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Binder > Session Two Law Policy > Flashcards

Session Two Law Policy Flashcards

1
Q

How do table one and table two offences work?

A

two for one

Schedule 1, Table 1 of the Criminal Procedure Act 1986 (NSW) shows indictable offences that are to be dealt with summarily unless the prosecutor or the person charged elects to have the matter heard by a judge and jury, in the District Court. They are known as Table 1 offences.

one for two

Schedule 1, Table 2 of the Criminal Procedure Act 1986 (NSW) shows indictable offences that are to be dealt with summarily unless the prosecutor elects to have the matter heard by a judge and jury, in the District Court. They are known as Table 2 offences.

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2
Q

Crimes Act s.____ Fraud

A

Crimes Act s.192E Fraud

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3
Q

LEPRA 2002 (NSW), Section 31 - Strip searches

A police officer may carry out a strip search of a person if:

(a) in the case where the search is carried out at a police station or other place of detention—the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search, or
(b) in the case where the search is ___________________ — the police officer suspects on reasonable grounds that the strip _______________ for the purposes of the search and that the ____________________________ _____________________ make the strip search necessary

A

LEPRA 2002 (NSW), Section 31 - Strip searches

A police officer may carry out a strip search of a person if:

(a) in the case where the search is carried out at a police station or other place of detention—the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search, or
(b) in the case where the search is carried out in any other place — the police officer suspects on reasonable grounds that the strip search is necessary for the purposes of the search and that the seriousness and urgency of the circumstances make the strip search necessary

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4
Q

When is a Child or Young Person at Risk of Significant Harm

(ROSH)

A

Under the Children and Young Persons (Care and Protection) Act 1998 s. 23 it’s when the Children or Young persons;

  • Physical and psychological needs not met
  • Parents unable or unwilling to arrange medical care
  • Parents unable or unwilling to allow child to receive education
  • Physically or sexual abused or ill-treated -Exposed to domestic violence -Suffering serious psychological harm or at risk of
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5
Q

Non-Urgent AVO

A
  • Not an order but a summons to appear before the court for an application to seek an order
  • There must be no immediate safety concerns
  • Commonly used when a Provisional AVO has been declined
  • Not appropriate for child abuse, stalking, intimidation or a DV offence
  • Can be applied for by the PINOP at a local court
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6
Q

Under Section 10 of LEPRA 2002

what may Police do?

A

Police may enter and stay for a reasonable amount of time to:

  • Detain a person under an Act
  • Arrest a person Police may search premises for person
  • police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling.
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7
Q

The Power and Control Wheel of Domestic Violence

(6 phases)

A
  • Pursuit phase
  • Honeymoon phase
  • Build-up phase
  • Stand-over phase
  • EXPLOSION
  • Remorse phase
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8
Q

Circumstances of aggravation for sexual assault?

A
  • Alleged offender is in the company of another person or persons, or
  • The alleged victim is (whether generally or at the time of the commission of the offence) under the authority of the alleged offender
  • The alleged victim has a serious physical disorder
  • The alleged victim has a cognitive impairment
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9
Q

Where do we find the definition of Larceny?
A. Common Law
B. Crimes Act 1900 (NSW) Section 117
C. Crimes Act 1900 (NSW) Section 118

A

Where do we find the definition of Larceny?
A. Common Law

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10
Q

What is deception?

A
  1. a deception as to the intentions of the person using the deception or any other person, or
  2. conduct that causes a computer/machine to respond in a manner the person is not authorised to cause it to make.
  • any intentional or reckless deception
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11
Q

First response duties for sexual assaults?

  • D
  • R
  • A
  • L
  • P
  • I
  • N
  • E
A
  • Duty officer and supervisor to be notified
  • Respectful and supportive of the victim
  • Ensure the victim’s immediate safety
  • Assess and attend to urgent medical needs including Sexual Assault Investigation Kit (SAIK) and/or Early Evidence Kit (EEK)
  • Liaise with criminal investigation staff
  • Privacy of the victim
  • Identify and secure any primary/secondary crime scene and/or other forensic evidence
  • Notebook Entry
  • Encourage the victim not to change
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12
Q

What is asportation?

A

Physically placing hands on an item, and requires only the slightest movement of the property

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13
Q

What is the offence creating section for choking?

A

37 Choking, suffocation and strangulation

(1A) A person is guilty of an offence if the person intentionally chokes, suffocates or strangles another person without the other person’s consent.

Maximum penalty—imprisonment for 5 years.

(1) A person is guilty of an offence if the person—
(a) intentionally chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and
(b) is reckless as to rendering the other person unconscious, insensible or incapable of resistance.

Maximum penalty—imprisonment for 10 years.

(2) A person is guilty of an offence if the person—
(a) chokes, suffocates or strangles another person so as to render the other person unconscious, insensible or incapable of resistance, and
(b) does so with the intention of enabling himself or herself to commit, or assisting any other person to commit, another indictable offence.

Maximum penalty—imprisonment for 25 years.

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14
Q

What section of the Crimes Act is Reckless grievous bodily harm or wounding

Elements of Reckless grievous bodily harm or wounding

A

Section 35, Crimes Act

  • The accused
  • Wounds any person
  • Is reckless as to causing actual bodily harm to that or any other person is guilty of an offence
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15
Q

LEPRA 2002 (NSW), Section 33 – Rules for conduct of strip search

Can a person of the opposite sex be present during the search?

A

LEPRA 2002 (NSW), Section 33 – Rules for conduct of strip search

(b) the strip search must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched,

Unless it is a parent or guardian Subsection (1)(b) does not prevent any such person who is of the opposite sex to the person being searched from being present during the search.

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16
Q

What are the elements of Violent Disorder?

A

Summary Offences Act 1988 (NSW), Section 11A

  • 3 or more (conduct taken together)
  • Use or threaten violence (incl. words alone)
  • Towards persons or property

(10 penalty units or 6 months imprisonment)

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17
Q

How do we prove the mens rea of possession (GIC)?

  • K_____________ of the e_____________ of the item.
  • K_____________ of the likely n__________ of the item.
A
  • Knowledge of the existence of the item
  • Knowledge of the likely nature of the item
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18
Q

What Section gives Police the Power to enter to arrest or detain someone or execute warrant

A

Section 10, Law Enforcement (Powers & Responsibilities) Act

A police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant.

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19
Q

What is the penalty for Larceny Offences and where do we find it?

A

5 years imprisonment; Crimes Act 1900 (NSW) Section 117

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20
Q

Crimes Act s.125 _____________

A

Crimes Act s.125 Larceny by bailee

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21
Q

The information included in AVO’s application,

A
  • General history (children, violence and types of abuse)
  • Specific examples of violence (most recent and serious)
  • Previous orders
  • Fears of police/PINOP
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22
Q

Do we need to inquire about firearms when investigating a possible Domestic?

A

Yes under section 85(2) of LEPRA

Police MUST inquire as to the presence of any firearms in the dwelling

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23
Q

Kate works at Kmart. One day, she opens the cash register, removes a $50 note and places it in her pocket. She spends the money on petrol on her way home. What are the elements of the offence?

  1. _____________________________________________________
  2. _____________________________________________________
  3. Steals $50
    • Elements of __________ must be established
  4. _____________________________________________________
A

Crimes Act 156 Larceny by clerk or servent

  1. Kate
  2. Clerk of Kmart employer
  3. Steals $50 (elements of larceny must be established)
  4. Belonging to the Kmart employer
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24
Q

What are the elements of being within premises and then breaking out?

  1. _____________________________
  2. E__________
  3. _____________________ or other building
  4. Commits a _____________________________
  5. ___________ out.
A

What are the elements of being within premises and then breaking out?

  1. The accused
  2. Enters
  3. Dwelling-house or other building
  4. Commits a serious indictable offence
  5. Breaks out
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25
Q

What is actual breaking (for entering any house)?

A

Actual breaking

Actual breaking involves the breaking of the seal, interfering with the physical security of the dwelling-house or other building.

Examples of actual breaking

  • Smashing or jemmying open a window or door
  • Opening a window or door that is closed - they do not need to be locked
  • Removing tiles from a roof
  • Opening a cellar door held down by its own weight
  • Opening an interior door - not a cupboard
  • Flicking the latch or chain off an otherwise partially opened window or door.
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26
Q

Under Section 33 – Rules for conduct of strip search

Can a parent, guardian or personal representative of the person being searched be present?

A

LEPRA 2002 (NSW), Section 33 – Rules for conduct of strip search

A parent, guardian or personal representative of the person being searched may, if it is reasonably practicable in the circumstances, be present during a search if the person being searched has no objection to that person being present.

