Summary Offences

Question 1

What is a public place as defined in Section 3 of the Summary Offences Act?

Answer 1

“Public Place” means:
(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

Learning hint:
Public place means:
* place (whether or not covered by water);
* part of a premises
* open to or 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 to 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

Question 2

What is the definition of “Vehicle” in the Summary Offences Act and where would I find that definition?

Answer 2

Section 3 of the Summary Offences Act describes a “Vehicle” as:

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.

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.

Question 3

Section 3(2) of the Summary Offences Act provides what?

Answer 3

For the purposes of this Act, a person who is in a vehicle in any place shall be taken to be in that place.

Question 4

Who are the two authorities in relation to “wilful”?

Answer 4

1. R v Senior; and

2. Fitzgerald v Montoya.

Question 5

R v Senior found what in relation to the meaning of “WILFUL”?

Answer 5

R V Senior held that:

“Wilfully 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.

Question 6

What did Fitzgerald v Montoya find in relation to “Wilful”?

Answer 6

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”.

Question 7

There are two authorities in relation to “reasonable excuse”. Cite authorities.

Answer 7

1. Minkley v Monroe [1986]; and

2. Connors v Craigie.

Question 8

What is a “reasonable excuse”? Cite authority.

Answer 8

A reasonable excuse is NOT a lawful excuse.

Minkley v Monroe [1986] found:

The concept of “Reasonable excuse” has not been incontrovertibly defined because each excuse put forward in answer to a charge is unique to the facts surrounding the case. It’s proper evaluation requires both a subjective and an objective examination of the circumstances”.

Question 9

What did Connors v Craigie find in relation to “Reasonable Excuse”?

Answer 9

“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 defence or provocation the response of the Accused must be related in some way to the actions of the victim and the particular circumstances”.

Question 10

What did Taikato v The Queen find in relation to “Lawful purpose”.

Answer 10

Is a High Court decision giving a very useful definition of “lawful purpose”.

In this matter if was held that:
“Lawful purpose” should be read as a purpose that is authorised, as opposed to not forbidden, by law”. (For self defence).

Question 11

What is the definition of “lawful purpose”? Cite authority.

Answer 11

Taikato vs the Queen stated:

“Lawful purpose” should be read as a purpose that is authorised, as opposed to not forbidden by law.

Question 12

What did Worcester and Smith [1951] find in relation to “Offensive”.

Answer 12

Worcester and Smith [1951] found that:

“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”.

Question 13

What is the offence of Offensive Conduct and where would I find it?

Answer 13

Section 4 of the Summary Offences Act.

Offensive conduct
(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) A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language.
(3) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.

Question 15

What does behaviour and language have to have to make it offensive? Cite authority.

Answer 15

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”. Worcester v Smith [1951]

Question 16

Does language alone constitute “offensive conduct”?

Answer 16

No. Language alone does not constitute offensive conduct.

Question 18

What was found in the case of Thommery v Humphries in relation to the word “fucking”?

Answer 18

The word “fucking” is, as a matter of law, prima facie offensive.

Question 19

Under what Section of the Summary Offences Act would I find the offence of Offensive Language?

Answer 19

Section 4A

(1) A person must not use offensive language in or near, or within hearing from, a public place or a school.
Maximum penalty: 6 penalty units.

(2) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.

Question 20

What is the test (in which way must the Court look at) offences?

Answer 20

From two perspectives. Subjective and Objective.

Subjective is from the point of view of the Accused.
Objective is from the point of view of a reasonable person.

Question 20

Section 4, Subsection (3) provides a defence for Offensive Conduct. What is that defence?

Answer 20

It is open to the defendant to satisfy the Court (on the balance of probabilities) that he/she had a reasonable excuse for the conduct.

Remember that a “reasonable excuse” is not the same as a lawful excuse and its proper evaluation requires both a subjective and objective examination of the circumstances.

Question 21

Under what Section of the Summary Offences Act would I find the offence of Obscene Exposure?

Answer 21

Section 5.

