What is meant by the Term Terra nullius
it means land belonging to no-one
What was the first Australian Police Force created in 1789
The convict nightwatch - these were 12 of the best behaved convicts that were appointed as 'watchmen' which was proposed by convict John Harris.
Who was the first australian police officer to be murdered.
Joseph Luker in 1803.
What is common Law?
Common law is law applied commonly to the people. Unwritten Laws made by judges according to the doctrine of precedent.
What is statute Law?
Law made by Parliaments
List 4 ways that statute law can impact on common law
- 1. It can override common law
- 2. Supplements the common law by an Act of Parliament
- 3. Declares common law by an Act of Parliament (this means to make it statute law)
- 4. Remedies and defect on common lae (fixes outdated/incorrect common law)
What is deviance?
Deviance relates to people who do not want to conform to the norm, set by or accepted by the majority of the community
* all crime is deviance, but not all deviance is crime.
Explan what the Police Regulation Act 1862 involved
- * Creates the NSW police force
- *Amalgamates all police in the state into one single police force of 800 men
- *Introduces standard uniforms & equipment e.g. colt navy revolvers
what happened in 1889
Constable David Sutherland was shot to death in Sydney which led to all police officers being armed. (previously only country police officers & mounted police were armed)
what are the 4 arms that make up the criminal justice system
- 1. Law Makers - Parliament, makes the laws
- 2. Law enforcers - Police, prevent crime & bring offenders to justice
- 3. Adjudicators - Courts, interpret the law
- 4. Corrections - carry out sanctions/sentences set by the courts
Who are the law makers at Federal, state & local level?
Federal - Parliament upper house (senate) and the lower house (House of representatives) they deal with laws on a national level i.e immigration, customs, currency, marriage, defence, trade etc
State - Parliament Lower house (Legislative council) & upper house (legislative assembly) deal with state matters i.e. Traffic, health, education, police
Local - Council i.e. parking, parks, waste(sanitation), buildings etc
What is the separation of powers?
The legislature - Make the laws
The Executive - Enforce the laws
The Judiciary - Applies the law
** Each must function independantly to have a truly democratic society.
What are the aims of the law enforcers?
- -prevention of crime
- -detection of offenders
- -bringing offenders to justice
- -Protection of the public
- -Maintain public peace
- -Protect the rights of the individual
- - Educate the public in safety
What are the statement of values for the NSW Police Force?
List 5 other agencies that are involved in law enforcement other than police
- Waterways (Maritime)
- Local Council
what is the common law concept of original authority?
It is your authority to perform a certain act and noone can make you do anything that you dont feel justified in doing. It is not a delegated authority by an original authority.
what is the link between original authority, discretion & accountability?
Our original authority is using our discretion to do something and accountability is justifying our actions.
If we are acting in good faith and stuff up we are covered and have protection under statute law.
When using coercive force, what 8 points should be considered?
- 1. Mere police presence
- 2. Suggestion
- 3. Direction
- 4. Infringement notice//CIN
- 5. Field or Future CAN
- 6. Arrest, no force
- 7. Arrest physical force
- 8. Lethal force
What are the 10 stages a Bill goes through before it becomes an Act.
- 1. Initiation
- 2. Drafting
- 3. Cabinet consultation
- 4. 1st reading
- 5. 2nd reading
- 6. Committee stage
- 7. 3rd reading
- 8. Upper house
- 9. Governor General
- 10. Gazetting
What is the standard of proof and the burden of proof in criminal matters
Standard of proof - to be proved beyond reasonable doubt
Burdon of proof - on the prosecution
What is the standard of proof and the burden of proof in civil matters
Standard of Proof - Balance of probabilities
Burden of proof - is on the plaintiff
What does the term criminal liability mean?
Being held responsible for their actions/crimes unless there is a lack of mens rea i.e. children under the age of 10 or the mentally ill
How does the concept of strict liability affect a persons liability for certain offences?
Strict liability is the action of actus reus of the person (physical crime) with little or no guilt present. i.e no mens rea e.g. speeding
what is meant by actus reus & mens rea
Actus Reus : the physical act of the crime
Mens Rea: the guilty mind, the mental component of the crime
Temporal Co-incidence: where mens rea & actus reus must coincide in time - occur at the same time.
What does the prosecution need to prove in order to establish that a person is criminally liable for a particular act?
Need to prove the elements of the offence, beyond reasonable doubt with mens rea & actus reus.
What are the 4 types of sections contained in Acts of Parliament?
- 1. Offence creating section (contains the penalty
- ) e.g. s17 Lepra
- 2. Definition section (defines a word or phrase) e.g s20
- 3. Procedural section (telling courts what they need to do in a certain situation) e.g. s210
- 4. Powers section - Gives us the power to do things e.g S14(2)
What is a Table 1 and a Table 2 offence?
Indictable offences that can be tried summarily.
Table 1: Property >$5000 & injury >=GBH or more
Table 2: Property <$5000 & injury <GBH
What is an Indictable Offence?
