Public Order

Question 1

What is a “Breach of the Peace”? Cite Caselaw.

Answer 1

R v Howell [1981] 3 All ER 383

• Whenever harm is ACTUALLY done to a person
• Whenever harm is LIKELY to be done to a person
• When, in a person’s presence, harm is done to that person’s property; or
• When a person is in fear of being so harmed through an assault, affray, a riot and unlawful assembly or other disturbance.

Question 2

What is the primary role of Police during crowd control situations?

Answer 2

Take all reasonable steps to prevent and end breaches of the peace.

Question 3

DPP v Gribble stated what in relation to crowd control/public order?

Answer 3

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

Question 4

According to the Police Act 1990, what are the missions and functions of the Police Force. Cite Section of the Act.

Answer 4

Section 6 of the Police Act, 1990 is where the missions and functions are found and they are:

1. The mission of the NSW Police Force is to work with the community to reduce violence, crime and
2. 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.

Question 5

R v Howell [1981] 3 All ER 383 is caselaw relating to what?

Answer 5

R v Howell relates to Breach of the Peace.

Question 6

R v Howell [1981] held four points in relation to what “Breach of the Peace” is. What are those 4 points?

Answer 6

A breach of the peace is:

• . Whenever harm is actually done to a person
• . Whenever harm is likely to be done to a person
• . When in a person’s presence, harm is done to that person’s property, or
• . When a person is in fear of being so harmed through an assault, affray, a riot and unlawful assembly or other disturbance.

Question 7

Does a breach of the peace occur in a public or a private place?

Answer 7

A breach of the peace can occur in a public or private place.

Question 8

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

Answer 8

Yes, Section 9 of LEPRA affords Police the power to enter in emergencies.

Question 9

What can Police do after a breach of the peace (and to perhaps prevent further breaches?)

Answer 9

Options include:

• 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 10

Part 14 of LEPRA is the section where Police are given certain powers to give certain directions. Section 197 of LEPRA falls within Part 14 and gives police what power?

Answer 10

The power to give directions (generally) in public places (ie: move on direction).

197 Directions generally relating to public places

(1) A police officer may give a direction to a person in a public place if the police officer believes on reasonable grounds that the person’s behaviour or presence in the place (referred to in this Part as relevant conduct)—
(a) is obstructing another person or persons or traffic, or
(b) constitutes harassment or intimidation of another person or persons, or
(c) is causing or likely to cause fear to another person or persons, so long as the relevant conduct would be such as to cause fear to a person of reasonable firmness, or
(d) is for the purpose of unlawfully supplying, or intending to unlawfully supply, or soliciting another person or persons to unlawfully supply, any prohibited drug, or
(e) is for the purpose of obtaining, procuring or purchasing any prohibited drug that it would be unlawful for the person to possess.

Question 11

What offence is found at Section 546C of the Crimes Act?

Answer 11

Resist/Hinder Police.

546C Resisting etc police
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 the Local Court to imprisonment for 12 months or to a fine of 10 penalty units, or both.

Question 12

What offence is found at Section 58 of the Crimes Act?

Answer 12

58 Assault with intent to commit a serious indictable offence on certain officers

Whosoever-

assaults any person with intent to commit a serious indictable offence, or
assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty, such officer being a constable, or other peace officer, custom-house officer, prison officer, sheriff’s officer, or bailiff, or any person acting in aid of such officer, or
assaults any person, with intent to resist or prevent the lawful apprehension or detainer of any person for any offence,
shall be liable to imprisonment for 5 years.

Question 13

What is found at Section 200 of LEPRA?

Answer 13

200 Limitation on exercise of police powers

(1) This Part does not authorise a police officer to give a direction in relation to an industrial dispute.

(2) This Part does not authorise a police officer to give a direction in relation to—
(a) an apparently genuine demonstration or protest, or
(b) a procession, or
(c) an organised assembly,
except as provided by subsection (3) or (4).

(3) A police officer is not precluded from giving a direction in relation to any such demonstration, protest, procession or assembly if the police officer believes on reasonable grounds that the direction is necessary to deal with a serious risk to the safety of the person to whom the direction is given or to any other person.
(4) A police officer is not precluded from giving a direction in relation to any such demonstration, protest, procession or assembly that is obstructing traffic if—
(a) the demonstration, protest, procession or assembly is not an authorised public assembly for the purposes of Part 4 of the Summary Offences Act 1988 or the demonstration, protest, procession or assembly is not being held substantially in accordance with any such authorisation, and
(b) the police officer in charge at the scene has authorised the giving of directions under this Part in relation to the demonstration, protest, procession or assembly, and
(c) the direction is limited to the persons who are obstructing traffic.

Question 14

What is a Riot and where is the offence found in the Crimes Act?

Answer 14

Section 93B of the Crimes Act.

A riot is where 12 persons or more 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 persons using unlawful violence for the common purpose is guilty of riot and liable to imprisonment for 15 years.

(2) It is immaterial whether or not the 12 or more persons use or threaten unlawful violence simultaneously.
(3) The common purpose may be inferred from conduct.
(4) No person of reasonable firmness need actually be, or be likely to be, present at the scene.
(5) Riot may be committed in private as well as in public places.

Question 15

In relation to a riot, do people have to be present at the scene to fear unlawful violence?

Answer 15

93B(4) states that no person of reasonable firmness need actually be, or be likely to be, present at the scene.

Question 16

Does a riot have to be in a public place or can it be in a private place?

Answer 16

Riot may be committed in private as well as in public places.