A person shall not, in or within view from a public place or a school, wilfully and obscenely expose his or her person.
Maximum penalty: 10 penalty units or imprisonment for six months.

Question 22

Is it necessary to prove in a particular case that a reasonable person was in fact present at the time the offensive behaviour occurred?

Answer 22

No. It is open to the Court to reasonably find that some such reasonable person might be expected to come within the area effected by the behaviour in question.

Question 23

What did Ball v McIntyre find in relation to “reasonable person”?

Answer 23

Ball v McIntryre [1966] found:

The “reasonable person” contemplated by the test is envisaged as being “reasonably tolerant and understanding and reasonably contemporary in his reactions”.

Question 24

Do we need to establish intent? Cite caselaw

Answer 24

In Jeffs v Graham (1987), Yeldham J found that “.. the Prosecution must at least prove beyond a reasonable doubt that the conduct engaged in was voluntary”.

Question 25

What is regarded as offensive? It changes as Society changes.

Answer 25

The following cases deal with this:

Police v Anderson - Sgt Anderson said something to a probationary Constable.

Police v Butler [2003] - swearing at North Sydney Railway Station -

Question 26

Section 6A of the Summary Offences Act relates to?

Answer 26

Unauthorised Entry of Vehicle or Boat.

6A Unauthorised entry of vehicle or boat
A person must not, without reasonable excuse (proof of which lies on the person), enter any vehicle or boat in a public place without the consent of the owner or lawful occupier of the vehicle or boat.

Question 26

Under what Section of the Summary Offences Act would I find the offence of Violent Disorder?

Answer 26

Section 11A.

11A Violent disorder
(1) If 3 or more persons who are present together use or threaten unlawful violence and the conduct of them (taken together) is such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety, each of the persons using or threatening unlawful violence is guilty of an offence.
Maximum penalty: 10 penalty units or imprisonment for 6 months.

• For the offence of Violent Disorder, you can charge only 1 person, however 3 or more must be present. Conduct must be taken together.

Question 26

In what Section of the Summary Offences Act would I find “Custody of an offensive implement” and what are the proofs?

Answer 26

Section 11B

(1) A person shall not, without reasonable excuse (proof of which lies on the person), have in his or her custody an offensive implement in a public place or a school.
(2) If a person is convicted of an offence under this section, the court may, in addition to any penalty it may impose, make an order that the offensive implement be forfeited to the Crown, and the implement is forfeited accordingly

(3) .“offensive implement” means:
(a) Anything made or adapted for use for causing injury to a person; or

(b) anything intended, by the person, having custody of the thing, to be used to injure or menace a person or damage property.

Question 27

What is an Offensive Implement?

Answer 27

Section 11B(3) provides:

“offensive implement” means:
(a) Anything made or adapted for use for causing injury to a person; or

(b) anything intended, by the person, having custody of the thing, to be used to injure or menace a person or damage property.

Question 28

Under what Section of the Summary Offences Act would you find the offence of Custody of a Knife in public place or school?

Answer 28

Section 11C.

(1) A person must not, without reasonable excuse (proof of which lies on the person), have in his or her custody a knife in a public place or a school.

Maximum penalty: 20 penalty units or imprisonment for 2 years, or both.

Question 29

In relation to having “custody” of an offensive implement under the Summary Offences Act, what caselaw relates?

Answer 29

The principles of He Kaw Teh’s case (regarding drugs) are reasonably applicable to custody of offensive implement charges - though the test for “possession” is higher than when we are looking at the question of custody.

• must have immediate de-facto control or charge of the article in question
• constructive possession is not sufficient.

Question 29

Under what Section of the Summary Offences Act would I find the offence of Wielding a Knife and what are the elements of that offence?

Answer 29

Section 11E.

The elements of the offence are:

1. The accused
2. Uses a knife or carries a knife in view;
3. Of a public place or school;
4. In a manner likely to cause a person present to fear for their safety.

Question 30

What does Section 31 of the Summary Offences Act provide?

Answer 30

Section 31 provides for Evidence as to Road or Road Related Area etc.