This type of offence can go to trial and heard before a jury.
What Act are Table 1 & 2 offences found in?
The Criminal Procedures Act 1986
Who decides if an indictable matter goes to trial?
Table 1: The prosecution or the defence can elect for a matter to go to trial
Table 2: The prosecution only can elect for a matter to go to trial
Strictly Indictable offence: Must go to Trial
set out the steps for a matter to go to Court.
1. All matters go to local court first - if guilty plea then the person is sentenced.
- 2. Not guilty plea:
- a) Prosecutor elects to go to trial - it gets a committal hearing where the Magistrate decides if a prima facie case has been established (have we got a case to answer) if yes the matter goes to trial at either the district or supreme courts.
- b) No prima Facie case - the matter is dismissed
3. If a "not guilt" plea but the prosecutor wants a Table 2 offence (can only get max 2 years in gaol) and if the plea is not guilty it is heard at a local court by a magistrate and is either found guilty & sentenced or not guilty & dismissed.
what is the doctrine of Doli Incapax?
It is presumed at common law that a child under 10 has no mens rea to committ a crime and therefore cannot be charged with a crime. If however the child is between the ages of 10-14 they MAY have the mens rea but this must be argued by the prosecution before the matter can go to trial.
what are the primary aim & functions of adjudicators?
- * decide on bail, remand & mode of trial
- *To handle & Process cases efficiently
- * Examine the facts presented
- * Find the relevant law
- * Interpret the law when ambiguities arise
- * Make decisions and pass judgement
- * Impose appropriate punishments
- * Protect the rights of the accused
- * Protect rights victims
- * Hear appeals against conviction & sentence
What are the differences between and adversarial & an inquisitorial judicial system?
An adversarial system is the basic method of dispute resolution in australia. Seperate lawyers who combat each other in court presided over by a judge.
An inquisitorial system (inquiry) where facts are heard by one party.
Identify the adjudicators at Federal & State levels
State - Local court, childrens court, coroners court & licensing court the district & supreme courts.
Federal - Family Court of Australia, Federal Court of Australia, Full Court, High Court.
What is a committal hearing?
Before a matter goes to trial at a district/supreme court a local court magistrate will hold a preliminary hearing to decide whether or not there is enough evidence to send the accused person to a higher court.
What is meant by the term Prima Facie
this is where the magistrate determines if there is enough evidence for a case to go to trial. All proofs of the offence must have been established.
What is meant by the term Statute of Limitations?
Relates to the time period that police have to commence legal proceedings in regards to offences.
- Summary offence - 6 months
- Indictable Offence - no limit
** this time period starts from the date the offence is committed to the date that you serve the Court Attendance Notice on the person, not the date they have to appear in court.
What is meant by Evidence in Chief?
Each person presenting their evidence to the court for the first time.
what is meant by Cross Examination?
Testing of the witnesses evidence by the other side
what is meant by Re-examination?
Clarifying anything arising from cross examination
Outline the 4 sentencing theories
1. Protection - protect your community
2. Deterrence - Stop re-offending
3. Retribution - Revenge
4. Rehabilitation - Modify Behaviour
what is a viore dire?
a mini hearing held within a local court hearing on the admissibility of contested evidence.
** either the defence or the prosecution decide that a point of law to be argued - and the trial is suspended while both sides argue the admissibility of the evidence in the absence of the jury (if during a trial)
** the trial then resumes with any restrictions that may have beenimposed by the judge as a result of the voire dire.
what are the altenatives of arrest for a person 10-18yrs
Warning (a verbal communication recorded on COPS) perhaps a letter to the parents if necessary.
Caution - Involves a responsible adult being present. Also is recorded on COPS
what are the alternatives for arresting an adult?
- No Action
- On Spot Caution
- Infringement Notice
- Field CAN
- Future Servce CAN
Explain a warning & a caution under the Young Offenders Act 1997
- Warning - given for a summary offence that doesn't involve violence.
- -admissions dont need to be made
- -an unlimited number for cautions can be given
- Caution - A caution can be given for an offence where an offence can be given
- -the child must admit to the offence
- -the child consents to the caution
- -the child is entitled to be given a caution
- -summary offences & indictable offences that can be tried summarily
- -Max no of cautions is 3
- - the child has 10-21 days to return to the police station to be issued the caution which is issued by the SYLO (specialist Youth Liaison Officer).
- -It is recorded on COPS.
What are the 7 underlying principles of the Young Offenders Act 1997?
- 1. Criminal proceedings not to be undertaken unless alternatives have been considered.
- 2. The least restrictive form of sanctions apply
- 3. Entitled to be informed of their right to obtain legal advice & to have an opportunity to gain that legal advice
- 4. This Act is not be used to provide assistance of welfare
- 5. Parents need to be recognised in the process
- 6. The victim needs to be involved in the process.
