LLB 130 Lecture Notes - Lecture 11: Standard Operating Procedure, Title 47 Cfr Part 15, New South Wales Police Force
Week 11 – Criminal Process I
Policing implies the set of activities aimed at preserving the security of social order
Polie dot efoe the la ut eel use it as a esoue to sole poles
Discretion
• Factors affecting discretion:
- Factors of influence: social, educational, environmental, religious, statute & case
law
- Decision-makers: victims, police, defendants, prosecutors, the media, judges,
victims
• Parliament regularly pass laws that require police to exercise discretion e.g. move on
powers; arrest
• Suspects are those whose conduct suggests they fall into a criminal category and
criminals are those who break the law
• When confronted with situations that require immediate decision, officers decide
what they want to do and then fit their legal powers around that decision. The law
and the requirement to stop-search & arrest must be based on reasonable suspicion.
The law is quite vague and allows flexibility in exercising discretion
Racial profiling – suspicion based on race/colour/ethnicity
Cuneen (expert evidence) CB 429
‘aial pofilig is the adese use of polie disetioa deisio-making based on
assumptions concerning the racial characteristics of individuals. It involves police making
decisions to initiate contact with individuals on the basis of their race or ethnicity. These
decisions typically involve police stopping, searching, questioning or requiring individuals to
oe-o o the asis of thei ae athe tha deisios ased o easoale suspiio.
‘aial pofilig a e uderpinned by perceptions that particular racial and ethnic
minorities are members of (criminal) gangs. It may also involve the harassment and the use
of excessive force against individuals of particular racial or ethnic backgrounds. These
discretionary decisios lak legal justifiatio
This arose from complaints of police harassment raised by a number of youths of African
descent living in the Flemington/Kensington area of Melbourne
Move on powers CB 554-561
Background of move on powers: CB 554
find more resources at oneclass.com
find more resources at oneclass.com
LEPRA Part 14
197 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 pesos ehaiou o pesee i the plae
(referred to in this Part as relevant conduct):
(a) is obstructing another person or persons or traffic, or
(b) constitutes harassment or intimidation of another person or persons, or
(c) is causing or likely to cause fear to another person or persons, so long as the
relevant conduct would be such as to cause fear to a person of reasonable
firmness, or
(d) is for the purpose of unlawfully supplying, or intending to unlawfully supply, or
soliciting another person or persons to unlawfully supply, any prohibited drug, or
(e) is for the purpose of obtaining, procuring or purchasing any prohibited drug that
it would be unlawful for the person to possess
(2) A direction given by a police officer under this section must be reasonable in the
circumstances for the purpose of:
(a) reducing or eliminating the obstruction, harassment, intimidation or fear, or
(b) stopping the supply, or soliciting to supply, of the prohibited drug, or
(c) stopping the obtaining, procuring or purchasing of the prohibited drug.
(3) The other person or persons referred to in subsection (1) need not be in the public
place but must be near that place at the time the relevant conduct is being engaged
in
(4) For the purposes of subsection (1) (c), no person of reasonable firmness need
actually be, or be likely to be, present at the scene.
These move on powers are different to the traditional offences of loitering/possessing items
in public in two aspects:
• The allo fo polie iteetio that doest iole a iial offee
• The circumstances in which police intervention is justified are much wider than a
suspicion that the person is about to commit a crime
Police are authorised to demand that a person move on from a public place where it is
considered that there is a risk that their presence may have an adverse effect on others
Public Intoxication: Move on powers
2011 amendment: offence of continuing intoxicated/disorderly behaviour after move-on
(SOA 1988, 2 9)
S 198 of LEPRA 2002 (public intoxication: move on powers)
Move on directions to intoxicated persons in public places
(1) A police officer may give a direction to an intoxicated person who is in a public place
to leave the place and not return for a specified period if the police officer believes
o easoale gouds that the pesos ehaiou i the plae as a esult of the
intoxication (referred to in this Part as relevant conduct):
(a) is likely to cause injury to any other person or persons, damage to property or
otherwise give rise to a risk to public safety, or
(b) is disorderly.
find more resources at oneclass.com
find more resources at oneclass.com
(2) A direction given by a police officer under this section must be reasonable in the
circumstances for the purpose of:
(a) preventing injury or damage or reducing or eliminating a risk to public safety, or
(b) preventing the continuance of disorderly behaviour in a public place.
(3) The period during which a person may be directed not to return to a public place is
not to exceed 6 hours after the direction was given
(4) The other person or persons referred to in subsection (1) (a) need not be in the
public place but must be near that place at the time the relevant conduct is being
engaged in
(5) For the purposes of this section, a person is intoxicated if:
(a) the pesos speeh, alae, o-ordination or behaviour is noticeably affected,
and
(b) it is reasonable in the circumstances to believe that the affected speech, balance,
co-ordination or behaviour is the result of the consumption of alcohol or any
drug
Statutory oe o poers – s 197 & 198 LEPRA formalized/legalised
Benefits of legislation: certainty and authority for police and penalties for non-compliance (s
199) and community benefit of police practice
S 197 regulates police discretion very broadly:
- easoale gouds – Rondo
- definition of relevant conduct – s 197(1); s 198(1)
• likel to ause fea to aothe peso
• likel to… gie ise to isk to puli safet
• disodel
1. ofiig hat is easoale dietio i the iustaes – s 197(2); s 198(2)
2. following of procedural requirements
What is reasonable suspicion?
R v Rondo (2001) 126 A Crim R at [53] (CB 445)
a A easoale suspiio ioles less than a reasonable belief but more than a possibility.
... A reason to suspect that a fact exists is more than a reason to consider or look into the
possibility of its existence.
(b) Reasonable suspicion is not arbitrary. Some factual basis for the suspicion must be
shown. A suspicion may be based on hearsay material or materials which may be
inadmissible in evidence. The materials must have some probative value.
(c) What is important is the information in the mind of the police officer stopping the person
or the vehicle or making the arrest at the time he did so. Having ascertained that
information, the question is whether that information afforded reasonable grounds for the
suspicion which the police officer formed. In answering that question regard must be had to
the source of the information and its content, seen in the light of the whole of the
suoudig iustaes.
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Policing implies the set of activities aimed at preserving the security of social order. Poli(cid:272)e do(cid:374)(cid:859)t e(cid:374)fo(cid:396)(cid:272)e the la(cid:449) (cid:271)ut (cid:373)e(cid:396)el(cid:455) use it as a (cid:396)esou(cid:396)(cid:272)e to sole p(cid:396)o(cid:271)le(cid:373)s. Factors of influence: social, educational, environmental, religious, statute & case law. The law and the requirement to stop-search & arrest must be based on reasonable suspicion. The law is quite vague and allows flexibility in exercising discretion. Cuneen (expert evidence) cb 429 (cid:858) a(cid:272)ial p(cid:396)ofili(cid:374)g is the ad(cid:448)e(cid:396)se use of poli(cid:272)e dis(cid:272)(cid:396)etio(cid:374)a(cid:396)(cid:455) de(cid:272)isio(cid:374)-making based on assumptions concerning the racial characteristics of individuals. It involves police making decisions to initiate contact with individuals on the basis of their race or ethnicity. It may also involve the harassment and the use of excessive force against individuals of particular racial or ethnic backgrounds. This arose from complaints of police harassment raised by a number of youths of african descent living in the flemington/kensington area of melbourne.