In proceedings for an offence under this Act, evidence that a certain place appeared at the time of the alleged offence to be a road or road related area or public place, or a dwelling, school, church or hospital, is prima facie evidence of that fact.

It would then be open to the defence to provide proof (on the balance of probabilities) to the contrary.

Question 31

What things are taken into account when relying on a specific word being “offensive” in relation to Offensive Language in the Summary Offences Act?

Answer 31

• Was it calculated to offend/annoy
• In what manner was it spoken
• What words or actions accompanied the use of the word?
• What were the prevailing circumstances?
• Who was present or likely to be present?
• Was anyone actually offended or were people likely to be offended?

Question 32

Can language alone make out offensive conduct?

Answer 32

No.

Question 33

Section 4 “Offensive Conduct” - what are the elements of the offence?

Answer 33

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 school.

Question 34

What does Section 12 of the Act relate to?

Answer 34

Lawful purpose/lawful excuse

Question 35

Can “Custody” of a thing (offensive implement/knife) etc be backdated (did have custody) in the Summary Offences Act?

Answer 35

No. Custody cannot be backdated, however possession can.

Question 36

Offences regarding places of Detention

Answer 36

Now under the Crimes, Administration and Sentencing Act.

Section 253C - Trafficking
Section 253D - Introduction or Supply of Syringes
Section 253E - Unlawful Possession of Offensive Weapon or Instrument
Section 253DA - Inmate in Possession of a Mobile phone
Section 253G - Miscellaneous Offences
Section 253I - Power of Correctional Officers
Section 253J - Conduct of Searches
Section 253N - Failure to Comply with Search
Section 253P - Admissibility of Search Evidence
Section 253R - Time within which Proceedings may be taken (6 months) for offences under Part 13A

Question 37

What was the advice from the ODPP in August 2012 in relation to Custody of Scissors and can you charge with Custody of a knife when a person has scissors in his/her possession?

Answer 37

If operational police have proceeded with this offence, where the knife is said to be a pair of scissors, examine if the accused person had custody of the scissors with an intention that they be used to injure or menace a person or damage property.

If this is the case, the more appropriate offence to proceed with is “Custody of an Offensive Implement” under Section 11B. Otherwise the charge will need to be withdrawn. A knife is not scissors.

Question 38

What does Section 32 of the Summary Offences Act provide?

Answer 38

Section 32 - Proceedings for Offences (offences to be dealt with summarily in the Local Court).

Summary offences are subject to a 6 month statute of limitations as per Section 179 of the Criminal Procedure Act.

Question 39

In relation to having custody of a knife in a public place or school, what are the reasonable excuses for possession and under what Section of the Act would I find those reasonable exuses?

Answer 39

Section 11C(2)

(2) Without limitation, it is a reasonable excuse for the purposes of this section for a person to have custody of a knife, if:
(a) the custody is reasonably necessary in all the circumstances for any of the following:

(i) the lawful pursuit of the person’s occupation, education or training,
(ii) the preparation or consumption of food or drink,
(iii) participation in a lawful entertainment, recreation or sport,
(iv) the exhibition of knives for retail or other trade purposes,
(v) an organised exhibition by knife collectors,
(vi) the wearing of an official uniform,
(vii) genuine religious purposes, or

(b) the custody is reasonably necessary in all the circumstances during travel to or from or incidental to an activity referred to in paragraph (a), or
(c) the custody is of a kind prescribed by the regulations.
(3) However, it is not a reasonable excuse for the purposes of this section for a person to have custody of a knife solely for the purpose of self defence or the defence of another person.

Question 40

The case of Cullen v Mecklenburg [1977] is the authority for “obscenely”, stating what?

Answer 40

Something can amount to an obscenity if it violates:

“… those contemporary standards of decency which in the opinion of the Court prevailed at the time of the charge”.

Question 41

The case of Crowe v Graham [1967-68] is an authority for “obscenely”, stating what?

Answer 41

… a prosecution will be successful if the Court finds that the “..generally accepted bounds of decency…” have been transgressed.