- 7. Overrepresentation of ATSI children in the Criminal Justice System should be addressed by the use of youth justice conferences, cautions & warnings.
what are the benefits of conducting a Youth Justice Conference?
- *looks more at addressing & resolving the problem
- *Keeps children out of court
- *give the offender an opportunity to face the victim and apologise
who are the people that attend a Youth Conference?
- offender /Juvenile
- Courts Guardian
- ACLO/support person
NB the offender and the victim must agree on the decision.
what offences cant juveniles be dealt with under the Young Offenders Act 1997?
- Breaches of ACO & DV Offences
- Offences resulting in a persons death
- Armed robbery offences
- Sexual offences
- Trafficking & supply of drugs
- Traffic offences (if old enough to hold a learners permit)
s10 of the Young Offenders Act outlines certain people who need to be present when admissions are made by a child? Who are they?
- 1. A person responsible for the child
- 2. An adult with consent of the responsible adult
- 3. If the child is over 14 then they can choose an adult (police have a say if the person is appropriate)
- 4. An Australian legal practitioner chosen by the child.
What are a few of the 18 offences that can be dealt with by issueing a CIN?
- * Larceny <$300
- * goods in custody
- * offensive language
- * offensive behaviour
- * obstructing traffic
- * Unlawful entry of a vehicle or boat
- * Obtain Benefit by deception
what offences cant a FCAN be issued for?
- Strictly indictable & DV offfences
- Offences involving juveniles (except traffic)
- offenders significantly affected by drugs or alcohol
- offenders with outstanding warrants
- a serving police officer
what are the methods of service for a FSCAN?
- 1. handing it to the accused
- 2. handing it to another person at the acccused usual place of residence or business
- 3. if the accused is an inmate of a correctional centre - hand it to the OIC of that centre; or send it by post, fax or email to the OIC of that centre
- 4. Post
- 5. Fax
- 6. Email
NB 21 days before court day.
- If it is for an indictable offence:
- -In person
- -to another person over 16 at that address
- -to a correctional centre
Explain s201 Lepra
- I - inform the person the reason for the exercise of the power
- P - Provide name and place of duty of the police officer
- E - Evidence that the police officer is a police officer (unless in uniform)
what is s201(2C) Lepra
If a police officer makes a request or direction that a person is required to comply with by law;
- a) a warning that the person is required by law to comply with the request or direction and
- b) if the person does not comply with the request or direction after being given that warning, a warning that the failure to comply with the request or direction is an offence.
Define the terms, breach of peace, arrest & detection
BOP: common law offence - whenever harm is done or is likely to be done to a person, or in his presence to his property, or a person is in fear of being harmed through an assault, an affray, a riot, unlawful assembly or some other disturbance.
Arrest: The total restraint of the personal liberty of another
Detention: temp hold a person for a period of time before arrest for the purpose of identification or searching etc
Custody - duty of care to that person if they are under our arrest or detained .
what are the 5 ways for a constable to physically make an arrest
- 1. telling the person
- 2. touching the person
- 3. restraining
- 4. Locking up
- 5. confining
- (1) A police officer may, without a warrant, arrest a person if:
- (a) the person in in the act of committing an offence under any Act or statutory instrument, or
- (b) the person has just committed any such offence, or
- (c) the person has committed a SIO for which the person has not been tried.
(2) A police officer may, without a warrant, arrest a person if the police officer suspects on reasonable grounds tht the person has committed an offence under any Act or statutory instrument.
- (3) A police officer must NOT arrest a person for the purpose of taking proceedings for an offfence against the person unless the police officer suspects on reasonable grounds that it is necessary to arrest the person to achieve one or more of the following purposes:
- (a) to ensure the appearance of the person before a court in respect of the offence
- (b) to prevent a repitition or continuation of the offence or the commission of another offence,
- (c) to prevent the concealment, loss or destruction of evidence relating to the offence
- (d) to prevent harassment of, or interference with, a person who may be required to give evidence in proceedings in respect of the offence
- (e) to prevent the fabication of evidence in respect of the offence
- (f) to preserve the safety or welfare of the person
(4) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.
Power of other persons to arrest without warrant
(1) A person (other than a police officer) may, without a warrant, arrest a person if:
- (a) the person is in the act of committing an offence under any Act
- (b) the person has just committed any such act
- (c) the person has committed a SIO for which the person has not been tried
(2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, any any property found on the person, before an authorised officer to be dealt with according to the law.
Power to arrest with a warrant
- (1) may arrest or deal with the person named in the warrant in accordance with the warrant
- (2) whether or not the warrant is in his/her possession
Power to arrest persons who are unlawfully at large
- (1) A police officer may, with or without a warrant, arrest a person if the police officer suspects on reasonable grounds that the person is a person who is unlawfully at large.
- (2) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law
- (3) The athorised officer may, by warrant, commit the person to a correctional centre, to be kept in custody under the same authority, and subject to the same conditions and with the benefit of the same privileges and entitlements, as would have applied to the person if the person had not been unlawfully at large
- (4) In this section, a reference to a person unlawfully at large is a reference to a person who is at large (otherwise than because of escaping from lawful custody) at a time when the person is required by law to be in custody in a correctional centre.
