Summary offences in Victoria 9780455237039, 0455237034

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Summary Offences in Victoria

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Summary Offences in Victoria

KYLEMFDONALD

LAWBOOKCO.2017

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW National Library of Australia Cataloguing-in-Publication entry Summary offences in Victoria / Kyle McDonald 9780455237039 (paperback) McDonald, Kyle Notes: Includes index. Subjects: Procedure (Law)--Victoria. Practice of law--Victoria. ©2017ThomsonReuters(Professional)AustraliaLimited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. All legislative material herein is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. The Copyright Act 1968 permits certain reproduction and publication of Commonwealth legislation. In particular, s 182A of the Act enables a complete copy to be made by or on behalf of a particular person. For reproduction or publication beyond that permitted by the Act, permission should be sought in writing. Requests should be submitted online at http://www.ag.gov.au/cca, faxed to (02) 6250 5989 or mailed to Commonwealth Copyright Administration, Attorney-General’s Department, Robert Garran Offices, National Circuit, Barton ACT 2600. Victoria: All Acts and Statutory Rules © The State of Victoria, the Government Printer (2017). Disclaimer This product or service contains an unofficial version of the Acts and Statutory Rules of the State of Victoria. The State of Victoria accepts no responsibility for the accuracy, completeness or currency of any legislation contained in this product or provided through this service. Editor: Catherine Yan Product Developer: Beatrice Marett-Bird Publisher: Nigel Royfee Printed by Ligare Pty Ltd, Riverwood, NSW

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Foreword Brendan A Murphy QC Principal Public Interest Monitor It is both my honour and privilege to be asked to write the Foreword of this exciting publication. My view for many years was that the true test of a publication such as this was whether or not one could find the answer to a problem whilst on one’s feet. There is no doubt on going through this book that this measure has been satisfied. There have been a few publications attempting to cover the areas that are covered by the author. They fell short of the test. What must be understood is that the great percentage of criminal litigation in this state is heard in the Magistrates’ Court of Victoria. In fact nearly 94% is the percentage. Thus the people who practise in that area need resources that are provided in this book. Clearly, this publication is a necessary tool for anyone who wants to practise in the Magistrates’ Court. Whether it is to prosecute or defend charges, the book has a wealth of material not generally found in the one place, for example, a list of common summary offences in Victoria and all matters relevant to the prosecution and defence of summary offences in Victoria. This is a vital production for students of law and legal studies. I recommend this publication to anyone interested in criminal litigation in the Magistrates’ Court.

Preface I remember when I first chanced across what was then Heath’s (now Freckelton and Cockcroft’s), Indictable Offences in Victoria. It was around 1997, in the muster room of the now-demolished Sunshine police station in Sun Crescent. The internet was barely a thing, and the abundance of legal information we now take for granted wasn’t even on the horizon. I was by then a senior constable with about five years’ policing experience and a moderate competence at what remains a challenging job. One of the biggest challenges then in the law, as in most professions, was the scarcity of information. Most police stations had a single collection of hardcopy reprints of legislation most likely to involve police, and individual officers would buy the Study Guide compiled and revised annually by the Training Department, or rely on the venerable Detective Training School notes that slowly but surely permeated through police stations and criminal investigation units. The DTS notes were of varied quality, depending on their age and author, and would on occasion confidently cite dissenting judgments as authoritative. The Study Guide was frequently accurate, though it only touched on a handful of offences. But it did contain the in-demand Charge Reference Manual, a “Top 50” of the most commonly charged criminal and traffic offences, with suggested charge-wordings, points of proof, and statutory references necessary for compiling necessary paperwork. The battered old copy I stumbled across of Indictable Offences in Victoria left lying around in that muster room was something far more useful. It provided then, as now, authoritative guidance to the legislation and leading cases relevant to each offence. It very helpfully explained when an offence might not be made out, but also suggested alternatives that could be considered. “Why isn’t there something like this for summary offences?” I wondered. And I continued to wonder, until Thomson Reuters agreed to my idea of this companion work, Summary Offences in Victoria. I don’t think the absence till now of a work like this was a deliberate snub to the work of courts of summary jurisdiction. There’s an understandable tendency in the criminal justice system to focus on the most serious of criminal offences, because so much is at stake for all those involved: victims and accused, and their families; investigators; lawyers; courts; and the public. But summary offences, though less serious, are no less significant for those affected by them. ABS statistics show around 108,000 criminal cases finalised in Victoria’s Magistrates’ Courts for 2015–2016, against 1,999 for the Higher Courts.

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Though the Magistrates’ Court figure includes indictable offences determined summarily as well as summary offences, the numbers show that most of the people affected by the criminal justice system are affected by summary offences. My hope is that this book will prove helpful to police, who often have to make weighty decisions with little time or information available to them, as well as lawyers advising accused people, advocates dealing with these charges in court, and judicial officers determining summary charges. It may even be that the information here helps avoid court proceedings. In some cases, the mere knowledge that they have a power to act allows police to successfully persuade a potential offender to desist from their behaviour or be charged. In other cases, possessed with accurate information about an offence provision, investigators and prosecutors occasionally recognise that an allegation can’t be proved or shouldn’t proceed any further. And of course, where a person has committed an offence and is brought before a court, it is in the public interest that they are dealt with according to law, with competent advocacy for both the prosecuting authority and accused. This book deliberately does not comment on what the law should be, or whether some of these admittedly archaic offences are necessary or desirable in the 21st century. Recent debates on the offence of begging alms is a case in point. Instead, it aims to succinctly state what the law is, or where there is uncertainty, how it is likely to be applied. The plethora of summary traffic offences are not covered here, so for those the reader is directed instead to the detailed discussion in Connellan, Cockcroft and McDonald, Road Safety Law Victoria (Lawbooks Co., 2015) (RSLV). The most commonly encountered of those offences under the Road Safety Act 1986 (Vic) (RSA) and Road Safety Road Rules 2009 (Vic) (RR) are: • Using an unregistered motor vehicle (RSA s 7): see RSLV at [4.8.1410]–[4.8.1430]. • Driving while unlicensed (RSA s 18): see RSLV at [4.8.1630]–[4.8.1660]. • Driving when disqualified or licence suspended (RSA s 30): see RSLV at [4.8.2030]–[4.8.2090]. • Exceeding prescribed concentration of alcohol within three hours of driving (RSA s 49(1)(f)): see RSLV at [4.8.2322]–[4.8.2388] and [4.8.2620]–[4.8.2638]. • Refusing preliminary breath test (RSA s 49(1)(c)): see RSLV at [4.8.2322]–[4.8.2388] and [4.8.2500]–[4.8.2512]. • Refuse or fail to stop at random breath testing station (RSA s 49(1)(d)): see RSLV at [4.8.2322]–[4.8.2388] and [4.8.2540]–[4.8.2550]. • Refuse to accompany, remain, provide further breath sample or permit blood sample (RSA s 49(1)(e)): see RSLV at [4.8.2322]–[4.8.2388] and [4.8.2560]–[4.8.2578]. • Fail to produce licence and state name and address (RSA s 59): see RSLV at [4.8.3605]–[4.8.3730].

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• Fail to stop, render assistance, give name and address to person injured or property owner, or report to most accessible police station following accident where person injured (RSA s 61(4)(b)): see RSLV at [4.8.3865] and [4.8.3874]. • Fail to stop, render assistance, give name and address to property owner, or report to most accessible police station following accident where property was damaged (RSA s 61(5)): see RSLV at [4.8.3865] and [4.8.3876]. • Dangerous driving (RSA s 64): see RSLV at [4.8.4070]–[4.8.4099]. • Careless driving (RSA s 65): see RSLV at [4.8.4200]–[4.8.4238]. • Improper use of motor vehicle (RSA s 65A): see RSLV at [4.8.4241]–[4.8.4249]. • Tamper or interfere with motor vehicle (RSA s 70): see RSLV at [4.8.4410]–[4.8.4429]. • Fraudulently alter or use registration label, licence or identifying number (RSA s 72): see RSLV at [4.8.4475]–[4.8.4509]. • Exceed speed limit (RR r 20): see RSLV at [4.8.10050]–[4.8.10140]. • Fail to stop at red or yellow traffic light or arrow (RR rr 56, 57): see RSLV at [4.8.10150]–[4.8.10180]. • Fail to stop at stop sign or stop line (RR r 67): see RSLV at [4.8.10200]–[4.8.10220]. • Fail to keep left (RR rr 129, 130): see RSLV at [4.8.10390]–[4.8.10410]. • Driver fail to wear seatbelt (RR r 264): see RSLV at [4.8.10530]. • Use mobile phone for other than permitted use (RR r 300): see RSLV at [4.8.10550]–[4.8.10580]. KYLE MCDONALD Melbourne 3 April 2017

About this Publication SCOPE OF THIS WORK Summary Offences in Victoria is an essential resource for legal practitioners and police, assisting those who have responsibility for charging defendants and for prosecuting and defending them in Victoria’s Magistrates’ Courts. It is also an invaluable and highly accessible guide for students of law and legal studies. Expert commentary by barrister Kyle McDonald is accompanied by the text of the relevant legislative provisions. This work clearly sets out all matters relevant to the prosecution and defence of summary offences in Victoria, addressing issues such as: • • • • • • • • •

nature and functions of a charge sheet distinction between charge sheet and summons time limits for commencing summary charges wording charges location, date and other essential elements types of errors in charges amending charges alternative liability sentencing

The book also provides an alphabetical list of common summary offences in Victoria. Traffic offences are dealt with extensively in Road Safety Law Victoria (2015) and so have not been reproduced in this text. For each offence the book presents: • • • • • • •

the relevant provision statement of charge wording of charge penalty matters to be proved other possible offences defences

LEGISLATION Summary Offences in Victoria contains the following legislation extracts: • Ambulance Services Act 1986, (Vic) s 39AA

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• • • • •

Bail Act 1977 (Vic), ss 3, 30, 30A, 30B, 31 Children, Youth and Families Act 2005 (Vic), ss 344A, 494 Control of Weapons Act 1990 (Vic), ss 3, 5AA, 6, 7 Control of Weapons Regulations 2011 (Vic), Schs 2, 3 Corrections (Police Gaols) Regulation 2015 (Vic), reg 15

• • • • •

Corrections Act 1986 (Vic), ss 78A, 104AG Country Fire Authority Act 1958 (Vic), ss 3, 39A, 40, 107B Court Security Act 1980 (Vic), ss 2, 2B, 3, 4A, 4B, 4C Crimes Act 1958 (Vic), ss 91, 193, 195, 456AA, 464JA, 465AAA, 494 Criminal Procedure Act 2009 (Vic), ss 6, 7, 8, 9, 27, 32, Sch 1

• Drugs, Poisons and Controlled Substances Act 1981 (Vic), ss 5, 36B, 70, 75, 104, 122 • Environment Protection Act 1970 (Vic), ss 45E, 45M, 45N • • • • • •

Family Violence Protection Act 2008 (Vic), ss 37, 123 Graffıti Prevention Act 2007 (Vic), ss 5, 6, 7 Interpretation of Legislation Act 1984 (Vic), ss 51, 52 Liquor Control Reform Act 1998 (Vic), ss 3AB, 108, 114, 123 Local Government Act 1989 (Vic), s 224 Metropolitan Fire Brigades Act 1958 (Vic), ss 3, 33

• • • • •

Personal Safety Intervention Orders Act 2010 (Vic), s 100 Road Safety Act 1986 (Vic), ss 59 Sentencing Act 1991 (Vic), ss 10AA, 83AC, 83AD, 110, 112 Sex Offenders Registration Act 2004 (Vic), ss 14, 46 Summary Offences Act 1966 (Vic), ss 3, 6, 7, 9, 13, 14, 16, 17, 17A, 19, 23, 24, 26, 41A, 41B, 41C, 41DA, 41DB, 41H, 49, 49A, 49B, 49C, 49D, 49E, 51, 52, 52A, 53, 56 • Transport (Compliance and Miscellaneous) Act 1983 (Vic), s 223 • Victoria Police Act 2013 (Vic), s 256 • Victoria Police Regulations 2014 (Vic), s 27 • Water Act 1989 (Vic), s 291

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CURRENCY The Acts, regulations and rules have been updated to include all available amendments to 16 May 2017. FUTURE COMMENCEMENTS Criminal Procedure Act 2009 (Vic) Amending tion

Date of gazettal/ Date of commencement assent/ registration 1 Jul 2014 S 257 commences on a date to be proclaimed, or 31 Dec 2017. 6 Sep 2016 S 37(11) and (12) commence on a date to be proclaimed, or 1 Jul 2017.

legisla- Number

Fines Reform Act 2014 47 of 2014

Crimes Amendment 47 of 2016 (Sexual Offences) Act 2016

Family Violence Protection Act 2008 (Vic) Amending tion

legisla- Number

Family Violence Pro- 77 of 2014 tection Amendment Act 2014 National Domestic 53 of 2016 Violence Order Scheme Act 2016 Family Violence Pro- 19 of 2017 tection Amendment Act 2017

Date of gazettal/ Date of commencement assent/ registration 21 Oct 2014 S 16(1) commences on a date to be proclaimed. 18 Oct 2016 Ss 47 and 54 commence on a date to be proclaimed. 16 May 2017 S 21 commences on a date to be proclaimed, or 1 Sep 2018.

Road Safety Act 1986 (Vic) Amending legisla- Number tion Road Legislation Fur- 70 of 2016 ther Amendment Act 2016

Date of gazettal/ Date of commenceassent/registration ment 29 Nov 2016 S 21 commences on a date to be proclaimed, or 31 Jan 2018.

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Summary Offences Act 1966 (Vic) Amending tion

legisla- Number

Crimes Amendment 47 of 2016 (Sexual Offences) Act 2016

Date of gazettal/ Date of commenceassent/ ment registration 6 Sep 2016 Ss 24, 25 and 45(2) commence on a date to be proclaimed, or 1 Jul 2017.

PROPOSED AMENDMENTS Country Fire Authority Act 1958 • Statute Law Revision Bill 2017 – passed Legislative Assembly 2 May 2017; 2nd reading speech Legislative Council 9 May 2017. Report of Scrutiny of Acts and Regulations Committee tabled 22 Feb 2017. Sch 2 item 22.1 commences 1 Sep 2017. Criminal Procedure Act 2009 • Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 – passed Legislative Assembly 23 Feb 2017; 2nd reading speech Legislative Council 23 Feb 2017. S 141 commences on a date to be proclaimed, or 1 Jul 2018. Drugs, Poisons and Controlled Substances Act 1981 • Drugs, Poisons and Controlled Substances Miscellaneous Amendment Bill 2017 – passed Legislative Assembly 23 Mar 2017; debate Legislative Council 11 May 2017. S 11 commences on a date to be proclaimed, or 1 Nov 2017. Sentencing Act 1991 • Statute Law Revision Bill 2017 – passed Legislative Assembly 2 May 2017; 2nd reading speech Legislative Council 9 May 2017. Report of Scrutiny of Acts and Regulations Committee tabled 22 Feb 2017. Sch 2 item 77.4 commences 1 Sep 2017. Sex Offenders Registration Act 2004 • Sex Offenders Registration Amendment (Miscellaneous) Bill 2017 – 2nd reading speech Legislative Assembly 11 May 2017. S 28 commences on a date to be proclaimed, or 1 Mar 2018. Summary Offences Act 1966 • Statute Law Revision Bill 2017 – passed Legislative Assembly 2 May 2017; 2nd reading speech Legislative Council 9 May 2017. Report of Scrutiny of Acts and Regulations Committee tabled 22 Feb 2017. Sch 2 item 85.2 commences 1 Sep 2017. • Summary Offences Amendment (Begging or Gathering Alms) Bill 2016 – 2nd reading speech Legislative Council 7 Dec 2016. S 3 commences day after date of assent.

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INDEX The Index includes entries for the legislation in this volume. AUTHOR INFORMATION Before coming to the Bar, Kyle worked for 10 years as a prosecutor for Victoria Police, appearing in the Magistrates’ and Children’s Courts. He was an instructor at the Research & Training Unit of Victoria Police’s prosecutions division, instructing in advocacy, evidence and legal research, and also worked briefly at the Legal Policy Unit. He co-edited and authored the 3rd edition of the Prosecutors’ Manual, and wrote many articles for internal update bulletins and court resources, and much of the content of the prosecutors’ intranet. Immediately before coming to the Bar Kyle performed a short-term placement with the VGSO. Kyle appears regularly in all criminal courts, and is available for trial, appeal and advisory work in all criminal forums. He is a contributing author to the Springvale Legal Service’s Lawyers Practice Manual, as well as an occasional instructor at the Leo Cussen Institute’s Practical Training Course. Kyle is particularly interested in the effect of information technology and computer-forensics in litigation and criminal law. He blogs at www.summarycrime.com about developments and practice in summary criminal law. He regularly presents at continuing professional development sessions on both substantive law, and the use of technology in legal practice – particularly on the iPad for lawyers. Kyle authors content in Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) and Road Safety Law in Victoria (Lawbooks Co., 2015). RELATED PUBLICATIONS • Cockroft K and Freckelton QC, Indictable Offences in Victoria (6th ed, Lawbook Co., 2015) • Connellan G (ed), Family Violence and Child Protection Law in Victoria (Lawbook Co., 2016) • Connellan G, Cockroft K and McDonald K, Road Safety Law Victoria (Lawbook Co., 2015) ENQUIRIES Considerable care has been taken in this compilation, but the interpretation and consolidation of the legislation is complex. The Publisher invites feedback on this edition. Correspondence may be addressed to: Thomson Reuters Customer Service Reply Paid 3502 PO Box 3502 Rozelle NSW 2039 Phone from Australia: 1300 304 195, from Overseas: + 61 2 8587 7980

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Or emailed to: [email protected]

Table of Contents Foreword ................................................................................................................................. v Preface .................................................................................................................................. vii About this Publication ........................................................................................................... xi Table of Cases ...................................................................................................................... xxi Table of Statutes .............................................................................................................. xxxiii 1. Summary offences ............................................................................................................. 1 2. Charges .............................................................................................................................. 9 3. Disclosure and particulars ............................................................................................. 21 4. Burdens of proof ............................................................................................................. 25 5. Sentencing ........................................................................................................................ 29 Offences ................................................................................................................................ 31 6. Access to computer or computer system (fail to comply with direction to assist) ....... 37 7. Assault (aggravated) ......................................................................................................... 41 8. Assault etc emergency workers or local authority staff on duty .................................... 44 9. Assault (unlawful) ............................................................................................................. 54 10. Bail (commit indictable offence while on bail) ............................................................. 59 11. Bail (contravene conduct conditions) ............................................................................ 61 12. Bail (failure to answer) .................................................................................................. 65 13. Bail (indemnify surety) .................................................................................................. 67 14. Begging or gathering alms ............................................................................................. 69 15. Besetting premises .......................................................................................................... 71 16. Child (leave unattended) ................................................................................................ 74 17. Contravention of order for release on adjournment ...................................................... 76 18. Contravention of community correction order .............................................................. 79 19. Court security (authorised officer failing to wear identity card, or produce on request) .................................................................................................................................. 81 20. Court security (intentionally make recording of proceeding) ....................................... 86 21. Court security (intentionally publish recording of a proceeding) ................................. 89 22. Court security (intentionally transmit or give recording of proceeding to another) .... 95 23. Court security (refuse to comply with requirement by authorised officer for search, scan or surrender of items) ................................................................................................... 98 24. Detained person (act in manner prejudicial or threatening to security, good order or management of police gaol) ............................................................................................... 102 25. Detained person (disobey lawful order) ...................................................................... 105 26. Discharge stone, arrow or missile etc .......................................................................... 107 27. Disguised with unlawful intent .................................................................................... 109 28. Disorderly conduct (public place) ................................................................................ 111

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29. Drug of dependence (use) ............................................................................................ 113 30. Drunk and disorderly in public place .......................................................................... 115 31. Drunk in public place ................................................................................................... 117 32. Drunk (riotous or disorderly behaviour, or in charge of carriage) ............................. 119 33. Escape from lawful custody ......................................................................................... 121 34. False report of emergency to ambulance service ........................................................ 123 35. False report of fire ........................................................................................................ 125 36. False report of fire ........................................................................................................ 127 37. False report to police .................................................................................................... 129 38. Family violence (contravene intervention order) ........................................................ 133 39. Family violence (contravene safety notice) ................................................................. 136 40. Fire (causing in country area in extreme conditions of weather) ............................... 140 41. Fire (light in the open air on total fire ban day) ......................................................... 142 42. Firearm (carry or use in a town or populous place) ................................................... 148 43. Firearm (carry or use under influence of intoxicating liquor or drug) ....................... 151 44. Firearm (contravene licence conditions) ...................................................................... 153 45. Firearm (damage property with) .................................................................................. 155 46. Firearm (incorrectly store longarm, or cartridge ammunition) ................................... 157 47. Firearm (non-prohibited person possessing etc) .......................................................... 162 48. Firearm (possess etc on private property without consent) ........................................ 171 49. Firearm (possess cartridge ammunition) ...................................................................... 174 50. Firearm (use in a dangerous manner) .......................................................................... 177 51. Genital or anal region (distribute image) .................................................................... 179 52. Genital or anal region (observation aided by device) ................................................. 181 53. Genital or anal region (visually capture) ..................................................................... 183 54. Going equipped for stealing, burglary or cheating ..................................................... 185 55. Graffiti marking ............................................................................................................ 187 56. Graffiti marking (offensive) .......................................................................................... 189 57. Graffiti (possessing prescribed implement) ................................................................. 191 58. Harass witnesses ........................................................................................................... 193 59. Housebreaking implements (possess) .......................................................................... 196 60. Impersonating police .................................................................................................... 198 61. Intimate images (distributing) ...................................................................................... 200 62. Intimate images (threat to distribute) ........................................................................... 203 63. Liquor (drunk, violent or quarrelsome person refuse or fail to leave licensed premises on request) ........................................................................................................... 205 64. Liquor (licensee or permittee supplying to intoxicated person, or allowing on licensed premises) ............................................................................................................... 208 65. Liquor (possess or consumed by person under age of 18 years) ............................... 213 66. Litter (deposit) .............................................................................................................. 216 67. Litter (deposit advertising material in certain mailboxes) .......................................... 218

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68. Litter (deposit document in or on vehicle) .................................................................. 220 69. Loitering with intent to commit indictable offence ..................................................... 221 70. Move on (contravene direction) ................................................................................... 225 71. Name and address etc (fail or refuse to supply or falsely provide to authorised officer) ................................................................................................................................. 229 72. Name and address (refuse to give etc to local government authorised officer) ......... 232 73. Name or address (fail to state, or state false name or address) ................................. 235 74. Name or address (refuse or fail to state or falsely state to police on request) .......... 241 75. Name or rank or place of duty (police officer refusing or failing to state on request) ................................................................................................................................ 244 76. Obscene, indecent, threatening language and behaviour etc in public ....................... 248 77. Parole (breach term or condition) ................................................................................ 257 78. Personal safety (contravene intervention order) .......................................................... 259 79. Proceeds of crime (dealing with property reasonably suspected as such) ................. 262 80. Recordings (possess, play, supply, copy, tamper with or publish) ............................. 265 81. Registrable offender failing to comply with obligation to report infrequently changed personal details ..................................................................................................... 273 82. Scheduled poison (possess) .......................................................................................... 280 83. Spiking food or drink ................................................................................................... 283 84. Trespass (enter private or public place in manner likely to cause breach of the peace) .................................................................................................................................. 287 85. Trespass (land or premises of Roads Corporation or Rail Track) .............................. 291 86. Trespass (land or premises of Water Authority) .......................................................... 293 87. Trespass (refuse or neglect to leave private or scheduled public place) .................... 295 88. Trespass (wilfully enter private or scheduled public place) ....................................... 299 89. Trespass (wilfully trespass in and refuse to leave any public place) ......................... 304 90. Unlawful possession (property reasonably suspected of being stolen) ...................... 312 91. Weapon – controlled (possess, use or carry weapon) ................................................. 316 92. Weapon – dangerous article (possess or carry in public place) ................................. 322 93. Weapon – prohibited (possess, carry or use) ............................................................... 326 94. Wilful and obscene exposure ....................................................................................... 332 95. Wilful damage ............................................................................................................... 335 Index ................................................................................................................................... 339

Table of Cases A ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti (2008) 21 VR 559 ....................................................................... 9.90 Agius v The Queen (2011) 80 NSWLR 486 .................................................................... 1.60 Ainsworth v Redd (1990) 19 NSWLR 78 .................................................................... 39.100 Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198 ................................... 76.160 Anderson v Lynch (1982) 17 NTR 21 .......................................................................... 83.130 Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51 ............................................... 15.100 Annett v Brickell [1940] VLR 312 ............................................................................... 76.150 Armstrong v Hammond [1958] VR 479 ........................................................................... 1.50 Atkinson v Gibson [2012] 2 Qd R 403 ........................................................................ 76.100 Attorney-General v Scarth [2013] EWHC 194 .............................................................. 21.90 Attorney-General (Hong Kong) v Sham Chuen [1986] AC 887 ................................. 69.100 Attorney-General (SA) v Huber (1971) 2 SASR 142 .................................................. 76.100 Attorney-General’s Reference (No 6 of 1980) [1981] 1 QB 715 .................................. 9.110 Attorney General v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368 .................................................................................................... 21.90, 22.90 Australian Builders’ Labourers’ Federated Union of Workers (WA Branch) v J-Corp Pty Ltd (1993) 42 FCR 452 .............................................. 15.100

B Ball v McIntyre (1966) 9 FLR 237 .............................................................................. 76.130 Barker v The Queen (1983) 153 CLR 338 ................................................................... 89.110 Barrington v Austin [1939] SASR 130 ........................................................................... 28.90 Barritt v Baker (1948) VLR 491 ....................................................................................... 4.30 Barton v Armstrong [1969] 2 NSWR 451 ........................................................................ 9.90 Begg v Daire (1986) 40 SASR 375 ................................................................................ 14.80 Bell v Atwell (1988) 32 A Crim R 181 ........................................................................ 91.120 Bergin v Brown [1990] VR 888 ....................... 15.110, 34.90, 88.100, 89.100, 94.90, 95.80 Bethune v Heffernan; Heelan v Heyward [1986] VR 417 ............................. 76.100, 89.120 Betts v Stevens [1910] 1 KB 1 ....................................................................................... 8.150 Bland v Cowan [1963] 2 QB 735 ................................................................................. 69.100 Blyss v Magistrates’ Court of Victoria [2016] VSC 548 ............................................... 81.90 Bowden v The Queen (2013) 44 VR 229 ...................................................................... 81.90 Bowman v Secular Society Ltd [1917] AC 406 ........................................................... 76.120 Brady v Schatzel; Ex parte Brady [1911] St R Qd 206 .................................................. 9.90 Brebner v Bruce (1950) 82 CLR 161 ............................................................................... 1.50 Brittain v Mansour [2013] VSC 50 ................................................................................ 17.70 Brooker v Police [2007] 3 NZLR 91 .............................................................................. 28.90 Brown v Bowden (1991) 19 NZLR 98 ............................................................. 31.90, 64.100 Brown v Schiffman [1911] VLR 133 ........................................................................... 90.100 Brown v Spectacular Views Pty Ltd [2011] VSC 197 ................................... 89.110, 89.120 Brutus v Cozens [1973] AC 854 ....................................................................... 28.90, 76.150

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Burton v Mills (1896) 2 ALR 49 .................................................................................. 76.160 Burvett v Moody [1909] VLR 126 ................................................................................... 2.50

C CC v Department of Human Services [2003] VSC 134 .................................................. 2.60 Calder and Boyars Ltd [1969] 1 QB 151 ..................................................................... 76.110 Cameron v Holt (1980) 142 CLR 342 .......................................................................... 39.130 Cannon v Abingdon (Earl) [1900] 2 QB 66 ................................................................. 32.100 Carter v Reaper [1920] VLR 337 ................................................................................. 27.100 Cassidy v Langmuir [1935] SC(J) 65 ........................................................................... 69.100 Cavanagh v Galkowski (1979) 20 SASR 322 ................................................................ 8.150 Chambers v DPP [1995] Crim LR 896 .......................................................................... 28.90 Chambers v DPP [2013] 1 WLR 1833 ......................................................................... 76.140 Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249 .......................................................... 4.30 Ciorra v Cole (2004) 150 A Crim R 189 ................................................................ 2.10, 2.50 Cole v Turner (1704) 90 ER 958 ...................................................................................... 9.90 Coleman v Power (2004) 220 CLR 1 ........................ 28.90, 56.120, 70.150, 76.110, 76.130 Collins v Wilcock [1984] 1 WLR 1172 ..................................................... 8.140, 9.90, 9.150 Connolly v DPP [2008] 1 WLR 276 ............................................................................ 76.130 Connor v Pittaway [1969] VR 335 ............................................................................... 69.110 Connors v Craigie (1994) 76 A Crim R 502 ................................................................ 76.130 Cooper-Baker v His Honour Judge Ross (2000) 114 A Crim R 40 ................................................................................................................................... 2.50 Corkey v Carpenter [1951] 1 KB 102 .......................................................................... 32.100 Cosh v Isherwood [1968] 1 WLR 48 ............................................................................. 69.80 Crowe v Graham (1968) 121 CLR 375 ........................................................................ 76.110 Curran v Thomas Borthwick & Sons (1990) 26 FCR 241 ............................................ 8.150

D DFJ v Secretary to Department of Justice (2012) 36 VR 66 ....................................... 16.110 DPP v Bird [2016] 4 WLR 82 .......................................................................................... 2.30 DPP v Bodouloh (2003) 144 A Crim R 37 ..................................................... 79.130, 90.100 DPP v Cartwright (2015) 45 VR 168 ............................................................................. 81.90 DPP v Collins [2006] 1 WLR 2223 .............................................................................. 76.130 DPP v Cummings (2006) 46 MVR 84 ............................................................ 36.110, 89.140 DPP v Dahl (1997) 96 A Crim R 502 .......................................................................... 90.100 DPP v Fidler [1992] 1 WLR 91 .................................................................................... 15.100 DPP v Gribble (2004) 151 A Crim R 256 .......................................................... 8.140, 9.140 DPP v Hamilton (2011) 33 VR 505 ................................................................................ 8.180 DPP v His Honour Judge Fricke [1993] 1 VR 369 ......................................................... 2.10 DPP v Hogg (2006) 162 A Crim R 564 .................................................................. 2.20, 2.30 DPP v Kypri (2011) 33 VR 157 ........................................................... 1.60, 2.10, 2.40, 2.50 DPP v Magistrates’ Court [1999] VSC 455 ..................................................................... 1.30 DPP v Meade [2011] VSC 358 ..................................................................................... 36.110 DPP v Meaden [2004] 1 WLR 945 ................................................................................ 8.140 DPP v Miers (1997) 96 A Crim R 408 ......................................................................... 90.100 DPP v Moore (2003) 6 VR 430 ........................................................................................ 2.30 DPP v Morrison [2003] Crim LR 727 .......................................................................... 89.110 DPP v Pastras (2005) 11 VR 449 .................................................................... 79.130, 90.100

Table of Cases

xxiii

DPP v Ross (unreported, Supreme Court of Victoria, 7 January 1993) ............................................................................................................................. 2.40 DPP v Sabransky [2002] VSC 143 ................................................................................... 2.30 DPP v Sher [2000] VSC 268 .......................................................................................... 60.90 DPP v Sutcliffe [2001] VSC 43 .................................................................................... 39.120 DPP v Velevski (1994) 20 MVR 426 ............................................................................... 2.40 DPP v Vivier [1991] 4 All ER 18 ................................................................................. 76.100 DPP v Webb [1993] 2 VR 403 ......................................................................................... 2.40 DPP v Whyte [1972] AC 849 ........................................................................................ 76.110 DPP Reference No 1 of 1992 [1992] 2 VR 405 .............................................................. 5.40 DPP Reference No 2 of 2001 (2001) 4 VR 55 ....................................................... 2.40, 2.50 Dalton v Bartlett (1972) 3 SASR 549 .......................................................................... 76.110 Daly v Medwell (1986) 40 SASR 281 ......................................................................... 58.100 Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635 ...................................................................................................... 4.30 De Moor v Davies [1999] VSC 416 ............................................................................... 9.140 Deing v Tarola [1993] 2 VR 163 .................................................................................... 92.90 Deveney v Sturt [1969] VR 174 ....................................................................................... 1.50 Dias v O’Sullivan [1949] SASR 195 .............................................................................. 69.90 Director-General for Planning & Infrastructure v Nealon (2003) 39 MVR 255 ............................................................................................................. 39.100 Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 .......................................................................................... 15.100 Doolan v Cooper [1962] SR (NSW) 719 ..................................................................... 60.100 Douglas v Langton (1992) 16 MVR 21 ........................................................................... 2.30 Dowling v Bowie (1952) 86 CLR 136 ............................................................................. 4.30 Doyle v Harvey [1923] VLR 271 ................................................................................... 43.90 Driscoll v The Queen (1977) 137 CLR 517 ................................................................. 80.130 Duncan v Demir (2009) 52 MVR 90 .................................................................... 1.50, 60.90 Dyson v Littlejohn (1901) 26 VLR 283 ....................................................................... 76.100

E Edwards v Raabe (2000) 117 A Crim R 191 ................................................................... 1.50 Eggins v Webber (1939) 56 WN (NSW) 73 .................................................................. 14.80 Enright v McIntosh (unreported, 30 July 1988) ............................................................... 2.30 Entick v Carrington (1765) 19 St Tr 1029; 95 ER 807 ............................................... 89.110 Environment Protection Authority v Alkem Drums Pty Ltd (2000) 121 A Crim R 152 ............................................................................................ 1.60

F F (Mental Patient - Sterilisation), Re [1990] 2 AC 1 ..................................................... 9.110 Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439 .................................. 9.90 Falkingham v Fregon (1899) 25 VLR 211 ...................................................... 89.110, 89.130 Ferguson v Walkely (2008) 17 VR 647 ........................................................................ 76.110 Field v Gent (1996) 67 SASR 122 ................................................................................. 26.80 Finn v Wallace [2016] VSC 10 ......................................................................................... 5.30 Fisher v Fisher [1988] VR 1028 ................................................................................... 39.100 Flaherty v Girgis (1987) 162 CLR 574 ............................................................................ 2.20 Flanagan v Remick (2001) 127 A Crim R 534 ................................................................ 2.50

xxiv

Table of Cases

Fogarty v Brown (1989) 17 NSWLR 21 ...................................................................... 60.100 Forbes v Caracatsanoutis [1974] VR 307 ....................................................................... 69.80 Forde v Skinner (1834) C & P 239 .................................................................................. 9.90 Fowler v Lanning [1959] 1 QB 426 ............................................................................... 9.130 Freston, Re (1883) 11 QBD 545 ................................................................................... 39.100 Fruendt v Hayes (1992) 59 A Crim R 430 ................................................................... 91.120

G Gebert v Innocenzi [1946] SASR 172 .......................................................................... 76.150 George v Rockett (1990) 170 CLR 105 .......................................................... 23.120, 70.130 Gigante v Hickson (2001) 3 VR 296 .................................................................. 2.40, 39.120 Giumelli v Johnston (1991) Aust Torts Rep 81-805 ...................................................... 9.120 Glenister v Magistrates’ Court [2014] VSC 265 .............................................................. 2.40 Glynn v Simmons [1952] 2 All ER 47 ......................................................................... 76.100 Goddard v Collins [1984] VR 919 ................................................................................. 8.160 Grassby v The Queen (1989) 168 CLR 1 ........................................................................ 3.20 Gray v Chief Constable of Greater Manchester [1983] Crim LR 45 ................................................................................................................................. 14.80 Griffiths v The Queen (1977) 137 CLR 293 .................................................................. 17.70 Gul v Creed [2010] VSC 185 ....................................................................................... 76.110 Guss v Magistrates’ Court [2003] VSC 365 ....................................................... 2.20, 39.100

H HA v The Queen (2013) 38 VR 154 ................................................................................ 2.40 Hackwill v Kay [1960] VR 632 ..................................................................... 1.60, 2.40, 2.50 Haisman v Smelcher [1953] VLR 625 ......................................................................... 27.100 Halliday v Nevill (1984) 155 CLR 1 ............................................................................ 89.110 Hammond v The Queen (2013) 85 NSWLR 313 .......................................................... 95.90 Hardman v Minehan (2003) 57 NSWLR 390 .............................................................. 76.100 Hargreaves v Bourdon [1963] VR 89 ............................................................................... 2.20 Harris, Ex parte; Re Carne (1936) 53 WN (NSW) 87 ................................................... 69.80 Harrison v Hegarty [1975] VR 362 ................................................................. 69.100, 69.110 He Kaw Teh v The Queen (1985) 157 CLR 523 ..................... 39.130, 59.90, 65.80, 91.130 Health, Minister for v Bellotti [1944] 1 KB 298 ............................................ 89.110, 89.130 Heanes v Herangi (2007) 175 A Crim R 175 ............................................................... 76.110 Hedberg v Woodhall (1913) 15 CLR 531 ........................................................................ 2.50 Helfenbaum v Sattler [1999] 3 VR 583 ........................................................................... 2.60 Hill v Ellis [1983] 1 QB 680 .......................................................................................... 8.150 Hinch v Attorney-General (Vic) (1987) 164 CLR 15 ......................................... 21.90, 22.90 Hinchcliffe v Sheldon [1955] 1 WLR 1207 ................................................................... 8.150 Hogben v Chandler [1940] VLR 285 ............................................................................. 8.150 Hookey v Foster [1931] VLR 285 .................................................................................. 69.80 Hortin v Rowbottom (1993) 61 SASR 313 .................................................................. 76.110 Hubbard v Pitt [1976] 1 QB 142 ....................................................................... 15.80, 15.100

I Iannella v French (1968) 119 CLR 8 ............... 15.110, 34.90, 88.100, 89.100, 94.90, 95.80

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xxv

In the Appeal of Camp [1975] 1 NSWLR 452 ............................................................ 76.100 Inglis v Fish [1961] VR 607 ............................................................................ 76.100, 76.130 Innes v Weate [1984] Tas R 14 ....................................................................................... 8.140

J J Lyons & Sons v Wilkins [1899] 1 Ch 811 ................................................................ 15.100 Jackson, Ex parte; Re Dowd (1932) 49 WN (NSW) 126 ............................................ 76.160 Jayasena v The Queen [1970] AC 618 ............................................................................. 4.30 John Calder (Publications) Ltd v Powell [1965] 1 QB 509 ........................................ 76.110 John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 .................................. 2.10 Johns v Berry [1934] SASR 111 ................................................................................... 69.100 Johnson v Colier (1997) 142 FLR 409 ......................................................................... 58.100 Johnson v Miller (1937) 59 CLR 467 .............................................. 2.10, 2.40, 3.20, 58.110 Johnson v Phillips [1976] 1 WLR 65 ............................................................................. 8.150 Jones v Sherwood [1942] 1 KB 127 ................................................................................. 9.90 Jordan v Burgoyne [1963] 2 QB 744 ........................................................................... 76.150

K K, Re (1993) 46 FCR 336 ............................................................................................... 8.140 Keane v Police (1997) 69 SASR 481 ........................................................................... 39.140 Kelly v Von Einem (1995) 84 A Crim R 37 .................................................................... 2.30 Kenlin v Gardiner [1967] 2 QB 510 ............................................................................... 8.140 Kennett v Holt [1974] VR 644 ......................................................................................... 2.50 Kerr v Hannon [1992] 1 VR 43 .............................................................................. 1.60, 2.40 Kilby v The Queen (1973) 129 CLR 460 .................................................................... 80.130 King, Ex parte; Re Blackley (1938) 38 SR (NSW) 483 ................................................ 69.90 Kirk v Industrial Court (NSW) (2010) 239 CLR 531 ..................................................... 2.40 Kitchen v Cox (1996) 85 A Crim R 328 ...................................................................... 90.100 Knight v The Queen (1988) 35 A Crim R 314 ................................................................ 9.90 Kuru v New South Wales (2008) 236 CLR 1 .............................................................. 89.110

L L v L [2016] VSC 182 ..................................................................................... 22.130, 39.100 La Trobe University v Robinson [1972] VR 883 ........................................... 39.100, 89.120 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 ............................................................................................................................. 76.130 Laurie v Carroll (1958) 98 CLR 310 ................................................................................ 2.20 Ledwith v Roberts [1937] 1 KB 232 ................................................................... 69.80, 69.90 Lenfield, Re (1993) 114 FLR 195 ................................................................................... 9.120 Lenthall v Curran [1933] SASR 248 .............................................................................. 8.150 Leonard v Morris (1975) 10 SASR 528 .................................................. 8.120, 8.150, 8.160 Lewis v Cox [1985] QB 509 ........................................................................................... 8.150 Lindley v Rutter [1981] QB 128 ..................................................................................... 9.140 Lipman v McKenzie (1903) 5 WALR 17 ..................................................................... 76.140 Lipohar v The Queen (1999) 200 CLR 485 ................................................................. 39.120 Lippl v Haines (1989) 18 NSWLR 620 ........................................................................ 89.110 Lovell, Ex parte; Re Buckley (1938) SR (NSW) 153 ..................................................... 2.40

xxvi

Table of Cases

Ludlow v Burgess (1971) 75 Cr App R 227 .................................................................. 8.140 Lunt v Bramley [1959] VR 313 .................................................................................... 76.100 Lynch v Hargreaves [1971] VR 99 ................................................................................. 31.80 Lynch v Sloan [1959] VR 656 .......................................................................................... 1.50

M MacKay v Abrahams [1916] VLR 681 ............................................................. 8.150, 89.110 Maingay v Mansfield (1919) 21 WALR 70 .................................................................... 8.150 Mansfield v Kelly [1972] VR 744 ..................................................................... 31.80, 76.100 Marchesi v Barnes [1970] VR 434 ................................................................................... 3.20 Marks-Vincenti v The Queen (2015) 45 VR 313 ......................................................... 89.110 Marsden v O’Callaghan [1938] VLR 87 ...................................................................... 89.120 McAneny v Kearney; Ex parte Kearney [1966] Qd R 306 ......................................... 76.100 McDonald v Carter [1905] VLR 181 .................................................................. 45.80, 95.90 McDonald v Sherrin (1998) 8 Tas R 146 ....................................................................... 31.90 McIvor v Garlick [1972] VR 129 ................................................................................. 76.100 McKenzie v Dabonde [1952] VLR 177 ................................................................ 2.50, 7.100 McKenzie v Stratton [1971] VR 848 ............................................................................ 76.100 McLiney v Minster [1911] VLR 347 .................................................................. 8.140, 9.140 McMahon v DPP (unreported, Court of Appeal, 20 June 1995) ..................................... 2.40 McNamara v Duncan (1971) 45 FLR 152 ..................................................................... 9.120 Melser v Police [1967] NZLR 437 ................................................................................. 28.90 Moloney v Mercer [1971] 2 NSWLR 207 ................................................................... 76.110 Momcilovic v The Queen (2011) 245 CLR 1 ......................................... 4.30, 47.100, 82.80 Monis v The Queen (2013) 249 CLR 92 ........................................................ 76.110, 76.130 Moore v Green [1983] 1 All ER 663 ............................................................................. 8.160 Moors v Burke (1919) 26 CLR 265 ......................................... 54.90, 90.90, 90.100, 91.130 Morris v Beardmore [1980] AC 446 ............................................................................. 89.110 Morse v Police [2012] 2 NZLR 1 ................................................................................... 28.90 Murdoch v Smith (2006) 15 VR 186 ............................................................................... 2.20 Mutemeri v Cheesman [1998] 4 VR 484 ......................................................................... 9.90

N Neill v County Court (2003) 40 MVR 265 ...................................................................... 5.40 Nelson v Mathieson [2003] VSC 451 ........................................................................... 76.130 New South Wales v Koumdjiev (2006) 63 NSWLR 353 ............................................ 89.110 Nguyen v Magistrates’ Court [1994] 1 VR 88 ........................................ 20.90, 21.90, 22.90 Nicholls v Young [1992] 2 VR 209 .............................................................................. 90.100 Nicholson v Avon [1991] 1 VR 212 ............................................................................. 89.110 Nilsson v McDonald (2009) 19 Tas R 173 ........................................ 70.130, 70.140, 76.100 Nitz v Evans (1993) 19 MVR 55 ..................................................................................... 2.20 Nixon v Random House Australia Pty Ltd (2000) 2 VR 523 ........................ 21.100, 22.100 Normandale v Rankin (1972) 4 SASR 205 .................................................................... 31.90

O O v Wedd [2000] TASSC 74 ......................................................................................... 89.110 O’Connor v Hammond (1902) 21 NZLR 573 ................................................................ 69.90

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xxvii

O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286 ............................................................................................. 23.120, 70.130 O’Sullivan v Tregaskis [1948] SASR 12 ...................................................................... 90.100 O’Sullivan, Re (1995) 57 FCR 145 .............................................................................. 39.100 Olholm v Eagles [1914] VLR 379 .................................................................... 69.80, 69.100 Olson v Johnson [1917] VLR 206 ................................................................................ 69.100

P Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331 ...................................................... 9.120 Parhizkar v The Queen (2014) 88 NSWLR 647 .......................................................... 76.160 Parkin v Norman [1983] 1 QB 92 ................................................................................ 76.150 Patch v Ebbage; Ex parte Patch [1952] St R Qd 32 ...................................................... 8.150 Patel v The Queen (2012) 247 CLR 531 ........................................................................ 9.110 Peach v McCarthy [1919] VLR 342 ............................................................................... 8.150 Pearcey v Chianta (1987) 6 MVR 10 ............................................................................... 2.40 Pell v The Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391 ........................................................................................ 76.120 Perkins v County Court (2000) 2 VR 246 ................................................................... 58.120 Perkins, Re; Ex parte Westpac Banking Corp [1999] FCA 986 .................................. 39.100 Pitt v Baxter (2007) 34 WAR 102 ................................................................................ 89.110 Plenty v Dillon (1991) 171 CLR 635 .................................................................. 2.20, 89.110 Plumb v Rayner (1995) 84 A Crim R 402 ..................................................................... 8.150 Plunkett v Kroemer [1934] SASR 124 ........................................................................... 8.150 Poidevin v Semaan (2013) 85 NSWLR 758 .................................................................. 8.140 Police v Beukes (2011) 205 A Crim R 406 .................................................................. 39.130 Police v Greaves [1964] NZLR 295 ................................................................................. 9.90 Police v Kennedy (1998) 71 SASR 175 ....................................................................... 91.140 Pritchard v Jeva Singh [1915] VLR 510 .......................................................................... 2.20 Prothonotary of the Supreme Court (NSW) v Rakete [2010] NSWSC 5 ............................................................................................. 20.90, 21.90, 22.90 Proudfoot v Power [1905] VLR 610 ................................................................................ 1.50

R R R R R R R R R R R R R R R

v Abdul-Rasool (2008) 18 VR 586 ........................................................................... 83.130 v Anderson [1972] 1 QB 304 .................................................................................... 76.110 v Australian Broadcasting Corporation [2007] VSC 498 ............................... 21.90, 22.90 v Barnes [2005] 1 WLR 910 ....................................................................................... 9.120 v Basso (1999) 108 A Crim R 392 ................................................................ 10.90, 11.110 v Beckett (2015) 256 CLR 305 ................................................................................. 37.140 v Berry [1985] 1 AC 246 .......................................................................................... 39.120 v Brown [1994] 1 AC 212 .......................................................................................... 9.110 v Buckett (1995) 126 FLR 435 ................................................................................. 79.130 v Bundy [1977] 1 WLR 914 ....................................................................................... 54.80 v Burgess (2005) 152 A Crim R 100 .......................................................................... 9.160 v Burnside [1962] VR 96 ............................................................................................ 43.90 v Buswell [1972] 1 WLR 64 ......................................................................... 59.90, 91.130 v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] QB 458 ......................................................... 70.140

xxviii

Table of Cases

R v Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury [1991] 1 QB 429 ................................................................................... 76.120 R v Clarence (1888) 22 QBD 23 ...................................................................................... 9.90 R v Clarke [1986] VR 643 .............................................................................................. 82.80 R v Close [1948] VLR 445 ........................................................................................... 76.110 R v Coney (1882) 8 QBD 534 ........................................................................................ 9.120 R v Cotter [2003] QB 951 ............................................................................................ 37.140 R v Doukas [1978] 1 WLR 372 ................................................................................... 54.100 R v E (A Child) (1994) 76 A Crim R 343 ................................................................... 76.110 R v Ellames [1977] 1 WLR 1391 ................................................................................. 54.100 R v Fallon (1981) 28 SASR 394 .................................................................................. 83.130 R v Fonyodi [1963] VR 86 ............................................................................................. 94.80 R v Fuller [1970] 3 NSWR 320 ................................................................................... 80.130 R v Gabriel (2004) 182 FLR 102 ..................................................................................... 9.90 R v Gibson [1990] 2 QB 619 ........................................................................................ 76.110 R v Goodwin [1944] 1 KB 518 ...................................................................................... 31.80 R v Hamilton (1891) 12 LR (NSW) 111 .............................................................. 9.90, 9.150 R v Hamilton [2008] 1 QB 224 .................................................... 51.80, 52.80, 53.80, 94.80 R v Hargreaves [1985] Crim LR 243 ........................................................................... 54.100 R v Harrison [1970] Crim LR 415; [1970] EWCA Crim J0319-5 ............................. 54.100 R v Hartwick (1985) 17 A Crim R 281 .......................................................................... 54.90 R v Head [1978] Crim LR 427 ....................................................................................... 13.70 R v Hinch [2013] VSC 520 ................................................................................. 21.90, 22.90 R v Howell [1982] 1 QB 416 ....................................................................................... 70.140 R v Industrial Appeals Court; Ex parte Circle Realty Pty Ltd [1980] VR 459 .............................................................................................................. 1.60 R v Ireland [1998] AC 147 ............................................................................................... 9.90 R v Jones (John) [1976] 1 WLR 672 ........................................................................... 89.110 R v Keenan (1994) 76 A Crim R 374 ............................................................................ 8.150 R v Kelt [1977] 1 WLR 1365 ......................................................................................... 54.90 R v Land [1999] QB 65 ................................................................................................ 91.140 R v Langford (1843) Car & M 602; 174 ER 653 ........................................................ 76.160 R v Lloyd; Ex parte Rowan (1876) 2 VLR (L) 227 .................................................... 89.110 R v Madden [1975] 1 WLR 1379 ................................................................................. 37.150 R v Mansfield [1975] Crim LR 101 ............................................................................. 54.100 R v Marabito (1990) 50 A Crim R 412 .......................................................................... 82.80 R v Marijancevic (1991) 54 A Crim R 431 ................................................................. 54.100 R v Martindale [1986] 1 WLR 1042 ................................................................. 59.90, 91.130 R v McGowan [1984] VR 1000 ....................................................................................... 2.30 R v McKay [1957] VR 560 ............................................................................................ 9.160 R v McLean (2000) 2 VR 118 ...................................................................................... 79.140 R v Nguyen [2013] VSC 46 .......................................................................................... 16.110 R v Nuri [1990] VR 641 ............................................................................................... 83.130 R v OM (2011) 212 A Crim R 293 .............................................................................. 37.140 R v Oldham (1852) 2 Den 472; 169 ER 587 ............................................................... 59.100 R v Ormsby [1945] NZLR 109 ....................................................................................... 31.90 R v Patterson [1962] 2 QB 429 ....................................................................... 59.100, 59.110 R v Pawlicki [1992] 1 WLR 827 .................................................................................... 54.90 R v Plevac (1995) 84 A Crim R 570 ............................................................................ 80.130 R v Portelli (2004) 10 VR 259 ....................................................................................... 9.160 R v Previsic (2008) 185 A Crim R 383 .......................................................................... 95.90

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xxix

R R R R R R R R R R R R R R R R R R R R R R R R R R R R R

v Raabe (1984) 14 A Crim R 381 ............................................................................... 9.110 v Raad [1983] 3 NSWLR 344 ..................................................................... 70.130, 83.130 v Ray [2000] VSC 430 .................................................................................................. 1.30 v Reinsch [1978] 1 NSWLR 483 ................................................................................ 94.80 v Reynhoudt (1962) 107 CLR 381 ............................................................................. 8.120 v Rimmington [2006] 1 AC 459 ............................................................................... 37.150 v Rogerson (1992) 174 CLR 268 ............................................................................. 37.140 v Rondo (2001) 126 A Crim R 562 ............................................................. 70.130, 79.130 v Rowell [1978] 1 WLR 132 .................................................................................... 37.140 v Saik [2007] 1 AC 18 .............................................................................................. 83.130 v Sakalauskas [2014] 1 WLR 1204 .......................................................................... 54.100 v Sessions [1998] 2 VR 304 ......................................................................................... 5.40 v Sheppard [1981] AC 394 ........................... 15.110, 34.90, 88.100, 89.100, 94.90, 95.80 v St George (1840) 173 ER 921; 9 Car & P 483 ........................................................ 9.90 v Stanley [1965] 2 QB 327 ....................................................................................... 76.110 v Stein (2007) 18 VR 376 ........................................................................................... 9.110 v Sweeney [1984] 1 Qd R 628 ................................................................................. 76.100 v Tait [1996] 1 VR 662 ................................................................................................. 1.60 v Templeton; Ex parte England (1877) 3 VLR (L) 305 .............................................. 2.50 v Thomas (Derek) [1979] 1 QB 326 ........................................................................ 37.140 v Thompson (1869) 21 LT 397 ................................................................................... 59.90 v Thornley (1981) 72 Crim App R 302 .................................................................... 89.110 v Towe [1953] VLR 381 ............................................................................................. 94.80 v Waterfield [1964] 1 QB 164 .................................................................................... 8.140 v Wellard (1884) 15 Cox 559; 14 QBD 63 .............................. 51.80, 52.80, 53.80, 94.80 v Wilson [1997] 1 QB 47 ............................................................................................ 9.110 v Youssef (1990) 50 A Crim R 1 .................................................................................. 4.30 v Zotti (2002) 82 SASR 554 ..................................................................................... 79.130 (app of Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105 ................................................................................ 70.140 Rawlings v Smith [1938] 1 KB 675 ............................................................................... 69.80 Reardon v O’Sullivan [1950] SASR 77 ......................................................................... 69.90 Registrar of the Supreme Court v Herald & Weekly Times Ltd [2004] SASC 129 ............................................................................................ 21.90, 22.90 Registrar of the Supreme Court v Nationwide News Ltd (2004) 89 SASR 113 ................................................................................................... 21.90, 22.90 Rice v Connolly [1966] 2 QB 414 ...................................................................... 8.140, 8.150 Rich v Groningen (1997) 95 A Crim R 272 ................................................................... 24.90 Rinaldi v Watts (2003) 138 A Crim R 456 .................................................................. 79.120 Romeyko v Samuels (1972) 2 SASR 529 .................................................................... 76.110 Rowe v Galvin [1984] VR 350 ..................................................................................... 90.100 Rowe v Kemper [2009] 1 Qd R 247 ................................................. 70.120, 70.130, 70.150

S Saleeba v Beck (1991) 54 A Crim R 114 ......................................................................... 2.40 Samuels v Stokes (1973) 130 CLR 490 ....................................................................... 69.100 Sargood v Veale (1891) 17 VLR 660 ............................................................................... 1.50 Saric v Elliott [2013] VSC 509 ......................................................................................... 2.60 Sawtell v Regan (1882) 3 LR (NSW) 362 ................................................................... 76.100 Schmidt v Newsom [2016] VSC 249 ............................................................................... 2.40

xxx

Table of Cases

Schroder v Samuels (1973) 5 SASR 198 ..................................................................... 60.100 Scott v Howard [1912] VLR 189 ................................................................................. 76.160 Shaw v Medvecky [1959] VR 733 ............................................................................... 76.100 Sid Ross Agency Pty Ltd v Actors and Announcers Equity Association of Australia [1971] 1 NSWLR 760 ..................................................... 15.100 Slaveski v Victoria [2010] VSC 441 ................................................................................ 9.90 Smith v Van Maanen (1991) 14 MVR 365 ...................................................................... 2.40 Spatolisano v Hyde [2009] ACTSC 161 ....................................................................... 70.150 Stanley v Powell [1891] 1 QB 86 ................................................................................... 9.130 Stefanovski v Murphy [1996] 2 VR 442 ........................................ 3.20, 20.90, 21.90, 22.90 Stephens v Melis (2002) 131 A Crim R 377 ................................................................ 39.100 Stephens v Myers (1830) 172 ER 735 ............................................................................. 9.90 Sykes v Holmes [1985] Crim LR 791 ..................................................... 87.90, 88.90, 89.90

T Taikato v The Queen (1996) 186 CLR 454 .................................................................. 91.120 Tankey v Smith (1981) 36 ACTR 19 ............................................................................. 8.150 Temoannui v Ford (2009) 231 FLR 216 ...................................................................... 70.120 Terbutt v Holmes (1935) 52 WN (NSW) 223 ................................................................ 8.150 Thiessen v Fielding (1890) 16 VLR 666 .......................................................................... 2.30 Thomas v National Union of Mineworkers (South Wales Area) [1986] 1 Ch 20 ......................................................................................................... 15.100 Thomas v Sawkins [1935] 2 KB 249 ........................................................................... 89.110 Thompson v Judge Byrne (1999) 196 CLR 141 .............................................................. 5.40 Thompson v Vincent (2005) 153 A Crim R 577 .......................................................... 89.110 Thomson v Lee [1935] VLR 360 ..................................................................................... 2.50 Tran v Magistrates’ Court of Victoria [1998] 4 VR 294 ........................ 20.90, 21.90, 22.90 Trobridge v Hardy (1955) 94 CLR 147 ........................................................................ 70.150 Tuberville v Savage (1669) 1 Mod 3; 86 ER 684 ........................................................... 9.90

U Uren v Neale (2009) 196 A Crim R 415 .......................................................................... 2.20

V Vines v Djordjevitch (1955) 91 CLR 512 ........................................................................ 4.30

W Wakeman v Robinson (1823) 1 Bing 213; 130 ER 86 .................................................. 9.130 Walker, Ex parte; Re Goodfellow (1944) 45 SR (NSW) 103 ......................................... 2.10 Walley v Mansell [2007] WAR 56 ................................................................................ 70.120 Walpole v Bywood Pty Ltd [1965] VR 157 ..................................................................... 2.50 Walters v Magistrates’ Court of Victoria [2015] VSC 88 ...................................... 2.50, 2.60 Ward v Marsh [1959] VR 26 ........................................................................................ 76.100 Ward v The Queen (1980) 142 CLR 308 ..................................................................... 39.120 Ward, Lock & Co Ltd v Operative Printers’ Assistants’ Society (1906) 22 TLR 327 .................................................................................................. 15.100

Table of Cases

xxxi

Warner v Sunnybrook Ice Cream Pty Ltd [1968] VR 102 .............................................. 2.40 Watson v Trenerry (1998) 145 FLR 159 ........................................................................ 28.90 Williams & Glyn’s Bank Plc v Astro Dinamico Compania Naviera SA [1984] 1 WLR 438 ................................................................................... 2.20 Williamson v Wright [1924] SC(J) 57 .......................................................................... 69.100 Willis v Burnes (1921) 29 CLR 511 ............................................................................. 90.110 Willmott v Atack [1977] QB 498 ................................................................................... 8.160 Wilson v New South Wales (2010) 207 A Crim R 499 ............................................... 88.140 Woolmington v DPP [1935] AC 462 ................................................................................ 4.10 Woolworths (Victoria) Ltd v Marsh (unreported, Supreme Court of Victoria, 12 June 1986) ........................................................................................... 2.40 Worcester v Smith [1951] VLR 316 ............................................................................. 76.130 Wright v Mooney [1966] VR 225 ..................................................................................... 2.10 Wynne v Lockyer [1978] VR 279 ..................................................................... 69.80, 69.100

Y Yeates v Hoare [1981] VR 1034 .......................................................... 47.100, 59.90, 91.130 Yeo v Capper [1964] SASR 1 ....................................................................................... 90.100 Young v Owen (1972) 19 FLR 70 .................................................................................. 8.150

Z Zecevic v DPP (Vic) (1987) 162 CLR 645 .................................................................... 9.160 Znotins v Harvey [2015] ACTSC 241 ............................................................................ 81.90

Table of Statutes Commonwealth

s 95: 89.110

Police Act 1838 Crimes Act 1914: 58.80 s s s s s s s s s s s

3LA: 6.70 13: 1.50 30J(2): 15.90 30K: 15.90 36A: 58.80 39: 58.80 40: 58.80 47A: 33.70 47B: 33.70 89: 87.90, 88.90, 89.90 465AA: 6.70

s 8: 8.110

Queensland Criminal Code Act 1899 Sch 1, s 288: 9.110

Police Powers and Responsibilities Act 2000 s 168: 89.110

South Australia

Criminal Code Act 1995: 79.80 s s s s s

400.8: 79.80 400.9: 79.80 471.12: 67.80 474.18: 34.80, 35.80, 36.80, 37.80 474.22: 51.90, 61.80

Domestic Violence Act 1991: 39.130 Summary Offences Act 1953 s 51(1): 26.80

Victoria

Defence Act 1903 s 72P: 87.90, 88.90, 89.90

Fair Work Act 2009: 89.110 s 415: 15.100 s 481: 89.110 s 483A: 89.110 s 484: 89.110 Pt 3.4, Div 6: 89.110

Legislation Act 2003 s 8: 82.90 s 15C: 82.90 Ch 2, Pt 1: 82.90 Ch 2, Pt 3: 82.90

Legislation Rule 2016 r 9: 82.90

Poisons Standard 2015: 82.90 Sch 4: 82.90 Sch 8: 82.90 Sch 9: 82.90

Therapeutic Goods Act 1989 s 52D: 82.90

Work Health and Safety Act 2011: 89.110

New South Wales Law Enforcement (Powers and Responsibilities) Act 2002

Access to Medicinal Cannabis Act 2016: 29.60 s 3: 29.100 s 57: 29.100

Ambulance Services Act 1986 s 3: 34.100 s 23: 34.100 s 39(1)(d): 60.80 s 39AA: 34.10, 35.80, 36.80, 37.80 Sch 1: 34.100

Ambulance Services (Amendment) Act 2004: 8.110 Architects Act 1991 s 63: 1.50

Australian Consumer Law and Fair Trading Act 2012 s 193: 1.60 s 194: 1.50

Aviation Transport Security Regulations 2005 reg 3.17(2): 87.90, 88.90, 89.90

Bail Act 1977: 10.70, 10.80, 11.70, 12.70 s s s s

3: 10.80 5(1): 12.100 6: 12.100 30(1): 10.80, 12.10

xxxiv

Table of Statutes

Bail Act 1977 — cont s 30(2): 10.80, 12.80 s 30A: 10.70, 11.10, 12.70 s 30B: 10.10, 11.70, 12.70 s 31(1): 13.10 s 31(2): 13.80 s 32: 12.110 s 32A(1): 11.120 s 32A(2): 11.120

Bail Amendment Act 2013: 10.90, 11.110 Bail Regulations 2012 reg 5: 12.100 reg 6: 10.80

Births, Deaths and Marriages Registration Act 1996 s 46: 65.100, 91.140

Building Act 1993 s 241: 1.50 Pt 3: 1.50 Pt 4: 1.50 Pt 5: 1.50 Pt 7: 1.50 Pt 8: 1.50

Catchment and Land Protection Act 1994: 86.80

Cemeteries and Crematoria Act 2003: 89.160

Charter of Human Rights and Responsibilities Act 2006 s 25(1): 4.10 s 28: 6.80

Children’s Services Act 1996: 89.160 Children, Youth and Families Act 2005: 16.70 s 3(1): 16.80 s 162: 9.150 s 184(1): 16.70 s 344A: 1.60 s 345: 2.20 s 411: 10.90, 11.110 s 413: 10.90, 11.110 s 493: 9.150 s 493(1): 16.70 s 494(1): 16.10 s 494(2)(a): 16.90 s 494(2)(b): 16.100 s 498: 33.70 s 504: 58.130 s 516: 1.40, 37.120 s 534: 21.100, 22.100 s 537(5): 10.80

Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 s 57: 51.90, 61.80

s 57A: 51.90, 61.80

Commissioner for Law Enforcement Data Security Act 2005 Pt 2: 80.120

Confiscation Act 1997 s 123: 79.120, 79.130, 90.100 Sch 1: 79.120

Control of Weapons Act 1990: 91.80, 92.70, 93.70 s 3(1): 91.70, 91.100, 91.110, 91.130, 91.140, 92.90, 93.90 s 5(2): 93.100 s 5AA: 23.80, 91.80, 92.70, 93.10 s 6(1): 23.80, 91.10, 91.30, 91.40, 91.50, 91.60, 92.70, 93.70 s 6(1A): 91.40, 91.50, 91.60 s 6(1AA): 91.10, 91.30, 91.40, 91.50, 91.60 s 6(1AB): 91.10, 91.30, 91.40, 91.50, 91.60, 91.140 s 6(2): 91.10, 91.30, 91.40, 91.50, 91.60 s 6(3): 91.120, 92.120 s 7: 4.30 s 7(1): 23.80, 91.80, 92.30, 92.40, 92.50, 92.60, 93.70 s 7(1A): 92.30, 92.40, 92.50, 92.60 s 7(1) to (1A): 92.10 s 7(2): 92.120 s 8B: 93.100 s 8C: 93.110 s 9(3): 1.60 s 13: 93.100

Control of Weapons (Amendment) Act 2000: 93.100 Control of Weapons Amendment Bill 2010: 91.120

Control of Weapons Regulations 2011 Sch 2: 91.70 Sch 3: 93.90

Coroners Act 2008: 80.120 s 89: 58.130

Corrections Act 1986: 25.100 s 3(1): 25.90, 77.70 s 6C: 77.70 s 9A: 25.80, 25.100 s 11: 25.80 s 77: 77.50 s 77C: 77.50 s 78A(1): 77.10 s 84E: 33.70 s 104A: 24.80, 25.80 s 104AE: 25.100 s 104AG: 24.70, 25.10 Pt 1A: 77.70

Corrections (Police Gaols) Regulations 2015

Table of Statutes Corrections (Police Gaols) Regulations 2015 — cont reg 5: 24.80 reg 15(1)(a): 24.40, 24.60, 25.70 reg 15(1)(a) to (c): 24.10 reg 15(1)(b): 7.90, 24.40, 24.60 reg 15(1)(c): 24.40, 24.60

Corrections Regulations 2009 reg reg reg reg

83: 77.80 83A: 77.90 83B: 77.90 88A: 77.90

Country Fire Authority Act 1958: 35.110, 40.70, 41.70 s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s s

3(1): 36.90, 36.100, 36.110 23(1)(b): 36.100 34(1)(a): 40.70, 41.70 34(1)(b): 40.70, 41.70 34(2): 40.70, 41.70 34A: 41.90 37: 40.70, 41.70 37A: 40.70, 41.70 39(a): 40.70, 41.70 39(b): 40.70, 41.70 39(d): 40.70, 41.70 39A: 40.10, 41.70 39B: 40.90 39C: 40.70, 41.70 39E: 40.70, 41.70 40: 41.110 40(1): 41.100 40(4): 40.70, 41.110 40(4)(a): 41.10 40(4C): 41.110 40(4E): 41.110 40(10): 41.110 40(13): 41.100 40(14): 41.110 40(15): 41.100 41D: 40.70, 41.70 48(2): 40.70, 41.70 98AA(2): 89.90 106: 41.100 107(1): 8.100 107A(3): 60.80 107B: 34.80, 35.80, 36.90, 37.80 107B(1): 36.10 108: 36.110

Country Fire Authority Regulations 2014 reg 101(3): 36.100

County Court Act 1958 s 4: 58.130 s 21(2): 10.80

Court Security Act 1980: 19.40, 19.60, 20.70, 20.120, 21.70, 22.70, 23.70, 71.40, 80.70

xxxv

s 2: 19.80, 19.90 s 2(1): 19.70, 20.110, 20.120, 21.130, 23.110, 23.130 s 2A: 19.80 s 2B(3): 19.10 s 3(2)(a): 71.40 s 3(2)(a) to (c): 71.10 s 3(9): 23.110 s 3(10): 23.10 s 4: 23.70 s 4A: 80.70 s 4A(1): 20.10 s 4A(2): 21.40, 21.60 s 4A(2) to (4): 20.130, 21.140 s 4A(3): 21.40, 21.60 s 4A(4): 21.40, 21.60 s 4B: 20.70, 22.70, 80.70 s 4B(1): 21.10, 21.30, 21.40, 21.60 s 4B(3): 21.30, 21.40, 21.60, 21.130 s 4C: 20.70, 21.70, 80.70 s 4C(1): 22.10 s 4C(2): 22.130 s 4C(3): 22.130 s 4C(3)(b): 22.130 s 4C(4): 22.130 s 464JA: 21.80

Court Security Regulations 2015 reg 5: 19.70, 20.120

Crimes Act 1958: 6.80, 8.70, 9.110, 20.80, 21.80, 22.80, 27.70, 38.70, 39.70, 50.70, 55.70, 56.70, 57.70, 58.70, 59.70, 62.70, 69.70, 78.70, 79.70, 83.80, 90.80, 91.90, 92.80, 93.80 s s s s s s s s s s s s s s s s s s s s s s s

2A(1): 80.110 2B: 1.30 3(1): 74.80, 75.80 15: 9.90 16: 38.70, 78.70 17: 38.70, 78.70 19: 83.80 20: 38.70, 50.70, 78.70 21: 38.70, 50.70, 78.70 21A: 38.70, 39.120, 52.90, 78.70 22: 50.70 23: 50.70 29: 50.70 31: 8.70, 8.120, 50.70 31B: 23.80, 27.70, 91.90, 92.80, 93.80 34A: 9.110 46: 83.80 48(1): 76.170 51C: 53.90, 61.80 51D: 51.90, 62.70 53: 83.80, 83.100 68: 53.90, 61.80 81: 79.70

xxxvi

Table of Statutes

Crimes Act 1958 — cont s 87: 62.70 s 88: 79.70, 90.80 s 91: 27.70, 59.70, 69.70 s 91(1): 54.10 s 91(3): 54.100 s 193: 79.100, 79.110, 79.120 s 194(1): 79.70 s 194(2): 79.70 s 194(3): 79.70 s 194(4): 79.70 s 195: 79.10, 79.120, 79.130, 90.80 s 197: 55.70, 56.70, 79.120, 79.130, 90.100, 95.70 s 198: 38.70, 78.70 s 199: 57.70 s 206: 15.90 s 207: 15.90 s 249: 83.80 s 254: 58.70 s 257: 58.70 s 322G: 9.160 s 322I: 9.160 s 322K: 9.160 s 322O: 9.160 s 322R: 9.160 s 322S: 9.160 s 322T: 9.160 s 332I: 4.30 s 456AA: 71.70, 73.70 s 456AA(1): 75.40 s 456AA(3)(a): 74.40, 74.60 s 456AA(3)(a) to (c): 74.10 s 456AA(3)(b): 74.40, 74.60 s 456AA(3)(c): 74.40, 74.60 s 456AA(4) to (5): 75.10 s 456AA(5)(a): 75.40, 75.60 s 456AA(5)(b): 75.40, 75.60 s 456AA(5)(c): 75.40, 75.60 s 456AA(5)(d): 75.40, 75.60 s 456AAA(3): 6.40 s 458: 9.140, 30.110, 31.110, 33.80 s 459: 9.140, 30.110, 31.110 s 462A: 9.140 s 464(1): 90.100 s 464(3): 80.120 s 464B(5H): 80.90, 80.120 s 464G: 80.90, 80.120 s 464H: 29.80, 80.90, 80.120 s 464JA: 20.80, 22.80, 80.120 s 464JA(1): 80.90, 80.100, 80.120 s 464JA(2): 80.40, 80.60 s 464JA(2) to (7): 80.10 s 464JA(3): 80.40, 80.60, 80.140 s 464JA(4): 80.40, 80.60 s 464JA(5): 80.40, 80.60, 80.140

s 464JA(6): 80.40, 80.60, 80.130, 80.140 s 464JA(7): 80.40, 80.50, 80.60, 80.140 s 464JB: 80.40, 80.60, 80.130 s 464JC: 80.60, 80.130 s 464JD: 80.140 s 465AA(1): 75.60 s 465AAA: 6.10 s 474JC: 80.40 s 479C: 33.70 s 623: 9.160 Pt I, Div 8: 23.130