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27
Q

What are the circumstances of aggravation of break offences?
• Armed with an _____________ or instrument
• Use of _________________.
• Deprivation of _____________.
• Infliction of ___________ on any person.
• The offender knows there are ___________ on the premises at the time of the offence.
• In ____________.

A

What are the circumstances of aggravation of break offences?
• Armed with an offensive weapon or instrument*
• Use of corporal violence
• Deprivation of liberty
• Infliction of ABH on any person
• The offender knows there are people (lawful occupants) on the premises at the time of
the offence
• In company

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28
Q

How would you establish the mens rea and actus reus of the offence of larceny?

A

Mens rea (mind) - i.e. the offender had the mind-set that they would steal because they took and carried away etc. and intended that the taking would be permanent.

Actus reus (physical act) - the property belonged to another and was taken and carried away without consent

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29
Q

What Section & Act is Warrant where entry denied or authority to remain refused

A

Section 83, Law Enforcement (Powers & Responsibilities) Act

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30
Q

Is Affray a table 1 or table 2 offence?

A

Affray is a Table 1 offence

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31
Q

What are the elements of Sexual Assault Under 61I of the Crimes Act 1900

A
  • The accused
  • Had sexual intercourse with another person
  • Without consent of the other person
  • Knew the other person did not consent to the sexual intercourse
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32
Q

What is the Act & Section that prevents Sexual intercourse with Children between the ages of 10 & 16

A

Section 66C, Crimes Act

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33
Q

LEPRA 2002 (NSW), Section 33 – Rules for conduct of strip search

(1) A police officer who strip searches a person must, as far as is _______ ___________ in the circumstances, comply with the following —
(a) the strip search must be conducted in a _________ ______,
(b) the strip search must not be conducted in the presence or view of a person who is of the ______ ____ to the person being searched,
(c) except as provided by this section, the strip search must not be conducted in the presence or view of a person whose presence is ____ _________ for the purposes of the search

A

LEPRA 2002 (NSW), Section 33 – Rules for conduct of strip search

(1) A police officer who strip searches a person must, as far as is reasonably practicable in the circumstances, comply with the following —
(a) the strip search must be conducted in a private area,
(b) the strip search must not be conducted in the presence or view of a person who is of the opposite sex to the person being searched,
(c) except as provided by this section, the strip search must not be conducted in the presence or view of a person whose presence is not necessary for the purposes of the search

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34
Q

What is the offence creating Section for Common assault and other actions against police officers

A

Section 60, Crimes Act

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35
Q

What is the Act & Section for Violent disorder

What are the elements for violent disorder

A

Section 11A, Summary offences Act

  • Where three or more persons are together using or threatening unlawful violence
  • The conduct of them (taken together) was such that it would have caused a person of reasonable firmness present at the scene to fear for his/her safety
  • Each of the persons who threatens or uses unlawful violence is guilty of this offence
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36
Q

What is constructive breaking (for entering any house)?

A

Constructive breaking involves entry being gained through the unauthorised use of one of the following:

  • A Key
  • Fraud
  • Conspiracy
  • Threat
  • Not breaking
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37
Q

What is required for a warrant under, Section 83 of LEPRA 2002?

Warrant where entry denied or authority to remain refused

“83 LEAVE ME”

A

If the police have been denied entry, they can apply for a warrant

In order to apply for a warrant, police must show that:

  • They have been denied entry
  • A Domestic Violence offence has recently been, is being committed, is imminent, or is likely to be committed
  • It is necessary for the police to enter immediately to investigate and take action to prevent the further commission of offences
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38
Q

Under what Section allows police to seize property related to domestic violence in a dwelling?

What does this Section allow you to take?

A

Section 87, Law Enforcement (Powers & Responsibilities) Act

Dangerous article/implement (not laser pointer) that currently or previously or may be used to commit a domestic violence offence

S.87 allows for police to search & seize dangerous implements from a dwelling providing certain preconditions are established.

A police officer may search the dwelling for and detain a dangerous article or implement, as long as:

  1. The police officer has entered the premises lawfully under a power in LEPRA
  2. The police officer believes on reasonable grounds that:
  • A dangerous article or implement (other than a laser pointer) is in the dwelling, AND
  • The dangerous article/implement is being, was, or may have been or may be used to commit a domestic violence offence.
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39
Q

What is a domestic violence offence?

A

Any of the following, committed within a defined domestic relationship:

  • A person violence offence, or
  • An offence (other than a personal violence offence) that arises from substantially the same circumstances as those from which a personal violence offence has arisen, or
  • An offence (other than a personal violence offence) the commission of which is intended to coerce or control the personal or to cause that person to be intimidated or fearful
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40
Q

Under Section 82 of LEPRA 2002, Police have the power to Enter by?

“82 COME ON THROUGH”

A
  • Police invited into a dwelling may stay to investigate or prevent a domestic violence offence
  • So long as police believe on reasonable grounds that a domestic violence offence is occurring, recently occurred or is imminent
  • If permission is removed, police may stay to exercise powers until a warrant is issued“82 COME ON THROUGH”
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41
Q

Essential differences between GIC and Receiving?
Goods in Custody: It must be proven that the goods are r______ s________ of being ____or_______ ___________ _____.It is not necessary to prove that the goods are actually stolen or unlawfully _______, or that the accused knew the goods __ ___ or _____ _____.

Receiving: It must be proven that the ______ knew the goods were _______ at the time they received, _______ , or attempted to ______ of them. K_________, in the mind of the accused, is an important element in proving the offence of Receiving.

A

Goods in Custody: It must be proven that the goods are reasonably suspected* of being *stolen or otherwise unlawfully obtained. It is not necessary to prove that the goods are actually stolen or unlawfully obtained, or that the accused knows the goods are stolen or unlawfully obtained.

Receiving: It must be proven that the accused knew the goods were stolen at the time they received, disposed of, or attempted to dispose of them. Knowledge, in the mind of the accused, is an important element in proving the offence of Receiving

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42
Q

What is Crimes (Domestic and Personal Violence) Act 2007 s. 49

A

Non-urgent order must be made if a police officer believes or suspects that a domestic violence offence has been or is likely to be committed against the person in need of protection

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43
Q

What is LEPRA 2002, S.86

A

LEPRA 2002, S.86 – Police may enter and search for firearms

  • if police have a reasonable suspicion a DV offence is occurring, recently occurred, likely or imminent
  • Police are informed that no firearms exist in dwelling, but reasonably suspect otherwise
  • Police must apply for a search warrant
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44
Q

Interim AVO

A
  • An order made by the court when a person is charged with an offence that appears to the court to be a serious offence
  • In force until revoked or a final order AVO has been made
  • Temporary order
  • Serious offences : Attempted murder, DV offence, etc (CDPVA 2007, S.40)
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45
Q

Crimes Act s. ___ Larceny by clerks or servants

A

Crimes Act s.156 Larceny by clerks or servants

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46
Q

Crimes Act s.____ Persons unlawfully in possession of property

A

Crimes Act s.527C Persons unlawfully in possession of property

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47
Q

Crimes act s.117 ________

A

Crimes act s.117 Larceny

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48
Q

What are the circumstances of aggravation for 112 Breaking etc into any house etc and committing serious indictable offence

A

circumstances of aggravation means circumstances involving any one or more of the following—

(a) the alleged offender is armed with an offensive weapon, or instrument,
(b) the alleged offender is in the company of another person or persons,
(c) the alleged offender uses corporal violence on any person,
(d) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person,
(e) the alleged offender deprives any person of his or her liberty,
(f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed.

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49
Q

What are the elements of Affray?

A

Section 93C, Crimes Act

  • The accused used or threatened to use unlawful violence towards another person
  • The conduct of the accused was such as would cause a person of reasonable firmness present at the scene to fear for his/her personal safety

Key points

  • 1 or more person involved
  • Against person only
  • Violence must be directed against a person or persons
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50
Q

Circumstance of Aggravation for Sexual Assault (AVOCADO DC)

A
  • Authority of alleged offender
  • Victim under 16
  • Offensive weapon used to make threats of ABH
  • Company of another
  • ABH is inflicted
  • Disability of a serious physical nature
  • Offence of a serious indictable nature intended during a break and enter
  • Deprivation of liberty
  • Cognitive impairment
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51
Q

What is Crimes Act 1900 (NSW), s. 154A Taking a conveyance without consent of owner?

A

In circumstances where a car appears to have been “STOLEN” and then left on the side of the road, the element of ‘intention to permanently deprive’ will be difficult if not impossible to establish. This will result in a prosecution of Taking a conveyance without consent of owner.

Elements

  • Accused
  • Without consent
  • Takes and drives conveyance or
  • Knowing that any conveyance has been taken without such consent, drives it or allows him/herself to be carried in or on it.
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52
Q

What can Assault be?