Power to arrest for interstate offences
- (1) applies to an interstate offence:
- (a) a state/territory other than NSW
- (b) that if it occurred in NSW would constitute an indictable offence or an offence punishable by imprisonment for 2 years or more
- (2) at any time of day/night, arrest without warrant if suspects on reasonable grounds that the person has committed an interstate offence
- (3) A Court:
- (a) may discharge the person, or
- (b) may:
- i) commit the person to custody
- ii) grant bail
- (4) A person has the same rights as if they had committed the same offence in NSW
- (5) If the person is in custody & a warrant presented for execution, the person must be delivered under the terms of the warrant to the custody of the person executing it
- (6) If a warrant executed before bail conditions have been undertaken then the conditions of the warrant apply
- (7)If a warrant is not executed within 7 days of the persons arrest the must be released from custody/bail conditions.
Recite the CAUTION
I am going to ask you some questions about this matter. You do not have to say or do anything if you do not want to. Do you understand that?
We will record that you say or do and we can use this recording in Court. Do you understand that?
when a person should be cautioned. Refer s139 Evidence Act
- (5)(a) sufficient evidence to establish that the person has committed an offence that is to be the subject of the questioning; or
- (b) the person is not allowed to leave if the person wished to do so; or
- (c) the peron believes on reasonable grounds that he/she would not be allowed to leave if he/she wished to.
Explain s50 of the Bail Act
s50 - Arrest for absconding or breaching condition
- (1) where a police officer believes on reasonable grounds that a person who has been released on bail has, while at liberty on bail, about to fail to comply with, the persons bail undertaking or an agreement entered into by the person pursuant to a bail condition
- (a) may arrest without warrant
- (b) an authorised justice may:
- i) issue a warrant to apprehend
- ii) issue a summons for the persons appearance at court
Explain s105 Lepra
Arrest may be discontinued
- (1) A police officer may discontinue an arrest at any time
- (2) a police officer may discontinue in the following circumstances;
- (a) if the arrested person is no longer a suspect or the reason for arrest no longer exists
- (b) it is more appropriate to deal with this matter in another manner e.d issue a warning or caution or penalty notice or CAN or in the case of a child under the Young Offenders Act 1997.
to whom does the Young Offenders Act 1997 apply?
young people age 10 or above and under 18.
who is classed as a child under the Children & Young persons (Care & protection) Act 1998?
A person who is under the age of 16.
who is classed as a young person under the Children & Young persons (Care & protection) Act 1998?
age 16 & 17
What is meant by 'immediate risk' under the C.YPC.PA 1998?
Otherwise known as IROSH - immediate risk of serious harm.
If we have grave & critical concerns for the safety of a C.YP then we have the power to remove that child
What is meant by the term 'risk of harm'
Otherwise known as ROH - risk of harm
This where the C.YP basic needs are not being met, medical care is not being met or they are at risk of physical sexual abuse, domestic violence or psychological harm.
What is section 43 of the CYPCPA 1998?
- Chap 5 - Childrens Court proceedings
- Part 1 - Emergency Protection & Assessment
- Div 1 - Emergency Removal
- S43 - Removal of children & young persons without warrant
Explain s43(1) of the C.YPC.PA 1998?
- 43(1) if the Director-General or a police officer is satisfied, on reasonable grounds:
- (a) that a child or young person is at immediate risk of serious harm, and
- (b) that the making of an AVO would not be sufficient to protect the C.YP from that risk
A Police officer may remove the C.YP from the place of risk in accordance with this section.
Explain s43(2) of the C.YPC.PA 1998?
- (2) if the DG (DOCS) or a Police officer suspects s aperson is a child and suspects on reasonable grounds:
- (a) that the person is in need of care & protection, and
- (b) that the person is not subject to the supervision or control of a responsible adult, and
- (c) that the person is living in or habitually frequesnting a public place
the DG or police may remove the person from any public place
Explain s43(3) of the C.YPC.PA 1998?
If DG or police suspects a person is a C.YP and suspects on reaonable grounds:
- (a) that the person is in need of care & protection
- (b) that the person:
- (i) is/has recently been on any premises where prostitution or acts of child prostitution take place or where persons are used for the production of child abuse material, or
- (ii) is/has recently been participating in an act of child prostitution in any place or is being or has recently been used for the production of child abuse material in any place,
the DG or police may remove the person from the premises or place or any such adjaccent place.
Explain s43(4) of the C.YPC.PA 1998?
- (4) For the purposes of this section, the DG or police may:
- (a) enter any premises or place in which they suspect the C.YP may be, and
- (b) enter the premises or place (and any adjacent place, if the DG or police suspects on reasonable grounds that the person, having just left the premises or place, is in the adjacent place), and
- (c) search for the person in the premises or place and in such adjacent place.