Crimes Amendment (Abolition of Defensive Homicide) Act 2014: 4.30, 9.160

Crimes Amendment (Child Pornography and Other Matters) Act 2015: 6.80 Crimes Amendment (Sexual Offences) Act 2016 s s s s s s s s

2: 76.170 15: 83.80 16: 51.90, 53.90, 61.80, 62.70 18: 53.90, 61.80 24: 76.170 25: 94.10 34: 51.90, 61.80 45: 61.120

Crimes (Family Violence) Act 1987: 1.50 Crimes Legislation Amendment (Food and Drink Spiking) Act 2009 s 4: 83.100

Criminal Law and Practice Statute 1864 s 67: 8.110

Criminal Procedure Act 2009: 2.10, 2.40 s 5: 1.60 s 6: 1.60 s 6(1): 2.10 s 6(2): 2.10 s 6(3): 2.20, 2.40 s 7: 1.60 s 7(1): 72.100 s 7A: 1.60 s 8: 2.50, 2.60 s 8(2): 2.60 s 8(4): 2.50 s 9: 2.40 s 9(1): 2.40 s 9(2): 2.40 s 12(5): 2.20 ss 12 to 19: 2.20 s 14: 2.20 s 19: 2.20 s 24: 3.10 s 27: 1.20 s 28: 1.30 s 32: 3.10, 3.20

Table of Statutes Criminal Procedure Act 2009 — cont s 35: 3.10 s 36: 3.30 s 37: 3.30 s 37(1)(f): 3.30, 3.40 s 39: 3.10, 3.40 s 41: 3.40 s 41(1)(a) to (c): 3.40 s 41(1)(d): 3.40 s 41(1)(e): 3.40 s 44: 3.30, 3.40 s 45: 3.30, 3.40 s 46: 3.30, 3.40 s 48: 3.30 s 54(1): 3.40 s 55: 3.40 s 56: 2.40 s 72: 2.40, 4.30 s 242: 1.30, 1.40 s 243: 1.30, 1.40 s 256: 2.60 s 256(2)(c): 2.60 s 259: 2.60 s 272: 2.60 s 330: 2.20 s 336: 3.40 s 337: 2.50 s 391: 3.30 s 394: 3.30 s 436: 37.120 Pt 3.2: 3.10 Sch 1: 2.20, 2.40 Sch 1, cl 1: 2.40 Sch 1, cl 2: 2.40 Sch 1, cl 3: 2.40 Sch 1, cl 4: 2.40, 4.30 Sch 1, cl 5: 2.40 Sch 1, cl 6: 2.40 Sch 1, cl 11: 2.40 Sch 1, cll 7 to 10: 2.40

Crown Proceedings Act 1958 s 6: 12.110

Dangerous Goods Act 1985: 49.60, 49.100 s 21: 49.100 s 40: 1.50

Dangerous Goods (Explosives) Regulations 2011: 49.100 Disability Act 2006: 89.160 Domestic Animals Act 1994 s 76(3): 8.100 s 92: 1.50

Drugs, Poisons and Controlled Substances Act 1981: 29.60, 29.70, 69.90, 82.40, 82.70, 82.100, 83.70 s 3(1): 29.90

xxxvii

s 4(1): 82.90 s 5: 82.80 s 33D: 83.70 s 34B: 83.70 s 34C: 83.70 s 36B: 29.70 s 36B(2): 82.10 s 45: 1.60 s 70(1): 29.80 s 73: 82.70 s 74: 83.70 s 75: 29.10 s 104: 4.20, 29.100, 82.110 s 122: 82.100 Sch 4: 82.60 Sch 8: 82.60, 83.70 Sch 9: 82.60, 83.70 Sch 11: 29.90

Drugs, Poisons and Controlled Substances Regulations 2006: 82.40 Education and Training Reform Act 2006: 89.160 s 2.4.60(1)(f): 9.150 s 4.3.1(6): 9.150

Electricity Safety Act 1998 s 145A: 1.50 s 148A: 1.60

Electronic Transactions (Victoria) Act 2000 s 8(1): 2.10 s 9(1): 2.10

Environment Protection Act 1970: 66.70, 67.70, 68.70 s 4(1): 66.80 s 45E: 68.70 s 45E(1): 66.10 s 45F: 66.70, 68.70 s 45L: 67.70 s 45M: 67.10 s 45N: 66.70, 68.10 s 59: 1.50 s 59(2): 66.80 s 59(5): 66.80 Pt VIIA: 66.80

Estate Agents Act 1980 s 95: 1.50

Evidence Act 2008: 58.130 s s s s

73: 65.100, 91.140 141(1): 4.10 141(2): 4.20 195: 21.100, 22.100

Evidence (Miscellaneous Provisions) Act 1958: 20.120 s 137: 21.100

Family Violence Protection Act 2008: 38.80, 39.80, 39.130

xxxviii

Table of Statutes

Family Violence Protection Act 2008 — cont s 31: 39.100 s 34: 39.100 s 35: 39.40, 39.60, 39.110 s 35(4): 39.110 s 37: 39.110 s 37(1)(b): 39.110 s 37(2): 38.80, 39.10 s 37(2A): 39.120 s 37(2B): 39.120 s 37A: 39.110 s 37A(2): 38.80, 39.80 s 38: 39.110 s 57: 38.40, 38.60, 38.110 s 57(1)(d): 39.100 s 57(4): 38.110 s 65: 38.110, 39.110 s 96: 38.40, 38.60, 38.110 s 96(4): 38.110 s 98(1)(e): 39.100 s 123: 38.110 s 123(2): 38.10, 39.80 s 123A: 38.110 s 123A(2): 38.80, 39.80 s 124: 38.110 s 125: 39.140 s 125A(1): 38.80, 39.80 s 153: 39.100 s 166: 21.100 s 201: 38.100 s 202: 39.100 s 203: 39.100 s 206: 39.100

Family Violence Protection Regulations 2008 reg 9: 38.110 reg 10A: 38.110 Sch 2: 38.110 Sch 2A: 38.110

Firearms Act 1996: 19.70, 23.130, 42.70, 43.70, 43.90, 44.70, 45.70, 45.80, 46.70, 47.70, 48.70, 49.40, 49.60, 49.70, 50.80 s 3(1): 43.90, 44.80, 46.120, 46.130, 47.90, 47.100, 47.110, 47.120, 47.130, 47.140, 47.150, 47.160, 49.80 s 3(4): 47.110 s 3A(1): 46.130 s 3B(1)(a): 46.130 s 5: 42.70 s 6: 42.70 s 6(1): 44.70, 47.10, 47.40 s 6(2): 44.70, 47.40 s 6(3): 47.70 s 6(4): 47.70 s 6(5): 47.70 s 6(5A): 44.70, 47.40

s 6A(1) to (4): 44.70, 47.70 s 8A: 47.120 s 9: 44.80 s 9(1): 47.170 s 9(6): 47.170 s 14(1): 47.180 s 14(1)(a): 44.40 s 14(1)(b): 44.40 s 14(1)(c): 44.40 s 14(5): 47.180 s 14(5)(a): 44.40 s 14(5)(b): 44.40 s 18: 44.80, 47.180 s 18(1): 47.170 s 19(1): 47.180 s 19(1)(a): 44.40 s 19(1)(b): 44.40 s 19(1)(c): 44.40 s 36(1): 44.10 s 36(1) to (4): 47.70 s 36(3A): 44.10 s 36(4): 44.10 s 41C: 51.10 s 54: 47.170 ss 54AA to 55: 47.170 s 58A: 49.60, 49.100 s 61(2): 47.10 s 121(1): 46.40, 46.50 s 121(1A): 46.40, 46.50 s 121(1) to (3A): 46.10 s 121(2): 46.40, 46.50 s 121(2A): 46.40, 46.50 s 122: 46.70, 49.70 s 124: 46.70 s 124(1): 49.40, 49.50, 49.60 s 124(1) to (3): 49.10 s 124(2): 49.40, 49.50, 49.60 s 124(3): 49.40, 49.50, 49.60 s 125: 49.70 s 126: 42.70, 46.70, 49.70 s 128: 45.10, 50.80 s 129: 43.70, 45.70, 48.70, 50.10 s 129A: 46.70, 49.70 s 130: 42.10, 43.70, 45.70, 48.70, 50.80 s 131: 43.70, 45.70, 50.80 s 131(1): 48.10 s 131(1)(a): 48.40, 48.60 s 131(1)(b): 48.40, 48.60 s 132: 45.70, 50.80 s 132(1): 43.10 s 145: 47.100 s 176: 47.200 s 189A: 47.80 Pt 2: 47.40, 47.60, 47.170 Pt 9: 20.120 Sch 1: 47.190

Table of Statutes Firearms Act 1996 — cont Sch 1, item 1: 44.40 Sch 1, items 1 to 3: 47.180 Sch 1, item 2: 44.40, 47.180 Sch 1, item 3: 44.40, 47.180 Sch 2: 47.190 Sch 2, item 1: 44.40, 47.180 Sch 2, item 4: 44.40, 47.180 Sch 3: 47.170 Sch 4: 46.140 Sch 4, item 1: 46.40, 46.60 Sch 4, item 2: 46.40, 46.60

Firearms Regulations 2008 reg 20: 47.110

Fisheries Act 1995: 11.120 s 111(2): 8.100 s 127: 1.60

Food Act 1984 s 45(2): 1.60 s 45AC: 1.50

Fundraising Act 1998 s 7: 14.70

Graffiti Prevention Act 2007: 55.80, 56.80, 56.110, 57.80 s s s s s s

3: 55.100, 55.120, 57.90, 57.110, 57.120 5: 55.10, 56.80, 95.70 6: 55.80, 56.10 7: 57.10 7(2): 57.100 8: 57.80

Independent Broad-based Anti-corruption Commission Act 2011: 19.70, 20.120, 80.120 s 42: 20.120 s 117: 20.120 s 119: 20.120

Inquiries Act 2014: 19.70, 20.120 Interpretation of Legislation Act 1984: 1.20 s s s s s

14: 93.100 36(3A): 52.120, 81.130 36A: 76.170 40: 19.90 51: 5.40

Judicial Proceedings Reports Act 1958 s s s s

3(1)(a): 21.100, 22.100 3(1)(b): 21.100, 22.100 3(1)(c): 21.100, 22.100 4(1A): 21.100, 22.100

Justice Legislation Miscellaneous Amendments Bill 2009: 80.80 Justices Act 1958: 2.20 s 18: 2.10 s 18(2): 2.20

Legal Aid Act 1978: 80.120 Legal Profession Uniform Law: 80.110

xxxix

Liquor Control Reform Act 1998: 1.50, 63.70, 64.70 s s s s s s s s s s s s s s

3(1): 64.90, 64.130, 64.150 3AB: 64.100 53C: 64.90 86: 64.90 108(4): 63.70 108(4)(a): 64.40, 64.60 108(4)(a) to (b): 64.10 108(4)(b): 64.40, 64.60 108(5): 64.160 114(2): 63.10, 64.70 123(1)(b): 65.10 135: 64.140, 65.100 136(1): 64.130, 65.80 136(2): 64.90

Local Government Act 1958 s 111: 5.20

Local Government Act 1989 s s s s s s s s s

224(1): 72.70 224(6) to (8): 72.10 224(8): 73.70, 74.70 224(8)(a): 72.40, 72.60 224(8)(b): 72.40, 72.60 224(8)(c): 72.40, 72.60 224A: 72.70 232(3): 1.60, 72.100 242(2): 72.70

Lotteries Gaming and Betting Act 1966 s 77: 1.50

Magistrates’ Court (Family Violence Protection) Rules 2008 s 5.01: 38.100 s 5.02: 39.100

Magistrates’ Court (Personal Safety Intervention Orders) Rules 2011: 78.100 r 5.01: 78.90 r 5.02: 78.100 r 5.05: 78.90

Magistrates’ Court Act 1971 s 26: 2.10

Magistrates’ Court Act 1989: 2.10 s s s s s s s s s

4: 58.130 18(5): 10.80 50: 2.50 53: 1.30 86: 2.60 126A: 1.50 130: 4.30 133: 1.50 134: 1.50

Magistrates’ Court Criminal Procedure Rules 2009 r 11: 2.20

xl

Table of Statutes

Magistrates’ Court (Summary Proceedings) Act 1971 s 5: 2.10

Major Crime (Investigative Powers) Act 2004: 19.70, 20.120 s 7: 20.120 s 35: 20.120 Pt 3: 80.120

Mental Health Act 2014: 19.70, 89.160 s 206: 20.120

Metropolitan Fire Brigades Act 1958 s 3(1): 35.90, 35.100, 36.110 s 4: 35.110 s 32A: 35.90 s 32D: 35.90 s 33: 34.80, 35.90, 36.80, 37.80 s 33(1): 35.10 s 71A(2): 89.90 s 75A(3): 60.80 s 75C(1): 8.100 Sch 2: 35.110

Metropolitan Fire Brigades (General) Regulations 2005 reg 17: 35.100 Sch 2: 35.100

Monetary Units Act 2004 s 5: 5.20

Occupational Health and Safety Act 2004 s 130: 1.50

Open Courts Act 2013 s 23: 21.100, 22.100 s 27: 21.100, 22.100 s 32: 20.100, 21.100, 22.100

Personal Safety Intervention Orders Act 2010 s s s s s s s s s s s s

40: 78.40, 78.60, 78.100 40(7): 78.100 76: 78.40, 78.60, 78.100 76(5): 78.100 100: 78.110 100(2): 78.10, 78.100 101: 78.100 123: 21.100 174: 78.90 176: 78.90 176(4): 78.90 177: 78.100

Police Offences Act 1890 s 98: 8.110

Police Offences Act 1912 s 85: 8.110

Police Offences Act 1915 s 40: 90.90 s 85: 8.110

Police Offences Act 1928 s 24: 76.150 s 85: 8.110

Police Offences Act 1958 s s s s

72(1)(h): 69.80 72(1)(j): 59.80 72(1)(l): 27.90 84: 8.110

Police Offences Statute 1865 s 72: 8.110

Prescribed Weapons Act 1989: 93.100 Professional Boxing and Combat Sports Act 1985: 9.120 Public Health and Wellbeing Act 2008 s 185D: 15.90

Public Prosecutions Act 1994: 80.120 s 22(1)(ba)(iii): 1.50

Racial and Religious Tolerance Act 2001: 1.50 s 24(4): 1.50 s 25(4): 1.50

Residential Tenancies Act 1997: 87.80, 88.80, 89.80 s s s s s s s s s s s s s s

91A: 87.80, 88.80, 89.80 142A: 87.80, 88.80, 89.80 206A: 87.80, 88.80, 89.80 206ZZP: 87.80, 88.80, 89.80 229: 87.80, 88.80, 89.80 273(1): 87.80, 88.80, 89.80 295(a): 87.80, 88.80, 89.80 295(b): 87.80, 88.80, 89.80 317K: 87.80, 88.80, 89.80 358: 87.80, 88.80, 89.80 368A: 87.80, 88.80, 89.80 369: 87.80, 88.80, 89.80 372: 87.80, 88.80, 89.80 377: 87.80, 88.80, 89.80

Road Management Act 2004 s 62: 15.90

Road Safety Act 1986: 1.50, 43.90 s s s s s s s s

3(1): 43.90 59(1)(a): 73.40, 74.70 59(1A): 73.80 59(2): 73.10 59(5A): 73.80 64A: 73.70 70(2): 4.20 77(2): 1.50

Road Safety Road Rules 2009: 70.90 r 203: 73.70 r 293: 15.90 r 304: 70.90, 73.70

Road Safety (Traffic Management) Regulations 2009

Table of Statutes Road Safety (Traffic Management) Regulations 2009 — cont reg 28: 14.70 Sentencing Act 1991: 5.40 s 3: 17.70 s 9: 5.30 s 10AA(8): 8.130 s 10AA(9): 8.140 s 16(3C): 10.90, 11.110 s 33: 10.90, 11.110 s 38(2): 18.70 s 45(1): 18.70 s 48M(2)(d): 18.50 s 48M(2)(e): 18.50 s 48M(2)(f): 18.50 s 48M(2)(g): 18.50 s 48M(2)(h): 18.50 s 60AA: 31.50 s 72: 17.70 s 72(2)(c): 17.70 s 75: 17.70 s 75(2)(c): 17.70 s 76: 31.50 s 78: 17.50 s 83AC: 17.10 s 83AD: 18.10 s 83AG: 17.80 s 83AH: 17.80 s 83AJ: 17.90 s 83AL: 17.90 s 83AM: 17.90 s 83AS: 18.50 s 83AT: 17.50 s 109: 1.30 s 110: 1.30, 5.20 s 112(1): 1.30 s 112(2): 1.30 s 113A: 5.30 s 113B: 5.30 Pt 3A, Div 2: 18.70

Sentencing Amendment (Emergency Workers) Act 2014 s 14: 8.110

Sentencing Regulations 2011 reg 16: 18.110 reg 17: 18.70 reg 31: 17.80

Serious Sex Offenders (Detention and Supervision) Act 2009 s 182: 21.100, 22.100

Sex Offenders Registration Regulations 2014 reg 13: 81.100

Sex Offenders Registration Act 2004: 81.70 s 3: 81.100

xli

s 6: 81.80 s 6(3) to (6): 81.80 s 7: 81.90 s 11: 81.90 s 11(3): 81.90 ss 12 to 14: 81.100 s 14(1): 81.100 s 14(1)(a): 81.110 s 14(1)(b): 81.110 s 14(1)(c): 81.110 s 14(1)(h): 81.110 s 14(1)(i): 81.110 s 14(1)(l): 81.110 s 16: 81.100 s 17: 81.100 s 18: 81.100 s 20: 81.100 s 21: 81.100 s 21A: 81.100 s 23: 81.100 s 33: 81.100 s 34: 81.100 s 46(1): 81.70 s 46(1A): 81.70, 81.110 s 46(1B): 81.10, 81.110 s 46(2): 81.140 s 46(3): 81.130 s 47: 81.70 s 50: 81.130 s 55: 81.130 s 66ZZB: 21.100, 22.100 s 68: 81.70 s 69: 81.70 s 73: 81.120 Sch 1: 81.90, 81.100 Sch 1, item 2: 81.100 Sch 2: 81.90, 81.100 Sch 3: 81.90 Sch 4: 81.90

Sex Offenders Registration Amendment Act 2016 s 8: 21.100, 22.100

Sex Offenders Registration Regulations 2014 reg 20: 81.130

Sex Work Act 1994 s 3: 76.100 s 16: 76.90

Summary Offences Act 1966: 8.40, 8.60, 8.90, 9.70, 15.70, 26.70, 27.80, 27.90, 28.70, 30.70, 31.70, 32.70, 34.70, 35.70, 36.70, 37.70, 38.90, 39.90, 40.80, 41.80, 51.70, 52.70, 53.70, 54.70, 55.90, 55.120, 56.90, 58.120, 58.130, 59.80, 61.70, 62.80, 63.80, 64.80, 65.70, 69.80, 70.80, 76.70,

xlii

Table of Statutes

Summary Offences Act 1966 — cont 76.100, 76.110, 78.80, 79.90, 83.100, 84.70, 85.70, 86.70, 87.70, 88.70, 89.70, 90.70, 91.100, 94.70 s 3: 89.160 s 3(1): 86.80 s 4(e): 15.70, 70.80 s 5: 15.70, 70.80 s 6(2): 70.130 s 6(4): 15.70, 70.10 s 6(5): 70.150 s 7(g): 26.10, 95.70 s 9(1)(c): 26.70, 55.90, 56.90, 95.10 s 9(1)(d): 84.70, 85.70, 86.70, 87.70, 88.70, 89.10 s 9(1)(e): 84.70, 85.70, 86.70, 87.70, 88.10, 89.70 s 9(1)(f): 84.70, 85.70, 86.70, 87.10, 88.70, 89.70 s 9(1)(g): 76.70, 84.10, 85.70, 86.70, 87.70, 88.70, 89.70 s 9(1A): 89.140 s 9(1B): 88.100, 89.100 s 9(3): 89.110, 89.170 s 11: 40.80, 41.80 s 13: 30.70, 31.10, 32.70, 63.80, 64.80, 65.70 s 14: 28.70, 30.10, 31.70, 32.70, 63.80, 64.80, 65.70 s 15: 30.110, 31.110 s 16: 28.70, 30.70, 31.70, 32.10, 39.70, 63.80, 64.80, 65.70 s 17: 39.70, 76.170 s 17(1)(a): 76.30, 76.40, 76.60 s 17(1)(a) to (d): 76.10 s 17(1)(b): 56.90, 76.30, 76.40, 76.60 s 17(1)(c): 76.30, 76.40, 76.60 s 17(1)(d): 3.20, 7.70, 8.90, 9.70, 15.70, 28.70, 38.90, 39.90, 51.70, 52.70, 53.70, 56.110, 70.80, 76.30, 76.40, 76.60, 78.80, 84.70, 94.70 s 17(1A): 76.170 s 17A: 28.10, 30.70, 31.70, 32.70, 38.90, 39.90, 51.70, 52.70, 53.70, 63.80, 64.80, 65.70, 76.70, 78.80, 84.70, 94.70 s 18: 76.70 s 19: 76.70, 94.10 s 20: 39.70 s 21: 39.70 s 21A: 39.70 s 23: 7.70, 7.100, 8.90, 9.10, 26.70, 38.90, 39.90, 50.90, 78.80 s 24: 7.10, 7.100, 9.70, 38.90, 39.90, 50.90, 78.80, 84.70 s 26: 79.90, 90.10, 90.110 s 26(2): 90.110

s s s s s s

26(3): 90.100 30: 79.90, 90.70 31: 79.90, 90.70 34: 79.90, 90.70 37: 79.90, 90.70 40: 52.100, 52.110, 53.100, 61.90, 61.100, 61.110, 76.170 s 41A: 51.70, 52.10, 52.120, 53.70 s 41B: 51.70, 51.100, 52.70, 53.10 s 41C: 52.70, 53.70, 61.70, 62.80 s 41D: 51.120, 52.130, 53.130 s 41H: 83.10, 83.120 s 41H(1): 83.90, 83.100, 83.110 s 41H(2)(c): 83.110 s 41DA: 51.70, 52.70, 53.70, 61.10, 62.80 s 41DA(3): 61.120 s 41DA(3)(a): 61.120 s 41DB: 51.70, 52.70, 53.70, 62.10 ss 42 to 44A: 9.110 s 49A(1): 14.10 s 49B: 27.80, 69.10, 69.90, 69.120 s 49C(a): 27.40, 27.60 s 49C(a) to (b): 27.10 s 49C(b): 27.40, 27.60 s 49D: 27.80, 54.70, 59.10 s 49E: 7.70, 8.90, 9.70, 33.10 s 50A(7): 4.20 s 51: 7.70, 8.110, 9.70 s 51(2): 8.40, 8.60 s 51(2) to (4): 8.10 s 51(3): 8.40, 8.60 s 51(4): 8.40, 8.60 s 52(1A): 15.10, 70.80, 84.70, 86.70, 87.70, 88.70, 89.70 s 52A: 58.10 s 53: 34.70, 35.70, 36.70, 37.10 s 53(2)(a): 37.100 s 53(2)(b): 37.110 s 53(3): 37.120 s 53(5): 37.120 s 53(6): 37.120 s 53(6A): 37.130 s 56: 1.50 s 59: 1.40, 37.120 s 60: 1.40 s 198: 39.70 Div 4A: 76.170 Sch 1: 89.160 Sch 1, item 6: 89.160

Summary Offences Amendment (Upskirting) Bill 2007 s 1: 52.90

Supreme Court (Criminal Procedure) Rules 2008 r 1.04: 10.80

Table of Statutes Supreme Court (Criminal Procedure) Rules 2008 — cont r 1.13: 10.80

Town Police Clauses Act 1847 s 28: 26.80

Town and Country Police Act 1854 s 25: 8.110

Transport (Compliance and Miscellaneous) Act 1983 s s s s s

2(1): 85.100, 85.110 80: 85.100 218B(4): 73.70, 74.70 223: 85.10, 87.90, 88.90, 89.90 229: 1.50

Transport (Compliance and Miscellaneous) (Conduct on Public Transport) Regulations 2015 reg 26: 76.90

Transport Integration Act 2010: 85.100 s 116: 85.110

Unlawful Assemblies and Processions Act 1958 s 5: 15.90 s 10: 15.90

xliii

s 3(1): 60.90, 70.110 s 19: 60.90 s 27: 60.90 s 37: 70.110, 73.80 s 38: 70.110, 73.80 s 52: 70.110, 73.80 s 200C: 25.80 s 200D: 25.90 s 242: 21.100, 22.100 s 255: 60.70 s 256(1): 60.10 Pt 3, Div 5: 60.90

Victoria Police Regulations 2014 reg 27: 70.110, 73.80

Victorian Inspectorate Act 2011: 19.70, 20.120, 80.120 s 38: 20.120 s 51: 20.120 s 72(1)(g): 20.120

Water Act 1989 s 291: 86.10 Pt 6, Div 1: 86.80

Wrongs Act 1958 s 2A: 1.30

Vagrancy Act 1966: 27.90, 59.80, 69.80 s s s s

6(1)(f): 27.90 7(1)(f): 69.80, 69.90 7(1)(g): 59.80 7(1)(h): 27.90

Vagrancy (Repeal) and Summary Offences (Amendment) Act 2005: 27.90, 59.80,

Western Australia Criminal Code Act Compilation Act 1913 Sch 1, s 74A: 76.110 Sch 1, s 265: 9.110

United Kingdom

69.80

Vagrancy (Repeal) and Summary Offences (Amendment) Bill: 69.90 Victims Charter Act 2006 s 14: 3.30, 58.110

Victoria Police Act 2013: 19.80, 25.90, 60.70, 70.110, 74.80, 75.80

Communications Act 2003 s 127: 76.140

Obscene Publications Act 1959: 76.110 Vagrancy Act 1824: 27.90, 27.100, 59.80, 69.80

1 [1.10]

Summary offences Summary offences defined

A summary offence is an offence not triable on indictment: Richard Fox, Victorian Criminal Procedure (Federation Press, 14th ed, 2015) [1.2.1].

[1.20]

Determination of summary offences

The Interpretation of Legislation Act 1984 provides for the determination of a proceeding for a summary offence:

52

Summary proceedings If an Act or subordinate instrument— (a) authorises or requires a proceeding or matter to be heard and determined— (i) summarily; or (ii) by or before the Magistrates’ Court; or (b) uses any other words that imply that a proceeding or matter is to be heard and determined by or before the Magistrates’ Court; or (c) does not provide a form or mode of procedure for the hearing and determination of a proceeding or matter— then, unless the contrary intention appears, the proceeding or matter must be heard and determined only by or before the Magistrates’ Court. Criminal Procedure Act 2009 s 27 provides for the manner of hearing and determining a proceeding for a summary offence:

27

Summary offences A charge for a summary offence is to be heard and determined summarily in accordance with this Chapter or, if the case requires, Division 1 of Part 5.8. Note: The procedure set out in the Infringements Act 2006 may be used instead of commencing a proceeding for certain offences. See section 99 of the Magistrates’ Court Act 1989.

[1.30]

Categorising offences as summary or indictable

In Victoria the default position is that criminal offences are generally summary offences: Sentencing Act 1991 s 112(2).

2

Ch 1

112

Summary offences

Classification of offences as indictable or summary

(1) An offence that is described in a provision of an Act (other than the Crimes Act 1958 or the Wrongs Act 1958), subordinate instrument or local law as being level 1, 2, 3, 4, 5 or 6 or as being punishable by level 1, 2, 3, 4, 5 or 6 imprisonment or fine or both is, unless the contrary intention appears, an indictable offence. (2) Any other offence under an Act (other than the Crimes Act 1958 or the Wrongs Act 1958), subordinate instrument or local law is, unless the contrary intention appears, a summary offence. (3) If an offence is described as being punishable in more than one way or in one of two or more ways, subsection (1) applies even if only one of those ways is referred to in that subsection. See also Crimes Act 1958 s 2B; Wrongs Act 1958 s 2A. Levels are described in Sentencing Act s 109: Level 1 2 3 4 5 6 7 8 9 10 11 12

Maximum term of imprisonment Maximum fine Life – 25 years 3000 penalty units 20 years 2400 penalty units 15 years 1800 penalty units 10 years 1200 penalty units 5 years 600 penalty units 2 years 240 penalty units 1 year 120 penalty units 6 months 60 penalty units – 10 penalty units – 5 penalty units – 1 penalty unit

Penalty unit is defined in Sentencing Act s 110: see [5.20]. The effect is to index fines so they are adjusted annually. A fine is calculated by multiplying the number of penalty units by their gazetted value. The effect of these provisions is that, generally, any offence punishable by two years’ jail or less or 240 penalty units or less is a summary offence and must be heard and determined by the Magistrates’ Court. Exceptions to this general rule are contained in Criminal Procedure Act 2009 ss 242 and 243, which permit the County and Supreme Courts to determine summary offences in certain circumstances for sentencing purposes. Sometimes, particularly with legislation that pre-dates the Sentencing Act, a provision is not described as being “a level” or “punishable by a level”. In DPP v Magistrates’ Court [1999] VSC 455 Beach J considered this scenario where the accused company was charged with an offence usually punishable by a fine of 200

Ch 1 Summary offences

3

penalty units. However, because the accused was a company, the relevant legislation exposed it to a fine five times greater than that provided in the offence section. The offence was not described as being punishable by a level (of fine); nor did the penalty equate exactly to any particular level. Beach J held at [18]–[19] that if the penalty units that could be imposed for an offence did not correspond to one of the levels in Sentencing Act s 109, the offence was not one to which s 112(1) applied. Accordingly, the offence was a summary offence and had to be determined by the Magistrates’ Court. That analysis seems logical, as the determination of a sentencing level is derived from the penalty prescribed for the offence. The fact that a particular accused might be exposed to a greater penalty does not alter the prescribed penalty and hence the corresponding sentencing level. In any event it would follow, applying DPP v Magistrates’ Court, that even if the penalty was considered to be level 7, level 8, or between level 7 and 8, it is less than the level 6 or 600 penalty units that would classify the offence as indictable. Beach J reached a similar conclusion in R v Ray [2000] VSC 430. There, the accused was convicted and sentenced by the Magistrates’ Court for indictable offences that were not described as being of “a level”, or “punishable by a level” of punishment that qualified them as indictable offences triable summarily under Magistrates’ Court Act 1989 (Vic) s 53 (now Criminal Procedure Act 2009 (Vic) s 28). On appeal, the Supreme Court held that the charges therefore could not be determined summarily. The reasoning in that case cannot be reconciled with DPP v Magistrates’ Court. In Ray, the offence was punishable by five years’ jail, which equated precisely with the punishment specified for a level 6 offence. Level 6 offences were then, as now, indictable offences eligible for summary determination. Applying the reasoning in DPP v Magistrates’ Court, because the penalty corresponded to a penalty specified in the sentencing levels in s 109, it should have been considered to be one subject to s 112(1).

[1.40]

Proceedings for summary offences

Summary Offences Act 1966 s 59 provides that charges for offences contrary to that Act must be determined in the Magistrates’ Court unless otherwise provided. Examples where legislation does provide otherwise are: (a) the power of the Children’s Court to determine charges against children for summary offences (Children, Youth and Families Act 2005 s 516); and (b) the power of the County or Supreme Courts to determine summary charges in certain circumstances: Criminal Procedure Act 2009 ss 242, 243. The Magistrates’ Court may refuse to determine charges where it appears undercharging has occurred: Summary Offences Act 1966 s 60.

[1.50] Authority to charge The general rule is that where the offence is of a public character then any member of the public may lay a charge unless that right is abrogated by some authority: Armstrong v Hammond [1958] VR 479; Lynch v Sloan [1959] VR 656 at 658–659; Deveney v Sturt [1969] VR 174 at 176; Duncan v Demir (2009) 52 MVR 90 at 95–96. A charge for an offence against an enactment for the benefit of the public may be laid by any person. When the prohibited act relates only to an individual grievance or relates purely to a matter of local concern, or constitutes a breach of a law for which

4

Ch 1

Summary offences

local authorities are responsible, then the charge must be laid by the party interested or someone authorised by the proper person: Sargood v Veale (1891) 17 VLR 660. In addition to the general common law authority to lay charges, Summary Offences Act 1966 s 56 specifically provides authority to file charge-sheets alleging offences contrary to that Act.

56

Who may file charge-sheet

(1) Unless otherwise expressly provided any police officer or any protective services officer or any inspector or other employee in the Department of Health or any member of the staff of any municipal council may file a charge-sheet charging an offence against any of the provisions of this Act. (2) No fee shall be payable on the issue of a summons to answer to a charge for an offence against this Act. Crimes Act 1914 (Cth) s 13 provides to similar effect that in the absence of contrary intention, any person may institute proceedings for offences against the law of the Commonwealth. See also Brebner v Bruce (1950) 82 CLR 161. Some statutes specifically provide a power to lay a charge, either expanding or limiting the general rule. Examples include: (a) The Architects Act 1991 s 63 provides that an offence against that Act may be filed by the Registrar or other officer authorised by the Architects Registration Board of Victoria, or by the Board itself; (b) the Australian Consumer Law and Fair Trading Act 2012 s 194 provides that proceedings for offences against that Act may only be brought by the Director of Consumer Affairs Victoria or person authorised by the Director; (c) the Building Act 1993 s 241 provides that proceedings for offences against Pt 3, 4, 5, 7 or 8 of that Act may only be brought by a person authorised by a council, or prescribed person; (d) the Dangerous Goods Act 1985 s 40 provides that proceedings for offences against that Act may only be brought by the Victorian WorkCover Authority, an inspector authorised by the Authority, or a police officer; (e) the Domestic Animals Act 1994 s 92 provides that only police officers and authorised officers may file a charge-sheet charging an offence against that Act; (f) the Electricity Safety Act 1998 s 145A provides that proceedings for offences against Pt 8 of that Act may only be brought by Energy Safe Victoria; (g) the Environment Protection Act 1970 s 59 provides that only a person appointed by the Environment Protection Authority may commence proceedings under that Act, aside from some exceptions listed there; (h) under the Estate Agents Act 1980 s 95 only the Director of Consumer Affairs Victoria or a person authorised by the Director may prosecute offences against the Act or regulations; (i) the Food Act 1984 s 45AC provides that the Secretary, a council, an authorised officer or police officer may bring proceedings under the Act;

Ch 1

Summary offences

5

(j) prosecutions of contempt of court contrary to the Magistrates’ Court Act 1989 ss 133 and 134 must be instituted by the Director of Public Prosecutions under the Public Prosecutions Act 1994 s 22(1)(ba)(iii); (k) the Occupational Health and Safety Act 2004 s 130 limits commencing proceedings under that Act to the Victorian WorkCover Authority or its inspectors; (l) under the Liquor Control Reform Act 1998, any person may lay a charge where the offence affects the public at large (Proudfoot v Power [1905] VLR 610); (m) the Lotteries Gaming and Betting Act 1966 s 77 provides that police may lay charges for offences under that Act; (n) prosecutions for offences against the Racial and Religious Tolerance Act 2001 may only be commenced with the written permission of the Director of Public Prosecutions (see ss 24(4), 25(4)); (o) police, protective services officers, authorised council staff, employees of the Department of Transport, Planning and Local Infrastructure, and officers of the Roads Corporation (VicRoads) may lay charges for offences against either the Road Safety Act 1986 or the regulations pursuant to s 77(2); (p) under the Transport (Compliance and Miscellaneous) Act 1983 s 229 only police officers, protective services officers and employees authorised by the Secretary to the Department of Transport, Planning and Local Infrastructure or the Roads Corporation (VicRoads) are authorised to bring proceedings for offences against the Act or the regulations. An application made under the Magistrates’ Court Act 1989 s 126A to bind a person over to keep the peace is a civil application, similar to an application under the Crimes (Family Violence) Act 1987. Police are entitled to make such an application, and be represented by a police prosecutor, as they have a sufficient interest in keeping and maintaining the peace in areas where there is a threat of breach of the peace: Edwards v Raabe (2000) 117 A Crim R 191 at 196.

[1.60]

Time limits for commencing summary charges

Criminal Procedure Act 2009 s 5 provides that summary criminal proceedings are commenced by filing or signing a charge-sheet as set out in s 6. Section 7 provides a general limitation period for commencement of summary proceedings:

7

Time limits for filing a charge-sheet

(1) A proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been committed except where— (a) otherwise provided by or under any other Act; or (b) the accused gives written consent, and the DPP or a Crown Prosecutor consent, to the proceeding being commenced after the expiry of that period. Note: See Part 5.1A of Chapter 5 of the Children, Youth and Families Act 2005 for a shorter time limit in relation to children.

(2) A proceeding for an indictable offence—

6

Ch 1

Summary offences

(a)

may be commenced at any time, except where otherwise provided by or under this or any other Act; and (b) may be heard and determined summarily even though the proceeding may have been commenced more than 12 months after the date on which the offence is alleged to have been committed. The limitation period referred to there is Children, Youth and Families Act 2005 s 344A:

344A

Time limits for filing a charge-sheet

(1) A proceeding against a child for a summary offence must be commenced within 6 months after the date on which the offence is alleged to have been committed except where— (a) the Court extends the time for commencement of the proceeding under section 344C; or (b) the child, after receiving legal advice, gives written consent, and a police officer of or above the rank of sergeant consents, to the proceeding being commenced after the expiry of that period. (2) A proceeding against a child for an indictable offence may be commenced at any time, except where otherwise provided by or under this or any other Act. (3) If a proceeding for a summary offence is commenced against a child after the child has given consent under subsection (1)(b) in respect of the proceeding, the Court, on the first appearance of the child before the Court, must be satisfied that the child obtained legal advice before giving consent under subsection (1)(b). (4) If the Court is not satisfied that the child obtained legal advice before giving consent under subsection (1)(b), it must— (a) adjourn the hearing to enable the child to obtain that legal advice; and (b) advise the child and, if present, a parent or person with parental responsibility for the child that, after obtaining legal advice, the child may withdraw his or her consent to the commencement of the proceeding. (5) After obtaining legal advice in the circumstances referred to in subsection (4)— (a) a child; or (b) if the child is under the age of 15 years and is not legally represented, a parent or person with parental responsibility for the child— may withdraw the consent given under subsection (1)(b).

Ch 1 Summary offences

7

(6) If the child withdraws consent under subsection (5), the Court must strike out the charge. (7) If the child is under the age of 15 years, the Court may adjourn any hearing referred to in this section, or a resumed hearing, to enable a parent or person with parental responsibility for the child to attend. Note: Section 53 of the Infringements Act 2006 and Part 4 of Schedule 3 to this Act also provide for the extension of the period in which a proceeding may be commenced in respect of an offence for which an infringement notice was issued.

Criminal Procedure Act 2009 s 7A removes time limits for commencing proceedings for specified historical sexual offences that were classified as summary offences when they were in effect. Some Acts that provide otherwise for the limitation period to commence proceedings are: (a) Australian Consumer Law and Fair Trading Act 2012 s 193: three years after the commission of the offence; (b) Control of Weapons Act 1990 s 9(3) provides that prohibited weapons, controlled weapons, dangerous articles and body armour seized by a police officer must be returned if proceedings are not commenced within three months after the seizure; (c) Drugs, Poisons and Controlled Substances Act 1981 s 45: three years from the time when the matter of the charge occurs; (d) Electricity Safety Act 1998 s 148A: three years after the commission of the alleged offence; (e) Fisheries Act 1995 s 127: three years for prescribed offences, and 18 months otherwise, after the commission of the alleged offence; (f) Food Act 1984 s 45(2) provides that prosecutions under that Act in respect of any food obtained for analysis shall be instituted no later than 90 days after the food was obtained; (g) Local Government Act 1989 s 232(3): three years after the commission of the alleged offence. Where an offence is a continuing offence, that is, one that consists of a continuing failure to perform an obligation, the limitation period will only begin to run from the time the obligation is performed: R v Industrial Appeals Court; Ex parte Circle Realty Pty Ltd [1980] VR 459 at 462; Environment Protection Authority v Alkem Drums Pty Ltd (2000) 121 A Crim R 152. A continuing offence is one committed for so long as the forbidden state of affairs continues to exists: Agius v The Queen (2011) 80 NSWLR 486 at 501–502. A summary offence may not be validly commenced out of time except by consent, as noted in Criminal Procedure Act 2009 s 7: Hackwill v Kay [1960] VR 632; Kerr v Hannon [1992] 1 VR 43; R v Tait [1996] 1 VR 662; DPP v Kypri (2011) 33 VR 157. Nor may a validly commenced charge be amended outside the limitation period if the effect would be to charge a new offence, rather than merely clarify the existing offence. The exception to this is where the accused was apprised within the limitation period of the true nature of the intended charge by provision of particulars or other materials: DPP v Kypri. See also [2.50].

2 [2.10]

Charges Nature and function of a charge-sheet

A criminal proceeding in the Magistrates’ Court is commenced by filing a charge-sheet with a registrar of the court: Criminal Procedure Act 2009 s 6(1). The act of filing means no more than depositing the document at the relevant court office for its use at court: DPP v His Honour Judge Fricke [1993] 1 VR 369 at 372. A charge-sheet may be filed electronically: Criminal Procedure Act 2009 s 6(2); Electronic Transactions (Victoria) Act 2000 ss 8(1), 9(1). Pedantically, the Act refers to a “charge-sheet”, rather than a “charge”. The distinction is not always relevant, but the charge-sheet is the document containing a charge which is then filed with the court, whereas a charge is the allegation of criminal offending. Summary criminal proceedings in Victoria used to be commenced by an “information”: see further Justices Act 1958 s 18; Magistrates’ Court Act 1971 s 26; Magistrates’ Court (Summary Proceedings) Act 1971 s 5. With the commencement of the Magistrates’ Court Act 1989, however, s 26 of that Act instead refers to a “charge”. An information “informed” the court that an offence had allegedly been committed: Wright v Mooney [1966] VR 225 at 227–228. (It was from this meaning that the term “informant” – one who gives information to another, or lays an information – was derived to describe the police officer who filed an information. The Criminal Procedure Act also terms the charging police officer as the “informant” even though the Act now refers to a “charge” rather than an “information”.) The traditional function of an information was to found jurisdiction to deal with an alleged offence: Ex parte Walker; Re Goodfellow (1944) 45 SR (NSW) 103; John L Pty Ltd v Attorney General (NSW) (1987) 163 CLR 508 at 519. A charge-sheet now performs this same function in a summary proceeding: Ciorra v Cole (2004) 150 A Crim R 189 at 194. A charge-sheet is also the mechanism by which the prosecution informs an accused person of their allegedly criminal conduct. To do so, it must identify the essential factual ingredients of the offence: DPP v Kypri (2011) 33 VR 157 at 164; Johnson v Miller (1937) 59 CLR 467 at 590. If an information is invalid for the reason that it fails sufficiently to identify the ingredients of the actual offence, it will be inadequate to satisfy a statutory requirement … that proceedings be commenced by information since, as a matter of ordinary construction, such a requirement can only be satisfied by a valid information: John L Pty Ltd v Attorney General (NSW) at 520.

[2.20]

Distinction between charge and summons

Under the Justices Act 1958 s 18(2), the distinction between a charge and a summons issued upon a charge was express:

10

Ch 2

Charges

(2) Except where otherwise expressly enacted when it is intended that a summons only shall issue to require the attendance of any person to answer to an information, the information may be laid either with or without oath according as the justice receiving such information sees fit; such information and summons shall be comprised in the same document.

A summons does not compel an accused person to appear, even though a warrant may issue upon the accused’s failure to appear in answer to a summons. Its primary function is to afford the accused procedural fairness by giving notice of the charge, and an opportunity to be heard: Plenty v Dillon (1991) 171 CLR 635 at 641–642. (The position is different when the accused is on bail: Criminal Procedure Act 2009 s 330.) There is an express legislative preference for children to be charged on summons: Children, Youth and Families Act 2005 s 345. Thus a charge-sheet (or information) commences the criminal proceeding and provides the court jurisdiction to consider the charge, as well as informs the accused of the nature of the allegation; a summons advises the accused of the proceedings, and offers him or her the opportunity to participate. This dichotomy is maintained in Criminal Procedure Act ss 12–19 – albeit not in the express terms of the Justices Act 1958 – and reflected in the prescribed forms for commencing criminal process, with separate forms prescribed for a charge, charge and summons, and charge and warrant to arrest: Magistrates’ Court Criminal Procedure Rules 2009 r 11. Notwithstanding that when a summons issues upon a charge-sheet they now always comprise a single document, that document still performs the two legally separate functions of charging and summoning the accused: Hargreaves v Bourdon [1963] VR 89. (And while it is acceptable to use the common verb “summon” in this context, the Shorter Oxford English Dictionary notes that “summons” – and its past tense “summonsed” – means to, “Call before a court, judge or magistrate; take out a summons against.” and so is the verb more often used in legal documents.) However, one probably unintended consequence of combining the two functions in one document is that: (a) only one summons can issue on the charge-sheet; (b) that summons may only be extended as provided in Criminal Procedure Act s 19; (c) once the limitation period expires, no further summons may issue on the charge-sheet even though it was filed within time: Hargreaves v Bourdon at 94. Of course, if required, a new charge-sheet and summons can be issued and filed within the limitation period. As a result, two difficulties can then occur in trying to bring an accused person before the court. Secondly, if a police officer or public official issues a summons using the “instant summons” procedure in Criminal Procedure Act s 14, but does not file the charge-sheet and summons with the appropriate registrar within seven days, the court may strike out the charge: see further Uren v Neale (2009) 196 A Crim R 415 at 422–428. If the accused appears under protest about the non-compliance with s 14 and the charge is indeed struck out, a new summons, and hence a new charge-sheet, may only issue if the limitation period has not expired. Such were the circumstances in DPP v Hogg (2006) 162 A Crim R 564, though the relevant statutory provision there provided that upon non-compliance with the applicable “instant summons” process the court must strike out the charge: see [2.30].

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In either case, if the limitation period has expired, a new charge-sheet and summons may not issue. How then to try to bring an accused person before the court? In Hargreaves v Bourdon at 95, Sholl J suggested one solution was to swear an information so that a warrant to arrest could then issue. Today, however, the option to swear a charge-sheet no longer exists, and the only conditions required for a charge-sheet to be valid are that it be in writing, signed by the informant personally, and comply with Criminal Procedure Act Sch 1: s 6(3). But the option to apply for the issue of a warrant is available under s 12(5). Note, though, that if the process to bring the accused before the court is invalid, it cannot be said that the accused does not appear in answer to the summons: Nitz v Evans (1993) 19 MVR 55; cf Murdoch v Smith (2006) 15 VR 186 at 203. Sholl J also observed that there was no requirement for a summons to issue on the same day as a charge-sheet, and it is possible for a charge-sheet to issue within the limitation period yet the summons to issue outside the limitation period. (Of course, if the difficulty arises in locating and serving the accused, perhaps that is merely delaying the inevitable.) And of course, no issue arises if the accused is served a summons, albeit defective or invalid in some manner, but appears at the return of the charge and does not appear under protest: Flaherty v Girgis (1987) 162 CLR 574 at 586; Laurie v Carroll (1958) 98 CLR 310; Williams & Glyn’s Bank Plc v Astro Dinamico Compania Naviera SA [1984] 1 WLR 438; Pritchard v Jeva Singh [1915] VLR 510; Guss v Magistrates’ Court [2003] VSC 365 at [11].

[2.30]

Striking out charges

An order by a magistrate striking out a charge is an interlocutory order, not a final order. A magistrate may set aside an order made in error striking out a charge, summons, proceeding or appeal: Thiessen v Fielding (1890) 16 VLR 666 at 668; R v McGowan [1984] VR 1000 at 1003; Kelly v Von Einem (1995) 84 A Crim R 37 at 43; DPP v Sabransky [2002] VSC 143; DPP v Moore (2003) 6 VR 430 at 43; DPP v Hogg (2006) 162 A Crim R 564; DPP v Bird [2016] 4 WLR 82. A charge is struck out when a court disposes of it without curial determination of the merits of the charge, whereas a dismissal occurs when a court concludes that the prosecution case is not proved after considering the merits of the case: Kelly v Von Einem at 43. Striking out often means no more than that a case is taken out of the list of proceedings to be heard by the court: DPP v Moore at 437; R v McGowan at 1002; Enright v McIntosh (unreported, 30 July 1988) pp 6–7. The question of whether a charge was struck out or dismissed may arise upon a plea in bar, or plea of autrefois acquit: Douglas v Langton (1992) 16 MVR 21.

[2.40]

Wording of charges

The use of infinitive phrases in charges – the accused did assault – is conventionally accepted, but not mandated. There is no difficulty in using simple past tense and other modern English usage. Criminal Procedure Act 2009 s 9 provides that a charge-sheet is not invalid by reason only of failing to comply with Sch 1. In Glenister v Magistrates’ Court [2014] VSC 265 at [71], Ginnane J held that s 9(1) prevented invalidity because of omission of non-essential matters from a charge, and s 9(2) prevented invalidity because of technical or typographical errors. Criminal Procedure Act s 9 provides:

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Charges

Errors etc. in charge-sheet

(1) A charge-sheet is not invalid by reason only of a failure to comply with Schedule 1. (2) A charge on a charge-sheet is not invalid by reason only of— (a) omitting to state the time at which the offence was committed unless time is an essential element of the offence; or (b) incorrectly stating the time at which the offence was committed; or (c) stating the offence to have been committed on an impossible day or on a day that never happened. Section 6(3) provides the only statutory stipulations for a charge-sheet:

6 Commencement of a criminal proceeding in the Magistrates’ Court (1) A criminal proceeding is commenced— (a) by filing a charge-sheet containing a charge with a registrar of the Magistrates’ Court; or (b) if the accused is arrested without a warrant and is released on bail, by filing a charge-sheet containing a charge with a bail justice; or (c) if a summons is issued under section 14, at the time the charge-sheet is signed. Note: A criminal proceeding against a child is commenced in the same manner in the Children’s Court: section 528 of the Children, Youth and Families Act 2005.

(2) If a charge-sheet is filed in accordance with the method prescribed by the rules of court for electronic filing, the requirements of sections 8(1) and 9(1) of the Electronic Transactions (Victoria) Act 2000 are taken to have been met. (3) A charge-sheet must— (a) be in writing; and (b) be signed by the informant personally; and (c) comply with Schedule 1. Note: Section 18 requires an informant to nominate an address for service of documents and other details. That information may be included on a charge-sheet.

(4) The informant may include a request for a committal proceeding in a charge-sheet containing a charge for an indictable offence that may be heard and determined summarily. Statement and particulars of offence Criminal Procedure Act 2009 Sch 1 cll 1 and 2 provide:

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2

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Statement of offence A charge must— (a) state the offence that the accused is alleged to have committed; and (b) contain the particulars, in accordance with clause 2, that are necessary to give reasonable information as to the nature of the charge. Statement of particulars

(1) Subject to subclause (2), particulars of the offence charged must be set out in ordinary language and the use of technical terms is not necessary. (2) If a rule of law or a statute limits the particulars that are required to be given in a charge, nothing in this clause requires any more particulars than those required. It is necessary for the charge to identify the essential elements of the offence alleged against the accused: Schmidt v Newsom [2016] VSC 249 at [21], citing Johnson v Miller (1937) 59 CLR 467 at 489–490; Ex parte Lovell; Re Buckley (1938) SR (NSW) 153 at 173; Woolworths (Victoria) Ltd v Marsh (unreported, Supreme Court of Victoria, 12 June 1986) pp 5–6; DPP Reference No 2 of 2001 (2001) 4 VR 55 at 61–62 [18]–[19]; Glenister v Magistrates’ Court [2014] VSC 265 at [55]–[68]. See also DPP v Kypri (2011) 33 VR 157 at 162–163. Although the charge may be capable of amendment, it will be invalid if it does not identity the essential elements: see [2.50]. The charge is not required to contain all the other facts that the prosecution must necessarily prove as part of its case: for example, administering a preliminary breath test device is a necessary pre-condition, but not an element, of an offence contrary to Road Safety Act 1986 s 49(1)(f) (DPP Reference No 2 of 2001). It is not enough for a charge merely to recite the words of a section. It must specify what particular form or manner of contravention of the offence section is alleged, and how the accused is alleged to have contravened it: Kirk v Industrial Court (NSW) (2010) 239 CLR 531 at 558. In Glenister, Ginnane J held that Criminal Procedure Act 2009 uses similar language to the common law principles on requirements of charges, but it is the words of the Act that must be considered. While the CPA uses language from the common law principles governing the validity of criminal charges, it is necessary to apply the words of the CPA in determining the validity of the four charges. Under the CPA, the charge-sheet must state the offence and contain the particulars that are necessary to give reasonable information as to the nature of the charge. Although there is no set formula, the particulars required will usually include the time, place and manner of the acts charged and other particulars of the act, matter or thing alleged by the informant as the foundation of the charge: Glenister v Magistrates’ Court at [64]–[65].

Statutory reference Criminal Procedure Act 2009 Sch 1 cl 3 provides:

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3

Charges

Statutory offence (1) In this clause— statutory offence means an offence created by an Act or subordinate instrument, or by a provision of an Act or subordinate instrument.

(2) For the purposes of clause 1(a), a statement of a statutory offence is sufficient if it— (a) identifies the provision creating the offence; and (b) describes the offence in the words of the provision creating it, or in similar words. (3) If a statutory offence states— (a) the offence to be committed in alternative ways; or (b) any element or part of the offence in the alternative— a charge may state the commission of the offence or the element or part of the offence in the alternative. If a charge-sheet fails to identify or name the section that creates the offence, it breaches these requirements, but does not invalidate the charge. Nor does the use of abbreviations invalidate the charge: DPP v Kypri (2011) 33 VR 157 at 163, citing McMahon v DPP (unreported, Court of Appeal, 20 June 1995). See also DPP v Ross (unreported, Supreme Court of Victoria, 7 January 1993).

Exceptions etc Criminal Procedure Act 2009 Sch 1 cl 4 provides:

Exceptions, exemptions etc. Any exception, exemption, proviso, excuse or qualification need not be specified or negatived in a charge. 4

This is relevant where the accused bears an evidential burden by virtue of s 72: see [4.30].

Joinder Criminal Procedure Act 2009 Sch 1 cll 5 and 6 provide:

5

Joinder of charges

(1) A charge-sheet or indictment may contain charges for related offences, whether against the same accused or different accused. (2) If more than one offence is charged in a charge-sheet or indictment, the particulars of each offence charged must be set out in a separate, consecutively numbered paragraph.

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(3) A charge-sheet or indictment may contain, as an alternative charge to a course of conduct charge, a charge of a relevant offence of the kind covered by the course of conduct charge and alleged to have been committed within the period to which the course of conduct charge relates. (4) In the circumstances set out in subclause (3), for the purposes of section 220 an acquittal on the course of conduct charge does not constitute a previous acquittal in relation to the alternative charge. (5) A charge-sheet or indictment must not contain both a course of conduct charge and a charge for an offence against section 47A of the Crimes Act 1958. (6) In this clause, course of conduct charge has the same meaning as in clause 4A. Charge against multiple accused If an offence is alleged against more than one accused, regardless of their degree of participation in the offence, an indictment or charge-sheet may name each of those accused in the charge for the offence.

6

Section 56 provides that where a charge-sheet contains more than one charge, they must be heard together unless an order is made for separate hearings. This does not alter the true legal position that where multiple charges are heard together, each is a separate hearing from the others: Saleeba v Beck (1991) 54 A Crim R 114.

Descriptions Criminal Procedure Act 2009 Sch 1 cll 7–10 provide:

Descriptions generally Subject to any other provision of this Schedule, if it is necessary to describe anything in a charge, it is sufficient to describe the thing in ordinary language in a manner that indicates with reasonable clarity the thing referred to. 7

8

Description of persons

(1) The description or designation in a charge of a person must be reasonably sufficient to identify the person. (2) If it is impracticable to comply with subclause (1)— (a) a description or designation must be given that is reasonably practicable in the circumstances; or (b) the person may be described as “a person unknown”. 9

Description of document

If it is necessary to refer to a document or instrument in a charge, it is sufficient to describe it by any name by which it is usually known or by its substance, without setting out a copy of it.

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Charges

Description of property (1) The description of property in a charge must— (a) be in ordinary language; and (b) indicate the property with reasonable clarity.

(2) If a description of property complies with subclause (1), it is not necessary to name the owner of the property or the value of the property, unless that information is required to describe an offence which depends on a special ownership of property or a special value of property. (3) If property is vested in more than one person and the owners of the property are referred to in a charge, it is sufficient to describe the owners of the property— (a) by naming one of those persons followed by the words “with others”; or (b) if the owners are a body of persons with a collective name, by using the collective name alone. If there is evidence about the identity of the accused as the offender, but the accused is wrongly described or named in the charge-sheet – such as where the accused gave a false name and that was not realised until outside the limitation period – that name can be amended outside of any limitation period: Pearcey v Chianta (1987) 6 MVR 10; DPP v Velevski (1994) 20 MVR 426.

Statement of intent to deceive, injure or defraud Criminal Procedure Act 2009 Sch 1 cl 11 provides:

Statement of intent to deceive, injure or defraud In stating an intent to deceive, injure or defraud, it is not necessary to state an intent to deceive, injure or defraud any particular person if the statute creating the offence does not make an intent to deceive, injure or defraud a particular person an element of the offence. 11

Location Convention dictates that the location of the offence be included in a charge. However, location does not need to be particularised except for offences where it is an essential element: HA v The Queen (2013) 38 VR 154 at 156; Gigante v Hickson (2001) 3 VR 296 at 299–300. If the location is not an essential element, it is capable of being amended even outside the limitation period: DPP v Webb [1993] 2 VR 403.

Date The date of a summary offence is an essential element to a charge, in order to ensure compliance with the relevant limitation period: Johnson v Miller (1937) 59 CLR 467; Hackwill v Kay [1960] VR 632 at 634; Warner v Sunnybrook Ice Cream Pty Ltd [1968] VR 102 at 105; Kerr v Hannon [1992] 1 VR 43 at 45. In Smith v Van Maanen (1991) 14 MVR 365 the Supreme Court held that where the second and third charges on a charge-sheet did not allege an offence location, but were clearly intended to be

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founded on the same facts and location as the first charge, the location missing from those charges could be inferred. Presumably the same argument might be used for missing dates. As to time limits, see [1.60].

[2.50]

Amendment of charge-sheet

If a charge is invalid or defective, Criminal Procedure Act 2009 s 8 provides a court with a discretionary power to amend the charge-sheet.

8

Order for amendment of charge-sheet

(1) The Magistrates’ Court at any time may order that a charge-sheet be amended in any manner that the court thinks necessary, unless the required amendment cannot be made without injustice to the accused. (2) If a charge-sheet is amended by order under this section, the charge-sheet is to be treated as having been filed in the amended form for the purposes of the hearing and all proceedings connected with the hearing. (3) An amendment of a charge-sheet that has the effect of charging a new offence cannot be made after the expiry of the period, if any, within which a proceeding for the offence may be commenced. (4) If a limitation period applies to the offence charged in the charge-sheet, the charge-sheet may be amended after the expiry of the limitation period if— (a) the charge-sheet before the amendment sufficiently disclosed the nature of the offence; and (b) the amendment does not amount to the commencement of a proceeding for a new offence; and (c) the amendment will not cause injustice to the accused. The discretion to amend ought ordinarily be exercised in favour of allowing or making an amendment: Cooper-Baker v His Honour Judge Ross (2000) 114 A Crim R 40; DPP Reference No 2 of 2001 (2001) 4 VR 55. It is not necessary for the prosecution to seek an amendment, though that is the preferable course; the court has the power to and may do so of its own volition: DPP v Kypri (2011) 33 VR 157 at 171; Kennett v Holt [1974] VR 644 at 649; Thomson v Lee [1935] VLR 360 at 364. A criminal court also has a statutory power to act on its own motion: s 337. The power is discretionary (Walpole v Bywood Pty Ltd [1965] VR 157), but ought ordinarily be exercised in favour of the prosecution: Burvett v Moody [1909] VLR 126; McKenzie v Dabonde [1952] VLR 177; Cooper-Baker v His Honour Judge Ross; DPP Reference No 2 of 2001. An application to amend a charge to a different offence will not be made if the substituted offence is essentially different from the original charge: Hackwill v Kay [1960] VR 632; Burvett v Moody; R v Templeton; Ex parte England (1877) 3 VLR (L) 305.

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An amendment should be allowed when the substituted charge is a cognate offence, that is, one akin in origin and quality and allied in nature to the offence originally charged: Kennett v Holt. If the charge-sheet refers to statutory provisions repealed at the date of the alleged offence, the charge is invalid: Flanagan v Remick (2001) 127 A Crim R 534; Ciorra v Cole (2004) 150 A Crim R 189. Nonetheless, in Ciorra at 198, amendment was permitted to refer to a then current statutory offence provision, because the offence remained the same, and the charge sufficiently disclosed the nature of that offence. At common law, such a charge would be a nullity, but statutory provisions such as s 8 and the previous Magistrates’ Court Act 1989 s 50 allow for an amendment to the charge to correct that omission outside the limitation period if the true nature of the offence was apparent from the charge and the amendment would not amount to a new and different charge: DPP v Kypri at 165. Since the commencement of Criminal Procedure Act s 8(4), the position is that a validly drafted charge might be amended so as to clarify the charge, but only if the offence charged stays the same. Otherwise, once outside the relevant limitation period, a charge may not be amended: Walters v Magistrates’ Court of Victoria [2015] VSC 88 at [87]. If a charge is duplicitous, alleging more than one offence, the court can require the prosecution to elect which charge it will proceed with: Hedberg v Woodhall (1913) 15 CLR 531 at 536. Where permitted, amendment can be made any time before judgment: Kennett v Holt.

[2.60]

Amendment on appeal

Criminal Procedure Act 2009 s 256(2)(c) provides that on an appeal from the Magistrates’ Court, the County Court may exercise any power the Magistrates’ Court exercised or could have exercised. Clearly this power conferred on the County Court is capable of applying the amendment power in s 8. The powers of the County Court on an appeal from the Magistrates’ Court commence “on the hearing of the appeal”, which is at the actual hearing of the appeal de novo and not at any preliminary or interlocutory hearings held beforehand: Saric v Elliott [2013] VSC 509 at [16]–[19]; Helfenbaum v Sattler [1999] 3 VR 583 at [21]–[23]; CC v Department of Human Services [2003] VSC 134 at [28]. Under the previous appeal provision in Magistrates’ Court Act 1989 s 86, any application to amend a charge could only occur at the substantive appeal: Saric v Elliott at [24]. Criminal Procedure Act s 8(2) provides that once an amendment is made, the charge-sheet is treated as having been filed as amended for “the hearing and all proceedings connected with the hearing”. Under ss 256 (determination of appeal by offender) and 259 (determination of DPP’s appeal), it is the sentence of the Magistrates’ Court that is set aside, rather than “the orders”. It seems then that a complaint that an amendment ought not have been permitted can only be agitated on an appeal of law to the Supreme Court in accordance with s 272, not an appeal to the County Court against conviction or sentence.

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However, s 8(2) does not permit the charge-sheet to be treated as being filed in its amended form for the purpose of an appeal against conviction to the County Court: Walters v Magistrates’ Court of Victoria [2015] VSC 88 at [116]–[118].

3 [3.10]

Disclosure and particulars Pre-hearing disclosure

Extensive pre-hearing disclosure provisions are contained in Criminal Procedure Act 2009 Pt 3.2. In short, those provisions anticipate: (a) a copy of a charge-sheet and particulars of the charges (s 32); (b) service of a preliminary brief when a charge-sheet is filed (ss 24, 35); (c) service of a full brief after a summary case conference but at least 14 days before a contest-mention hearing: s 39.

[3.20]

Copy of charge-sheet and particulars

Criminal Procedure Act 2009 s 32 provides:

32

Accused entitled to copy of charge-sheet and particulars

(1) An accused is entitled to receive free of charge a copy of the charge-sheet from the informant or the appropriate registrar. (2) An accused is entitled to receive from the informant reasonable particulars of the charge. An example of when an accused would be entitled to particulars of an offence is for a charge of offensive behaviour contrary to Summary Offences Act 1966 s 17(1)(d), and especially if the material in a brief of evidence identified more than one transaction or event capable of establishing the offence. In my opinion he clearly should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence. For example, if the court in the present case had proceeded with the hearing of the complaint and, after ascertaining what the defence was, had decided that evidence of similar acts ought not to be admitted, how could it have discovered which was the offence charged and which the similar acts?: Johnson v Miller (1937) 59 CLR 467 at 489–490.

Ordinarily, the brief of evidence should identify the particular conduct alleged to establish the charge: Stefanovski v Murphy [1996] 2 VR 442. A court of summary jurisdiction possesses an implied power to order the provision of particulars: Johnson v Miller at 490; Marchesi v Barnes [1970] VR 434 at 439; Grassby v The Queen (1989) 168 CLR 1 at 16–17.

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[3.30]

Disclosure and particulars

Preliminary brief

A preliminary brief must be served personally upon the accused unless the informant is satisfied ordinary service is appropriate: Criminal Procedure Act 2009 ss 36, 391, 394. The contents of a preliminary brief are specified in s 37. A victim’s personal information is not usually provided as part of the prosecution brief: s 48; Victims Charter Act 2006 s 14. The informant may refuse to disclose certain material: Criminal Procedure Act ss 37(1)(f), 44, 45. In that case, the accused may apply to the court for an order for disclosure: s 46.

[3.40]

Full brief

A full brief must be served upon request from the accused: Criminal Procedure Act 2009 s 39. If a preliminary brief was served within 21 days of filing a charge-sheet, the request may be made after a summary case conference is held. Summary case conference is defined in s 54(1) as a conference between the prosecution and accused for “managing the progression of the case”. It may occur at court, or between the parties elsewhere. Otherwise, a full brief may be requested at any time. In either instance, a full brief must be served at least 14 days before a contest-mention hearing described in s 55. The contents of a full brief are specified in s 41, and divided into three categories: (a) Basic material that must be given in all cases (the charge-sheet, notice about legal representation etc): subs (1)(a)–(c). (b) Material that the prosecution intends to rely upon: subs (1)(d). (c) Material relevant to the charge that the prosecution does not intend to rely upon: subs (1)(e). The Department of Justice, Criminal Law – Justice Statement, Criminal Procedure Act 2009 – Legislative Guide (2010) discusses the purpose of the disclosure provisions as an alternative to the issue of subpoenas in its commentary concerning Criminal Procedure Act s 336. As discussed throughout this guide, the Act now creates clearer statutory disclosure obligations at each level of criminal proceedings. Importantly, the courts have been given express powers to resolve disputes about disclosure, which may lead to less reliance on witness summons/subpoena processes. The location of statutory disclosure obligations at each level of criminal proceedings is indicated below. ... The availability of an express power to resolve disclosure disputes removes much of the need for the (comparatively cumbersome) subpoena process to be used, particularly where the material is in the prosecution’s possession (DPP or police). It will be open for such disclosure disputes to be resolved by simple application to the court and hearing of the issue on the merits. Having examined the contested material (if necessary to resolve the dispute) the court may order either disclosure, partial disclosure, or non-disclosure of the material that is the subject of the application.

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The informant may refuse to disclose certain material: Criminal Procedure Act ss 37(1)(f), 44, 45. In that case, the accused may apply to the court for an order for disclosure: s 46.

4 [4.10]

Burdens of proof Introduction

Ordinarily, the prosecution bears the legal burden of proof for a criminal offence: Evidence Act 2008 s 141(1). As a corollary of this, the accused is not required to prove anything and is presumed innocent until the prosecution proves otherwise: Charter of Human Rights and Responsibilities Act 2006 s 25(1); Woolmington v DPP [1935] AC 462. There are a great many summary offences that impose either a legal or evidential burden upon the accused, reversing or altering the usual onus.

[4.20]

Legal burden

A legal burden is imposed when a statute or the common law presumes some matter against the accused. In statutes, it will often be indicated by the use of the phrase “in the absence of evidence to the contrary” or “unless the contrary is proved”: JD Heydon, Cross on Evidence (10th ed, LexisNexis Butterworths, 2014) [9045]. When a legal burden is imposed upon the accused it is always to the civil standard, that is, on the balance of probabilities: Evidence Act 2008 s 141(2). Examples of such provisions are Drugs, Poisons and Controlled Substances Act 1981 s 104 (authorisations or licences to possess drugs), Summary Offences Act 1966 s 50A(7) (trespass to primary production land for ferreting), and Road Safety Act 1986 s 70(2) (tampering with motor vehicles).

[4.30]

Evidential burden

When an accused person wishes to rely on some exception or other positive affirmation that would excuse his or her conduct or absolve him or her from criminal liability, he or she may be obliged to adduce or point to evidence that allows the trier of fact to consider the point. This is known as the evidential burden. The evidential burden on the accused is variously described as an onus to point to or present evidence; a sufficiency of evidence; or sufficient evidence to raise an issue. It is perhaps most accurately described as the need to adduce evidence of a reasonable possibility of the existence of a defence: JD Heydon, Cross on Evidence (10th ed, LexisNexis Butterworths, 2014) [7015], [7050], citing Jayasena v The Queen [1970] AC 618 at 624 and R v Youssef (1990) 50 A Crim R 1 at 3. The evidential burden can be met by the accused presenting evidence, or also by pointing to evidence that raises the issue. As such, it is possible for prosecution evidence to establish facts that give rise to the issue: Momcilovic v The Queen (2011) 245 CLR 1 at 242. Once the accused meets or discharges his or her evidential burden, the prosecution must disprove that issue beyond a reasonable doubt before the accused can be found guilty of the offence. Criminal Procedure Act 2009 s 72 provides that there is an evidential burden upon an accused who wishes to rely on exceptions etc in a statutory provision, and that the informant need not disprove such exception etc until the accused does discharge that burden.