A
  • Advance towards someone with a clenched fist (threats)
  • Using a dog as a weapon
  • Non-consenting kiss
  • Spitting on a person
  • Striking a horse causing the rider to fall
  • Pointing an unloaded/loaded firearm or toy pistol (if the victim believes it to be a pistol/taser)
  • An unlawful arrest
  • Excessive force
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53
Q

What are some ways we can establish the element of ‘the accused’?

A

ID, CCTV, witness statements, admissions of the accused, recovering the stolen property

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54
Q

Meaning of intimidation according to section 7, Crimes (Domestic and Personal Violence) Act

A

a) Conduct (incl. cyberbullying) amounting to harassment or molestation of the person, or
b) Approach made to the person by any means (incl. phone, text, email & other technologically assisted means) that causes the person to fear for his or her safety
c) Conduct that causes a reasonable apprehension of injury to a person or to a person with whom he or she has a domestic relationship, or the violence or damage to any person or property

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55
Q

Crimes Act s.___ Stealing property in a dwelling-house

A

Crimes Act s.148 Stealing property in a dwelling-house

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56
Q

What act & section allows police to enter a premises in an emergency?

A

Section 9 of LEPRA – Power to enter in emergencies

  • To prevent a breach of the peace from occurring or to end a breach of the peace which IS occurring
  • A person has suffered significant physical injury or there is an immediate danger of significant physical injury and it is necessary to enter the premises immediately to prevent further significant physical injury
  • 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.
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57
Q

What are the elements for Violent disorder

A

Summary Offences Act 1988 (NSW), Section 11A

Elements of offence:

  • Where three or more persons are together using or threatening unlawful violence; and
  • the conduct of them (taken together) was such that it would have caused a person of reasonable firmness present at the scene to fear for his/her safety.
  • Each of the persons who threatens or uses unlawful violence is guilty of this offence.

Maximum penalty: 10 penalty units or 6 months imprisonment.

  • Accused intended to use or threatened violence, or was aware that their conduct may have been violent. WORDS ALONE CAN CONSTITUTE THIS OFFENCE so as to cause a person of reasonable firmness to fear for their safety (need not be present)
  • Against person or property
  • On public or private property
  • Only need to threaten violence
  • You do not have to identify all parties but you will need to describe in detail the actions of three or more persons to prove the offence.
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58
Q

Sexual Touching Elements Crimes Act 1900 s. 61KC

A
  • The accused (alledged offender)
  • Without consent
  • Knowing they had no consent
  • Sexually touched the victim

(a) sexually touches the alleged victim, or
(b) incites the alleged victim to sexually touch the alleged offender, or
(c) incites a third person to sexually touch the alleged victim, or
(d) incites the alleged victim to sexually touch a third person,

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59
Q

What’s the difference between Larceny by Clerks or Servants vs Embezzlement by
Clerks or Servants?

  • Embezzlement = ____________ the till
  • Larceny = ____________ the till
A
  • Embezzlement by clerks or servants occurs before the property or cash comes into possession of the employer, i.e., it is taken before it is owned by the employer or before going into the till
  • Larceny by clerks or servants occurs after the property or cash comes into possession of the employer (after the till)
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60
Q

What are ways of proving the offence of larceny?

A
  • Statements from witness/victim/owners
  • Actions of the accused
  • Exhibits
  • CCTV
  • Admissions of the accused
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61
Q

Act & Section for Common Assault prosecuted by indictment + Elements of the offence

A
  • Section 61, Crimes Act – 2 years imprisonment (Indictable offence)
  • The accused
  • Assaulted
  • Intentionally or recklessly
  • Without consent
  • Without lawful excuse
  • A person
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62
Q

Kate works at Kmart. One day, she opens the cash register, removes a $50 note and places it in her pocket. She spends the money on petrol on her way home. What is the offence?

A

Crimes act 156, Larceny by Clerk or Servant

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63
Q

Larceny is classified as a:
A. Minor indictable offence
B. Serious indictable offence
C. Summary offence

A

Larceny is classified as a

B. Serious indictable offence

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64
Q

LEPRA 2002 (NSW), Section 33 – Rules for conduct of strip search

impaired intellectual functioning means —

A

impaired intellectual functioning means —

(a) total or partial loss of a person’s mental functions, or
(b) a disorder or malfunction that results in a person learning differently from a person without the disorder or malfunction, or
(c) a disorder, illness or disease that affects a person’s thought processes, perceptions of reality, emotions or judgment, or that results in disturbed behaviour

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65
Q

What is Larceny by bailee Crimes Act 1900 (NSW), Section 125?

Include the elements

A

This offence requires an agreement (bailment) between two parties - the Bailor and the Bailee. When the Bailee in some way breaches the agreement, the offence of Larceny by Bailee has been committed.

A Bailee is a person or party to whom goods are delivered for a purpose, such as custody or repair, without transfer of ownership.

There is an agreement/bailment that the property be in the possession of the Bailee for a particular purpose only.

Elements

  • Accused
  • Possesses property as a bailee
  • Takes or converts property to their own use or the use of another
  • Acts fraudulently (dishonestly)
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66
Q

A person, who is in possession of items (property) so soon after a stealing or a break and enter have taken place what must you consider?

A
  • where you find the alleged offender
  • the time since the offence
  • the item the offender is carrying
  • guilty knowledge inferred from silence or with no other reasonable explanation for possession offered.
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67
Q

A Less Serious Injury (Less than GBH) goes under table ___?

A

Table 2

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68
Q

Crimes act s.112 __________________________________________________

A

Crimes act s.112 Breaking etc into any house etc and committing serious indictable offence

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69
Q

What constitutes a Domestic Violence Offence?

A

Domestic Relationship + Personal Violence Offence

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70
Q

What are the elements of Crimes Act 1900 (NSW), Section 154F Stealing motor vehicle, vessel or trailer?

A

Elements

  • Accused
  • Steals: elements of larceny
  • Motor vehicle, vessel or trailer.
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71
Q

Meaning of Consent in relation to Sexual Offences Crimes Act 1900 s. 61HE

A

The person freely and voluntarily agrees to sexual activity

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72
Q

What information must be included on AVOs?

A

The relationship between the PINOP and the defendant:

  • A general history – children, violence, types of abuse, etc
  • Specific examples of violence – most recent and most serious
  • Issues relating to family law, drug and alcohol, mental health, firearms, weapons
  • Previous orders
  • Future fears of police or the Person in Need of Protection (PINOP)
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73
Q

What is the main difference between Violent disorder, Affray & Riot?

A
  • Violent disorder involves THREE or more persons using or threatening unlawful violence
  • Affray involves ONE or more person using or threatening unlawful violence towards another person
  • Riot is where TWELVE or more persons who are present together use or threaten unlawful violence for a common purpose and the conduct of them would cause a person of reasonable firmness present at the scene to fear for his or her personal safety.
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74
Q

What is the definition of larceny?

A

At common law, larceny is committed by a person who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof.

Source: Wilson and Dawson JJ Ilich v R (1987) 162 CLR 110

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75
Q

A car is broken into by three teenagers, driven around for 3 hours and then left on
the side of the road in a local industrial estate. What is the offence?

A

154A Crimes act, Taking a conveyance without consent of owner

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76
Q

Provisional AVO

A
  • Police apply for this AVO if there are immediate fears for the safety of the victim
  • Enforceable the minute it has been served to accused
  • In force until revoked, withdrawn, dismissed or from the moment when an interim/final order is served to the defendant (CDPVA 2007, S.32- Duration)
  • Granted by a senior police officer, Sgt or above, or the Central Justice Panel
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77
Q

Justifications for police being lawfully on premises?

A
  • An emergency (LEPRA S.9)
  • To lawfully arrest or detain a person, or to execute warrant (LEPRA S.10)
  • Execution of an entry warrant (LEPRA S.83 issued by an authorised justice)
  • Invitation from the owner/occupant (until revoked) (LEPRA S.82)
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78
Q

What are the elements for

Breaking into and entering premises

Crimes Act 1900 (NSW), Section 112(1)(a)

112 Breaking etc into any house etc and committing serious indictable offence

A
  • Accused
  • Breaks
  • Enters
  • Dwelling-house or other building
  • Commits a serious indictable offence
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79
Q

Crimes Act s.___ Embezzlement by clerks or servants

A

Crimes Act s.157 Embezzlement by clerks or servants

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80
Q

What is the definition of a dwelling house?
(a) any __________ or other structure intended for _________ as a dwelling and capable of being so _______, although it has never been so _____________,
(b) a _______ or ________ in or on which any person resides, and
(c) any ___________ or other structure within the same ____________ as a dwellinghouse, and _________ therewith or whose use is ancillary to the ____________ of the
dwelling-house.