Explain s240 of C.YPC.P Act 1998. How does it impact on s43?
In exercising s43, s240 states:
- (1) A person in exercising a function under this act may use reasonable force
- (2) No compensation is payable for any damage done or loss incurred in the use of reasonable force under this Act.
In relation to search & seizure powers under lepra explain s21.
S21 - power to search persons and seize & detain things without a warrant
- (1) a police officer may, without a warrant, stop, search & detain a person and anything in the possession of or under the control of the person, if the police officer suspects on reasonable grounds that any of the following circumstances exists:
- (a) the person has in his or her possession or under his or her control anything stolen or otherwise unlawfully obtained
- (b) anything used or intended to be used in connection with the commission of a relevant offence
- (c) in a public place a dangerous article that is being or was used in connection with the commission of a relevant offence
- (d) A prohibited plant or drug
- (2) A police officer may seize & detain:
- (a) may believe is stolen or otherwise unlawfully obtained, and
- (b) all or part of a thing that the police officer suspects on reasonable grounds may provide evidence of the commission of a relevant offence, and
- (c) any dangerous article, and
- (d) any prohibited plant or drug
found as a result of a search under this section
Part 4 - Search & seizure powers without warrant
Div 1 - general personal search & seizure powers
s20 Lepra - relevant offences - describe
- The following offences are relevant offences for the purposes of this division:
- (a) indictable offences
- (b) an offence against s93FB of the Crimes Act 1900 (possession of dangerous articles other than firearms)
- (c) an offence against the Weapons Prohibition Act 1998, the Firearms Act 1996 or a regulation made under either of those Acts.
Explain "suspicion on reasonable grounds"
requires the existence of facts sufficient to induce suspicion in the mind of a reasonable person.
- a) involves less than a reasonable belief but more than a possibility.
- (b) Reasonable suspicion is not arbitrary. Some factual basis must be shown.
- (c) the information in the mind of the police officer stopping the person or vehicle or making the arrest at the time it was done. Regard must be had to the source of the information and its content, seen in the light of the whole of the surrounding circumstances.
Explain s26 Lepra
s26 - Power to search for knives & other dangerous implements
- (1) a police officer may request a person who is in a public place or a school submit to a frisk search if the police officer suspects on reasonable groundsthat the person has a dangerous implement (other than a laser pointer) in his custody
- (1A) A Laser pointer
- (2) If the person is in a school & is a student at the school, the police officer may also request the person to do either or both of the following:
- (a) submit to a search of any bag or other personal effect that is on or with the person
- (b) to submit to a search of the persons locker at the school and an examination of any bag or other personal effect that is inside the locker
- (3) the fact that a person is present in a location with a high incidence of violent crime may be taken into account whether there may be grounds to reasonably suspect that the person has a dangerous implement in his custody
- (4) In conducting a search of a person under this section a police officer must in the case of a search of a student in a school & if reasonably possible to do so have an adult present
- (5) the person must produce anything the officer has detected or seen on the person or has detected wth a metal detector.
Explain the powers to search under s36
s36 Power to search vehicles and seize things without warrant.
(1) A police officer may, without a warrant, stop, search & detain a vehicle if the police officer suspects on reasonable grounds that any of the following circumstances exist:
- (a) the vehicle contains, or a person in the vehicle has in his/her possession or under his control anything stolen or unlawfully obtained
- (b) the vehicle is being/was/may/used in connection with the commission of a relevant offence
- (c) the vehicle contains anything that may have been used in connection with the commission of a relevant offence
- (d) the vehicle contains is in a public place or school and contains a dangerous article in connection with the commission of a relevant offence
- (e) the vehicle contains or a person in the vehicle has in their possession a prohibited plant or drug
- (f) circumstances exist on or in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and that the eexercise of the powers may lessen the risk
- (2) A police officer may, without a warrant, stop search & detain a class of vehicles on a road, road related area or other public place or school if the police officer suspects on reaonable grounds that any of the following exists:
- (a) a vehicle or specified class of vehicles in connection with the commission of an indictable offence
- (b) circumstances exist on or in the vicinity of a public place or school that are likely to give rise to a serious risk to public safety and that the exercise of the powers may lessen that risk
- (3) A police officer may seize & detain:
- (a) A thing, stolen or unlawfully obtained
- (b) A thing that may provide evidence of the commission of a relevant offence and
- (c) any dangerous article
- (d) any prohibited plant or drug
Explain the powers to search under s36A
36A Power to stop vehicles
A police officer may stop a vehicle if the police officer suspects on reasonable grounds that the driver of, or passenger in or on, the vehicle is a person in respect of whom the police officer has grounds to exercise a power of arrest or detention or a search power under this Act or any other law.
Describe a frisk seach
- (a) a search of a person conducted by quickly running the hands over the person's out clothing or by passing an electronic metal detection device over or in close proximity to the person's outer clothing , and
- (b) an examination of anything worn or carried by the person that is conveniently and voluntarily removed by the person, including an examination conducted by passing an electronic Metal detection device over or in close proximity to that thing.