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Burdens of proof

Criminal Procedure Act Sch 1 cl 4 provides that any exception, exemption, proviso, excuse or qualification need not be specified or negated in a charge or indictment. So whilst the court must be satisfied of all elements of an offence beyond a reasonable doubt before it can find the accused guilty, if there is an evidential burden upon the accused for an element, the prosecution is not required to allege its absence in a charge, and need not negate that element unless and until the accused presents or points to evidence that raises it. For example, Control of Weapons Act 1990 s 7 provides:

7

Control of use of dangerous articles

(1) A person must not in a public place possess or carry a dangerous article without lawful excuse. (1A) A person who is in licensed premises or in a public place that is in the immediate vicinity of licensed premises must not possess or carry a dangerous article without lawful excuse. (1B) If a person is convicted or found guilty of an offence against subsection (1A) in respect of an act or omission that person is not liable to be convicted or found guilty of an offence against subsection (1) in respect of the same act or omission. (2) In this section lawful excuse includes— (a) the pursuit of any lawful employment, duty or activity; and (b) participation in any lawful sport, recreation or entertainment; and (c) the legitimate collection, display or exhibition of the article; and (d) the use of the article for the purpose for which it is designed or intended— but does not include possession or carriage of a dangerous article for the purpose of self-defence. (3) [Repealed] (4) In considering whether a person has a lawful excuse to possess or carry a dangerous article, the court must have regard to the circumstances, such as time and location, of the incident. Whilst the court cannot find the accused guilty of that offence unless satisfied of each element, including that the possession was “without lawful excuse”, the prosecution need not allege the absence of lawful excuse in the charge, and it is not required to disprove that the accused had a lawful excuse until the accused presents or points to evidence that raises that issue. JD Heydon, Cross on Evidence (10th ed, LexisNexis Butterworths, 2014) [7125] notes that, sometimes, identifying whether a provision creates a legal or evidential burden is a matter of construction, despite the operation of Criminal Procedure Act s 72 (and formerly Magistrates’ Court Act 1989 (Vic) s 130). The leading example of this is in Momcilovic v The Queen (2011) 245 CLR 1 at 52–55, 186–188, 220–221, 241–244.

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Burdens of proof

27

The Victorian Criminal Charge Book (Judicial College of Victoria) [1.7.1] “Onus and standard of proof” says: 13. Some statutory offences are stated to be subject to certain qualifications. Whether the onus is on the accused to prove facts that would bring his or her case within the scope of such a qualification, or on the prosecution to disprove the existence of such facts, will depend on how the provision is construed: • If the qualification is part of the definition of the grounds of liability (known as a “proviso”), the onus of proof will be on the prosecution to prove that the proviso does not apply. • If the qualification is a new matter, which does not form part of the primary grounds of liability, but is a special exception or condition defeating or answering liability that otherwise exists (known as an “exception”), the onus of proof will be on the party seeking to prove the exception (Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635; Barritt v Baker (1948) VLR 491; Dowling v Bowie (1952) 86 CLR 136; Vines v Djordjevitch (1955) 91 CLR 512). 14. Although not determinative, the form of the provision is an important consideration in deciding whether an offence is subject to a “proviso” or an “exception”, and who bears the onus of proof: • If the qualification exists in a single proposition with the definition of the grounds of liability, it is likely that it is a “proviso”, and that the onus of proof will be on the prosecution; • If the qualification exists in a distinct provision from that which defines the grounds of the liability, it is likely that it is an “exception”, and that the onus of proof will be on the accused (Darling Island Stevedoring & Lighterage Co Ltd v Jacobsen (1945) 70 CLR 635; Dowling v Bowie (1952) 86 CLR 136; Chugg v Pacific Dunlop Ltd (1990) 170 CLR 249).

Some legislation now expressly addresses evidential and legal burdens, such as the Crimes Amendment (Abolition of Defensive Homicide) Act 2014, inserting s 322I in the Crimes Act 1958 to expressly impose an evidential burden on the accused to raise self-defence, and a legal burden on the prosecution to disprove the issue if the accused satisfies that onus.

5 [5.10]

Sentencing Generally

See Arie Frieberg, Fox & Frieberg’s Sentencing (3rd ed, Thomson Reuters, 2014) generally, as well as Ian Freckelton and Kerryn Cockroft, Indictable Offences in Victoria (Thomson Reuters, subscription service) [3.1.10]ff and Victorian Sentencing Manual (Judicial College of Victoria) http://www.judicialcollege.vic.edu.au.

[5.20]

Penalty units

Many summary offences are described as punishable by a specified number of penalty units, defined in Sentencing Act s 110:

110

Meaning of penalty units

(1) If in an Act or subordinate instrument (except a local law made under Part 5 of the Local Government Act 1989) there is a statement of a number (whether whole, decimal or fractional) of what are called penalty units, that statement must, unless the context otherwise requires, be construed as stating a number of dollars equal to the product obtained by multiplying the number of penalty units by the amount fixed from time to time by the Treasurer under section 5(3) of the Monetary Units Act 2004. (2) If in a local law made under Part 5 of the Local Government Act 1989 there is a statement of a number (whether whole, decimal or fractional) of what are called penalty units, that statement must, unless the context otherwise requires, be construed as stating a number of dollars equal to the product obtained by multiplying $100 by that number of penalty units. Originally, a penalty unit was set at $100. This is still often the case for offences contrary to local laws made under the Local Government Act 1958 s 111. A penalty unit is now reviewed annually and fixed under the Monetary Units Act 2004 s 5. For the 2016–2017 financial year, a penalty unit is $155.46: Victoria, Gazette: General, G15, 14 April 2016.

[5.30]

Jurisdictional limits

The Magistrates’ Court must not impose a single sentence of more than two years’ jail, or a cumulative sentence of five years’ jail: Sentencing Act 1991 ss 113A, 113B. Those provisions operate strictly, so it is not open to a court of summary jurisdiction to impose an aggregate sentence under s 9 greater than two years if that would result in any one of the individual charges receiving a sentence greater than two years: Finn v Wallace [2016] VSC 10.

[5.40]

Alternative liability

It is common for an informant to charge an accused person with alternative charges on the one charge-sheet, as provided by the Interpretation of Legislation Act 1984 s 51.

30

Ch 5

51

Sentencing

Provisions as to offences under two or more laws

(1) Where an act or omission constitutes an offence under two or more laws, the offender shall, unless the contrary intention expressly appears, be liable to be prosecuted under either or any or all of those laws but shall not be liable to be punished more than once for the same act or omission. (2) In sub-section (1) law means— (a) an Act or a provision of an Act; (b) a subordinate instrument or a provision of a subordinate instrument; or (c) common law. See also Neill v County Court (2003) 40 MVR 265; Thompson v Judge Byrne (1999) 196 CLR 141. Section 51 does not provide that the defendant can only be found guilty of one charge arising out of the one set of circumstances: DPP Reference No 1 of 1992 [1992] 2 VR 405. However, in R v Sessions [1998] 2 VR 304 at 323–324 Eames AJA held that a finding of guilt was itself a “sentencing order” within the meaning of the Sentencing Act 1991, and so to record a finding against more than one charge might amount to double punishment contrary to s 51.

OFFENCES

 Contents

33

Contents 6. Access to computer or computer system (fail to comply with direction to assist) ....... 37 7. Assault (aggravated) ......................................................................................................... 41 8. Assault etc emergency workers or local authority staff on duty .................................... 44 9. Assault (unlawful) ............................................................................................................. 54 10. Bail (commit indictable offence while on bail) ............................................................. 59 11. Bail (contravene conduct conditions) ............................................................................ 61 12. Bail (failure to answer) .................................................................................................. 65 13. Bail (indemnify surety) .................................................................................................. 67 14. Begging or gathering alms ............................................................................................. 69 15. Besetting premises .......................................................................................................... 71 16. Child (leave unattended) ................................................................................................ 74 17. Contravention of order for release on adjournment ...................................................... 76 18. Contravention of community correction order .............................................................. 79 19. Court security (authorised officer failing to wear identity card, or produce on request) .................................................................................................................................. 81 20. Court security (intentionally make recording of proceeding) ....................................... 86 21. Court security (intentionally publish recording of a proceeding) ................................. 89 22. Court security (intentionally transmit or give recording of proceeding to another) .... 95 23. Court security (refuse to comply with requirement by authorised officer for search, scan or surrender of items) ................................................................................................... 98 24. Detained person (act in manner prejudicial or threatening to security, good order or management of police gaol) ............................................................................................... 102 25. Detained person (disobey lawful order) ...................................................................... 105 26. Discharge stone, arrow or missile etc .......................................................................... 107 27. Disguised with unlawful intent .................................................................................... 109 28. Disorderly conduct (public place) ................................................................................ 111 29. Drug of dependence (use) ............................................................................................ 113 30. Drunk and disorderly in public place .......................................................................... 115 31. Drunk in public place ................................................................................................... 117 32. Drunk (riotous or disorderly behaviour, or in charge of carriage) ............................. 119 33. Escape from lawful custody ......................................................................................... 121 34. False report of emergency to ambulance service ........................................................ 123 35. False report of fire ........................................................................................................ 125 36. False report of fire ........................................................................................................ 127 37. False report to police .................................................................................................... 129 38. Family violence (contravene intervention order) ........................................................ 133 39. Family violence (contravene safety notice) ................................................................. 136

34

Offences

40. Fire (causing in country area in extreme conditions of weather) ............................... 140 41. Fire (light in the open air on total fire ban day) ......................................................... 142 42. Firearm (carry or use in a town or populous place) ................................................... 148 43. Firearm (carry or use under influence of intoxicating liquor or drug) ....................... 151 44. Firearm (contravene licence conditions) ...................................................................... 153 45. Firearm (damage property with) .................................................................................. 155 46. Firearm (incorrectly store longarm, or cartridge ammunition) ................................... 157 47. Firearm (non-prohibited person possessing etc) .......................................................... 162 48. Firearm (possess etc on private property without consent) ........................................ 171 49. Firearm (possess cartridge ammunition) ...................................................................... 174 50. Firearm (use in a dangerous manner) .......................................................................... 177 51. Genital or anal region (distribute image) .................................................................... 179 52. Genital or anal region (observation aided by device) ................................................. 181 53. Genital or anal region (visually capture) ..................................................................... 183 54. Going equipped for stealing, burglary or cheating ..................................................... 185 55. Graffiti marking ............................................................................................................ 187 56. Graffiti marking (offensive) .......................................................................................... 189 57. Graffiti (possessing prescribed implement) ................................................................. 191 58. Harass witnesses ........................................................................................................... 193 59. Housebreaking implements (possess) .......................................................................... 196 60. Impersonating police .................................................................................................... 198 61. Intimate images (distributing) ...................................................................................... 200 62. Intimate images (threat to distribute) ........................................................................... 203 63. Liquor (drunk, violent or quarrelsome person refuse or fail to leave licensed premises on request) ........................................................................................................... 205 64. Liquor (licensee or permittee supplying to intoxicated person, or allowing on licensed premises) ............................................................................................................... 208 65. Liquor (possess or consumed by person under age of 18 years) ............................... 213 66. Litter (deposit) .............................................................................................................. 216 67. Litter (deposit advertising material in certain mailboxes) .......................................... 218 68. Litter (deposit document in or on vehicle) .................................................................. 220 69. Loitering with intent to commit indictable offence ..................................................... 221 70. Move on (contravene direction) ................................................................................... 225 71. Name and address etc (fail or refuse to supply or falsely provide to authorised officer) ................................................................................................................................. 229 72. Name and address (refuse to give etc to local government authorised officer) ......... 232 73. Name or address (fail to state, or state false name or address) ................................. 235 74. Name or address (refuse or fail to state or falsely state to police on request) .......... 241 75. Name or rank or place of duty (police officer refusing or failing to state on request) ................................................................................................................................ 244 76. Obscene, indecent, threatening language and behaviour etc in public ....................... 248

 Contents

35

77. Parole (breach term or condition) ................................................................................ 257 78. Personal safety (contravene intervention order) .......................................................... 259 79. Proceeds of crime (dealing with property reasonably suspected as such) ................. 262 80. Recordings (possess, play, supply, copy, tamper with or publish) ............................. 265 81. Registrable offender failing to comply with obligation to report infrequently changed personal details ..................................................................................................... 273 82. Scheduled poison (possess) .......................................................................................... 280 83. Spiking food or drink ................................................................................................... 283 84. Trespass (enter private or public place in manner likely to cause breach of the peace) .................................................................................................................................. 287 85. Trespass (land or premises of Roads Corporation or Rail Track) .............................. 291 86. Trespass (land or premises of Water Authority) .......................................................... 293 87. Trespass (refuse or neglect to leave private or scheduled public place) .................... 295 88. Trespass (wilfully enter private or scheduled public place) ....................................... 299 89. Trespass (wilfully trespass in and refuse to leave any public place) ......................... 304 90. Unlawful possession (property reasonably suspected of being stolen) ...................... 312 91. Weapon – controlled (possess, use or carry weapon) ................................................. 316 92. Weapon – dangerous article (possess or carry in public place) ................................. 322 93. Weapon – prohibited (possess, carry or use) ............................................................... 326 94. Wilful and obscene exposure ....................................................................................... 332 95. Wilful damage ............................................................................................................... 335

6 [6.10]

Access to computer or computer system (fail to comply with direction to assist) Contrary to: Crimes Act 1958 s 465AAA(4)

Section 465AAA provides:

465AAA Warrant may authorise the giving of a direction requiring assistance from person with knowledge of a computer or computer network (1) Subject to subsection (3), a warrant issued under section 465 in relation to a building, receptacle, place or vehicle (warrant premises) may authorise a police officer executing the warrant to give a direction under subsection (2) to a specified person. (2) A police officer may direct a specified person to provide any information or assistance that is reasonable and necessary to allow the police officer to do one or more of the following things— (a) access data held in, or accessible from, a computer or data storage device that— (i) is on warrant premises; or (ii) has been seized under the warrant and is at a place other than warrant premises; (b) copy to another data storage device data held in, or accessible from, a computer, or data storage device, described in paragraph (a); (c) convert into documentary form or another form intelligible to a police officer— (i) data held in, or accessible from, a computer, or data storage device, described in paragraph (a); or (ii) data held in a data storage device to which the data was copied as described in paragraph (b). (3) A warrant may authorise the giving of a direction under subsection (2) if the magistrate issuing the warrant is satisfied that— (a) there are reasonable grounds for suspecting that data held in, or accessible from, a computer, or data storage device, described in subsection (2)(a) will afford evidence as to the commission of an indictable offence; and (b) the specified person is—

38

Offences

(i)

reasonably suspected of having committed an indictable offence in relation to which the warrant was issued; or (ii) the owner or lessee of the computer or device; or (iii) an employee of the owner or lessee of the computer or device; or (iv) a person engaged under a contract for services by the owner or lessee of the computer or device; or (v) a person who uses or has used the computer or device; or (vi) a person who is or was a system administrator for the computer network of which the computer or device forms or formed a part; and (c) the specified person has relevant knowledge of— (i) the computer or device or a computer network of which the computer or device forms or formed a part; or (ii) measures applied to protect data held in, or accessible from, the computer or device. (4) A person commits an offence if— (a) the person has relevant knowledge of— (i) the computer or data storage device or a computer network of which the computer or data storage device forms or formed a part; or (ii) measures applied to protect data held in, or accessible from, the computer or data storage device; and (b) the person is informed by a police officer— (i) of the authorisation to give the direction under subsection (2) and of its terms; and (ii) that it is an offence to fail to comply with the direction; and (c) the person fails to comply with the direction without reasonable excuse. (5) A person who commits an offence against subsection (4) is liable to level 7 imprisonment (2 years maximum). (6) An offence against subsection (4) is a summary offence. (7) A person is not excused from complying with a direction under subsection (2) on the ground that complying with it may result in information being provided that might incriminate the person. (8) In this section access, data, data held in a computer and data storage device have the meanings given by section 247A(1). [6.20] Statutory reference 6231.465AAA.4

Ch 6

[6.30]

Access to computer or computer system (fail to comply with direction to assist)

39

Statement of charge

Fail to comply with direction to assist with access to computer system.

[6.40]

Wording of charge

The accused at [place] on [date] was a person with relevant knowledge of a (computer or data storage device/computer network of which a computer or data storage device formed a part/measures applied to protect data held in or accessible from a computer or data storage device) and a police officer authorised under Crimes Act 1958 s 456AAA(3) directed the accused to provide any reasonably necessary information or assistance to (access/copy/convert) data held in or accessible from that computer or data storage device and informed the accused it was an offence to fail to comply with that direction and the accused failed to comply with the direction.

[6.50]

Penalty

2 years’ jail

[6.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. That a police officer was authorised by a search warrant to give a direction to a specified person to provide reasonable and necessary assistance to access, copy or convert data held in or accessible from a computer or storage device. 4. The police officer gave such a direction to the accused. 5. The police officer informed the accused it was an offence to fail to comply with the direction. 6. The accused failed to comply with the direction without reasonable excuse.

[6.70]

Other possible charges

Access to computer or computer system (fail to comply with direction to assist): Crimes Act 1914 (Cth) s 3LA. Access to computer or computer system (fail to comply with court order to assist): Crimes Act 1914 (Cth) s 465AA.

[6.80]

Self-incrimination

This provision was inserted in the Crimes Act 1958 by the Crimes Amendment (Child Pornography and Other Matters) Act 2015. The Statement of Compatibility tabled in Parliament as required by Charter of Human Rights and Responsibilities Act 2006 s 28 stated: Right not to be compelled to testify against oneself or to confess guilt Section 25(2)(k) of the charter provides that a person charged with a criminal offence has the right “not to be compelled to testify against himself or herself or to confess guilt”. The bill will enable magistrates to issue search warrants that allow the executing police officer to direct a specified person with knowledge of a computer or computer network to assist police in the execution of the warrant. This will allow police to require assistance from people to gain access to computer files that may contain evidence of child pornography offences but which would otherwise remain inaccessible. The bill provides that a person is not excused from complying with the request for assistance on the ground that complying with it may result in information being provided that might incriminate the person.

40

Offences The bill does not limit section 25(2)(k), because the person required to assist police is not a person who has been charged with a criminal offence. The execution of the warrant occurs before charges, if any, are filed. In addition, the person is not being required to testify against himself or herself because they are not giving evidence in court. Finally, the person is not being required to confess guilt. While the information the person provides may enable police to obtain evidence that incriminates the person, the giving of that information, such as a computer password or similar, is not in itself a confession of guilt. Even if the bill could be said to limit s 25(2)(k), the limitations are reasonable and justified because of the serious nature of the crimes being investigated (such as child pornography offences) and the fact that the police investigation could be blocked by non-disclosure of the relevant information (such as a password to access a computer). If a person has locked hard-copy child pornography in a cupboard, the police do not need the person’s assistance in breaking into the cupboard, under warrant, to seize that evidence and the person has no right to try to block the police breaking into that cupboard. If the person has also “locked” electronic child pornography inside a computer through encryption, the person should not, simply because of their use of more sophisticated technology, now be empowered to stymie police investigations by refusing to divulge the electronic key to that evidence. Moreover, such information can assist police in identifying children being abused and preventing further abuse of such children in Victoria. There is also the safeguard that the magistrate issuing the search warrant will have discretion not to include such a power in the warrant where the police officer applying for the warrant has not made out an adequate case for the need for such a power.

[6.90] Without reasonable excuse The accused has the evidential burden of raising lawful authority: see [4.30].

7 [7.10]

Assault (aggravated) Contrary to: Summary Offences Act 1966 s 24

Section 24 provides:

24

Aggravated assault (1) (a)

Where a person is convicted before the Magistrates’ Court of an assault or battery upon any male child whose age in the opinion of the court does not exceed fourteen years or upon any female, if in the opinion of the court the assault or battery is of such an aggravated nature that it cannot sufficiently be punished under the last preceding section, the person offending shall be liable on conviction to a penalty of 25 penalty units or to imprisonment for six months and the court may (if it thinks fit in any of the said cases) without any further or other charge adjudge any person convicted to enter into a recognizance and find sureties to keep the peace and be of good behaviour for a term of not more than six months from the expiration of such sentence. (b) In default of compliance with any such order to enter into a recognizance and find sureties the court may order an accused to be imprisoned until he complies with the order: Provided that no person shall be imprisoned for non-compliance with any such order for a longer period than twelve months. (2) Any person who in company with any other person or persons assaults another person shall be liable to imprisonment for twelve months and any person who by kicking or with any weapon or instrument whatsoever assaults another person shall be liable to imprisonment for two years. [7.20] Statutory reference 7405.24

[7.30]

Statement of charge

Aggravated assault. Assault by kicking. Assault with a weapon. Assault in company.

42

Offences

[7.40]

Wording of charge

The accused at [place] on [date] unlawfully assaulted [complainant] (a child 14 years old or less/a female/in company with another/in company with others/by kicking/with a weapon, namely [weapon]).

[7.50]

Penalty

25 penalty units or 6 months’ jail (assault of child 14 or under, or female) 12 months’ jail (assault in company) 2 years’ jail (assault by kicking or with a weapon)

[7.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused assaulted another person. 4. The assault was of a child 14 or under or a woman/in company/by kicking/with a weapon.

[7.70]

Other possible charges: Summary Offences Act 1966

Assault (unlawful): s 23. Assaulting etc emergency services worker or local authority staff on duty: s 51. Behaving in a riotous manner: s 17(1)(d). Escaping from lawful custody: s 49E.

[7.80]

Other possible charges: common law

Affray. Assault (common).

[7.90]

Other possible charges: miscellaneous

Acting in manner prejudicial to safety of person in police gaol etc: Corrections (Police Gaols) Regulations 2015 reg 15(1)(b).

[7.100]

Separate offence

Summary Offences Act 1966 s 24 creates a distinct offence to that of unlawful assault contrary to s 23: McKenzie v Dabonde [1952] VLR 177. Aside from the circumstances of aggravation, the elements of the offence are otherwise the same as for unlawful assault.

[7.110] Assault and battery See note under this heading in [9.90].

[7.120] Defences See note under this heading in [9.100].

[7.130] Consent See note under this heading in [9.110].

Ch 7

[7.140]

Assault (aggravated)

43

Amicable contest

See note under this heading in [9.120].

[7.150]

Misadventure or accident

See note under this heading in [9.130].

[7.160]

Execution of the law

See note under this heading in [9.140].

[7.170]

Lawful chastisement

See note under this heading in [9.150].

[7.180]

Self-defence etc

See note under this heading in [9.160], and see also the commentary on evidential burden at [4.30].

[7.190]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.4100]ff.

8 [8.10]

Assault etc emergency workers or local authority staff on duty Contrary to: Summary Offences Act 1966 s 51(2)–(4)

Section 51(2)–(4) provide:

51 Assaulting, etc. emergency workers, custodial officers or local authority staff on duty (1) In this section— custodial officer on duty and custodial officer have the same meanings as in section 10AA of the Sentencing Act 1991; emergency worker on duty and emergency worker have the same meanings as in section 10AA of the Sentencing Act 1991. (2) A person must not assault, resist, obstruct, hinder or delay an emergency worker on duty or a custodial officer on duty. (3) A person must not assault, resist, obstruct, hinder or delay a member of staff of a local authority in the execution of the member’s duty under this Act. (4) A person must not assault, resist, obstruct, hinder or delay a person lawfully assisting an emergency worker on duty or a custodial officer on duty. (5) In addition to imposing a penalty under this section, the court may order and award a sum sufficient to cover any damage which an emergency worker, a custodial officer or a member of staff of a local authority or a person lawfully assisting an emergency worker or a custodial officer has sustained by the assault, resistance, obstruction, hindrance or delay. (6) A sum awarded under subsection (5) may be recovered in the same manner as the penalty. [8.20] Statutory reference 7405.51.2 7405.51.3 7405.51.4

Ch 8

[8.30]

Assault etc emergency workers or local authority staff on duty

45

Statement of charge

Hinder/obstruct/assault/resist/delay emergency worker on duty. Hinder/obstruct/assault/resist/delay member of staff of local authority. Hinder/obstruct/assault/resist/delay person lawfully assisting emergency worker on duty.

[8.40]

Wording of charge

Section 51(2) The accused at [place] on [date] (hindered/obstructed/assaulted/resisted/delayed) an emergency worker on duty.

Section 51(3) The accused at [place] on [date] (hindered/obstructed/assaulted/resisted/delayed) a member of staff of a local authority in the execution of the member’s duty under the Summary Offences Act 1966.

Section 51(4) The accused at [place] on [date] (hindered/obstructed/assaulted/resisted/delayed) a person lawfully assisting an emergency worker on duty.

[8.50]

Penalty

60 penalty units or 6 months’ jail

[8.60]

Matters to be proved

Section 51(2) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused hindered, or obstructed, or assaulted, or resisted, or delayed a person. 4. The person so affected was an on-duty emergency worker.

Section 51(3) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused hindered, or obstructed, or assaulted, or resisted, or delayed a person. 4. The person so affected was a member of staff of a local authority acting in the execution of that person’s duty under the Summary Offences Act 1966.

Section 51(4) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused hindered, or obstructed, or assaulted, or resisted, or delayed a person. 4. The person so affected was lawfully assisting an on-duty emergency worker.

46

Offences

[8.70]

Other possible charges: Crimes Act 1958

Assault etc of an emergency worker on duty: s 31.

[8.80]

Other possible charges: common law

Affray. Assault (common).

[8.90]

Other possible charges: Summary Offences Act 1966

Assault (unlawful): s 23. Behave in riotous, indecent, offensive, or insulting manner in or near etc a public place: s 17(1)(d). Escaping from lawful custody: s 49E.

[8.100]

Other possible charges: miscellaneous

Obstruct, hinder or interfere with officers or members of brigades: Country Fire Authority Act 1958 s 107(1). Obstruct or hinder authorised officer in the discharge of duties: Domestic Animals Act 1994 s 76(3). Assault, obstruct, hinder, resist, threaten or intimidate authorised officer in the exercise or performance of power etc under the Act: Fisheries Act 1995 s 111(2). Obstruct, hinder or interfere with member of operational staff: Metropolitan Fire Brigades Act 1958 s 75C(1).

[8.110] Background to the section The original form of this offence dealt solely with assaulting etc members of the police force acting in the execution of their duty or otherwise. Prior to the creation of the new colony of Victoria on 1 July 1851, the New South Wales Police Act 1838 s 8 created an offence of assaulting or resisting police officers. The first Victorian enactment was in the Town and Country Police Act 1854 s 25; and thereafter Criminal Law and Practice Statute 1864 s 67; Police Offences Statute 1865 s 72; Police Offences Act 1890 s 98; Police Offences Act 1912 s 85; Police Offences Act 1915 s 85; Police Offences Act 1928 s 85; and Police Offences Act 1958 s 84. A complementary offence of assaulting etc operational ambulance staff was added by the Ambulance Services (Amendment) Act 2004 in response to a spate of attacks on paramedics. Summary Offences Act 1966 s 51 was then substituted with its present version by Sentencing Amendment (Emergency Workers) Act 2014 s 14. The Act expanded protection to a broad range of people who carry out emergency work, such as medical staff in hospitals and volunteer life savers, who previously were not contemplated by this section. Because the section historically only proscribed conduct against police officers, cases considering the different offences have always concerned police officers.

[8.120]

Accused has knowledge of emergency worker’s status

For a prosecution against this offence it is not necessary to prove that the accused knew the person hindered, obstructed, assaulted etc, was an emergency worker: R v Reynhoudt (1962) 107 CLR 381; Leonard v Morris (1975) 10 SASR 528.

Ch 8

Assault etc emergency workers or local authority staff on duty

47

In contrast, the similar indictable offence contrary to Crimes Act 1958 s 31 does require proof of such knowledge against the accused.

[8.130]

Emergency workers

Emergency worker has the same meaning as in Sentencing Act 1991 s 10AA(8), which means:

10AA Custodial sentence for certain offences against emergency workers and custodial officers on duty (1) Subject to subsection (2), in sentencing an offender (whether on appeal or otherwise) for an offence against a section of the Crimes Act 1958 specified in column 1 of Table 1 committed against an emergency worker on duty or a custodial officer on duty, a court must impose a term of imprisonment and fix under section 11 a non-parole period of not less than the period specified in column 2 of that Table in relation to that offence unless the court finds under section 10A that a special reason exists. TABLE 1 Column 1 Offence Section 15A Section 15B Section 16 Section 17

Column 2 Minimum non-parole period 5 years 5 years 3 years 2 years

Note: Section 11(3) requires that a non-parole period must be at least 6 months less than the term of the sentence.

(2) In the circumstances described in subsection (3), in sentencing a young offender for an offence against a section of the Crimes Act 1958 specified in column 1 of Table 2 committed against an emergency worker on duty or a custodial officer on duty, a court is not required to impose a term of imprisonment and fix a non-parole period in accordance with subsection (1) but, if it decides not to impose such a term and fix such a period, it must make a youth justice centre order for a term not less than the term specified in column 2 of that Table in relation to that offence. TABLE 2 Column 1 Offence Section 16 Section 17

Column 2 Minimum youth justice centre term 3 years 2 years

(3) The circumstances are that the court—

48

Offences

(a)

has not made a finding under section 10A that a special reason exists; and (b) has received a pre-sentence report and believes— (i) that there are reasonable prospects for the rehabilitation of the young offender; or (ii) that the young offender is particularly impressionable, immature or likely to be subjected to undesirable influences in an adult prison. (4) In sentencing an offender (whether on appeal or otherwise) for an offence against section 18 of the Crimes Act 1958 committed against an emergency worker on duty or a custodial officer on duty, a court must impose a term of imprisonment of not less than 6 months unless the court finds under section 10A that a special reason exists. (5) Subsections (1), (2) and (4) apply to a court in sentencing an offender for the offence only if it is satisfied beyond reasonable doubt that— (a) a victim of the offence was an emergency worker on duty or a custodial officer on duty (as the case may be); and (b) at the time of carrying out the conduct the offender knew or was reckless as to whether the victim was an emergency worker or a custodial officer (as the case may be). (6) Subsections (1), (2) and (4) do not apply to an offender— (a) who is involved in the commission of the offence within the meaning of section 323(1)(a) or (b) of the Crimes Act 1958; or (b) who is under the age of 18 years at the time of the commission of the offence. (7) Subdivision (4) (except section 32(1), (2), (2A) and (2B)) applies in relation to a youth justice centre order made under subsection (2). (8) In this section— custodial officer means— (a) a Governor, prison officer or escort officer within the meaning of the Corrections Act 1986; or (b) a police custody officer within the meaning of the Victoria Police Act 2013; or (c) a person authorised under section 9A(1) of the Corrections Act 1986 to exercise a function or power of a Governor, a prison officer or an escort officer under that Act; or (d) a person authorised under section 9A(1A) or (1B) of the Corrections Act 1986 to exercise a function or power referred to in that subsection; emergency treatment means unplanned or unexpected treatment of a patient that may be necessary, as a matter of urgency— (a) to save the patient’s life; or

Ch 8

Assault etc emergency workers or local authority staff on duty

(b) to prevent damage to the patient’s health; or (c) to prevent the patient from suffering or continuing to suffer pain or distress; emergency worker means— (a) a police officer or protective services officer within the meaning of the Victoria Police Act 2013; or (b) an operational staff member within the meaning of the Ambulance Services Act 1986; or (c) a person employed or engaged to provide, or support the provision of, emergency treatment to patients in a hospital; or (d) a person employed by the Metropolitan Fire and Emergency Services Board established under the Metropolitan Fire Brigades Act 1958 or a member of a fire or emergency service unit established under that Act; or (e) an officer or employee of the Country Fire Authority under the Country Fire Authority Act 1958; or (f) an officer or member of a brigade under the Country Fire Authority Act 1958, whether a part-time officer or member, a permanent officer or member or a volunteer officer or member within the meaning of that Act; or (g) a casual fire-fighter within the meaning of Part V of the Country Fire Authority Act 1958; or (h) a volunteer auxiliary worker appointed under section 17A of the Country Fire Authority Act 1958; or (i) a person employed in the Department of Environment and Primary Industries with emergency response duties; or (j) a registered member or probationary member within the meaning of the Victoria State Emergency Service Act 2005 or an employee in the Victoria State Emergency Service; or (k) a volunteer emergency worker within the meaning of the Emergency Management Act 1986; or (l) any other person or body— (i) required or permitted under the terms of their employment by, or contract for services with, the Crown or a government agency to respond (within the meaning of the Emergency Management Act 2013) to an emergency (within the meaning of that Act); or (ii) engaged by the Crown or a government agency to provide services or perform work in relation to a particular emergency; hospital means a public hospital, private hospital, denominational hospital or day procedure centre within the meaning of the Health Services Act 1988.

49

50

Offences

(9) For the purposes of this section an emergency worker is on duty if— (a) in the case of a police officer or protective services officer within the meaning of the Victoria Police Act 2013, the officer is performing any duty or exercising any power as such an officer; or (b) in the case of an operational staff member within the meaning of the Ambulance Services Act 1986, the staff member is providing, or attempting to provide, care or treatment to a patient; or (c) in the case of a person employed or engaged to provide, or support the provision of, emergency treatment to patients in a hospital, the person is providing, or supporting the provision of, or attempting to provide or support the provision of, such treatment; or (d) in any other case, the person is performing any duty or exercising any power in response to an emergency within the meaning of the Emergency Management Act 2013. (10) For the purposes of this section a custodial officer is on duty if— (a) in the case of a Governor, prison officer or escort officer within the meaning of the Corrections Act 1986, the Governor or officer is exercising a function or power as a Governor, prison officer or escort officer (as the case may be); or (b) in the case of a police custody officer within the meaning of the Victoria Police Act 2013, the officer is exercising a function or power as a police custody officer; or (c) in the case of a person authorised under section 9A(1) of the Corrections Act 1986 to exercise a function or power of a Governor, a prison officer or an escort officer under that Act, the person is exercising a function or power specified in the instrument of authorisation; or (d) in the case of a person authorised under section 9A(1A) or (1B) of the Corrections Act 1986, the person is exercising a function or power specified in the instrument of authorisation. [8.140] On duty and execution of duty On duty has the same meaning as in Sentencing Act 1991 s 10AA(9). In essence, it is not necessary for an emergency worker to be rostered and paid at the time of an alleged offence for them to be considered on duty, though that will typically be the case. Mere performance of a duty or exercising the power of office, or treating a person (in the case of ambulance staff) will suffice. In this regard, the cases considering if police officers acted in the execution of duty are instructive. The effect of all those cases is that a police officer acts in the execution of his duty from the moment he embarks upon a lawful task connected with his functions as a police officer, and continues to act in the execution of that duty for as long as he is engaged in pursuing

Ch 8

Assault etc emergency workers or local authority staff on duty

51

the task and until it is completed, provided that he does not in the course of the task do anything outside the ambit of his duty so as to cease to be acting therein: Re K (1993) 46 FCR 336 at 340–341.

A police officer is not acting in the execution of duty if he wishes to compulsorily question a person who is not under arrest or other legal compulsion to stay or answer questions: McLiney v Minster [1911] VLR 347; Kenlin v Gardiner [1967] 2 QB 510; Ludlow v Burgess (1971) 75 Cr App R 227; Collins v Wilcock [1984] 1 WLR 1172; Rice v Connolly [1966] 2 QB 414. Nor, unless an offence is committed, are police acting in the execution of duty merely because they forbid a person from committing a tort, such as a trespass, and the person disobeys: Innes v Weate [1984] Tas R 14. Police are not acting in the execution of duty if they try to prevent removal of property they have no lawful authority to seize or retain, such as a car suspected of involvement in a crime parked in a car park, or a mobile phone used or about to be used by a person they wish to question: R v Waterfield [1964] 1 QB 164; Poidevin v Semaan (2013) 85 NSWLR 758. Police are acting in the execution of duty when restricting the movements of occupants in a house whilst conducting a search authorised by warrant: DPP v Meaden [2004] 1 WLR 945. In DPP v Gribble (2004) 151 A Crim R 256, the New South Wales Supreme Court recognised that the duty of police extends beyond the mere prevention and investigation of crime, and can include actions reasonably necessary to protect people from injury or death, and property from damage, without a requirement that the need arises from a crime. In that case, the police attempted to remove a man from a roadway before he might be run over, and he then assaulted the police.

[8.150]

Hinder and obstruct

The conventional formulation for hindering is any obstruction or interference that makes the duty of a police officer more difficult to perform: Plunkett v Kroemer [1934] SASR 124. The distinction between hindering and obstructing police officers has not always been clear. The different forms of conduct frequently overlap: Leonard v Morris (1975) 10 SASR 528 at 546. Mere inaction or passive indifference to the task attempted by police is insufficient: Leonard v Morris (1975) 10 SASR 528 at 530–531, 542–543; Curran v Thomas Borthwick & Sons (1990) 26 FCR 241. Refusing to answer questions when the police have a power to require an answer – such as the obligation of motorists to state their full name and address – will not suffice: Cavanagh v Galkowski (1979) 20 SASR 322 at 326. (Though it may well be an offence in its own right, such as [74.10].) Advising a person to not answer questions from police and exercise a right to silence is not hindering: Hogben v Chandler [1940] VLR 285. Similarly, questions or comments by a third party during a police interview, even after a warning to desist, do not amount to hindering: Leonard v Morris at 532–533. However, to go one step further in an interview and to deliberately lie to the police might amount to obstruction: Tankey v Smith (1981) 36 ACTR 19.

52

Offences

Warning of the approach of police can amount to an obstruction: Maingay v Mansfield (1919) 21 WALR 70; Lenthall v Curran [1933] SASR 248; Terbutt v Holmes (1935) 52 WN (NSW) 223; Plunkett v Kroemer; Hinchcliffe v Sheldon [1955] 1 WLR 1207. Warning other motorists of a police speed trap has been held not to amount to an obstruction of police in Betts v Stevens [1910] 1 KB 1 and Patch v Ebbage; Ex parte Patch [1952] St R Qd 32. But in Young v Owen (1972) 19 FLR 70 the Northern Territory Supreme Court held that it could amount to an obstruction if an offence was being committed (such as speeding), and there was some concert between the person giving the warning and its recipient or the police were executing a specific statutory duty. In contrast to R v Waterfield at [8.140], an attempt to prevent the police from seizing an item they do have a power to seize is an obstruction: Peach v McCarthy [1919] VLR 342. A refusal to reverse the wrong way up a one-way street when so directed by a police officer to permit entry by an ambulance amounts to obstruction: Johnson v Phillips [1976] 1 WLR 65. Opening the door of a police vehicle to inquire where a friend is being taken may amount to obstruction if done more than once, such that it prevents a police officer from driving away: Lewis v Cox [1985] QB 509. A refusal by a person to give their name and address to police when there is no requirement to do so, or remain with or accompany police when they are not under arrest, is not obstruction: Rice v Connolly [1966] 2 QB 414. Ordering police who do not have a search warrant to leave private property is not an obstruction: MacKay v Abrahams [1916] VLR 681. Trying to prevent police from arresting a person in the mistaken belief they have the wrong person is an obstruction: Hill v Ellis [1983] 1 QB 680. In R v Keenan (1994) 76 A Crim R 374 and Plumb v Rayner (1995) 84 A Crim R 402 logging protestors were accused of chaining themselves to logging equipment. Those prosecutions for hindering failed. This was because the offence under consideration required the prosecution to prove the protestors were trying to hinder the affected person from doing an act the protestors believed he had a legal right to do. Where they honestly and reasonably believed he had no legal right to perform that act, no offence was made out.

[8.160]

Intent or recklessness required to prove hindrance or obstruction

To be guilty of hindering, an accused must intentionally or recklessly impede a police officer in the performance of their duty: Leonard v Morris (1975) 10 SASR 528 at 531, 542–543. To establish an obstruction, the prosecution must prove not only that the accused acted voluntarily, but that they thereby intended to cause an obstruction to the police: Willmott v Atack [1977] QB 498 at 505; Moore v Green [1983] 1 All ER 663 at 665. The basic element to obstruction is the purposeful act of making it more difficult for a law enforcement officer to do what they are empowered to do, so long as the officer acts in good faith: Goddard v Collins [1984] VR 919 at 929.

Ch 8

[8.170]

Assault etc emergency workers or local authority staff on duty

53

Assault and battery

See note under this heading in [9.90]ff.

[8.180]

Resist

A man fleeing from police officers who wanted to question him about leaving a restaurant without paying his bill was not guilty of resisting the police prior to any arrest, because until arrested there was no legal obligation for him to stop when requested or to answer questions: DPP v Hamilton (2011) 33 VR 505.

[8.190]

Defences

See note under this heading in [9.100], and see also the commentary on evidential burden at [4.30].

[8.200]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.6410]ff.

9 [9.10]

Assault (unlawful) Contrary to: Summary Offences Act 1966 s 23

Section 23 provides:

23

Common assault Any person who unlawfully assaults or beats another person shall be guilty of an offence. [9.20] Statutory reference 7405.23

[9.30]

Statement of charge

Unlawful assault.

[9.40]

Wording of charge

The accused at [place] on [date] unlawfully assaulted [complainant].

[9.50]

Penalty

15 penalty units or 3 months’ jail

[9.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused assaulted another person.

[9.70]

Other possible charges: Summary Offences Act 1966

Assault (aggravated): s 24. Assaulting etc emergency services worker or local authority staff on duty: s 51. Behaving in a riotous manner: s 17(1)(d). Escaping from lawful custody: s 49E.

[9.80]

Other possible charges: common law

Affray. Assault (common).

[9.90]

Assault and battery

Assault may include both an assault or display of force, and battery or application of force. An assault is an intentional or reckless act that causes another person to apprehend or perceive immediate and unlawful personal violence: Fagan v Commissioner of Metropolitan Police [1969] 1 QB 439. It is not necessary that the complainant is put in

Ch 9

Assault (unlawful)

55

fear. Older cases that use the term “fear” use it synonymously with “apprehend” or “perceive”: ACN 087 528 774 Pty Ltd (formerly Connex Trains Melbourne Pty Ltd) v Chetcuti (2008) 21 VR 559 at 565; Slaveski v Victoria [2010] VSC 441 at [223]; Brady v Schatzel; Ex parte Brady [1911] St R Qd 206 at 208. The erroneous belief that fear is an element of assault comes from R v St George (1840) 173 ER 921; 9 Car & P 483 at 493 where Parke B said: My idea is, that it is an assault to present a pistol at all, whether loaded or not. If you threw the powder out of the pan, or took the percussion cap off, and said to the party, “This is an empty pistol”, then that would be no assault; for there the party must see that it was not possible that he should be injured; but if a person presents a pistol which has the appearance of being loaded, and puts the party into fear and alarm, that is what it is the object of the law to prevent. I think that if, in this case, it should be proved that the prisoner presented a pistol purporting to be a loaded pistol, and the jury are satisfied that it was so near as to produce danger to life if the pistol had gone off, that that would be an assault in point of law, and that the prisoner might be convicted of that assault upon this indictment.

It is necessary though that the complainant perceives a present and immediate ability for the accused to apply force: Stephens v Myers (1830) 172 ER 735. An example is brandishing a firearm: Brady v Schatzel. Even if the firearm is unloaded and so in fact incapable of injuring the complainant, an assault is made out: R v St George; R v Hamilton (1891) 12 LR (NSW) 111 at 114; Brady v Schatzel. The corollary of this is that where a person is unaware of the threat, such as a firearm pointed from behind, there is no assault: Police v Greaves [1964] NZLR 295. Of course, the application of force from behind would amount to a battery, and hence an assault: Jones v Sherwood [1942] 1 KB 127. Words alone might be an assault, as can silence, such as with a telephone call: R v Ireland [1998] AC 147; Barton v Armstrong [1969] 2 NSWR 451. But the words must be such to reasonably cause the recipient to perceive immediate physical contact: Slaveski v Victoria at [228]–[240]; Knight v The Queen (1988) 35 A Crim R 314; R v Gabriel (2004) 182 FLR 102. The classic example of words that could comprise an assault is Tuberville v Savage (1669) 1 Mod 3; 86 ER 684, where ““the plaintiff put his hand upon his sword and said, ‘If it were not assize-time, I would not take such language from you’”. The court held there was no intent to assault demonstrated by such words, despite the act of the plaintiff. Where contact does not involve an intention to assault – such as touching someone to get their attention, or pushing against people in crowded public places or on public transport – there is no offence: Collins v Wilcock [1984] 1 WLR 1172; Tuberville v Savage. This is because there is no intentional or reckless application of force, sometimes described as a lack of hostile intent. The slightest touch to another person with the necessary intent is an assault, no matter how slight the interference: Cole v Turner (1704) 90 ER 958. The application of force, even if the complainant is unaware of it, amounts to a battery and may be charged as assault. For example, cutting another person’s hair without their consent is a battery: Forde v Skinner (1834) C & P 239. Historically, transmitting a disease to another person was not an assault: R v Clarence (1888) 22 QBD 23; Mutemeri v Cheesman [1998] 4 VR 484. But that position was questioned in R v Ireland at 160, and is no longer the law in Victoria by virtue of

56

Offences

the definition of “physical injury” in Crimes Act 1958 s 15. It seems though that such conduct would amount only to an indictable assault.

[9.100]

Defences

Victoria Police uses the mnemonic “CAMELS” to teach its members the accepted defences to a charge of assault. The mnemonic stands for: consent; amicable contest; misadventure; execution of the law; lawful chastisement; and self-defence and defence of another or property. The accused has the evidential burden of raising those defences: see [4.30].

[9.110] Consent If force applied or displayed is lawful and consented to, it is not an assault: Attorney-General’s Reference (No 6 of 1980) [1981] 1 QB 715; Re F (Mental Patient Sterilisation) [1990] 2 AC 1 at 11–18, 27–32, 35–43. But when bodily harm, or an “injury” as defined in the Crimes Act 1958, is caused, consent is not a defence: Attorney-General’s Reference (No 6 of 1980); R v Raabe (1984) 14 A Crim R 381; R v Brown [1994] 1 AC 212; R v Stein (2007) 18 VR 376. Victoria has almost no express statutory exceptions permitting medical and surgical “injuries”, aside from Crimes Act s 34A (exceptions for female genital mutilation). Necessary surgery carried out with reasonable care and skill presumably counts as a “lawful excuse” for the more serious assault offences found in the Crimes Act, rather than solely justified on the ground of consent. In contrast, the Griffith Codes provide a specific defence for reasonably performed surgery: Criminal Code (Qld) s 288; Criminal Code (WA) s 265; Patel v The Queen (2012) 247 CLR 531. Tattooing, body piercing and even branding are generally lawful when consented to: R v Wilson [1997] 1 QB 47. But Summary Offences Act 1966 ss 42–44A proscribe tattooing and body piercing of juveniles. The general position in Victoria is that a person cannot lawfully consent to an indictable assault, but this seems largely justified on public policy grounds, and some of the exceptions are difficult to justify as based on anything other than customary acceptance.

[9.120]

Amicable contest

This archaic term usually refers to sporting contests, but can also include organised and spontaneous fighting, and also rough play. Typically, the law has permitted or at least tolerated organised sports with accepted rules intended to minimise the risk of injury. Courts have recognised organised boxing as lawful: Pallante v Stadiums Pty Ltd (No 1) [1976] VR 331. (Though this was not the case in the United Kingdom: R v Coney (1882) 8 QBD 534.) In March 2015, the Professional Boxing and Combat Sports Board of Victoria introduced “Rules for the proper conduct of professional mixed martial arts contests in Victoria” made under the Professional Boxing and Combat Sports Act 1985 and subordinate regulations. These removed any impediment to Ultimate Fighting Championship (UFC) “cage fighting”, which received the imprimatur of the government of the day: John Ehren, “More Tourists and More Jobs with MMA Safety Enclosure” (Media Release, 4 March 2015) http://www.premier.vic.gov.au/more-tourists-andmore-jobs-with-mma-safety-enclosure/. Sports such as Australian Rules Football, rugby or soccer are considered lawful, but injuries caused by infringement of the rules, or behind the course of play, are

Ch 9

Assault (unlawful)

57

beyond what is covered by consent: McNamara v Duncan (1971) 45 FLR 152; Giumelli v Johnston (1991) Aust Torts Rep 81-805; Re Lenfield (1993) 114 FLR 195; R v Barnes [2005] 1 WLR 910.

[9.130] Misadventure or accident Several old English cases hold that if an injury is accidental or unintended, there is no battery: Wakeman v Robinson (1823) 1 Bing 213; 130 ER 86; Stanley v Powell [1891] 1 QB 86; Fowler v Lanning [1959] 1 QB 426. On closer analysis, the better view is probably that no battery is established where the accused’s actions are not the cause of an injury, or alternatively, where the accused’s actions were not voluntary.

[9.140]

Execution of the law

Lawful arrests are excused both at common law and under statute: McLiney v Minster [1911] VLR 347; Lindley v Rutter [1981] QB 128; De Moor v Davies [1999] VSC 416; Crimes Act 1958 ss 458, 459, 462A. Police have broad powers at common law to protect people from injury and death, and property from damage, which also amount to execution of the law and provide a defence to an allegation of assault: DPP v Gribble (2004) 151 A Crim R 256.

[9.150] Lawful chastisement Historically, the courts were prepared to excuse acts that would otherwise be an assault when “done in the course of administering reasonable punishment in the exercise of parental or other authority”: Collins v Wilcock [1984] 1 WLR 1172 at 1177. However, excessive force – such as pointing a loaded gun at a child – is outside the scope of the defence: R v Hamilton (1891) 12 LR (NSW) 111. Children, Youth and Families Act 2005 ss 162 and 493 limit physical punishment of children. Corporal punishment is proscribed in Victorian government schools: Education and Training Reform Act 2006 ss 2.4.60(1)(f), 4.3.1(6).

[9.160]

Self-defence etc

The Crimes Amendment (Abolition of Defensive Homicide) Act 2014 commenced operation on 1 November 2014: Victoria, Gazette: Special, S350, 7 October 2014, p 1. That Act made significant changes to the law of self-defence etc in Victoria. Defences of self-defence, duress, family violence, sudden or extraordinary emergency and intoxication were codified and applied to any offence, whether against an enactment or the common law: Crimes Act 1958 s 322G. Those amendments apply to offences committed on or after 1 November 2014: s 623. Section 322I provides that an accused person has the evidential onus of raising self-defence, duress or sudden or extraordinary emergency. See also [4.30]. Section 322K provides that a person is not guilty of an offence if they carried out conduct in self-defence believing it was necessary in self-defence and that conduct was a reasonable response in the circumstances as the person perceived them. Explanatory Memorandum, Crimes Amendment (Abolition of Defensive Homicide) Bill 2014, pp 6–7, states that self-defence is a general description covering conduct broader than mere defence of self, and includes defence of another and even protection of property. This mirrors the previous common law, which recognised that reasonable force could be used in defence of property or another person: R v McKay [1957] VR 560 at 562; R v Burgess (2005) 152 A Crim R 100; R v Portelli (2004) 10 VR 259.

58

Offences

Crimes Act s 322O provides that a person is not guilty of an offence if they carried out conduct under duress. Duress operates where: a threat of harm was made that would be carried out unless an offence was committed; the conduct was the only reasonable way the harm could be avoided; and the conduct was a reasonable response to the threat. Section 322R provides that a person is not guilty of an offence if they carried out conduct in circumstances of sudden or extraordinary emergency and the conduct was the only reasonable way to respond and was a reasonable response. The common law defence of necessity is abolished by s 322S. Section 322T modifies the defence of intoxication. Where intoxication is selfinduced, the reasonableness of an accused person’s belief or response is assessed against the standard of a reasonable person who is sober. Where intoxication is not self-induced, the standard is of a reasonable person who is intoxicated. The common law of intoxication continues to apply to assessing voluntariness and intention of an accused person. The accused has the onus of raising self-defence, duress, or sudden or extraordinary emergency. If the accused satisfies that evidential burden, the prosecution then must prove beyond reasonable doubt that the accused did not act in self-defence, under duress or in circumstances of sudden or extraordinary emergency: s 322I. See also [4.30]. Because of the 12-month limitation period for assault, discussed at [1.60], the common law regarding self-defence no longer applies as at the date of publication. But some common law decisions may be helpful in determining the reasonableness of the accused’s belief or response. In this regard, the leading case on self-defence at common law was Zecevic v DPP (Vic) (1987) 162 CLR 645.

[9.170]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.3710]ff.

10 [10.10]

Bail (commit indictable offence while on bail)

Contrary to: Bail Act 1977 s 30B

Section 30B provides:

30B Offence to commit indictable offence whilst on bail An accused on bail must not commit an indictable offence whilst on bail. Note: See sections 16 and 33 of the Sentencing Act 1991 and sections 411 and 413 of the Children, Youth and Families Act 2005.

[10.20] Statutory reference 9008.30B

[10.30] Statement of charge Commit indictable offence whilst on bail.

[10.40] Wording of charge The accused at [place] on [date] committed an indictable offence, namely [description of offence], whilst on bail that s/he signed and entered into on [date bail granted] at [place bail granted].

[10.50]

Penalty

30 penalty units or 3 months’ jail

[10.60]

Matters to be proved

1. The offender was the accused. 2. The accused entered an undertaking of bail. 3. Before the accused was discharged from that undertaking of bail, she or he committed an indictable offence at the place and time alleged.

[10.70]

Other possible charges: Bail Act 1977

Contravene conduct conditions of bail: s 30A.

[10.80]

Proof of undertaking of bail

Unlike the offence of failing to answer bail contrary to Bail Act 1977 s 30(1), for an offence contrary to this section there is no evidentiary provision in the Bail Act to assist with proof of the accused’s undertaking of bail. If bail was granted by a Magistrates’ Court, then Magistrates’ Court Act 1989 s 18(5) provides that a document purporting to be an extract from the register of the orders of that court is prima facie evidence of its contents. A similar provision exists for the

60

Offences

Children’s Court under Children, Youth and Families Act 2005 s 537(5), and the County Court under County Court Act 1958 s 21(2). Orders of the Supreme Court (trial and appeal divisions) are authenticated under Supreme Court (Criminal Procedure) Rules 2008 rr 1.04 and 1.13, but curiously, do not benefit from a prima facie provision as with other courts. In any event, it might not be strictly necessary to prove that the accused signed an undertaking or document, as that itself is merely documentary evidence of the undertaking the accused provides to the court. The situation is perhaps different where the relevant “court” is a bail justice or police officer: see Bail Act 1977 s 3, definition of “court”, and also Bail Regulations 2012 reg 6. In the absence of prima facie provisions similar to those above for curial court records, or Bail Act s 30(2), it is necessary to prove by testimonial evidence that the accused entered an undertaking of bail.

[10.90]

Concurrent and cumulative penalties

Sentencing Act 1991 s 16(3C) provides that a jail term imposed for an offence whilst on bail for another offence must be served cumulatively with any other uncompleted jail sentence unless the court directs otherwise. In contrast, Sentencing Act 1991 s 33 provides that for a young offender (defined as a person under the age of 21 at the time of sentencing), any jail sentence imposed must be served concurrently with any other uncompleted jail sentence. Similar provisions apply to sentencing for children, under Children, Youth and Families Act 2005 ss 411, 413. This offence was introduced by the Bail Amendment Act 2013 because of perceived inadequate deterrents to accused people on bail who committed offences and contravened their bail conditions: Victoria, Parliamentary Debates, Legislative Assembly, 17 April 2013, 1267 (Robert Clark, Attorney-General). Generally, offending while on bail is an aggravating factor for sentencing purposes: R v Basso (1999) 108 A Crim R 392.

[10.100]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [2.8.2320]ff.

11

Bail (contravene conduct conditions)

[11.10] Contrary to: Bail Act 1977 s 30A Section 30A provides:

30A

Offence to contravene certain conduct conditions

(1) Subject to subsections (2) and (3), an accused on bail in respect of whom any conduct condition is imposed must not, without reasonable excuse, contravene any conduct condition imposed on him or her. (2) Subsection (1) does not apply to contravention of a conduct condition requiring the accused to attend and participate in bail support services. (3) Subsection (1) does not apply to a child. [11.20] Statutory reference 9008.30A

[11.30] Statement of charge Contravene bail conditions.

[11.40] Wording of charge The accused at [place] on [date] [description of contravention] in contravention of (conditions/a condition) of (her/his) undertaking of bail entered into on [date bail granted] at [place bail granted] that (she/he) [description of conduct condition].

[11.50] Penalty 30 penalty units or 3 months’ jail

[11.60] Matters to be proved 1. The offender was the accused. 2. The accused entered an undertaking of bail. 3. The accused contravened a condition or conditions imposed about the conduct of the accused whilst on bail. 4. The accused did not have a reasonable excuse for the contravention.

[11.70] Other possible charges: Bail Act 1977 Commit indictable offence whilst on bail: s 30B.

[11.80] Proof of undertaking of bail See [10.80].

62

Offences

[11.90] Contravention does not apply to bail support services If conditions are imposed to assist offenders with treatment to minimise the likelihood of future or further offending, contraventions of such bail support conditions are expressly excluded from the scope of this offence.

3

Definitions In this Act unless inconsistent with the context or subject-matter— Aboriginal person means a person who— (a) is descended from an Aborigine or Torres Strait Islander; and (b) identifies as an Aborigine or Torres Strait Islander; and (c) is accepted as an Aborigine or Torres Strait Islander by an Aboriginal or Torres Strait Island community; bail justice [Repealed] bail support service means a service provided to assist an accused to comply with his or her bail undertaking (whether or not that type of service is also provided to persons other than an accused on bail) including, but not limited to— (a) bail support programs; (b) medical treatment; (c) counselling services or treatment services for substance abuse or other behaviour which may lead to commission of offences; (d) counselling, treatment, support or assistance services for one or more of the following— (i) a mental illness; (ii) an intellectual disability; (iii) an acquired brain injury; (iv) autism spectrum disorder; (v) a neurological impairment, including, but not limited to, dementia; (e) services to help resolve homelessness; child has the same meaning as in the Children, Youth and Families Act 2005; cocaine [Repealed] conduct condition means a condition of bail imposed under section 5(2A); court means court or judge and, in any circumstances where a police officer or other person is empowered under the provisions of this Act to grant bail, includes that member or person; drug of dependence has the same meaning as in the Drugs, Poisons and Controlled Substances Act 1981; legal practitioner means an Australian legal practitioner; heroin [Repealed]

Ch 11 Bail (contravene conduct conditions)

63

parent has the same meaning as in the Children, Youth and Families Act 2005; police officer has the same meaning as in the Victoria Police Act 2013; prison includes remand centre or youth justice centre under the Children, Youth and Families Act 2005 and any other place where persons may be detained in legal custody and imprisonment has a corresponding interpretation; serious offence means— (a) an offence (other than murder) referred to in the definition of serious offence in section 3(1) of the Sentencing Act 1991; or (b) an offence (other than murder) that, at the time it was committed, was an offence referred to in the definition of serious offence in section 3(1) of the Sentencing Act 1991; terrorist act has the same meaning as in the Terrorism (Community Protection) Act 2003; terrorist organisation means an organisation that is directly or indirectly— (a) engaged in; or (b) preparing for; or (c) planning; or (d) assisting in; or (e) fostering— the doing of a terrorist act; undertaking means undertaking in writing signed by an accused or an accused and his surety or sureties that the accused will attend upon an adjourned hearing or upon his trial or for sentence and surrender himself into custody. [11.100] Reasonable excuse The accused has the evidential burden of raising reasonable excuse: see [4.30].

[11.110] Concurrent and cumulative penalties Sentencing Act 1991 s 16(3C) provides that a jail term imposed for an offence whilst on bail for another offence must be served cumulatively with any other uncompleted jail sentence unless the court directs otherwise. In contrast, Sentencing Act 1991 s 33 provides that for a young offender (defined as a person under the age of 21 at the time of sentencing), any jail sentence imposed must be served concurrently with any other uncompleted jail sentence. Similar provisions apply to sentencing for children, under Children, Youth and Families Act 2005 ss 411, 413. This offence was introduced by the Bail Amendment Act 2013 because of perceived inadequate deterrents to accused people on bail who committed offences and contravened their bail conditions: Victoria, Parliamentary Debates, Legislative Assembly, 17 April 2013, 1267 (Robert Clark, Attorney-General).

64

Offences

Generally, offending whilst on bail is an aggravating factor for sentencing purposes: R v Basso (1999) 108 A Crim R 392.

[11.120] Infringement penalty Bail Act 1977 s 32A(1) provides that police officers may serve infringement notices for offences contrary to this section. Section 32A(2) provides for authorised officers under the Fisheries Act 1995 to serve infringement notices to a person who offends against this section whilst on bail for offences contrary to the Fisheries Act. Typically, this will be for offenders charged with abalone poaching offences.

[11.130] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [2.8.2310]ff.

12 [12.10]

Bail (failure to answer)

Contrary to: Bail Act 1977 s 30(1)

Section 30(1) provides:

30

Failure to answer bail

(1) Any person released on bail who fails without reasonable cause, the proof whereof lies upon him, to attend in accordance with his undertaking of bail and surrender himself into custody shall be guilty of an offence against this Act. (2) In any proceedings against a person for an offence against this section:— (a) a document purporting to be or to be a copy of an undertaking of bail entered into by the accused and to be certified by an officer of the court having the custody of the document to be the undertaking or a copy of the undertaking with which it is alleged in the proceedings that the accused has failed to comply shall be prima facie evidence of the entry of the accused into the undertaking and of the conditions of the undertaking; and (b) a document purporting to be or to be a copy of a declaration of forfeiture made by a court of an undertaking of bail entered into by the accused and certified by an officer of the court having the custody of the document to relate to the undertaking of bail with which it is alleged in the proceedings that the accused has failed to comply shall be prima facie evidence of the failure of the accused to attend in answer to his bail and surrender himself into custody. (3) [Repealed] [12.20] Statutory reference 9008.30.1

[12.30] Statement of charge Fail to answer bail.

[12.40] Wording of charge The accused at [court s/he failed to appear at] on [date s/he failed to appear] failed without reasonable cause to appear in accordance with (her/his) undertaking of bail that (she/he) signed and entered into on [date bail granted] at [place bail granted].

66

Offences

[12.50]

Penalty

2 years’ jail

[12.60] 1. 2. 3. 4.

Matters to be proved

The offence occurred at the place and time alleged. The offender was the accused. The accused entered an undertaking of bail. The accused failed to attend court and surrender herself or himself into custody in accordance with that undertaking.

[12.70]

Other possible charges: Bail Act 1977

Commit indictable offence while on bail: s 30B. Contravene conduct conditions of bail: s 30A.

[12.80]

Proof of undertaking of bail

Bail Act 1977 s 30(2) provides that documents that are or purport to be a copy of an undertaking of bail are prima facie evidence of the accused’s entering into their undertaking, as are declarations of forfeiture.

[12.90]

Reasonable cause

The accused has the legal onus of establishing reasonable cause: see [4.20].

[12.100] Surrender into custody and not depart without leave of the court When releasing an accused person on bail, Bail Act 1977 s 5(1) requires a court to impose a composite condition that the person surrender themselves into custody and not depart without the leave of the court. Section 6 expressly casts the obligation of attendance upon the accused. These conditions are reflected in the undertakings that are prescribed by the Bail Regulations 2012 reg 5.

[12.110] Forfeiture of bail When a court is satisfied a person fails to observe a condition of bail – including failing to answer their undertaking of bail – the court must declare the bail forfeited and any surety or sureties are forfeited or to be paid to the proper officer of the court: Crown Proceedings Act 1958 s 6; Bail Act 1977 s 32.

[12.120]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [2.8.2280]–[2.8.2300]ff.

13 [13.10]

Bail (indemnify surety)

Contrary to: Bail Act 1977 s 31(1)

Section 31(1) provides:

31

Indemnifying surety

(1) Any person who indemnifies another person or who agrees with another person to indemnify that other person against any liability which that other person may incur as a surety to secure the attendance in answer to bail and the surrender to custody of a person accused or convicted of or under arrest for an offence he and that other person shall be guilty of an offence. (2) An offence is committed against subsection (1) whether the agreement is made before or after the person to be indemnified becomes a surety and whether or not he becomes a surety and whether the agreement contemplates compensation in money or money’s worth. [13.20] Statutory reference 9008.31.1

[13.30]

Statement of charge

Indemnify surety.

[13.40]

Wording of charge

The accused at [place] on [date] (indemnified another person/agreed with another person to indemnify that other person) against any liability that other person might incur as a surety for the undertaking of bail entered into on [date bail granted] at [place bail granted] by [name of person admitted to bail]. The accused at [place] on [date] (was indemnified by another person/agreed to be indemnified by another person) against any liability the accused might incur as a surety for the undertaking of bail entered into on [date bail granted] at [place bail granted] by [name of person admitted to bail].

[13.50] Penalty 15 penalty units or 3 months’ jail

[13.60] Matters to be proved 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. That a surety signed an undertaking of bail undertaking to pay to a court the amount of bail in real or personal property if the person admitted to bail failed to answer that undertaking of bail.

68

Offences

4. That: (a) the accused indemnified that surety, or agreed with that surety to indemnify them for, or (b) the accused was the surety, and was indemnified or agreed to be indemnified for any liability they might incur if the person admitted to bail failed to answer their bail.

[13.70]

Other possible charges: common law

Perverting the course of justice: R v Head [1978] Crim LR 427.

[13.80]

Surety and indemnifier liable

The offence provision provides that both the surety and the indemnifier are guilty of this offence. Bail Act 1977 s 31(2) provides that the offence is made out even if the person to be indemnified doesn’t become a surety, or if the agreement is reached before they become a surety.

[13.90]

Proof of undertaking of bail

See [10.80].

[13.100] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [2.8.2410]ff.

14 [14.10]

Begging or gathering alms

Contrary to: Summary Offences Act 1966 s 49A(1)

Section 49A(1) provides:

49A

Begging or gathering alms

(1) A person must not beg or gather alms. (2) A person must not cause, procure or encourage a child to beg or gather alms. [14.20] Statutory reference 7405.49A.1

[14.30]

Statement of charge

Beg alms.

[14.40]

Wording of charge

The accused at [place] on [date] (begged/gathered) alms.

[14.50] Penalty 12 months’ jail

[14.60] Matters to be proved 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused begged or gathered alms.

[14.70] Other possible charges: miscellaneous Conduct highway collection other than in accordance with permission of the Chief Commissioner of Police: Road Safety (Traffic Management) Regulations 2009 reg 28. Make false statements while seeking donations: Fundraising Act 1998 s 7.

[14.80]

Begging or gathering

The provision creates two separate offences, of begging and of gathering alms. Begging is the act of asking for alms; gathering is the successful result of begging. It is duplicitous to allege both in a single charge: Begg v Daire (1986) 40 SASR 375 at 384. Begging is distinguished from socially accepted requests for help or assistance – such as from neighbours, friends or work colleagues – by the relationship (if any) between the asker and giver, and the nature and occasion of the approach: Begg v Daire at 387.

70

Offences

A street performance of some skill given in the hope the audience would pay for entertainment is not begging, whereas a presentation by a person with no skill and truly intended merely as an aid to gathering alms may amount to begging: Eggins v Webber (1939) 56 WN (NSW) 73; Gray v Chief Constable of Greater Manchester [1983] Crim LR 45.

[14.90]

Alms

Alms are defined in the Shorter Oxford English Dictionary (3rd ed, New York, 1993) as “charitable relief of the poor”. While commonly referring to money, it might also include food, clothing or other items.

[14.100]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.6203]ff.

15 [15.10]

Besetting premises

Contrary to: Summary Offences Act 1966 s 52(1A)

Section 52(1A) provides:

52

Besetting premises (1) [Repealed]

(1A) Any person who together with others wilfully and without lawful authority besets any premises, whether public or private, for the purpose and with the effect of obstructing, hindering, or impeding by an assemblage of persons the exercise by any person of any lawful right to enter, use, or leave such premises shall be guilty of an offence. (2) [Repealed] [15.20]

Statutory reference

7405.52.1A

[15.30]

Statement of charge

Besetting premises.

[15.40]

Wording of charge

The accused at [place] on [date] wilfully and without lawful authority beset premises for the purpose and with the effect of (obstructing/hindering/impeding) by an assemblage of persons the exercise by any person of any lawful right to (enter/use/leave) that premises.

[15.50]

Penalty

15 penalty units or 3 months’ jail

[15.60]

Matters to be proved

1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused wilfully and without lawful authority beset premises. The accused did so with the purpose of obstructing, hindering or impeding the exercise by any person of any lawful right to enter, use or leave the premises. 5. The accused was one of an assemblage of persons. 6. The assemblage of persons did so obstruct, hinder or impede any person’s entry to, use of, or leaving from the premises.

[15.70]

Other possible offences: Summary Offences Act 1966

Contravene police direction to move on: s 6(4). Obstruct footpath or road: ss 4(e) and 5.

72

Offences

Behave in riotous, indecent, offensive, or insulting manner in or near etc a public place: s 17(1)(d).

[15.80]

Other possible offences: common law

Public nuisance: Hubbard v Pitt [1976] 1 QB 142 at 175. Unlawful assembly. Riot. Rout.

[15.90]

Other possible offences: miscellaneous

Rioters demolishing buildings: Crimes Act 1958 s 206. Take part in etc lock-out or strike during operation of Proclamation of serious industrial disturbance prejudicing or threatening trade or commerce with other countries or among the States: Crimes Act 1914 (Cth) s 30J(2). Obstructing or hindering the performance of services: Crimes Act 1914 (Cth) s 30K. Forcible entry: Crimes Act 1958 s 207. Engage in prohibited behaviour within a safe access zone (that is, within a 150-metre radius of premises at which abortions are provided): Public Health and Wellbeing Act 2008 s 185D. Obstruction of road: Road Management Act 2004 s 62. Put on a road a thing that may injure a person, obstruct drivers or pedestrians or damage vehicles or anything else: Road Safety Road Rules 2009 r 293. Riotous meetings: Unlawful Assemblies and Processions Act 1958 s 5. Unlawful processions and assemblies: Unlawful Assemblies and Processions Act 1958 s 10.

[15.100] Beset Beset is considered to be a word of the ordinary English language: J Lyons & Sons v Wilkins [1899] 1 Ch 811; Ward, Lock & Co Ltd v Operative Printers’ Assistants’ Society (1906) 22 TLR 327. It is defined in the Shorter Oxford English Dictionary (3rd ed, New York, 1993) as “surround with hostile intent, besiege, assail on all sides”. Older UK cases held that besetting required surrounding and actually physically blocking access to and from premises, combined with some other conduct such as violence or obstruction: Hubbard v Pitt [1976] 1 QB 142; Thomas v National Union of Mineworkers (South Wales Area) [1986] 1 Ch 20; DPP v Fidler [1992] 1 WLR 91. Those cases must be considered with caution because of different statutory elements to the Victorian provision. Civil actions in nuisance have held that “mere” intimidatory behaviour that deters or might deter some people from entering premises might suffice to establish besetting premises: Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383; Animal Liberation (Vic) Inc v Gasser [1991] 1 VR 51. In any event, the offence section provides that besetting can occur by outright obstruction, or the lesser hindering or impeding. Ordinarily, picketing in an industrial dispute is not necessarily unlawful, but may become so if it involves obstruction and besetting: Sid Ross Agency Pty Ltd v Actors

Ch 15

Besetting premises

73

and Announcers Equity Association of Australia [1971] 1 NSWLR 760 at 767; Australian Builders’ Labourers’ Federated Union of Workers (WA Branch) v J-Corp Pty Ltd (1993) 42 FCR 452 at 457. Under Fair Work Act 2009 s 415 “protected industrial action” as defined in that Act is immune from action under any State or Territory law unless it has or is likely to involve: personal injury; destruction of or damage to property; or unlawful taking, keeping or use of property.