A

What is the definition of a dwelling house?

(a) any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied,
(b) a boat or vehicle in or on which any person resides, and
(c) any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house.

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81
Q

Jack finds a wallet containing an ATM card and PIN that is not theirs. Jack then goes to an ATM and uses the card and PIN to withdraw $500 in cash. What are the elements of the offence?

  1. _____________________________________________________
  2. _____________________________________________________
  3. Dishonestly _______________________________________________________
A
  1. Accused
  2. Uses a deception
  3. Dishonestly obtains property belonging to another or obtains any financial advantage or causes any financial disadvantage.
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82
Q

Entry in Emergencies LEPRA 2002 s. 9

A

Police may enter a premises on reasonable suspicion that the following is occurring or likely to occur:

  • Breach of the peace
  • Person has suffered significant injury
  • Dead body
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83
Q

Definition of stalking in accordance with Section 8, Crimes (Domestic and Personal Violence) Act

A

Stalking includes:

a) The following of a person about, or
b) The watching or frequenting of the vicinity of, or an approach to, a person’s place of residence, business or work or any place that a person frequents for the purposes of any social or leisure activity, or
c) Contacting or otherwise approaching a person using the internet or any other technologically assisted means

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84
Q

What are the circumstances of special aggravation for 112 Breaking etc into any house etc and committing serious indictable offence?

A

circumstances of special aggravation means circumstances involving any or all of the following—

(a) the alleged offender intentionally wounds or intentionally inflicts grievous bodily harm on any person,
(b) the alleged offender inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that or any other person,
(c) the alleged offender is armed with a dangerous weapon.

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85
Q

Sexual Act Elements Crimes Act 1900 s. 61KE

A
  • The accused
  • Without consent
  • Knowing they had no consent
  • Carried out a sexual act
86
Q

Define Entry:

• Moving from the _________________________________________.
• It is not necessary for the whole of the p___________ to go i___________.

There need only be a part of the person that goes from outside to inside to constitute entry, for example, ___________________________________.
• The insertion of an i_______________ for the purpose of entering into a dwelling-house or other building may also constitute entry. E.g. a ________________.

A 
# Define Entry:
• Moving from the **_outside to the inside of the dwelling-house or other building._**

• It is not necessary that the whole of the person go inside.

There need only be a part of the person that goes from outside to inside to constitute entry, for example, a person’s arm through an open window.
•The insertion of an implement for the purpose of entering into a dwelling-house or other building may also constitute entry. Eg a fishing rod

87
Q

What is the differnce between Stealing motor vehicle, vessel or trailer -vs- Taking a conveyance without consent of owner

A

Stealing motor vehicle, vessel or trailer – must prove all elements of larceny including:

  • Intention to permanently deprive.

Taking a conveyance without consent of owner - do not need to prove:

  • Intention to permanently deprive.
88
Q

Crimes (Domestic and Personal Violence) Act 2007 s. 89 & 89A)

A

Detention and direction of defendant for making and serving a provisional AVO

89
Q

What are the elements for

Being within premises and then breaking out

Crimes Act 1900 (NSW), Section 112(1)(b)

112 Breaking etc into any house etc and committing serious indictable offence

A
  • Accused
  • Enters
  • Dwelling-house or other building
  • Commits a serious indictable offence
  • Breaks out
90
Q

What must the prosecution prove for affray?

A
  1. The accused was one of 12 or more people –
  • who were present together at a place (public or private), and
  • who used or threatened unlawful violence for a common purpose, and
  1. That the conduct of these people (taken together) was such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, and
  2. That the accused in fact used unlawful violence for the common purpose.
91
Q

Aggravated Sexual Act Act & Section + Elements of the offence

A

Section 61KF, Crimes Act

  • The accused
  • Without consent of the alleged victim
  • Knowing the victim does not consent
  • Intentionally
  • Carried out a sexual act
  • Towards the victims
  • In circumstances of aggravation
92
Q

What are the elements of receiving stolen property where stealing is a serious
indictable offence?

Crimes act s.__
1. _____________________
2. _____,____________________,______________ stolen property
3. the ______________ amounts to a __________________________________.
4. the accused knew the property was ____________ at the time they
__________________________________________________________________.

A

Crimes act s.188

  1. the accused
  2. receives, disposes of, or attempts to dispose of stolen property
  3. the stealing amounts to a serious indictable offence
  4. the accused knew the property was stolen at the time they received, disposed of, or
    attempted to dispose of it
93
Q

What is a dangerous Article (LEPRA s. 3)

A
  • Prohibited under Weapons Prohibition Act
  • Spear gun -Device (not a firearm) capable of discharging irritant or capable of bodily harm
  • Firearm, spare barrel or ammunition
  • Detonator or fuse capable of use with explosive or detonator
94
Q

Mens rea and Actus reus of Assault

A
  • Mens rea:

The intention to effect an unlawful contact or to create an apprehension of imminent unlawful contact in the mind of the other person.

  • Actus reus:

The unlawful contact or the act creating apprehension of such an unlawful contact.

95
Q

61HB Meaning of “sexual touching”

A

(1) For the purposes of this Division, sexual touching means a person touching another person—
(a) with any part of the body or with anything else, or
(b) through anything, including anything worn by the person doing the touching or by the person being touched,

in circumstances where a reasonable person would consider the touching to be sexual.

96
Q

What are the powers to enter & remain on premises?

A
  • Entry by invitation (Section 82, LEPRA)
  • Power to enter in emergencies (Section 9, LEPRA)
  • Power to enter to arrest or detain someone or execute a warrant (Section 10, LEPRA)
  • Entry by warrant where entry denied (Section 83, LEPRA)

Powers that may be exercised on entry into premises

  • Powers that may be exercised on entry into premises (Section 85, LEPRA)
  • Crime scene powers (LEPRA part 7 & Section 82 (3A), (3B), 3C))
97
Q

What is an Apprehended Violence Order?

A

An order from the court (or a sergeant) that places restrictions on a person in order to protect a person in need of protection (PINOP)

98
Q

What are the elements of larceny?

  • _______
  • Without consent
  • _______
  • Without legal claim of right
  • _______
  • Belonging to another
  • _______
A
  • The accused
  • Without consent
  • Fraudulently
  • Without legal claim of right
  • Taking and carrying away property (the property must be of value)
  • Belonging to another
  • Intent to permanently deprive
99
Q

Wounding or grievous bodily harm with intent – Act & Section & Elements of the offence

A

Section 33, Crimes Act

  • The accused
  • Wounds any person, or
  • Causes grievous bodily harm to any person with intent to cause grievous

Definition of wounding

  • Wounding requires the breaking of the continuity of the skin – dermis (interior layer) and epidermis (outer layer)
100
Q

Crimes Act 1900 (NSW), Section 59 Assault occasioning actual bodily harm

Elements of the offence:

The accused

________

________

________

i.

ii.

iii.

A

Elements of the offence:

  1. The accused
  2. Assaulted
  3. A person
  4. Occasioning actual bodily harm
    i. Intentionally or recklessly
    ii. Without consent (a person cannot consent to assault occasioning actual bodily harm)
    iii. Without lawful excuse
101
Q

Act & Section for Self defence – when available

A
  • Section 418, Crimes Act
102
Q

What is Domestic Violence Evidence in Chief (DVEC)?

A
  • Video recorded statements taken from DV victims
  • Recording must be made as soon as practicable after the commission of the offence
  • Police should consider: Non-leading questions, first person conversation, hearsay, opinion, unfair/prejudice/character evidence
  • Defendants are NOT to be given copies of a video statement but only audio
  • Victims still must go to court, even if they supply a DVEC statement
103
Q

Indecent Assault Elements Crimes Act 1900 s. 61L

A
  • The accused
  • Assaults the victim
  • Commits an act of indecency on or in presence of the victim at the time of the assault, or immediately before or after
104
Q

Jack finds a wallet containing an ATM card and PIN that is not his. Jack then goes to an ATM and uses the card and PIN to withdraw $500 in cash. What is the offence?

A

Crimes act s.192E Fraud

105
Q

What are some legal defences to assault?

A
  • Consent
  • Amical contest (Sport, ie boxing)
  • Medical procedures (e.g. surgery)
  • Accidental use of physical force
  • Lawful Chastisement - a parent smacks a child on the bottom once to discipline them after they deliberately hit another child
  • Execution of the law of process – a police officer lawfully arrests a person for an offence and they resist arrest, the police officer then physically restrains them
  • Self-defence - someone attempts to hit you and you push them away to avoid being assaulted
  • Taking blood samples, forensic procedures
  • Defence of family - someone attempts to hit your child and you push the person away to protect your child
  • Defence of home or property – a person breaks into your house and you physically restrain them until the police arrive
106
Q

What is the section for Self-Defence?