Describe an ordinary search
this means a search of a person or of articles in the possession of a person that may include:
- (a) requiring the person to remove only his/her overcoat, coat or jacket or similar article of clothing and any gloves, shoes, socks and hat and
- (b) an examination of those items
Describe a Strip search
means a search of a person or of articles in the possession of a person that may include:
- (a) requiring the person to remove all of his/her clothes, and
- (b) an examination of the persons body (not cavities) and of those clothes
Explain s 42 Lepra
- s42 Power to search vessels and aircraft and seize things without warrant
- (1) a police officer may, without warrant, stop, search & detain a vessel or aircraft if the police officer suspects on reasonable grounds that any of the following circumstances exists:
- (a) anything stolen or unlawfully obtained
- (b) is being used in connection of the commission of a relevant offence
- (c) contains anything used in connection of the commission of a relevant offence
- (d) dangerous article
- (2) may seize & detain:
- (a) stolen or unlawfully obtained
- (b) a thing in connection of the commission of a relevant offence
- (c) a dangeroous article
- (d) prohibited plant or drug
- found as a result of a search under this section
- (3) the following are relevant offences for the purposes of this section:
- (a) indictable offences
- (b) an offence under s93FB of the crimes act 1900
- (c) an offence against the weapons prohibition Act 1998, the firearms Act 1996
What is the definition of a dangerous article
- (a) firearm, a spare barrel or ammunition
- (b) prohibited weapon under the Weapons Prohibition Act 1998
- (c) a spear gun
- (d) an article or device, not being such a firearm, capable of discharging by any means:
- i) any irritant matter in liquid, powder, gas or chemical form or any dense smoke or
- ii) any substance capable of causing bodily harm or
- e) a fuse capable of use with an explosive or a detonator
- f) a detonator
Explain s9 of lepra and the powers of entry for Police.
- S9 Power to enter in emergencies
- (1) A police officer may enter premises if the police officer believes on reasonable grounds that:
- (a) A BOP is being or is likely to be committed & it is necessary to enter the premises immediately to end or prevent the bop, or
Explain s10 of Lepra
S10 Power to enter to arrest or detain someone or execute warrant
- (1) A police officer may enter & 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.
- (2) However, the police 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
- (3) A police officer who enters premises under this section may search the premises for the person
- (4) This section does not authorise a police officer to enter premises to detain a person under an Act if the police officer has not complied with any requirements imposed on the police officer under that Act for entry to premises for that purpose.
- (5) In this section:
- arrest of a person named in a warrant includes, apprehend, take into custody, detain and remove to another place for examination & treatment.
Outline details of powers police have under s70 Lepra
s70 Use of force etc to enter and search premises
- (1) a person authorised to enter premises pursuant to a warrant may use such force as is reasonably necessary for the purpose of entering the premises
- (1A) An executing officer authorised to enter premises pursuant to a warrant may, if it is reasaonably necessary to do so for the purpose of entering those premises, do any of the following:
- (a) disable any alarm, camera or surveillance device at the premises
- (b) pacify any guard dog at the premises
- (2) A person authorised to search premises pursuant to a warrant may, if it is reasonably necessary to do so, break open any receptacle in or on the premises for any purposes of that search.
- (3) may do anything for the purpose of preventing the loss or destruction of, or damage to, any thing connected with an offence that the executing officer believes on reasonable grounds to be at those premises, including the blocking of drains at or used in connection with the premises
- (4) render safe any dangerous article found in or on the premises
Outline details of police powers under s68 Lepra
s68 Announcement before entry
- (1) One of the persons executing a warrant must, before any of the persons executing the warrant enters the premises:
- (a) announce that the person is authorised by the warrant to enter the premises, and
- (b) give any person then in or on the premises an opportunity to allow entry into or onto the premises
(2) a person executing a warrant is not required to comply with this section if the warrant is a covert search warrant or if the person believes on reasonable grounds that immediate entry is required to ensure the safety of any person or to ensure that the effective execution of the warrant is not frustrated.
Outline the procedures for a proper announcement before police may enter premises.
- 1. Notice of presence - Knock
- 2. Notice of Authority - Police
- 3. Notice of purpose - Why
The give opportunity to reply/comply.
S133 of Lepra relates to the identification of people in custody. What power does it provide police with?
S133 - Power to take identification particulars
- (1) A police officer may take or cause to be taken all particulars that are necessary to identify a person who is in lawful custody for any offcence
- (2) if the person is over the age of 14, the particulars may include the persons photograph, finger-prints and palm-prints
- (3) This section does not authorise a police officer to take from any person, or to require any person to provide, any sample of the persons hair, blood, urine, saliva or other body tissue or body fluid
- (4) subsection 3 does not affect the police officers ability to take such samples under the provision of another Act or law.