[15.110] Wilfully Wilful is synonymous with “intentional” and “voluntarily”, but also imports an element of knowledge possessed by the accused of the likely consequence of their actions: Iannella v French (1968) 119 CLR 8 at 94–95, 107–109; Bergin v Brown [1990] VR 888. In the UK, it is understood as a composite term to cover both intention and recklessness: R v Sheppard [1981] AC 394.

[15.120] Without lawful authority The accused has the evidential burden of raising lawful authority: see [4.30].

[15.130] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.6530]ff.

16 [16.10]

Child (leave unattended)

Contrary to: Children, Youth and Families Act 2005 s 494(1)

Section 494(1) provides:

494

Offence to leave child unattended

(1) A person who has the control or charge of a child must not leave the child without making reasonable provision for the child’s supervision and care for a time which is unreasonable having regard to all the circumstances of the case. (2) Proceedings for an offence under subsection (1)— (a) must not be brought against a person who is under 16 years of age and is not the parent of the child; and (b) may only be brought by a person after consultation with the Secretary. [16.20] Statutory reference 05/96.494.1

[16.30]

Statement of charge

Leave child unattended.

[16.40]

Wording of charge

The accused at [place] on [date] while (she/he) had control or charge of a child left that child without making reasonable provision for that child’s supervision and care for a time that was unreasonable having regard to all the circumstances of the case.

[16.50]

Penalty

25 penalty units or 6 months’ jail, or both

[16.60]

Matters to be proved

1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused had control or charge of a child. The accused left that child without making reasonable provision for the child’s supervision and care. 5. The time the accused left the child was unreasonable in the circumstances.

[16.70]

Other possible charges: Children, Youth and Families Act 2005

Fail to protect child from harm: s 493(1). Mandatory reporter fail to report belief that child is in need of protection: s 184(1).

Ch 16

[16.80]

Child (leave unattended)

75

Child

Child is defined in Children, Youth and Families Act 2005 s 3(1) to mean, relevantly for this provision, a person under the age of 17 years. (Where a person is alleged to have committed an offence, a child is defined as a person under the age of 18 years at the date of offending and 19 years at the date criminal proceedings commence.)

[16.90] Charge not to be brought against young children Children, Youth and Families Act 2005 s 494(2)(a) provides that a proceeding must not be brought against a person under 16 years unless that person is the parent of the child.

[16.100] Consultation with Secretary required Children, Youth and Families Act 2005 s 494(2)(b) provides that a proceeding must not be brought without first consulting the Department Head of the Department of Human Services (the Secretary). The provision does not require the consent of the Secretary, so presumably the purpose of the consultation is so the Department of Human Services can determine if it will initiate a protection application for any child who might be at risk if left with their parent or person responsible for their care.

[16.110] Requirement for voluntary conduct The offence requires conscious, voluntary and deliberate conduct: DFJ v Secretary to Department of Justice (2012) 36 VR 66 at 70. In that case, the Court of Appeal doubted that the applicant could have been guilty of the previous form of this offence when he fell asleep in front of a television and his two children managed to open the front door of their apartment and find their way to a busy road. The court observed that ordinarily falling asleep would not constitute an act or omission that would result in criminal liability. For a sad and extreme example of conduct that may fall within the scope of the section, see R v Nguyen [2013] VSC 46, where a young mother left her baby daughter in a closed car on a hot day, with fatal consequences.

17 [17.10]

Contravention of order for release on adjournment

Contrary to: Sentencing Act 1991 s 83AC

Section 83AC provides:

83AC Contravention of order for release on adjournment An offender who is subject to an order under section 72 or 75 for release on the adjournment of the proceeding must not contravene that order, unless the offender has a reasonable excuse. [17.20] Statutory reference 91/49.83AC

[17.30]

Statement of charge

Contravene adjourned undertaking.

[17.40]

Wording of charge

The accused at [place] on [date] without reasonable excuse contravened a condition of (her/his) undertaking to the [court] on [date of release upon undertaking] given upon (her/his) release (with/without) conviction by [description of contravention].

[17.50]

Penalty

10 penalty units (level 10 fine) In addition to punishment for contravening an undertaking, Sentencing Act 1991 s 83AT requires that a sentencing court must make one of four possible orders, namely: (a) vary the original order, as if it were an application to vary the undertaking made under s 78; (b) confirm the original order; (c) cancel the original order and sentence the offender as the court could have when first sentencing the offender; or (d) make no further order.

[17.60] 1. 2. 3. 4. 5.

The The The The The

Matters to be proved offence occurred at the place and time alleged. offender was the accused. accused was released upon giving an undertaking to the court. accused contravened a condition or conditions of the undertaking. accused did not have a reasonable excuse for the contravention.

Ch 17

[17.70]

Contravention of order for release on adjournment

77

Conditions and contravention of undertaking

Release upon providing an undertaking to the court may be with or without conviction: Sentencing Act 1991 ss 72, 75. In either instance, an undertaking must include conditions that the offender: (a) attend the court during the period of adjournment if called to do so, or on the return date; and (b) be of good behaviour during the adjournment. In practice, an offender is rarely required to attend during or at the end of the adjournment. A court might also impose further special conditions. Common conditions are to continue with medical or psychological treatment; donate money to a nominated charity; or make a payment to the court fund: ss 72(2)(c), 75(2)(c); Brittain v Mansour [2013] VSC 50. If an offender does not comply with a special condition, the Registrar of the relevant court will ordinarily notify the informant who commenced the proceeding resulting in the undertaking, and that informant will investigate and issue any charge of contravening the undertaking. Contravention is defined in s 3 to include a failure to comply with an order or sentence. To be of good behaviour requires at a minimum that the offender not commit any criminal offences during the period of adjournment: Griffiths v The Queen (1977) 137 CLR 293 at 319–324. See also Arie Freiberg, Fox and Freiberg’s Sentencing: State and Federal Law (Thomson Reuters, subscription service) [10.125].

[17.80]

Commencement of proceeding

If a contravention is constituted by committing an offence punishable by jail during the adjournment, the proceeding must be commenced within six months after the offender is convicted or found guilty; and for any other contravention, within one year after the undertaking ends: Sentencing Act 1991 s 83AH. Section 83AG provides that a charge-sheet alleging the contravention must be filed by the Director of Public Prosecutions or lawyers of the Office of Public Prosecutions or a Crown Prosecutor; a police officer; the original informant (such as for local laws); the Secretary of the Department of Justice; or persons prescribed in the Sentencing Regulations 2011 reg 31.

[17.90]

Transfer of proceeding

A contravention of an undertaking made to the County Court or Supreme Court must be transferred to that court if the contravention proceeding is commenced in the Magistrates’ Court: Sentencing Act 1991 s 83AJ. In contrast, the County Court and Supreme Court may deal with a contravention of an undertaking made to a Magistrates’ Court: s 83AM. Further, although contravention of an undertaking is a summary offence, a proceeding for contravention of an undertaking made to the County or Supreme Court may commence before that court: s 83AL.

[17.100] Reasonable excuse The accused has the evidential burden of raising reasonable excuse: see [4.30].

78

Offences

[17.110] Proof of undertaking Although the ordinary practice is for an offender to sign a document reciting the conditions of their undertaking, there is no legislative basis or requirement to do so. Proof of the offender’s undertaking may be provided in any of the ways discussed in [10.80].

18 [18.10]

Contravention of community correction order

Contrary to: Sentencing Act 1991 s 83AD

Section 83AD provides:

83AD

Contravention of community correction order

(1) An offender who is subject to a community correction order must not contravene that order, unless the offender has a reasonable excuse. (2) A proceeding is not able to be brought against a person for an offence under subsection (1) in relation to conduct of that person in respect of which that person has been acquitted, convicted or found guilty of an offence under section 83AE or 83AF. [18.20] Statutory reference 91/49.83AD

[18.30]

Statement of charge

Contravene community correction order.

[18.40]

Wording of charge

The accused at [place] on [date] without reasonable excuse contravened (a condition/the conditions) of (her/his) community corrections order imposed by the [court] on [date] for [duration] by [description of contravention]. Corrections Victoria often charges the description of a contravention as “in the manner specified in the attached schedule”, and attaches a document particularising the offences that resulted in the imposition of a community corrections order (CCO) and enumerating the contraventions alleged.

[18.50]

Penalty

3 months’ jail In addition to punishment for contravening an undertaking, Sentencing Act 1991 s 83AS requires that a sentencing court must make one of four possible orders, namely: (a) vary the original order as set out in s 48M(2)(d), (e), (f), (g) or (h); (b) confirm the original order; (c) cancel the original order and sentence the offender as the court could have when first sentencing the offender; or (d) make no further order.

80

Offences

[18.60] 1. 2. 3. 4. 5.

The The The The The

Matters to be proved offence occurred at the place and time alleged. offender was the accused. accused was sentenced to a CCO. accused contravened a condition or conditions of the CCO. accused did not have a reasonable excuse for the contravention.

[18.70]

Conditions and contravention of CCO

Every CCO must attach the following terms specified in Sentencing Act 1991 s 45(1), namely that the offender must: (a) not commit, in or outside Victoria, during the period of the order, an offence punishable by jail; (ab) comply with Sentencing Regulations 2011 reg 17, which prohibits an offender from consuming, being under the influence of or possessing alcohol or drugs before and when attending community corrections centres or locations, and requires an offender to have their photograph taken; (b) report to and receive visits from the Secretary; (c) report to a specified community corrections centre within two clear working days after the order commences; (d) notify the Secretary within two clear working days of any change of address or employment; (e) not leave Victoria without permission from the Secretary; (f) comply with directions given by the Secretary necessary for compliance with the order. A CCO might commence up to three months after a court makes the order: Sentencing Act 1991 s 38(2). This might occur when an offender is about to travel or commence employment that would otherwise interfere with their ability to report as required, or commence unpaid work. A sentencing court might also impose other conditions specified in Pt 3A Div 2.

[18.80]

Commencement of proceeding

See [17.80].

[18.90]

Transfer of proceeding

See [18.90].

[18.100]

Reasonable excuse

The accused has the evidential burden of raising reasonable excuse: see [4.30].

[18.110] Proof of CCO Sentencing Regulations 2011 reg 16 specifies certain matters that must be contained in a CCO, including the signature of the judicial officer making the order and the signature of the offender confirming their consent to the order. Proof of the order may otherwise be provided in any of the ways discussed in [10.80].

19 [19.10]

Court security (authorised officer failing to wear identity card, or produce on request)

Contrary to: Court Security Act 1980 s 2B(3)

Section 2B(3) provides:

2B

Identity card

(1) The chief executive officer of a court or a clerk of a court must issue an identity card to each authorized officer appointed by him or her under section 2A. (2) An (a) (b) (c)

identity card under subsection (1) must— contain a photograph of the authorized officer; and contain the signature of the authorized officer; and be signed by the chief executive officer of the court or the clerk of the court.

(3) An authorized officer issued with an identity card under subsection (1) must– (a) at all times while on duty at a court wear it in such manner as to be visible to other persons; (b) produce it on being requested to do so. [19.20] Statutory reference 9949.2B.3

[19.30]

Statement of charge

Authorised court security officer fail to wear or produce identity card.

[19.40]

Wording of charge

The accused at [place] on [date] while on duty at a court as an authorised officer appointed under the Court Security Act 1980 and issued an identity card to (her/him) failed to (wear it in such a manner as to be visible to others/produce it on request).

[19.50] Penalty 5 penalty units

82

Offences

[19.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was appointed as an authorised officer under the Court Security Act 1980. 4. The accused was issued an identity card by the person who appointed her or him. 5. The accused was on duty at a court. 6. The accused failed to wear the identity card in such a manner as to be visible to others, or produce it on request.

[19.70] Court Court is defined in Court Security Act 1980 s 2(1) to include:

2

Definitions (1) In this Act, unless inconsistent with the context or subject-matter— Australian legal practitioner [Repealed] authorized officer, in relation to any court, means a police officer, police custody officer, protective services officer or a person appointed as an authorized officer under section 2A by the chief executive officer of the court or the clerk of the court; chief executive officer, in relation to a court, means the chief executive officer of the court, by whatever name called; clerk in relation to a court means— (a) in the case of the Supreme Court, the Prothonotary; (b) in the case of the County Court, the Registrar of the County Court; (c) in the case of the Magistrates’ Court, a registrar of that Court; (ca) in the case of the Coroners Court, a registrar of that Court; (cb) in the case of the Children’s Court, the principal registrar of that Court; (d) in the case of any other court, the person prescribed by the regulations to be the clerk of that court; contractor means a party to an agreement under section 2C with a chief executive officer of a court; court includes— (a) the Supreme Court; and (b) the County Court; and (c) the Magistrates’ Court; and (d) the Children’s Court; and (e) the Coroners Court; and (f) VCAT; and

Ch 19

Court security (authorised officer failing to wear/produce ID on request)

(g) (h)

the Victims of Crime Assistance Tribunal; and any prescribed tribunal, body or person which is by law entitled to hear, receive and examine evidence; court premises means— (a) any premises occupied in connection with the operations of a court, including— (i) the precincts and immediate environs of those premises, adjacent car parks, adjacent footpaths and laneways between or abutting court premises; and (ii) court buildings and the exit and entry points and steps to those buildings; or (b) any other place, limited to where a court is, for the time being, constituted and performing the functions or exercising the powers of that court or in connection with court operations, including any area in the immediate vicinity of that place; Court Services Victoria has the same meaning as in the Court Services Victoria Act 2014; explosive substance has the same meaning as in Division 8 of Part I of the Crimes Act 1958; firearm has the same meaning as in the Firearms Act 1996; frisk search means— (a) a search of a person’s body conducted by quickly running the hands over the person’s outer garments; and (b) an examination of anything worn by the person that is conveniently and voluntarily removed by the person; and (c) an examination of anything carried by the person that is voluntarily given to an authorized officer; judicial officer includes a non-judicial member of VCAT; news media organisation has the same meaning as in the Open Courts Act 2013; offensive weapon means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use; police custody officer has the same meaning as in the Victoria Police Act 2013; police officer has the same meaning as in the Victoria Police Act 2013; proceeding means a proceeding in the Supreme Court, the County Court, the Magistrates’ Court, the Children’s Court, the Coroners Court, VCAT or the Victims of Crime Assistance Tribunal; prohibited item means— (a) a firearm; or (b) an explosive substance; or

83

84

Offences

(c) an offensive weapon; or (d) an item that is likely to affect adversely the security, good order or management of the court premises; protective services officer has the same meaning as in the Victoria Police Act 2013; publish means disseminate or provide access to the public by any means, including— (a) by publication in a book, newspaper, magazine or other written publication; or (b) broadcast by radio or television; or (c) by electronic communication; or (d) by public exhibition; recording means all or part of an audio, visual or audiovisual recording and includes a photograph; scanning search means a search carried out by an electronic or mechanical device whether hand held or otherwise. (2) A reference in this Act to the security, good order or management of the court premises includes— (a) the safety of all persons who work at or attend the court premises; (b) the safety and welfare of all persons in custody at the court premises; (c) the good order or management of legal proceedings or other business conducted at the court premises. The Court Security Regulations 2015 reg 5 prescribes the following as courts: (a) the Chief Examiner and Examiner under the Major Crime (Investigative Powers) Act 2004; (b) the Firearms Appeals Committee under the Firearms Act 1996; (c) the Independent Broad-based Anti-corruption Commission (IBAC) under the Independent Broad-based Anti-corruption Commission Act 2011; (d) the Mental Health Tribunal under the Mental Health Act 2014; (e) a Royal Commission established under the Inquiries Act 2014 or under the Royal prerogative of the Crown; (f) the Victorian Inspectorate under the Victorian Inspectorate Act 2011.

[19.80]

Authorised officer

Authorised officer is defined in Court Security Act 1980 s 2 to mean a police officer, police custody officer, protective services officer, or a person appointed under s 2A by the chief executive officer of the court or clerk of the court. Police officer, police custody officer and protective services officer are defined in the Victoria Police Act 2013.

Ch 19

[19.90]

Court security (authorised officer failing to wear/produce ID on request)

85

Chief executive officer or clerk of court

These positions are also defined in Court Security Act 1980 s 2. By virtue of Interpretation of Legislation Act 1984 s 40, the power of appointment may be exercised by any person who at a particular time holds, acts in or performs the duties or office of chief executive officer or clerk.

20 [20.10]

Court security (intentionally make recording of proceeding)

Contrary to: Court Security Act 1980 s 4A(1)

Section 4A(1) provides:

4A

Offence to record proceeding

(1) A person must not intentionally make a recording of a proceeding except in accordance with subsection (2), (3) or (4). (2) An officer, employee or agent, or any person authorised by or on behalf, of Court Services Victoria may make a recording of a proceeding if that person does so in the course of the person’s engagement, employment or contract. Example To enable the preparation of an official transcript of a court proceeding.

(3) Subject to any direction of a judicial officer— (a) a representative of a news media organisation may make an audio recording of a proceeding for the purpose of preparing a media report; and (b) an Australian legal practitioner or other prescribed person may make an audio recording of a proceeding for the purposes of the legal representation of a person in that proceeding. (4) A person may make a recording of a proceeding if— (a) express written permission is given by a judicial officer, whether in respect of— (i) a specific proceeding or class of proceedings; or (ii) generally; or (b) required by or authorised under any other Act or subordinate instrument; or (c) the recording is of a prescribed class of recordings. [20.20] Statutory reference 9499.4A.1

[20.30] Statement of charge Record court proceeding without authorisation.

Ch 20

[20.40]

Court security (intentionally make recording of proceeding)

87

Wording of charge

The accused at [place] on [date] intentionally recorded a court proceeding without authorisation.

[20.50]

Penalty

20 penalty units

[20.60] 1. 2. 3. 4. 5.

Matters to be proved

The offence occurred at the place and time alleged. The offender was the accused. The accused made a recording of a proceeding. The accused did so intentionally. The accused was not authorised or permitted to make a recording of the proceeding.

[20.70]

Other possible charges: Court Security Act 1980

Publish recording of proceeding: s 4B. Transmit or give recording of proceeding to another person: s 4C.

[20.80]

Other possible charges: Crimes Act 1958

Possess, play, supply, copy, tamper with or publish audio-visual recording of interrogation: s 464JA.

[20.90]

Other possible charges: common law

Contempt of court: Prothonotary of the Supreme Court (NSW) v Rakete [2010] NSWSC 5; Tran v Magistrates’ Court of Victoria [1998] 4 VR 294; Stefanovski v Murphy [1996] 2 VR 442; Nguyen v Magistrates’ Court [1994] 1 VR 88.

[20.100]

Other possible charges: miscellaneous

Contravene closed court order: Open Courts Act 2013 s 32.

[20.110] Recording Recording is defined in Court Security Act 1980 s 2(1) to mean all or part of an audio, visual or audio-visual recording, and includes a photograph. It seems then that a transcript prepared from a recording is not itself a recording.

[20.120]

Proceeding

Proceeding is defined in Court Security Act 1980 s 2(1) to mean a proceeding in the Supreme Court, the County Court, the Magistrates’ Court, the Children’s Court, the Coroners Court, VCAT or the Victims of Crime Assistance Tribunal. Oddly, this has the effect that recording of proceedings in other courts as prescribed by the Court Security Regulations 2015 reg 5 – see [19.70] – are not contrary to the Court Security Act. Applications for examinations held under the Major Crime (Investigative Powers) Act 2004 may not be published, and such examinations must be held in private: ss 7, 35. Ordinarily, examinations under the Independent Broad-based Anti-corruption Commission Act 2011 are conducted in private and subject to confidentiality notices

88

Offences

under ss 42 and 117 of that Act. It might be that the IBAC could rely on its general directions power in s 119 to prohibit recording public examinations, but that is doubtful given the specific enumerated powers it contains. There are no such statutory powers available to the Firearms Appeals Committee under Firearms Act 1996 Pt 9, or Evidence (Miscellaneous Provisions) Act 1958. Hearings of the Mental Health Tribunal are ordinarily closed to the public, but may be open to the public when so ordered by the Tribunal. Recording a proceeding without the knowledge and permission of the tribunal is a contempt of the tribunal: Mental Health Act 2014 s 206; and see [20.90]. There is no specific prohibition on making recordings of proceedings in Royal Commissions or Boards of Inquiry established under the Inquiries Act 2014. Investigations conducted by the Victorian Inspectorate under the Victorian Inspectorate Act 2011 are ordinarily subject to confidentiality notices under s 38, and examinations are held in private under s 51. Recording a proceeding without the knowledge and permission of the inspectorate is a contempt of the inspectorate pursuant to s 72(1)(g) of that Act; and see [20.90].

[20.130] Defences The accused has the evidential burden of raising an authorisation contained in Court Security Act 1980 s 4A(2)–(4): see [4.30].

21 [21.10]

Court security (intentionally publish recording of a proceeding)

Contrary to: Court Security Act 1980 s 4B(1)

Section 4B(1) provides:

4B

Offence to publish recording of proceeding

(1) A person must not intentionally publish a recording of a proceeding except in accordance with subsection (2). (2) A person may publish a recording of a proceeding if express written permission is given by a judicial officer, whether— (a) in respect of a specific proceeding or class of proceedings or generally; or (b) for a specific purpose; or (c) subject to specified conditions; or (d) in respect of a specific recording or class of recordings; or (e) as provided for in any combination of paragraphs (a), (b), (c) or (d). (3) A person who, after publishing a recording of a proceeding, becomes aware that the recording is not a recording permitted to be made under section 4A(2), (3) or (4) or permitted to be published under subsection (1) must take all reasonable steps within that person’s power to remove from publication or take down that recording. (4) A person is not liable to be prosecuted for an offence against both subsection (1) and section 4C(1) in respect of the same recording. [21.20] Statutory reference 9449.4B.1

[21.30] Statement of charge Intentionally publish recording of court proceeding without authorisation: s 4B(1). Fail to take reasonable steps to remove recording of court proceeding from publication: s 4B(3).

90

Offences

[21.40]

Wording of charge

Section 4B(1) The accused at [place] on [date] intentionally published a court proceeding without authorisation.

Section 4B(3) The accused at [place] on [date] failed to take all reasonable steps within (her/his) power to (remove from publication/take down) a recording of a court proceeding published by (her/him) after becoming aware that (recording was not permitted under the Court Security Act 1980 s 4A(2), (3) or (4)/publication was not permitted under the Court Security Act 1980 s 4B(1)).

[21.50]

Penalty

20 penalty units

[21.60]

Matters to be proved

Section 4B(1) 1. 2. 3. 4. 5.

The The The The The

offence occurred at the place and time alleged. offender was the accused. accused published a recording of a proceeding. accused did so intentionally. accused was not authorised or permitted to publish the recording.

Section 4B(3) 1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused published a recording of a proceeding. The accused became aware that the recording was not permitted under Court Security Act 1980 s 4A(2), (3) or (4) or permitted to be published under s 4B(1).

5. The accused failed to take all reasonable steps within her or his power to remove the recording from publication or take down that recording.

[21.70]

Other possible charges: Court Security Act 1980

Transmit or give recording of proceeding to another person: s 4C.

[21.80]

Other possible charges: Crimes Act 1958

Possess, play, supply, copy, tamper with or publish audio-visual recording of interrogation: s 464JA.

[21.90]

Other possible charges: common law

Contempt of court: Attorney-General v Scarth [2013] EWHC 194 (Admin); Prothonotary of the Supreme Court (NSW) v Rakete [2010] NSWSC 5; Tran v Magistrates’ Court of Victoria [1998] 4 VR 294; Stefanovski v Murphy [1996] 2 VR 442; Nguyen v Magistrates’ Court [1994] 1 VR 88. Sub judice contempt of court: Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 34; Attorney General v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368; Registrar of the

Ch 21

Court security (intentionally publish recording of a proceeding)

91

Supreme Court v Herald & Weekly Times Ltd [2004] SASC 129; Registrar of the Supreme Court v Nationwide News Ltd (2004) 89 SASR 113; R v Australian Broadcasting Corporation [2007] VSC 498; R v Hinch [2013] VSC 520.

[21.100] Other possible charges: miscellaneous Publish identifying details about Children’s Court proceedings: Children, Youth and Families Act 2005 s 534. Publish prohibited question: Evidence Act 2008 s 195. Falsely record evidence: Evidence (Miscellaneous Provisions) Act 1958 s 137. Publish family violence protection proceeding: Family Violence Protection Act 2008 s 166. Publish indecent matter etc calculated to injure public morals: Judicial Proceedings Reports Act 1958 s 3(1)(a). Publish particulars of judicial proceeding for dissolution of marriage etc: Judicial Proceedings Reports Act 1958 s 3(1)(b). Publish other than permitted particulars of pre-trial directions or sentence indication hearing before County or Supreme Court: Judicial Proceedings Reports Act 1958 s 3(1)(c). Publish information likely to lead to identification of victim of offence involving sexual penetration: Judicial Proceedings Reports Act 1958 s 4(1A); Nixon v Random House Australia Pty Ltd (2000) 2 VR 523. Contravene proceeding suppression order: Open Courts Act 2013 s 23. Contravene order prohibiting publication of specified material: Open Courts Act 2013 s 27. Contravene closed court order: Open Courts Act 2013 s 32. Publish personal safety proceeding: Personal Safety Intervention Orders Act 2010 s 123. Publish evidence of proceeding or report, or information enabling identification of offender or victim: Serious Sex Offenders (Detention and Supervision) Act 2009 s 182. Publish particulars likely to identify registrable offender, victim, or person protected by prohibition order: Sex Offenders Registration Act 2004 s 66ZZB.1 Media organisation using agency photographs other than as authorised: Victoria Police Act 2013 s 242.

[21.110] Recording See [20.110].

[21.120] Proceeding See [20.120]. 1 Sex Offenders Registration Amendment Act 2016 s 8 will commence no later than 1 February 2017.

92

Offences

[21.130] Publish Publish is defined in Court Security Act 1980 s 2(1) to mean to

2

Definitions (1) In this Act, unless inconsistent with the context or subject-matter— Australian legal practitioner [Repealed] authorized officer, in relation to any court, means a police officer, police custody officer, protective services officer or a person appointed as an authorized officer under section 2A by the chief executive officer of the court or the clerk of the court; chief executive officer, in relation to a court, means the chief executive officer of the court, by whatever name called; clerk in relation to a court means— (a) in the case of the Supreme Court, the Prothonotary; (b) in the case of the County Court, the Registrar of the County Court; (c) in the case of the Magistrates’ Court, a registrar of that Court; (ca) in the case of the Coroners Court, a registrar of that Court; (cb) in the case of the Children’s Court, the principal registrar of that Court; (d) in the case of any other court, the person prescribed by the regulations to be the clerk of that court; contractor means a party to an agreement under section 2C with a chief executive officer of a court; court includes— (a) the Supreme Court; and (b) the County Court; and (c) the Magistrates’ Court; and (d) the Children’s Court; and (e) the Coroners Court; and (f) VCAT; and (g) the Victims of Crime Assistance Tribunal; and (h) any prescribed tribunal, body or person which is by law entitled to hear, receive and examine evidence; court premises means— (a) any premises occupied in connection with the operations of a court, including— (i) the precincts and immediate environs of those premises, adjacent car parks, adjacent footpaths and laneways between or abutting court premises; and (ii) court buildings and the exit and entry points and steps to those buildings; or

Ch 21

(b)

Court security (intentionally publish recording of a proceeding)

any other place, limited to where a court is, for the time being, constituted and performing the functions or exercising the powers of that court or in connection with court operations, including any area in the immediate vicinity of that place;

Court Services Victoria has the same meaning as in the Court Services Victoria Act 2014; explosive substance has the same meaning as in Division 8 of Part I of the Crimes Act 1958; firearm has the same meaning as in the Firearms Act 1996; frisk search means— (a) a search of a person’s body conducted by quickly running the hands over the person’s outer garments; and (b) an examination of anything worn by the person that is conveniently and voluntarily removed by the person; and (c) an examination of anything carried by the person that is voluntarily given to an authorized officer; judicial officer includes a non-judicial member of VCAT; news media organisation has the same meaning as in the Open Courts Act 2013; offensive weapon means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him for such use; police custody officer has the same meaning as in the Victoria Police Act 2013; police officer has the same meaning as in the Victoria Police Act 2013; proceeding means a proceeding in the Supreme Court, the County Court, the Magistrates’ Court, the Children’s Court, the Coroners Court, VCAT or the Victims of Crime Assistance Tribunal; prohibited item means— (a) a firearm; or (b) an explosive substance; or (c) an offensive weapon; or (d) an item that is likely to affect adversely the security, good order or management of the court premises; protective services officer has the same meaning as in the Victoria Police Act 2013; publish means disseminate or provide access to the public by any means, including— (a) by publication in a book, newspaper, magazine or other written publication; or (b) broadcast by radio or television; or (c) by electronic communication; or

93

94

Offences

(d) by public exhibition; recording means all or part of an audio, visual or audiovisual recording and includes a photograph; scanning search means a search carried out by an electronic or mechanical device whether hand held or otherwise. (2) A reference in this Act to the security, good order or management of the court premises includes— (a) the safety of all persons who work at or attend the court premises; (b) the safety and welfare of all persons in custody at the court premises; (c) the good order or management of legal proceedings or other business conducted at the court premises. It is clear that the reference in s 4B(3) to “remove from publication or take down” is directed to publication to social media or internet-based media.

[21.140] Defences The accused has the evidential burden of raising an authorisation contained in Court Security Act 1980 s 4A(2)–(4) or the express written permission of a judicial officer: see [4.30].

22 [22.10]

Court security (intentionally transmit or give recording of proceeding to another)

Contrary to: Court Security Act 1980 s 4C(1)

Section 4C(1) provides:

4C Offence to transmit to or give recording of proceeding to another person (1) A person must not intentionally transmit to or give a recording of a proceeding to another person except in accordance with subsection (2), (3) or (4). (2) An officer, employee or agent, or any person authorised by or on behalf, of Court Services Victoria may transmit a recording of a proceeding if that person does so in the course of the person’s engagement, employment or contract. Example To enable the preparation of an official transcript of a court proceeding.

(3) Subject to any direction of a judicial officer— (a) a representative of a news media organisation may transmit an audio recording of a proceeding made in accordance with section 4A(3)(a) to another employee or agent of that news media organisation to enable that news media organisation to prepare a media report; and (b) an Australian legal practitioner or other prescribed person may transmit an audio recording of a proceeding made in accordance with section 4A(3)(b) to another person assisting with the legal representation of the person referred to in that section in that proceeding. (4) A person may transmit or give a recording of a proceeding to another person if— (a) express written permission is given by a judicial officer, whether in respect of— (i) a specific proceeding or class of proceedings; or (ii) generally; or (b) required by or authorised under any other Act or subordinate instrument; or

96

Offences

(c) [22.20]

the recording is of a prescribed class of recordings.

Statutory reference

9499.4C.1

[22.30]

Statement of charge

Intentionally transmit or give recording of court proceeding to a person without authorisation.

[22.40]

Wording of charge

The accused at [place] on [date] intentionally (transmitted/gave a recording of) a court proceeding to another person without authorisation.

[22.50] Penalty 20 penalty units

[22.60] Matters to be proved 1. 2. 3. 4. 5.

The offence occurred at the place and time alleged. The offender was the accused. The accused transmitted or gave a recording of a proceeding to another person. The accused did so intentionally. The accused was not authorised or permitted to transmit or give the recording to another person.

[22.70] Other possible charges: Court Security Act 1980 Publish recording of proceeding: s 4B.

[22.80]

Other possible charges: Crimes Act 1958

Possess, play, supply, copy, tamper with or publish audio-visual recording of interrogation: s 464JA.

[22.90]

Other possible charges: common law

Contempt of court: Prothonotary of the Supreme Court (NSW) v Rakete [2010] NSWSC 5; Tran v Magistrates’ Court of Victoria [1998] 4 VR 294; Stefanovski v Murphy [1996] 2 VR 442; Nguyen v Magistrates’ Court [1994] 1 VR 88. Sub judice contempt of court: Hinch v Attorney-General (Vic) (1987) 164 CLR 15 at 34; Attorney General v TCN Channel Nine Pty Ltd (1990) 20 NSWLR 368; Registrar of the Supreme Court v Herald & Weekly Times Ltd [2004] SASC 129; Registrar of the Supreme Court v Nationwide News Ltd (2004) 89 SASR 113; R v Australian Broadcasting Corporation [2007] VSC 498; R v Hinch [2013] VSC 520.

[22.100]

Other possible charges: miscellaneous

Publish identifying details about Children’s Court proceedings: Children, Youth and Families Act 2005 s 534. Publish prohibited question: Evidence Act 2008 s 195. Publish indecent matter etc calculated to injure public morals: Judicial Proceedings Reports Act 1958 s 3(1)(a).

Ch 22

Court security (intentionally transmit/give recording of proceeding)

97

Publish particulars of judicial proceeding for dissolution of marriage etc: Judicial Proceedings Reports Act 1958 s 3(1)(b). Publish other than permitted particulars of pre-trial directions or sentence indication hearing before County or Supreme Court: Judicial Proceedings Reports Act 1958 s 3(1)(c). Publish information likely to lead to identification of victim of offence involving sexual penetration: Judicial Proceedings Reports Act 1958 s 4(1A); Nixon v Random House Australia Pty Ltd (2000) 2 VR 523. Contravene proceeding suppression order: Open Courts Act 2013 s 23. Contravene order prohibiting publication of specified material: Open Courts Act 2013 s 27. Contravene closed court order: Open Courts Act 2013 s 32. Publish evidence of proceeding or report, or information enabling identification of offender or victim: Serious Sex Offenders (Detention and Supervision) Act 2009 s 182. Publish particulars likely to identify registrable offender, victim, or person protected by prohibition order: Sex Offenders Registration Act 2004 s 66ZZB.2 Media organisation using agency photographs other than as authorised: Victoria Police Act 2013 s 242.

[22.110] Recording See [20.110].

[22.120] Proceeding See [20.120].

[22.130] Defences The section does not appear to contemplate the scenario where a solicitor makes or causes to be made a transcript that is not an “official transcript” – such as where the solicitor engages in-house administrative support or a private transcription company to produce a transcript – and in so doing, transmits or gives the recording to the person creating the transcript, as in L v L [2016] VSC 182 at [27]–[33]. Presumably most, if not all, private transcription agencies are appropriately authorised by Court Services Victoria, though no mention of this is readily available on the CSV website. The position is unlikely to be the same for a solicitor’s in-house administrative support, however Court Security Act 1980 s 4C(3)(b) provides an exception in that circumstance. The accused has the evidential burden of raising an exception contained in s 4C(2) or (3), or the express written permission of a judicial officer or other legal requirement under s 4C(4): see [4.30]. As to proof of written permission of a judicial officer, see [4.30].

2 Sex Offenders Registration Amendment Act 2016 s 8 will commence no later than 1 February 2017.

23 [23.10]

Court security (refuse to comply with requirement by authorised officer for search, scan or surrender of items)

Contrary to: Court Security Act 1980 s 3(10)

Section 3(10) provides:

3

Powers of authorized officer

(1) Subject to any limitations or restrictions provided by the rules an authorized officer may demand from a person who is on court premises that person’s name and address, his reason for being on the premises and evidence of his identity. (2) Any person who in response to a demand under subsection (1)— (a) fails or refuses to supply any of the information; (b) gives false information; or (c) provides any false evidence of identity— shall be guilty of an offence against this Act and liable to a penalty not exceeding 10 penalty units. (3) Subject to any limitations or restrictions provided by the rules, an authorized officer may require a person who wishes to enter the court premises, or is on the court premises– (a) to submit to a frisk search or a search of any thing in the person’s possession; (b) to submit to a scanning search of his or her person or of any thing in the person’s possession; (c) to surrender to the authorized officer any item that the authorized officer believes on reasonable grounds is a prohibited item. (4) An authorized officer who conducts a search under this section must not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search. (5) If, when asked, a person does not submit to a demand under subsection (1) or a requirement under subsection (3), an authorized officer

Ch 23

Court security (refuse to comply – search/scan/surrender of items)

99

may prohibit the person from entering the court premises, or if the person is on the court premises, remove the person by reasonable force from the court premises. (6) An authorized officer, who during a search finds a prohibited item or to whom a prohibited item is surrendered, may seize and retain that prohibited item in accordance with this section. (7) A prohibited item (other than a firearm, an explosive substance or an offensive weapon) that is surrendered by a person in compliance with a requirement under subsection (3)(c) must be retained by the authorized officer until— (a) the person requests the item’s return; or (b) the expiration of 28 days after the item was surrendered— whichever happens first. (8) Despite anything to the contrary in this section, if— (a) a surrendered or seized prohibited item is a firearm, an explosive substance or an offensive weapon whose possession would constitute an offence under the Crimes Act 1958, the Control of Weapons Act 1990 or this Act, the chief executive officer or a clerk of the court must ensure that the item is given to a police officer within 24 hours after the item is surrendered or seized; (b) a surrendered or seized prohibited item is not an item referred to in paragraph (a) and is not collected within 28 days after it was surrendered or seized, the chief executive officer or a clerk of the court may destroy the item or sell the item and retain the proceeds of the item’s sale. (9) An authorized officer may refuse a person entry to the court premises or remove a person from the court premises if the authorized person believes on reasonable grounds that the person is likely to affect adversely the security, good order or management of the court premises. (10) A person must not refuse to comply with a requirement under subsection (3). [23.20] Statutory reference 9499.3.10

[23.30]

Statement of charge

Refuse to comply with requirement upon entry to court premises.

[23.40]

Wording of charge

The accused at [place] on [date] when (entering/on) court premises refused to comply with a requirement by an authorised officer to (submit to a frisk search or a search of any thing in (his/her) possession/submit to a scanning search of (his/her)

100

Offences

person or of any thing in (his/her) possession/surrender to the authorised officer any item that the authorised officer believes on reasonable grounds is a prohibited item).

[23.50]

Penalty

10 penalty units Matters to be proved

[23.60] 1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused was entering or on court premises. The accused refused to comply with a requirement made by an authorised officer. 5. The requirement was to submit to a frisk search or a search of any thing in his or her possession, or to submit to a scanning search of his or her person or of any thing in his or her possession, or surrender to the authorised officer any item that the authorised officer had reasonable grounds to believe was a prohibited item.

[23.70]

Other possible charges: Court Security Act 1980

Carry or possess firearm, explosive substance or offensive weapon on court premises: s 4.

[23.80]

Other possible charges: miscellaneous

Armed with criminal intent: Crimes Act 1958 s 31B. Possess, use or carry prohibited weapon: Control of Weapons Act 1990 s 5AA. Possess, carry or use a controlled weapon without lawful excuse: Control of Weapons Act 1990 s 6(1). Possess, carry or use a dangerous article in a public place without a lawful excuse: Control of Weapons Act 1990 s 7(1).

[23.90]

Court

See [19.70].

[23.100]

Authorised officer

See [19.80] and [19.90].

[23.110] Frisk search and scanning search Frisk search and scanning search are defined in Court Security Act 1980 s 2(1). Clearly a requirement purportedly made by an authorised officer that goes further than those type of searches would be unlawful, and a person could not be required to submit to such a requirement. Note, however, that authorised officers possess a broad power to refuse entry to or remove a person from court premises if they believe on reasonable grounds that the person is likely to adversely affect the security, good order or management of the court premises: Court Security Act 1980 s 3(9).

[23.120] Reasonable grounds to believe When a statute prescribes that there must be reasonable grounds for a state of mind – including suspicion and belief – it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person: George v Rockett (1990) 170 CLR 105 at 112.

Ch 23

Court security (refuse to comply – search/scan/surrender of items)

101

Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture: George v Rockett at 116. The test for whether reasonable grounds existed for a professed belief requires that the relevant officer genuinely formed or held the belief (the test’s subjective limb), and that there was a reasonable basis for that belief (its objective limb): O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286.

[23.130] Prohibited item Prohibited item is defined in Court Security Act 1980 s 2(1) to mean: (a) a firearm, as defined in the Firearms Act 1996; (b) an explosive substance, as defined in the Crimes Act 1958 Pt I Div 8; (c) an offensive weapon; or (d) an item that is likely to affect adversely the security, good order or management of the court premises. Offensive weapon is also defined, and means any article made or adapted for use for causing injury to or incapacitating a person, or intended by the person having it with him or her for such use.

24

Detained person (act in manner prejudicial or threatening to security, good order or management of police gaol)

[24.10]

Contrary to: Corrections (Police Gaols) Regulations 2015 reg 15(1)(a)–(c) Regulation 15(1)(a)–(c) provide:

15

Offences by detained persons (1) A detained person must not act, or threaten to act, in a way— (a) that is prejudicial to, or that threatens, the security, good order or management of the police gaol; or (b) that is prejudicial to, or that threatens, the safety of any person in the police gaol or of any person who is involved in the administration of, or in providing a service to, or in relation to, the police gaol; or (c) that might cause damage to the police gaol or the loss of, or damage to, any property at the police gaol.

(2) A detained person must not act in a disruptive, abusive or indecent manner, whether by language or conduct to any person in the police gaol or to any person who is involved in the administration of, or in providing a service to, or in relation to, the police gaol. (3) A detained person must not exchange, give or receive or attempt to exchange, give or receive, without lawful authority, any article or substance that is prejudicial to, or threatens the security, good order or management of the police gaol. (4) A detained person must not knowingly wear or possess any thing that jeopardises, or that is likely to jeopardise, the security or good order of the police gaol or the safety of people in the police gaol, other than any thing which a person is authorised by the officer in charge of a police gaol to wear or possess. (5) A detained person who is authorised to take or use a drug of dependence must not take or use or attempt to take or use that drug otherwise than in accordance with the authorisation.

Ch 24

Detained person (act in manner prejudicial/threatening security of police gaol)

103

(6) [Repealed] [24.20] Statutory reference SR15/94.15.1.A SR15/94.15.1.B SR15/94.15.1.C

[24.30] Statement of charge Detained person acts in manner prejudicial to security, good order or management of police gaol.

[24.40] Wording of charge Regulation 15(1)(a) The accused at [place] on [date] while detained in a police gaol, namely [name of police gaol], (acted/threatened to act) in a way (prejudicial to/that threatened) the security, good order or management of the police gaol.

Regulation 15(1)(b) The accused at [place] on [date] while detained in a police gaol, namely [name of police gaol], (acted/threatened to act) in a way (prejudicial to/that threatened) the safety of any person (in/involved in the administration of or in providing a service to or in relation to) the police gaol.

Regulation 15(1)(c) The accused at [place] on [date] while detained in a police gaol, namely [name of police gaol], (acted/threatened to act) in a way that might cause (damage to/the loss of or damage to any property at) the police gaol.

[24.50]

Penalty

10 penalty units

[24.60]

Matters to be proved

Regulation 15(1)(a) 1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused was detained in a police gaol. The accused acted or threatened to act in a way that was prejudicial to or threatened the security, good order or management of the police gaol.

Regulation 15(1)(b) 1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused was detained in a police gaol. The accused acted or threatened to act in a way that was prejudicial to or threatened the safety of any person in, or involved in the administration of, or in providing a service to, or in relation to, the police gaol.

104

Offences

Regulation 15(1)(c) 1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused was detained in a police gaol. The accused acted or threatened to act in a way that might cause damage to, or the loss of or damage to any property at, the police gaol.

[24.70]

Other possible charges: miscellaneous

Detained person disobey lawful order of police officer or police custody officer: Corrections Act 1986 s 104AG.

[24.80]

Detained person

Corrections (Police Gaols) Regulations 2015 reg 5 provides that detained person has the same meaning as in Corrections Act 1986 s 104A: see [25.80].

[24.90] Good order or management Courts recognise the wide variety of circumstances that can arise in managing and operating prisons, and are generally reluctant to interfere with decisions that appear appropriate. [T]he exercise of powers and duties by prison authorities depends on factual situations which arise at a particular point in time and which are the subject of decisions made by officers in the day-to-day management and operation of the prison. The facts will change. The weight attached to factors such as security, fire risk and good administration and management of the prisons will vary considerably depending on the circumstances: Rich v Groningen (1997) 95 A Crim R 272 at 278.

25 [25.10]

Detained person (disobey lawful order)

Contrary to: Corrections Act 1986 s 104AG

Section 104AG provides:

104AG Offence to disobey a lawful order A detained person must not disobey a lawful order of a police officer or police custody officer given under this Division. [25.20] Statutory reference 86/117.104AG

[25.30]

Statement of charge

Detained person disobey lawful order of police officer or police custody officer.

[25.40]

Wording of charge

The accused at [place] on [date] while detained in a police gaol,3 namely [name of police gaol], disobeyed a lawful order of a police (officer/custody officer), namely [description of lawful order].

[25.50]

Penalty

10 penalty units

[25.60] 1. 2. 3. 4. 5.

Matters to be proved

The offence occurred at the place and time alleged. The offender was the accused. The accused was detained in a police gaol. That a police officer or custody officer gave a lawful order to the accused. The accused disobeyed that order.

[25.70]

Other possible charges: miscellaneous

Detained person act in a manner prejudicial to the good order of a police gaol: Corrections (Police Gaols) Regulations 2015 reg 15(1)(a).

[25.80]

Detained person

Corrections Act 1986 s 104A defines a detained person as a person who is detained in a police gaol. Police gaols are appointed by the Governor in Council and promulgated in the Government Gazette as provided by s 11. 3 Note that “gaol” is the archaic form of “jail”. It survives primarily as a term used in legal circles.

106

Offences

The powers enumerated in Pt 9A are limited to declared police gaols under Victoria Police Act 2013 s 200C. These are the only police gaols where police custody officers may exercise their powers.

[25.90]

Police officer or police custody officer

Police officer means a police officer within the meaning of the Victoria Police Act 2013: Corrections Act 1986 s 3(1). Under Corrections Act s 3(1), police custody officer also has the same meaning as in the Victoria Police Act. A police custody officer is a person appointed under Victoria Police Act s 200D to supervise prisoners detained in police gaols and transport prisoners to and from police gaols.

[25.100]

Lawful order

Lawful order is not defined in the Corrections Act 1986. Section 104AE provides a general power for a police officer or police custody officer to give to a detained person any order that the police officer or police custody officer believes on reasonable grounds is necessary for the security, good order or management of the police gaol or for the safety of any person at the police gaol. Other discrete powers are contained within Pt 9A. See also [24.90]. As to belief on reasonable grounds, see [23.120].

26 [26.10]

Discharge stone, arrow or missile etc

Contrary to: Summary Offences Act 1966 s 7(g)

Section 7(g) provides:

7

Offences tending to personal injury or damage to property Any person who— (a) places upon any road footpath canal or waterway an obstruction likely to cause death or injury to any person passing thereon; (b) leaves a hole excavation or dangerous formation in or near a public place unguarded or without having a warning light burning nearby between sunset and sunrise; (c) fails to keep in good repair any protective cover rail gate or fence over or about a cellar or lower area opening into or upon or near a public place or keeps any such cover rail gate or fence open for an unreasonable time in the circumstances; (d) throws any offensive matter or thing or any animal into a waterway, canal or other place whence a supply of water for human use is obtained; (e) draws or trails a sledge or timber or other heavy material upon a public footpath or road so as to damage the surface thereof; (f) in a public place rolls a drum, barrel or cask or breaks in a horse to the injury of or danger to any person or damage to any property; or (g) throws or discharges a stone arrow or other missile to the injury of or danger to any person or damage to any property— shall be guilty of an offence. [26.20] Statutory reference 7405.9.G

[26.30]

Statement of charge

Discharge stone, arrow or missile to the injury or danger of any person, or damage to any property. [26.40] Wording of charge The accused on [date] at [place] (threw/discharged) a (stone/arrow/missile namely [description of missile]) that (injured any person/endangered any person/damaged any property).

[26.50] Penalty 25 penalty units or 6 months’ jail

108

[26.60] 1. 2. 3. 4. 5.

Offences

Matters to be proved

The offence occurred at the place and time alleged. The offender was the accused. The accused was warned to leave a private place, or a Scheduled public place. The accused threw or discharged a stone, arrow, or other missile. Any person was injured or endangered, or any property was damaged.

[26.70]

Other possible charges: Summary Offences Act 1966

Wilfully damages any property: s 9(1)(c). Unlawful assault: s 23.

[26.80]

Other missile

The offence section is derived from the Town Police Clauses Act 1847, 10 & 11 Vict, s 28, which concerned, “Every person who wantonly discharges any firearm, or throws or discharges any stone or other missile, or makes any bonfire, or throws or sets fire to any firework.” In Field v Gent (1996) 67 SASR 122, where considering an offence of discharging a firearm or throwing a stone or other missile, contrary to Summary Offences Act 1953 (SA) s 51(1), Mullighan J held the ejusdem generis rule did not apply there to the phrase “other missile”, and petrol thrown onto embers of a barbecue was within the scope of the section, saying at 128, “If an object is capable of being thrown, it comes within the ordinary English meaning of ‘missile’.” It is unclear if the same reasoning would apply to this provision, given the phrase “stone, arrow or other missile” is more closely aligned to the ejusdem generis rule.

27 [27.10]

Disguised with unlawful intent

Contrary to: Summary Offences Act 1966 s 49C(a)–(b)

Section 49C(a)–(b) provides:

49C Being disguised with unlawful intent A person must not with unlawful intent— (a) be disguised or have a blackened face; or (b) have an article of disguise in his or her custody or possession. [27.20]

Statutory reference

7405.49C.A 7405.49C.B

[27.30]

Statement of charge

Being disguised with unlawful intent.

[27.40]

Wording of charge

Section 49C(a) The accused at [place] on [date] (was disguised/had a blackened face) with unlawful intent.

Section 49C(b) The accused at [place] on [date] (possessed/had custody of) an article of disguise with unlawful intent.

[27.50]

Penalty

2 years’ jail

[27.60]

Matters to be proved

Section 49C(a) 1. 2. 3. 4.

The The The The

offence occurred at the place and time alleged. offender was the accused. accused was disguised or had a blackened face. accused had an unlawful intent.

Section 49C(b) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused possessed or had custody of an article of disguise.

110

Offences

4. The accused had an unlawful intent.

[27.70]

Other possible charges: Crimes Act 1958

Armed with criminal intent: s 31B. Going equipped for stealing: s 91.

[27.80]

Other possible charges: Summary Offences Act 1966

Loitering with intent to commit indictable offence: s 49B. Possess housebreaking implements: s 49D.

[27.90]

History

The offence provision was originally contained in the Police Offences Act 1958 s 72(1)(l) – which itself was derived from the Vagrancy Act 1824 (UK) – and then later the Vagrancy Act 1966 ss 6(1)(f) and 7(1)(h). The Vagrancy Act was repealed following reviews by the Victorian Parliament’s Scrutiny of Acts and Regulations Committee of the Summary Offences Act 1966 in 2001 and the Vagrancy Act 1966 in 2002. Some provisions of the Vagrancy Act, including this one, were re-enacted by the Vagrancy (Repeal) and Summary Offences (Amendment) Act 2005.

[27.100]

Unlawful intent

Unlawful intent merely means “with the intent of committing a crime”: Carter v Reaper [1920] VLR 337. The phrase “unlawful purpose” as used in the Vagrancy Act 1824 (UK) was replaced by “without lawful excuse” in the Victorian legislation, which had the effect of imposing a legal burden upon an accused person: Haisman v Smelcher [1953] VLR 625 at 626. See also [4.20].

[27.110] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.6243]ff.

28 [28.10]

Disorderly conduct (public place)

Contrary to: Summary Offences Act 1966 s 17A

Section 17A provides:

17A Disorderly conduct Any person who behaves in a disorderly manner in a public place is guilty of an offence and liable to a penalty not exceeding 10 penalty units. [28.20] Statutory reference 7405.17A

[28.30]

Statement of charge

Disorderly conduct in public.

[28.40]

Wording of charge

The accused at [place] on [date] behaved in a disorderly manner in a public place.

[28.50] Penalty 10 penalty units

[28.60] Matters to be proved 1. 2. 3. 4.

The The The The

offence occurred at the place and time alleged. offender was the accused. accused behaved in a disorderly manner. accused was in a public place.

[28.70] Other possible charges: Summary Offences Act 1966 Drunk and disorderly: s 14. Drunkard behaving in a disorderly manner: s 16. Behave in a riotous, indecent, offensive or insulting manner: s 17(1)(d).

[28.80]

Other possible charges: common law

Public nuisance. Unlawful assembly. Riot. Rout.

[28.90]

Disorderly

In Barrington v Austin [1939] SASR 130 at 132, Napier J held that disorderly behaviour refers to any substantial breach of decorum which tends to disturb the peace of or

112

Offences

interfere with the comfort of other people who may be in, or in the vicinity of, the street or public place. In that case, the defendants had been sitting in the street for over half an hour, using disgusting language, and despite protest from the occupant of a nearby house, continuing until the police arrived. In Watson v Trenerry (1998) 145 FLR 159, the Court of Appeal of the Northern Territory allowed an appeal against a conviction for disorderly behaviour at a demonstration, where the appellants and others burnt 20 flags of the Indonesian military forces in protest and to mark the 20th anniversary of the Indonesian occupation of East Timor (now Timor-Leste). Angel J considered (at 163) that disorderly behaviour is not a legal concept fixed by judicial decision, but an ordinary and everyday expression. This has been the approach in the UK: Chambers v DPP [1995] Crim LR 896, applying the approach in Brutus v Cozens [1973] AC 854 that words should be given their ordinary meaning. The motive of the appellants – that is, burning the flags as a political protest – was relevant. A peaceful and otherwise lawful political protest is tolerated in a democratic society: Watson v Trenerry at 165. Mildren J agreed with much of Angel J’s reasoning, and at 173 noted that the notion of disorderly conduct must be decided by reference to contemporary values, and for that reason doubted that an earlier decision of the Court of Appeal of New Zealand, Melser v Police [1967] NZLR 437, would be decided the same way today. This was also the view of Gleeson CJ in Coleman v Power (2004) 220 CLR 1 at 5–6. In Melser, the New Zealand Court of Appeal upheld the convictions for disorderly conduct of protestors who chained themselves to pillars in the grounds of Parliament when an overseas dignitary was to visit. More recently, the New Zealand Supreme Court overturned Melser, and in Brooker v Police [2007] 3 NZLR 91 and Morse v Police [2012] 2 NZLR 1 held that disorderly behaviour means behaviour seriously disruptive of public disorder.

[28.100]

Public place

As to public place see [76.100].

[28.110] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.3187].

29 [29.10]

Drug of dependence (use)

Contrary to: Drugs, Poisons and Controlled Substances Act 1981 s

75 Section 75 provides:

75

Use of drug of dependence A person who, without being authorized by or licensed under this Act or the regulations or the Access to Medicinal Cannabis Act 2016 or the regulations under that Act to do so uses or attempts to use a drug of dependence is guilty of an offence against this Act and liable— (a) where the court is satisfied on the balance of probabilities that the offence was committed in relation to cannabis or tetrahydrocannabinol — to a penalty of not more than 5 penalty units; and (b) in any other case — to a penalty of not more than 30 penalty units or to level 8 imprisonment (1 year maximum) or to both that penalty and imprisonment. [29.20] Statutory reference 9719.75

[29.30]

Statement of charge

Use drug of dependence.

[29.40]

Wording of charge

The accused at [place] on [date] (used/attempted to use) a drug of dependence, namely [name of drug of dependence].

[29.50]

Penalty

5 penalty units in respect of tetrahydrocannabinol (cannabis) 30 penalty units or 1 year’s jail in any other case

[29.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused used or attempted to use a drug of dependence. 4. The accused was not authorised by or licensed under the Drugs, Poisons and Controlled Substances Act 1981 or Access to Medicinal Cannabis Act 2016 or regulations to use or attempt to use a drug of dependence.

114

Offences

[29.70]

Other possible charges: Drugs, Poisons and Controlled Substances

Act 1981 Possess scheduled poison: s 36B.

[29.80]

Use

Drugs, Poisons and Controlled Substances Act 1981 s 70(1) defines use to mean: (a) smoke a drug of dependence; (b) inhale the fumes caused by heating or burning a drug of dependence; or (c) introduce a drug of dependence into the body of a person.

Axiomatically, a person cannot use a drug of dependence without also possessing it. In practice, police sometimes decide not to proceed with a possession charge, such as when the only evidence of use (and therefore possession) is the accused’s admissions and those admissions have not been recorded as required for reception in evidence by Crimes Act 1958 s 464H.

[29.90]

Drug of dependence

Drug of dependence is defined extensively in Drugs, Poisons and Controlled Substances Act 1981 s 3(1), and the various drugs of dependence so defined are listed in Sch 11.

[29.100] Without being authorised or licensed The prosecution is not required to prove that the accused was not authorised or licensed under the legislation. Drugs, Poisons and Controlled Substances Act 1981 s 104 provides: In any proceedings against any person for an offence against this Act the burden of proving any matter of exception qualification or defence shall lie upon the person seeking to avail himself thereof.

A person may be authorised under a patient medicinal cannabis authorisation issued under the Access to Medicinal Cannabis Act 2016 s 57 to obtain, possess, store and use a medicinal cannabis product, defined in s 3 of that Act to mean a substance, compound, preparation or mixture that is manufactured from cannabis, cannabis material or an intermediate cannabis product for human use or consumption and including an approved medicinal cannabis product. The accused has the evidential burden of raising those defences: see [4.30].

30 [30.10]

Drunk and disorderly in public place

Contrary to: Summary Offences Act 1966 s 14

Section 14 provides:

14

Persons found drunk and disorderly Any person found drunk and disorderly in a public place shall be guilty of an offence. For a second or subsequent offence—20 penalty units or imprisonment for one month. [30.20] Statutory reference 7405.14

[30.30]

Statement of charge

Drunk and disorderly in public place.

[30.40]

Wording of charge

The accused at [place] on [date] was found drunk and disorderly in a public place, namely [name or description of public place].

[30.50]

Penalty

20 penalty units or 3 days’ jail (first offence) 20 penalty units or 1 month’s jail (second or subsequent offence)

[30.60] 1. 2. 3. 4.

The The The The

[30.70]

Matters to be proved offence occurred at the place and time alleged. offender was the accused. accused was found drunk and disorderly place where the accused was found was a public place. Other possible charges: Summary Offences Act 1966

Drunk: s 13. Drunkards behaving in riotous manner: s 16. Disorderly conduct in public: s 17A.

[30.80]

Found

See [31.80].

[30.90]

Drunk

See [31.90].

116

Offences

[30.100] Public place As to public place see [76.100].

[30.110] Arrest The offence of being drunk and disorderly in a public place is subject to its own arrest power under Summary Offences Act 1966 s 15, which is not limited by the same criteria as those found at Crimes Act 1958 s 458 or s 459.

[30.120] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.2530]ff.

31 [31.10]

Drunk in public place

Contrary to: Summary Offences Act 1966 s 13

Section 13 provides:

13

Persons found drunk Any person found drunk in a public place shall be guilty of an offence.

[31.20]

Statutory reference

7405.13

[31.30]

Statement of charge

Drunk in a public place.

[31.40]

Wording of charge

The accused at [place] on [date] was found drunk in a public place, namely [name or description of public place].

[31.50]

Penalty

8 penalty units It is common police practice to lodge in a police gaol people arrested for public drunkenness, and to release them after four hours. In such circumstances, many magistrates consider that the time imprisoned is sufficient penalty, and dismiss any criminal charge pursuant to Sentencing Act 1991 s 76. This offence may also be dealt with by infringement notice pursuant to s 60AA, which is the more common disposition.

[31.60] 1. 2. 3. 4.

The The The The

[31.70]

Matters to be proved offence occurred at the place and time alleged. offender was the accused. accused was found drunk. place where the accused was found was a public place. Other possible charges: Summary Offences Act 1966

Drunk and disorderly: s 14. Drunkards behaving in riotous manner: s 16. Disorderly conduct in public: s 17A.

[31.80]

Found

Found means the person was seen or discovered by the police officer who arrested her or him: R v Goodwin [1944] 1 KB 518 at 522–523. The arrest must be made while the offence is being committed or the act is being done: Lynch v Hargreaves [1971] VR 99 at 107.

118

Offences

A person found drunk in the front seat of a car was determined to be in a public place: Mansfield v Kelly [1972] VR 744.

[31.90]

Drunk

The question whether a person was drunk is one of fact: Normandale v Rankin (1972) 4 SASR 205. In R v Ormsby [1945] NZLR 109 the New Zealand Supreme Court held that a person was in “a state of intoxication” when as a result of consuming intoxicating liquor the person’s mental or physical faculties or judgment are materially impaired in the conduct of the ordinary affairs of daily life. This test was approved in McDonald v Sherrin (1998) 8 Tas R 146. Mere intoxication is a lesser degree of inebriation than being found drunk: Brown v Bowden (1991) 19 NZLR 98.

[31.100]

Public place

As to public place see [76.100].

[31.110] Arrest Public drunkenness is subject to its own arrest power under Summary Offences Act 1966 s 15, which is not limited by the same criteria as those found at Crimes Act 1958 s 458 or s 459.

[31.120]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.2370]ff.

32 [32.10]

Drunk (riotous or disorderly behaviour, or in charge of carriage)

Contrary to: Summary Offences Act 1966 s 16

Section 16 provides:

16

Drunkards behaving in riotous or disorderly manner Any person who, while drunk— (a) behaves in a riotous or disorderly manner in a public place; (b) is in charge, in a public place, of a carriage (not including a motor vehicle within the meaning of the Road Safety Act 1986) or a horse or cattle or a steam engine– shall be guilty of an offence.

[32.20] Statutory reference 7405.16

[32.30]

Statement of charge

Drunkards behaving in riotous or disorderly manner. Drunk in charge of carriage. Wording of charge

[32.40]

The accused at [place] on [date] while drunk behaved in a (riotous/disorderly) manner in a public place. The accused at [place] on [date] while drunk was in charge of a (carriage/horse/ cattle/steam engine) in a public place.

[32.50]

Penalty

10 penalty units or 2 months’ jail Matters to be proved

[32.60] 1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused was drunk. The accused behaved in a riotous or disorderly manner, or was in charge of a carriage, horse, cattle, or steam engine, in a public place.

[32.70]

Other possible charges: Summary Offences Act 1966

Drunk: s 13. Drunk and disorderly: s 14.

120

Offences

Disorderly conduct in public: s 17A.

[32.80]

Drunk

See [31.90].

[32.90]

Public place

As to public place see [76.100].

[32.100] Carriage A bicycle is a “carriage” for the purposes of this section: Corkey v Carpenter [1951] 1 KB 102; Cannon v Abingdon (Earl) [1900] 2 QB 66.

[32.110] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.2710]ff.

33 [33.10]

Escape from lawful custody

Contrary to: Summary Offences Act 1966 s 49E

Section 49E provides:

49E Escaping from lawful custody A person must not escape or attempt to escape from— (a) any place in which he or she is being lawfully detained; or (b) any person in whose legal custody he or she is or by whom he or she is being lawfully detained. [33.20] Statutory reference 7405.49E

[33.30]

Statement of charge

Escape from lawful detention or custody.

[33.40]

Wording of charge

The accused at [place] on [date] (escaped/attempted to escape) from any (place in which (she/he) was lawfully detained/person whose legal custody (she/he) was or by whom (she/he) was lawfully detained).

[33.50]

Penalty

2 years’ jail

[33.60] 1. 2. 3. 4.

Matters to be proved

The offence occurred at the place and time alleged. The offender was the accused. The accused escaped or attempted to escape. The accused was lawfully detained in a place, or by a person, or in legal custody of a person.

[33.70]

Other possible charges: miscellaneous

Escape or attempted escape from prison or police gaol or legal custody: Crimes Act 1958 s 479C. Escaping: Crimes Act 1914 (Cth) s 47A. Unlawfully at large: Crimes Act 1914 (Cth) s 47B. Escape or attempted escape from remand centre, youth residential centre or youth justice centre: Children, Youth and Families Act 2005 s 498. Escape from custody: Corrections Act 1986 s 84E.

122

[33.80]

Offences

Lawful custody

Lawful custody is not defined in the Act, but clearly contemplates a valid arrest and imprisonment. This offence is used primarily when an accused person escapes or attempts to escape from a person who or place which is not otherwise covered by the other possible charges above. Typical examples would be when arrested or detained by: police; security guards (including loss prevention officers) or crowd controllers; and also members of the public making an arrest in reliance upon Crimes Act 1958 s 458.

[33.90] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.6273]ff.

34 [34.10]

False report of emergency to ambulance service

Contrary to: Ambulance Services Act 1986 s 39AA

Section 39AA provides:

39AA False report of emergency to ambulance service A person must not wilfully give or cause to be given a false report of an emergency to an ambulance service. [34.20] Statutory reference 86/114.39AA

[34.30]

Statement of charge

False report to ambulance service.

[34.40]

Wording of charge

The accused at [place] on [date] wilfully (gave/caused to be given) a false report of an emergency to an ambulance service.

[34.50]

Penalty

60 penalty units

[34.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused intentionally and voluntarily gave or caused to be given a report of an emergency to an ambulance service. 4. The report was false. 5. The accused knew the report was false.

[34.70]

Other possible charges: Summary Offences Act 1966

False report to police: s 53.

[34.80]

Other possible charges: miscellaneous

False report of fire: Country Fire Authority Act 1958 s 107B. False report of fire: Metropolitan Fire Brigades Act 1958 s 33. Improper use of emergency call service: Criminal Code (Cth) s 474.18.

124

Offences

[34.90]

Wilfully

Wilful is synonymous with “intentional” and “voluntarily”, but also imports an element of knowledge possessed by the accused of the likely consequence of their actions: Iannella v French (1968) 119 CLR 8 at 94–95, 107–109; Bergin v Brown [1990] VR 888. In the UK, it is understood as a composite term to cover both intention and recklessness: R v Sheppard [1981] AC 394.

[34.100]

Ambulance service

An ambulance service is defined in Ambulance Services Act 1986 s 3 as a service created under s 23 or listed in Sch 1.

35 [35.10]

False report of fire

Contrary to: Metropolitan Fire Brigades Act 1958 s 33(1)

Section 33(1) provides:

33

False report of fire

(1) A person must not give or cause to be given a false report of a fire to a unit in the metropolitan district knowing the report to be false. (2) In addition to any penalty imposed under subsection (1), the court may order a person convicted of an offence under subsection (1) to pay to the Board— (a) the fees and charges prescribed for the attendance of the unit in response to the false report; or (b) a lesser amount as the court thinks fit. [35.20]

Statutory reference

6315.33.1

[35.30]

Statement of charge

False report of fire. [35.40] Wording of charge The accused at [place] on [date] (gave/caused to be given) a false report of a fire to a unit in the metropolitan district, knowing the report to be false.

[35.50]

Penalty

60 penalty units In addition, a court might order a person convicted of this offence to pay prescribed fees for the attendance of a “unit”, discussed at [35.100].

[35.60] 1. 2. 3. 4. 5.

Matters to be proved The offence occurred at the place and time alleged. The offender was the accused. The accused gave or caused to be given a report of a fire to a unit in the metropolitan district. The report was false. The accused knew the report was false.

[35.70]

Other possible charges: Summary Offences Act 1966

False report to police: Summary Offences Act 1966 s 53.

[35.80]

Other possible charges: miscellaneous

False report to ambulance service: Ambulance Services Act 1986 s 39AA. False report of fire: Country Fire Authority Act 1958 s 107B.

126

Offences

Improper use of emergency call service: Criminal Code (Cth) s 474.18.

[35.90]

Fire

The Metropolitan Fire Brigades Act 1958 s 3(1) provides an inclusive definition of fire: fire includes– (a) a hazardous material incident where the major or sole danger is the threat of fire up to the stage where there is no longer a threat of fire; and (b) a toxic fire incident up to the stage where the fire has been effectively extinguished; and (c) the threat of a fire re-igniting ….

Section 32D provides for cost recovery – but does not create a corresponding offence – for a false alarm of fire. That in turn is defined in s 32A as a call for assistance at a fire, accident, explosion or other emergency. Applying the maxim of interpretation expressio unius est exclusio alterius – express reference to one matter indicates that other matters are excluded – it seems the offence contrary to s 33 does not apply to non-fire incidents such as motor vehicle collisions, medical emergencies, and hazardous materials emergencies without fire.

[35.100]

Unit

A unit is defined in Metropolitan Fire Brigades Act 1958 s 3(1) as a brigade or other fire or emergency service unit established under the Act. In practice, when seeking the fees for a call out to a false report, the MFB will calculate the amount in accordance with the fees and charges specified in the Metropolitan Fire Brigades (General) Regulations 2005 reg 17 and Sch 2, which are calculated per “appliance”. In light of the statutory definition of “unit”, it is uncertain if the Brigade is entitled to calculate the fees in this manner, as there may be more than one appliance that attends from a “unit”.

[35.110] Metropolitan district The metropolitan district is defined in Metropolitan Fire Brigades Act 1958 s 4 and Sch 2. A much easier to comprehend map is provided on the MFB website at http://www.mfb.vic.gov.au/About-Us/StationMap.html. Any false reports of fire that occur outside the metropolitan district are instead subject to the false report offence found in the Country Fire Authority Act 1958.

36 [36.10]

False report of fire

Contrary to: Country Fire Authority Act 1958 s 107B(1)

Section 107B(1) provides:

107B

False report of fire

(1) A person must not give or cause to be given a false report of a fire to a brigade in the country area of Victoria knowing the report to be false. (2) In addition to any penalty imposed under subsection (1), the court may order a person convicted of an offence under subsection (1) to pay to the Authority— (a) the fees and charges prescribed for the attendance of the brigade in response to the false report; or (b) a lesser amount as the court thinks fit. [36.20]

Statutory reference

6228.107B.1 Statement of charge

[36.30]

False report of fire. [36.40] Wording of charge The accused at [place] on [date] (gave/caused to be given) a false report of a fire to a brigade in the country area of Victoria, knowing the report to be false.

[36.50]

Penalty

60 penalty units In addition, a court might order a person convicted of this offence to pay prescribed fees for the attendance of a “brigade”, discussed at [36.100].

[36.60] 1. 2. 3. 4. 5.

Matters to be proved The offence occurred at the place and time alleged. The offender was the accused. The accused gave or caused to be given a report of a fire to a brigade in the country area of Victoria. The report was false. The accused knew the report was false.

[36.70]

Other possible charges: Summary Offences Act 1966

False report to police: s 53.

[36.80]

Other possible charges: miscellaneous

False report to ambulance service: Ambulance Services Act 1986 s 39AA. False report of fire: Metropolitan Fire Brigades Act 1958 s 33.

128

Offences

Improper use of emergency call service: Criminal Code (Cth) s 474.18.

[36.90]

Fire

The Country Fire Authority Act 1958 s 3(1) provides an inclusive definition of fire: fire includes– (a) a hazardous material incident where the major or sole danger is the threat of fire up to the stage where there is no longer a threat of fire; and (b) a toxic fire incident up to the stage where the fire has been effectively extinguished; and (c) the threat of a fire re-igniting ….