A

Crimes act s.418 Self-defence—when available

(1) A person is not criminally responsible for an offence if the person carries out the conduct constituting the offence in self-defence.
(2) A person carries out conduct in self-defence if and only if the person believes the conduct is necessary—
(a) to defend himself or herself or another person, or
(b) to prevent or terminate the unlawful deprivation of his or her liberty or the liberty of another person, or
(c) to protect property from unlawful taking, destruction, damage or interference, or
(d) to prevent criminal trespass to any land or premises or to remove a person committing any such criminal trespass,

and the conduct is a reasonable response in the circumstances as he or she perceives them.

107
Q

What is a defence for GIC?

A

What is a defence for GIC?
It is a sufficient defence if the defendant satisfies the court that he or she had no reasonable grounds for suspecting that the thing referred to in the charge was stolen or otherwise unlawfully obtained. If this defence is raised, the onus is on the accused. E.g.
Police find a person in possession of a small quantity of drugs and $10,000 that they reasonably suspect was unlawfully obtained. The defence provided to the court was that the money was given to her by her father. The father gave evidence and bank statements were tendered in evidence of the transaction.

108
Q

What is Constructive breaking? What are the four examples?
_________________________________________________________
_________________________________________________________
1. K_______________
2. F_______________
3. C_______________
4. T_______________

A

What is Constructive breaking? What are the four examples?
Involves entry being gained through the unauthorised use of one of the following.
1. A Key - The use of a key occurs when a person has lawful access to a key but uses it in a manner
for which authority has not been granted. Example: a cleaner has keys to an office block
as part of their role as cleaner, but the cleaner uses the keys on this occasion to enter the
office block and steal a computer.
2. Fraud - Tricks victims to allowing accused to enter
Example: A person poses as a Telstra worker and gains permission to enter the building
on the premise of checking telephone lines and, once in the building, steals jewellery.
3. Conspiracy - Involves two or more people deliberately leaving a door open to allow
another access.
Example: An office worker agrees to leave his office door open to allow his friend to go
inside that night and steal a number of computers.
4. Threat - victim only allows entry upon a threat being made.
Example: A person threatens the owner or occupier of a dwelling-house or other building that, if they do not allow them in, they will do something such as assault the person or damage property.

109
Q

What Powers Exercised on Entry LEPRA 2002 s. 85

A

Police who lawfully enter a dwelling under this part (via S.82 or S.83) may (IFRAP):

  1. Investigate a DV offence
  2. Firearms – inquire, search and seize – MUST BE DONE!!!
  3. Render first aid
  4. Arrest a person
  5. Prevent a DV offence

(2) A police officer who so enters a dwelling must inquire as to the presence of any firearms in the dwelling and, if informed that there is or are a firearm or firearms, must take all such action as is reasonably practicable to search for and to seize and detain the firearm or firearms.
(3) A police officer who so enters a dwelling is to remain in the dwelling only as long as is necessary to take the actions required or permitted by this Part.

110
Q

What section of the Crimes Act 1900 (NSW) do we find the offence of breaking etc into any house etc and committing serious indictable offence?
A. 527C
B. 188
C. 112

A

C. 112

111
Q

Crimes Act s.____Taking a conveyance without consent of owner

A

Crimes Act s.154A Taking a conveyance without consent of owner

112
Q

Crimes Act s.527C ______________________________________

A

Crimes Act s.527C Persons unlawfully in possession of property

113
Q

What is the difference between Arrest & Detention

A
  • Arrest: Where police make it plain that the person they are arresting is not free to leave
  • Detention: The time taken to evoke a legal process

E.g. LEPRA 2002, S.21 and Sections 89,89A-90 CDPVA 2007, (where police can direct a person to remain in that location while they apply for and serve a provisional order)

114
Q

Wounding or grievous bodily harm with intent

What are the elements?

A

Crimes act s.33 Wounding or grievous bodily harm with intent

(1) Intent to cause grievous bodily harm A person who—
(a) wounds any person, or
(b) causes grievous bodily harm to any person,

with intent to cause grievous bodily harm to that or any other person is guilty of an offence.

Maximum penalty—Imprisonment for 25 years.

115
Q

A dry cleaner receives a coat for cleaning by a customer. The dry cleaner decides to wear the coat to a function prior to cleaning it and it being picked up.

Apply the elements to this specific offence:
1. _____________________________________________________

  1. Possesses coat for cleaning as a ___________________________
  2. _____________________________________________________
  3. _____________________________________________________
A

Apply the elements to this specific offence:

  1. The dry cleaner
  2. Possesses coat for cleaning as a bailee
  3. Takes coat for their own use to wear to a function
  4. Acts fraudulently (without knowledge of the owner)
116
Q

What is Crimes act 1900 156 Larceny by clerks or servants?

Include the elements.

A

Larceny by clerks or servants occurs when the subject property or money is taken from the possession of the employer, i.e., it is owned by the employer.

Elements

  • Accused
  • Clerk or servant of master/employer
  • Steals property: elements of larceny must be established
  • Property belonging to the accused’s master/employer
117
Q

When must police apply for a Provisional AVO?
CDPVA 2007, S.27 (Dead Shit Carer)

A

A PO must apply for a Provisional AVO if there is reasonable suspicion the following is occurring, has occurred, is imminent or likely against the PINOP

  • DV offence
  • Stalking/intimidation
  • Child abuse offence
118
Q

What are the elements of breaking into and entering premises?

  1. _______________________________
  2. B__________
  3. E__________
  4. _____________________ or other building and
  5. Commits a ________________________________.
A

What are the elements of breaking into and entering premises?

  1. The accused
  2. Breaks and
  3. Enters
  4. Dwelling-house or other building and
  5. Commits a serious indictable offence
119
Q

What is a dangerous Implement (LEPRA s. 3)

A

-Dangerous article -Made or adapted for use of causing injury -Intended to menace, injure or damage property -Laser pointer -Knife

120
Q

What type of offence it larceny?

A

Larceny is punishable by five years’ imprisonment, therefore is a serious indictable offence.

121
Q

What is temporal Coincidence

A

Temporal Coincidence occurs when mens rea and actus reus coincide in time. Then criminal liability may be established.

122
Q

Personal Violence Offences (IBADGASO)

A
  • I – Intimate images
  • B - Breach of Apprehended Violence Order
  • A – All manner of assaults
  • D – Damage to property
  • G – Guns
  • A – Attempts at these things
  • S – Stalking and intimidation

O – Other offence

123
Q

Tom works at Big W. Tom takes $20 from the till and spends it on food in his lunch
break. Whilst on his break, Tom withdraws $20 from his bank account and when he returns to work, puts it back in its place in the till. The offence is:

A

The offence is:
Crimes act s.156 Larceny by clerk or servant - even though Tom returned an equivalent amount, there is no defence of having intent to return the property

124
Q

•Domestic violence is when ___ person _______ _______ or _________ domination and ______ of the other within a ______ relationship by one of more of the following:

A

•Domestic violence is when one person attempts physical or psychological domination and control of the other within a domestic relationship by one or more of the following:

  • Physical violence
  • Sexual violence
  • Threats and intimidation
  • Emotional/psychological abuse
  • Economic deprivation
  • Coercive control
125
Q

What is NOT considered breaking?

A

• Pushing open a door that is ajar and not secured by latch or chain
• Raising an already partially opened window not secured by latch or chain
• Entering through a door or window that is already open.
REMEMBER
It is not a break if someone widens an already open window or door unless the window
or door is held open by a fastening or security device, for example, a door chain.

126
Q

Meaning of Sexual Touching Crimes Act 1900 s. 61HB

A

Touching another person in circumstances where a reasonable person would consider the touching to be sexual

127
Q

Proper announcement is set out in LEPRA Section 68 prior to entry police must:

“68 G’DAY MATE”

A
  • Make presence known/knock
  • Announce their office
  • State the reason for entry
  • Allow adequate time to comply
128
Q

How do we prove that the accused had ‘intent to permanently deprive’?
They had the intention to:
• Not _________ the goods
OR
• ________ the property
OR
• Return the goods _____________.

A

• Not return the goods
OR
• Change the property
OR
• Return the goods conditionally.

129
Q

Police do not have to prove the goods in the ________ of the accused were _________
- HOWEVER they must prove that it was _________ to suspect the goods were________ or otherwise unlawfully obtained.

Suspicion attaches to:
A. The person in whose custody the goods are found.
B. The goods.
C. Where the goods are found.

A

Police do not have to prove the goods in the custody** of the accused were **stolen -
HOWEVER they must prove that it was reasonable** to suspect the goods were **stolen or otherwise unlawfully obtained.

