LAW109 Lecture Notes - Lecture 3: Affray, Ordnungspolizei
8 May 2018
School
Course
Professor
LAW109 Lecture
Week 3 [Summary Offences]
Summary Offences
- Less serious
- Determined finally in the Local Court (s 7 of the Criminal Procedure Act 1986 (NSW))
- Tried before a Magistrate
- To be proved by the prosecution, beyond reasonable doubt
- Generally created by Parliament do not exist at common law
Public Order Offences
- Not all public order offences are summary offences (e.g. riot, affray)
- Regulation of behaviour deemed as anti-social or undersirable
- Criminalise behaviour acceptable in private
- Often tied to moral panics
- Tied closely with police powers
- Police granted wide-ranging discretion in relation to public order
Police Powers (Statute)
- Require identity (s 11)
- Search and seizure without warrant (Ss 21 and 26)
- Give directions to move on (s 197)
- Special powers in regards to public disorder (Ss 87I-87MA)
- Prevent or suppress breach of peace (common law)
What is offensive?
- Offensive is defined at common law as
o suh as is alulated to oud the feeligs, arouse ager or resentment or
disgust or outrage i the id of a reasoale perso (Worcester v Smith
[1951] VLR 316 at 318)
- Offensive language and conduct crimes are concerned with hypothetical not actual
offence (Stutsel v Reid (1990) 20 NSWLR 661)
Offensive Language/ Conduct Crimes
- Offensiveness is judged from the perspective of the hypothetical reasonable person,
according to contemporary community standards
- The decision maker must have regard to context
- Location element – language conduct occurs in or near, or within view/hearing from
a public place
- Police tend to target the swear words
Indigenous Australians and Offensive Language Crimes
- Indigenous Australians are must more likely than non-Indigenous Australians to be
charged with using offensive language
- Indigenous persons are also subjected to a greater degree of intervention in their
eeryday atiities, iludig the ost itiate parts of their lies (NSW Bureau of
Crime Statistics and Research, 1999)
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Document Summary
Determined finally in the local court (s 7 of the criminal procedure act 1986 (nsw)) To be proved by the prosecution, beyond reasonable doubt. Generally created by parliament do not exist at common law. Not all public order offences are summary offences (e. g. riot, affray) Regulation of behaviour deemed as anti-social or undersirable. Police granted wide-ranging discretion in relation to public order. Search and seizure without warrant (ss 21 and 26) Give directions to move on (s 197) Special powers in regards to public disorder (ss 87i-87ma) Prevent or suppress breach of peace (common law) Offensive is defined at common law as (cid:858)su(cid:272)h as is (cid:272)al(cid:272)ulated to (cid:449)ou(cid:374)d the feeli(cid:374)gs, arouse a(cid:374)ger or resentment or disgust or outrage i(cid:374) the (cid:373)i(cid:374)d of a reaso(cid:374)a(cid:271)le perso(cid:374)(cid:859) (worcester v smith. Offensive language and conduct crimes are concerned with hypothetical not actual offence (stutsel v reid (1990) 20 nswlr 661)