Applying the maxim of interpretation expressio unius est exclusio alterius – express reference to one matter indicates that other matters are excluded – it seems the offence contrary to s 107B does not apply to non-fire incidents such as motor vehicle collisions, medical emergencies, and hazardous materials emergencies without fire.

[36.100]

Brigade

A brigade is defined in Country Fire Authority Act 1958 s 3(1) as a brigade registered under s 23(1)(b). In practice, when seeking the fees for a call out to a false report, the CFA will calculate the amount in accordance with the fees and charges specified in the Country Fire Authority Regulations 2014 reg 101(3), which are calculated per “appliance”. In light of the statutory definition of brigade, it is uncertain if the Authority is entitled to calculate the fees in this manner, as there may be more than one appliance that attends from a brigade.

[36.110] Country area Country area is defined in Country Fire Authority Act 1958 s 3(1) as that part of Victoria which lies outside the metropolitan district, which has the same meaning as in the Metropolitan Fire Brigades Act 1958 s 3(1), discussed at [35.110]. In the absence of evidence to the contrary, Country Fire Authority Act 1958 s 108 provides that a certificate signed or purporting to be signed by the Chief Officer or a Deputy Chief Officer is proof that a place or locality is within the country area of Victoria. The use of the word “purporting” shows the section does not contemplate proof of actual authorisation for such a certificate to be admissible: DPP v Meade [2011] VSC 358 at [8]. As to “evidence to the contrary” see DPP v Cummings (2006) 46 MVR 84, where the Supreme Court of Victoria held at 91: The phrase “to the contrary” means “to the opposite effect”. In my view, to be evidence to the contrary the evidence must at least be accepted by the tribunal of fact as having some weight.

37 [37.10]

False report to police

Contrary to: Summary Offences Act 1966 s 53

Section 53 provides:

53

Making false reports to police etc.

(1) Any person who falsely and with knowledge of the falsity of the report voluntarily reports or causes to be reported to any police officer or to a protective services officer that an act has been done or an event has occurred, which act or event as so reported is such as calls for an investigation by a police officer or a protective services officer shall be guilty of an offence. (2) For the purposes of subsection (1)— (a) voluntarily, in respect of a report by any person, means— (i) of that person’s own motion and volition; and (ii) otherwise than in the course of an interrogation made by a police officer or a protective services officer; and (b) causes to be reported includes creating any circumstances or doing any acts for the purpose of inducing or which induce some other person to report to a police officer or to a protective services officer that an act has been done or event occurred which calls for investigation by a police officer or a protective services officer. (3) [Repealed] (4) [Repealed] (5) [Repealed] (6) [Repealed] (6A) In addition to and without derogating from section 86 of the Sentencing Act 1991, if a court finds a person guilty of, or convicts a person of, an offence against this section, the court may order the person to pay to the informant a reasonable amount for any expenses, including remuneration payable to any emergency service worker within the meaning of Division 2B of Part 4 of the Sentencing Act 1991, incurred by the State arising out of or incidental to the commission of the offence. (6AB) In subsection (6A) remuneration, in relation to a person, includes long service leave entitlements, holiday pay, superannuation contributions and any other employment benefits. (6AC) If a court decides to make an order under subsection (6A), subsections (2), (3), (4), (7), (8) and (9) of section 86 of the Sentencing Act 1991 apply as if—

130

Offences

(a)

a reference to an order under subsection (1) were a reference to an order under subsection (6A); and (b) a reference to compensation were a reference to expenses referred to in subsection (6A). (6AD) An order under subsection (6A) must be taken to be a judgment debt due by the offender to the informant and payment of any amount remaining unpaid under the order may be enforced in the court by which it was made. (6B) Any moneys received by the informant under subsection (6A) shall be paid by him to the Consolidated Fund. [37.20] Statutory reference 7405.53

[37.30]

Statement of charge

False report to police.

[37.40]

Wording of charge

The accused at [place] on [date] voluntarily and falsely (reported/caused to be reported) to a (police officer/protective services officer) an (act/event), namely [description of report], which called for an investigation by a (police officer/protective services officer), and the accused knew that report was false.

[37.50]

Penalty

120 penalty units or 1 year’s jail

[37.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused reported or caused to be reported to any police officer or protective services officer an act or event. 4. The accused did so voluntarily. 5. The report called for an investigation by a police officer or protective services officer. 6. The report was false. 7. The accused knew the report was false.

[37.70]

Other possible charges: miscellaneous

False report to ambulance service: Ambulance Services Act 1986 s 39AA. False report of fire: Country Fire Authority Act 1958 s 107B. False report of fire: Metropolitan Fire Brigades Act 1958 s 33. Improper use of emergency call service: Criminal Code (Cth) s 474.18.

Ch 37

[37.80]

False report to police

131

Other possible charges: common law

Attempting to pervert the course of justice. Public nuisance.

[37.90]

Voluntarily

For the purposes of this provision, voluntarily is defined at Summary Offences Act 1966 s 53(2)(a): (2) For the purposes of subsection (1)– (a) voluntarily, in respect of a report by any person, means– (i) of that person’s own motion and volition; and (ii) otherwise than in the course of an interrogation made by a police officer or a protective services officer ….

[37.100] Causes to be reported For the purposes of this provision, causes to be reported is defined at Summary Offences Act 1966 s 53(2)(b): (2) For the purposes of subsection (1)– (b) causes to be reported includes creating any circumstances or doing any acts for the purpose of inducing or which induce some other person to report to a police officer or to a protective services officer that an act has been done or event occurred which calls for investigation by a police officer or a protective services officer.

[37.110] No longer triable on indictment Criminal Procedure Act 2009 s 436 repealed s 53(3), (5) and (6) of the Summary Offences Act 1966, which had provided for a person charged with making a false report to police to elect to have the charge determined on indictment. The offence may now only be determined summarily, in accordance with Summary Offences Act s 59 and Children, Youth and Families Act 2005 s 516.

[37.120] Payment of expenses incurred Summary Offences Act 1966 s 53(6A) permits a sentencing court to order an offender to pay to the informant a “reasonable amount” for any expenses incurred arising out of or incidental to the commission of the offence.

[37.130] Alternative of attempting to pervert the course of justice It might be possible to commit the offence of attempting to pervert the course of justice by making a false report, but in Australia it seems the effect must be more than to simply result in a police investigation. In R v Rogerson (1992) 174 CLR 268 at 277, 284, 294–295, 304–305, 311, the High Court held that a police investigation did not form part of the course of justice for the purpose of this offence. However, where a false report is intended to frustrate or deflect the course of actual or anticipated curial proceedings, it may amount to attempting to pervert the course of justice: R v Beckett (2015) 256 CLR 305; R v OM (2011) 212 A Crim R 293; R v Thomas (Derek) [1979] 1 QB 326. In the UK, criminal investigations – which expose individuals to risk of arrest, remand, wrongful conviction, or false allegations – are considered part of the course of justice for the purpose of this offence: R v Cotter [2003] QB 951; R v Rowell [1978] 1 WLR 132.

132

Offences

[37.140] Public nuisance A public nuisance at common law occurs when a person does an act not warranted by law or omits to discharge a legal duty if its effect is to endanger the life, health, property or comfort of the public, or to obstruct the public exercising or enjoying rights common to all Her Majesty’s subjects: R v Rimmington [2006] 1 AC 459 at 470. The requirement of common injury is a distinguishing feature of this offence. A hoax call falsely claiming that a bomb was to explode can constitute the offence of public nuisance: R v Madden [1975] 1 WLR 1379.

[37.150] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.6790]ff.

38 [38.10]

Family violence (contravene intervention order)

Contrary to: Family Violence Protection Act 2008 s 123(2)

Section 123(2) provides:

123

Contravention of family violence intervention order

(1) This section applies if a person against whom a family violence intervention order has been made— (a) has been served with a copy of the order; or (b) has had an explanation of the order given to the person in accordance with section 57 or 96. (2) The person must not contravene the order. (2A) It is immaterial that some or all of the course of conduct constituting an offence against subsection (2) occurred outside Victoria, so long as the protected person was in Victoria at the time at which that conduct occurred. (2B) It is immaterial that the protected person was outside Victoria at the time at which some or all of the course of conduct constituting an offence against subsection (2) occurred, so long as that conduct occurred in Victoria. (3) In a proceeding for an offence against subsection (2) constituted by contravening a family violence intervention order, it is a defence to the charge for the accused to prove that— (a) the accused was the respondent under the family violence intervention order; and (b) a family violence safety notice in relation to the same protected person and respondent was also in force at the time the offence was alleged to have been committed; and (c) the accused’s conduct was not in contravention of the family violence safety notice. [38.20] Statutory reference 08/52.123.2

[38.30] Statement of charge Contravene family violence intervention order.

134

[38.40]

Offences

Wording of charge

The accused at [place] on [date] contravened a family violence intervention order by [describe nature of contravention] after (she/he) was served with that order and was given an explanation of the order in accordance with s (57/96) of the Family Violence Protection Act 2008.

[38.50]

Penalty

2 years’ jail or 240 penalty units

[38.60]

Matters to be proved

1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused was served a family violence order. The accused was given an explanation of the order in accordance with Family Violence Protection Act 2008 s 57 or s 96. 5. The accused contravened the order.

[38.70]

Other possible charges: Crimes Act 1958

Injury (intentionally causing serious): s 16. Injury (intentionally or recklessly causing): s 17. Threat to inflict serious injury: s 21. Threat to kill: s 20. Stalking: s 21A. Threat to damage property: s 198.

[38.80]

Other possible charges: Family Violence Protection Act 2008

Contravene safety notice: s 37(2). Contravene safety notice intending to cause harm or fear for safety: s 37A(2) (indictable offence). Contravene family violence protection order intending to cause harm or fear for safety: s 123A(2) (indictable offence). Persistently contravene notice or order: s 125A(1).

[38.90]

Other possible charges: Summary Offences Act 1966

Riotous behaviour in public place: s 17(1)(d). Disorderly behaviour in public place: s 17A. Unlawful assault: s 23. Aggravated assault: s 24.

[38.100] Service Family Violence Protection Act 2008 s 201 requires service by the court on a respondent of a family violence intervention order following its issue. Magistrates’ Court (Family Violence Protection) Rules 2008 r 5.01 permits a court to serve notices or other documents, but not orders, by post, fax or email.

Ch 38 Family violence (contravene intervention order)

135

In practice, personal service is often made at a courthouse by court staff if the respondent is present and agrees to accept service. This would seem to either be an implied exception to the privilege against civil service at court discussed at [39.100], or more likely, an implied waiver of that privilege by the respondent.

[38.110] Explanation of notice The requirements for and contents of explanations about interim family violence intervention orders are specified in Family Violence Protection Act 2008 s 57. That explanation must be provided in writing, except if the registrar is satisfied a magistrate gave a clear oral explanation. The form of the explanation is prescribed in Family Violence Protection Regulations 2008 reg 9 and Sch 2. Family Violence Protection Act s 96 provides that if a respondent is before the court when a final order is made, the court must explain the order, and give a written notice explaining the order. The form of the explanation is prescribed in Family Violence Protection Regulations reg 10A and Sch 2A. Family Violence Protection Act s 57(4) provides that a failure by a registrar to explain an interim order does not invalidate that order. Section 96(4) provides that a failure by the court to explain a final order or give a written notice does not affect the validity of the order. As a result, an unexplained order would validly allow police to arrest and detain a person under s 124 for allegedly contravening the order, but the absence of explanation would be fatal to a criminal prosecution contrary to s 123 or s 123A for that alleged contravention. That is, the notice would provide protection for the protected person, but not allow for a successful criminal prosecution. In that circumstance it could also be open to the accused to assert their alleged contravention was not a knowing contravention. The difference, though, is between the failure of the prosecution to prove an element of the offence beyond reasonable doubt, and the accused adducing evidence to persuade the court of their lack of guilt. As with safety notices, there is no provision in the legislation for proof of an explanation by certificate or similar, so oral evidence might be required if a challenge is made to this. The abrogation of rules of evidence in s 65 applies only to proceedings for applications for intervention orders, and so does not dispense with the rules of evidence for a criminal prosecution. See also [39.110].

[38.120]

Location of offending

See [39.120].

[38.130]

Mens rea

See [39.130].

[38.140]

Protected person not punishable as abettor

See [39.140].

[38.150]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [FVPA.123.20]ff.

39 [39.10]

Family violence (contravene safety notice)

Contrary to: Family Violence Protection Act 2008 s 37(2)

Section 37(2) provides:

37

Contravention of family violence safety notice (1) This section applies if a person— (a) has been served with a family violence safety notice; and (b) has had an explanation of the notice given to the person in accordance with section 35. (2) The person must not contravene the notice.

(2A) It is immaterial that some or all of the course of conduct constituting an offence against subsection (2) occurred outside Victoria, so long as the protected person was in Victoria at the time at which that conduct occurred. (2B) It is immaterial that the protected person was outside Victoria at the time at which some or all of the course of conduct constituting an offence against subsection (2) occurred, so long as that conduct occurred in Victoria. (3) In a proceeding for an offence against subsection (2) constituted by contravening a family violence safety notice, it is a defence to the charge for the accused person to prove that— (a) the accused person was the respondent under the family violence safety notice; and (b) a family violence intervention order in relation to the same protected person and respondent was also in force at the time the offence was alleged to have been committed; and (c) the accused person’s conduct was not in contravention of the family violence intervention order. [39.20] Statutory reference 08/52.37.2

[39.30] Statement of charge Contravene family violence safety notice.

Ch 39

[39.40]

Family violence (contravene safety notice)

137

Wording of charge

The accused at [place] on [date] contravened a family violence safety notice by [describe nature of contravention] after (she/he) was served with that notice and was given an explanation of the notice in accordance with s 35 of the Family Violence Protection Act 2008.

[39.50]

Penalty

2 years’ jail or 240 penalty units

[39.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was served a family violence safety notice. 4. The accused was given an explanation of the notice in accordance with Family Violence Protection Act 2008 s 35. 5. The accused contravened the notice.

[39.70]

Other possible charges: Crimes Act 1958

Injury (intentionally causing serious): s 16. Injury (intentionally or recklessly causing): s 17. Threat to inflict serious injury: s 21. Threat to kill: s 20. Stalking: s 21A. Threat to damage property: s 198.

[39.80]

Other possible charges: Family Violence Protection Act 2008

Contravene safety notice intending to cause harm or fear for safety: s 37A(2) (indictable offence). Contravene family violence protection order: s 123(2). Contravene family violence protection order intending to cause harm or fear for safety: s 123A(2) (indictable offence). Persistently contravene notice or order: s 125A(1).

[39.90]

Other possible charges: Summary Offences Act 1966

Riotous behaviour in public place: s 17(1)(d). Disorderly behaviour in public place: s 17A. Unlawful assault: s 23. Aggravated assault: s 24.

[39.100] Service Family Violence Protection Act 2008 s 34 requires service upon a respondent of a family violence safety notice following its issue.

138

Offences

The manner of service is specified in s 202. Personal service is required, and for safety notices, substituted service is not permitted. Safety notices are taken to be an application for an intervention order: s 31. The notice is valid from: (a) the moment of service until a court adjourns or refuses the application for an intervention order; (b) or if an intervention order is made on the first mention date, when that order is served. Personal service is effective when process is proffered to a person and they refuse to accept it, so long as they are aware of its nature: Ainsworth v Redd (1990) 19 NSWLR 78; Re Perkins; Ex parte Westpac Banking Corp [1999] FCA 986; cf Guss v Magistrates’ Court [2003] VSC 365. Applications under the Family Violence Protection Act are civil applications: L v L [2016] VSC 182 at [46]–[47]. See also ss 57(1)(d) and 98(1)(e). Curiously, though there is little dispute such proceedings are considered civil proceedings, the Act does not expressly state this and nor did its predecessor: see further Stephens v Melis (2002) 131 A Crim R 377; Fisher v Fisher [1988] VR 1028. For this reason, the privilege at common law against service for civil process when attending or returning from court applies to service of safety notices: Re Freston (1883) 11 QBD 545; La Trobe University v Robinson [1972] VR 883 at 899; Re O’Sullivan (1995) 57 FCR 145; Director-General for Planning & Infrastructure v Nealon (2003) 39 MVR 255. In practice, this is rarely if ever a concern where family violence is alleged to have occurred, as safety notices are ordinarily issued and served at places other than a courthouse. Evidence proving service may be given orally, or by a certificate of service in accordance with Family Violence Protection Act ss 153, 203 and 206, and Magistrates’ Court (Family Violence Protection) Rules 2008 r 5.02.

[39.110] Explanation of notice The requirements for and contents of explanations about safety notices are specified in Family Violence Protection Act 2008 s 35. There is no provision in the legislation for proof of an explanation by certificate or similar, so oral evidence is ordinarily required. The abrogation of rules of evidence in s 65 applies only to proceedings for applications for intervention orders, and so does not dispense with the rules of evidence for a criminal prosecution of contravening a current order. Section 35(4) provides that a failure by a police officer to explain a safety notice does not invalidate that notice. The apparent resulting conflict between s 35(4) and s 37(1)(b) is probably resolved by concluding that an unexplained notice would validly allow police to arrest and detain a person under s 38 for allegedly contravening the notice, but would be fatal to a criminal prosecution contrary to s 37 or s 37A for that alleged contravention. That is, the notice would provide protection for the protected person, but not allow for a successful criminal prosecution.

[39.120]

Location of offending

Family Violence Protection Act 2008 s 37(2A) and (2B) apply the terminatory and initiatory theory of criminal offending, respectively, where jurisdiction is determined by where the effect of the offence is felt, and where the actus reus or mens rea of the

Ch 39

Family violence (contravene safety notice)

139

offence is performed or formed: Lipohar v The Queen (1999) 200 CLR 485; R v Berry [1985] 1 AC 246; Ward v The Queen (1980) 142 CLR 308. See also: David Lanham, Cross Border Criminal Law (Pearson Professional, 1997). This legislative resolution of questions about geographical jurisdiction arose with respect to stalking in Crimes Act 1958 s 21A and DPP v Sutcliffe [2001] VSC 43, and was later applied to stalking-type conduct in family violence cases. As a result, the charged location of offending for contravening a safety notice (and also interim and final intervention orders) is a mere particular and not an essential element of the charge: Gigante v Hickson (2001) 3 VR 296.

[39.130]

Mens rea

The criminal law presumes that mens rea is an element of a criminal offence: Cameron v Holt (1980) 142 CLR 342 at 346, 348; He Kaw Teh v The Queen (1985) 157 CLR 523 at 528–531. Combined with the heavy emphasis in the legislation on bringing the purpose, terms, effect, duration, consequences and penalties to the attention of the respondent and the significant penalties that can be imposed, it is certain that contravention offences in the Family Violence Protection Act 2008 contain elements of knowledge and intention. Note, however, in Police v Beukes (2011) 205 A Crim R 406 at 408–409 the South Australian Supreme Court held that the offence of contravening a domestic violence restraining order contrary to Domestic Violence Act 1991 (SA) was one of strict liability.

[39.140]

Protected person not punishable as abettor

Family Violence Protection Act 2008 s 125 provides that a person protected by a family violence safety notice, interim order or final order is not punishable as a principal offender because they encourage, permit or authorise conduct by a respondent that contravenes a notice or order. This overcomes the effect of the decision in Keane v Police (1997) 69 SASR 481.

[39.150]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [FVPA.37.20]ff.

40 [40.10]

Fire (causing in country area in extreme conditions of weather)

Contrary to: Country Fire Authority Act 1958 s 39A

Section 39A provides:

39A Causing fire in country area in extreme conditions of weather etc. an offence In addition to and without in any way limiting the generality of any of the provisions of this Division any person who on any land in the country area of Victoria lights a fire in such circumstances of location, atmospheric temperature, wind velocity and flammable vegetation or other combustible substance that it causes or is likely to cause a fire that is a danger to the life or property of others shall be guilty of an offence and liable to imprisonment for a term of not less than three months and not more than two years. [40.20] Statutory reference 6228.39A

[40.30]

Statement of charge

Causing fire in country area in extreme conditions.

[40.40]

Wording of charge

The accused at [place] on [date] lit a fire in such circumstances of location, atmospheric temperature, wind velocity and flammable vegetation or other combustible substance that it caused or was likely to cause a fire that was a danger to the life or property of others.

[40.50]

Penalty

3 months’ to 2 years’ jail

[40.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused lit a fire. 4. The fire caused or was likely to cause a danger to the life or property of others. 5. The danger was because of the location, atmospheric temperature, wind velocity and flammable vegetation or other combustible substance.

Ch 40 Fire (causing in country area in extreme conditions of weather)

[40.70]

141

Other possible charges: Country Fire Authority Act 1958

Owner, occupier or person in charge of land in country area of Victoria during a fire danger period fail to take all reasonable steps to extinguish fire: s 34(1)(a). Owner, occupier or person in charge of land in country area of Victoria during a fire danger period fail to inform brigade or police of fire: s 34(1)(b). Owner, occupier or person in charge of land in country area of Victoria during a fire danger period fail to continue to take all reasonable steps to extinguish fire: s 34(2). Light a fire in the open air in country area of Victoria during fire danger period without authorisation: s 37. Disobey direction of Chief Officer to not light fire: s 37A. Leave a fire lit in the open air in the country area of Victoria during fire period unattended: s 39(a). Throw or drop in the open air in the country area of Victoria during fire period any lit tobacco, cigarette, cigar, match or other burning material: s 39(b). Person who finds unattended fire in the country area of Victoria during fire period fail to inform brigade or police: s 39(d). Causing fire in a country area with intent to cause damage: s 39C (indictable offence). Engage in high risk fire activity in open air in country area of Victoria during fire danger period: s 39E. Light a fire in the open air etc when declaration of total fire ban applies: s 40(4). Fail to comply with fire prevention notice: s 41D. Disobey direction of authorised officer to extinguish fire: s 48(2).

[40.80]

Other possible charges: Summary Offences Act 1966

Lighting fires in the open air: s 11.

[40.90]

Defences

Country Fire Authority Act 1958 s 39B provides that it is a defence if the accused proves that he or she took all precautions required by that or any other Act and the regulations about lighting a fire and did everything in his or her power that was reasonable in the circumstances to suppress or extinguish the fire and: (a) the danger was caused by the intervention or subsequent action of any person or persons acting without his or her knowledge or consent or contrary to his or her wishes or instructions; or (b) the fire was lit at a time when the circumstances of atmospheric temperature and wind velocity referred to in s 39B were not present and could not reasonably have been foreseen; or (c) he or she is or was at the time of the alleged offence the owner or occupier of the land upon which the fire was lit or was acting under the direction of that owner or occupier. The accused has the evidential burden of raising those defences: see [4.30].

41 [41.10]

Fire (light in the open air on total fire ban day)

Contrary to: Country Fire Authority Act 1958 s 40(4)(a)

Section 40(4)(a) provides:

40

Provisions about total fire bans

(1) The Authority may when it thinks fit declare a day or partial day of total fire ban in respect of the whole or any part or parts of Victoria and may at any time amend or revoke such a declaration. (2) The Authority shall cause to be broadcast from a broadcasting station in Victoria any declaration made under subsection (1) and any amendment to or revocation of any such declaration. (2A) The Authority may transmit by electronic means a declaration or any amendment or revocation of a declaration to a broadcasting station for broadcasting under subsection (2). (3) The Chief Executive Officer of the Authority may authorize in writing the Chief Officer or an officer exercising the powers of the Chief Officer (either generally or in a particular instance) to cause any broadcast referred to in subsection (2) and may withdraw any such authority by notice in writing. (4) Notwithstanding the provisions contained in section 38 or 38A, a person in a part of Victoria where and at a time when a declaration of total fire ban applies— (a) shall not light a fire in the open air or allow a fire in the open air to remain alight; or (b) use or leave in operation any producer-gas equipment on or in connexion with any vehicle. (4A) [Repealed] (4B) [Repealed] (4C) Subsection (4) does not apply to a person who, in a fixed appliance, lights a fire or allows a fire to remain alight for the sole purpose of meal preparation, where— (a) the area within a distance of three metres from the outer perimeters of the appliance is clear of flammable material; (b) there is at hand and available for immediate use—

Ch 41

(c)

Fire (light in the open air on total fire ban day)

143

(i) a hose connected to a reticulated water supply; or (ii) a vessel containing at least ten litres of water; and at all times when the fire in the appliance is alight the appliance is attended by an adult who has the capacity and the means to extinguish the fire.

(4D) For the purposes of subsection (4C)— fixed appliance means— (a) a properly constructed and permanently fixed structure of stone, metal, concrete or any other non-flammable material designed exclusively for meal preparation and fired by gas or electricity; or (b) an appliance that is designed and commercially manufactured exclusively for meal preparation and that— (i) uses only gas or electricity; and (ii) when alight is placed in a stable position. (4E) Subsection (4) does not apply to a person who— (a) is engaged in a business of preparing meals for other persons; and (b) lights a fire or allows a fire to remain alight— (i) for the sole purpose of meal preparation in the course of the person’s business; and (ii) in accordance with a permit granted by a person, and in the circumstances, referred to in paragraph (a), (b), (c) or (d) of subsection (5). (4F) For the purposes of subsection (4E), person includes a community organisation, a charitable organisation or an organisation involved in fund raising. Example A school or sporting group involved in fund raising.

(5) Subsection (4) does not apply to a person who, in a part of Victoria where and at a time when a declaration of total fire ban applies, lights a fire in the open air or allows a fire in the open air to remain alight for a purpose specified in subsection (5A) for which a fire is necessary in accordance with a permit granted— (a) where the fire is to be lighted or allowed to remain alight in the metropolitan district, by the Chief Officer of the Metropolitan Fire and Emergency Services or by any other officer whom he may authorize in writing; (b) where the fire is to be lighted or allowed to remain alight in the country area of Victoria (other than on lands within a fire protected area) by the Chief Officer of the Authority;

144

Offences

(c)

where the fire is to be lighted or allowed to remain alight in a fire protected area, by the person for the time being holding the office of or acting as the Chief Fire Officer in the Department; or (d) by the Minister under subsection (8). (5A) For the purposes of subsection (5), the following purposes are specified— (a) the purpose of carrying on the work of— (i) a community organisation; or (ii) a charitable organisation; or (iii) an organisation involved in fund raising; or (iv) a statutory corporation; or (v) a municipal council; or (vi) an industrial operation or trade; (b) the purpose of public entertainment; (c) religious or cultural purposes. (6) A permit granted under subsection (4E) or (5)— (a) shall be in writing; (b) shall be subject to any prescribed conditions, and to any other conditions specified in the permit by the person granting the permit; and (c) may be limited to the day in respect of which a total fire ban has been declared, or may be granted for that day and any specified subsequent days or generally for any specified period. (7) A person who may grant a permit under subsection (4E) or (5)— (a) may in any particular case authorize another person to sign and issue a permit on his behalf; and (b) may at any time revoke a permit. (8) A person who has been refused a permit under subsection (4E) or (5)(a), (b) or (c) or who has been granted such a permit subject to conditions to which he objects or whose permit has been revoked under subsection (7) may apply to the Minister for a permit and the Minister may grant a permit subject to such conditions as he thinks fit or may refuse to grant a permit, and may at any time revoke any permit granted by him. (9) A person who has been granted a permit under subsection (4E), (5) or (8) must not, in a part of Victoria where and at a time when a declaration of total fire ban applies, light a fire in the open air or allow a fire in the open air to remain alight without complying with every condition to which the relevant permit is subject. (10) Nothing in this section shall prevent a fire being lit or being allowed to remain alight—

Ch 41

Fire (light in the open air on total fire ban day)

145

(a)

by any brigade or statutory corporation having responsibility for the prevention or suppression of fire where the fire is lit for that purpose; (b) [Repealed] (c) in any apparatus approved by the Chief Officer being used for the drying of fruit, grain or other primary produce in accordance with the terms and subject to the conditions of its approval. (11) [Repealed] (12) The Chief Officer may by declaration in writing declare subject to such terms and conditions as he thinks fit any apparatus to be approved apparatus for the purposes of subsection (10)(c) and revoke or vary any approval so given. (13) In any proceedings for an offence against this section a certificate purporting to be signed by the Chief Executive Officer to the effect that a declaration of a day or partial day of total fire ban in the whole or any part or parts of Victoria was pursuant to this section broadcast from a broadcasting station in Victoria in respect of any specified day shall be prima facie evidence of the facts set out in the certificate. (14) In any proceedings for an offence against this section, where the declaration under subsection (1) was made in respect of part of a day and first broadcast on that day, it is sufficient defence for the accused to prove that at the time of the commission of the offence he did not know and could not reasonably have known of the declaration of total fire ban, and that having regard to all the circumstances he had taken all necessary precautions to prevent the spread of the fire. (15) In any proceedings for an offence against this section, it is sufficient for the purposes of subsection (13), if a certificate purporting to be signed by the Chief Executive Officer is given to which is attached a copy of the declaration, or any amendment of the declaration, made by the Authority and transmitted under subsection (2A) to a broadcasting station for broadcasting. [41.20] Statutory reference 6228.40.4.A

[41.30]

Statement of charge

Light fire in the open air on total fire ban day.

[41.40]

Wording of charge

The accused at [place] on [date] (lit a fire in the open air/allowed a fire in the open air to remain alight).

[41.50]

Penalty

240 penalty units or 2 years’ jail, or both

146

[41.60]

Offences

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused lit a fire in the open air, or allowed a fire in the open air to remain alight. 4. A declaration of total fire ban applied at the time.

[41.70]

Other possible charges: Country Fire Authority Act 1958

Owner, occupier or person in charge of land in country area of Victoria during a fire danger period fail to take all reasonable steps to extinguish fire: s 34(1)(a). Owner, occupier or person in charge of land in country area of Victoria during a fire danger period fail to inform brigade or police of fire: s 34(1)(b). Owner, occupier or person in charge of land in country area of Victoria during a fire danger period fail to continue to take all reasonable steps to extinguish fire: s 34(2). Light a fire in the open air in country area of Victoria during fire danger period without authorisation: s 37. Disobey direction of Chief Officer to not light fire: s 37A. Leave a fire lit in the open air in the country area of Victoria during fire period unattended: s 39(a). Throw or drop in the open air in the country area of Victoria during fire period any lit tobacco, cigarette, cigar, match or other burning material: s 39(b). Person who finds unattended fire in the country area of Victoria during fire period fail to inform brigade or police: s 39(d). Causing fire in country area in extreme conditions: s 39A. Causing fire in a country area with intent to cause damage: s 39C (indictable offence). Engage in high risk fire activity in open air in country area of Victoria during fire danger period: s 39E. Fail to comply with fire prevention notice: s 41D. Disobey direction of authorised officer to extinguish fire: s 48(2).

[41.80]

Other possible charges: Summary Offences Act 1966

Lighting fires in the open air: s 11.

[41.90]

Open air

Open air is defined in Country Fire Authority Act 1958 s 34A to mean in any place other than within a permanent structure. A permanent structure is defined in the same section to mean a structure of a permanent kind consisting of a roof and that is fully enclosed on all sides, and includes a caravan but not a tent.

[41.100] Total fire ban A total fire ban is declared by the Country Fire Authority for a day or partial day in accordance with Country Fire Authority Act 1958 s 40(1).

Ch 41 Fire (light in the open air on total fire ban day)

147

A total fire ban may be proved by a certificate purporting to be signed by the CEO: s 40(13) and (15). Additionally, s 106 provides that all orders etc purporting to be issued by the Authority are admissible and that courts shall take judicial notice of them.

[41.110] Defences Country Fire Authority Act 1958 s 40 establishes numerous defences to an offence contrary to s 40(4). The accused has the evidential burden of raising those defences: see [4.30].

Meal preparation Country Fire Authority Act 1958 s 40(4C) provides no offence is committed if an open-air fire is for the sole purpose of meal preparation and 3 metres around the fire is clear of combustible material, there is a reticulated water supply or 10 litres of water on hand and immediately available, and a capable adult supervises the fire at all times. Section 40(4E) provides no offence is committed by a person in the business of preparing meals and who lights a fire for meal preparation in accordance with a permit issued, and also for a purpose of carrying on the work of a community organisation, charity or fundraising organisation; statutory corporation; municipal council; industrial operation or trade; public entertainment; or religious or cultural purposes.

Firefighting Country Fire Authority Act 1958 s 40(10) provides nothing prevents a fire being lit by a brigade or statutory corporation having responsibility for preventing or suppressing fire when the fire is lit for that purpose.

Primary production Country Fire Authority Act 1958 s 40(10) also provides nothing prevents a fire being lit in an apparatus approved by the Chief Officer for drying fruit, grain or other primary produce in accordance with terms and subject to the conditions of its approval.

Lack of knowledge Country Fire Authority Act 1958 s 40(14) provides it is a defence to prove that at the time of the offence the accused: (a) did not know of the total fire ban; and (b) could not reasonably have known of the total fire ban; and (c) having regard to all the circumstances, took all necessary precautions to prevent the spread of the fire.

42 [42.10]

Firearm (carry or use in a town or populous place)

Contrary to: Firearms Act 1996 s 130

Section 130 provides:

130

Offence to carry or use a firearm in certain places

(1) A person must not carry a loaded firearm or use a firearm in a town or populous place or on any thoroughfare or place open to or used by the public for passage with vehicles. (2) Subsection (1) does not apply to— (a) any police officer or a protective services officer when acting in the course of his or her official duties when so authorised by the Chief Commissioner; or (ab) any senior IBAC Officer when carrying out the purposes for which firearms may be possessed, carried and used, and as authorised under Part 5 of the Independent Broad-based Anti-corruption Commission Act 2011; or (b) any member of a police force or police service of the Commonwealth or of another State or a Territory when carrying or using a firearm issued to him or her for the performance of a detailed duty; or (c) any person who holds a licence under this Act, issued for the reason of security guard or prison guard when carrying or using a firearm which the guard is authorised to carry or use under the licence and when acting in the course of his or her duties as a security guard or prison guard; or (d) any person who holds a licence under this Act, when carrying or using a firearm which the person is authorised to carry or use under the licence and who is acting in the course of his or her duties under any relevant law within the meaning of the Conservation, Forests and Lands Act 1987 or under the Livestock Disease Control Act 1994 or the Prevention of Cruelty to Animals Act 1986. (3) Subsection (1) does not apply to a person who carries or uses a firearm with the written permission of the Chief Commissioner. (4) The Chief Commissioner must not give permission subsection (3) unless the Chief Commissioner is satisfied that—

under

Ch 42

Firearm (carry or use in a town or populous place)

149

(a)

the carriage or use of the firearm is consistent with the reason for which the licence was issued; or (b) there is a significant public benefit to be obtained from the carriage or use of the firearm; or (c) the carriage or use of the firearm is for the purposes of public safety. (5) The Chief Commissioner may impose conditions on a permit under subsection (3). (6) A permit under subsection (3) continues in force for the period specified in the permit. [42.20] Statutory reference 96/66.130.1

[42.30]

Statement of charge

Carry or use firearm in town or populous place.

[42.40]

Wording of charge

The accused on [date] at [place] (carried a loaded/used a) firearm (in a town/in a populous place/on any thoroughfare or place open to or used by the public for passage with vehicles).

[42.50]

Penalty

60 penalty units or 12 months’ jail

[42.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused carried a loaded firearm or used a firearm. 4. The accused was: (a) in a town; or (b) in a populous place; or (c) on any thoroughfare or place open to or used by the public for passage with vehicles.

[42.70]

Other possible charges: Firearms Act 1996

Prohibited person possess etc firearm: s 5. Non-prohibited person possess etc firearm without a licence: s 6. Carry or use firearm or cartridge ammunition in insecure or dangerous manner: s 126.

[42.80]

Firearm

See [47.130].

150

[42.90]

Offences

Loaded

There is no statutory definition of “loaded”. It is unclear if the offence includes a firearm that has cartridge ammunition fitted in a magazine, or only to a firearm that has cartridge ammunition in the breech or chamber. Presumably it is the latter, given category A and B longarms do not have magazines or other storage for cartridge ammunition.

[42.100] Exceptions The Chief Commissioner authorises, and indeed requires, general operational police to carry firearms subject to successful completion of prescribed training: Victoria Police Manual – Policy Rules – Operational Safety and Equipment. It is, however, not routine for off-duty police officers to be authorised to carry firearms. The accused bears an evidential burden of establishing she or he comes within one of these exceptions: see [4.30].

43 [43.10]

Firearm (carry or use under influence of intoxicating liquor or drug)

Contrary to: Firearms Act 1996 s 132(1)

Section 132(1) provides:

132

Offences about the carriage and the use of firearms

(1) A person must not carry or use a firearm if that person is under the influence of intoxicating liquor or a drug. (2) A person must not, for the purpose of committing an indictable offence, carry a firearm which is concealed from view. [43.20] Statutory reference 96/66.132.1

[43.30]

Statement of charge

Carry/use firearm under influence of intoxicating liquor or drug.

[43.40]

Wording of charge

The accused on [date] at [place] (carried/used) a firearm while under the influence of (intoxicating liquor/a drug).

[43.50]

Penalty

120 penalty units or 2 years’ jail

[43.60] 1. 2. 3. 4.

The The The The

[43.70]

Matters to be proved offence occurred at the place and time alleged. offender was the accused. accused carried or used a firearm. accused did so while under the influence of intoxicating liquor or a drug. Other possible charges: Firearms Act 1996

Use a firearm in a dangerous manner: s 129. Carry or use a firearm in a town or populous place: s 130. Possess, carry or use a firearm on private property without consent: s 131.

[43.80]

Firearm

See [47.130].

152

[43.90]

Offences

Intoxicating liquor or drug

Firearms Act 1996 has no statutory definition of intoxicating liquor, so it will take its common meaning. Nor is there any definition of under the influence. It may be that cases considering that phrase for the purpose of the Road Safety Act 1986 are relevant: R v Burnside [1962] VR 96; Doyle v Harvey [1923] VLR 271. Firearms Act s 3(1) (definition of “longarm”) defines drug to have the same meaning as in the Road Safety Act 1986. Section 3(1) of that Act defines drug to mean: a substance that is a drug for the purposes of this Act by virtue of a declaration under subsection (3) or any other substance (other than alcohol) which, when consumed or used by a person, deprives that person (temporarily or permanently) of any of his or her normal mental or physical faculties.

44 [44.10]

Firearm (contravene licence conditions)

Contrary to: Firearms Act 1996 s 36(1), (3A) and (4)

Section 36(1), (3A) and (4) provide:

36

Offence not to comply with licence conditions

(1) A person who is the holder of a longarm licence for category A or B longarms must comply with any conditions to which the licence is subject. (2) A person who is the holder of a longarm licence for category C or D longarms or a handgun licence for general category handguns must comply with any conditions to which the licence is subject. (3) A person who is the holder of a longarm licence for category E longarms or a handgun licence for category E handguns must comply with any conditions to which the licence is subject. (3A) A person who is the holder of a paintball marker licence must comply with any conditions to which the licence is subject. (4) A person who is the holder of a junior licence, a firearms collectors licence, a firearms heirlooms licence or a firearms ammunition collectors licence must comply with any conditions to which the licence is subject. [44.20] Statutory reference 96.66.36.1 96.66.36.3A 96.66.36.4

[44.30]

Statement of charge

Holder of longarm category A licence contravene licence condition. Holder of longarm category B licence contravene licence condition. Holder of paintball marker licence contravene licence condition. Holder of junior licence contravene licence condition.

[44.40]

Wording of charge

The accused on [date] at [place] held a (category A longarm/category B longarm) licence and contravened a condition of that licence applied by Firearms Act 1996 (s 14(1)(a) and Sch 1 item (1/2/3))/(s 14(1)(b) and Sch 2 item 1)/(s 14(1)(c) and imposed by the Chief Commissioner) that [specify licence condition contravened].

154

Offences

The accused on [date] at [place] held a paintball marker licence and contravened a condition of that licence applied by Firearms Act 1996 (s 14(5)(a) and Sch 1 item (1/2/3))/(s 14(5)(b) and imposed by the Chief Commissioner) that [specify licence condition contravened]. The accused on [date] at [place] held a junior licence and contravened a condition of that licence applied by Firearms Act 1996 (s 19(1)(a) and Sch 1 item (2/3))/(s 19(1)(b) and Sch 2 item 4)/(s 19(1)(c) and imposed by the Chief Commissioner) that [specify licence condition contravened].

[44.50]

Penalty

60 penalty units or 12 months’ jail

[44.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused held a category A or B longarm licence, paintball marker licence or junior licence. 4. The accused contravened a condition to which that licence was subject.

[44.70]

Other possible charges: Firearms Act 1996

Non-prohibited person possess, carry or use category A or B longarm or paintball marker: s 6(1), (2), (5A). Non-prohibited person possess, carry or use unregistered category A–E longarms or unregistered paintball marker: s 6A(1)–(4). (Indictable offences.)

[44.80]

Licence

Longarm licence means a licence issued under Firearms Act 1996 s 9: s 3(1) (definition of “longarm licence”). Junior licence means a licence issued under Firearms Act 1996 s 18: s 3(1) (definition of “junior licence”). See [47.160] for Category A longarms, [47.170] for category B longarms, and [47.180] for paintball marker.

[44.90]

Licence conditions

See commentary at [47.190].

45 [45.10]

Firearm (damage property with)

Contrary to: Firearms Act 1996 s 128

Section 128 provides:

128 Offence to damage property with a firearm A person must not injure or damage property with a firearm. [45.20]

Statutory reference

96/66.128

[45.30]

Statement of charge

Damage property with firearm.

[45.40]

Wording of charge

The accused on [date] at [place] (injured/damaged) property with a firearm.

[45.50] Penalty 120 penalty units or 2 years’ jail

[45.60] Matters to be proved 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused injured or damaged property with a firearm.

[45.70] Other possible charges: Firearms Act 1996 Use a firearm in a dangerous manner: s 129. Carry or use a firearm in a town or populous place: s 130. Possess, carry or use a firearm on private property without consent: s 131. Carry or use firearm under influence of intoxicating liquor or drug: s 132.

[45.80]

Injury or damage

Reference to injury clearly contemplates property such as livestock or pets: see also McDonald v Carter [1905] VLR 181. There is no statutory definition of damage provided in the Firearms Act 1996. Presumably it has a similar meaning to other forms of damage proscribed by the criminal law: see also [95.90]. Although the offence section refers to damage with a firearm, the subject matter of the legislation suggests this should not be read pedantically, and that damage from the discharge of a firearm is the true focus of the provision.

156

[45.90]

Offences

Firearm

See [47.130].

46 [46.10]

Firearm (incorrectly store longarm, or cartridge ammunition)

Contrary to: Firearms Act 1996 s 121(1)–(3A)

Section 121(1)–(3A) provide:

121

Storage of firearms under longarm and handgun licences

(1) A person who possesses a firearm under a longarm licence for a category A or B longarm must store that firearm, when the firearm is not being carried or used— (a) in the manner provided for in item 1 of Schedule 4; or (b) in any other manner which the Chief Commissioner is satisfied is as secure as the manner provided for in that item. (1A) A person who possesses cartridge ammunition under a longarm licence for a category A or B longarm must store that cartridge ammunition, when the cartridge ammunition is not being carried or used— (a) in the manner provided for in item 1 of Schedule 4; or (b) in any other manner which the Chief Commissioner is satisfied is as secure as the manner provided for in that item. (2) A person who possesses a firearm under a handgun licence for a general category handgun or a longarm licence for a category C or D longarm must store that firearm, when the firearm is not being carried or used— (a) in the manner provided for in item 2 of Schedule 4; or (b) in any other manner which the Chief Commissioner is satisfied is as secure as the manner provided for in that item. (2A) A person who possesses cartridge ammunition under a handgun licence for a general category handgun or a longarm licence for a category C or D longarm must store that cartridge ammunition, when the cartridge ammunition is not being carried or used— (a) in the manner provided for in item 2 of Schedule 4; or (b) in any other manner which the Chief Commissioner is satisfied is as secure as the manner provided for in that item. (3) A person who possesses a firearm under a handgun licence for a category E handgun or under a longarm licence for a category E longarm must store that firearm, when the firearm is not being carried or used, in the manner provided for by the Chief Commissioner in the licence.

158

Offences

(3A) A person who possesses cartridge ammunition under a handgun licence for a category E handgun or under a longarm licence for a category E longarm must store that cartridge ammunition, when the cartridge ammunition is not being carried or used in the manner provided for by the Chief Commissioner in the licence. [46.20] Statutory reference 96.66.121.1 96.66.121.1A 96.66.121.2 96.66.121.2A

[46.30]

Statement of charge

Incorrectly store category A or B longarm. Incorrectly store cartridge ammunition for category A or B longarm. Incorrectly store category C or D longarm. Incorrectly store cartridge ammunition for category C or D longarm.

[46.40]

Wording of charge

Section 121(1) The accused on [date] at [place] possessed a firearm under a (category A longarm/category B longarm) licence and when that firearm was not being carried or used, did not store it in (any other manner which the Chief Commissioner was satisfied was a secure as) the manner provided for in Firearms Act 1996 Sch 4 item 1.

Section 121(1A) The accused on [date] at [place] possessed cartridge ammunition under a (category A longarm/category B longarm) licence and when that cartridge ammunition was not being carried or used, did not store it in (any other manner which the Chief Commissioner was satisfied was a secure as) the manner provided for in Firearms Act 1996 Sch 4 item 1.

Section 121(2) The accused on [date] at [place] possessed a firearm under a (category C longarm/category D longarm) licence and when that firearm was not being carried or used, did not store it in (any other manner which the Chief Commissioner was satisfied was a secure as) the manner provided for in Firearms Act 1996 Sch 4 item 2.

Section 121(2A) The accused on [date] at [place] possessed cartridge ammunition under a (category C longarm/category D longarm) licence and when that cartridge ammunition was not being carried or used, did not store it in (any other manner which the Chief Commissioner was satisfied was a secure as) the manner provided for in Firearms Act 1996 Sch 4 item 2.

Ch 46

[46.50]

Firearm (incorrectly store longarm, or cartridge ammunition)

159

Penalty

60 penalty units or 12 months’ jail: Firearms Act 1996 s 121(1), (1A) 120 penalty units or 2 years’ jail: Firearms Act 1996 s 121(2), (2A)

[46.60] Matters to be proved 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused possessed a firearm or cartridge ammunition under a category A, B, C or D longarm licence. 4. The accused did not store the firearm or cartridge ammunition in the manner provided for in Firearms Act 1996 Sch 4 item 1 or 2 or any other manner which the Chief Commissioner was satisfied was as secure as the manner provided for in the Schedule.

[46.70]

Other possible charges: Firearms Act 1996

Firearms collectors etc store firearms or cartridge ammunition incorrectly: s 122. Possess cartridge ammunition without licence or permit: s 124. Carry or use firearm or cartridge ammunition in insecure or dangerous manner: s 126. Unlicensed person store firearms in insecure manner: s 129A.

[46.80]

Possession

See [47.120].

[46.90]

Firearm

See [47.130].

[46.100] Category A longarm See [47.160].

[46.110] Category B longarm See [47.170].

[46.120] Category C longarm Firearms Act 1996 s 3(1) (definition of “category C longarm”) defines category C longarm to mean: (a) a semi-automatic rimfire rifle with a magazine capacity of no more than 10 rounds; (b) a semi-automatic shotgun with a magazine capacity of no more than 5 rounds; (c) a pump action shotgun with a magazine capacity of no more than 5 rounds; (d) a tranquilliser gun.

[46.130] Category D longarm Firearms Act 1996 s 3(1) (definition of “category D longarm”) defines category D longarm to mean: (a) a semi-automatic rimfire rifle with a magazine capacity of more than 10 rounds; (b) a semi-automatic shotgun with a magazine capacity of more than 5 rounds;

160

Offences

(c) a pump action shotgun with a magazine capacity of more than 5 rounds; (d) a semi-automatic centre fire rifle; (e) any other firearm prescribed for the purposes of this category; (f) any other firearm that is declared under section 3A(1) to be a category D longarm; (g) any other firearm that is declared under section 3B(1)(a) to be a category D longarm.

To date, there are no firearms prescribed under para (e) of this definition, or declared under para (g). The only declaration under para (f) was to declare the Verney-Carron Speedline Rifle as a category D longarm: Victoria, Gazette: General, No 19, 12 May 2016, p 949.

[46.140]

Schedule 4 storage requirements

The following storage requirements apply under Firearms Act 1996 Sch 4: 1

Longarm licences for category A and B longarms (1) The firearm must be stored in a receptacle— (a) which is constructed of hard wood or steel that is not easily penetrable; and (b) which, if it weighs less than 150 kilograms when it is empty, must be fixed to the frame of the floor or the wall of the premises where the firearm is kept in such a manner that it is not easily removable; and (c) which, when any firearm is stored in it, is locked with a lock of sturdy construction.

(2) If more than 15 firearms are stored on the premises where the firearm is stored, the premises must be fitted with an intruder alarm system— (a) the installation, maintenance and operation of which complies with Australian Standard 2201.1:2007 (as amended from time to time); and (b) which, in the event of an intrusion, activates an audible alarm warning device and an external visible alarm warning light. (3) Any cartridge ammunition for the firearm must be stored in a locked container separate from the receptacle in which the firearm must be stored. (4) Subject to section 121, a firearm that is possessed, carried or used by a holder of a handgun security guard licence who is employed as a security guard must be stored by the person who employs the holder of the licence as a security guard at premises belonging to, or occupied by, the employer. 2 Longarm licences for category C or category D longarms and handgun licences for general category handguns (1) The firearm must be stored in a steel safe— (a) which is of a thickness that is not easily penetrable; and (b) which, if it weighs less than 150 kilograms when it is empty, must be bolted to the structure of the premises where the firearm is authorised to be kept; and

Ch 46

(c)

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161

which, when any firearm is stored in it, is locked.

(2) If more than 15 firearms are stored on the premises where the firearm is stored, the premises must be fitted with an intruder alarm system— (a) the installation, maintenance and operation of which complies with Australian Standard 2201.1:2007 (as amended from time to time); and (b) which, in the event of an intrusion, activates an audible alarm warning device and an external visible alarm warning light. (2A) The key to the container in which the firearm is stored must— (a) be carried by the holder of the licence; or (b) be kept securely in a separate room from the container— when the container is not being accessed. (3) Any cartridge ammunition for the firearm must be stored in a locked container separate from the safe in which the firearm must be stored. (4) Subject to section 121, a firearm that is possessed, carried or used by a holder of a handgun security guard licence who is employed as a security guard must be stored by the person who employs the holder of the licence as a security guard at premises belonging to, or occupied by, the employer.

47 [47.10]

Firearm (non-prohibited person possessing etc)

Contrary to: Firearms Act 1996 s 6(1), (2), (5A)

Section 6(1) and (2) provide:

6 Offence for non-prohibited person to possess, carry or use a longarm without a licence (1) A non-prohibited person must not possess, carry or use a category A longarm that is registered unless that person does so under and in accordance with a licence issued under this Part. (2) A non-prohibited person must not possess, carry or use a category B longarm that is registered unless that person does so under and in accordance with a licence issued under this Part. (3) A non-prohibited person must not possess, carry or use a category C longarm that is registered unless that person does so under and in accordance with a licence issued under this Part. (4) A non-prohibited person must not possess, carry or use a category D longarm that is registered unless that person does so under and in accordance with a licence issued under this Part. (5) A non-prohibited person must not possess, carry or use a category E longarm that is registered unless that person does so under and in accordance with a licence issued under this Part. (5A) A non-prohibited person must not possess carry or use a paintball marker unless that person does so under and in accordance with a licence issued under this Part. (6) A non-prohibited person must not possess, carry or use a longarm that is not a category A, B, C, D or E longarm. [47.20] Statutory reference 96.66.6.1 96.66.6.2 96.66.6.5A

Ch 47

[47.30]

Firearm (non-prohibited person possessing etc)

163

Statement of charge

Non-prohibited person possess, carry or use category A longarm. Non-prohibited person possess, carry or use category B longarm. Non-prohibited person possess, carry or use paintball marker.

[47.40]

Wording of charge

Section 6(1) The accused, a non-prohibited person, on [date] at [place] (possessed/carried/used) a registered category A longarm not (under/in accordance with) a licence issued under Pt 2 of the Firearms Act 1996.

Section 6(2) The accused, a non-prohibited person, on [date] at [place] (possessed/carried/used) a registered category B longarm not (under/in accordance with) a licence issued under Pt 2 of the Firearms Act 1996.

Section 6(5A) The accused, a non-prohibited person, on [date] at [place] (possessed/carried/used) a registered paintball marker not (under/in accordance with) a licence issued under Pt 2 of the Firearms Act 1996.

[47.50]

Penalty

120 penalty units or 2 years’ jail

[47.60]

Matters to be proved

1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused was a non-prohibited person. The accused possessed, carried or used a registered longarm of the prescribed category. 5. The accused possessed etc the firearm not under or in accordance with a licence issued under Pt 2 of the Firearms Act 1996.

[47.70]

Other possible charges: Firearms Act 1996

Non-prohibited person possess, carry or use category C, D or E longarm: s 6(3), (4), (5). (Indictable offences.) Non-prohibited person, carry or use unregistered category A–E longarms or unregistered paintball marker: s 6A(1)–(4). (Indictable offences.) Fail to comply with longarm licence conditions, paintball marker licence condictions or junior licence conditions: s 36(1)–(4).

[47.80]

Firearms Act offences generally classified as summary offences

As noted at [1.30], criminal offences are generally categorised as summary offences, unless punishable by five years’ jail or more or the contrary intention appears. Firearms Act 1996 s 189A provides a contrary intention, prescribing specific offences as indictable offences.

164

Offences

[47.90]

Non-prohibited person

Firearms Act 1996 s 3(1) (definition of “non-prohibited person”) defines a non-prohibited person as “a person who is not a prohibited person”. A prohibited person is exhaustively defined in s 3(1). In general terms, it covers people previously sentenced to jail sentences or community corrections orders with a supervision condition, or subject to final family violence or personal safety intervention orders. The effect is that by default a person is considered a non-prohibited person unless the prosecution proves otherwise: see generally [4.20].

[47.100]

Possession

Firearms Act 1996 s 3(1) (definition of “possession”) extends the common-law meaning of possession in relation to firearms to include: (a) actual physical possession of the firearm; or (b) custody or control of the firearm; or (c) having and exercising access to the firearm, either solely or in common with others. Further, s 145 provides that a firearm is deemed to be in the possesson of a person if found on land or premises occupied by, in the care of, or under the control or management of the person, or in a vehicle in which the person is in charge. In that case, the accused has the legal burden of disproving possession: Yeates v Hoare [1981] VR 1034; Momcilovic v The Queen (2011) 245 CLR 1.

[47.110] Firearm Firearms Act 1996 s 3(1) (definition of “firearm”) defines “firearm” to mean: any device, whether or not assembled or in parts– (a) which is designed or adapted, or is capable of being modified, to discharge shot or a bullet or other missile by the expansion of gases produced in the device by the ignition of strongly combustible materials or by compressed air or other gases, whether stored in the device in pressurised containers or produced in the device by mechanical means; and (b) whether or not operable or complete or temporarily or permanently inoperable or incomplete– and which is not– (c) an industrial tool powered by cartridges containing gunpowder or compressed air or other gases which is designed and intended for use for fixing fasteners or plugs or for similar purposes; or (d) a captive bolt humane killer; or (e) a spear gun designed for underwater use; or (f) a device designed for the discharge of signal flares; or (h) a device commonly known as a kiln gun or ringblaster, designed specifically for knocking out or down solid material in kilns, furnaces or cement silos; or (i) a device commonly known as a line thrower designed for establishing lines between structures or natural features and powered by compressed air to other compressed gases and used for rescue purposes, rescue training or rescue demonstration; or (j) a device of a prescribed class.

For the purpose of para (j) of this definition, Firearms Regulations 2008 reg 20

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165

prescribes certain devices to be exempt from the meaning of firearm: (a) any cannon or field gun, by whatever name known, which has been constructed as a piece of military ordinance and which has a calibre in excess of 25 millimetres and– (i) which is rendered permanently inoperable; or (ii) for which fixed ammunition is not commercially available; (b) any device which is designed for and used to throw a net to catch animals (commonly known as a cannon net); (c) any compressed air or gas powered device with a calibre no greater than 7 millimetres and a maximum muzzle velocity no greater than 50 metres per second that is designed to be mounted on a radio controlled model warship and when used in model warship activities.

Further, Firearms Act 1996 s 3(4) deals with items that fall within the statutory definition of a firearm but are nonetheless excluded from the operation of the Act. (4) This Act does not apply to a firearm that was manufactured before 1900, if– (a) in the case of any such firearm that is a longarm– (i) it does not take cartridge ammunition; or (ii) if it does take cartridge ammunition, the cartridge ammunition that it takes is not commercially available; or (b) the firearm– (i) is not a handgun of a type that uses percussion, or methods developed during or after the development of percussion, as a means of ignition; or (ii) is a single shot antique handgun.

A single shot antique handgun is a subset of antique handgun, which is in turn a subset of handgun. Single shot antique handgun is defined in s 3(1) (definition of “single shot antique handgun”) to mean: an antique handgun that is a black powder handgun that is capable of firing one shot only before requiring reloading.

An antique handgun is defined in s 3(1) (definition of “antique handgun”) to mean a handgun: (a) that was manufactured before 1 January 1900; and (b) that uses percussion as a means of ignition; and (c) that does not take commercially available cartridge ammunition.

Handgun is in turn defined in s 3(1) (definition of “handgun”) as a firearm that: (a) is reasonably capable of being carried or concealed about the person; or (b) is reasonably capable of being raised and fired by one hand; or (c) does not exceed 65 centimetres in length measured parallel to the barrel.

Percussion is defined in s 3(1) (definition of “percussion”) to mean: a means of ignition in a firearm in which metallic chemical compounds or fulminates are used to ignite the main powder charge.

Cartridge ammunition is defined in s 3(1) (definition of “cartridge ammunition”) to mean: ammunition having a bullet or other projectile and a priming device fixed to or enclosed in a cartridge case which is composed wholly or partly of material other than paper.

166

Offences

[47.120] Registered Registered, with respect to firearms, is defined in s 3(1) (definition of “registered”) to mean “registered under Part 5 [of the Firearms Act 1996]”. Registered firearms are recorded on a register maintained by the Chief Commissioner of Police, and issued a corresponding certificate of registration. Evidence that a firearm does not have a serial number, or the serial number is erased, defaced, altered or illegible, is admissible and in the absence of evidence to the contrary is proof that a firearm is unregistered: s 8A.

[47.130]

Longarm

Firearms Act 1996 s 3(1) (definition of “longarm”) defines a longarm to mean “any firearm other than a handgun”. See [47.130] for a discussion of firearm and handgun.

[47.140] Category A longarm Firearms Act 1996 s 3(1) (definition of “category A longarm”) defines category A longarm to mean: (a) (b) (c) (d)

an airgun; a rimfire rifle (other than a semiautomatic rimfire rifle); a shotgun (other than a pump action or semi-automatic shotgun); any combination of a shotgun and rimfire rifle.

[47.150] Category B longarm Firearms Act 1996 s 3(1) (definition of “category B longarm”) defines category B longarm to mean: (a) a muzzle loading firearm; (b) a centre fire rifle (other than an automatic or a semi-automatic centre fire rifle); (c) any combination of a shotgun and centre fire rifle; (d) a black powder, ball firing cannon.

[47.160]

Paintball marker

Firearms Act 1996 s 3(1) (definition of “paintball marker”) defines paintball marker to mean “a firearm that is designed to discharge a paintball.” Paintball is in turn defined to mean “a projectile that primarily consists of a dye or similar substance designed to mark a person or object.”

[47.170] Under a licence under Part 2 Under Pt 2 of the Firearms Act 1996 the Chief Commissioner of Police may licence a person to possess, carry or use a specified longarm or paintball marker as provided in s 9(1) and (6). The Chief Commissioner may licence a person who is of or over 12 years of age and under 18 years of age to carry or use category A or B longarms: s 18(1). Certain non-prohibited people are exempt from the requirement to be so licensed, either broadly or in specific circumstances: s 54; Sch 3. Notable classes of people are defence force personnel, police officers, people receiving firearms training, people over 16 at approved paintball locations, actors using innocuous weapons, and a person using a starter pistol.

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Exemptions are also provided for health service workers who obtain firearms from a patient, certain school teachers in specified circumstances, and employees of licensed firearms dealers: ss 54AA–55. It is not necessary for the charge to negate such as an exception: see [2.40]. The accused bears an evidential burden of establishing that they come within one of these exceptions: see [4.30].

[47.180] In accordance with a licence under Part 2 Additionally, possession, carriage and use of category A or B longarms is subject to general licence conditions in Sch 1 items 1–3, to the Firearms Act 1996, special licence conditions in Sch 2 item 1, and any other licence conditions imposed by the Chief Commissioner: s 14(1). Possession, carriage and use of a paintball marker is subject to general licence conditions in Sch 1 items 1–3, and any other special conditions imposed by the Chief Commissioner: s 14(5). Junior licences issued under s 18 are also subject to general licence conditions in Sch 1 items 2 and 3, special licence conditions in Sch 2 item 4, and any other licence conditions imposed by the Chief Commissioner: s 19(1). See [47.190] for relevant extracts of the Schedules.

[47.190]

Schedule 1 and 2 licence conditions

The following licence conditions apply under Firearms Act 1996 Schs 1 and 2: General conditions under Schedule 1 1 The holder of the licence must permit a police officer to inspect the holder’s storage arrangements at any reasonable time.

The holder of the licence must not transfer, lend or give the licence to another person. 3 Any firearms held under the licence must not be used for any reason other than the reasons authorised by the licence. 2

Special conditions under Schedule 2

1

Longarm licences for category A or B longarms

(1) If the holder of a licence is authorised to hunt under the licence, the licence is subject to the condition that, before the holder enters any privately owned land for the purpose of hunting, the holder must obtain the permission of the owner or occupier of that land to hunt on the land. (2) If the holder of the licence has obtained the licence for the reason of hunting, sport or target shooting or primary production, the holder is also authorised to hunt pest animals on Crown land, if such hunting is in accordance with any Act, regulations or other instrument regulating hunting

168

Offences

on that land. This authorisation does not apply to the holder of a licence who has obtained that licence for the purposes of sport or target shooting if that person is using a black powder ball firing cannon. (3) The holder is authorised to carry or use a longarm, the carriage or use of which is authorised by the licence, on an approved shooting range. (4) If one of the reasons for the licence is sport or target shooting, the holder is authorised to hunt on privately owned land if, before entering that land for the purposes of hunting, the holder has obtained the permission of the owner or occupier of that land to hunt on the land. This authorisation does not apply to the holder of a licence who has obtained that licence for the purposes of sport or target shooting if that person is using a black powder ball firing cannon. (5) If one of the reasons for the licence is sport or target shooting, the holder must be a member of an approved club. (5A) If one of the reasons for the licence is sport or target shooting, the holder must not engage in sport or target shooting except— (a) at an approved shooting range; or (b) on land owned by the holder, where the activity is being carried out in accordance with the regulations; or (c) on land not owned by the holder, where the owner of the land has given permission for the carrying out of the activity and where the activity is being conducted in accordance with the regulations. (6) If the licence is a longarm licence for category B longarms, the holder is authorised to use category A longarms for the reason for which the licence is issued. (7) If the holder of the licence has obtained the licence for the reason of primary production, the holder is authorised to carry or use a longarm, the carriage or use of which is authorised by the licence, on the land of another primary producer, with the permission of the owner of the land. (8) If the holder of the licence has obtained the licence for the reason of hunting or sport or target shooting, the licence is subject to the condition that the holder must not— (a) possess, carry or use a detachable magazine with a capacity greater than 10 shots in combination with a pump or lever action centre fire rifle; or (b) possess, carry or use a detachable magazine with a capacity greater than 15 shots in combination with a bolt action centre fire rifle; or

Ch 47 Firearm (non-prohibited person possessing etc)

(c)

4

169

possess, carry or use a detachable magazine with a capacity greater than 15 shots in combination with a pump, lever or bolt action rimfire rifle—unless the Chief Commissioner is satisfied that the holder should be able to possess, carry or use such a magazine in combination with such a firearm for the purposes of participating in an event approved by the Chief Commissioner.

Junior licences (1) If the holder of the licence— (a) is authorised to carry or use a category A or B longarm, the holder must not carry or use such a longarm except under the immediate supervision of a person who is the holder of a longarm licence for category A or B longarms; (b) is authorised to carry or use a category C longarm, the holder must not carry or use such a longarm except under the immediate supervision of a person who is the holder of a longarm licence for category C longarms which authorises the possession, carriage and use of category C longarms for the purposes of clay target shooting; (c) is authorised to carry or use a general category handgun, the holder must not carry or use such a handgun except under the immediate supervision of a person who is the holder of a handgun licence.

(2) The holder is authorised to carry or use a general category handgun, the carriage or use of which is authorised by the licence, on an approved shooting range. (2A) If the holder of the licence is authorised to carry or use a longarm under the licence, the holder must not carry or use the longarm for the purpose of receiving instruction in the use of the longarm for sport or target shooting except— (a) at an approved shooting range; or (b) on land owned by the holder where the activity is being carried out in accordance with the regulations; or (c) on land not owned by the holder, where the owner of the land has given permission for the carrying out of the activity and where the activity is being conducted in accordance with the regulations. (2B) If the holder of the licence is authorised to carry or use a longarm under the licence, the holder must not carry or use the longarm for the purpose of engaging in sport or target shooting competitions except at an approved shooting range. (3) The holder is not authorised to purchase cartridge ammunition.

170

Offences

[47.200] Delegation of Chief Commissioner’s powers Firearms Act 1996 s 176 allows the Chief Commissioner to delegate her or his powers, with certain exceptions, under the Firearms Act to any police officer or Victoria Police employee. Consequently, most decisions made under the Firearms Act are exercised either by police officers assigned to the Licensing and Regulation Division, or Divisional Firearms Officers.

48 [48.10]

Firearm (possess etc on private property without consent)

Contrary to: Firearms Act 1996 s 131(1)(a) and (b)

Section 131(1) provides:

131 Offence to possess, carry or use a firearm on private property without consent (1) A person must not— (a) possess, carry or use a firearm on private property; or (b) discharge a shot, bullet or other missile from a firearm onto or across private property— without the consent of the owner or occupier of the property. (2) In any proceedings for an offence under subsection (1)(a), it is a defence for a person to satisfy the court that he or she was approaching the residence of the owner or occupier of the property along a defined path for the purposes of applying for such consent. (3) Subsection (1) does not apply to— (a) any police officer or a protective services officer when acting in the course of his or her official duties and when so authorised by the Chief Commissioner; or (ab) any senior IBAC Officer when carrying out the purposes for which firearms may be possessed, carried and used, and as authorised under Part 5 of the Independent Broad-based Anti-corruption Commission Act 2011; or (b) any member of a police force or police service of the Commonwealth or of another State or a Territory when carrying or using a firearm issued to him or her for the performance of a detailed duty; or (c) any person who holds a licence under this Act, issued for the reason of prison guard when carrying or using a firearm which the guard is authorised to carry or use under the licence, when acting in the course of his or her duties as a prison guard and when in the immediate pursuit of a person under his or her custody; or

172

Offences

(d)

any person who holds a licence under this Act, when carrying or using a firearm which the person is authorised to carry or use under the licence and who is acting in the course of his or her duties under any relevant law within the meaning of the Conservation, Forests and Lands Act 1987 or under the Livestock Disease Control Act 1994 or the Prevention of Cruelty to Animals Act 1986.

(4) Despite subsection (1), a person— (a) who is possessing or carrying a firearm under a licence under this Act; and (b) who is crossing Crown land over which there is a licence, for the purpose of hunting in accordance with the Wildlife Act 1975 on land that can only be accessed by passage over the Crown land— is not required to obtain the consent of the holder of the licence over the Crown land. [48.20] Statutory reference 96/66.131.1.A 96/66.131.1.B

[48.30]

Statement of charge

Possess/carry/use firearm on private property without consent. Discharge shot/bullet/missile onto or across private property without consent.

[48.40]

Wording of charge

Section 131(1)(a) The accused on [date] at [place] (possessed/carried/used) a firearm on private property without the consent of the owner or occupier of the property.

Section 131(1)(b) The accused on [date] at [place] discharged a (shot/bullet/missile) from a firearm (onto/across) private property without the consent of the owner or occupier of the property.

[48.50] Penalty 60 penalty units or 12 months’ jail

[48.60] Matters to be proved Section 131(1)(a) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused possessed, carried or used a firearm on private property. 4. The accused did so without the consent of the owner or occupier of the property.

Ch 48

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173

Section 131(1)(b) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused discharged a shot, bullet or missile from a firearm onto or across private property. 4. The accused did so without the consent of the owner or occupier of the property.

[48.70]

Other possible charges: Firearms Act 1996

Use a firearm in a dangerous manner: s 129. Carry or use a firearm in a town or populous place: s 130.

[48.80]

Firearm

See [47.130].

49 [49.10]

Firearm (possess cartridge ammunition)

Contrary to: Firearms Act 1996 s 124(1)–(3)

Section 124(1)–(3) provide:

124

Possession of cartridge ammunition

(1) A person must not possess cartridge ammunition unless that person— (a) is the holder of a licence under this Act or a permit under section 58A; or (b) is the holder of a licence to keep explosives for sale and to sell explosives issued under the Dangerous Goods Act 1985; or (c) is not required to have a licence under this Act in order to possess a firearm. (2) The holder of a licence under this Act (other than a firearms ammunition collectors licence), must not possess cartridge ammunition which is not suitable for use in the category of firearms that that person is authorised to possess, carry or use under the licence. (3) A person who is not required to have a licence under this Act in order to possess, carry or use a firearm must not possess cartridge ammunition which is not suitable for use in the category of firearms that that person may possess, carry or use without having to obtain a licence. [49.20] Statutory reference 96.66.124.1 96.66.124.2 96.66.124.3

[49.30]

Statement of charge

Possess cartridge ammunition without licence or permit.

[49.40]

Wording of charge

Section 124(1) The accused on [date] at [place] possessed cartridge ammunition without licence or permit or exemption.

Section 124(2) The accused on [date] at [place] was the holder under the Firearms Act 1996 of a licence other than a firearms ammunition collectors licence and possessed cartridge

Ch 49

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175

ammunition that was not suitable for use in the category of firearms (she/he) was authorised to possess, carry or use under that licence.

Section 124(3) The accused on [date] at [place] possessed cartridge ammunition that was not suitable for use in the category of firearms that (she/he) was not required under the Firearms Act 1996 to have a licence to possess, carry or use.

[49.50]

Penalty

40 penalty units: Firearms Act 1996 s 124(1) 10 penalty units: Firearms Act 1996 s 124(2) 10 penalty units: Firearms Act 1996 s 124(3)

[49.60]

Matters to be proved

Section 124(1) 1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused possessed cartridge ammunition. The accused: (a) did not hold a licence under the Firearms Act 1996 or permit under s 58A; or (b) hold a licence under the Dangerous Goods Act 1985 to keep for sale and to sell explosives; or (c) was not required under the Firearms Act 1996 to possess, carry or use firearms.

Section 124(2) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused held a licence under the Firearms Act 1996. 4. The accused possessed cartridge ammunition that was not suitable for use in the category of firearms she or he was authorised to possess, carry or use under that licence.