Explain s134 of Lepra
- s134 Orders for the taking of identification particulars
- (1) A court that finds an offence to which the section applies to have been proven against a person may order the person to present himself in accordance with the terms of the order and submit to the taking, by the officer in charge of the police station specified in the order, of all particulars as are necessary to identify the person
- (2) may include photgraph, finger-prints, palm-prints
- (3) the order is to conatin a warning to the person that a failure or refusal to comply may result in the person's arrest
- (4)A person who does not present themselves, may be arrested without warrant for the taking of such particulars
- (5) applies to:
- (a) any indictable offence
- (b) Trafiice offence occassioning death, GBH or at dangerous speed
- (c) Other traffic sections
- (d) S5 of Prevention of cruelty to animals Act
- (e) an offence prescribed in the regulations
S136 Lepra relates to people under 14 years. What are the restrictsions placed on police for this section?
s136 Identification particulars of children under 14
- (1) In lawful custody of an offence
- (2) must not photograph, fingerprint or palmprint unless by court order under s134
- (3) Rank of sergeant or above may apply:
- (a) to the childrens court; or
- (b)if not possible to apply to the childrens court within 72 hrs after custody, to an authorised officer,
- for an order authorising for the purpose of identifying the child, the taking of the childs photgraph, fingerprint & palm prints
- (4) the childrens court or authorised officer may hear the application and make the order sought in the application
- (5) must take into account the following:
- (a) the seriousness of the circumstances surrounding the offence
- (b) the best interests of the child
- (c) the childs ethnic & cultural origins
- (d) any wishes of the child
- (e) wishes of the guardian or parent
- (6) a child must not be held in custody for the purpose only of an application being made under this section
What does the term "duty of care" mean?
A legal obligation to avoid harm being caused to another person
What does the term negligence mean?
The breach of a duty of care owed by one person to another, a duty to take care, to do the things a reasonable prudent man would do...and not do....."
What does the term "custody" mean?
Having legal access to and control over another
What difference has the Detention after Arrest legislation made on how police need to treat people after arrest? Include discussion on the specific parts of the legislation that protect a suspects rights.
- s6(3)(b) Police Act 1990 - The protection of persons from injury or death, and property damage whether arising from criminal acts or in any other way.
- S13 Police Act 1990 - Oath to be taken by people exercising police functions
- S213 Police Act 1990 - Police are not liable for any injury as nlong as they were acting in good faith
- S8 OH&S Act 2000 - Duties of employers
- S20(1) OH&S Act 2000 - Duties of employees
** A police officer is ok if acting in good faith - doing the best you can in the circumstances.
S115 Lepra sets out the time available to police in relation to detaining an arrested person. Briefly explain this time factor.
S115 - Investigation Period
- (1) Begins when the person is arrested and ends at a time that is reasonable having regard to all the circumstances, but does not exceed the max investigation period
- (2) max investigation period is 4hrs - may be extended by a detention warrant.
s117 Lepra sets out circumstances for 'time-outs' list them
- S117 - Certain times to be disregarded in calculating investigation period
- (a) convey from where arrested to place of investigative procedures to take place
- (b) time spent waiting for relevant investigative officers
- (c) waiting for facilities under s281 of the criminal procedures Act 1986 to become available
- (d) any time that is required for the offender to communicate with a relative, friend guardian, lawyer etc
- (e) any time that is required for friend relative lawyer etc to attend
- (f) any time that is required for the person to consult with the friend, relative lawyer etc
- (g) receive medical attention
- (h) time to arrange for the services of an interpreter
- (i) identification parade to be arranged & conducted
- (j) refreshements & toilet breaks
- (k) recover from effects of drugs/alcohol
- (l) to prepare a detention, search or crime scene warrant
- (m) to carry out charging procedures
- (n) to carry out forensic procedure on the person
Explain subsection (6) & (7) of s114 Lepra
s114 Detention after arrest for purposes of investigation
- (6) If a person is arrested more than once within any period of 48hrs the investigation period for each arrest is reduced by so much of any earlier investigation period as occurred within that 48hrs
- (7) The investigation for an arrest is not to reduce the period for a later arrest
S206 Lepra gives police the power to detain intoxicated persons
S206 Detention of Intoxicated persons
- (1) may detain an intoxicated person found in a public place who is:
- (a) behaving in a disorderly manner or ina manner likely to cause injury to the person or another person or damage to property or
- (b) in need of physical protection because the person is intoxicated
(2) A police officer is nnot to detain a person under this section because the behaviour that constitutes an offence under any law
(2A) However, a police officer may detain an IP even if the offence is under s9 of the summary offences act if the detention is not for the purposes of taking proceedings for the offence
- (3) An IP detained by a police officer under this part is to be taken to, and released into the care of, a responsible person willing immediately to undertake the carre of the IP
- (4) an IP detained by a police officer under this part may be taken to and detained in an authorised place of detention if:
- (a) if it is necessary to do so temporarily for the purpose of finding a responsible person willing to undertake the care of the IP, or
- (b) a responsible person cannot be found or the IP is not willing to be released into the care of that person and it is not practicable to take that person home
- (c) their behaviour is so violent that a responsible person would not be able to care or control the IP
(5) may be detained under reasonabble restraint necessary to protect the IP & other persons from injury and ddamage to property
(6) This section does not authorise a responsible person into whose care an IP is released to detain the IP.
