happening.

Answer 38

Can not foresee what will happen.

Answer 39

- Breaching the duty of care owed by one person to another. | - Failure to exercise reasonable care and skill.

Answer 40

Action was or was not undertaken and the risk was: • Foreseeable. • Not insignificant. • In the circumstances a reasonable person would have taken those precautions.

Answer 41

A person/s is in custody. They are your responsibility, it is your responsibility to look after them.

Answer 42

(Protection from personal liability) A member of the NSW Police Force is not liable for any injury or damage caused by act or omission, in the exercise of good faith of a function imposed by this or any other Act or law whether written or unwritten.

Answer 43

* Legal access and control over another person: * A person no longer free to come and go at will from the physical presence of a police officer. * The police officer has the intention and ability to actually prevent that persons departure. * Also extends to victims and witnesses. * IS LEGAL ACCESS+CONTROL.

Answer 44

Yes duty of care (slowing down in a car pursuit so no other persons get hurt).

Answer 45

Remove someone for their safety or safety of others.

Answer 46

A person who is in the company of a police officer for the purposes of participating in a investigation procedure in connection with an offence if: A. The person has been informed that he or she is entitled to leave at will and, B. The police officer believes that there is sufficient evidence that the person has committed the offence.

Answer 47

(Detention After Arrest For Purposes of Investigation) Police Officer has the power to detain and arrest a person for a period of time to investigate whether they committed an offence. – After the investigation period, must be released or charged.

Answer 48

Investigation Period – “6 hours” • Begins when the suspect is being investigated for an offence (Not from when being detained occurs). • Ends at a time that is reasonable in regard to circumstances and does not exceed 6 hours.

Answer 49

Detention Warrant to Extend Investigation Period – “12 hours in total” PO may apply for a warrant to extend the investigation period by a FURTHER 6 HOURS. S. 134 LEPRA – Orders For Taking Identification Prints – Custody. A court that finds a person guilty of an offence will be ordered to present themselves to a police station for the taking of identification particulars. Failure to comply will result in their arrest. – This section allows us to take a full set of prints as opposed to field fingerprints (FCAN/FSCAN).

Answer 50

(Identification Particulars of Children Under 14 Years) (3) PO Sargent or above may apply for an order authorising taking particulars of a child under 14 years age: * Through the Children’s Court or if not possible within 72 hours of taking into custody. * Through a Magistrate, Children’s Magistrate or registrar of the Local Court.

Answer 51

* TOTAL restraint of the personal liberty of another. * EFFECTIVE the moment a person is not free to come and go as he/she pleases. * AN officer plainly conveys by words or actions that a suspect is NOT FREE TO LEAVE. If there is satisfaction from 99 1a but not 1b investigate proceedings via FCAN, Future Service CAN: • Must at least have reasonable grounds to suspect the person is committing or has committed an offence to arrest.

Answer 52

Must have S.99 1(a) + S.99 1(b) • S.99 1(a) LEPRA: (1) A police officer may, without a warrant, arrest a person if: (a) the police officer suspects on reasonable grounds that the person is committing or has committed an offence, and, • S.99 1(b) LEPRA = FINECHAPS • Must IPE.

Answer 53

S.99 1(b) LEPRA F - To stop the person fleeing from a police officer or from the location of the offence. I - To enable enquiries to be made to establish the person's identity if it cannot be readily established or if the police officer suspects on reasonable grounds that the identity information provided is false. N - Because of the nature and seriousness of the offence. E - To preserve evidence of the offence or prevent the fabrication of evidence C - To stop the person from committing or repeating the offence or committing another offence. H - To prevent the harassment of, or interference with, any person who may give evidence in relation to the offence. A - To ensure that the person appears before a court in relation to the offence. P - To obtain property in the possession of the person that is connected with the offence. S - To protect the safety and welfare of any person (including the person arrested).