Section 124(3) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was not required under the Firearms Act 1996 to have a licence to possess, carry or use firearms. 4. The accused possessed cartridge ammunition that was not suitable for use in the category of firearms she or he was not so required to be licensed.

[49.70]

Other possible charges: Firearms Act 1996

Firearms collectors etc store firearms or cartridge ammunition incorrectly: s 122. Disposal of cartridge ammunition to unauthorised person: s 125.

176

Offences

Carry or use firearm or cartridge ammunition in insecure or dangerous manner: s 126. Unlicensed person store firearms in insecure manner: s 129A.

[49.80]

Cartridge ammunition

Cartridge ammunition is defined in Firearms Act 1996 s 3(1) (definition of “cartridge ammunition”) to mean: ammunition having a bullet or other projectile and a priming device fixed to or enclosed in a cartridge case which is composed wholly or partly of material other than paper.

[49.90] Possession See [47.120].

[49.100] Licence, permit or exemption For licences authorising possession etc of firearms and therefore the possession of cartridge ammunition for use in those firearms, or exemptions from the requirement to be so licensed, see [47.190], and also [47.160], [47.170], [47.140] and [46.150]. A permit under Firearms Act 1996 s 58A is a provisional general category handgun licence. A licence to keep for sale and to sell explosives under the Dangerous Goods Act 1985 is issued under s 21 of that Act and Dangerous Goods (Explosives) Regulations 2011. The accused has the evidential burden of establishing that she or he held a relevant licence, permit or exemption: see [4.30].

50 [50.10]

Firearm (use in a dangerous manner)

Contrary to: Firearms Act 1996 s 129

Section 129 provides:

129 Offence to use a firearm in a dangerous manner A person must not use a firearm in a dangerous manner. [50.20]

Statutory reference

96/66.129

[50.30]

Statement of charge

Use a firearm in a dangerous manner.

[50.40]

Wording of charge

The accused on [date] at [place] used a firearm in a dangerous manner.

[50.50] Penalty 120 penalty units or 2 years’ jail

[50.60] Matters to be proved 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused used a firearm in a dangerous manner.

[50.70] Other possible charges: Crimes Act 1958 Threats to kill: s 20. Threats to inflict serious injury: s 21. Reckless conduct endangering life: s 22. Reckless conduct endangering serious injury: s 23. Using firearm to resist arrest: s 29. Assault: s 31.

[50.80]

Other possible charges: Firearms Act 1996

Damage property with a firearm: s 128. Carry or use a firearm in a town or populous place: s 130. Possess, carry or use a firearm on private property without consent: s 131. Carry or use firearm under influence of intoxicating liquor or drug: s 132.

178

Offences

[50.90]

Other possible charges: miscellaneous

Common assault: common law. Unlawful assault: Summary Offences Act 1966 s 23. Aggravated assault: Summary Offences Act 1966 s 24.

[50.100]

Firearm

See [47.130].

51 [51.10]

Genital or anal region (distribute image)

Contrary to: Summary Offences Act 1966 s 41C

Section 41C provides:

41C Distribution of image of genital or anal region A person who visually captures or has visually captured an image of another person’s genital or anal region (whether or not in contravention of section 41B) must not intentionally distribute that image. Note: Section 41D(2) sets out exceptions to this offence.

[51.20]

Statutory reference

7405.41C

[51.30]

Statement of charge

Distribute image of genital or anal region.

[51.40]

Wording of charge

The accused at [place] on [date] intentionally distributed an image of another person’s genital or anal region while visually capturing that image. The accused at [place] on [date] intentionally distributed an image (he/she) had visually captured of another person’s genital or anal region.

[51.50]

Penalty

2 years’ jail

[51.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused intentionally distributed: (a) an image of another person’s genital or anal region while visually capturing that image; or (b) an image he or she had visually captured of another person’s genital or anal area.

[51.70]

Other possible charges: Summary Offences Act 1966

Indecent or offensive behaviour: s 17(1)(d). Disorderly conduct in public: s 17A. Observe genital or anal region: s 41A. Visually capture image of genital or anal region: s 41B.

180

Offences

Distribute intimate image: s 41DA. Threaten to distribute intimate image: s 41DB.

[51.80]

Other possible charges: common law

Outraging public decency: R v Wellard (1884) 15 Cox 559; 14 QBD 63; R v Hamilton [2008] 1 QB 224.

[51.90]

Other possible charges: miscellaneous

Publication or transmission of objectionable material: Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 s 57. Publication or transmission of child pornography: Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 s 57A (until 1 July 2017 or commencement of Crimes Amendment (Sexual Offences) Act 2016 s 34). Distribute child abuse material: Crimes Act 1958 s 51D (from 1 July 2017 or commencement of Crimes Amendment (Sexual Offences) Act 2016 s 16). Transmit or distribute etc child abuse material: Criminal Code (Cth) s 474.22.

[51.100] Visually capture The offence contemplates two distinct acts of visual capture and distribution. The first is expressed in the present tense, and so would apply to live streaming, a live feed, a webcam, a video call etc. The second is expressed in the past tense, and so would apply to distribution of a recording of an image. In either situation, the accused would also be exposed to liability for the offence contrary to Summary Offences Act 1966 s 41B. The offence section does not apply to a third person who distributes an image but was not involved in visually capturing the image. See [53.100].

[51.110] Genital or anal region See [52.100].

[51.120]

Exceptions

The accused has the evidential burden of raising the exceptions in Summary Offences Act 1966 s 41D: see [4.30].

[51.130]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.5816]ff.

52 [52.10]

Genital or anal region (observation aided by device)

Contrary to: Summary Offences Act 1966 s 41A

Section 41A provides:

41A Observation of genital or anal region A person must not, with the aid of a device, intentionally observe another person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be observed. Notes: 1 The reasonable expectation test is an objective one—what would a reasonable person in the position of the person being observed have expected. 2 Section 41D(1) sets out exceptions to this offence.

[52.20]

Statutory reference

7405.41A

[52.30]

Statement of charge

Observe genital or anal region.

[52.40]

Wording of charge

The accused at [place] on [date] intentionally observed another person’s genital or anal region with the aid of a device, and it was reasonable for that other person to expect (her/his) genital or anal region could not be observed.

[52.50]

Penalty

3 months’ jail

[52.60] 1. 2. 3. 4. 5.

Matters to be proved

The offence occurred at the place and time alleged. The offender was the accused. The accused intentionally observed another person’s genital or anal region. The observation was with the aid of a device. That it was reasonable for the person observed to expect her or his genital or anal region could not be observed.

[52.70]

Other possible charges: Summary Offences Act 1966

Indecent or offensive behaviour: s 17(1)(d). Disorderly conduct in public: s 17A.

182

Offences

Visually capture genital or anal region: s 41B. Distribute image of genital or anal region: s 41C. Distribute intimate image: s 41DA. Threaten to distribute intimate image: s 41DB.

[52.80]

Other possible charges: common law

Outraging public decency: R v Wellard (1884) 15 Cox 559; 14 QBD 63; R v Hamilton [2008] 1 QB 224.

[52.90]

History

This and related offences were introduced to deal with behaviour colloquially known as “up-skirting”, where a (usually male) offender uses a covert camera or similar device to view or record up or under women’s skirts, typically on public transport: Explanatory Memorandum, Summary Offences Amendment (Upskirting) Bill 2007, cl 1; Victoria, Parliamentary Debates, Legislative Assembly, 9 August 2007, 2397–2398 (Justin Madden, Minister for Planning). Prior to the introduction of these offences, the behaviour was charged somewhat awkwardly as stalking, contrary to Crimes Act 1958 s 21A.

[52.100] Genital or anal region Genital or anal region is defined in Summary Offences Act 1966 s 40 to mean the person’s genital or anal region, whether bare or covered by underwear.

[52.110] Device Device is defined in Summary Offences Act 1966 s 40 to mean any device capable of being used to observe a person’s genital or anal region including a mirror, a tool if used to make a peephole, or a ladder, but not spectacles, contact lenses or similar devices used by a person with impaired sight to overcome that impairment. It seems the purpose of the definition is to except observation that occurs in plain view, but criminalise any observation that involves some additional steps or devices to effect observation.

[52.120] Reasonable expectation The note to Summary Offences Act 1966 s 41A forms part of the Act and may be used in its interpretation: Interpretation of Legislation Act 1984 s 36(3A). The note makes it clear that a reasonable expectation that a person’s genital or anal region could not be observed is determined objectively. For example, if a person was wearing swimwear on the beach it may not be reasonable to expect that their genital or anal region could not be observed. However, if a person was fully dressed and standing in public transport or walking up a flight of stairs in a public building, it would be reasonable to expect their genital or anal region could not be observed.

[52.130] Exceptions The accused has the evidential burden of raising the exceptions in Summary Offences Act 1966 s 41D: see [4.30].

[52.140] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.5802]ff.

53 [53.10]

Genital or anal region (visually capture)

Contrary to: Summary Offences Act 1966 s 41B

Section 41B provides:

41B Visually capturing genital or anal region A person must not intentionally visually capture another person’s genital or anal region in circumstances in which it would be reasonable for that other person to expect that his or her genital or anal region could not be visually captured. Notes: 1 The reasonable expectation test is an objective one—what would a reasonable person in the position of the person whose genital or anal region is being visually captured have expected. 2 Section 41D(1) sets out exceptions to this offence.

[53.20]

Statutory reference

7405.41B

[53.30]

Statement of charge

Visually capture genital or anal region.

[53.40]

Wording of charge

The accused at [place] on [date] intentionally visually captured another person’s genital or anal region, and it was reasonable for that other person to expect (her/his) genital or anal region could not be visually captured.

[53.50]

Penalty

2 years’ jail

[53.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused intentionally visually captured another person’s genital or anal region. 4. That it was reasonable for the person observed to expect her or his genital or anal region could not be visually captured.

[53.70]

Other possible charges: Summary Offences Act 1966

Indecent or offensive behaviour: s 17(1)(d). Disorderly conduct in public: s 17A. Observe genital or anal region: s 41A.

184

Offences

Distribute image of genital or anal region: s 41C. Distribute intimate image: s 41DA. Threaten to distribute intimate image: s 41DB.

[53.80]

Other possible charges: common law

Outraging public decency: R v Wellard (1884) 15 Cox 559; 14 QBD 63; R v Hamilton [2008] 1 QB 224.

[53.90]

Other possible charges: miscellaneous

Produce child pornography: Crimes Act 1958 s 68 (until 1 July 2017 or commencement of Crimes Amendment (Sexual Offences) Act 2016 s 18). Produce child abuse material: Crimes Act 1958 s 51C (from 1 July 2017 or commencement of Crimes Amendment (Sexual Offences) Act 2016 s 16).

[53.100] Visually capture Visually capture is defined in Summary Offences Act 1966 s 40 to mean capturing a moving or still image of a person’s genital or anal region by a camera or any other means so that a recording is made of those images or those images are otherwise capable of being distributed. This definition is easily broad enough to account for mobile phones and live streaming: Victoria, Parliamentary Debates, Legislative Assembly, 9 August 2007, 2397–2398 (Justin Madden, Minister for Planning).

[53.110] Genital or anal region See [52.100].

[53.120] Reasonable expectation See [52.120].

[53.130] Exceptions The accused has the evidential burden of raising the exceptions in Summary Offences Act 1966 s 41D: see [4.30].

[53.140] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.5812]ff.

54 [54.10]

Going equipped for stealing, burglary or cheating

Contrary to: Crimes Act 1958 s 91(1)

Section 91(1) provides:

91

Going equipped for stealing etc.

(1) A person shall be guilty of a summary offence if, when not at his place of abode, he has with him any article for use in the course of or in connexion with any burglary, theft or cheat. (2) A person guilty of an offence under this section shall be liable to level 7 imprisonment (2 years maximum). (3) Where a person is charged with an offence under this section, proof that he had with him any article made or adapted for use in committing a burglary, theft or cheat shall be evidence that he had it with him for such use. (4) On the conviction of a person for an offence under this section, the court may order the article to be forfeited to the Crown and disposed of in the manner set out in the order. [54.20] Statutory reference 6231.91.1

[54.30] Statement of charge Going equipped to steal or cheat.

[54.40] Wording of charge The accused at [place] on [date] when not at (his/her) place of abode had with (him/her) (an article/articles), namely [description of article], for use in the course of or connection with a (burglary/theft/cheat).

[54.50]

Penalty

2 years’ jail

[54.60] 1. 2. 3. 4.

Matters to be proved

The offence occurred at the place and time alleged. The offender was the accused. The accused was not at his or her place of abode. The accused had with him or her articles for use in the course of or connection with a burglary, theft, or cheat.

186

Offences

[54.70]

Other possible charges: Summary Offences Act 1966

Possess housebreaking implements: s 49D.

[54.80]

Place of abode

Place of abode means a place of residence. A motor vehicle in transit is not a place of abode, even if the offender lives in it: R v Bundy [1977] 1 WLR 914.

[54.90] Has with him or her The article must be under the immediate control of the accused, but need not be in his or her actual manual control: R v Kelt [1977] 1 WLR 1365; R v Pawlicki [1992] 1 WLR 827. The term is probably therefore similar to actual possession considered in Moors v Burke (1919) 26 CLR 265 at 274. If two people act in concert and one physically possesses articles for use in a burglary, the other may also be convicted of having the articles with her or him: R v Hartwick (1985) 17 A Crim R 281.

[54.100]

For use

The possession must be for some future use: R v Marijancevic (1991) 54 A Crim R 431; R v Ellames [1977] 1 WLR 1391; R v Sakalauskas [2014] 1 WLR 1204. Proof of intent is necessary; contemplated possible use is not enough, and in the absence of admissions or overtly incriminating conduct, it might not be possible to establish the necessary intent: R v Hargreaves [1985] Crim LR 243. For example, a torch, screwdrivers and gloves might be used in a burglary, but without proof of future intent to use them for a burglary, the offence would not be made out. But where the articles are self-evidently made for use in burglaries – such as skeleton keys – Crimes Act 1958 s 91(3) will provide proof of intent: R v Harrison [1970] Crim LR 415; [1970] EWCA Crim J0319-5. The connection between the articles and the intended burglary, theft or cheat must not be too remote. When the accused possessed another person’s driver’s licence intending to use that to obtain employment in a driving job which would have allowed him to steal a load, the Court of Appeal held the use of the article was too remote to fall within the offence: R v Mansfield [1975] Crim LR 101. Ordinary or everyday articles can be for use “in connection” with a cheat where there is clear evidence of the intention, such as when an offender confessed to possessing bottles of wine to dishonestly sell them to his employer’s customers: R v Doukas [1978] 1 WLR 372.

[54.110] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [1.6.3840]–[1.6.3860].

55 [55.10]

Graffiti marking

Contrary to: Graffiti Prevention Act 2007 s 5

Section 5 provides:

5

Marking graffiti A person must not mark graffiti on property if the graffiti is visible from a public place unless the person has first obtained the express consent of the owner, or an agent of the owner, of the property to do so. [55.20] Statutory reference 07/59.5

[55.30]

Statement of charge

Mark graffiti on property without consent.

[55.40]

Wording of charge

The accused at [place] on [date] marked graffiti on property that was visible from a public place without the express consent of the owner or owner’s agent.

[55.50] Penalty 2 years’ jail

[55.60] Matters to be proved 1. 2. 3. 4. 5.

The The The The The

offence occurred at the place and time alleged. offender was the accused. accused marked graffiti on property. graffiti was visible from a public place. marking was without the express consent of the owner or owner’s agent.

[55.70] Other possible charges: Crimes Act 1958 Criminal damage: s 197.

[55.80]

Other possible charges: Graffiti Prevention Act 2007

Mark offensive graffiti: s 6.

[55.90]

Other possible charges: Summary Offences Act 1966

Wilful damage: s 9(1)(c).

[55.100] Mark graffiti Mark graffiti is defined in Graffiti Prevention Act 2007 s 3 to mean write, draw, mark, scratch or otherwise deface property by any means so that the defacement is not readily removable by wiping with a dry cloth.

188

Offences

Curiously for an Act devoted entirely to graffiti, graffiti itself is not defined anywhere. In some cases this could leave open argument about whether a marking was graffiti or something else such as art. Logically, the presence or absence of the owner’s consent is not determinative, but in cases where the owner does consent, there would be no need for a court to consider whether the markings were or were not graffiti. The argument is not as spurious as it might first seem. In 2013, a well-meaning father-in-law painted over a Banksy stencil on a former church in Fitzroy, posing the question under this section whether the stencil was “graffiti”, or the act of painting over what was considered a valuable artwork was itself “graffiti”.

[55.110] Express consent The accused has the evidential burden of raising the express consent of the owner etc: see [4.30].

[55.120] Public place Public place is defined in Graffiti Prevention Act 2007 s 3 to have the same meaning as in the Summary Offences Act 1966: see further [76.100].

56 [56.10]

Graffiti marking (offensive)

Contrary to: Graffiti Prevention Act 2007 s 6

Section 6 provides:

6

Marking offensive graffiti

(1) A person must not mark graffiti that is visible from a public place if the graffiti, or any part of the graffiti, would offend a reasonable person. (2) Subsection (1) does not apply to graffiti that is reasonable political comment. [56.20] Statutory reference 07/59.6

[56.30]

Statement of charge

Mark offensive graffiti.

[56.40]

Wording of charge

The accused at [place] on [date] marked graffiti visible from a public place that would offend a reasonable person.

[56.50]

Penalty

2 years’ jail

[56.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused marked graffiti. 4. The graffiti was visible from a public place. 5. The graffiti or part of it would offend a reasonable person.

[56.70]

Other possible charges: Crimes Act 1958

Criminal damage: s 197.

[56.80]

Other possible charges: Graffiti Prevention Act 2007

Mark graffiti: s 5.

[56.90]

Other possible charges: Summary Offences Act 1966

Wilful damage: s 9(1)(c). Draw etc indecent or obscene word, figure or representation: s 17(1)(b).

190

Offences

[56.100] Mark graffiti See [55.100].

[56.110] Offend There is no definition of offend in the Graffiti Prevention Act 2007. Given it is qualified by reference to a reasonable person, it seems likely that it carries the same meanings as offensiveness under Summary Offences Act 1966 s 17(1)(d): see further [76.130].

[56.120]

Defence

The offence does not apply to graffiti that is reasonable political comment: see further Coleman v Power (2004) 220 CLR 1. It is not necessary for the prosecution to prove the absence of reasonable political comment unless the accused satisfies the evidentiary burden of raising this defence: see [4.30].

57 [57.10]

Graffiti (possessing prescribed implement)

Contrary to: Graffiti Prevention Act 2007 s 7

Section 7 provides:

7

Possessing a prescribed graffiti implement

(1) A person must not, without lawful excuse, possess a prescribed graffiti implement— (a) on property of a transport company; or (b) in an adjacent public place; or (c) in a place where the person is trespassing or has entered without invitation. (2) It is a lawful excuse for the purposes of subsection (1) that the person is in possession of a prescribed graffiti implement in the course of engaging in, or carrying out any functions in relation to, his or her employment, occupation, business, trade or profession. (3) If a police officer or a protective services officer may exercise powers under Division 2 of Part IV of the Drugs, Poisons and Controlled Substances Act 1981 in respect of a person under 18 years of age— (a) the police officer or protective services officer must deal with the person in the manner set out in that Division; and (b) the person does not commit an offence against subsection (1). [57.20] Statutory reference 07/59.7

[57.30] Statement of charge Possess prescribed graffiti implement.

[57.40] Wording of charge The accused at [place] on [date] possessed without lawful excuse a prescribed graffiti implement (on property of a transport company/in a public place adjacent to property of a transport company/in a place where the person was trespassing or entered without invitation).

[57.50]

Penalty

25 penalty units

[57.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused.

192

Offences

3. The accused possessed a prescribed graffiti implement. 4. The possession was without lawful excuse. 5. The accused was (a) on property of a transport company; or (b) in a public place adjacent to property of a transport company; or (c) in a place where the person was trespassing or entered without invitation.

[57.70]

Other possible charges: Crimes Act 1958

Possessing anything with intent to destroy or damage property: s 199.

[57.80]

Other possible charges: Graffiti Prevention Act 2007

Possess graffiti implement with intent to mark graffiti: s 8.

[57.90]

Prescribed graffiti implement

Prescribed graffiti implement is defined in Graffiti Prevention Act 2007 s 3 to mean an aerosol paint container or a graffiti implement prescribed by the regulations. To date, there are no regulations made under the Act.

[57.100] Lawful excuse Lawful excuse is not defined, but by Graffiti Prevention Act 2007 s 7(2) is held to include possessing spray paint in the course of employment, occupation, business, trade or profession. The accused has the evidential burden of raising lawful excuse: see [4.30].

[57.110] Property of a transport company Transport company is defined in Graffiti Prevention Act 2007 s 3, and refers to places such as train stations, bus depots, rail yards and sidings.

[57.120]

Adjacent public place

Adjacent public place is defined in Graffiti Prevention Act 2007 s 3 to mean: (a) Any public highway, road, street, bridge, footway, footpath, court, alley, passage or thoroughfare, notwithstanding that it may be formed on private property; (b) any park, garden, reserve, or other place of public recreation or resort; (c) any railway station, platform or carriage; (d) any wharf, pier or jetty; (e) any market; that is near to and visible from: (a) trains operated on property of a transport company; or (b) railway stations or bus depots on property of a transport company; or (c) property of a transport company on any part of which trains or buses are operated, whether or not the public place adjoins that property.

58 [58.10]

Harass witnesses

Contrary to: Summary Offences Act 1966 s 52A

Section 52A provides:

52A Offence to harass witnesses etc. A person must not harass a person because that person has taken part, is about to take part or is taking part in a criminal proceeding in any court as a witness or in any other capacity. [58.20] Statutory reference 7405.52A

[58.30]

Statement of charge

Harass witness.

[58.40]

Wording of charge

The accused at [place] on [date] harassed a person by [description of harassment] knowing (he/she) (had taken/was about to take/was taking) part in a criminal proceeding in any court (as a witness/in any other capacity).

[58.50] Penalty 12 months’ jail

[58.60] Matters to be proved 1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused harassed a person. The accused did so because that person had taken, was about to take or was taking part in a criminal proceeding. 5. The person was taking part as a witness, or in any other capacity. 6. The criminal proceeding was in a court. [58.70] Other possible charges: Crimes Act 1958 Intimidation of or reprisals against victims: s 257. Destruction of evidence: s 254.

[58.80]

Other possible charges: Crimes Act 1914 (Cth)

Intimidation of witnesses etc: s 36A. Destroying evidence: s 39. Preventing witnesses from attending court: s 40.

194

Offences

[58.90]

Other possible charges: common law

Attempting to pervert the course of justice. Contempt of court. Embracery. Subornation of perjury.

[58.100] Harass The Shorter Oxford English Dictionary (3rd ed, New York, 1993) defines the verb harass as: “1. Trouble by repeated attacks. Now freq, subject to constant molesting or persecution. … 4. Overwhelm with cares, misfortunes etc.” In the context of harassing a person using a postal service, Anderson J held “harass” could apply to a single occasion, though it more commonly referred to persistent, repetitive or continuous conduct. In my opinion, the fact that the postal service is used on a single occasion does not preclude a finding that the postal service is used to harass. It depends on the circumstances. If the postal service is used for the main purpose of causing worry or distress to another, I do not see why that could not amount to use of the service to harass simply because it is done only once. “Harass” has many senses, as is clear from the dictionaries. It is often used to signify conduct which is persistent, repetitive or continuous. This is especially so when it is used in a military context. But a person may be in a state of harassment or have an harassed state of mind and that emotional or mental state may be brought about by a single adverse circumstance. One can be harassed with the burden of debt or harassed with worry or harassed with fear for one’s own safety or with fear for the safety of another. In my opinion, any conduct (even a single action) which is calculated to cause another to be in such a state could amount to harassment: Johnson v Colier (1997) 142 FLR 409 at 412.

See also Daly v Medwell (1986) 40 SASR 281, considering numerous silent phone calls as “harassment”.

[58.110] Witness or any other capacity This offence is traditionally relied upon to protect witnesses who give evidence in a criminal proceeding, but could equally apply to a person answering a subpoena, or court staff, advocates, judicial officers and jurors. In those cases, the accused might not know the name of the person they allegedly harassed, but simply know their role in the criminal proceeding. If so, the name of the person harassed would be a mere particular of the offence, and may not be sufficient to identify to the accused the facts relied upon in support of the charge: Johnson v Miller (1937) 59 CLR 467. In such a case, particularising the charge to include the person’s name might achieve the opposite to the purpose of this provision. See also the obligation to keep a victim’s personal information private in Victims Charter Act 2006 s 14. There is no reason why this offence cannot apply to witnesses in proceedings even after the proceedings are complete, and use of the perfect past tense in the phrase “has taken part” supports this.

[58.120]

Criminal proceeding

Criminal proceeding is not defined in the Summary Offences Act 1966. It seems uncontentious that a criminal proceeding is any proceeding in a court which is commenced by or based on an underlying proceeding commenced by a criminal charge: Perkins v County Court (2000) 2 VR 246 at 257.

Ch 58

Harass witnesses

195

[58.130] Any court Court is also not defined in the Summary Offences Act 1966. The Evidence Act 2008 defines court as a “Victorian court”, in turn defined to mean the Supreme Court or any other court created by Parliament. See further: • Magistrates’ Court Act 1989 s 4; • Children, Youth and Families Act 2005 s 504; • County Court Act 1958 s 4; • Coroners Act 2008 s 89. Tribunals such as the Victorian Civil and Administrative Tribunal and Victims of Crime Tribunal are not defined as courts.

[58.140]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.6760]ff.

59 [59.10]

Housebreaking implements (possess)

Contrary to: Summary Offences Act 1966 s 49D

Section 49D provides:

49D

Possessing housebreaking implements

(1) A person must not, without lawful excuse, have an implement of housebreaking in his or her custody or possession. (2) The accused bears the burden of proving lawful excuse for having custody or possession of any implement to which a charge of an offence against subsection (1) relates. [59.20] Statutory reference 7405.49D

[59.30]

Statement of charge

Possess housebreaking implements.

[59.40]

Wording of charge

The accused at [place] on [date] (possessed/had custody of) an implement of housebreaking, namely [description of implement], without lawful excuse.

[59.50]

Penalty

2 years’ jail

[59.60] 1. 2. 3. 4.

Matters to be proved

The offence occurred at the place and time alleged. The offender was the accused. The accused possessed or had custody of an implement of housebreaking. The accused possessed or had custody of an implement of housebreaking without a lawful excuse.

[59.70]

Other possible charges: Crimes Act 1958

Going equipped for burglary, theft or cheat: s 91.

[59.80]

History

The offence provision was originally contained in the Police Offences Act 1958 s 72(1)(j) – which itself was derived from the Vagrancy Act 1824 (UK) – and then later the Vagrancy Act 1966 s 7(1)(g). The Vagrancy Act was repealed following reviews by the Victorian Parliament’s Scrutiny of Acts and Regulations Committee of the Summary Offences Act 1966 in

Ch 59

Housebreaking implements (possess)

197

2001 and the Vagrancy Act 1966 in 2002. Some provisions of the Vagrancy Act, including this one, were re-enacted by the Vagrancy (Repeal) and Summary Offences (Amendment) Act 2005.

[59.90]

Possession or custody

There is nothing in the legislation to displace the presumption that possession requires proof of knowing possession, and so the prosecution must prove the accused knew of the item: He Kaw Teh v The Queen (1985) 157 CLR 523. Forgetting the existence or possession of an item, or believing that it was destroyed or disposed of does not mean the accused no longer possessed the item: R v Buswell [1972] 1 WLR 64; R v Martindale [1986] 1 WLR 1042. Custody means having the property in safe-keeping, or protection, or charge or care: Yeates v Hoare [1981] VR 1034 at 1038. See also the discussion of possession at [90.90]. Where several people were found together and acting in concert and only one of them possessed housebreaking implements, they were all said to be in possession of the implements: R v Thompson (1869) 21 LT 397. See also [54.90].

[59.100]

Implement of housebreaking

The words implement of housebreaking mean no more than any implement capable of being used for housebreaking: R v Oldham (1852) 2 Den 472; 169 ER 587. The prosecution is not required to prove that the accused possessed the items for that purpose; merely that they were capable of being so used. Once that is proved, it is for the accused to prove a lawful excuse for possessing or having custody of the items: R v Patterson [1962] 2 QB 429 at 433, 435.

[59.110] Lawful excuse The accused has the legal onus of establishing lawful excuse: see [4.20]. See also R v Patterson [1962] 2 QB 429 at 433, 435.

[59.120] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.6257]ff.

60 [60.10]

Impersonating police

Contrary to: Victoria Police Act 2013 s 256(1)

Section 256(1) provides:

256

Impersonating police or protective services officers

(1) A person who is not a police officer must not, in any way, hold himself or herself out to be a police officer. (2) A person who is not a protective services officer must not, in any way, hold himself or herself out to be a protective services officer. (3) A person who is not a police recruit must not, in any way, hold himself or herself out to be a police recruit. [60.20] Statutory reference 13/81.256.1

[60.30] Statement of charge Impersonate police officer.

[60.40] Wording of charge The accused at [place] on [date], who was not a police officer, held (him/her)self out to be a police officer.

[60.50]

Penalty

120 penalty units or 1 year’s jail, or both.

[60.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was not a police officer. 4. The accused held himself or herself out to be a police officer.

[60.70]

Other possible charges: Victoria Police Act 2013

Manufacture, possess, use or supply any Victoria Police identification or equipment: s 255.

[60.80]

Other possible charges: miscellaneous

Impersonate operational staff member: Ambulance Services Act 1986 s 39(1)(d). Impersonate officer, member or volunteer of the Authority: Country Fire Authority Act 1958 s 107A(3). Impersonate member of a unit: Metropolitan Fire Brigades Act 1958 s 75A(3).

Ch 60

[60.90]

Impersonating police

199

Police officer

Police officer is defined in Victoria Police Act 2013 s 3(1) to mean the Chief Commissioner, a Deputy Commissioner, an Assistant Commissioner, or a person appointed under Pt 3 Div 5. Section 27 provides that the Chief Commissioner may appoint by instrument a person as a police officer. The Chief Commissioner’s power might be delegated under s 19. Ordinarily, the presumption of regularity will suffice to prove that a person is a police officer, especially if that person testifies to that effect: Duncan v Demir (2009) 52 MVR 90; DPP v Sher [2000] VSC 268. Proof that a person was not a police officer would require positive evidence to that effect.

[60.100] Hold out to be a police officer A person might hold out they are a police officer by words or conduct. In Doolan v Cooper [1962] SR (NSW) 719 the offender stopped his car and challenged a motorist with allegations of traffic offending, and told the motorist he would take him to the nearest police station. When the motorist asked, “Who are you?” the offender said, “I am a policeman.” That was sufficient to assume the description of a class of members of the police force. In Schroder v Samuels (1973) 5 SASR 198, the offender said to a witness, “I am sorry, I am an officer,” and then produced two cards printed with “South Australia Police”, “Criminal Investigation Branch”, “Angas Street Adelaide” and “Detective Maddern”. That was held enough to make out the offence of representing oneself without lawful excuse to be a member of the police force. In Fogarty v Brown (1989) 17 NSWLR 21, following a motor vehicle collision, the offender spoke with the other driver who said, “I want to call the police.” The offender replied, “I am the police, you can do whatever you want to.” That was enough to establish the offence of assuming the name, designation or description of a member of the police force or any class of such members.

61 [61.10]

Intimate images (distributing)

Contrary to: Summary Offences Act 1966 s 41DA

Section 41DA provides:

41DA

Distribution of intimate image

(1) A person (A) commits an offence if— (a) A intentionally distributes an intimate image of another person (B) to a person other than B; and (b) the distribution of the image is contrary to community standards of acceptable conduct. Example A person (A) posts a photograph of another person (B) on a social media website without B’s express or implied consent and the photograph depicts B engaged in sexual activity.

(2) A person who commits an offence against subsection (1) is liable to level 7 imprisonment (2 years maximum). (3) Subsection (1) does not apply to A if— (a) B is not a minor; and (b) B had expressly or impliedly consented, or could reasonably be considered to have expressly or impliedly consented, to— (i) the distribution of the intimate image; and (ii) the manner in which the intimate image was distributed. [61.20] Statutory reference 7405.41DA

[61.30]

Statement of charge

Distribute intimate image.

[61.40]

Wording of charge

The accused at [place] on [date] intentionally distributed an intimate image contrary to community standards of acceptable conduct.

[61.50]

Penalty

2 years’ jail

[61.60] 1. 2. 3. 4.

Matters to be proved

The offence occurred at the place and time alleged. The offender was the accused. The accused intentionally distributed an intimate image of another person. The distribution of that image was contrary to community standards of acceptable conduct.

Ch 61 Intimate images (distributing)

[61.70]

201

Other possible charges: Summary Offences Act 1966

Distribute image of genital or anal region: Summary Offences Act 1966 s 41C.

[61.80]

Other possible charges: miscellaneous

Publication or transmission of objectionable material: Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 s 57. Publication or transmission of child pornography: Classification (Publications, Films and Computer Games) (Enforcement) Act 1995 s 57A (until 1 July 2017 or commencement of Crimes Amendment (Sexual Offences) Act 2016 s 34). Produce child pornography: Crimes Act 1958 s 68 (until 1 July 2017 or commencement of Crimes Amendment (Sexual Offences) Act 2016 s 18). Produce child abuse material: Crimes Act 1958 s 51C (from 1 July 2017 or commencement of Crimes Amendment (Sexual Offences) Act 2016 s 16). Transmit or distribute etc child abuse material: Criminal Code (Cth) s 474.22.

[61.90]

Distribute

Distribute is defined by Summary Offences Act 1966 s 40 to include publishing, exhibiting, communicating, sending, supplying or transmitting to other people, and making available for access by other people.

[61.100]

Intimate image

Intimate image is defined by Summary Offences Act 1966 s 40 to mean a moving or still image that depicts a person engaged in sexual activity; or a person in a manner or context that is sexual; or the genital or anal region of a person or, in the case of a female, the breasts. This clearly permits the section to deal with the phenomenon of “revenge porn”.

[61.110] Community standards of acceptable conduct Community standards of acceptable conduct are defined by Summary Offences Act 1966 s 40 to include standards of conduct that consider the nature and content of an image; the circumstances in which it was captured and distributed; the age, intellectual capacity, vulnerability or other relevant circumstances of a person shown in the image; and the degree to which the privacy of the person in the image is affected. The notion of community standards not only imports an objective standard, but most probably a contemporary standard, similar to that which applies for offences of indecency and obscenity: see further [76.110].

[61.120]

Exceptions

The accused has the evidential burden of raising the exceptions in Summary Offences Act 1966 s 41DA(3): see [4.30]. Express or implied consent of a person in an image is not a defence if that person is a “minor”. Minor is not defined, but from the commencement of the Crimes Amendment (Sexual Offences) Act 2016 s 45 – either 1 July 2017 or earlier if so proclaimed – Summary Offences Act 1966 s 41DA(3)(a) will instead refer to “person under the age of 18 years”.

202

Offences

[61.130] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.5820]ff.

62 [62.10]

Intimate images (threat to distribute)

Contrary to: Summary Offences Act 1966 s 41DB

Section 41DB provides:

41DB

Threat to distribute intimate image

(1) A person (A) commits an offence if— (a) A makes a threat to another person (B) to distribute an intimate image of B or of another person (C); and (b) the distribution of the image would be contrary to community standards of acceptable conduct; and (c) A intends that B will believe, or believes that B will probably believe, that A will carry out the threat. (2) A person who commits an offence against subsection (1) is liable to level 8 imprisonment (1 year maximum). (3) For the purposes of this section, a threat may be made by any conduct and may be explicit or implicit. [62.20] Statutory reference 7405.41DB

[62.30]

Statement of charge

Threaten to distribute intimate image.

[62.40]

Wording of charge

The accused at [place] on [date] threatened to distribute, contrary to community standards of acceptable conduct, an intimate image of [person depicted in image] (intending that [complainant] would believe/believing that [complainant] would probably believe) (he/she) would carry out that threat.

[62.50]

Penalty

1 year’s jail

[62.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused threatened to distribute an intimate image of another person. 4. The distribution of that image would be contrary to community standards of acceptable conduct.

204

Offences

5. The accused intended that the person to whom the threat was made would believe, or believing that the person to whom the threat was made would probably believe, the accused would carry out the threat.

[62.70]

Other possible charges: Crimes Act 1958

Distribute child abuse material: Crimes Act 1958 s 51D (from 1 July 2017 or commencement of Crimes Amendment (Sexual Offences) Act 2016 s 16). Blackmail: Crimes Act 1958 s 87.

[62.80] Other possible charges: Summary Offences Act 1966 Distribute image of genital or anal region: s 41C. Distribute intimate image: s 41DA.

[62.90]

Mens rea

The offence requires proof of one of two states of mind on the part of the accused. First, the accused must intend the recipient will believe the accused will carry out the threat. Alternatively, the accused must believe the recipient will probably believe the accused will carry out the threat. This is very much a subjective test on the part of the accused. In either case, it is not necessary that there actually be an intimate image of a person, only that the accused threatened with the relevant mens rea to distribute what would amount to an intimate image.

[62.100] Intimate image See [61.100].

[62.110] Community standards of acceptable conduct See [61.110].

[62.120] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.5826]ff.

63 [63.10]

Liquor (drunk, violent or quarrelsome person refuse or fail to leave licensed premises on request)

Contrary to: Liquor Control Reform Act 1998 s 114(2)

Section 114(2) provides:

114

Offences by persons other than licensee or permittee

(1) A person— (a) must not on licensed premises— (i) obtain liquor from the licensee, or an employee or agent of the licensee; or (ii) consume liquor– except at a time and in the manner authorised under the licence or BYO permit and this Act; (b) must not, on licensed premises— (i) procure liquor for a person in a state of intoxication; or (ii) aid or abet a person in a state of intoxication to obtain liquor; (c) must not obtain liquor from a licensee under a general licence or a late night (general) licence or from an employee or agent of such a licensee by fraudulently representing himself or herself to be a resident of the licensed premises; (d) [Repealed] (2) A person who is drunk, violent or quarrelsome must not refuse or fail to leave licensed premises if requested to do so by— (a) the licensee or permittee; or (b) an employee or agent of the licensee or permittee; or (c) a police officer. (3) A person who has been refused entry from licensed premises or who has left licensed premises following a request by any of the persons referred to in subsection (2)(a), (b) or (c) must not without reasonable excuse remain in the vicinity of the licensed premises. (4) A person who has been refused entry from licensed premises or who has left licensed premises following a request by any of the persons referred to in subsection (2)(a), (b) or (c) must not without reasonable excuse enter

206

Offences

the licensed premises for a period of 24 hours commencing from the time of being refused entry or leaving the licensed premises. (5) For the purposes of this section, a reference to licensed premises includes any area adjacent to the licensed premises that is owned or occupied by the licensee or permittee. [63.20] Statutory reference 98/94.114.2

[63.30] Statement of charge Fail to leave licensed premises while drunk, violent or quarrelsome.

[63.40] Wording of charge The accused at [place] on [date] was (drunk/violent/quarrelsome) and (refused/ failed) to leave licensed premises when requested to do so by (the licensee/the permittee/an employee or agent of the licensee/an employee or agent of the permittee/a police officer).

[63.50]

Penalty

50 penalty units

[63.60] 1. 2. 3. 4.

Matters to be proved

The offence occurred at the place and time alleged. The offender was the accused. The offender was drunk, violent or quarrelsome. The offender refused or failed to leave when requested by: (a) the licensee, or the licensee’s employee or agent; (b) the permittee, or the permittee’s employee or agent; (c) a police officer.

[63.70]

Other possible charges: Liquor Control Reform Act 1998

Licensee or permittee permit drunken or disorderly premises on licensed or authorised premises: s 108(4).

[63.80]

Other possible charges: Summary Offences Act 1966

Drunk: s 13. Drunk and disorderly: s 14. Drunkards behaving in riotous manner: s 16. Disorderly conduct in public: s 17A.

[63.90]

Drunk

See [31.90].

[63.100] Quarrelsome The Shorter Oxford English Dictionary (3rd ed, New York, 1993) defines quarrelsome as “Inclined to quarrel; given to or characterised by quarrelling.” It defines quarrel as

Ch 63

Liquor (refuse/fail to leave licensed premises on request)

207

“1. A complaint against or disagreement with a person or his or her action or opinion; a ground or occasion for this, a cause of unfriendly feeling. …4. A violent contention or altercation, an argument, a dispute, a breaking off of friendly relations.” Liquor (licensee or permittee supplying to intoxicated person, or allowing on licensed premises)

64 [64.10]

Liquor (licensee or permittee supplying to intoxicated person, or allowing on licensed premises)

Contrary to: Liquor Control Reform Act 1998 s 108(4)(a)–(b)

Section 108(4)(a)–(b) provide:

108

Offences by licensee and permittee

(1) A licensee or permittee— (a) must not, except in accordance with the licence or BYO permit and this Act— (i) supply liquor; or (ii) permit or cause liquor to be supplied; or (iii) permit liquor to be consumed– on the licensed premises or on any authorised premises; (b) must not use any place or premises, other than the licensed premises or authorised premises, for the supply of liquor; (c) [Repealed] (d) must not permit a person to play any unlawful game on the licensed premises or on any authorised premises. (e) [Repealed] Note: Section 53A applies to an offence against this subsection.

(2) Subsection (1)(b) does not apply to— (a) a licensee of a pre-retail licence; or (b) a licensee of a wine and beer producer’s licence in respect of the supply of liquor under that licence to a person who holds a licence under this Act. (3) Despite subsection (1)(d), the game of two-up may be played— (a) on ANZAC Day on any premises being used by any sub-branch of the Returned and Services League; and (b) on ANZAC Day on any premises approved under section 2.2.4(1)(b) of the Gambling Regulation Act 2003; and (c) not more than 7 days before ANZAC Day on any premises at which a function is being held to which section 2.2.4(2) of the Gambling Regulation Act 2003 applies.

Ch 64

Liquor (supplying to intoxicated person/allowing on licensed premises)

209

(4) A licensee or permittee— (a) must not supply liquor to a person who is in a state of intoxication; (b) must not permit drunken or disorderly persons to be on the licensed premises or on any authorised premises. Note: Section 53C applies to an offence against this subsection.

(5) It is a defence to a prosecution for an offence under subsection (4)(b) for the accused to prove that— (a) neither the accused nor any relevant person who was on the premises at the time of the alleged offence knew that drunken or disorderly persons were on the premises; and (b) either the accused or a relevant person had taken reasonable steps to ensure that drunken or disorderly persons were not on the premises. (5A) For the purposes of subsection (5), a person is a relevant person if he or she is— (a) an employee or agent of the accused; or (b) in the case of an accused that is a body corporate— (i) an officer of the accused; or (ii) the nominee of the accused; or (c) in the case of an accused who is a member of the committee of management of an unincorporated club, on behalf of the club— (i) a member of the committee of management; or (ii) the nominee of the accused; or (d) in the case of an accused who is a member of a partnership, another member of the partnership. (6) Subsection (4)(b) does not apply to a licensee or permittee if the licensed premises are a party bus. [64.20] Statutory reference 98/94.108.4.A 98/94.108.4.B

[64.30] Statement of charge Licensee or permittee supply liquor to person in state of intoxication. Licensee or permittee permit drunken or disorderly person on licensed or authorised premises.

[64.40] Wording of charge Section 108(4)(a) The accused at [place] on [date] supplied liquor to a person who was in a state of intoxication.

210

Offences

Section 108(4)(b) The accused at [place] on [date] permitted a (drunken/disorderly) person to be on (licensed/authorised) premises, namely [name or description of premises].

[64.50]

Penalty

120 penalty units

[64.60]

Matters to be proved

Section 108(4)(a) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was a licensee or permittee (either as a natural person, partnership, body corporate with or without a nominee, incorporated club with or without a nominee, unincorporated club with or without a nominee, or an endorsed person). 4. The accused supplied liquor. 5. To a person who was in a state of intoxication.

Section 108(4)(b) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was a licensee or permittee (either as a natural person, partnership, body corporate with or without a nominee, incorporated club with or without a nominee, unincorporated club with or without a nominee, or an endorsed person). 4. The accused permitted a person to be on licensed or authorised premises. 5. The permitted person was drunk or disorderly.

[64.70]

Other possible charges: Liquor Control Reform Act 1998

Fail to leave licensed premises while drunk, violent or quarrelsome: s 114(2).

[64.80]

Other possible charges: Summary Offences Act 1966

Drunk: s 13. Drunk and disorderly: s 14. Drunkards behaving in riotous manner: s 16. Disorderly conduct in public: s 17A.

[64.90]

The accused

Various legal persons might be the accused for this offence. They are defined in Liquor Control Reform Act 1998 s 3(1). A licensee is the holder of a liquor licence. A permittee is the holder of a BYO permit. A nominee is a person appointed by the Director of Liquor Licensing to be personally liable as a nominee of a licensee or committee.

Ch 64

Liquor (supplying to intoxicated person/allowing on licensed premises)

211

An endorsed person is discussed in s 86. An allegation in a charge-sheet or in evidence by an informant or licensing inspector that the accused person had the relevant status is prima facie evidence of that fact: s 136(2). Section 53C provides for personal liability of officers of a body corporate for offences contrary to the Act.

[64.100]

State of intoxication

State of intoxication is defined in Liquor Control Reform Act 1998 s 3AB.

3AB

What is intoxication?

(1) For the purposes of this Act, a person is in a state of intoxication if his or her speech, balance, co-ordination or behaviour is noticeably affected and there are reasonable grounds for believing that this is the result of the consumption of liquor. (2) The Commission must issue guidelines containing information about how to determine whether a person is in a state of intoxication for the purposes of this Act, the Casino Control Act 1991 or the Gambling Regulation Act 2003. Intoxication is something less than drunkeness: Brown v Bowden (1991) 19 NZLR 98.

[64.110] Drunk See [31.90].

[64.120] Disorderly See [28.90].

[64.130] Supply Supply is defined in Liquor Control Reform Act 1998 s 3(1) to include sell, offer or expose for sale, exchange, dispose of and give away. Section 136(1) provides that proof of delivery or sale of liquor is evidence of supply.

[64.140]

Liquor

It is not necessary for the prosecution to prove beyond a reasonable doubt that a liquid was in fact liquor. Instead, it may rely upon an averment to that effect: Liquor Control Reform Act 1998 s 135.

[64.150] Licensed or authorised premises Licensed premises are premises for which a liquor licence or BYO permit is granted: Liquor Control Reform Act 1998 s 3(1). Authorised premises are also defined in s 3(1). They typically comprise kerbside trading areas for restaurants or pubs, food courts or off-site caterers.

[64.160] Defence Liquor Control Reform Act 1998 s 108(5) provides that it is a defence to the charge if the accused proves they did not know that drunken or disorderly persons were on

212

Offences

the licensed premises and that they had taken reasonable steps to ensure that drunken or disorderly persons were not on the premises. The accused has the legal onus of establishing this defence: see [4.20].

65 [65.10]

Liquor (possess or consumed by person under age of 18 years)

Contrary to: Liquor Control Reform Act 1998 s 123(1)(b)

Section 123(1)(b) provides:

123

Offences by minors

(1) A person under the age of 18 years— (a) must not purchase or receive liquor from another person; and (b) must not possess or consume liquor; and (c) must not enter or remain on any part of premises where liquor is served by a licensee— (i) except for the purpose of partaking of a meal; or (ii) unless the person is an employee or agent of the licensee or is acting under, or employed in connection with, a contract with the licensee; or (iii) in the case of a general licence, a late night (general) licence, an on-premises licence or a late night (onpremises) licence under which accommodation is provided, unless the person is a resident of the licensed premises; or (iv) unless, in accordance with the approval of the Commission under section 120(2)(a) or (e) and any conditions to which that approval is subject, the person is authorised to be present on the premises; or (v) unless he or she is in the company of a responsible adult; or (vi) unless the person is engaged in a training program in hospitality or in training for the purposes of employment or work experience and the person is so present in accordance with any conditions to which that program or training is subject. (2) Subsection (1) does not apply— (a) to the receipt, possession or consumption of liquor by a person under the age of 18 years as part of a meal if the person is accompanied by his or her spouse, being a person of or over the age of 18 years or his or her parent or guardian; or

214

Offences

(b)

to the purchase, receipt, possession or consumption of liquor by the spouse or a member of the family of a licensee or permittee; or (c) to the purchase, receipt, possession or consumption of liquor in licensed premises under a general licence or a late night (general) licence by the spouse of a resident who is of or over the age of 18 years; or (d) to the receipt or possession of packaged liquor from a licensee or permittee by a person who is— (i) a member of the family of the licensee or permittee; or (ii) an employee or apprentice of the licensee or permittee– if the member or employee is employed to deliver that liquor to a person of or over the age of 18 years for consumption off the licensed or authorised premises; or (e) to the receipt, possession or consumption of liquor in a residence; or (f) to the possession or consumption of liquor by a person under the age of 18 years in licensed premises under a general licence or a late night (general) licence if the person— (i) is a resident; or (ii) is accompanied by his or her spouse, being a person of or over the age of 18 years or his or her parent or guardian— and is in possession of or consumes the liquor while partaking of a meal. (3) Subsection (1)(c) does not apply to a person under the age of 18 years who enters or remains on premises during ordinary trading hours if the licence in respect of the premises is an on-premises licence that is subject to the conditions set out in section 9(3). (4) A person must not falsely represent himself or herself to be of or over the age of 18 years for the purpose of avoiding being found to be in contravention of subsection (1). [65.20] Statutory reference 98/94.123.1.B

[65.30]

Statement of charge

Minor possess or consume liquor.

[65.40]

Wording of charge

The accused at [place] on [date] was under the age of 18 years and (possessed/ consumed) liquor.

[65.50]

Penalty

5 penalty units

Ch 65 Liquor (possess or consumed by person under age of 18 years)

[65.60] 1. 2. 3. 4.

The The The The

[65.70]

215

Matters to be proved offence occurred at the place and time alleged. offender was the accused. accused was under 18 years of age. accused possessed or consumed liquor. Other possible charges: Summary Offences Act 1966

Drunk: s 13. Drunk and disorderly: s 14. Drunkards behaving in riotous manner: s 16. Disorderly conduct in public: s 17A.

[65.80]

Possess or consume

Possession requires evidence of proof of knowing possession: He Kaw Teh v The Queen (1985) 157 CLR 523. Liquor Control Reform Act 1998 s 136(1) provides that where consumption of liquor was about to take place, that is evidence of consumption. For example, evidence a person was seated at a table with open bottles or glasses containing liquor would be within the scope of s 136(1).

[65.90]

Liquor

See [64.140].

[65.100] Under 18 years of age Proof of age can be by birth certificate: Births, Deaths and Marriages Registration Act 1996 s 46. The prosecution could rely on oral evidence from the child, or otherwise, hearsay evidence in accordance with Evidence Act 2008 s 73. It is not necessary for the prosecution to prove beyond a reasonable doubt that a person had not in fact attained 18 years of age. Instead, it may rely upon an averment to that effect: Liquor Control Reform Act 1998 s 135.

66 [66.10]

Litter (deposit)

Contrary to: Environment Protection Act 1970 s 45E(1)

Section 45E(1) provides:

45E

Deposit of litter generally

(1) A person must not deposit any litter unless– (a) the person deposits the litter in a place– (i) that is provided for the deposit of litter; and (ii) that is appropriate for litter of that size, shape, nature or volume; or (b) the person deposits the litter in or on a place in such a way that it cannot leave the place without human assistance and the person– (i) owns, controls or is in possession of the place; or (ii) is acting with the express consent of the person who owns, controls or is in possession of the place; or (c) the person is authorised to deposit the litter by or under an Act or a Commonwealth Act; or (d) the deposit of the litter is an unavoidable consequence of a lawful activity; or (e) the deposit is accidental and the person does everything that is reasonably possible to retrieve the litter. (2) For the purposes of subsection (1)(d), a consequence is unavoidable if there is no reasonably practicable way of avoiding it. [66.20] Statutory reference 8056.45E.1

[66.30]

Statement of charge

Deposit litter.

[66.40]

Wording of charge

The accused at [place] on [date] deposited litter.

[66.50]

Penalty

40 penalty units

[66.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused deposited litter.

Ch 66 Litter (deposit)

217

4. That one of the exceptions in the section did not apply.

[66.70]

Other possible charges: Environment Protection Act 1970

Aggravated littering: s 45F. Deposit document on vehicle without consent: s 45N.

[66.80]

Authority to charge

Environment Protection Act 1970 s 59(2) provides generally that proceedings for offences against the Act may only be taken by a person appointed by the Environment Protection Authority. Section 59(5) provides that proceedings for an offence against Pt VIIA (litter and material that may become litter) may be taken by a litter enforcement officer, which is defined in s 4(1) to include a council-appointed litter enforcement officer, and a police officer, or protective services officer in the vicinity of a designated place.

[66.90] Defences The accused has the evidential burden of raising the exceptions in the section: see [4.30].

67 [67.10]

Litter (deposit advertising material in certain mailboxes)

Contrary to: Environment Protection Act 1970 s 45M

Section 45M provides:

45M Advertising material not to be deposited in certain mailboxes etc. (1) In this section advertising material means any material advertising goods or services, regardless of whether or not the sale of the goods or services is for a charitable purpose, but does not include– (a) any stamped mail delivered by, or on behalf of, Australia Post; (b) any material that has a political purpose; (c) a newspaper or magazine; (d) any public notice issued by a litter authority or a body supplying electricity, gas, water, transport or a similar service; (e) any document issued under, or for the purposes of, any Act or Commonwealth Act; (f) any other document issued by, or on behalf, of any government or government agency. (2) A person must not deposit any advertising material in any receptacle, slot or place listed in section 45L(1)(a) or (b), or under the door of a premises, if there is a legible sign or marking on or near that receptacle, slot, place or door– (a) that states “No Advertising Material” or “No Junk Mail” or that contains any other words in English indicating that advertising material is not to be deposited in that receptacle, slot or place, or under that door; and (b) that is clearly visible to a person depositing an item in that receptacle, slot or place or under that door. [67.20] Statutory reference 8056.45M

[67.30] Statement of charge Deposit junk mail.

[67.40] Wording of charge The accused at [place] on [date] deposited advertising material at [premises] in a (receptacle or slot (or other place) used for the deposit of (mail/newspapers)/under

Ch 67 Litter (deposit advertising material in certain mailboxes)

219

the door) which had a legible sign or marking near that (receptacle/slot/place/ door) stating (“No advertising material”/“No junk mail”) and clearly visible to a person depositing an item (in the receptacle/in the slot/in the place/under the door).

[67.50]

Penalty

10 penalty units

[67.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused deposited advertising material: (a) in a receptacle, slot, or other place used for the deposit of mail or newspapers; or (b) under the door. 4. That there was a legible sign or marking in or near the receptacle, slot, place or door stating “No advertising material” or “No junk mail” that was clearly visible to a person depositing an item in the receptacle, slot, or place or under the door.

[67.70]

Other possible charges: Environment Protection Act 1970

Deposit unsolicited mail in other than mailbox etc: s 45L.

[67.80]

Other possible charges: miscellaneous

Use a postal service to menace, harass or cause offence: Criminal Code (Cth) s 471.12.

68 [68.10]

Litter (deposit document in or on vehicle)

Contrary to: Environment Protection Act 1970 s 45N

Section 45N provides:

45N

Leaflets etc. not to be placed on vehicles

(1) A person must not deposit any document in or on any vehicle without the express consent of the owner or driver of the vehicle. (2) This section does not apply to the deposit of any document by a person exercising a power given to him or her by any law. [68.20] Statutory reference 8056.45N

[68.30]

Statement of charge

Deposit leaflets on vehicles.

[68.40]

Wording of charge

The accused at [place] on [date] deposited a document in or on a vehicle without the express consent of the owner or driver of the vehicle.

[68.50]

Penalty

10 penalty units

[68.60] 1. 2. 3. 4.

Matters to be proved

The offence occurred at the place and time alleged. The offender was the accused. The accused deposited a document in or on a vehicle. Without the express consent of the owner or driver of the vehicle.

[68.70]

Other possible charges: Environment Protection Act 1970

Litter: s 45E. Aggravated litter: s 45F.

[68.80]

Express consent

The accused has the evidential burden of raising express consent of the owner or driver: see [4.30].

69 [69.10]

Loitering with intent to commit indictable offence

Contrary to: Summary Offences Act 1966 s 49B

Section 49B provides:

49B

Loitering with intent to commit an indictable offence

(1) A person who— (a) is a known or reputed thief or is known or reputed to have committed drug-related offences; and (b) is loitering in a public place; and (c) is so loitering with intent to commit an indictable offence; and (d) while so loitering engages in conduct in the furtherance of the commission of that indictable offence— is guilty of an offence and liable to a term of imprisonment not exceeding 2 years. (2) In a proceeding for an offence against subsection (1), the informant may give or produce evidence— (a) to prove that the accused is a known or reputed thief or is known or reputed to have committed drug-related offences; or (b) to rebut any evidence (including evidence as to general character) given by or on behalf of the accused. [69.20] Statutory reference 7405.49B

[69.30]

Statement of charge

Known or reputed thief loiter with intent in public place. Wording of charge

[69.40]

The accused at [place] on [date] was (a known thief/a reputed thief/known to have committed drug-related offences/reputed to have committed drug-related offences) who loitered in a public place with intent to commit and engaged in conduct in the furtherance of an indictable offence.

[69.50]

Penalty

2 years’ jail

[69.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused.

222

Offences

3. The accused: (a) was a reputed or known thief; or (b) was reputed or known to have committed drug-related offences. 4. The accused loitered in a public place. 5. With an intent to commit an indictable offence. 6. That while loitering, the accused engaged in conduct in furtherance of the commission of that indictable offence.

[69.70]

Other possible charges: Crimes Act 1958

Going equipped for stealing, burglary or cheat: s 91.

[69.80]

History

The offence provision was originally contained in the Police Offences Act 1958 s 72(1)(h) – which itself was derived from the Vagrancy Act 1824 (UK) – and then later the Vagrancy Act 1966 s 7(1)(f). The offence previously concerned three classes of offender: a suspected person; a reputed thief or cheat; and a known thief or cheat. The class of person reputed or known to have committed drug-related offences is a modern addition to the provision. The absence of suspected person from the class of offender is telling. A suspected person was one who was suspected before their act of loitering. In practice, this required a break or gap in observation of the offender, with two or more transactions arousing suspicion in the mind of the observing police officer, and then a latter and separate act of loitering. A common example was a person trying to open car doors, and then later observed loitering: Olholm v Eagles [1914] VLR 379; Ledwith v Roberts [1937] 1 KB 232; Hookey v Foster [1931] VLR 285; Ex parte Harris; Re Carne (1936) 53 WN (NSW) 87; Rawlings v Smith [1938] 1 KB 675; Cosh v Isherwood [1968] 1 WLR 48; Forbes v Caracatsanoutis [1974] VR 307; Wynne v Lockyer [1978] VR 279. The Vagrancy Act was repealed following reviews by the Victorian Parliament’s Scrutiny of Acts and Regulations Committee of the Summary Offences Act 1966 in 2001 and the Vagrancy Act 1966 in 2002. Some provisions of the Vagrancy Act, including this one, were re-enacted by the Vagrancy (Repeal) and Summary Offences (Amendment) Act 2005.

[69.90]

Known or reputed thief or committer of drug-related offences

A reputed thief is not necessarily a person convicted of theft: O’Connor v Hammond (1902) 21 NZLR 573; Reardon v O’Sullivan [1950] SASR 77; Dias v O’Sullivan [1949] SASR 195. A reputed thief is someone who has the reputation of a thief: Ledwith v Roberts [1937] 1 KB 232. A reputed thief means a person who has a reputation among those who know her or him that she or he steals when given the chance: Ex parte King; Re Blackley (1938) 38 SR (NSW) 483 at 491. A known thief is someone found guilty of theft. The Explanatory Memorandum, Vagrancy (Repeal) and Summary Offences (Amendment) Bill claimed that Summary Offences Act 1966 s 49B merely re-enacted the offence formerly contained in Vagrancy Act 1966 s 7(1)(f). Similarly, the second reading speech also claimed mere re-enactment, as well as modernising the language:

Ch 69

Loitering with intent to commit indictable offence

223

Victoria, Parliamentary Debates, Legislative Assembly, 6 September 2005, 488–489 (Justin Madden, Minister for Sport and Recreation). That is not strictly correct, given the different wording of the provision and changes to classes of offenders, but does demonstrate an intention to apply existing concepts where applicable. For this reason, whether someone is a reputed and known committer of drug-related offences will be proved in the same manner as for reputed and known thieves. However, there is no definition of drug-related offence, so it will fall to the courts to consider this as it arises. The phrase indicates a broader application than mere drug offences, so not only would it encompass offences found in the Drugs, Poisons and Controlled Substances Act 1981, but also offences that were sufficiently related to use, possession, cultivation, manufacture or sale of drugs. Offences of laundering money, possessing proceeds of crime, and even dishonesty, property and violence offences, might well be drug-related where the prosecution could establish a sufficient link with drug use, possession, purchase, sale, trafficking, cultivation, manufacture etc.

[69.100]

Loiter

Loitering can mean many things depending on its context, but for the purpose of vagrancy provisions it means lingering idly about without any apparent purpose or reason. Loitering itself does not mean loitering with a criminal or unlawful purpose; a person might loiter with a lawful purpose: Samuels v Stokes (1973) 130 CLR 490 at 502–503. See also Olholm v Eagles [1914] VLR 379; Olson v Johnson [1917] VLR 206; Harrison v Hegarty [1975] VR 362; Wynne v Lockyer [1978] VR 279; Attorney-General (Hong Kong) v Sham Chuen [1986] AC 887. A person in a car, whether stationary or moving, can be loitering: Johns v Berry [1934] SASR 111; Williamson v Wright [1924] SC(J) 57; Cassidy v Langmuir [1935] SC(J) 65; Bland v Cowan [1963] 2 QB 735. A person’s apparent lingering about might be loitering because it is done for an unlawful purpose, such as scouting out premises for a later burglary, or receiving illegal street bets.

[69.110] Intent to commit indictable offence In Connor v Pittaway [1969] VR 335 Pape J held that it was not necessary to prove that an offender intended to commit an offence at the time of loitering. In that case, the appellants were casing or scouting out a factory with the intention of later burgling it. In Harrison v Hegarty [1975] VR 362 Menhennit J held that the prosecution needed only to prove a general intention of the offender to commit an indictable offence, and not an intention to commit a specified offence. In my view it is not a necessary element of the offence that it be established that the defendant intended to commit a particular felony or misdemeanour or a felony or misdemeanour in respect of a particular subject matter. It is sufficient that the evidence establishes that the defendant had the intent to commit any one of a number of felonies or misdemeanours. It is true that it would be insufficient if the intent established was intent to commit a summary offence or was consistent with intent to commit a summary offence. However, in the present case the magistrate said that he was satisfied on the evidence in relation to the intent and in my view the only intent which it was reasonable to infer in the present case was intent to commit some felony or misdemeanour in respect of property such as breaking and entering or larceny… In my view it is sufficient that there be a finding of an intent to commit a felony or misdemeanour without a particular felony or misdemeanour being specified, and without

224

Offences

it being specified in respect of what property or what person there is the intent to commit a felony or misdemeanour. This was the conclusion of the Full Court of the Supreme Court of South Australia in Carling v O’Sullivan [1956] SASR 203. In that case the Full Court held that upon a charge against a person under s 19 of the South Australian Police Offences Act 1953 for that, being a suspected person or reputed thief, he was in a public place with intent to commit an offence triable on information in the Supreme Court, it is sufficient for the prosecution to prove that the person had a general intention of committing such an offence, and it is not necessary for the prosecution to allege or prove an intention to commit any specified offence: Harrison v Hegarty at 366–367.

That is, if the evidence showed the offender intended to commit an offence of some type involving dishonest appropriation or obtaining or receipt of property, the prosecution was not required to prove an intent to commit a specific offence such as theft, burglary or handling stolen goods.

[69.120]

Conduct in furtherance of the commission of that indictable

offence Summary Offences Act 1966 s 49B additionally requires the prosecution to prove conduct in furtherance of the indictable offence the accused intended to commit.

[69.130]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.6217]ff.

70 [70.10]

Move on (contravene direction)

Contrary to: Summary Offences Act 1966 s 6(4)

Section 6(4) provides:

6

Direction to move on

(1) A police officer, or a protective services officer on duty at a designated place, may give a direction to a person or persons in a public place to leave the public place, or part of the public place, if the police officer or protective services officer suspects on reasonable grounds that— (a) the person is or persons are breaching, or likely to breach, the peace; or (b) the person is or persons are endangering, or likely to endanger, the safety of any other person; or (c) the behaviour of the person or persons is likely to cause injury to a person or damage to property or is otherwise a risk to public safety. (1A) [Repealed] (2) A direction under this section may be given orally. (3) A direction under this section may direct the person or persons not to return to the public place or part of a public place or not to be in that public place or part for a specified period of not more than 24 hours. (4) A person must not without reasonable excuse contravene a direction given to the person under this section. (5) This section does not apply in relation to a person who, whether in the company of other persons or not, is— (a) picketing a place of employment; or (b) demonstrating or protesting about a particular issue; or (c) speaking, bearing or otherwise identifying with a banner, placard or sign or otherwise behaving in a way that is apparently intended to publicise the person’s view about a particular issue. (6) [Repealed] [70.20] Statutory reference 7405.6.4

226

[70.30]

Offences

Statement of charge

Contravene direction to move on.

[70.40]

Wording of charge

The accused at [place] on [date] was in a public place and contravened without reasonable excuse a direction by a (police officer/protective services officer on duty at a designated place) to (leave/not return to/not be in) (that public place/part of the public place) for a period of [specified period of not more than 24 hours].

[70.50]

Penalty

5 penalty units

[70.60]

Matters to be proved

1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused was in a public place. That a police officer, or protective services officer on duty at a designated place directed the accused to leave the public place or part of it for a specified period of not more than 24 hours, and if applicable, to not return or be in that public place or part of it for that specified period. 5. The police officer or protective services officer had reasonable grounds to suspect that one or more justifications applied for a move on direction. 6. The accused contravened the move on direction. 7. The accused did not have a reasonable excuse for contravening the direction.

[70.70]

Other possible charges: common law

Riot. Rout. Unlawful assembly. Affray. Public nuisance.

[70.80]

Other possible charges: Summary Offences Act 1966

Obstruct footpath or road: ss 4(e) and 5. Riotous behaviour in a public place: s 17(1)(d). Besetting premises: s 52(1A).

[70.90]

Other possible charges: Road Safety Road Rules 2009

Disobey direction by police officer: Road Safety Road Rules 2009 r 304.

[70.100] Public place See [76.100].

[70.110] Police officer or protective services officer at a designated place Police officer and protective services officer have the same meaning as in the Victoria Police Act 2013. Protective Services Officers (PSOs) are appointed under s 38 of that Act. Section 37 provides that their function is to provide services for the protection

Ch 70

Move on (contravene direction)

227

of people holding certain official or public offices (for example, members of the Victorian Parliament); the general public in certain places (such as public transport patrons); and certain places of public importance (such as courthouses and the Shrine of Remembrance). Designated place has the same meaning as in the Victoria Police Act. Section 52 of that Act provides that PSOs on duty at a designated place have all the duties and powers of a PSO under that or any other Act. A designated place is defined in s 3(1) as a place prescribed by the regulations. Victoria Police Regulations 2014 reg 27 defines designated place as:

Designated place For the purposes of section 52 of the Act, a place on or within any of the following places is a designated place— (a) railway premises; (b) rail premises on or adjoining railway premises including any car parking area on the rail premises; (c) any roadway or other thoroughfare giving access to rail premises; (d) any area on or adjoining rail premises used by other modes of transport including bus stops and taxi ranks; (e) any car park controlled by a Council (within the meaning of the Local Government Act 1989) that is adjoining or in the vicinity of rail premises; (f) any privately owned or managed land used for a car park or other public transport purposes adjoining or in the vicinity of rail premises. 27

[70.120] Direction to leave etc The direction to leave etc is limited to a specific area, and empowers a police officer or PSO to direct a person or people to leave, but not to go somewhere. Hence, a direction to leave a train station or street intersection could be valid, but a direction to “go home” would not. The direction to move on should be closely linked or related to the mischief to be prevented: Rowe v Kemper [2009] 1 Qd R 247 at [22], [67], [115]; Temoannui v Ford (2009) 231 FLR 216 at [38]. For example, a 24-hour move on direction was justified when the subject was and would continue to be under the influence of solvents, and it was not a one-off occurrence: Walley v Mansell [2007] WAR 56 at [15]. But a direction to leave a public mall for eight hours based on belligerent behaviour inside a public toilet was disproportionate: Rowe v Kemper at [22], [73], [113].

[70.130] Reasonable grounds to suspect one or more justifications applied for direction to move on The justifications in Summary Offences Act 1966 s 6(2) may be based on suspicion about the person directed to move on, or other people. It is entirely conceivable that a person so directed might themselves have done nothing to justify a suspicion that they are likely to breach the peace.

228

Offences

Suspicion is more than a mere idle wondering; it is a positive feeling of actual apprehension or mistrust, amounting to a slight opinion, but without sufficient evidence: George v Rockett (1990) 170 CLR 105 at 115; R v Rondo (2001) 126 A Crim R 562 at [53]. It is something less than belief: R v Raad [1983] 3 NSWLR 344; George v Rockett at 116. The individual police officer who gives the direction must in fact suspect one or more justifications apply. It is the court’s function to determine if it was reasonable for the police officer to hold that suspicion: Rowe v Kemper [2009] 1 Qd R 247 at [6], [70], [90]–[91]; Nilsson v McDonald (2009) 19 Tas R 173 at [43], [90]. If the court concludes it was not reasonable for the police officer to suspect a justification applied, the direction will be unjustified and invalid: Rowe v Kemper at [32], [82], [122]. If a direction is based on one justification but there were no reasonable grounds to suspect that that justification applied, the court cannot conclude it would have been reasonable to suspect some other justification applied: Rowe v Kemper at [6], [70], [90]–[91], Nilsson v McDonald at [43], [90]. The test for whether reasonable grounds existed for a professed state of mind requires that the relevant officer genuinely formed or held the state of mind (the test’s subjective limb), and that there was a reasonable basis for that state of mind (its objective limb): O’Hara v Chief Constable of the Royal Ulster Constabulary [1997] AC 286.

[70.140] Breach of the peace A breach of the peace is whenever harm is actually done or is likely to be done to a person or in his or her presence or to his or her property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance: R v Howell [1982] 1 QB 416. Peace does not mean quietness: Nilsson v McDonald (2009) 19 Tas R 173 at [8]. The essence of breach of the peace is violence or threatened violence: R (app of Laporte) v Chief Constable of Gloucestershire Constabulary [2007] 2 AC 105 at [27]. It extends to risk of violence when a person is unlawfully and physically prevented from carrying out their work: R v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] QB 458 at 471.