B. The goods.

130
Q

Any act committed either ___________ or ________ that threatens another person with _________ and _______ violence. It is not necessary for _____ _______harm to be inflicted.

The actions of the accused must ______ a reasonable ___________ of immediate _______ _______ violence in the _____ of the _____

A

Any act committed either intentionally or recklessly that threatens another person with immediate and unlawful violence. It is not necessary for actual physical harm to be inflicted.

The actions of the accused must arouse a reasonable apprehension of immediate unlawful physical violence in the mind of the victim

131
Q

If a police officer has been denied entry & police believe a domestic violence offence is/was/imminent or likely to occur, then they can apply to an authorised officer for a warrant to gain entry to that dwelling. They must advise the authorised officer that:

A
  • Entry has been denied
  • It is necessary to enter the dwelling, and
  • They suspect on reasonable grounds that a domestic violence offence is/was/imminent/likely to occur, and
  • It is necessary to investigate
132
Q

LEPRA 2002 (NSW), Section 33 – Rules for conduct of strip search

A strip search must not:

A

LEPRA 2002 (NSW), Section 33 – Rules for conduct of strip search

  • A strip search must not involve a search of a person’s body cavities or an examination of the body by touch.
  • A strip search must not involve the removal of more clothes than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.
  • A strip search must not involve more visual inspection than the person conducting the search believes on reasonable grounds to be reasonably necessary for the purposes of the search.
133
Q

What is the definition of entry?

A

moving from the outside to the inside of the dwelling-house or other building.

  • for example, a person’s arm through an open window.
134
Q

Additional information relating to section 82 of LEPRA (Entry by invitation) (Fill in the blanks)

A police officer who _______ __ _________ _______ domestic violence offence:

  • Committed or likely to be committed
  • __ ___ ______
  • If invited to do so by a person who apparently resides in the dwelling (whether or no the person is an adult)
  • Enter the dwelling and remain in the dwelling
  • __ _________ whether a domestic violence offence has been committed
  • __ ____ _____ __ ______ ___ _________ __ ______ __________ of a ________ _______ _______
  • Cant remain in the dwelling
  • if entry expressly refused by an occupier of the dwelling
  • Not authorised to remain, i.e., another act or crime scene powers

•BUT can remain

  • If a person who police believe to be a victim
  • Gives permission for police to stay

•Even though another occupier has refused entry

A

A police officer who believes on reasonable grounds domestic violence offence:

  • Committed or likely to be committed
  • In any dwelling
  • If invited to do so by a person who apparently resides in the dwelling (whether or no the person is an adult)
  • Enter the dwelling and remain in the dwelling
  • To investigate whether a domestic violence offence has been committed
  • To take action to prevent the commission or further commission of a domestic violence offence
  • Cant remain in the dwelling
  • if entry expressly refused by an occupier of the dwelling
  • Not authorised to remain, i.e., another act or crime scene powers

•BUT can remain

  • If a person who police believe to be a victim
  • Gives permission for police to stay

•Even though another occupier has refused entry

135
Q

4 Major Types of Child Abuse

A
  • Physical (e.g. broken bones)
  • Sexual (e.g. bruising to genital areas)
  • Psychological (e.g. making them feel worthless)
  • Neglect (e.g. not feeding enough/at all)
136
Q

Crimes Act s.154A ______________________________________

A

Crimes Act s.154A Taking a conveyance without consent of owner

137
Q

What is the difference between Larceny by clerks or servants and Embezzlement by clerks or servants

A

Both offences involve a criminal act performed by a person in the capacity of a clerk or servant

Generally:

  • Embezzlement by clerks or servants occurs before the property or cash comes into possession of the employer, i.e., it is taken before it is owned by the employer
  • Larceny by clerks or servants occurs after the property or cash comes into possession of the employer
138
Q

Crimes Act s.148 ______________________________

A

Crimes Act s.148 Stealing property in a dwelling-house

139
Q

What is the definition of entry?

A
  • It is generally understood that entry means moving from the outside to the inside of the dwelling-house or other building.
  • The insertion of an implement for the purpose of entering into a dwelling-house or other building may also constitute entry.
140
Q

The “circumstances of aggravation” for breaking into a house or dwelling means circumstances involving any one or more of the following–

A

(a) the alleged offender is armed with an offensive weapon, or instrument,
(b) the alleged offender is in the company of another person or persons,
(c) the alleged offender uses corporal violence on any person,
(d) the alleged offender intentionally or recklessly inflicts actual bodily harm on any person,
(e) the alleged offender deprives any person of his or her liberty,
(f) the alleged offender knows that there is a person, or that there are persons, in the place where the offence is alleged to be committed.

141
Q

Police may enter and search for firearms – Act & Section?

A
  • Section 86, LEPRA
  • If all the people involved in the domestic incident say that there are no firearms, but police believe on reasonable grounds that there may be firearms, police must apply for a search warrant
142
Q

What are the elements for Crimes Act 1990 (NSW), s.157 Embezzlement by clerks or servants.

  • _____
  • _____
  • _____
  • _____
A

Elements

  • Accused
  • Clerk or Servant
  • Receives property on behalf of employer
  • Fraudulently embezzles that property
143
Q

A car is broken into by three teenagers, driven around for 3 hours and then left on the side of the road in a local industrial estate. What are the elements of the offence?

  1. _____________________________________________________
  2. Without consent
  3. _____________________________________________________
  4. _____________________________________________________
A
  1. Accused
  2. Without consent
  3. Takes and drives conveyance or
  4. Knowing that any conveyance has been taken without such consent, drives it or allows him/herself to be carried in or on it.
144
Q

Circumstances in which police must make application for order (non-urgent)
CDPVA 2007, S.49

A
  • Same as S.27, but applies to Non-Urgent AVO’s
  • DV offence
  • Stalking/intimidation
  • Child abuse offence
  • Makes NO mention of making the order immediately for the PINOP’s safety and protection
145
Q

What is the definition of actual bodily harm

A

Includes any hurt or injury calculated to interfere with the health or comfort of the victim.

Source: R v Lardner (1998)

Such hurt need not be permanent but must be more than merely transient and trifling, for example, scratches and bruises.

Source: McIntyre v R (2009

146
Q

CDPVA 2007, S.89
Detention of defendant for making and service of interim apprehended personal violence order

A
  • A PO who is making or is about to make an application for a provisional order that is an interim apprehended personal violence order, may give either of the following directions to the person against whom the order is sought—
  • That the person remain at the scene where the incident occurred
  • In a case where the person has left the scene of that incident- that the person remain at another place where the police officer locates the person
147
Q

Crimes act s.__ Larceny

A

Crimes act s.117 Larceny

148
Q

What are the elements of persons unlawfully in possession of property (goods in custody)?
1. ______________________
• has any thing in his or her _____________.
• has any thing in the ___________________________.
• has any thing ____________________, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another, or
• _____ _____ of any thing to a person who is not lawfully entitled to possession of the thing,
2. And the thing may be ___________________________________________.
Police do not have to prove the goods in the _____ of the accused were ______

A

What are the elements of persons unlawfully in possession of property (goods in
custody)?
1. the accused;
• has any thing in his or her custody,
• has any thing in the custody of another person,
• has any thing in or on-premises, whether belonging to or occupied by himself or herself or not, or whether that thing is there for his or her own use or the use of another, or
• gives custody of any thing to a person who is not lawfully entitled to possession of the thing,
2. the thing may be reasonably suspected of being stolen or otherwise unlawfully obtained.

Police do not have to prove the goods in the custody of the accused were stolen

149
Q

What are the different levels of ‘without consent’?
A_____________
• E_____________
• I_____________
C_____________
• F_____________
• M_____________
• T_____________

A

Actual
• Expressed
• Implied
Constructive
• Finding
• Mistake
• Trick

150
Q

Mandatory order what is included in every AVO

A

You must not do any of the following to (PINOP) or anyone they have a domestic relationship with:

a) Assault or threaten them
b) Stalk, harass or intimidate them and
c) Intentionally or recklessly destroy or damage any property that belongs to or is in possession of (PINOP)

151
Q

Act of Indecency Elements Crimes Act 1900 s. 61N

A
  • The accused
  • Committed an act of indecency
  • With or towards another person
152
Q

What are the elements to larceny?