Answer 54

``` (BOWS): 1. Breach of Peace – Common Law 2. Offence – s. 99 LEPRA 3. Warrant – s. 101 LEPRA 4. Specific Power • Breach of Bail (BA) • Conduct Breath Analysis (Sch. 3, Cl. 4 RTA) ```

Answer 55

1. Arrest for offence, warrant, BOP, specific power. 2. Sufficient act of arrest to detain liberty of suspect. 3. Officer notifies suspect they are under arrest. 4. Officer notified the suspect as the reason(s) for arrest (s. 201 LEPRA).

Answer 56

(SSW): 1. Seizure or touching. 2. Submission. 3. Words or conduct by the officer stating the person/s is not free to go.

Answer 57

P- Police officer – Without Warrant S. 99 O- Other Persons – Without Warrant S. 100 W- Warrant To Arrest S.101 A- At large Persons S. 102 I- Interstate Offences S. 104 D- Discontinue Arrest S. 105

Answer 58

* No action. * Warning. * Penalty notice. * (FCAN) Field Court Attendance Notice. * (FSCAN) Future Service Court Attendance Notice.

Answer 59

Inform- Reason for exercise of power. Provide- Name and place of duty. Evidence- That you're a police officer (Unless in uniform).

Answer 60

1. Working in covert operation. 2. Entering or searching public place. 3. Speaking to a victim. 4. Detain a intoxicated person.

Answer 61

Powers that require IPE: stop, search, arrest, search vehicle, enter premises, seize property, request identity, general directions and establish crime scene Powers that don’t require IPE: enter or search a public place, covert search warrant, detain an intoxicated person Part 16.

Answer 62

PO to provide information when exercising powers. - Evidence you’re a police office, Name/place of duty, Reason for exercise of power. - PO must IPE before giving direction or as soon as reasonably practicable to do so. - Direction etc. given to group, not necessary to repeat to all persons. - If 2 or more PO exercising power, only one PO required to IPE. - If person subject to exercise of power asks, PO must IPE.

Answer 63

PO to give warnings. PO must give warning to a person subject to exercise of power that they must: • Required by law to comply and, • Failure to do so may be an offence. - Warning not required if they have already complied.

Answer 64

If the PO fails to provide their name or place of duty when exercising a power it does not render the exercise of the power unlawful or otherwise affect the validity of anything resulting from the exercise of that power. • Does not apply if the failure to comply occurs after the police officer was asked for information. • Does not apply to the exercise of a power that consists of a direction, requirement or request to a single person.

Answer 65

It’s 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.

Answer 66

A Police officer or other person who exercises a power to arrest another person may use as much force as necessary to make the arrest or to prevent the escape of the person after arrest

Answer 67

A PO may discontinue an arrest in any of the following circumstances: • If the arrested person is no longer a suspect or the reason for the arrest no longer exists. • If it is more appropriate to deal with the matter in some other manner - E.G. By issuing a warning or caution or a penalty notice or court attendance notice or, in the case of a child, dealing with the matter under the Young Offenders Act 1997 .

Answer 68

* Subjective- Police officers point of view. | * Objective- Would a reasonable person come to the same conclusion?

Answer 69

You will need to assess: • Whether there's some evidence to support each "proof" of offence. • Whether it can or cannot be said that there's "on reasonable grounds" Prospect of conviction. • Whether it's in the "public interest" to commence proceedings.

Answer 70

(on the face of it) Is a case that looks like there is enough evidence to support the claim or charge before evidence from the defendant is taken into account.

Answer 71

* Definitions * Sections * Powers * Procedures * Offences * Penalties * Legal defences

Answer 72

PART 1: 1. The accused 2. Intentionally or recklessly 3. Destroys or damage property 4. Belonging to another person or joint ownership Imprisonment for 5 years – Caused by fire or explosives = Imprisonment for 10 years.

Answer 73

PART 1(A): 1. The accused 2. In the company of another person or persons 3. Intentionally or recklessly 4. Destroys or damages property 5. Belonging to another person or to the person and another. Imprisonment for 6 years – Caused by fire or explosives = Imprisonment for 11 years.

Answer 74

Part 2 1. The accused 2. In the company of another person or persons 3. Intentionally or recklessly 4. During a public disorder 5. Destroys or damages property 6. Belonging to another person or to the person and another. Imprisonment for 7 years – Caused by fire or explosives = Imprisonment for 12 years.

Answer 75

TABLE 1: IF: Property value exceeds $5000 OR: Serious Injury (GBH or more) OR: The offence is listed in Table 1 of Schedule 1 of the Criminal Procedure Act 1986. Prosecution and Defence may opt for higher jurisdiction. (District Court, Supreme Court).

Answer 76

TABLE 2: IF: Property value is less than $5000 OR: NOT a Serious injury (Less than GBH) OR: The offence is listed in Table 2 of Schedule 1 of the Criminal Procedure Act 1986. THIS MEANS: That the prosecution only may opt for higher jurisdiction. (District Court, Supreme Court).

Answer 77

``` Concepts: • Damage to property • Temporary functional derangement • Durden of proof • Recklessness • Test of foresight • Transfer of malice • Reasonable third person ```

Answer 78

When property is damaged, it does not need to be totally ruined or destroyed for an offence of damage/destroy property to be established. It is not able to be used for its intended purpose and must be repaired.

Answer 79

This relates to the minimum amount of damage that occurs and is rendered temporary unusable. It is the minimum amount of damage accepted by the courts. E.g Does not count when if there is someone blocking it (e.g someone chained around a ship).

Answer 80

Burden of Proof: · Criminal: Beyond reasonable doubt, the burden lies with the prosecution. · Civil: Balance of probabilities, burden lies with the plaintiff

Answer 81

A person foresees that a particular result may come about because of a specific action, and still goes ahead with the action despite the potential consequences. E.G. If a window gets destroyed in the process by throwing a bottle at someone, to prove destroy and damage we must establish Mens rea (they knew the window could break if the bottle was thrown).

Answer 82

The possibility of causing damage or injury, and then going ahead with that particular action anyway, regardless of the possible outcome.

Answer 83

A person’s intent to damage property, or to injure another person, is transferred to an outcome that results in damage or injury caused to other property or to another person, even though the offender did not intend to cause the damage or injure the person. The actual target or recipient is not the original intended target or recipient. Like offences (intent to damage someone's car but damaging someone else's instead)

Answer 84

(3) For the purposes of this section, a person commits an offence in "circumstances of aggravation" if the person intentionally marks the premises or other property: (a) by means of any graffiti implement, or (b) in such a manner that the mark is not readily removable by wiping or by the use of water or detergent. Graffiti implement (Circumstance of aggravation) (a) spray paint, (b) a marker pen, (c) any implement designed or modified to produce a mark that is not readily removable by wiping or by use of water or detergent.

Answer 85

Section 4 (1) elements: • The accused, without a reasonable excuse or prior consent; • Intentionally • Marks any premises or property. – Does not apply to the marking of any public footpath or public pavement with chalk Maximum penalty: 4 penalty units. Section 4 (2) • All of the above elements • Circumstance of aggravation Maximum penalty: 20 penalty units or Imprisonment for 12 months. – Must only send a person to prison if they have a previous graffiti conviction or possession of graffiti implement (S. 5 GTA)

Answer 86

- The accused, - Without reasonable excuse or prior consent - Intentionally - Marks premises or property.