[70.150] Reasonable excuse A failure to adequately describe the scope and content of a direction might provide a reasonable excuse for failing to comply with a move on direction: Spatolisano v Hyde [2009] ACTSC 161 at [53]. A failure to provide a reasonable opportunity to comply with a move on direction might also provide a reasonable excuse for contravening a direction: Rowe v Kemper [2009] 1 Qd R 247 at [24], [77]–[78], [120]; Trobridge v Hardy (1955) 94 CLR 147. Summary Offences Act 1966 s 6(5) sets out exceptions to the offence, and see also Coleman v Power (2004) 220 CLR 1. The accused has the evidential burden of raising those exceptions: see [4.30].

[70.160] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.1270]ff.

71 [71.10]

Name and address etc (fail or refuse to supply or falsely provide to authorised officer)

Contrary to: Court Security Act 1980 s 3(2)(a)–(c)

Section 3(2)(a)–(c) provide:

3

Powers of authorized officer

(1) Subject to any limitations or restrictions provided by the rules an authorized officer may demand from a person who is on court premises that person’s name and address, his reason for being on the premises and evidence of his identity. (2) Any person who in response to a demand under subsection (1)— (a) fails or refuses to supply any of the information; (b) gives false information; or (c) provides any false evidence of identity— shall be guilty of an offence against this Act and liable to a penalty not exceeding 10 penalty units. (3) Subject to any limitations or restrictions provided by the rules, an authorized officer may require a person who wishes to enter the court premises, or is on the court premises– (a) to submit to a frisk search or a search of any thing in the person’s possession; (b) to submit to a scanning search of his or her person or of any thing in the person’s possession; (c) to surrender to the authorized officer any item that the authorized officer believes on reasonable grounds is a prohibited item. (4) An authorized officer who conducts a search under this section must not use more force, or subject a person to greater indignity, than is reasonably necessary in order to conduct the search. (5) If, when asked, a person does not submit to a demand under subsection (1) or a requirement under subsection (3), an authorized officer may prohibit the person from entering the court premises, or if the person is on the court premises, remove the person by reasonable force from the court premises.

230

Offences

(6) An authorized officer, who during a search finds a prohibited item or to whom a prohibited item is surrendered, may seize and retain that prohibited item in accordance with this section. (7) A prohibited item (other than a firearm, an explosive substance or an offensive weapon) that is surrendered by a person in compliance with a requirement under subsection (3)(c) must be retained by the authorized officer until— (a) the person requests the item’s return; or (b) the expiration of 28 days after the item was surrendered— whichever happens first. (8) Despite anything to the contrary in this section, if— (a) a surrendered or seized prohibited item is a firearm, an explosive substance or an offensive weapon whose possession would constitute an offence under the Crimes Act 1958, the Control of Weapons Act 1990 or this Act, the chief executive officer or a clerk of the court must ensure that the item is given to a police officer within 24 hours after the item is surrendered or seized; (b) a surrendered or seized prohibited item is not an item referred to in paragraph (a) and is not collected within 28 days after it was surrendered or seized, the chief executive officer or a clerk of the court may destroy the item or sell the item and retain the proceeds of the item’s sale. (9) An authorized officer may refuse a person entry to the court premises or remove a person from the court premises if the authorized person believes on reasonable grounds that the person is likely to affect adversely the security, good order or management of the court premises. (10) A person must not refuse to comply with a requirement under subsection (3). [71.20] Statutory reference 9949.3.2.A 9949.3.2.B 9949.3.2.C

[71.30]

Statement of charge

Fail or refuse to supply name and address to authorised officer. Give false name and address to authorised officer. Provide false identification to authorised officer.

Ch 71

[71.40]

Name & address etc (fail/refuse to supply/falsely provide to authorised officer)

231

Wording of charge

Section 3(2)(a) The accused at [place] on [date] when on court premises (failed/refused) in response to a demand from an authorised officer under the Court Security Act 1980 to supply (her/his) (name and address/reason for being on the court premises/evidence of (her/his) identity).

Section 3(2)(b) The accused at [place] on [date] when on court premises gave false information in response to a demand from an authorised officer under the Court Security Act 1980 to supply (her/his) (name and address/reason for being on the court premises).

Section 3(2)(c) The accused at [place] on [date] when on court premises provided false evidence of identity in response to a demand from an authorised officer under the Court Security Act 1980 to provide evidence of (her/his) identity.

[71.50]

Penalty

10 penalty units

[71.60]

Matters to be proved

1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused was on court premises. That an authorised officer demanded the accused’s name and address, reason for being on the court premises, or evidence of her or his identity. 5. The accused failed or refused to supply any of the information, gave false information, or provided false evidence of identity.

[71.70]

Other possible charges: Crimes Act 1958

Refuse to state or state false name or address to police officer: s 456AA.

[71.80]

Court premises

See [19.70].

[71.90]

Authorised officer

See [19.80].

72 [72.10]

Name and address (refuse to give etc to local government authorised officer)

Contrary to: Local Government Act 1989 s 224(6)–(8)

Section 224(6)–(8) provide:

224

Authorised officers

(1) A Council may appoint any person other than a Councillor to be an authorised officer for the purposes of the administration and enforcement of any Act, regulations or local laws which relate to the functions and powers of the Council. (1A) A Council must maintain a register that shows the names of all people appointed by it to be authorised officers. (2) The Council must issue an identity card to each authorised officer. (3) An (a) (b) (c)

identity card must— contain a photograph of the authorised officer; and contain the signature of the authorised officer; and be signed by a member of Council staff appointed for the purpose.

(3A) If a Council appoints a police officer to be an authorised officer under subsection (1), for the purposes of this section the police officer’s certificate of identity is deemed to be an identity card issued under section 224(2) and is deemed to comply with section 224(3). (4) An authorised officer must produce his or her identity card upon being requested to do so. (5) An action taken or thing done by an authorised person is not invalidated by the failure of an authorised officer to produce his or her identity card. (6) For the purposes of this section, an authorised officer may demand the name and address of a person who has committed, or who the authorised officer reasonably suspects has committed or is about to commit, an offence against any Act, regulation or local law in respect of which he or she is appointed.

Ch 72

Name and address (refuse to give etc to local government authorised officer)

233

(6A) In making such a demand, the authorised officer must inform the person of the grounds on which the demand is made in sufficient detail to enable the person to understand the nature of the offence or suspected offence. (7) An authorised officer may enter any land or building in the municipal district at any reasonable time to carry out and enforce this or any other Act or any regulation or local law. (8) A person is guilty of an offence and liable to a fine not exceeding 60 penalty units if he or she— (a) refuses to give his or her name and address upon demand by an authorised officer; or (b) obstructs or hinders an authorised officer while performing his or her duty; or (c) falsely represents himself or herself to be an authorised officer. [72.20]

Statutory reference

89/11.224.8.A 89/11.224.8.B 89/11.224.8.C

[72.30] Statement of charge Refuse name and address upon demand by authorised officer. Obstruct or hinder authorised officer on duty. Falsely represent to be authorised officer.

[72.40] Wording of charge Section 224(8)(a) The accused at [place] on [date] refused to give (his/her) name and address upon demand by an authorised officer.

Section 224(8)(b) The accused at [place] on [date] (obstructed/hindered) an authorised officer performing (her/his) duty, namely [name of authorised officer].

Section 224(8)(c) The accused at [place] on [date] falsely represented (him/her)self to be an authorised officer.

[72.50]

Penalty

60 penalty units Matters to be proved

[72.60]

Section 224(8)(a) 1. The offence occurred at the place and time alleged. 2. The offender was the accused.

234

Offences

3. That an authorised officer demanded the accused’s name and address. 4. The accused refused to give her or his name and address.

Section 224(8)(b) 1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. That an authorised officer was performing her or his duty. The accused hindered or obstructed the authorised officer.

Section 224(8)(c) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused falsely represented that he or she was an authorised officer. [72.70]

Authorised officer

An authorised officer is appointed under Local Government Act 1989 s 224(1). Police officers may be appointed as authorised officers, either individually, or as a class under s 224A. Evidence of appointment may be provided by certificate signed by the CEO of a council: s 242(2).

[72.80]

Obstruct or hinder

In contrast to powers in other legislation to require a suspect’s name and address, there is no offence under the Local Government Act provision creating an offence to state a false name or address. Such conduct might be charged as hindering or obstructing an authorised officer. See [8.150].

[72.90]

Performing her or his duty

See [8.140].

[72.100] Time limit for proceeding Local Government Act 1989 s 232(3) provides that proceedings for summary offences under that Act may be commenced up to three years after the commission of an alleged offence. This operates as an exception to the ordinary limitation period of 12 months to commence a summary criminal proceeding in Criminal Procedure Act 2009 s 7(1).

73 [73.10]

Name or address (fail to state, or state false name or address)

Contrary to: Road Safety Act 1986 s 59(2)

Section 59(2) provides:

59

General duty of driver or person in charge of motor vehicle

(1) The driver or person in charge of a motor vehicle on a highway has the following duties— (a) to stop the motor vehicle, produce for inspection his or her driver licence document or learner permit document and state his or her name and address if requested or signalled to do so by— (i) a police officer or an officer of the Corporation or of the Department (being an officer of the Corporation or of the Department authorised in writing by the Corporation or the Secretary, as the case requires, in that behalf); or (ii) an officer of or person authorised in writing in that behalf by any municipal council who has reasonable grounds for believing that any provision of the regulations relating to the mass or dimensions of a motor vehicle or trailer or to the number of hours during which a person may drive a motor vehicle or to the carrying of a log book on a motor vehicle is being contravened; and (b) to obey any lawful direction given to him or her by a police officer under subsection (5); and (c) if requested or signalled to do so by a police officer or an officer of the Corporation (being an officer of the Corporation authorised in writing by the Corporation in that behalf), to stop the motor vehicle, produce for inspection his or her log book, permit any entry in the log book to be copied and permit the person inspecting it to make any entry in it and to search the motor vehicle if that person has reasonable grounds for suspecting that more than one log book is carried on the vehicle; and (d) if requested or signalled to do so by a police officer or an officer of the Corporation (being an officer of the Corporation authorised in writing by the Corporation in that behalf) or by an officer of or person authorised in writing in that behalf by any municipal council, to stop the motor vehicle and allow it together with its load and any trailer attached to the motor vehicle and the load of

236

Offences

the trailer (whether those loads are goods or passengers or both) to be weighed or to be taken to be weighed at a weighbridge or weighing machine that is agreed on by the driver or person in charge of the motor vehicle and the person making the request or, if there is no agreement, at the weighbridge or weighing machine that is nominated by the person making the request. (1A) The driver or person in charge of a motor vehicle that is in, or being driven from or into, a railway car park or municipal council controlled car park at or in the vicinity of a designated place has the following duties— (a) to stop the motor vehicle, produce for inspection his or her driver licence document or learner permit document and state his or her name and address if requested or signalled to do so by a protective services officer; and (b) to obey any lawful direction given to him or her by a protective services officer under subsection (5A). (2) Subject to subsections (3) and (4), a person who fails to do anything that he or she is required to do under subsection (1) or (1A), or who when required to state his or her name and address states a false name or address, is guilty of an offence and liable— (a) if the offence consists of failing to obey any lawful direction given by a police officer or a protective services officer or failing to produce for inspection his or her driver licence document or learner permit document, to a penalty of not more than 5 penalty units; (b) if the offence consists of failing to produce for inspection his or her log book or failing to state his or her name or address or stating a false name or address or failing to permit an entry in his or her log book to be copied or failing to permit an entry to be made in his or her log book or failing to permit his or her vehicle to be searched for another log book, to a penalty of not more than 5 penalty units or imprisonment for a term of not more than 1 month; (c) if the offence consists of failing to stop the motor vehicle or failing to allow it together with its load to be weighed, to a penalty, in the case of a first offence, of not more than 10 penalty units or, in the case of a subsequent offence, of not more than 20 penalty units or imprisonment for a term of not more than 4 months. (3) A person, other than a person who holds a probationary driver licence or who is driving or in charge of a large vehicle in respect of which section 19(5) applies or who is driving or in charge of a motor cycle during the period of 3 years from the issue of a driver licence which authorises him or her to drive a motor cycle (or if that licence is suspended, whether by a court or the Corporation, during that 3 year period, during an additional

Ch 73 Name or address (fail to state, or state false name or address)

237

period equal to the period of the suspension) or who has been issued with a driver licence or learner permit under an order of the Magistrates’ Court made on an application for a licence eligibility order or by the Corporation under section 31KA, who fails to produce for inspection his or her driver licence document or learner permit document is not guilty of an offence if that person— (a) gives a reasonable excuse for the failure; and (b) provides a specimen of his or her signature; and (c) within 7 days produces his or her driver licence document or learner permit document at the police station (if any) specified by the police officer or other person who requested its production. (4) A driver or person in charge of a motor vehicle who fails to stop when required to do so in accordance with subsection (1)(a) or (1A)(a) is not guilty of an offence if— (a) the person making the request or signal is not in uniform; and (b) the driver or person in charge believed that that person was not— (i) a police officer, a protective services officer or an authorised officer of the Corporation or of the Department, as the case requires; or (ii) an officer of or person authorised in writing in that behalf by a municipal council. (5) A police officer may give such reasonable directions to a person driving or in charge of a motor vehicle on a highway as are, in the opinion of that police officer, necessary— (a) for carrying into execution the provisions of this Act or the regulations; or (b) for the purposes of any traffic survey being carried out in the vicinity of the highway. (5A) A protective services officer may give to a person driving or in charge of a motor vehicle that is in, or being driven from or into, a railway car park or municipal council controlled car park at or in the vicinity of a designated place such reasonable directions as are, in the opinion of the officer, necessary for carrying into execution the provisions of this Act or the regulations. (6) If a driver or person in charge of a motor vehicle who is requested under subsection (1)(d) to allow his or her motor vehicle together with its load to be weighed fails to allow it to be so weighed, the person making the request may impound the vehicle and its load, together with any trailer attached to the vehicle and the load of the trailer, and may cause the vehicle to be driven or towed onto a weighing device or to a weighbridge or weighing machine that is agreed on by the driver or person in charge and the

238

Offences

person making the request or, if there is no agreement, to the weighbridge or weighing machine that is nominated by the person making the request, to be weighed. (7) If a motor vehicle that is used on a highway and its load, together with any trailer attached to the motor vehicle and the load of the trailer, exceeds the prescribed maximum weight or any prescribed maximum dimension, a police officer or an officer of the Corporation (being an officer of the Corporation authorised in writing by the Corporation in that behalf) may require the driver or person in charge of the motor vehicle to unload any part of the load that is necessary to bring the motor vehicle, trailer or load within the prescribed maximum weight or dimension. (8) If a driver or person in charge of a motor vehicle fails to comply with a requirement under subsection (7) to unload— (a) the driver or person in charge is guilty of an offence and is liable for a first offence to a penalty of not more than 5 penalty units and for a subsequent offence to a penalty of not more than 10 penalty units; and (b) the person making the requirement may drive the motor vehicle and the trailer, if any, to a police station or other convenient place and the vehicle, trailer and load may be impounded there by any police officer. (9) A reference in this section to a driver licence document or learner permit document includes a reference to any other document which evidences the authorisation of the driver to drive the motor vehicle. (10) Neither the Crown nor the person making a request under subsection (1)(d) or a requirement under subsection (7) nor any other person is liable for any loss or damage occasioned by or arising out of anything done in the exercise or purported exercise in good faith of the powers conferred by this section. [73.20] Statutory reference 86/127.59.2

[73.30]

Statement of charge

Fail to state name or address. State false name or address.

[73.40]

Wording of charge

The accused at [place] on [date] (drove/was in charge of) a motor vehicle on a highway named [name] and by virtue of s 59(1)(a) of the Road Safety Act 1986 had a duty to state (his/her) name and address after (he/she) was requested to do so by a (police officer/authorised officer of the Corporation/an officer of or person authorised by a municipal council who reasonably believed any provision of the regulations relating to the mass or dimensions of a motor vehicle or trailer or to the

Ch 73

Name or address (fail to state, or state false name or address)

239

number of hours during which a person may drive a motor vehicle or to the carrying of a log book on a motor vehicle was being contravened) and the accused (failed to state/stated a false) (name/address/name and address).

[73.50]

Penalty

5 penalty units or 1 month’s jail

[73.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was the driver or person in charge of a motor vehicle on a highway. 4. That: (a) a police officer; or (b) an officer of the Corporation authorised in writing; or (c) an officer of or person authorised by a municipal council who reasonably believed any provision of the regulations relating to the mass or dimensions of a motor vehicle or trailer or to the number of hours during which a person may drive a motor vehicle or to the carrying of a log book on a motor vehicle is being contravened requested the accused state his or her name and address. 5. The accused failed to state his or her name or address, or stated a false name, address, or name and address.

[73.70]

Other possible charges: miscellaneous

Driving a motor vehicle when directed to stop (police pursuit): Road Safety Act 1986 s 64A. Disobey direction by a police officer or authorised person: Road Safety Road Rules 2009 r 304. Fail to state name or address on request when stopping in a parking area for people with disabilities: Road Safety Road Rules 2009 r 203. Refuse to state or state false name or address to police officer: Crimes Act 1958 s 456AA. Refuse to state, or state false, name or address to police officer, protective services officer, or authorised officer: Transport (Compliance and Miscellaneous) Act 1983 s 218B(4). Refuse to state name or address to authorised officer: Local Government Act 1989 s 224(8).

[73.80]

Powers of protective services officers and officers of the Corporation

Protective Services Officers (PSOs) are appointed under Victoria Police Act 2013 s 38. Section 37 provides that their function is to provide services for the protection of people holding certain official or public positions (for example, members of the Victorian Parliament); the general public in certain places (such as public transport patrons); and certain places of public importance (such as courthouses and the Shrine of Remembrance).

240

Offences

Under Road Safety Act 1986 s 59(1A) and (5A), PSOs are bestowed with similar powers to those provided to police officers. Their powers under this section are restricted to: • where a motor vehicle is in, or being driven from or into, a railway car park; or • where a motor vehicle is in, or being driven from or into, a municipal council-controlled car park. Neither railway car park nor municipal council-controlled car park are defined in the legislation. Additionally, these locations must themselves be at or in the vicinity of a “designated place”, defined under Victoria Police Regulations 2014 reg 27 as: (a) railway premises; (b) rail premises on or adjoining railway premises including any car parking area on the rail premises; (c) any roadway or other thoroughfare giving access to the rail premises; (d) any area on or adjoining the rail premises used by other modes of transport including bus stops and taxi ranks; (e) any car park controlled by a Council (within the meaning of the Local Government Act 1989) that is adjoining or in the vicinity of rail premises; (f) any privately owned or managed land used for a car park or other public transport purposes adjoining or in the vicinity of rail premises.

Under Victoria Police Act s 52, PSOs may also exercise all powers exercisable at common law by a constable, and while on duty at a “designated place”, all powers conferred on PSOs under the Victoria Police Act or any other Act.

74 [74.10]

Name or address (refuse or fail to state or falsely state to police on request)

Contrary to: Crimes Act 1958 s 456AA(3)(a)–(c)

Section 456AA(3)(a)–(c):

456AA

Requirement to give name and address

(1) A police officer may request a person to state his or her name and address if the police officer believes on reasonable grounds that the person— (a) has committed or is about to commit an offence, whether indictable or summary; or (b) may be able to assist in the investigation of an indictable offence which has been committed or is suspected of having been committed. (2) A police officer who makes a request under subsection (1) must inform the person of the grounds for his or her belief in sufficient detail to allow the person to understand the nature of the offence or suspected offence. (3) A person who, in response to a request made by a police officer in accordance with this section— (a) refuses or fails to comply with the request; or (b) states a name that is false in a material particular; or (c) states an address other than the full and correct address of his or her ordinary place of residence or business— is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum). (4) A person who is requested by a police officer under subsection (1) to state his or her name and address may request the member to state, orally or in writing, his or her name, rank and place of duty. (5) A police officer who, in response to a request under subsection (4)— (a) refuses or fails to comply with the request; or (b) states a name or rank that is false in a material particular; or (c) states as his or her place of duty an address other than the name of the police station which is the police officer’s ordinary place of duty; or

242

Offences

(d)

refuses to comply with the request in writing if requested to do so— is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum). [74.20] Statutory reference 6231.456AA.3.A 6231.456AA.3.B 6231.456AA.3.C

[74.30]

Statement of charge

Refuse or fail to state name when requested by police officer. State false name when requested by police officer. State false address when requested by police officer.

[74.40]

Wording of charge

Section 456AA(3)(a) The accused at [place] on [date] (refused/failed) to state (his/her) name and address when requested by a police officer who reasonably believed the accused (had committed an offence/was about to commit an offence/may have been able to assist in the investigation of an indictable offence that had been committed or was suspected of being committed).

Section 456AA(3)(b) The accused at [place] on [date] stated a false name when requested to state (his/her) name by a police officer who reasonably believed the accused (had committed an offence/was about to commit an offence/may have been able to assist in the investigation of an indictable offence that had been or was suspected of being committed).

Section 456AA(3)(c) The accused at [place] on [date] stated an address other than the full and correct address of (his/her) ordinary place of (residence/business) when requested to state (his/her) address by a police officer who reasonably believed the accused (had committed an offence/was about to commit an offence/may have been able to assist in the investigation of an indictable offence that had been committed or was suspected of being committed).

[74.50] Penalty 5 penalty units

[74.60] Matters to be proved Section 456AA(3)(a) 1. The offence occurred at the place and time alleged. 2. The offender was the accused.

Ch 74 Name or address (refuse or fail to state or falsely state to police on request)

243

3. That a police officer reasonably believed the accused had committed or was about to commit an offence; or may have been able to assist in the investigation of an indictable offence that had been or was suspected of being committed. 4. The police officer requested the accused to state his or her name and address. 5. The accused refused or failed to give his or her name and address.

Section 456AA(3)(b) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. That a police officer reasonably believed the accused had committed or was about to commit an offence; or may have been able to assist in the investigation of an indictable offence that had been or was suspected of being committed. 4. The police officer requested the accused to state his or her name and address. 5. The accused stated a false name.

Section 456AA(3)(c) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. That a police officer reasonably believed the accused had committed or was about to commit an offence; or may have been able to assist in the investigation of an indictable offence that had been or was suspected of being committed. 4. The police officer requested the accused to state his or her name and address. 5. The accused stated an address other than the full and correct address of his or her ordinary place of residence or business.

[74.70]

Other possible charges: miscellaneous

State false name or address to police officer; officer of the Roads Corporation; officer of the Department of Transport, Planning and Local Infrastructure; or Protective Services Officer: Road Safety Act 1986 s 59(1)(a). Refuse to state, or state false, name or address to police officer, protective services officer, or authorised officer: Transport (Compliance and Miscellaneous) Act 1983 s 218B(4). Refuse to state name or address to authorised officer: Local Government Act 1989 s 224(8).

[74.80]

Police officer

Police officer is defined in Crimes Act 1958 s 3(1) to have the same meaning as in the Victoria Police Act 2013.

[74.90]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [1A.5.30]ff.

75 [75.10]

Name or rank or place of duty (police officer refusing or failing to state on request)

Contrary to: Crimes Act 1958 s 456AA(4)–(5)

Section 456AA(4)–(5) provides:

456AA

Requirement to give name and address

(1) A police officer may request a person to state his or her name and address if the police officer believes on reasonable grounds that the person— (a) has committed or is about to commit an offence, whether indictable or summary; or (b) may be able to assist in the investigation of an indictable offence which has been committed or is suspected of having been committed. (2) A police officer who makes a request under subsection (1) must inform the person of the grounds for his or her belief in sufficient detail to allow the person to understand the nature of the offence or suspected offence. (3) A person who, in response to a request made by a police officer in accordance with this section— (a) refuses or fails to comply with the request; or (b) states a name that is false in a material particular; or (c) states an address other than the full and correct address of his or her ordinary place of residence or business— is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum). (4) A person who is requested by a police officer under subsection (1) to state his or her name and address may request the member to state, orally or in writing, his or her name, rank and place of duty. (5) A police officer who, in response to a request under subsection (4)— (a) refuses or fails to comply with the request; or (b) states a name or rank that is false in a material particular; or (c) states as his or her place of duty an address other than the name of the police station which is the police officer’s ordinary place of duty; or

Ch 75 Name/rank/place of duty (police officer refusing/failing to state on request)

245

(d)

refuses to comply with the request in writing if requested to do so— is guilty of a summary offence punishable on conviction by a level 11 fine (5 penalty units maximum). [75.20] Statutory reference 6231.456AA.5.A 6231.456AA.5.B 6231.456AA.5.C 6231.456AA.5.D

[75.30]

Statement of charge

Police officer refuse or fail to comply with request to state name, rank and place of duty. Police officer state name or rank that is false in material particular in response to request. Police officer state address other than the name of usual duty police station. Police officer refuse request to state name, rank and place of duty in writing.

[75.40]

Wording of charge

Section 456AA(5)(a) The accused at [place] on [date] was a police officer who requested a person under Crimes Act 1958 s 456AA(1) to state (her/his) name and address, and when that person requested the accused to state (her/his) name, rank and place of duty, the accused refused or failed to comply with the request.

Section 456AA(5)(b) The accused at [place] on [date] was a police officer who requested a person under Crimes Act 1958 s 456AA(1) to state (her/his) name and address, and when that person requested the accused to state (her/his) name, rank and place of duty, the accused stated a (name/rank) that was false in a material particular.

Section 456AA(5)(c) The accused at [place] on [date] was a police officer who requested a person under Crimes Act 1958 s 456AA(1) to state (her/his) name and address, and when that person requested the accused to state (her/his) name, rank and place of duty, the accused stated as (her/his) place of duty an address other than the name of the police station which was the accused’s ordinary place of duty.

Section 456AA(5)(d) The accused at [place] on [date] was a police officer who requested a person under Crimes Act 1958 s 456AA(1) to state (her/his) name and address, and when that person requested the accused to state in writing (her/his) name, rank and place of duty, the accused refused to comply with the request in writing.

246

[75.50]

Offences

Penalty

5 penalty units.

[75.60]

Matters to be proved

Section 456AA(5)(a) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was a police officer. 4. The accused requested a person under Crimes Act 1958 s 465AA(1) to state his or her name and address. 5. The person requested the accused to state his or her name, rank and place of duty. 6. The accused refused or failed to comply with the request.

Section 456AA(5)(b) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was a police officer. 4. The accused requested a person under Crimes Act 1958 s 465AA(1) to state his or her name and address. 5. The person requested the accused to state his or her name, rank and place of duty. 6. The accused stated a name or rank that was false in a material particular.

Section 456AA(5)(c) 1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused was a police officer. The accused requested a person under Crimes Act 1958 s 465AA(1) to state his or her name and address.

5. The person requested the accused to state his or her name, rank and place of duty. 6. The accused stated as his or her place of duty an address other than the name of the police station that was the accused’s ordinary place of duty.

Section 456AA(5)(d) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was a police officer. 4. The accused requested a person under Crimes Act 1958 s 465AA(1) to state his or her name and address. 5. The person requested the accused to state in writing his or her name, rank and place of duty. 6. The accused refused to comply with the request in writing.

Ch 75

[75.70]

Name/rank/place of duty (police officer refusing/failing to state on request)

247

Other possible charges: common law

Misconduct in public office.

[75.80]

Police officer

Police officer is defined in Crimes Act 1958 s 3(1) to have the same meaning as in the Victoria Police Act 2013.

[75.90]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [1A.5.30]ff.

76 [76.10]

Obscene, indecent, threatening language and behaviour etc in public

Contrary to: Summary Offences Act 1966 s 17(1)(a)–(d)

Section 17(1)(a)–(d) provide:

17 Obscene, indecent, threatening language and behaviour etc. in public (1) Any person who in or near a public place or within the view or hearing of any person being or passing therein or thereon— (a) sings an obscene song or ballad; (b) writes or draws exhibits or displays an indecent or obscene word figure or representation; (c) uses profane indecent or obscene language or threatening abusive or insulting words; or (d) behaves in a riotous indecent offensive or insulting manner— shall be guilty of an offence. For a second offence—15 penalty units or imprisonment for three months; For a third or subsequent offence—25 penalty units or imprisonment for six months. (2) Where in the opinion of the chairman presiding at a public meeting any person in or near the hall room or building in which the meeting is being held— (a) behaves in a riotous indecent offensive threatening or insulting manner; or (b) uses threatening abusive obscene indecent or insulting words— the chairman may verbally direct any police officer who is present to remove such person from the hall room or building or the neighbourhood thereof and the police officer shall remove such person accordingly. (3) Where at a general meeting of a corporation a person wilfully fails to obey a ruling or direction given in good faith by the chairman presiding at the meeting for the preservation of order at the meeting, such person shall be liable to be removed from the meeting if the meeting so resolves or where because the meeting has been so disrupted that it is not practicable to put such a resolution to the meeting the Chairman so directs. (4) Where a person is liable to be removed from a meeting under subsection (3) the Chairman may verbally direct any police officer who is

Ch 76 Obscene, indecent, threatening language and behaviour etc in public

249

present to remove such person from the hall, room or building in which the meeting is being held or the neighbourhood thereof and the police officer shall remove such person accordingly. [76.20] Statutory reference 7405.17.1.A 7405.17.1.B 7405.17.1.C 7405.17.1.D

[76.30] Statement of charge Sing obscene song in or near etc a public place: s 17(1)(a). Exhibit or display indecent or obscene word in or near etc a public place: s 17(1)(b). Use indecent or obscene language, or abusive or threatening words in or near etc a public place: s 17(1)(c). Behave in riotous, indecent, offensive, or insulting manner in or near etc a public place: s 17(1)(d).

[76.40] Wording of charge Section 17(1)(a) The accused at [place] on [date] sang an obscene (song/ballad) (in/near/within hearing of a person passing in or on) a public place.

Section 17(1)(b) The accused at [place] on [date] (wrote/drew/exhibited/displayed) an (indecent/ obscene) (word/figure/representation) (in/near/within view of a person passing in or on) a public place.

Section 17(1)(c) The accused at [place] on [date] used (profane language/indecent language/obscene language/threatening words/abusive words/insulting words) (in/near/within hearing of a person passing in or on) a public place.

Section 17(1)(d) The accused at [place] on [date] behaved in a (riotous/indecent/offensive/insulting) manner (in/near/within the (view/hearing) of a person passing in or on) a public place.

[76.50]

Penalty

For a first offence: 10 penalty units or imprisonment for two months. For a second offence: 15 penalty units or imprisonment for three months. For a third or subsequent offence: 25 penalty units or imprisonment for six months.

250

[76.60]

Offences

Matters to be proved

Section 17(1)(a) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was in or near a public place, or within hearing of a person passing in or on a public place. 4. The accused sang an obscene song or ballad.

Section 17(1)(b) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was in or near a public place, or within view of a person passing in or on a public place. 4. The accused wrote, drew, exhibited or displayed an indecent or obscene word, figure or representation.

Section 17(1)(c) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was in or near a public place, or within hearing of a person passing in or on a public place. 4. The accused used profane, indecent or obscene language, or threatening, abusive or insulting words.

Section 17(1)(d) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was in or near a public place, or within view or hearing of a person passing in or on a public place. 4. The accused behaved in a riotous, offensive or insulting manner.

[76.70]

Other possible charges: Summary Offences Act 1966

Trespass in manner likely to provoke breach of the peace: s 9(1)(g). Disorderly conduct in public: s 17A. Offensive behaviour by a person in a motor vehicle in a declared area: s 18. Wilful and obscene exposure: s 19 (until 30 June 2017). Sexual exposure: s 19 (from 1 July 2017).

[76.80]

Other possible charges: common law

Riot. Rout. Affray. Public nuisance.

Ch 76

[76.90]

Obscene, indecent, threatening language and behaviour etc in public

251

Other possible charges: miscellaneous

Use indecent or offensive etc language, or behave in an indecent or offensive etc manner on public transport vehicle or premises: Transport (Compliance and Miscellaneous) (Conduct on Public Transport) Regulations 2015 reg 26. Offensive behaviour toward sex workers: Sex Work Act 1994 s 16.

[76.100]

Public place

Offences contrary to this section can occur in three discrete locations: (i) in a public place; (ii) near a public place; or (iii) within the hearing or view of a person passing in a public place. The first and second limbs of the definition require only that the impugned conduct is publicly audible or visible, but not that some person actually perceived it. However, if a witness has to take unusual steps to perceive the conduct, it is not caught by the section. When a police officer had to crouch on his hands and knees and look under a locked public toilet cubicle door to see the behaviour of the accused, it was not public behaviour: Inglis v Fish [1961] VR 607 at 612. The third limb requires that someone actually heard or saw the impugned conduct: Lunt v Bramley [1959] VR 313; Shaw v Medvecky [1959] VR 733. Public place is defined broadly and inclusively in s 3. It has the effect of extending the common law meaning of “public place”, but does not displace it: Dyson v Littlejohn (1901) 26 VLR 283; see also Hardman v Minehan (2003) 57 NSWLR 390 at 392. The concept of “public place” is not fixed, and may change according to social standards, and also depending on the circumstances of the case: Ward v Marsh [1959] VR 26; McIvor v Garlick [1972] VR 129; McKenzie v Stratton [1971] VR 848 at 851; Mansfield v Kelly [1972] VR 744 at 746. Notably, it includes any open place to which the public have or are permitted access, whether with or without payment. See also Sawtell v Regan (1882) 3 LR (NSW) 362; Glynn v Simmons [1952] 2 All ER 47; Attorney-General (SA) v Huber (1971) 2 SASR 142. This has the effect that private premises such as shopping malls are a “public place” for the purposes of the Summary Offences Act 1966 during those times they are open to or used by the public: Ward v Marsh. Similarly, caravan parks are open to members of the public generally, and so are public places within the meaning of this section: DPP v Vivier [1991] 4 All ER 18; R v Sweeney [1984] 1 Qd R 628. A place where the public routinely goes, whether with legal authority or not, is a public place. Hence, a common walkway in a block of units was a public place when it was regularly used by the public: In the Appeal of Camp [1975] 1 NSWLR 452. The foyer of a hospital might be a public place, but if entry is not permitted to the public outside certain hours notified by signs at the entrance, then during those hours the foyer is not a public place even if the doors are not locked and the public could gain entry: McIvor v Garlick; Nilsson v McDonald (2009) 19 Tas R 173. So, too, a waiting room to a doctor’s surgery might be a public place only for certain specified times: McAneny v Kearney; Ex parte Kearney [1966] Qd R 306. The foyer of an open police station is a public place: Bethune v Heffernan; Heelan v Heyward [1986] VR 417.

252

Offences

When a vehicle is in a public place, its interior is also a public place: McKenzie v Stratton [1971] VR 848; Mansfield v Kelly. However, where the public is shielded from conduct by a lawful barrier, these provisions might not apply. Arguably this is because there is no public character to the conduct. Hence, a drunken passenger in a private car or taxi being taken home rather than driving whilst intoxicated, might not be liable to the offence of public drunkenness: Atkinson v Gibson [2012] 2 Qd R 403. Similarly, a loaded firearm carried inside a vehicle itself in a public place was held not to be enough to prove possession of a loaded firearm in a public place: Hardman v Minehan.

[76.110] Indecent and obscene The Shorter Oxford English Dictionary (3rd ed, New York, 1993) defines indecent as “1. Unbecoming; in extremely bad taste; highly unsuitable. 2. Uncomely, inelegant. 3. Offending against recognized standards of decency, esp in relation to sexual matters; immodest; suggesting or tending to obscenity.” The Shorter Oxford English Dictionary defines obscene as “1. Highly offensive, morally repugnant; repulsive, foul, loathsome. 2. Offensively or grossly indecent, lewd; Law (of a publication) tending to deprave and corrupt those who are likely to read, see, or hear the contents.” “Indecent” may describe offensive or objectionable conduct, or lewd behaviour; “obscene” is filthy, bawdy, lewd and disgusting, to an extent that tends to deprave and corrupt: Crowe v Graham (1968) 121 CLR 375 at 389–400; R v Close [1948] VLR 445. It is the tendency to deprave or corrupt which is important to the meaning of “obscene”: R v Anderson [1972] 1 QB 304. The subject matter might merely involve fantasies, as in DPP v Whyte [1972] AC 849. Or it might not even involve sexual activity, as in John Calder (Publications) Ltd v Powell [1965] 1 QB 509 (concerning drug-taking) and Calder and Boyars Ltd [1969] 1 QB 151 (concerning violence). “Obscene” and “indecent” are not perfect synonyms, but express the same ideas to different degrees, where “obscene” is a stronger description than “indecent”, and “obscene” is at the upper end of the scale and “indecent” at the lower: R v Stanley [1965] 2 QB 327; Monis v The Queen (2013) 249 CLR 92 at 203. In R v Gibson [1990] 2 QB 619, the UK Court of Appeal held that earrings made of freeze-dried human foetuses of three to four months’ gestation and displayed as art were not “obscene” within the meaning of the Obscene Publications Act 1959 (UK) as they were not likely to corrupt public morals. That case noted, at 623, that the ordinary meaning of “obscene” is something that is a serious breach of recognised standards or propriety on account of its tendency to corrupt morals, or its indecent appearance, or to engender revulsion or disgust or outrage. Words such as “fuck” and its derivatives, and “cunt” are not necessarily indecent in all contexts, but nor is it the case that they can never be indecent: Hortin v Rowbottom (1993) 61 SASR 313 at 322; Romeyko v Samuels (1972) 2 SASR 529 at 560–563; Dalton v Bartlett (1972) 3 SASR 549 at 555. See also Coleman v Power (2004) 220 CLR 1 at 5–6. In Romeyko v Samuels, Bray CJ set down five propositions derived from Crowe v Graham: • First, indecency is assessed against contemporary standards.

Ch 76

Obscene, indecent, threatening language and behaviour etc in public

253

• Secondly, those contemporary standards must also be assessed in their circumstances or context. • Thirdly, unless the context of the statute provides otherwise, the test for obscenity is the same as for indecency. (In Crowe v Graham, the statute concerned the offence of publishing “indecent or obscene material”, which was held to be one offence. In contrast, the Summary Offences Act 1966 does “provide otherwise” with regards to the test for obscenity and indecency.) • Fourthly, the impugned words must be looked at in the context of the publication as a whole. (And so, words must be considered in the context of a whole conversation, and behaviour in the context of an entire incident.) • Fifthly, evidence beyond the words or conduct itself is ordinarily inadmissible. Hence, evidence of publishings in other books, or expert opinion about the words or conduct or contemporary standards, is normally irrelevant. Where expletives such as those above are directed at police officers, context is significant in determining if the words (or conduct) are indecent. If members of the public are not in fact present, the police will rarely be justified in arresting or charging a person with using indecent language, as “[b]y their training and temperament police officers must be expected to resist the sting of insults directed to them”: Coleman v Power at 79. But they are not expected to be completely impervious to insult: Coleman v Power at 27. The situation is different if members of the public are watching and listening, if for no other reason than to expect police to tolerate such behaviour without the ability to act would gravely impair their authority: Ferguson v Walkely (2008) 17 VR 647 at 655–657. Community standards are not determined by reference to the standards of a particular witness: R v E (A Child) (1994) 76 A Crim R 343. Using the word “fuck” purely as an expletive and without sexual overtones or implications was not obscene. In Heanes v Herangi (2007) 175 A Crim R 175, telling a police officer to “fuck off” was held in the circumstances to amount to disorderly conduct, contrary to Criminal Code (WA) s 74A, where the words were directed to two police officers, in public, and with about 15 people around. In Gul v Creed [2010] VSC 185, the finding of guilt for using indecent language for calling another member of the public a “fucking bitch” was upheld. When a woman exposed herself naked in a public place, it was not necessarily indecent when the nature of the public place and circumstances were considered, such as a strip club in Kings Cross open to the public upon payment: Moloney v Mercer [1971] 2 NSWLR 207.

[76.120] Profane The Shorter Oxford English Dictionary (3rd ed, New York, 1993) defines the verb profane as: “1. Treat (what is sacred) with irreverence or contempt; desecrate. 2. Abuse or defile (a thing) where reverence or respect is due.” As a noun and adjective, it defines profane as: “2. Not pertaining or devoted to what is sacred or biblical; secular; civil. 3. Characterized by disregard or contempt of sacred things; esp irreverent, blasphemous.” The few reported cases considering profanity have reflected the previous predominantly Christian heritage of the UK and countries such as Australia, but there is no reason why profanity could not or should not apply to irreverence toward other faiths or beliefs.

254

Offences

Because profanity is defined to include blasphemy, cases considering the archaic crime of blasphemous libel might be relevant to this offence, though in the UK at least, the common law offence of blasphemy is considered to apply only to Christianity: R v Chief Metropolitan Stipendiary Magistrate; Ex parte Choudhury [1991] 1 QB 429 (“The Satanic Verses” case). Denial of Christianity or promoting anti-Christian doctrine does not constitute blasphemy: Bowman v Secular Society Ltd [1917] AC 406. It is doubtful if the offence still exists in Victoria, but if it does, it requires proof of civil unrest following or likely to follow the purported blasphemous conduct: Pell v The Council of the Trustees of the National Gallery of Victoria [1998] 2 VR 391 (the “Piss Christ” case).

[76.130]

Offensive

Offensive describes communications or behaviour that range from indecent to obscene: Monis v The Queen (2013) 249 CLR 92 at 203. In Connors v Craigie (1994) 76 A Crim R 502 Mr Craigie swore at two police officers, saying, “Fuck off all you white cunts. We’ve had enough of you. We’d like to see you all dead.” On appeal, it was held a magistrate should have found Craigie’s language was offensive. However, that case did not consider any of the cases declaring the need to consider the context of any impugned conduct or words. Following the ruling in Monis that offensive language describes both indecent or obscene language, Connors v Craigie must be considered cautiously, and the best that can be said is that such language would not always be offensive, but nor would it never be offensive, as discussed at [76.110]. Conduct is considered offensive by reference to the behaviour, and the circumstances and place in which it occurs. It must be calculated to wound the feelings, arouse anger or resentment, or disgust or outrage in the mind of a reasonable person: Inglis v Fish [1961] VR 607 at 610–611, citing Worcester v Smith [1951] VLR 316. In Ball v McIntyre (1966) 9 FLR 237 Kerr J held that behaviour would be offensive when normally calculated to wound the feelings, arouse anger, resentment, disgust or outrage in the mind of a reasonable person. Climbing on a statue of King George V and hanging a placard stating “I will not fight in Vietnam” during a protest against Australia’s involvement with the United States in the war in Vietnam was not offensive. Most likely such protest would also now be considered protected by the implied freedom of political communication in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 and Coleman v Power (2004) 220 CLR 1. Chroming (that is, inhaling fumes from metallic spray-paint) in public is not offensive behaviour: Nelson v Mathieson [2003] VSC 451. Recorded telephone messages left for an MP about immigration and asylum issues referring to “wogs”, “Pakis”, “black bastards” and “niggers” were grossly offensive, whether anyone heard them or whatever the reaction of any recipient: DPP v Collins [2006] 1 WLR 2223. “Indecent” or “grossly offensive” were ordinary English words, and a court was entitled to find that images of aborted foetuses sent to pharmacies were indecent or grossly offensive, even accepting the appellant claimed her letters were political or educational: Connolly v DPP [2008] 1 WLR 276.

Ch 76 Obscene, indecent, threatening language and behaviour etc in public

255

[76.140] Threatening In Chambers v DPP [2013] 1 WLR 1833, Paul Chambers was acquitted of tweeting contrary to Communications Act 2003 (UK) s 127, which proscribed sending by a public electronic communications network a message that was grossly offensive or of an indecent, obscene or menacing character. His tweet read, “Crap! Robin Hood Airport is closed. You’ve got a week and a bit to get your shit together otherwise I am blowing the airport sky high!!” Five days later, an airport manager saw the tweet, and reported it to the police. Chambers claimed his tweet was a joke, and denied intending it to menace, or recognising a risk it may provoke fear or apprehension amongst the public. In assessing if the communication was criminal, a court had to consider its terms and the context and manner of communication. In the circumstances, it was not open to conclude the tweet was of a menacing character, and Chambers’ conviction was quashed. Where a threat was qualified – such as when the appellant said, “If you want fight, you have it as much as you like. I will give you all the fight that you want.” – the words were held to be a challenge or invitation to fight, and not a threat: Lipman v McKenzie (1903) 5 WALR 17.

[76.150] Abusive or insulting The Shorter Oxford English Dictionary (3rd ed, New York, 1993) defines abusive as an adjective as: “3. Employing insulting language; scurrilous.” The Shorter Oxford English Dictionary defines insult as a verb as: “1. Show arrogance or scorn; boast, exult, esp insolently or contemptuously. Also foll by over, on, the person or thing scorned; in, of, the cause of boasting. 2. Treat with scornful abuse; subject to indignity; (of a person or thing) offend the modesty or self-respect of.” In Annett v Brickell [1940] VLR 312, O’Bryan J considered the offence of using insulting words in a public place whereby a breach of the peace was likely to be occasioned, contrary to Police Offences Act 1928 s 24. The court held that “insulting” was a word of broad meaning, and could include scornful abuse of a person offering personal indignity or affront. The test for whether words are insulting is an objective one, but must consider the circumstances. Sometimes the same words can be a compliment or insult, depending on the occasion or way they are used. In some circumstances, the words might not be insulting because they are fair comment, criticism or admonition: Gebert v Innocenzi [1946] SASR 172 at 174. An anti-Semitic and anti-communist public speech at Trafalgar Square before an audience of 2000 and later 5000 people, comprising many Jewish people and communists, was highly insulting, and the court originally hearing the charge was wrong to find they would not have been likely to lead to breaches of the peace: Jordan v Burgoyne [1963] 2 QB 744. A peaceful demonstration on the tennis courts at Wimbledon to protest against the apartheid policies of the then South African government, interrupting play and provoking resentment among some spectators, could be insulting behaviour. It was an error of the Justices first hearing the charge to conclude it was not. The meaning of an ordinary word of the English language such as “insulting” is a question of fact, not a question of law: Brutus v Cozens [1973] AC 854. The intent of the person whose words or conduct is subject to charge is irrelevant. If an average person who heard the words or saw the conduct was or potentially would be insulted, that is sufficient for it to be insulting words or behaviour. On

256

Offences

that basis, masturbating in view of only one other person in a public toilet could be characterised as insulting, but such a finding is not inevitable. Rather, it is for the court to decide on the whole of the evidence: Parkin v Norman [1983] 1 QB 92 at 101.

[76.160]

Riotous

Riotous behaviour causes a member of the public of “reasonably courageous disposition” to fear that a breach of the peace is likely: Ex parte Jackson; Re Dowd (1932) 49 WN (NSW) 126; Scott v Howard [1912] VLR 189. If no member of the public perceives the behaviour, the offence is not made out: Burton v Mills (1896) 2 ALR 49. At common law, a riot requires the presence and participation of three or more people who have and act on a common purpose to help one another by force, and who use or threaten the use of force to the terror of at least one person of reasonable firmness or courageous disposition: Anderson v Attorney-General (NSW) (1987) 10 NSWLR 198 at 209; Parhizkar v The Queen (2014) 88 NSWLR 647 at 658–660. See also Ian Freckelton and Kerryn Cockroft, Indictable Offences in Victoria (6th ed, Thomson Reuters) [193.10]–[193.190]. Riotous behaviour requires the element of conduct that causes alarm to the public, but is otherwise distinct from the common law offence of riot: Scott v Howard; R v Langford (1843) Car & M 602; 174 ER 653.

[76.170] Exposing a person’s anal or genital region Crimes Amendment (Sexual Offences) Act 2016 s 24 inserts s 17(1A) to provide that indecent offensive or insulting behaviour includes exposing to any extent a person’s anal or genital region. The amendment commences from 1 July 2017 or earlier if so proclaimed: Crimes Amendment (Sexual Offences) Act 2016 s 2. The explanatory memorandum states this amendment is intended to capture non-sexual exposure of genitals and the anal region. The second reading speech does not expressly discuss the reason for the provision, but it seems it is intended to harmonise this nomenclature with that contained in the new offence of sexual activity directed at another person contrary to Crimes Act 1958 s 48(1): Victoria, Parliamentary Debates, Legislative Assembly, 9 June 2016, 2439–2442 (Martin Pakula, Attorney-General). The example contained in Summary Offences Act 1966 s 17(1A) may extend the meaning of, but not limit, the provision: Interpretation of Legislation Act 1984 s 36A. However, although the example refers to “mooning” – exposing a person’s buttocks – the reference in the provision to “anal region” seems more limited. The definition of genital or anal region in Summary Offences Act 1966 s 40 applies only to Div 4A of that Act, and so is not applicable to s 17. It may be that “mooning” without exposing the anus is not caught by this provision. Nonetheless, the general considerations above for offensive behaviour etc will still apply.

[76.180]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.2790]ff.

77 [77.10]

Parole (breach term or condition)

Contrary to: Corrections Act 1986 s 78A(1)

Section 78A(1) provides:

78A

Offence to breach a term or condition of parole

(1) A prisoner while released under a parole order must not, without reasonable excuse, breach a prescribed term or condition of that parole order. (2) Despite anything to the contrary in section 7(1) of the Criminal Procedure Act 2009, a proceeding for an offence under subsection (1) may be commenced within 2 years after the commission of the alleged offence. Note: See sections 16 and 33 of the Sentencing Act 1991.

[77.20] Statutory reference 86/117.78A.1

[77.30] Statement of charge Breach parole term or condition.

[77.40] Wording of charge The accused at [place] on [date] was a prisoner released under a parole order who, without reasonable excuse, breached a prescribed term or condition of that order.

[77.50]

Penalty

3 months’ jail, 30 penalty units, or both Additionally, the Adult Parole Board may cancel parole under Corrections Act 1986 s 77, and under s 77C, may (or may not) direct that some or all of the time the parole order was in effect is to be regarded as time served.

[77.60] 1. 2. 3. 4. 5.

The The The The The

[77.70]

Matters to be proved offence occurred at the place and time alleged. offender was the accused. accused was a prisoner released under a parole order. accused breached a prescribed term or condition of that parole order. accused did not have a reasonable excuse for the contravention. Prisoner

Prisoner is defined in Corrections Act 1986 s 3(1) to mean a person who under Pt 1A is deemed to be in the legal custody of the Secretary to the Department of Justice and Regulation.

258

Offences

Curiously, s 6C expressly provides that a person on parole is not in the legal custody of the Secretary. It would seem then that a person released on parole is not a prisoner.

[77.80]

Parole order

Parole orders are dealt with in Corrections Regulations 2009 reg 83.

[77.90]

Prescribed term or condition

Prescribed term or condition is defined in Corrections Regulations 2009 reg 88A, prescribing and modifying certain of mandatory terms and conditions of a parole set out in regs 83A and 83B so that a prisoner must not: (a) break any law, in or outside Victoria, by the commission of an offence punishable by imprisonment; (b) fail to attend in person at a community corrections centre as directed; (c) leave Victoria without written permission; (d) consume any alcohol; enter or be in an area specified in the parole order; leave a specified area during specified hours; contact a person or class of person specified in the order; enter or be in a place specified in the parole order; reside overnight anywhere not approved, and must not reside overnight anywhere except an approved residence; or contact a person or class of persons without supervision.

[77.100]

Reasonable excuse

The accused has the evidential burden of raising reasonable excuse: see [4.30].

78 [78.10]

Personal safety (contravene intervention order)

Contrary to: Personal Safety Intervention Orders Act 2010 s 100(2)

Section 100(2) provides:

100 Offence for contravention of personal safety intervention order (1) This section applies if a person against whom a personal safety intervention order has been made— (a) has been served with a copy of the order; or (b) has had an explanation of the order given to the person in accordance with section 40 or 76. (2) The person must not contravene the order. [78.20] Statutory reference 10/53.100.2

[78.30]

Statement of charge

Contravene personal safety intervention order.

[78.40]

Wording of charge

The accused at [place] on [date] contravened a personal safety intervention order by [describe nature of contravention] after (she/he) was served with that order or was given an explanation of the order in accordance with s (40/76) of the Personal Safety Intervention Orders Act 2010.

[78.50]

Penalty

2 years’ jail or 240 penalty units

[78.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was served a personal safety intervention order, or given an explanation of the order in accordance with Personal Safety Intervention Orders Act 2010 s 40 or s 76. 4. The accused contravened the order.

[78.70]

Other possible charges: Crimes Act 1958

Injury (intentionally causing serious): s 16. Injury (intentionally or recklessly causing): s 17.

260

Offences

Threat to inflict serious injury: s 21. Threat to kill: s 20. Stalking: s 21A. Threat to damage property: s 198.

[78.80]

Other possible charges: Summary Offences Act 1966

Behave in riotous, indecent, offensive, or insulting manner in or near etc a public place: s 17(1)(d). Disorderly conduct in public: s 17A. Unlawful assault: s 23. Aggravated assault: s 24.

[78.90]

Service

Personal Safety Intervention Orders Act 2010 s 174 requires service by the court on a respondent of a personal safety intervention order following its making. Magistrates’ Court (Personal Safety Intervention Orders) Rules 2011 r 5.01 permits a court to serve notices or other documents, but not orders, by post, fax or email. The manner of service is specified in Personal Safety Intervention Orders Act s 176. Personal service is required, or substituted service can be ordered in accordance with s 176(4) and Magistrates’ Court (Personal Safety Intervention Orders) Rules r 5.05. Personal service is often made at a courthouse by court staff if the respondent is present and agrees to accept service. This would seem to be either an implied exception to the privilege against civil service at court discussed at [39.100], or more likely, an implied waiver of that privilege by the respondent.

[78.100] Explanation of notice In contrast to family violence intervention orders, a personal safety intervention order can be valid because of service of the order or explanation of the order. The requirements for and contents of explanations about interim personal safety intervention orders are specified in Personal Safety Intervention Orders Act 2010 s 40. That explanation must be provided in writing in the prescribed form, except if the registrar is satisfied a magistrate gave a clear oral explanation. There is at present no form prescribed in the Magistrates’ Court (Personal Safety Intervention Orders) Rules 2011. Personal Safety Intervention Orders Act s 76 provides that if a respondent is before the court when a final order is made, the court must explain the order orally, and give a written notice explaining the order along with prescribed information. There is at present no information prescribed in the Magistrates’ Court (Personal Safety Intervention Orders) Rules. Personal Safety Intervention Orders Act s 40(7) provides that a failure by a registrar to explain an interim order does not invalidate that order. Section 76(5) provides that a failure by the court to explain a final order or give a written notice does not affect the validity of the order. As a result, an unexplained order would validly allow police to arrest and detain a person under s 101 for allegedly contravening the order, but the absence of explanation would be fatal to a criminal prosecution

Ch 78

Personal safety (contravene intervention order)

261

contrary to s 100(2) for that alleged contravention. That is, the order would provide protection for the protected person, but not allow for a successful criminal prosecution. In that circumstance it could also be open to the accused to assert their alleged contravention was not a knowing contravention. The difference, though, is between the failure of the prosecution to prove an element of the offence beyond reasonable doubt, and the accused adducing evidence to persuade the court of their lack of guilt. Evidence proving service may be given orally, though s 177 obliges a person serving a document under the Act to file a certificate of service, and Magistrates’ Court (Personal Safety Intervention Orders) Rules r 5.02 requires it be filed as soon as practicable.

[78.110] Location of offending Personal Safety Intervention Orders Act 2010 s 100 is silent about where a contravention can occur. However, it seems that the common law will also permit a court to find it has geographical jurisdiction to try a charge where there is a real and substantial link between the offence and the territory. This would have the effect of applying the terminatory and initiatory theory of criminal offending, discussed at [39.120].

[78.120]

Mens rea

See [39.130].

79 [79.10]

Proceeds of crime (dealing with property reasonably suspected as such)

Contrary to: Crimes Act 1958 s 195

Section 195 provides:

195 Dealing with property suspected of being proceeds of crime A person who deals with property if there are reasonable grounds to suspect that the property is proceeds of crime is guilty of a summary offence and liable to level 7 imprisonment (2 years maximum). [79.20] Statutory reference 6231.195

[79.30]

Statement of charge

Deal with property suspected of being proceeds of crime.

[79.40]

Wording of charge

The accused at [place] on [date] dealt with property described as [description of property] and there were reasonable grounds to suspect it was proceeds of crime.

[79.50]

Penalty

2 years’ jail

[79.60] 1. 2. 3. 4.

Matters to be proved

The offence occurred at the place and time alleged. The offender was the accused. The accused dealt with property. There were reasonable grounds to suspect the property was proceeds of crime.

[79.70]

Other possible charges: Crimes Act 1958

Obtain property by deception: s 81. Handle stolen goods: s 88. Knowingly deal with proceeds of crime and intending to conceal it was proceeds of crime: s 194(1) (indictable offence). Knowingly deal with proceeds of crime: s 194(2) (indictable offence). Recklessly deal with proceeds of crime: s 194(3) (indictable offence).

Ch 79 Proceeds of crime (dealing with property reasonably suspected as such)

263

Negligently deal with proceeds of crime: s 194(4) (indictable offence).

[79.80]

Other possible charges: Criminal Code Act 1995 (Cth)

Dealing in proceeds of crime of any value: s 400.8. Dealing with property reasonably suspected of being proceeds of crime: s 400.9.

[79.90]

Other possible charges: Summary Offences Act 1966

Unlawful possession: s 26. Possession of skin or carcass of stolen cattle: s 30. Possession of property from wrecks: s 31. Retaining or disposing of property as workmen etc: s 34. Obtaining goods by valueless cheque: s 37.

[79.100] Property Property is defined at Crimes Act 1958 s 193 to include money and all other property real or personal including things in action and other intangible property.

[79.110] Deal with Deal with is defined at Crimes Act 1958 s 193 to include receive, possess, conceal or dispose of.

[79.120] Proceeds of crime Proceeds of crime is defined at Crimes Act 1958 s 193 to mean: property that is derived or realised, directly or indirectly, by any person from the commission of– (a) an offence referred to in Schedule 1 to the Confiscation Act 1997; or (b) an offence against a law of the Commonwealth that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence).

Schedule 1 to the Confiscation Act 1997 lists indictable offences against the law of Victoria, along with a compendious list of specific offences throughout a great many Acts. Section 195 is specifically listed as a Schedule 1 offence, but that seems simply to create a circular definition. In Rinaldi v Watts (2003) 138 A Crim R 456, Kellam J held that firearms found in the possession of the appellant and reasonably suspected of being stolen were proceeds of crime for the purpose of Confiscation Act 1997 s 123, the predecessor to s 197. It was not necessary for the property to be converted for it to be proceeds of crime. This analysis is entirely logical: a direct derivation from theft or analogous offences is the property stolen; an indirect derivation is where the property is sold or disposed of and converted to cash or some other property, or even intangible property such as a debt or chose in action. Were it otherwise, it would be difficult to identify what might be indirectly derived property.

264

Offences

[79.130] Reasonably suspected In DPP v Pastras (2005) 11 VR 449 Bongiorno J considered the meaning of the phrase reasonable grounds to suspect in an offence contrary to Confiscation Act 1997 s 123, the predecessor to the current offence contrary to s 197. In that case, Savas Pastras was charged over $44,000 cash found in his house when police executed a search warrant at the house of one Lewis Moran. The prosecution case was that Pastras was returning that money to pay Moran for drugs bought on credit. Bongionrno J held that it was for the tribunal of fact to reasonably suspect property as proceeds of crime at the time the charge is heard and determined. That is, it was an objective test, not subjective and accordingly, the informant’s suspicion was irrelevant. In so finding, his Honour held that DPP v Bodouloh (2003) 144 A Crim R 37 was per incuriam, and instead followed R v Zotti (2002) 82 SASR 554 and R v Buckett (1995) 126 FLR 435. In an obiter comment at [1], Bongiorno J stated Crimes Act 1958 s 195 creates a similar, if perhaps wider, offence to Confiscation Act 1997 s 123. This seems correct, although unlike s 123, there is no defence available to the accused if she or he satisfies the court it was reasonable for her or him to not suspect the property. The presence of that defence tends to cut across the analysis by Bongiorno J. But on the construction found in Pastras, the tribunal of fact could take into account matters such as evidence which showed in fact the property was not proceeds of crime even though there might have been good reason to suspect it was so at the time the police charged the accused. In R v Rondo (2001) 126 A Crim R 562 at [53] the New South Wales Court of Criminal Appeal considered reasonable suspicion and said at 576–577: These propositions emerge: (a) A reasonable suspicion involves less than a reasonable belief but more than a possibility. There must be something which would create in the mind of a reasonable person an apprehension or fear of one of the state of affairs covered by s 357E. 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 surrounding circumstances.

See also the discussion at [70.130].

[79.140] Joinder of prosecution-onus and reverse-onus offences In R v McLean (2000) 2 VR 118 at [32]–[37] the Court of Appeal rejected the argument that joinder ought not have been permitted of offences that cast a legal burden upon an accused person with those where the Crown bore the legal burden.

80 [80.10]

Recordings (possess, play, supply, copy, tamper with or publish)

Contrary to: Crimes Act 1958 s 464JA(2)–(7)

Section 464JA(2)–(7) provide:

464JA

Offences in relation to recordings

(1) In this section— authorised person means— (a) a member of Victoria Police personnel (other than a protective services officer); (b) a person or body engaged to provide services to Victoria Police in relation to the installation or maintenance of recording equipment; (c) the Director of Public Prosecutions for Victoria or a person acting under the authority of the Director; (d) the Chief Crown Prosecutor or a Crown Prosecutor or Associate Crown Prosecutor appointed under the Public Prosecutions Act 1994; (e) a person employed in the Office of Public Prosecutions under the Public Prosecutions Act 1994; (f) a legal practitioner representing— (i) the State; or (ii) an informant; (g) a legal practitioner representing— (i) a suspect recorded under section 464B(5H), 464G or 464H; or (ii) a co-accused of the suspect; (h) an officer or employee of Victoria Legal Aid employed under the Legal Aid Act 1978; (i) a court or a person acting under the direction of a court; (j) a coroner within the meaning of the Coroners Act 2008 or a person acting under the direction of a coroner; (k) the Commissioner for Law Enforcement Data Security appointed under Part 2 of the Commissioner for Law Enforcement Data Security Act 2005 or a person acting under his or her direction;

266

Offences

(l)

(m)

(n) (o) (p) (q) (r)

the Chief Examiner or an Examiner appointed under Part 3 of the Major Crime (Investigative Powers) Act 2004 or a person acting under the direction of the Chief Examiner or an Examiner; the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 or a person acting under his or her direction; the Inspector within the meaning of the Victorian Inspectorate Act 2011 or a person acting under his or her direction; a member of the Legislative Assembly or Legislative Council or a person acting under his or her direction; a person, or person belonging to a class of persons, prescribed for the purposes of this definition; an investigating official or person acting under his or her direction; a person engaged by a Department or agency to store or retrieve a record;

publish (a) (b) (c)

means— insert in a newspaper or other publication; or disseminate by broadcast, telecast or cinematograph; or bring to the notice of the public or any member of the public by any other means, including by publication on the Internet; recording means a recording made in accordance with section 464B(5H), 464G or 464H. (2) A person must not knowingly possess an audio recording or an audiovisual recording unless the person— (a) is the suspect; or (b) is a legal practitioner representing the suspect; or (c) is an authorised person acting in the performance of his or her duties; or (d) has possession of the recording in a sealed package in the course of his or her duties as a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording to that person. Note: The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(3) A person must not play an audio recording or an audiovisual recording to another person unless— (a) the recording is played for purposes connected with any civil or criminal proceeding and any inquiry before any court or tribunal; or (b) the recording is played for purposes connected with an investigation of a death or a fire or an inquest held by a coroner; or

Ch 80 Recordings (possess, play, supply, copy, tamper with or publish)

(c)

(d) (e) (f) (g)

267

the recording is played for purposes connected with disciplinary action against a police officer under the Victoria Police Act 2013; or the recording is played for purposes connected with disciplinary action against a legal practitioner; or the recording is played in accordance with the direction of a court under section 464JB; or the recording is played in accordance with section 464JD; or the recording is played by an authorised person acting in the course of his or her duties.

Note: The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(4) A person must not supply or offer to supply an audio recording or an audiovisual recording to another person other than— (a) the suspect in relation to whom the recording was made; (b) a legal practitioner representing the suspect; (c) an authorised person acting in the performance of his or her duties; (d) a person engaged by a person referred to in paragraph (a), (b) or (c) to transport the recording. Note: The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(5) A person, other than an authorised person acting in the performance of his or her duties, must not copy the whole or any part of an audio recording or an audiovisual recording or permit another person to make such a copy, unless the person is acting in accordance with the direction of a court under section 464JB. Note: The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(6) An authorised person must not knowingly or recklessly tamper with, modify or erase (in whole or in part) a recording while the recording is being retained under section 464JC, except in accordance with the direction of a court under section 464JB. Note: The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 600 penalty units: see section 113D of the Sentencing Act 1991.

(7) A person must not publish or cause to be published the whole or any part of an audio recording or an audiovisual recording except in accordance with the direction of a court under section 464JB. Note: The maximum fine that may be imposed on a body corporate found guilty of an offence against this subsection is 1200 penalty units: see section 113D of the Sentencing Act 1991.

(8) An offence against a provision of this section is a summary offence.

268

[80.20]

Offences

Statutory reference

6231.464JA.2 6231.464JA.3 6231.464JA.4 6231.464JA.5 6231.464JA.6 6231.464JA.7

[80.30]

Statement of charge

Possess, play, supply, copy, tamper with or publish recording.

[80.40]

Wording of charge

Section 464JA(2) The accused at [place] on [date] knowingly possessed an (audio/audiovisual) recording other than as permitted.

Section 464JA(3) The accused at [place] on [date] played an (audio/audiovisual) recording to another person other than as permitted.

Section 464JA(4) The accused at [place] on [date] (supplied/offered to supply) an (audio/audiovisual) recording to another person other than (an authorised person/person engaged by an authorised person to transport the recording).

Section 464JA(5) The accused at [place] on [date] (copied/permitted another person to copy) the whole or any part of an (audio/audiovisual) and was not (an authorised person acting in the performance of (his/her) duties/acting in accordance with the direction of a court under Crimes Act 1958 s 464JB).

Section 464JA(6) The accused at [place] on [date] was an authorised person and (knowingly/ recklessly) (tampered with/modified/erased) in whole or in part a recording retained under Crimes Act 1958 s 474JC.

Section 464JA(7) The accused at [place] on [date] (published/caused to be published) the whole or any part of an (audio/audiovisual) recording.

[80.50]

Penalty

1 year’s jail for all offences except publishing contrary to Crimes Act 1958 s 464JA(7), which is subject to 2 years’ jail

Ch 80

[80.60]

Recordings (possess, play, supply, copy, tamper with or publish)

269

Matters to be proved

Section 464JA(2) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused knowingly possessed an audio or audiovisual recording. 4. The accused was not the suspect in that recording, a legal practitioner representing the suspect, an authorised person acting in the performance of his or her duties, or engaged by one of those people to transport and was engaged in transporting the recording in a sealed package.

Section 464JA(3) 1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused played an audio or audiovisual recording to another person. The recording was not played for a permitted purpose or by an authorised person in the course of his or her duties.

Section 464JA(4) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused supplied or offered to supply an audio or audiovisual recording to another person. 4. That other person was not the suspect in that recording, a legal practitioner representing the suspect, an authorised person acting in the performance of his or her duties, or engaged by one of those people to transport the recording.

Section 464JA(5) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was not an authorised person acting in the performance of his or her duties. 4. The accused: (a) copied the whole or any part of an audio or audiovisual recording; or (b) permitted another person to copy the whole or any part of an audio or audiovisual recording, and that person was not acting with the direction of a court under Crimes Act 1958 s 464JB.

Section 464JA(6) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused knowingly or recklessly tampered with, modified or erased in whole or in part a recording. 4. The recording was retained under Crimes Act 1958 s 464JC. 5. There was no an order of a court under Crimes Act 1958 s 464JB.

270

Offences

Section 464JA(7) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused published the whole or any part of an audio or audiovisual recording. 4. That publication was not in accordance with the direction of a court under Crimes Act 1958 s 464JB.

[80.70]

Other possible charges: Court Security Act 1980

Intentionally make recording of a proceeding: s 4A. Intentionally publish recording of a proceeding: s 4B. Intentionally transmit recording of a proceeding: s 4C.

[80.80]

Rationale

The purpose of this section was set out in the second reading speech for the Justice Legislation Miscellaneous Amendments Bill 2009. The offences in relation to playing and publishing a recording target the inappropriate dissemination of an audiovisual recording. “Publish” is deliberately defined very broadly to capture the multitude of ways in which video recordings can be made available to others. The definition is intended to capture new and emerging technologies as well as existing methods of distributing recordings. The offences are necessary, as records of interview often contain a great deal of sensitive information about the circumstances of an alleged offence and the identity and details of persons, including police investigators, suspects, victims and third parties. Clearly, in relation to some offences, there will be graphic or disturbing information that should not be freely disseminated to others who are unconnected with the criminal justice processes. The bill seeks to preserve the integrity of the process and to protect against personal details and possibly graphic details of offences being made public unnecessarily. To provide protection for the legitimate uses of a recording in the context of the criminal justice system or complaints made about processes in that system, the bill provides a definition of “authorised person”. Authorised persons include the Chief Commissioner of Police, the Ombudsman, the director, police integrity, and other appropriate persons. They are, largely, persons who have a direct involvement in the criminal justice system or in relation to complaints about a person’s treatment within that system. An accused person and their legal representative will be entitled to access and use a recording for purposes connected with their involvement in the criminal justice system. The offences will not restrict necessary administrative tasks being undertaken in relation to the creation and distribution of a recording for legitimate purposes. Additionally, a recording may be used for training or testing purposes. However, this is only authorised where all legal proceedings relating to the recording being used have been concluded and steps have been taken to de-identify the suspect and third parties. Importantly, the bill will not limit an accused person’s access to evidence in a criminal proceeding against them and does not change any of the requirements in relation to the preparation and provision of a brief of evidence. The bill also provides for any necessary directions to be made by a court in relation to the supply, copying, broadcasting, playing and erasing of a recording. Further, a court direction can be sought by a person interviewed (or their legal representative) or by an authorised person to access and use a recording, even following the completion of criminal proceedings. This may be necessary for subsequent or related proceedings or where

Ch 80

Recordings (possess, play, supply, copy, tamper with or publish)

271

complaints are subsequently pursued: Victoria, Parliamentary Debates, Legislative Assembly, 15 October 2009, 3689–3690 (Bob Cameron, Minister for Police and Emergency Services).

[80.90]

Recording

Recording is defined in Crimes Act 1958 s 464JA(1) to mean a recording made in accordance with: (a) s 464B(5H) (recording required of caution and rights of communication to a suspect questioned for an offence when already held for another matter); (b) s 464G (recording required of caution and rights of communication to a person in custody); or (c) s 464H (recording required of confessions and admissions for indictable offences and made to an investigating officer by a person suspected or who ought reasonably have been suspected of committing an offence).

[80.100]

Publish

Publish is defined in Crimes Act 1958 s 464JA(1) to mean: (a) insert in a newspaper or other publication; or (b) disseminate by broadcast, telecast or cinematograph; or (c) bring to the notice of the public or any member of the public by any other means, including by publication on the Internet.