  • The accused
  • _____
  • Fraudulently
  • _____
  • Taking and carrying away property (the property must be of value)
  • _____
  • Intent to permanently deprive
A
  • The accused
  • Without consent
  • Fraudulently
  • Without legal claim of right
  • Taking and carrying away property (the property must be of value)
  • Belonging to another
  • Intent to permanently deprive
153
Q

Crimes Act s.154F _____________________________

A

Crimes Act s.154F Stealing motor vehicle, vessel or trailer

154
Q

Riot act & section and elements of the offence

A

Crimes Act 1900 (NSW), Section 93B

Elements of Offence:

  • 12 or more persons were present together; and
  • Used or threatened to use unlawful violence for a common purpose; and
  • Their conduct taken together was such that it would cause a person of reasonable firmness present at the scene to fear for his/her safety; and

The accused was one of those present who used unlawful violence (punishable imprisonment 15 years)

Against person OR property

155
Q

What is the Doctrine of Recent Possession?

A

What is the Doctrine of Recent Possession?
A person, who is in possession of property so soon after a stealing or a break and enter have taken place, shall be deemed to be the thief, breaker or the guilty receiver in the absence of any explanation.

156
Q

Who can make an application for a non-urgent AVO?
CDPVA 2007, S.48 (PGP)

A
  • PINOP
  • Guardian of the PINOP
  • Police officer
157
Q

Crimes act s.___ Breaking etc into any house etc and committing serious indictable offence

A

Crimes act s.112 Breaking etc into any house etc and committing serious indictable offence

158
Q

Final AVO

A
  • Court made order prior to the expiry of a provisional AVO or at the conclusion of a non-urgent AVO
  • Granted for the long-term protection of the PINOP
  • A final AVO remains in force for such period as is specified by the court
  • AVO not in force until served on the accused
  • If the court fails to specify a time period, the AVO remains in force for 12 months
  • Once time is up, AVO disappears unless victim requests extended time
159
Q

Elements of Larceny:

  1. _________________________________________
  2. _________________________________________
  3. _________________________________________
  4. _________________________________________
  5. _________________________________________
  6. _________________________________________
  7. _________________________________________
A

Elements of Larceny:

  1. The accused
  2. Without consent
  3. Fraudulently
  4. Without legal claim of right
  5. Takes and carries away property
  6. Belonging to another
  7. With Intent to permanently deprive the owner
160
Q

For property to be stolen, it needs to be:
T_____________
Have __________ value
Be _________ property
Does not include _________ property (e.g. land)

A

For property to be stolen, it needs to be:
Tangible
Have monetary value
Be personal property
Does not include real property (e.g. land)

161
Q

4 Types of AVO’s

A
  1. Provisional
  2. Interim
  3. Non-urgent
  4. Final
162
Q

What is Actual breaking? What are two examples?
_______________________________________________________________________________
_______________________________________________________________________________
1. ____________________________________
2. ____________________________________

A

The breaking of the seal, interfering with the physical security of the dwelling-house or
other building.
Examples of actual breaking
• Smashing or jemmying open a window or door
• Opening a window or door that is closed - they do not need to be locked
• Removing tiles from a roof
• Opening a cellar door held down by its own weight
• Opening an interior door - not a cupboard
• Flicking the latch or chain off an otherwise partially opened window or door.

163
Q

Are parents of the children able to use physical force on their children?

Explain why/why not?

A

Yes they can

Crimes act s.61AA Defence of lawful correction

(1) In criminal proceedings brought against a person arising out of the application of physical force to a child, it is a defence that the force was applied for the purpose of the punishment of the child, but only if—
(a) the physical force was applied by the parent of the child or by a person acting for a parent of the child, and
(b) the application of that physical force was reasonable having regard to the age, health, maturity or other characteristics of the child, the nature of the alleged misbehaviour or other circumstances.
(2) The application of physical force, unless that force could reasonably be considered trivial or negligible in all the circumstances, is not reasonable if the force is applied—
(a) to any part of the head or neck of the child, or
(b) to any other part of the body of the child in such a way as to be likely to cause harm to the child that lasts for more than a short period.

164
Q

Crimes Act s.____ Stealing motor vehicle, vessel or trailer

A

Crimes Act s.154F Stealing motor vehicle, vessel or trailer

165
Q

Act & Section of Choking, suffocation and strangulation

A

Section 37, Crimes Act

166
Q

(112b) Thus to satisfy the proof of this offence, the offender must:
A. Enter the house
B. Leave the house
C. Break into the house

A

B. Leave the house

167
Q

LEPRA 2002 (NSW), Section 33 – Rules for conduct of strip search

A strip search of a child who is at least 10 years of age but under 18 years of age, or of a person who has impaired intellectual functioning, must be conducted—

A

LEPRA 2002 (NSW), Section 33 – Rules for conduct of strip search

(a) in the presence of a parent or guardian of the person being searched, or
(b) if that is not acceptable to the person, in the presence of another person who is not a police officer and who is capable of representing the interests of the person being searched and whose presence is acceptable to that person.

(3A) Subsection (3) does not apply if a police officer suspects on reasonable grounds that —

(a) delaying the search is likely to result in evidence being concealed or destroyed, or
(b) an immediate search is necessary to protect the safety of a person.

168
Q

Meaning of Sexual Act Crimes Act 1900 s. 61HC

A

An act (other than sexual touching) carried out in circumstances where a reasonable person would consider the act to be sexual. Whether the person carrying out the act does so for the purpose of obtaining sexual arousal or sexual gratification

169
Q

Offence of Contravening an AVO
CDPVA 2007, S.14

A
  • A person who knowingly contravenes a prohibition or restriction specified in an apprehended violence order made against the person is guilty of an offence
  • Maximum penalty: Imprisonment for 2 years or 50 penalty units, or both
170
Q

Crimes act s.___ Receiving stolen property where stealing a serious indictable offence

A

Crimes act s.188 Receiving stolen property where stealing a serious indictable offence

171
Q

Meaning of a Domestic Relationship (MISS DORA)

A
  • Marriage
  • Intimate personal relationship
  • Same household
  • Same residential facility (not including gaols)
  • De-facto partner -Ongoing dependence or care of person
  • Relative
  • ATSI extended family or kin
172
Q

Power to enter to arrest or detain someone or execute warrant act & section

A

Section 10, Law Enforcement (Powers & Responsibilities) Act

173
Q

What constitutes a dwelling-house under the Crimes Act 1900 (NSW)?

A

Dwelling-house includes—

(a) any building or other structure intended for occupation as a dwelling and capable of being so occupied, although it has never been so occupied,
(b) a boat or vehicle in or on which any person resides, and
(c) any building or other structure within the same curtilage as a dwelling-house, and occupied therewith or whose use is ancillary to the occupation of the dwelling-house.

174
Q

The “circumstances of special aggravation” for breaking into a house or dwelling means circumstances involving any one or more of the following–

A

(a) the alleged offender intentionally wounds or intentionally inflicts grievous bodily harm on any person,
(b) the alleged offender inflicts grievous bodily harm on any person and is reckless as to causing actual bodily harm to that or any other person,
(c) the alleged offender is armed with a dangerous weapon.

175
Q

Circumstances of Aggravation for Sexual Act and Touching

A
  • In company of another person
  • Victim is under the authority of the offender
  • Victim has a serious physical disability
  • Victim has a cognitive impairment
176
Q

Entry by invitation act & section

A

Section 82, Law Enforcement (Powers & Responsibilities) Act

177
Q

Children and Young Persons (Care and Protection) Act 1998 s. 27

A

Mandatory Reporters If a police officer suspects on reasonable grounds that a child is, was or will be at risk of significant harm, the police officer is required to report it

178
Q

Crimes act s.188 ______________________________________________

A

Crimes act s.188 Receiving stolen property where stealing a serious indictable offence

179
Q

What are the 3 different levels of ‘belonging to another’?

  1. C_______________
  2. O_______________
  3. P_______________
A

What are the 3 different levels of belonging to another?

  1. Control
  2. Ownership
  3. Possession
180
Q

LEPRA 2002, S.87 – DV search and seizure powers “87 LOOK FOR THE WEAPON”

A
  • Police who enter a dwelling under this act may search, seize and detain, so long as the article/implement is located within the dwelling and currently was previously or may be used to commit a DV offence:
  • Dangerous article
  • Dangerous implement
181
Q

What test do we apply when establishing the element of ‘fraudulently’? What do we need to prove?________________________________________________________.
That at the time of taking and carrying away, the accused had ____________ ___________.

A

What test do we apply when establishing the element of ‘fraudulently’?
Objective Test - Reasonable third person. That at the time of taking and carrying away, the accused had dishonest intent.

182
Q

What is Domestic Violence Safety Assessment Tool (DVSAT) and who does it apply to?

A
  • Identifies the threat level of future harm to DV victims
  • 2 types of classifications for DV offence:
  • Intimate & Non-intimate
  • Applies to both male and female victims aged 16 years and over
  • Part A & B: Intimate relationships
  • Part B: Non-intimate relationships
183
Q

Crimes Act s.156 ________________________________

A

Crimes Act s.156 Larceny by clerks or servants

184
Q

What is the definition of wound?