Question 17

Where is the offence of Affray found?

Answer 17

Section 93C of the Crimes Act.

Question 18

How many people need be present for an Affray?

Answer 18

1 or more persons only can constitute an Affray.

Question 19

Does an Affray have to be in a public place?

Answer 19

No. An affray can be in both a public or a private place.

Question 20

Is a riot considered to be just against persons or property or both.

Answer 20

A riot can be against persons and/or property (ie: flipping cars, Molotov cocktails etc).

Question 21

For a riot to be considered a riot, there must be 12 or more people gathered together for a common purpose. Do all 12 people have to be committing the violence?

Answer 21

No. Section 93(2) states that it is immaterial whether or not the 12 or more persons use or threaten unlawful violence simultaneously.
And that: (3) The common purpose may be inferred from conduct.

Question 22

Is an affray violence against property?

Answer 22

NO. An Affray is violence against a person or person/s.

93C Affray

(1) A person who uses or threatens unlawful violence towards another and 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.
(2) If 2 or more persons use or threaten the unlawful violence, it is the conduct of them taken together that must be considered for the purposes of subsection (1).

Question 23

In an Affray - can a threat be words alone?

Answer 23

No. Section 93C(3) states: For the purposes of this section, a threat cannot be made by the use of words alone.

Question 24

Does an affray have to be in a public place or can it be in a private place?

Answer 24

93C(5) states: Affray may be committed in private as well as in public places.

Question 25

One of the elements of Affray is that if an Accused person uses or threatens unlawful violence towards another and if that conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety - it is considered to be an Affray.. does a “person of reasonable firmness” actually have to be present at the scene?

conduct is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety

Answer 25

No. Section 93C(4) states that no person of reasonable firmness need actually be, or be likely to be, present at the scene.

Question 26

What is the maximum penalty for a Riot?

Answer 26

15 years.

Question 27

What is the maximum penalty for an Affray?

Answer 27

10 years.

Question 28

Where is the offence of “violent disorder” found?

Answer 28

Section 11A of the Summary Offences Act.

Question 29

What is the penalty for Violent Disorder?

Answer 29

10 penalty units or 6 months imprisonment.

Question 30

How many people need to be present for it to be considered a Violent Disorder?

Answer 30

3 or more and they must be present together.

Question 31

Does a violent disorder have to be in public place or a private place?

Answer 31

A violent disorder can occur in either a private or public place.

Question 32

What is a violent disorder?

Answer 32

11A Violent disorder
(1) If 3 or more persons who are present together use or threaten unlawful violence 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 persons using or threatening unlawful violence is guilty of an offence.

Question 33

In relation to violent disorder, do all 3 or more persons have to use or threaten violence together?

Answer 33

No. Section11A(2) states that it is immaterial whether or not the 3 or more persons use or threaten unlawful violence simultaneously.

Question 34

In relation to a violent disorder, does a “person of reasonable firmness” need to actually be or likely to be present at the scene?

Answer 34

No. Section 11A(3) states that: No person of reasonable firmness need actually be, or be likely to be, present at the scene.

Question 35

What does Section 11A state in relation to violent disorder and the intention of the person carrying out the conduct?

Answer 35

11A(5) states that a person is guilty of an offence under subsection (1) only if he or she INTENDS to use or threaten violence or is aware that his or her conduct may be violent or threaten violence.

Question 36

In relation to the offence of Violent Disorder, what is “violence”?

Answer 36

Section 11A (7) states that violence means any violent conduct, so that:

(a) it includes violent conduct towards property as well as violent conduct towards persons, and
(b) it is not restricted to conduct causing or intended to cause injury or damage but includes any other violent conduct (for example, throwing at or towards a person a missile of a kind capable of causing injury which does not hit or falls short).

Question 37

What are the differences between an “affray” and “violent disorder”?

Answer 37

Affray only requires one person. Violent Disorder 3 or more.
An affray must be directed towards a person - violent disorder may be directed to persons, property and other violent conduct.
Words alone CANNOT constitute affray words CAN constitute violent disorder.
Affray is indictable / Violent disorder is a summary offence.

Question 38

Is self defence available for public order offences?

Answer 38

Yes. All public order offences refer to “unlawful” violence and so an act done in self defence is not unlawful.

Colossimo and Ors found:
“Statute is to be interpreted in conformity with the common law, unless there is an intention within the statute to alter that position”.

Question 39

Cite caselaw which defines “Riot”

Answer 39

R v Asquith

The offence is enacted by s93B(1) of the Crimes Act. The Crown has to establish:

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 persons would cause a person of reasonable firmness at the scene to fear for his or her personal safety.

Question 40

What are the differences between Riot and Affray?

Answer 40

Riot must include 12 persons.
Affray can be only 1 person.
Riot is unlawful violence towards persons or property.
Affray is only towards a person.  
Affray CANNOT be words alone.

Question 41

For an Affray, can the threat be made by the use of words alone?

Answer 41

No, a threat cannot be made by the use of words alone in an Affray.

Question 42

For an Affray, can the threat be towards property?

Answer 42

No - the threat must be directed towards a person.

Question 43

Colossimo and Ors

Answer 43

“… the mental element in 93D(2) (affray) 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 44

R v Asquith

Answer 44

Proofs of Riot

“… the offence is enacted by Section 93B(1) of the Crimes Act 1900 (NSW) the Crown has to establish:

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 persons would cause a person of reasonable firmness at the scene to fear for his or her personal safety.