Summary Offences Flashcards
What legislation applies to summary Offences?
Criminal procedure act definition of a summary Offence as one that is only triable summarily and carries less then 2 years imprisonment.
Most summary Offences are legislated in the summary Offences act 1988 (NSW)
Define public place
Section 3 summary Offences act 1988(NSW) a public place is
A) a public place (whether or not covered by water) or
B) a part of premises that is open to or used by the public whether or not on payment of money or other consideration whether or not the place is ordinarily so open or used and whether or not the public to whom it is open consists of only a limited class of persons but does not include a school.
Define public place
Section 3 summary Offences act 1988(NSW) a public place is
A) a public place (whether or not covered by water) or
B) a part of premises that is open to or used by the public whether or not on payment of money or other consideration whether or not the place is ordinarily so open or used and whether or not the public to whom it is open consists of only a limited class of persons but does not include a school.
Define vehicle
Section 3 Summary Offences act
Vehicle includes:
A) motor vehicle (whether or not still capable of being driven) and
B) the 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
Is a person in a vehicle in a public place?
If the vehicle is in a public place yes. Section 3(2) summary Offences act “for the purposes of this act A person who is in a vehicle in any place shall be taken to be in that place.”
Is an object in a vehicle in a public place?
No
Define wilful:
R v Senior held that “wilfully means that the act is done deliberately and intentionally not by accident or inadvertent but so that the mind of the person who does the act goes with it”
Must intend a particular outcome.
Fitzgerald v Montaya: held that the act complained of must not have been done deliberately but with knowledge and intention that it will have the effect of preventing the free passage of someone else without any lawful excuse for doing all.
What are two cases for wilful:
R v Senior
Fitzgerald v Montoya
What is a reasonable excuse?
A reasonable excuse is not a lawful excuse
Minkley v Monroe “The concept of reasonable excuse has not been introcontrovertible 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
Connors v Craigie “ reasonably excuse involves subjective and objective considerations but must be related to the immediate prevailing circumstances in which the words 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.
What is a reasonable excuse?
A reasonable excuse is not a lawful excuse
Minkley v Monroe “The concept of reasonable excuse has not been introcontrovertible 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
What is Connors v craigie authority for?
A reasonable excuse. It 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.
What two cases are reasonable excuse?
Minkley v Monroe
Connors v Craigie
What is a lawful purpose?
It is a statutory defence. It is prescribed by section 12 summary offences act for any offence in part 2 of the act.
The defendant needs to satisfy the court that the act complained of was done with lawful authority.
Taikato v the queen “ high court authority a lawful purpose should be read as a purpose that is authorised as opposed to not forbidden by law.
What is section 12 summary offences act?
Statutory defence of lawful purpose
What is Taikato v the Queen authority for
a lawful purpose should be read as a purpose that is authorised as opposed to not forbidden by law.
What is offensive?
Worcester v Smith “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 is offensive conduct?
It is an offence under section 4 summary Offences act 1988 (NSW)
Language alone does not constitute offensive conduct. In a matter under section 4(1) the magistrate must ask whether the behaviour in question is such, that would, on an objective test give offence to a reasonable person.
Who is a reasonable person?
Ball v McIntyre “The reasonable person contemplated by the rest is envisaged as being reasonably tolerant and understanding and reasonably contemporary in his reactions.”
Do we need to prove intent for an offence of offensive language or conduct?
Jeff v Graham prosecution must at least prove beyond reasonable doubt that the conduct engaged in was voluntary. Infer it’s calculated through actions
What is the offence of offensive language?
S4A summary Offences act. A person must not use offensive language in or near or within hearing from a public place or a school. (Max 6 penalty units)
What should be considered to determine is something is offensive?
Rather then just relying on a specific word being offensive in itself it is more useful to look at the way in which the word was used:
- was it calculated to offend or 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?
What is section 5 or the summary Offences act?
Offence of wilful and obscene exposure in or within view of a public place or school
Define obscenely
Cullen v Mecklenburg: something can amount to an obsenety if it violates those contemporary standards of decency which in the opinion of the court prevailed at the time of change.
Have the generally accepted bounds of decency have been transgressed? Gowe v Graham
What are the elements of wilful and obscene exposure?
Accused
Wilfully and obscenely
Exposed his or her person
In or within view of a public place or school
What are the elements of wilful and obscene exposure?
Accused
Wilfully and obscenely
Exposed his or her person
In or within view of a public place or school
Define person for purposes of section 5 summary offences act
“Penis or genetalia” r v Eyles
How do you prove each element of wilful and obscene exposure offence
Accused = identity Wilful= r v Senior Obscenely = Cullen v Mecklenburg Exposed his or her person = r v Eyles In a public place or school = definition section 3
What is section 4 of the summary offences act?
Offensive conduct in public place or school
What is section 4A summary Offences act
Offensive language in public place or school
What is section 5 of the summary Offences act
Wilful and obscene exposure
What is section 6A summary Offences act
Unauthorised entry of vehicle or boat
What is section 7 summary offences act
Damaging fountains
What is section 8 summary offences act
Damaging or desecrating protected places
What is section 8a summary offences act
Climbing or jumping from buildings and other structures
What is section 11 summary offences act
Possession of liquor by minors
What is section 11A summary offences act
Violent disorder
What is section 11B summary offences act
Custody of offensive implement in or near or within view of public place or school
Section 11c summary offences act
Custody of a knife in or near or within view of a public place or school
Section 11E summary offences act
Wielding of a knife in a public place or school
What constitutes violent disorder?
Section 11A summary offences act: if 3 or more person’s 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 person’s using or threatening unlawful violence is guilty of an offence max penalty units 10 and 6 months imprisonment.
What is custody of a offensive implement?
Section 11B summary offences act: 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 school
max penalty units 50 2 years imprisonment
What is an offensive implement?
Section 11B(3) Summary Offences act A) anything made or adapted for use for causing injury to a person or B) anything intended by a person having custody of the thing to be used to injure or menace a person or damage property.
What does custody mean?
Must have immediate defacto control or charge of the article in question.
Constructive possession is not sufficient.
The principles of he kaw teh case still apply but to a lower extent, the test for possession is higher.
How do you prove custody?
Ask questions Fingerprints admissions Locations Personal items in proximity
What are the Defences for having custody of a knife in a public place?
11c(2) Summary Offences act
I) lawful pursuit of the person’s occupation
Ii) preparation or consumption of food or drink
Iii) participation in lawful entertainment recreation or sport
Iv) Exhibition of knives for retail or other trade purposes
V) Organised exhibition by knife collectors
Vi)Wearing of an official uniform
Vii) Genuine religious purposes or
2B
The custody is reasonably necessary in all the circumstances during travel to and from or incidental to any of these activities
C) where the custody is prescribed by the regulation.
Is protection a reasonable excuse for carrying a knife?
No. Section 11C(3) summary Offence act not reasonable excuse to have knife for self defence or defence of another person.
What is the statute of limitations?
Section 32 summary offences act. Standard 6 months statute of limitations apply to commence proceedings in accordance with section 179 criminal procedure act
What act can you find offences specific to places of detention
Crimes (administration of sentence) act 1999
Does a person have to be offended?
Spence v Loguch: it is not necessary to show that in fact there were such reasonable person’s who were in fact offended just that such behaviour occurred in a place sudden 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 working.
Define obscenely
Cullen v Meckelberg : something can amount to an obscenity if it violates the contemporary standards of decency.
Gowe v Graham: generally accepted bounds of decency have been transgressed
What two cases relate to obscenely
Cullen v Meckelberg
Gowe v Graham