A

Wounding requires the breaking of the continuity of the skin - dermis (interior layer) and epidermis (outer layer).

Source: (R v Smith 1837)

It need not involve the use of a weapon.

Source: R v Shepherd (2003)

Defined at common law, wounding involves the breaking of the skin (dermis). It is an injury in which the skin, tissue, or an organ is broken by some external force such as a blow or incision or deep laceration, with damage to the underlying tissue.

185
Q

Stalking and Intimidation Elements Crimes (Domestic and Personal Violence) Act 2007 s. 13

A
  • The accused -Stalks or intimidates the victim
  • With intent to cause fear of physical or mental harm
186
Q

Crimes Act s.___ Larceny by bailee

A

Crimes Act s.125 Larceny by bailee

187
Q

What is the section and act for Obscene exposure?

A

Summary Offences Act s.5

  • The accused
  • Shall not, in or within view from a public place or a school,
  • Wilfully and obscenely expose his or her person
188
Q

What are the circumstances of special aggravation of break offences?
When the alleged offender:
• Intentionally ________ or intentionally inflicts _________ on any person.
• Inflicts _______ on any person and is reckless as to causing ________ to that or any
other person.
• Is armed with a ____________ weapon.

A

What are the circumstances of special aggravation of break offences?
when the alleged offender:
• Intentionally wounds or intentionally inflicts GBH on any person
• Inflicts GBH on any person and is reckless as to causing ABH to that or any other
person
• Armed with a dangerous weapon

189
Q

What are the advantages of Domestic Violence Evidence in Chief

A
  • Reduced trauma for complainants in recounting evidence in front of offenders
  • Reduced difficulty in remembering details of incidents at a later court date as the recording will be played before any additional oral evidence is given by the complainant
  • An increased ability of complainants to give an accurate account of what happened
  • Brings the demeanour and experience of the complainant into the court room
  • Reduce or eliminate intimidation on the complainant to change their evidence
  • Increased rates of early pleas of guilty
  • Time savings for victims in giving statements
190
Q

Ben works for Liquorland. A truck arrives in the dock area and proceeds to unload cartons of Crown Lager. Ben assists by placing the cartons into the cold room. The job is nearly done and one carton remains, which Ben picks up and places into the boot of his car. After completing his shift Ben goes home and consumes the carton with friends that evening.

What are the elements of the offence?

  1. Ben
  2. Clerk of _________
  3. _____________________________________________________
  4. _____________________________________________________
A

What are the elements of the offence?

  1. Ben
  2. Clerk of Liquorland
  3. Receives cartons of Crown Lager on behalf of employer
  4. Fraudulently embezzles the Crown Lager
191
Q

What does it mean to have a ‘legal claim of right’?

What kind of test do we apply to determine this?

A

The honest belief that the person has the legal right to take the goods, NOT a moral right.
Subjective test - POV of the accused/victim

192
Q

Fill in the blanks (Definitions of ABH)

  • Includes any ____ or _____ calculated to interfere with the ______ or _______ of the victim
  • Such ____ need not be _________ but must be more than merely _______ and ______ e.g. scratches & bruises
A
  • Includes any hurt or injury calculated to interfere with the health or comfort of the victim
  • •Such hurt need not be permanent but must be more than merely transient and trifling e.g. scratches & bruises
193
Q

A dry cleaner receives a coat for cleaning by a customer. The dry cleaner decides to wear the coat to a function prior to cleaning it and it being picked up. What offence has been committed?

A

Crimes act 125 Larceny by Bailee

194
Q

What are the elements of stealing property in a dwelling house?

Crimes act s.___

  1. _____________________
  2. S__________
  3. P_____________
  4. In a ____________ and ___________ out of such dwelling-house.
A

What are the elements of stealing property in a dwelling house?

Crimes act s.148

  1. The accused
  2. Steals
  3. Property
  4. In a dwelling-house and carries it out of such dwelling-house
195
Q

Crimes Act s.157 ________________________________

A

Crimes Act s.157 Embezzlement by clerks or servants

196
Q

What’s the difference between Stealing motor vehicle, vessel or trailer vs Taking a conveyance without consent of owner?

Stealing motor vehicle, vessel or trailer you MUST prove __________________________.
Taking a conveyance without consent of owner you do not need to prove
____________________________________________________________________________.

A

Stealing motor vehicle, vessel or trailer – must prove all elements of larceny including:
• Intention to permanently deprive or the person doesn’t get it back in its original condition
Taking a conveyance without consent of owner - do not need to prove:
• Intention to permanently deprive or any elements of larceny.

197
Q

LEPRA 2002, S.10- Power to enter to arrest or detain someone or execute warrant what are the powered

A
  • A police officer (PO) may enter and stay for a reasonable time on premises to arrest OR detain OR arrest a person named in a warrant
  • PO may enter a dwelling to arrest OR detain a person ONLY if the PO officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling
  • PO may search the premises for the person
198
Q

Ben works for Liquorland. A truck arrives in the dock area and proceeds to unload cartons of Crown Lager. Ben assists by placing the cartons into the cold room. The job is nearly done and one carton remains, which Ben picks up and places into the boot of his car. After completing his shift Ben goes home and consumes the carton with friends that evening. What is the offence?

A

Crimes act 157 Embezzlement by Clerk or Servant

199
Q

What are the elements of Crimes Act 1900 (NSW), Section 192E, Fraud?

A

Elements

  • Accused
  • Uses a deception
  • Dishonestly obtains property belonging to another or obtains any financial advantage or causes any financial disadvantage.
200
Q

CDPVA 2007, S.90A
Period for which person may be directed to remain or be detained

A
  • A Police Officer may direct the person to remain or detain them for a reasonable amount of time
  • To have the APVO or ADVO created, varied or served on the defendant
  • Not exceeding 2 hours or whichever is lesser (excludes travel time to police station)
201
Q

Aggravated sexual touching Act & Section and Elements of the offence

A

Section 61KD, Crimes Act

  • The accused
  • Sexually touches the victim
  • Without the consent of the alleged victim
  • Knowing the victim does not consent
  • In circumstances of aggravation
202
Q

Crimes (Domestic and Personal Violence) Act 2007 s. 27

A

Obligation to apply for provisional order in certain circumstances

Police officer must apply if there is reasonable suspicion that one of the following is occurring, has occurred or is imminent:

  • Domestic Violence offence
  • Stalking or intimidation
  • Child abuse offence
203
Q

What table does a Serious Injury (GBH) or more is classified?

A

Table 1

204
Q

Act & Section for assault occasioning actual bodily harm + elements of the offence

A

Section 59, Crimes Act – Imprisonment for 5 years (Serious indictable offence)

  • The accused
  • Assaulted
  • Intentionally or recklessly
  • Without consent
  • Without lawful excuse
  • A person
  • Occasioning actual bodily harm
205
Q

Crimes Act 1900 (NSW), Section 61 Common assault prosecuted by indictment

What are the elements?

A
  1. The accused
  2. Assaulted
  3. A person

Two years imprisonment – Indictable Offence

206
Q

A car is broken into by three teenagers, car driven around for 3 hours and then burnt out. What is the offence? and the elements of the offence?

  1. _____________________________________________________
  2. _____________________________________________________
    • elements of larceny
  3. _____________________________________________________
A

Crimes act 154F Stealing motor vehicle

  1. Accused
  2. Steals
    • elements of larceny
  3. Motor vehicle, vessel or trailer.
207
Q

Domestic violence is when one person attempts physical or psychological domination and control of the other within a domestic relationship by one or more of the following:

A
  • Physical violence
  • Emotional and psychological abuse
  • Economic deprivation
  • Sexual violence
  • Social abuse
  • Threats and intimidation
  • Coercive control
208
Q

Crimes Act s.192E _____

A

Crimes Act s.192E Fraud

209
Q

Where can the meaning of sexual touching be found in legislation, and what does the term include?

A

Section 61HB, Crimes Act

  • Sexual touching means a person touching another person-
  • With any part of the body or with anything else, or
  • Through anything, including anything worn by the person doing the touching or by the person being touched, in circumstances where a reasonable person would consider the touching to be sexual
210
Q

What the are two ways in which a Section 112 offence can be committed?

A

Breaking into and entering premises

Crimes Act 1900 (NSW), Section 112(1)(a)

  • Accused
  • Breaks
  • Enters
  • Dwelling-house or other building
  • Commits a serious indictable offence

Being within premises and then breaking out

Crimes Act 1900 (NSW), Section 112(1)(b)

  • Accused
  • Enters
  • Dwelling-house or other building
  • Commits a serious indictable offence
  • Breaks out

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