Summary Offences Flashcards
What is the main piece of legislation that governs summary offences?
The Summary Offences Act 1988
What is the definition of a public place and which section is it located under?
Section 3 of the Summary Offences Act
“Public Place”
(a) a place (whether or not covered by water); or
(b) a part of premises,
that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include a school.
What is a vehicle defined as under the Summary Offences Act 1988
“Vehicle”
Vehicle includes –
(a) a motor vehicle (whether or not still capable of being driven); and
(b) a train or other vehicle used on a railway or monorail; and
(c) a caravan or anything else constructed to be drawn by a vehicle or animal.
Can a person be in a public place if they are inside their vehicle? What section of the Summary Offences Act 1988 governs this?
Section 3 (2) provides - For the purposes of this Act, a person who is in a vehicle in any place shall be taken to be in that place
When discussing the concept of ‘Wilful’ what does it mean - cite case law?
R v Senior held that:
Willfully means that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it.
Fitzgerald v Montoya held that:
“…..the act complained of must not only have been done deliberately but with the knowledge and intention that it will have the effect of preventing the free passage of someone else without any lawful excuse for doing so.”
The words wilful and voluntaary can be thought of as synonyms.
Is a reasonable excuse a subjective test or an objective test?
- Minkley v Monroe [1986] 8PSR 3975
requires both a subjective and an objective examination of the circumstances - Connors v Craigie - Must be related to the prevailing circumstances - Reasonable excuse involves both subjective and objective considerations, but these considerations must be related to the immediate prevailing circumstances in which the offensive words, etc, are used, just as in self defense or provocation the response of the accused must be related in some way to the actions of the victim and the particular circumstances.
Conners v Craigie (1994) 76 A Crim R 502 it was qualified by saying that the offensive behaviour must have been an immediate reaction to something, not a reaction to something which happened long ago. . There was no connection between his excuse and the commission of the offence.
(Conners case involves an aboriginal guy who watches emotive videos in pub about Black Deaths in custody and white racism etc and had been drinking and then calls police outside fucking white cunts while they are talking to a random guy on street). Objective test essentially that it was directed at the white race not the people present at the scene. . There was no connection between his excuse and the
commission of the offence.
In Karpik v Zisis (1979) it was found that a reasonable excuse for profanity in a public place would be as part of ‘a reflex action…[such as following] a heavy implement falling on one’s foot’…
so in other words repeatedly abusing someone in a tirade would not meet this definition…
Can a mistake of fact or law be considered a reasonable excuse?
A bona-fide mistake of fact or law based on reasonable grounds may amount to a reasonable excuse for the purposes of the Act - Featherstone v Fraser
Is a reasonable excuse the same as a lawful excuse?
No
Can the defence of honest and reasonable mistake be used for strict liability offences?
No. Ostrowski v Palmer [2004] HCA 30 - the defence of honest and reasonable mistake of fact cannot be used on the basis that a commission of a strict liability offence was induced by the provision of misleading advice from a government agency.
This case involves a rock lobster fisherman fishing in a marine life protection zone despite the fact that the fisherman, Mr Jeffrey Palmer, had gone to the WA Fisheries Department to find out where he could fish, and had received and acted on misleading advice from the Department. All five justices who heard the case felt compelled to uphold the principle that ignorance of the law is no excuse.
What is the Lawful Purpose defence what section is it?
Section 12 of the Summary Offences Act 1988
It is a sufficient defence to a prosecution for an offence under any of the provisions of this Part (2) if the defendant satisfies the court that the act complained of in the information for the offence was done with lawful authority.
What case best outlines lawful purpose and how is it defined?
Taikato v The Queen
“Lawful purpose” should be read as a purpose that is authorised, as opposed to not forbidden, by law.”
TAIKATO was arrested for possessing a pressurized can of formaldehyde in her handbag whilst walking in a Sydney street at 12.15pm. Charged with possession of dangerous article under s545E of crimes act (now 93FB).
…this particular act mentions both reasonable excuse and lawful purpose as being a defence… but as the prosecution we would argue that it was neither reasonable nor lawful…
Lawful purpose can mean a purpose that:
is not forbidden or unlawful, or
is positively authorised
Usually, lawful purpose means ‘not forbidden’. But positive authorisation was mentioned in this case to say that it is an offence to carry such an article …no lawful purpose…because it is not positively authorised.
What is the definition of “Offensive”. Reference case law.
Worcester v Smith [1951] VLR 316 at 318:
For behaviour and language to be “offensive” it must,
“be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.”
What are the proofs of offensive conduct and what section does it fall under?
Section 4 of Summary Offences Act 1988
(1) A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school.
(2) …Not offensive manner if merely using offensive language
3) ..Defence of reasonable excuse available…
- Magistrate must ask whether behaviour in question is such that would, on an objective test, give offence to a reasonable person
For an offence of offensive behaviour what defines a reasonable person?
- Ball v McIntyre [1966] 9 FLR 237
A ‘reasonable person’ contemplated by the test is envisaged as being “reasonably tolerant and understanding and reasonably contemporary in his reactions.”
When determining whether behaviour or conduct was offensive, do we have to prove that there were reasonable persons who were offended?
No.
Spence v Loguch…
It is not necessary to show that in fact there were such reasonable persons who were in fact offended, just that “such behaviour occurred in a place where the presence of members of the public might reasonably have been anticipated and in circumstances where such behaviour could be seen by any member of the public who happened to be present if he were looking”
In summary - it happened where it could be anticipated members of public would be… and it happened where it could have been seen by someone, who could’ve been there, if they were looking.