Note: Intoxication is not a defence to committing an offence
S208 Lepra Searching detained persons
(1) A police officer may search an IP & may take possession of any personal belongings found in the person's possession
(2) a person is entitled to the return of these belongings when the person ceases to be detained.
Define Intoxicated person
A person who appears to be SERIOUSLY AFFECTED by alcohol or another drug or a combination of drugs." In that their speech, balance, co-ordination or behaviour are seriously affected."
- *found in a public place
- *behaving in a disorderly manner
- *in need of physical protection
- *damage to property
- *causing injury to self or others
S11 LEPRA - Identity may be required to be disclosed
Designed to get details of a witness for an alleged indictable offence (NB: cannot force witness to give a statement - just their ID details)
(1) A police officer may request a person whose identity is unknown to the officer to disclose his/her identity if the officer suspects on reasonable grounds that the person may be able to assist in the investigation of an alleged indictable offence because the person was at or near the place where the alleged indictable offence occurred, whether before, when, or soon after it occurred
(2) A police officer may request a person whose identity is unknown to the officer to disclose his/her identity if the person proposes to give a direction to the person in accordance with part 14 for the person to leave a place.
S14 - Power of Police Officer to request disclosure of driver or passenger identity
- s14(1) A police officer who suspects on reasonable grounds that a vehicle is being, or was, or may have been used in or in connection with an indictable offence may make any one or more of the following requests:
- (a) a request that the driver disclose his/her identity
- (b) the passenger disclose his/her identity
- (c) owner of the vehicle (if not the driver or a passenger) disclose the identity of the driver and any passenger
s197 Lepra provides police with 'move along' powers. Explain these powers and why they are necessary.
Causing to Fear
NB there is no time period stated for the move along direction - it must however be reasonable, such as not being allowed back within 24hrs....
- S197 Directions generally relating to public places
- (1) A police officer may give a direction to a person in a public place if the police officer believes on reasonable grounds that the persons behaviour or presence in the place
- (a) is Obstructing another person or persons or traffic or
- (b) constitutes Harassment or intimidation of another person or
- (c) is Causing or likely to cause fear to another person
- (d) is for the purpose of unlawfully Supplying any prohibited drug
- (e) is for the purpose of obtaining/Purchasing any prohibited rug
S200 LEPRA places certain restrictions on police. What are these restrictions?
NB: police cannot give a move along direction for the following criteria.
S200 Lepra - Limitation on exercise of police powers
- This part does not authorise a police officer to give directions in relation to the following:
- (a) an Industrial dispute
- (b) An apparently genuine demonstration or protect
- (c) a procession
- (d) an organised assembly
Define Public disorder
Means a riot or other civil disturbance that gives rise to a serious risk to public safety, whether at a single location or resulting from a series of incidents in different locations.
Define Target/Lockdown area
Either the place where the riot is actually occurring or a road that may be used by people travelling to participate in the riot or both.
Part 6A - Lock down powers. Thbis enables police to declare an area on the basis that a large scale public order is occurring or threatens to occur & then employ special powers in or around that area. According to s87F who may give the written or verbal authorisation for this lock down?
S87F - Giving of authorisation
(1) An authorisation may be given by the Commissioner of Police or by a Deputy or Assistance Commissioner of Police. This power cannot be delegated.
(2) An authorisation may be given orally, or in writing
(3) if given orally, must be confirmed inwriting asap
- (4) an authorisation must:
- (a) state that it is given under this division
- (b) describe the general nature of the public disorder or threatened public disorder to which it applies
- (c) describe the area or specify the road targeted by the authorisation, and
- (d) specify the time it ceases to have effect
Outline the circumstances where handcuffs can be used
- Handcuffs - when the person has
- tried to escape,
- to prevent escape or
- is about to cause injury to themselves or others
Outline the circumstances where Batons can be used
- Danger of being overpowered
- Protect self or others from injury
Outline the circumstances where OC Spray can be used
- Protection of human life
- Protection against animals
Outline the circumstances where Firearms can be used
- Immediate Risk of Serious injury
- immediate risk to your life or life of someone else
- there is no other way of preventing the risk
Outline the circumstances where Electronic Control Device can be used
- Protect human life
- Control persons where violent resistance or confrontation occurs or is imminent
- Protect officers in danger
- Protect themselves from danger
- Protection against animals
What criteria is deemed excessive force?
- Any force where none is needed
- More force than is needed
- Any level of force continuing after the threat has been removed
- Knowingly wrongful use of force
- Well intentioned mistakes which result in undesired use of force.