[80.110] Legal practitioner Legal practitioner is defined in Crimes Act 1958 s 2A(1) to mean an Australian Lawyer, which is defined in the Legal Profession Uniform Law to mean a person admitted to the Australian legal profession in Victoria or any other jurisdiction.

[80.120]

Authorised person

Authorised person is defined in Crimes Act 1958 s 464JA(1), and is used in distinction to an authorised person appointed under s 464(3). The people authorised for the purpose of s 464JA are: (a) a member of Victoria Police personnel (other than a protective services officer); (b) a person or body engaged to provide services to Victoria Police in relation to the installation or maintenance of recording equipment; (c) the Director of Public Prosecutions for Victoria or a person acting under the authority of the Director; (d) the Chief Crown Prosecutor or a Crown Prosecutor or Associate Crown Prosecutor appointed under the Public Prosecutions Act 1994; (e) a person employed in the Office of Public Prosecutions under the Public Prosecutions Act 1994; (f) a legal practitioner representing– (i) the State; or (ii) an informant; (g) a legal practitioner representing– (i) a suspect recorded under section 464B(5H), 464G or 464H; or (ii) a co-accused of the suspect; (h) an officer or employee of Victoria Legal Aid employed under the Legal Aid Act 1978; (i) a court or a person acting under the direction of a court;

272

Offences

(j) a coroner within the meaning of the Coroners Act 2008 or a person acting under the direction of a coroner; (k) the Commissioner for Law Enforcement Data Security appointed under Part 2 of the Commissioner for Law Enforcement Data Security Act 2005 or a person acting under his or her direction; (l) the Chief Examiner or an Examiner appointed under Part 3 of the Major Crime (Investigative Powers) Act 2004 or a person acting under the direction of the Chief Examiner or an Examiner; (m) the Commissioner within the meaning of the Independent Broad-based Anti-corruption Commission Act 2011 or a person acting under his or her direction; (n) the Inspector within the meaning of the Victorian Inspectorate Act 2011 or a person acting under his or her direction; (o) a member of the Legislative Assembly or Legislative Council or a person acting under his or her direction; (p) a person, or person belonging to a class of persons, prescribed for the purposes of this definition; (q) an investigating official or person acting under his or her direction; (r) a person engaged by a Department or agency to store or retrieve a record.

[80.130] Lawful editing of recordings The offence contrary to Crimes Act 1958 s 464JA(6) occurs when a recording is modified or retained in accordance with s 464JC. That provision requires that copies of recordings must be kept for seven years from the making of the recording, or longer if ordered. A recording may be edited, or “tampered with”, by order of a court under s 464JB, which provides for a court order to edit etc a recording. The construction of these provisions seems to have overlooked the common and well-accepted practice that an audio or video record-of-interview, and the transcript of that interview, may be edited to exclude inadmissible material, and that will frequently occur by consent between the parties and without judicial intervention: Kilby v The Queen (1973) 129 CLR 460 at 472; Driscoll v The Queen (1977) 137 CLR 517 at 533; R v Plevac (1995) 84 A Crim R 570 at 578–579; R v Fuller [1970] 3 NSWR 320 at 324.

[80.140]

Exceptions and defences

Crimes Act 1958 s 464JA(3), (5), (6) and (7) contain exceptions where the proscribed use of a recording is in accordance with the direction of a court. Section 464JD provides, in broad terms, that police and lawyers or those training to become such, may be played recordings if the suspect has been convicted or found guilty and all legal proceedings have concluded and reasonable measures are taken to prevent identifying the suspect from the recording. The accused has the evidential burden of raising those exceptions: see [4.30].

81 [81.10]

Registrable offender failing to comply with obligation to report infrequently changed personal details

Contrary to: Sex Offenders Registration Act 2004 s 46(1B)

Section 46(1B) provides:

46

Offence of failing to comply with reporting obligations

(1) A registrable offender who without reasonable excuse fails to comply with any of the registrable offender’s reporting obligations (other than reporting obligations in respect of details to which section 14 applies) is guilty of an offence and liable to level 6 imprisonment (5 years maximum). (1A) A registrable offender who without reasonable excuse fails to comply with any of the registrable offender’s reporting obligations in respect of details to which section 14(1)(d), (da), (db), (dc), (dd), (e), (ea), (f), (g), (j), (k) or (m) applies is guilty of an offence and liable to level 6 imprisonment (5 years maximum). (1B) A registrable offender who without reasonable excuse fails to comply with any of the registrable offender’s reporting obligations in respect of details to which section 14(1)(a), (b), (c), (h), (i) or (l) applies is guilty of an offence and liable to level 7 imprisonment (2 years maximum). (2) In determining whether a person had a reasonable excuse for failing to comply with his or her reporting obligations, the court before which the proceedings are being heard is to have regard to the following matters— (a) the person’s age; and (b) whether the person has a disability that affects the person’s ability to understand, or to comply with, those obligations; and (c) whether the form of notification given to the registrable offender as to his or her obligations was adequate to inform him or her of those obligations, having regard to the offender’s circumstances; and (d) any other matter the court considers appropriate. (3) It is a defence to proceedings for an offence of failing to comply with a reporting obligation if it is established by or on behalf of the person

274

Offences

charged with the offence that, at the time the offence is alleged to have occurred, the person had not received notice, and was otherwise unaware, of the obligation. [81.20] Statutory reference 04/56.46.1B

[81.30] Statement of charge Registrable sex offender fail to comply with reporting obligations (summary).

[81.40] Wording of charge The accused at [place] on [date] failed to comply with a reporting condition that (he/she) [detail of reporting condition].

[81.50] Penalty 2 years’ jail

[81.60] Matters to be proved 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was a registrable offender. 4. The accused was subject to reporting obligations. 5. The accused failed to report specified personal details when required. 6. The accused had no reasonable excuse for his or her failure to so report.

[81.70] Other possible charges: Sex Offenders Registration Act 2004 Fail to comply with reporting obligations other than reporting personal details: s 46(1) (indictable offence). Fail to comply with reporting obligations for frequently changed personal details: s 46(1A) (indictable offence). Furnish false or misleading information: s 47. Apply for or engage in child-related employment: s 68. Fail to disclose charges: s 69.

[81.80]

Registrable offender

Sex Offenders Registration Act 2004 s 6 provides that a registrable offender is a person who has been sentenced for a registrable offence, subject to certain exceptions set out in s 6(3)–(6).

[81.90] Registrable offence Sex Offenders Registration Act 2004 s 7 provides that a registrable offence is: (a) an offence listed in the Sex Offenders Registration Act 2004 Sch 1 or Sch 2; or (b) any offence that results in a court making a sex offender registration order under s 11.

Ch 81

Registrable offender failing to report personal details

275

When an offender is sentenced for a Schedule 1 or 2 offence, no order is necessary for the offender to be registered: the offender’s status as a registrable offender results as an automatic consequence of the finding of guilt. Under s 11, when an offender is sentenced for other offences (including those listed in Sch 3 or Sch 4), the court may make a sex offender registration order, but only if satisfied beyond reasonable doubt that the offender poses a risk to the sexual safety of one or more persons in the community: s 11(3); Blyss v Magistrates’ Court of Victoria [2016] VSC 548; DPP v Cartwright (2015) 45 VR 168; Znotins v Harvey [2015] ACTSC 241; Bowden v The Queen (2013) 44 VR 229.

[81.100] Duration and nature of reporting obligations A registrable offender is subject to reporting obligations with effect from the imposition of sentence, or release from custody: Sex Offenders Registration Act 2004 s 33. The offender must comply with those obligations for the time specified in s 34, namely: (a) eight years for a single offence listed in Sch 2; (b) 15 years for a single offence listed in Sch 1, or two offences listed in Sch 2; (c) life, for two or more offences listed in Sch 1, or one offence listed in Sch 1 and one offence listed in Sch 2, or three or more offences listed in Sch 2, or one offence in Sch 1 item 2 (persistent sexual abuse of child under 16). Reporting obligations apply either at specified intervals, or upon specified occurrences. Section 23 provides that some reports must be made personally, and the others may be made as permitted by the regulations or the Chief Commissioner of Police. When a report is not required to be made personally, Sex Offenders Registration Regulations 2014 reg 13 allows reports by telephone. The occasions when a registrable offender must comply with reporting obligations are: (a) Initial report of personal details (personal report required): Sex Offenders Registration Act 2004 ss 12–14. (b) Annual report of personal details (personal report required): s 16. (c) Change of personal details within seven days of change: s 17. (d) Intended travel outside Victoria – seven days before travel: s 18. (e) Return to Victoria within seven days of return from interstate, or three days of return from overseas, or seven days of deciding not to leave: s 20. (f) Travel outside Victoria intended at time of any other report: s 21. (g) Obligation to report passport and travel documents for intended overseas travel: s 21A. Personal details are defined in s 3 to mean all the information listed in s 14(1).

[81.110] Reporting specified personal details Sex Offenders Registration Act 2004 s 46(1B) specifies certain of the personal details that a registrable offender must report initially, annually, and upon change.

276

Offences

It seems that the personal details listed in s 46(1A) are those that might frequently change – such as address, email, telephone number, internet user names and the like, and memberships of organisations with child members. In contrast, the details listed in s 46(1B) may not change as frequently, or else might not be as significant for monitoring purposes. Section 46(1B) refers to obligations prescribed in s 14(1)(a), (b), (c), (h), (i) or (l). Those items the registrable offender must report are:

14

Initial report by registrable offender of personal details (1) The details the registrable offender must report are— (a) his or her name, together with any other name by which he or she is, or has previously been, known; (b) in respect of each name other than his or her current name, the period during which he or she was known by that other name; (c) his or her date of birth; (d) the address of each of the premises at which he or she generally resides or, if he or she does not generally reside at any particular premises, the name of each of the localities in which he or she can generally be found; (da) his or her telephone number (if any); (db) his or her email address (if any); (dc) if the registrable offender has an Internet service provider, the name and business address of that Internet service provider; (dd) any— (i) Internet user names; or (ii) instant messaging user names; or (iii) chat room user names; or (iv) other user name or identity— used or intended to be used by the registrable offender through the Internet or other electronic communication service; (e) the name of each child with whom he or she has contact; (ea) in respect of each child with whom he or she has contact— (i) the child’s age, residential address and telephone number; or (ii) if the child’s age, residential address or telephone number is not known to him or her—the location where the contact takes place; (f) if he or she is employed— (i) the nature of his or her employment; and (ii) the name of his or her employer (if any); and (iii) the address of each of the premises at which he or she is generally employed or, if he or she is not generally employed at any particular premises, the name of each of the localities in which he or she is generally employed;

Ch 81

(g) (h) (i)

(j)

(k)

(l)

(m)

Registrable offender failing to report personal details

277

details of his or her affiliation with any club or organisation that has child membership or child participation in its activities; the make, model, colour and registration number of any motor vehicle owned by, or generally driven by, him or her; details of any tattoos or permanent distinguishing marks that he or she has (including details of any tattoo or mark that has been removed); whether he or she has ever been found guilty in any foreign jurisdiction of a registrable offence or of an offence that required him or her to report to a corresponding registrar or been subject to a corresponding sex offender registration order and, if so, where that finding occurred or that order was made; if he or she has been in government custody since he or she was sentenced or released from government custody (as the case may be) in respect of a registrable offence or corresponding registrable offence, details of when and where that government custody occurred; if, at the time of making a report under this Division, he or she leaves, or intends to leave, Victoria to travel elsewhere in Australia on an average of at least once a month (irrespective of the length of any such absence)— (i) in general terms, the reason for travelling; and (ii) in general terms, the frequency and destinations of the travel; the passport number and country of issue of each passport held by the registrable offender.

(2) For the purposes of this section— (a) a registrable offender does not generally reside at any particular premises unless he or she resides at those premises for at least 7 days (whether consecutive or not) in any period of 12 months; and (b) [Repealed] (c) [Repealed] (d) a registrable offender is not generally employed at any particular premises unless he or she is employed at those premises for at least 14 days (whether consecutive or not) in any period of 12 months; and (e) a registrable offender does not generally drive a particular motor vehicle unless the person drives that vehicle on at least 14 days (whether consecutive or not) in any period of 12 months. (3) For the purposes of this section, a person is employed if he or she— (a) carries out work under a contract of employment; or (b) carries out work as a self-employed person or as a subcontractor; or

278

Offences

(c) carries out work as a volunteer for an organisation; or (d) undertakes practical training as part of an educational or vocational course; or (e) carries out work as a minister of religion or in any other capacity for the purposes of a religious organisation. (4) For the purposes of this section, a person is an employer if the person— (a) arranges, in the course of business, for the registrable offender to be employed by another person; or (b) engages the registrable offender under contract to carry out work. [81.120] Evidence of failure to report as required Sex Offenders Registration Act 2004 s 73 provides that a certificate signed by the Chief Commissioner of Police or authorised delegate is prima facie evidence of information in the Sex Offenders Register and of a failure by a specified person to notify information as required.

[81.130]

Mens rea and defences

The offence section provides it is a defence to the charge if the accused establishes they had not received a notice and were otherwise unaware of their obligation or obligations: Sex Offenders Registration Act 2004 s 46(3). The section does not in its terms preclude an accused person who did receive a notice from claiming they were unaware of their obligations, but obviously a court would be less likely to be satisfied of that defence in that circumstance. Section 50 requires that a registrable offender must be given a written notice setting out their reporting obligations. Section 55 provides that a failure to do so does not affect the offender’s reporting obligations, but the note at the foot of that provision observes: This section aims to prevent a registrable offender who was not given notice of a reporting obligation by an official as required by this Part from arguing that the obligation does not apply to him or her as a result of that failure if there is evidence that the registrable offender was aware of the obligation through some other means. (If there is no such evidence then the registrable offender would have a defence to the charge under section 46(3) on the basis that he or she was not aware of the obligation.)

That note forms part of the Act and may be used in its interpretation: Interpretation of Legislation Act 1984 s 36(3A). Sex Offenders Registration Regulations 2014 reg 20 provides that a person who gives notice to a registrable offender may request the offender acknowledge receipt of that notice. In practice, Victoria Police routinely requests such acknowledgment, in order to address any argument by an offender that they were not aware of their reporting obligations. Because the Sex Offenders Registration Act has been amended so often, and the s 50 notices authored by Victoria Police have also been changed over the years, it is important to consider when any alleged offence took place and the content of any notices provided to the accused before that point in time.

Ch 81 Registrable offender failing to report personal details

279

[81.140] Reasonable excuse A defence of lack of knowledge of the accused’s obligation to report may be distinct from a reasonable excuse for failing to comply with a reporting obligation. Sex Offenders Registration Act 2004 s 46(2) provides that in determining if a person had a reasonable excuse for failing to comply with their reporting obligations, the court must consider the person’s age; if they have a disability that affects their ability to understand or comply with their obligations; and if notice of reporting obligations given to them was adequate to inform them of those obligations, having regard to the offender’s circumstances; and any other matter the court considers appropriate. The accused has the evidential burden of raising those excuses: see [4.30].

82 [82.10]

Scheduled poison (possess)

Contrary to: Drugs, Poisons and Controlled Substances Act 1981 s

36B(2) Section 36B(2) provides:

36B Unauthorized possession etc of poison or controlled substance etc (1) A person shall not knowingly by false representation, whether oral or in writing or by conduct— (a) obtain a Schedule 8 poison, Schedule 9 poison or Schedule 4 poison from a person authorized by or licensed under this Act or the regulations to possess, manufacture, sell or supply the Schedule 8 poison, Schedule 9 poison or Schedule 4 poison; (b) obtain a prescription or order for a Schedule 8 poison, Schedule 9 poison or Schedule 4 poison from a registered medical practitioner, registered optometrist, dentist, pharmacist or veterinary practitioner or a person authorized by this Act or the regulations to issue or possess the prescription or order; (c) cause or induce a registered medical practitioner to administer a Schedule 8 poison, Schedule 9 poison or Schedule 4 poison to him by injection or otherwise; or (d) cause or induce a pharmacist or a person authorized by this Act or the regulations to supply a Schedule 8 poison, Schedule 9 poison or Schedule 4 poison, to dispense a prescription or order for that Schedule 8 poison, Schedule 9 poison or Schedule 4 poison, if the first-mentioned person knows the prescription or order to have been obtained in contravention of this Act or the regulations. (2) A person shall not have in his possession a Schedule 8 poison, Schedule 9 poison or Schedule 4 poison unless he is authorized by or licensed under this Act or the regulations to do so. (3) In this section a reference to a Schedule 8 poison, Schedule 9 poison or Schedule 4 poison does not include a reference to a drug of dependence. [82.20] Statutory reference 9719.36B.2

[82.30] Statement of charge Possess scheduled poison.

Ch 82

[82.40]

Scheduled poison (possess)

281

Wording of charge

The accused at [place] on [date] possessed a Schedule (4/8/9) poison without being authorised or licensed to do so under the Drugs, Poisons and Controlled Substances Act 1981 or regulations.

[82.50]

Penalty

10 penalty units

[82.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused possessed a Schedule 4, 8 or 9 poison. 4. The accused was not authorised or licensed to do so.

[82.70]

Other possible charges: Drugs, Poisons and Controlled Substances

Act 1981 Possess drug of dependence: s 73.

[82.80]

Possession

Drugs, Poisons and Controlled Substances Act 1981 s 5 deems substances to be in a person’s possession when found on land occupied by them etc. It operates in addition to the common law on possession: R v Marabito (1990) 50 A Crim R 412.

5

Meaning of possession Without restricting the meaning of the word possession, any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary. Section 5 imposes a legal burden upon an accused person: Momcilovic v The Queen (2011) 245 CLR 1; R v Clarke [1986] VR 643.

[82.90] Schedule 4, 8 or 9 poison Drugs, Poisons and Controlled Substances Act 1981 s 4(1) defines Schedule 4, 8 and 9 poisons as substances listed in Schs 4, 8 and 9 of the Poisons Standard. The Poisons Standard is defined in Drugs, Poisons and Controlled Substances Act s 4(1) to mean the current Poisons Standard within the meaning of the Therapeutic Goods Act 1989 (Cth) s 52D. The Poisons Standard is a legislative instrument and is registered as an enforceable instrument: see Legislation Act 2003 (Cth) s 8 and Ch 2 Pts 1 and 3. The current Poisons Standard is available from the Federal Register of Legislation at http://www.legislation.gov.au: Legislation Act 2003 (Cth) s 15C; Legislation Rule 2016 (Cth) r 9.

282

Offences

[82.100] Proof that a substance is a poison Because of the practical difficulty in proving substances were poisons before the internet made such information readily accessible, the Drugs, Poisons and Controlled Substances Act 1981 contains a deeming provision to assist with such proof. Section 122 provides:

122 Proof that a substance is poison etc In any prosecution for a contravention of or failure to comply with any provision of this Act or any regulations thereunder, whenever it is necessary or proper to provide in respect of any particular article or substance that it is a poison or controlled substance then in every such case — (a) evidence that any substance commonly sold under the same name or description as the said particular article or substance is a poison or controlled substance shall be prima facie evidence that the said particular article or substance also conforms to the same description accordingly; and (b) evidence that any particular article or substance or the container thereof is labelled “Poison” or “Poisonous, not to be taken” or “Schedule 1” or “Schedule 2” or “Schedule 3” or “Schedule 4” or “Schedule 5” or “Schedule 6” or “Schedule 7” “Schedule 8” or “Schedule 9” or “medicinal cannabis product” or (whether alone or in combination with any other words or symbols) “S.1”, “S.2”, “S.3”, “S.4”, “S.5”, “S.6”, “S.7”, “S.8” or “S.9” shall be prima facie evidence that the particular article or substance is a poison or controlled substance. [82.110] Without being authorised or licensed The prosecution is not required to prove that the accused was not authorised or licensed under the legislation. Drugs, Poisons and Controlled Substances Act 1981 s 104 provides: In any proceedings against any person for an offence against this Act the burden of proving any matter of exception qualification or defence shall lie upon the person seeking to avail himself thereof.

The accused has the evidential burden of raising those exceptions: see [4.30].

83 [83.10]

Spiking food or drink

Contrary to: Summary Offences Act 1966 s 41H

Section 41H provides:

41H

Food or drink spiking

(1) In this section— give, in relation to food or drink, includes— (a) prepare food or drink; and (b) make food or drink available for consumption; harm includes impair the senses or understanding of a person in a way that the person might reasonably be expected to object to in the circumstances; impair includes further impair; intoxicating substance includes any substance that affects a person’s senses or understanding. (2) A person— (a) who gives another person (the victim), or causes the victim to be given or to consume, food or drink that contains an intoxicating substance; and (b) who— (i) knows that the victim is not aware, or is reckless as to whether the victim is aware, that the food or drink contains the intoxicating substance; or (ii) knows that the victim is not aware, or is reckless as to whether the victim is aware, that the food or drink contains more of an intoxicating substance than the victim would reasonably expect it to contain; and (c) who intends the victim to be harmed by the consumption of that food or drink— is guilty of an offence and liable to a term of imprisonment not exceeding 2 years. [83.20] Statutory reference 7405.41H

[83.30] Statement of charge Food or drink spiking.

284

Offences

[83.40]

Wording of charge

The accused at [place] on [date] (gave another person/caused another person to be given or consume) food or drink that contained an intoxicating substance and knew that person was not aware or was reckless as to whether that person was aware, the food or drink contained (the intoxicating substance/more of an intoxicating substance than that person would reasonably expect it to contain) and intended that person to be harmed by the consumption of that food or drink.

[83.50]

Penalty

2 years’ jail

[83.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused gave another person or caused that person to be given or consume food or drink that contained an intoxicating substance. 4. The accused knew or was reckless as to whether that person was aware the food or drink contained the intoxicating substance, or more of an intoxicating substance than the person would reasonably expect it to contain. 5. The accused intended the person to be harmed by consuming that food or drink.

[83.70]

Other possible charges: Drugs, Poisons and Controlled Substances

Act 1981 Introduce drug of dependence into the body of another person: s 74. Administer Schedule 9 poison without permit: s 33D. Administer Schedule 8 poison to drug-dependent person: s 34B. Administer Schedule 8 poison to non-drug-dependent person: s 34C.

[83.80]

Other possible charges: Crimes Act 1958

Administer substance capable of interfering with bodily functions of another: s 19. Administration of an intoxicating substance for a sexual purpose: s 46.4 Administer drugs with intent of rendering person incapable of resistance for purpose of sexual penetration: s 53. Contaminating goods with intent to cause, or being reckless as to whether it would cause, public alarm or economic loss: s 249.

[83.90]

Give food or drink

Give is defined in Summary Offences Act 1966 s 41H(1) to include preparing food or drink, and making it available for consumption.

[83.100]

Intoxicating substance

This section was inserted in the Summary Offences Act 1966 by the Crimes Legislation Amendment (Food and Drink Spiking) Act 2009 s 4. 4 Amended by Crimes Amendment (Sexual Offences) Act 2016 s 15, but at the time of writing, this provision had not commenced operation. Unless proclaimed to commence earlier, this provision commences operation on 1 July 2017.

Ch 83

Spiking food or drink

285

Intoxicating substance is defined broadly in Summary Offences Act s 41H(1). This is deliberate, and is in contrast to the more serious offence of administering a drug with intent to make another person incapable of resisting an indecent act, contrary to Crimes Act 1958 s 53. The offence could be made out, for example, if the accused put more alcohol in another person’s drink than the person would have expected.

[83.110] Harm Harm is defined in Summary Offences Act 1966 s 41H(1) to include impairing the senses or understanding of a person in a way that the person might reasonably be expected to object to in the circumstances. This definition is problematic, because it requires establishing a subjective element as well as an objective element. The reasonable expectation limb connotes an objective standard, but it is a standard that relates to the victim. For example, in the case of a person who routinely binge drinks to a state of severe intoxication or even unconsciousness, what is the amount of alcohol to which they might reasonably be expected to object? The concept of harm is further clouded by the requirement in s 41H(2)(c) that the accused intends the victim be harmed by the consumption of the food and drink, not the intoxicating substance alleged to be in the food or drink. Undoubtedly, the offence was intended to deal with consumption of food or drink containing the intoxicating substance.

[83.120] Purpose of the provision In the second reading speech, the Attorney-General set out the purposes of Summary Offences Act 1966 s 41H. This bill arises directly out of recommendations by the Model Criminal Law Officers Committee (MCLOC) of the Standing Committee of Attorneys-General (SCAG), which SCAG subsequently endorsed. It builds on the work of the Australian Institute of Criminology and the Ministerial Council on Drug Strategy. MCLOC concluded that while other general offences cover spiking cases where the spiking results in injury or death, in most jurisdictions there was a gap in relation to the lower end of the spectrum of drink spiking behaviour. It proposed the creation of a preparatory offence in which it would not be necessary for food or drink to be consumed, nor for a person’s senses or understanding actually be impaired. If a person’s senses or understanding are actually impaired, this would be covered by assault offences (or in the most extreme cases, murder) and, in Victoria, the offence of “administering certain substances”. Accordingly, in keeping with MCLOC’s recommendation, but adopting Victorian drafting conventions, this bill creates an offence where a person: gives another person, or causes another person to be given or to consume, food or drink that is spiked; and knows that the victim is not aware, or is reckless as to whether the victim is aware, that the food or drink is spiked; and intends the victim to be harmed by the consumption of the food or drink. The offence is also made out if the victim has been given more of an intoxicating substance than they could reasonably expect their food or drink to contain. This means that it captures the spiking of an alcoholic drink with additional alcohol where the elements of the offence are also satisfied.

286

Offences

As such the offence does not criminalise all instances in which a person gives another person more alcohol than they are aware of – for example, the extra “birthday” shot given as a gesture of goodwill – but it will capture this behaviour if there is an intention to harm the other person. MCLOC proposed that the maximum penalty for this offence be two years imprisonment. In Victoria this means that the offence is a summary offence. As such, the offence appropriately fits into the Summary Offences Act 1966: Victoria, Parliamentary Debates, Legislative Assembly, 28 October 2008, 4203–4204 (Rob Hulls, Attorney-General).

[83.130] Mens rea The prosecution is required to prove knowledge or recklessness on the part of the accused. For the knowledge element, it is not clear if this means the accused must be proved to know truly that the victim was unaware of the presence of the intoxicating substance. In Anderson v Lynch (1982) 17 NTR 21 it was held that “knowing” is not merely “suspecting” and that even a firm belief that property was stolen was not enough to prove an offence of receiving goods knowing them to be stolen. That approach was more recently applied by the House of Lords in R v Saik [2007] 1 AC 18 when considering an offence of statutory conspiracy. In the phrase “intend or know” the context showed “know” had to be interpreted strictly, as if it meant “true belief”. But in R v Fallon (1981) 28 SASR 394 Sangster J held that knowledge did not require first-hand or real knowledge on the part of the accused. Positive belief was the state of mind to be proved. That approach was adopted in R v Raad [1983] 3 NSWLR 344. Given that the alternative element is recklessness and that it would have been easy for the Parliament to state belief as the relevant intention if that was what it intended, and bearing in mind the purposes set out in the second reading speech, it seems that the knowledge to be proved is a true belief or actual knowledge. Recklessness requires proof the accused foresaw the probable consequence of his or her conduct and proceeded nonetheless: R v Nuri [1990] VR 641; R v Abdul-Rasool (2008) 18 VR 586 at [69].

[83.140] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.5830]ff.

84 [84.10]

Trespass (enter private or public place in manner likely to cause breach of the peace)

Contrary to: Summary Offences Act 1966 s 9(1)(g)

Section 9(1)(g) provides:

9

Wilful destruction, damage etc. of property

(1) Any person who— (a) destroys damages pollutes or obstructs any aqueduct dam sluice pipe pump waterway pond pool or fountain; (b) being an artificer workman journeyman or apprentice wilfully damages spoils or destroys any goods wares work or material committed to his care or charge; (c) wilfully injures or damages any property (whether private or public) the injury done being under the value of $5000; or (d) wilfully trespasses in any public place other than a Scheduled public place and neglects or refuses to leave that place after being warned to do so by the owner occupier or a person authorized by or on behalf of the owner or occupier; or (e) without express or implied authority given by the owner or occupier or given on behalf of the owner or occupier by a person authorised to give it or without any other lawful excuse, wilfully enters any private place or Scheduled public place, unless for a legitimate purpose; or (f) neglects or refuses to leave a private place or Scheduled public place after being warned to do so by the owner or occupier or a person authorised to give that warning on behalf of the owner or occupier, unless the person has a lawful excuse; or (g) without lawful excuse, enters any place (whether private or public) in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace— shall be guilty of an offence. (1A) In any proceedings for an offence against subsection (1) the statement on oath of any person that he is or was at any stated time the owner or occupier of any place or a person authorized by or on behalf of the

288

Offences

owner or occupier thereof shall be evidence until the contrary is proved by or on behalf of the accused that such person is or was the owner or occupier of that place or a person authorized by or on behalf of the owner or occupier thereof (as the case requires). (1B) A person may commit an offence against paragraph (d), (e), (f) or (g) of sub-section (1) even though he or she did not intend to take possession of the place. (1C) Without limiting paragraph (e) of subsection (1), examples of circumstances in which a person does not have express or implied authority to enter a place are— (a) the person enters that place after having been previously warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or (b) the person enters that place despite being then warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or (c) the person enters that place in breach of a prominently displayed sign erected at that place by the owner or occupier or a person authorised to erect such a sign on behalf of the owner or occupier stating that— (i) the person concerned, or a class of persons of which the person concerned is a member, is prohibited from entering that place; or (ii) persons engaging in that place in the type of activity in which the person concerned is proposing to engage in that place are prohibited from entering that place— and the person has no other lawful excuse for entering that place. (1D) A warning may be given to a person under subsection (1)(f) or subsection (1C)(a) or (b)— (a) orally; or (b) by delivering written notice of it personally to the person; or (c) except in the case of a warning under subsection (1)(f), by sending written notice of it by certified mail addressed to the person at his or her usual or last known place of residence. (1E) A person may commit an offence against paragraph (g) of subsection (1) even though he or she had a right to enter that place in a manner other than that described in that paragraph. (2) For the purposes of section 86 of the Sentencing Act 1991 the cost of repairing or making good anything spoiled or damaged in contravention of this section shall be deemed to be loss or damage suffered in relation thereto. (3) Nothing contained in this section shall extend to any case where the person offending acted under a fair and reasonable supposition that he had a

Ch 84

Trespass (entering in manner likely to cause breach of the peace)

289

right to do the act complained of or to any trespass (not being wilful and malicious) committed in hunting or the pursuit of game. [84.20] Statutory reference 7405.9.1.G

[84.30] Statement of charge Enter any place in a manner likely to cause a breach of the peace.

[84.40] Wording of charge The accused at [place] on [date] entered any place, namely [name or description of place], in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace.

[84.50]

Penalty

25 penalty units or 6 months’ jail

[84.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused entered a place in a manner likely to cause a breach of the peace, or cause a reasonable apprehension of a breach of the peace.

[84.70]

Other possible charges: Summary Offences Act 1966

Wilfully trespass in and refuse to leave any public place: s 9(1)(d). Wilfully enter any private or Scheduled public place without authority or other lawful excuse: s 9(1)(e). Neglect or refuse to leave a private place after warning: s 9(1)(f). Behave in riotous, indecent, offensive, or insulting manner in or near etc a public place: s 17(1)(d). Disorderly conduct in public: s 17A. Unlawful assault: s 24. Besetting premises: s 52(1A).

[84.80]

Other possible charges: common law

Affray. Assault (common). Unlawful assembly. Riot. Rout.

[84.90]

Breach of the peace

See [70.140].

290

Offences

[84.100] Lawful excuse The accused has the evidential burden of raising lawful excuse: see [4.30].

[84.110] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.1810]ff.

85 [85.10]

Trespass (land or premises of Roads Corporation or Rail Track)

Contrary to: Transport (Compliance and Miscellaneous) Act 1983 s

223 Section 223 provides:

223 Offence to trespass on land or premises of Roads Corporation or Rail Track A person must not wilfully trespass on any land or premises owned or occupied by the Roads Corporation or Rail Track. [85.20] Statutory reference 9921.223

[85.30]

Statement of charge

Wilfully trespass on Roads Corporation or Rail Track land or premises.

[85.40]

Wording of charge

The accused at [place] on [date] wilfully trespassed on land or premises, namely [description of land or premises], owned or occupied by the (Roads Corporation/Rail Track).

[85.50]

Penalty

20 penalty units

[85.60] 1. 2. 3. 4.

Matters to be proved

The offence occurred at the place and time alleged. The offender was the accused. The accused wilfully trespassed on land or premises. The land or premises was owned or occupied by the Roads Corporation or Rail Track.

[85.70]

Other possible charges: Summary Offences Act 1966

Wilfully trespass in and refuse to leave any public place: s 9(1)(d). Wilfully enter any private or Scheduled public place without authority or other lawful excuse: s 9(1)(e). Neglect or refuse to leave a private place after warning: s 9(1)(f). Enter any place in a manner likely to cause a breach of the peace: s 9(1)(g).

292

[85.80]

Offences

Wilfully

See [89.100].

[85.90]

Trespass

See [89.110].

[85.100] Roads Corporation Roads Corporation is defined in Transport (Compliance and Miscellaneous) Act 1983 s 2(1) to have the same meaning as in the Transport Integration Act 2010. Section 80 of that Act refers to the Roads Corporation, which trades as VicRoads.

[85.110] Rail Track Rail Track is defined in Transport (Compliance and Miscellaneous) Act 1983 s 2(1) to mean Victorian Rail Track, which is turn is defined in Transport Integration Act 2010 s 116, and trades as VicTrack.

86 [86.10]

Trespass (land or premises of Water Authority)

Contrary to: Water Act 1989 s 291

Section 291 provides:

291 Trespass A person must not wilfully trespass on the land or premises of an Authority. [86.20] Statutory reference 89/80.291

[86.30]

Statement of charge

Wilfully trespass on water authority land or premises.

[86.40]

Wording of charge

The accused at [place] on [date] wilfully trespassed on land or premises, namely [description of land or premises], of a water authority, namely [name of water authority].

[86.50] Penalty 10 penalty units

[86.60] Matters to be proved 1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused wilfully trespassed on land or premises. The land or premises was owned or occupied by the Roads Corporation or Rail Track.

[86.70] Other possible charges: Summary Offences Act 1966 Wilfully trespass in and refuse to leave any public place: s 9(1)(d). Wilfully enter any private or Scheduled public place without authority or other lawful excuse: s 9(1)(e). Neglects or refuses to leave a private place after warning: s 9(1)(f). Enter any place in a manner likely to cause a breach of the peace: s 9(1)(g). Besetting premises: s 52(1A).

[86.80]

Authority

Authority is defined in s 3(1) to mean a water corporation or a catchment management authority.

294

Offences

A water corporation means a water corporation established under the Water Act 1989 Pt 6 Div 1. A catchment management authority is defined in the Catchment and Land Protection Act 1994. Details of water corporations and catchment management authorities are available from the VicWater website at http://www.vicwater.org.au.

87 [87.10]

Trespass (refuse or neglect to leave private or scheduled public place)

Contrary to: Summary Offences Act 1966 s 9(1)(f)

Section 9(1)(f) provides:

9

Wilful destruction, damage etc. of property

(1) Any person who— (a) destroys damages pollutes or obstructs any aqueduct dam sluice pipe pump waterway pond pool or fountain; (b) being an artificer workman journeyman or apprentice wilfully damages spoils or destroys any goods wares work or material committed to his care or charge; (c) wilfully injures or damages any property (whether private or public) the injury done being under the value of $5000; or (d) wilfully trespasses in any public place other than a Scheduled public place and neglects or refuses to leave that place after being warned to do so by the owner occupier or a person authorized by or on behalf of the owner or occupier; or (e) without express or implied authority given by the owner or occupier or given on behalf of the owner or occupier by a person authorised to give it or without any other lawful excuse, wilfully enters any private place or Scheduled public place, unless for a legitimate purpose; or (f) neglects or refuses to leave a private place or Scheduled public place after being warned to do so by the owner or occupier or a person authorised to give that warning on behalf of the owner or occupier, unless the person has a lawful excuse; or (g) without lawful excuse, enters any place (whether private or public) in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace— shall be guilty of an offence. (1A) In any proceedings for an offence against subsection (1) the statement on oath of any person that he is or was at any stated time the owner or occupier of any place or a person authorized by or on behalf of the owner or occupier thereof shall be evidence until the contrary is proved by or

296

Offences

on behalf of the accused that such person is or was the owner or occupier of that place or a person authorized by or on behalf of the owner or occupier thereof (as the case requires). (1B) A person may commit an offence against paragraph (d), (e), (f) or (g) of sub-section (1) even though he or she did not intend to take possession of the place. (1C) Without limiting paragraph (e) of subsection (1), examples of circumstances in which a person does not have express or implied authority to enter a place are— (a) the person enters that place after having been previously warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or (b) the person enters that place despite being then warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or (c) the person enters that place in breach of a prominently displayed sign erected at that place by the owner or occupier or a person authorised to erect such a sign on behalf of the owner or occupier stating that— (i) the person concerned, or a class of persons of which the person concerned is a member, is prohibited from entering that place; or (ii) persons engaging in that place in the type of activity in which the person concerned is proposing to engage in that place are prohibited from entering that place— and the person has no other lawful excuse for entering that place. (1D) A warning may be given to a person under subsection (1)(f) or subsection (1C)(a) or (b)— (a) orally; or (b) by delivering written notice of it personally to the person; or (c) except in the case of a warning under subsection (1)(f), by sending written notice of it by certified mail addressed to the person at his or her usual or last known place of residence. (1E) A person may commit an offence against paragraph (g) of subsection (1) even though he or she had a right to enter that place in a manner other than that described in that paragraph. (2) For the purposes of section 86 of the Sentencing Act 1991 the cost of repairing or making good anything spoiled or damaged in contravention of this section shall be deemed to be loss or damage suffered in relation thereto. (3) Nothing contained in this section shall extend to any case where the person offending acted under a fair and reasonable supposition that he had a

Ch 87

Trespass (refuse or neglect to leave private or scheduled public place)

297

right to do the act complained of or to any trespass (not being wilful and malicious) committed in hunting or the pursuit of game. [87.20] Statutory reference 7405.9.1.F

[87.30] Statement of charge Neglect or refuse to leave a private place after warning.

[87.40] Wording of charge The accused at [place] on [date] (neglected/refused to leave) a (private/Scheduled public) place, namely [name or description of public place], after (he/she) was warned to leave by (the owner/the occupier/a person authorised by or on behalf of the owner or occupier).

[87.50] Penalty 25 penalty units or 6 months’ jail

[87.60] Matters to be proved 1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused was warned to leave a private place, or a Scheduled public place. The warning was given by the owner, occupier, or a person authorised by or on behalf of the owner or occupier. 5. The accused neglected to or refused to leave. 6. The accused did not have a lawful excuse for that neglect or refusal to leave.

[87.70] Other possible charges: Summary Offences Act 1966 Wilfully trespass in and refuse to leave any public place: s 9(1)(d). Wilfully enter any private or Scheduled public place without authority or other lawful excuse: s 9(1)(e). Enter any place in a manner likely to cause a breach of the peace: s 9(1)(g). Besetting premises: s 52(1A).

[87.80]

Other possible charges: Residential Tenancies Act 1997

Landlord or landlord’s agent enter rented premises other than permitted: s 91A. Rooming house owner or owner’s agent enter room occupied by resident other than permitted and without reasonable excuse: s 142A. Caravan park owner, caravan owner or owner’s agent enter a site or caravan occupied by resident other than permitted and without reasonable excuse: s 206A. Site owner or site owner’s agent enter a site or dwelling occupied by a site tenant other than permitted and without reasonable excuse: s 206ZZP. Landlord or person acting on behalf of landlord require, compel or attempt to compel tenant under tenancy agreement to vacate rented premises other than in accordance with the Act: s 229.

298

Offences

Person require, force, attempt to require, attempt to force resident to vacate room or take possession of room: s 273(1). Person require or force a resident to vacate a site or caravan: s 295(a). Person take or attempt to take possession of site by removing caravan where resident resides: s 295(b). Person require, compel or attempt to compel a site tenant to vacate a site: s 317K. Re-enter rooming house, site or caravan after removal under warrant of possession: s 358. Give notice or purported notice to leave without reasonable grounds: s 368A. Remain on premises after receiving notice to leave: s 369. Resident re-enter premises when tenancy agreement or right or site agreement suspended: s 372. Landlord of rented premises, rooming house owner, caravan park owner, allow person not a party to a suspended residency right to occupy rented premises, room, caravan site: s 377.

[87.90]

Other possible charges: miscellaneous

Enter airside area or security zone of a security-controlled airport without permission: Aviation Transport Security Regulations 2005 reg 3.17(2). Trespassing on Commonwealth land: Crimes Act 1914 (Cth) s 89. Unauthorised entry etc on defence premises or defence accommodation: Defence Act 1903 (Cth) s 72P. Wilfully trespass on Roads Corp or Rail Track land or premises: Transport (Compliance and Miscellaneous) Act 1983 s 223. Public nuisance: Sykes v Holmes [1985] Crim LR 791 (trespassing on school grounds after hours and sniffing glue).

[87.100] Scheduled public place See [89.160].

[87.110] Owner, occupier or some person authorised See [89.140].

[87.120] Neglects or refuses to leave See [89.130].

[875.130] Lawful excuse The accused has the evidential burden of raising lawful excuse: see [4.30].

[87.140] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.1810]ff.

88 [88.10]

Trespass (wilfully enter private or scheduled public place)

Contrary to: Summary Offences Act 1966 s 9(1)(e)

Section 9(1)(e) provides:

9

Wilful destruction, damage etc. of property

(1) Any person who— (a) destroys damages pollutes or obstructs any aqueduct dam sluice pipe pump waterway pond pool or fountain; (b) being an artificer workman journeyman or apprentice wilfully damages spoils or destroys any goods wares work or material committed to his care or charge; (c) wilfully injures or damages any property (whether private or public) the injury done being under the value of $5000; or (d) wilfully trespasses in any public place other than a Scheduled public place and neglects or refuses to leave that place after being warned to do so by the owner occupier or a person authorized by or on behalf of the owner or occupier; or (e) without express or implied authority given by the owner or occupier or given on behalf of the owner or occupier by a person authorised to give it or without any other lawful excuse, wilfully enters any private place or Scheduled public place, unless for a legitimate purpose; or (f) neglects or refuses to leave a private place or Scheduled public place after being warned to do so by the owner or occupier or a person authorised to give that warning on behalf of the owner or occupier, unless the person has a lawful excuse; or (g) without lawful excuse, enters any place (whether private or public) in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace— shall be guilty of an offence. (1A) In any proceedings for an offence against subsection (1) the statement on oath of any person that he is or was at any stated time the owner or occupier of any place or a person authorized by or on behalf of the owner or occupier thereof shall be evidence until the contrary is proved by or

300

Offences

on behalf of the accused that such person is or was the owner or occupier of that place or a person authorized by or on behalf of the owner or occupier thereof (as the case requires). (1B) A person may commit an offence against paragraph (d), (e), (f) or (g) of sub-section (1) even though he or she did not intend to take possession of the place. (1C) Without limiting paragraph (e) of subsection (1), examples of circumstances in which a person does not have express or implied authority to enter a place are— (a) the person enters that place after having been previously warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or (b) the person enters that place despite being then warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or (c) the person enters that place in breach of a prominently displayed sign erected at that place by the owner or occupier or a person authorised to erect such a sign on behalf of the owner or occupier stating that— (i) the person concerned, or a class of persons of which the person concerned is a member, is prohibited from entering that place; or (ii) persons engaging in that place in the type of activity in which the person concerned is proposing to engage in that place are prohibited from entering that place— and the person has no other lawful excuse for entering that place. (1D) A warning may be given to a person under subsection (1)(f) or subsection (1C)(a) or (b)— (a) orally; or (b) by delivering written notice of it personally to the person; or (c) except in the case of a warning under subsection (1)(f), by sending written notice of it by certified mail addressed to the person at his or her usual or last known place of residence. (1E) A person may commit an offence against paragraph (g) of subsection (1) even though he or she had a right to enter that place in a manner other than that described in that paragraph. (2) For the purposes of section 86 of the Sentencing Act 1991 the cost of repairing or making good anything spoiled or damaged in contravention of this section shall be deemed to be loss or damage suffered in relation thereto. (3) Nothing contained in this section shall extend to any case where the person offending acted under a fair and reasonable supposition that he had a

Ch 88

Trespass (wilfully enter private or scheduled public place)

301

right to do the act complained of or to any trespass (not being wilful and malicious) committed in hunting or the pursuit of game. [88.20] Statutory reference 7405.9.1.E

[88.30] Statement of charge Wilfully enter any private or Scheduled public place without authority or other lawful excuse.

[88.40] Wording of charge The accused at [place] on [date] wilfully entered a (private/Scheduled public) place, namely [name or description of public place], without (expressed/implied) authority given by (the owner/the occupier/a person authorised by or on behalf of the owner or occupier) or any other lawful excuse.

[88.50] Penalty 25 penalty units or 6 months’ jail

[88.60] Matters to be proved 1. 2. 3. 4.

The offence occurred at the place and time alleged. The offender was the accused. The accused wilfully entered a private place, or a Scheduled public place. The accused entered without: (a) authority to enter, either express or implied, given by the owner, occupier, or a person authorised by or on behalf of the owner or occupier; or (b) any other lawful excuse. 5. The accused’s entry was not for a legitimate purpose.

[88.70] Other possible charges: Summary Offences Act 1966 Wilfully trespass in and refuse to leave any public place: s 9(1)(d). Neglects or refuses to leave a private place after warning: s 9(1)(f). Enter any place in a manner likely to cause a breach of the peace: s 9(1)(g). Besetting premises: s 52(1A).

[88.80]

Other possible charges: Residential Tenancies Act 1997

Landlord or landlord’s agent enter rented premises other than permitted: s 91A. Rooming house owner or owner’s agent enter room occupied by resident other than permitted and without reasonable excuse: s 142A. Caravan park owner, caravan owner or owner’s agent enter a site or caravan occupied by resident other than permitted and without reasonable excuse: s 206A. Site owner or site owner’s agent enter a site or dwelling occupied by a site tenant other than permitted and without reasonable excuse: s 206ZZP. Landlord or person acting on behalf of landlord require, compel or attempt to compel tenant under tenancy agreement to vacate rented premises other than in accordance with the Act: s 229.

302

Offences

Person require, force, attempt to require, attempt to force resident to vacate room or take possession of room: s 273(1). Person require or force a resident to vacate a site or caravan: s 295(a). Person take or attempt to take possession of site by removing caravan where resident resides: s 295(b). Person require, compel or attempt to compel a site tenant to vacate a site: s 317K. Re-enter rooming house, site or caravan after removal under warrant of possession: s 358. Give notice or purported notice to leave without reasonable grounds: s 368A. Remain on premises after receiving notice to leave: s 369. Resident re-enter premises when tenancy agreement or right or site agreement suspended: s 372. Landlord of rented premises, rooming house owner, caravan park owner, allow person not a party to a suspended residency right to occupy rented premises, room, caravan site: s 377.

[88.90]

Other possible charges: miscellaneous

Enter airside area or security zone of a security-controlled airport without permission: Aviation Transport Security Regulations 2005 reg 3.17(2). Trespassing on Commonwealth land: Crimes Act 1914 (Cth) s 89. Unauthorised entry etc on defence premises or defence accommodation: Defence Act 1903 (Cth) s 72P. Wilfully trespass on Roads Corp or Rail Track land or premises: Transport (Compliance and Miscellaneous) Act 1983 s 223. Public nuisance: Sykes v Holmes [1985] Crim LR 791 (trespassing on school grounds after hours and sniffing glue).

[88.100] Wilful Wilful is synonymous with “intentional” and “voluntarily”, but also imports an element of knowledge possessed by the accused of the likely consequence of their actions: Iannella v French (1968) 119 CLR 8 at 94–95, 107–109; Bergin v Brown [1990] VR 888. In the UK, it is understood as a composite term to cover both intention and recklessness: R v Sheppard [1981] AC 394. It is not necessary for the accused to intend to take possession of the property they are trespassing upon: Summary Offences Act 1966 s 9(1B).

[88.110] Scheduled public place See [89.160].

[88.120]

Owner, occupier or some person authorised

See [89.140].

[88.130]

Express or implied authority or lawful excuse

As to owner etc, see [89.140].

Ch 88

Trespass (wilfully enter private or scheduled public place)

303

The lawful excuse this section refers to is as an alternative to authority from an owner etc. That is, to avoid criminal liability, the offender needs to have either authority from the owner etc, or any other lawful excuse. Additionally, their entry needs to be for a legitimate purpose, even if authorised. A lawful excuse might be where the accused asked for or was given what they thought was permission to enter from an owner etc, but in fact that person had no authority to grant a licence to enter. The prosecution has the legal burden of proving the absence of lawful excuse: see [4.20].

[88.140] Legitimate purpose The accused has the evidential burden of raising legitimate purpose: see [4.30]. In Wilson v New South Wales (2010) 207 A Crim R 499 at 526, Hodgson JA held that a police officer had a legitimate purpose when he entered a property to continue an arrest he had commenced a short time earlier, but to which the accused had not willingly submitted.

[88.150] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.1810]ff.

89 [89.10]

Trespass (wilfully trespass in and refuse to leave any public place)

Contrary to: Summary Offences Act 1966 s 9(1)(d)

Section 9(1)(d) provides:

9

Wilful destruction, damage etc. of property

(1) Any person who— (a) destroys damages pollutes or obstructs any aqueduct dam sluice pipe pump waterway pond pool or fountain; (b) being an artificer workman journeyman or apprentice wilfully damages spoils or destroys any goods wares work or material committed to his care or charge; (c) wilfully injures or damages any property (whether private or public) the injury done being under the value of $5000; or (d) wilfully trespasses in any public place other than a Scheduled public place and neglects or refuses to leave that place after being warned to do so by the owner occupier or a person authorized by or on behalf of the owner or occupier; or (e) without express or implied authority given by the owner or occupier or given on behalf of the owner or occupier by a person authorised to give it or without any other lawful excuse, wilfully enters any private place or Scheduled public place, unless for a legitimate purpose; or (f) neglects or refuses to leave a private place or Scheduled public place after being warned to do so by the owner or occupier or a person authorised to give that warning on behalf of the owner or occupier, unless the person has a lawful excuse; or (g) without lawful excuse, enters any place (whether private or public) in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace— shall be guilty of an offence. (1A) In any proceedings for an offence against subsection (1) the statement on oath of any person that he is or was at any stated time the owner or occupier of any place or a person authorized by or on behalf of the owner or occupier thereof shall be evidence until the contrary is proved by or

Ch 89

Trespass (wilfully trespass in and refuse to leave any public place)

305

on behalf of the accused that such person is or was the owner or occupier of that place or a person authorized by or on behalf of the owner or occupier thereof (as the case requires). (1B) A person may commit an offence against paragraph (d), (e), (f) or (g) of sub-section (1) even though he or she did not intend to take possession of the place. (1C) Without limiting paragraph (e) of subsection (1), examples of circumstances in which a person does not have express or implied authority to enter a place are— (a) the person enters that place after having been previously warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or (b) the person enters that place despite being then warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or (c) the person enters that place in breach of a prominently displayed sign erected at that place by the owner or occupier or a person authorised to erect such a sign on behalf of the owner or occupier stating that— (i) the person concerned, or a class of persons of which the person concerned is a member, is prohibited from entering that place; or (ii) persons engaging in that place in the type of activity in which the person concerned is proposing to engage in that place are prohibited from entering that place— and the person has no other lawful excuse for entering that place. (1D) A warning may be given to a person under subsection (1)(f) or subsection (1C)(a) or (b)— (a) orally; or (b) by delivering written notice of it personally to the person; or (c) except in the case of a warning under subsection (1)(f), by sending written notice of it by certified mail addressed to the person at his or her usual or last known place of residence. (1E) A person may commit an offence against paragraph (g) of subsection (1) even though he or she had a right to enter that place in a manner other than that described in that paragraph. (2) For the purposes of section 86 of the Sentencing Act 1991 the cost of repairing or making good anything spoiled or damaged in contravention of this section shall be deemed to be loss or damage suffered in relation thereto. (3) Nothing contained in this section shall extend to any case where the person offending acted under a fair and reasonable supposition that he had a

306

Offences

right to do the act complained of or to any trespass (not being wilful and malicious) committed in hunting or the pursuit of game. [89.20] Statutory reference 7405.9.1.D

[89.30] Statement of charge Wilfully trespass in and refuse to leave any public place.

[89.40] Wording of charge The accused at [place] on [date] wilfully trespassed in a public place other than a Scheduled public place, namely [name or description of public place], and (neglected/ refused) to leave after being warned by (the owner/the occupier/a person authorised by or on behalf of the owner or occupier).

[89.50]

Penalty

25 penalty units or 6 months’ jail

[89.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused wilfully trespassed in a public place, other than a Scheduled public place. 4. The owner, occupier, or a person authorised by or on behalf of the owner or occupier warned the accused to leave. 5. The accused neglected to or refused to leave.

[89.70]

Other possible charges: Summary Offences Act 1966

Wilfully enter any private or Scheduled public place without authority or other lawful excuse: s 9(1)(e). Neglect or refuse to leave a private place after warning: s 9(1)(f). Enter any place in a manner likely to cause a breach of the peace: s 9(1)(g). Besetting premises: s 52(1A).

[89.80]

Other possible charges: Residential Tenancies Act 1997

Landlord or landlord’s agent enter rented premises other than permitted: s 91A. Rooming house owner or owner’s agent enter room occupied by resident other than permitted and without reasonable excuse: s 142A. Caravan park owner, caravan owner or owner’s agent enter a site or caravan occupied by resident other than permitted and without reasonable excuse: s 206A. Site owner or site owner’s agent enter a site or dwelling occupied by a site tenant other than permitted and without reasonable excuse: s 206ZZP. Landlord or person acting on behalf of landlord require, compel or attempt to compel tenant under tenancy agreement to vacate rented premises other than in accordance with the Act: s 229.

Ch 89

Trespass (wilfully trespass in and refuse to leave any public place)

307

Person require, force, attempt to require, attempt to force resident to vacate room or take possession of room: s 273(1). Person require or force a resident to vacate a site or caravan: s 295(a). Person take or attempt to take possession of site by removing caravan where resident resides: s 295(b). Person require, compel or attempt to compel a site tenant to vacate a site: s 317K. Re-enter rooming house, site or caravan after removal under warrant of possession: s 358. Give notice or purported notice to leave without reasonable grounds: s 368A. Remain on premises after receiving notice to leave: s 369. Resident re-enter premises when tenancy agreement or right or site agreement suspended: s 372. Landlord of rented premises, rooming house owner, caravan park owner, allow person not a party to a suspended residency right to occupy rented premises, room, caravan site: s 377.

[89.90]

Other possible charges: miscellaneous

Enter airside area or security zone of a security-controlled airport without permission: Aviation Transport Security Regulations 2005 reg 3.17(2). Enter without lawful excuse to restricted fire area: Country Fire Authority Act 1958 s 98AA(2). Trespassing on Commonwealth land: Crimes Act 1914 (Cth) s 89. Unauthorised entry etc on defence premises or defence accommodation: Defence Act 1903 (Cth) s 72P. Enter without lawful excuse to restricted fire area: Metropolitan Fire Brigades Act 1958 s 71A(2). Wilfully trespass on Roads Corp or Rail Track land or premises: Transport (Compliance and Miscellaneous) Act 1983 s 223. Public nuisance: Sykes v Holmes [1985] Crim LR 791 (trespassing on school grounds after hours and sniffing glue).

[89.100] Wilfully Wilful is synonymous with “intentional” and “voluntarily”, but also imports an element of knowledge possessed by the accused of the likely consequence of their actions: Iannella v French (1968) 119 CLR 8 at 94–95, 107–109; Bergin v Brown [1990] VR 888. In the UK, it is understood as a composite term to cover both intention and recklessness: R v Sheppard [1981] AC 394. It is not necessary for the accused to intend to take possession of the property they are trespassing upon: Summary Offences Act 1966 s 9(1B).

[89.110] Trespass Trespass is entry without right or authority to the land of another person who is in possession of that land. It is also a trespass if a person has permission to enter for a specific purpose, but enters for some other purpose outside the scope of that

308

Offences

permission, especially if that other purpose is an unlawful purpose: Barker v The Queen (1983) 153 CLR 338 at 341–342 per Mason J; Marks-Vincenti v The Queen (2015) 45 VR 313; R v Jones (John) [1976] 1 WLR 672. In R v Lloyd; Ex parte Rowan (1876) 2 VLR (L) 227 the accused was forbidden to enter the market of the Victorian Meat Market Company. Some weeks later, he took his horse and cart into the market and bought some meat. He was then ordered to leave, but refused, and was thrown out. He re-entered to retrieve his horse and cart, and was charged with trespass. In one of the shorter criminal judgments, Stawell CJ said: The relator was not guilty of an offence under this enactment. Having been allowed to enter and make a purchase, he should not have been prevented from going in to get his horse and cart and goods.

It is uncertain if the same reasoning would be adopted today, but it seems that the crucial factor in that case was that the accused was initially allowed onto the property and so was there lawfully. In that circumstance, a failure to allow him to remove his property or to give him adequate time to remove his property was fatal to the charge. Similarly, in Minister for Health v Bellotti [1944] 1 KB 298, the King’s Bench held that the trespassor must be afforded sufficient time to vacate. That case dealt with refugees from Gibraltar brought to the United Kingdom, and housed in flats requisitioned by the government and later managed by the Minister for Health. After some time, despite paying money for their accommodation, the Minister served notice, allowing one week to vacate. The defendants refused, and attempts to forcibly expel them failed. The Minister took action for damages in trespass, and sought an injunction. Lord Greene MR said at 305–306: The true view is that where a licence is revoked, the licensee has, in spite of the revocation, whatever in the circumstances is a reasonable time to enable him to remove himself and his possession from the scene of the licence.

A tenant in common can give a licence to a friend to enter the common property entrance foyer of a strata scheme (or owners corporation, as it is now known in Victoria) and it cannot be revoked by other tenants in common, unless it goes beyond what is reasonable and incidental to the grantor’s possession and use and enjoyment of the property with the other tenants in common: New South Wales v Koumdjiev (2006) 63 NSWLR 353; Pitt v Baxter (2007) 34 WAR 102. Except in circumstances provided by the common law and legislation, police have no greater authority to enter upon land than any other person: Entick v Carrington (1765) 19 St Tr 1029; 95 ER 807; Kuru v New South Wales (2008) 236 CLR 1 at 14–15. If police officers or other investigating officials enter property against the will of the occupier, and there is no lawful justification for their entry to and remaining upon the property, then if they neglect or refuse to leave after being ordered to leave, they are trespassing and no longer acting in the execution of duty: MacKay v Abrahams [1916] VLR 681; Morris v Beardmore [1980] AC 446 at 459; Lippl v Haines (1989) 18 NSWLR 620; Brown v Spectacular Views Pty Ltd [2011] VSC 197. Where police enter private property and purport to establish a crime scene, their presence will be unlawful and a trespass if the owner or occupier or authorised person directs them to leave. The situation is otherwise under Police Powers and Responsibilities Act 2000 (Qld) s 168 and Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) s 95, cf DPP v Morrison [2003] Crim LR 727.

Ch 89

Trespass (wilfully trespass in and refuse to leave any public place)

309

Police have a power to enter private premises to prevent a breach of the peace, but not to investigate it: Nicholson v Avon [1991] 1 VR 212; Thomas v Sawkins [1935] 2 KB 249; cf Kuru v New South Wales at 16. If the entrance to property is unobstructed, or a gate or other portal is unlocked, and there is no notice or other indication that visitors generally or particular visitors are forbidden or unauthorised, the law will imply a licence to go on a path or driveway for any legitimate purpose that involves no interference with the occupier’s possession: Halliday v Nevill (1984) 155 CLR 1. If the implied licence to enter is expressly revoked, subsequent entry to the property without lawful justification shall be a trespass: Plenty v Dillon (1991) 171 CLR 635. In O v Wedd [2000] TASSC 74 a private security guard purported to issue a notice to a person revoking her licence to enter a shopping centre for 12 months. The notice asserted he was an authorised agent of “the person in charge of Northgate Shopping Centre”, but there was no admissible evidence that he was authorised as an agent for the purpose of banning members of the public from entry for any period of time. The position would probably be different in Victoria by virtue of Summary Offences Act 1966 s 9(3), discussed at [89.140]. A phone call to police calling for assistance may amount to an implied licence to enter: R v Thornley (1981) 72 Crim App R 302; Thompson v Vincent (2005) 153 A Crim R 577 at 591. The criminal offence of wilful trespass did not apply in Falkingham v Fregon (1899) 25 VLR 211. There the appellant remained in possession of a hotel and premises, including a barn, after a lease expired. He refused to agree to the renewal terms as they then included the barn where it had not been included before. He believed the owner did not have title to the barn, and that he was entitled to it under a miner’s right. The owner sought and obtained a warrant of ejectment (or warrant of possession, as it is now known). The appellant was not guilty of wilfully trespassing because of the exception (now found at s 9(3)) which provided the offence did not apply when an accused acted under a fair and reasonable belief he had a right to remain. Further, in that case the police removed the appellant from the property by authority of the warrant of ejectment, but after completing that duty, arrested and charged him, though he no longer remained on the land. Union officials who are issued by the Fair Work Commission both a valid and current Entry Permit pursuant to Fair Work Act 2009 (Cth) Pt 3.4 Div 6, and a Work, Health And Safety Permit pursuant to the Work Health and Safety Act 2011 (Cth), are entitled under Fair Work Act ss 481, 483A and 484 to enter premises: to investigate suspected contraventions of the Fair Work Act; to investigate suspected contraventions of awards; and to hold discussions with workers who wish to participate in discussions. See also [15.100].

[89.120] Warning to leave In Marsden v O’Callaghan [1938] VLR 87 at 88, Mann CJ said, “The Legislature has provided that trespass per se shall not be a punishable offence, unless and until the trespasser has been ordered to leave and has refused to do so.” Even if a person enters a place, such as the foyer of a police station, where they are permitted to enter, once some person with the authority to revoke their licence to be there does revoke it, they must leave – it is a trespass to remain: La Trobe University v Robinson [1972] VR 883 at 897; Bethune v Heffernan; Heelan v Heyward [1986] VR 417.

310

Offences

In Brown v Spectacular Views Pty Ltd [2011] VSC 197 Macauly J held the absence of express evidence that a person was in possession of premises when he directed Roads Corporation officers to leave was not fatal to a finding that the officers were warned to leave. The surrounding facts and circumstances permitted that finding, as well as the finding that he did in fact warn them to leave.

[89.130] Neglects or refuses to leave The concept of neglecting to leave is ordinarily relevant when the accused is given reasonable notice of days or weeks to leave premises, but does not, such as in Minister for Health v Bellotti [1944] 1 KB 298 (see [89.110]), or Falkingham v Fregon (1899) 25 VLR 211. The question of whether an accused refused to leave and had a reasonable opportunity to do so is a question of fact.

[89.140]

Owner, occupier or some person authorised

Summary Offences Act 1966 s 9(1A) provides that the statement on oath of any person that they were the owner or occupier of any place, or a person authorised by or on behalf of the owner or occupier, is evidence of that fact in the absence of evidence to the contrary. As to “evidence to the contrary” see DPP v Cummings (2006) 46 MVR 84, where the Supreme Court of Victoria held at 91: The phrase “to the contrary” means “to the opposite effect”. In my view, to be evidence to the contrary the evidence must at least be accepted by the tribunal of fact as having some weight.

[89.150] Public place See [76.100].

[89.160] Scheduled public place Scheduled public place is defined in Summary Offences Act 1966 s 3 to mean a public place described in Sch 1, namely: 1. Land used for the purposes of a Government school within the meaning of the Education and Training Reform Act 2006. 2. Premises or place where a children’s service within the meaning of the Children’s Services Act 1996 operates in respect of which the Secretary within the meaning of that Act provides grants, payments, subsidies or other financial assistance. 3. Premises that are a residential service, residential institution or residential treatment facility within the meaning of the Disability Act 2006. 4. Premises that are a designated mental health service within the meaning of the Mental Health Act 2014. 5. Land held or managed by a cemetery trust of a public cemetery to which the Cemeteries and Crematoria Act 2003 applies. 6. Premises or place where an education and care service within the meaning of the Education and Care Services National Law (Victoria) operates in respect of which the Regulatory Authority within the meaning of that Law provides grants, payments, subsidies or other financial assistance.

Item 6 deals with places such as family day care centres, child care and pre-schools.

Ch 89

Trespass (wilfully trespass in and refuse to leave any public place)

311

[89.170] Fair and reasonable supposition of right to do the act complained of Summary Offences Act 1966 s 9(3) provides: (3) Nothing contained in this section shall extend to any case where the person offending acted under a fair and reasonable supposition that he had a right to do the act complained of or to any trespass (not being wilful and malicious) committed in hunting or the pursuit of game.

The Shorter Oxford English Dictionary defines supposition in part as “3. The action of assuming or (esp) that which is assumed as a basis of an argument or a premise from which a conclusion is drawn. 4. An idea that something is true; a hypothetical inference; an uncertain or mistaken belief.” The accused has the evidential burden of raising this exception: see [4.30].

[89.180]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.1810]ff.

90 [90.10]

Unlawful possession (property reasonably suspected of being stolen)

Contrary to: Summary Offences Act 1966 s 26

Section 26 provides:

26 Unexplained possession of personal property reasonably suspected to be stolen (1) Any person having in his actual possession or conveying in any manner any personal property whatsoever reasonably suspected of being stolen or unlawfully obtained whether in or outside Victoria may be arrested either with or without warrant and brought before a bail justice or the Magistrates’ Court, or may be summoned to appear before the Magistrates’ Court. (2) If such person does not in the opinion of the court give a satisfactory account as to how he came by such property he shall be guilty of an offence. (3) Upon proof that any property was or had been in the actual possession of such person or under his control and whether or not such person still has possession or control thereof when brought before the court the property shall for the purposes of this section be deemed to be in his actual possession. (4) Where a person is charged before the Magistrates’ Court with an offence under this section the court may proceed to hear and determine the matter notwithstanding that it appears from the evidence that the person charged stole or unlawfully obtained the property concerned in a place outside Victoria in circumstances amounting to the commission of a criminal offence in that place. [90.20] Statutory reference 7405.26

[90.30] Statement of charge Possess suspected stolen goods.

[90.40] Wording of charge The accused at [place] on [date] had ((in (his/her) actual possession)/conveyed) personal property, namely [description of property], reasonably suspected of being stolen or unlawfully obtained.

Ch 90 Unlawful possession (property reasonably suspected of being stolen)

[90.50]

313

Penalty

1 year’s jail

[90.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused had in his or her actual possession or was conveying in any manner any personal property. 4. The property was reasonably suspected of being stolen or unlawfully obtained. 5. The accused did not give to the court a satisfactory account of how he or she came by the property.

[90.70]

Other possible charges: Summary Offences Act 1966

Possession of skin or carcass of stolen cattle: s 30. Possession of property from wrecks: s 31. Retaining or disposing of property as workmen etc: s 34. Obtaining goods by valueless cheque: s 37.

[90.80]

Other possible charges: Crimes Act 1958

Handle stolen goods: s 88. Deal with property suspected of being proceeds of crime: s 195.

[90.90]

Actual possession and conveying

Adrian Moors was a customs officer, charged with unlawful possession contrary to the Police Offences Act 1915 s 40. The informant, James Burke, alleged that a Customs officer named Moors had 12 skeins (or lengths of thread) of wool in a locker in a shed on the Melbourne wharfs under Customs control. The locker was opened by Moors at Burke’s request, which led to discovery of the wool. Moors had access as of right to the locker, and used it. But another Customs officer also had access to it as of right. The High Court had to decide if Moors was in actual possession of the wool. In Moors v Burke (1919) 26 CLR 265 at 274 the court said: “Having actual possession” means, in this enactment, simply having at the time, in actual fact and without the necessity of taking any further step, the complete present personal physical control of the property to the exclusion of others not acting in concert with the accused, and whether he has that control by having the property in his present manual custody, or by having it where he alone has the exclusive right or power to place his hands on it, and so have manual custody when he wishes. In its nature it corresponds to its companion expression “conveying” which necessarily involves instant personal physical control to the exclusion of others. These two expressions are obviously intended to cover the whole ground of actual personal control – that is, whether the property is kept stationary or is in motion. But it does not include the case of a person who has put the property out of his present manual custody and deposited it in a place where any other person independently of him has an equal right and power of getting it, and so may prevent the first from ever getting manual custody in the future. In that event the property is not in his actual possession: it is where he may possibly reduce it again into actual possession, or, on the other hand, where the other person may himself reduce it into his own actual exclusive possession.

314

Offences

Because Moors did not have exclusive means of opening the locker, or exclusive right to it and its contents, he was not in actual possession. [90.100] Reasonably suspected to be stolen The suspicion must be that the property is obtained in a manner analogous to theft. A suspicion it is derived from some other illegal act such as drug trafficking will not suffice: Nicholls v Young [1992] 2 VR 209 at 214. The suspicion must also be contemporaneous with the possession: Nicholls v Young at 215; Rowe v Galvin [1984] VR 350. The effect of Summary Offences Act 1966 s 26(3) is to provide that where there is proof that at some time before the accused is brought before the court he or she was in actual possession of property and it was reasonably and contemporaneously suspected of being stolen, the offence may be established despite the accused not being in actual possession at the time the charge is determined: Brown v Schiffman [1911] VLR 133 at 135; DPP v Pastras (2005) 11 VR 449 at 453–454. The suspicion must attach to the property, and not to the accused: O’Sullivan v Tregaskis [1948] SASR 12; Yeo v Capper [1964] SASR 1. Of course, the requirement for reasonable suspicion imports the need for the suspicion to be based upon reasonable grounds: see [79.130]. An example of the requirement of contemporaneity is in Kitchen v Cox (1996) 85 A Crim R 328. In that case Constable Gregory Kitchen stopped the respondent Cox driving at a petrol station, and arrested him for theft of Glenfiddich scotch that was reported to Kitchen only an hour earlier. Kitchen handcuffed Cox and put him in the rear of a police vehicle. He also arrested a passenger named Williams, and then searched the car. He found a bottle of Glenfiddich between the passenger and driver’s seats. He then found welding, drill and cutting equipment in the back of the car, all of which was brand new, and other property. He then suspected all the property to be stolen. The charge of unlawful possession against Cox was dismissed by a magistrate and that decision upheld on appeal. This was because at the time Kitchen formed his suspicion, Cox was not in actual possession of the goods: he was imprisoned in the police vehicle, unable to exercise any access to or control over the goods. Further, if any reliance was placed on the earlier possession, it was not possible to tell who was in possession – Cox, or Williams – and so exclusive control was not established in any event. It is, however, possible for actual possession to be alleged where co-accused act in concert: Moors v Burke (1919) 26 CLR 265 at 271 (but that was not relied upon in Kitchen v Cox before the magistrate, and nor was the deeming provision found in s 26(3)). The same reasoning was applied in DPP v Miers (1997) 96 A Crim R 408, and DPP v Dahl (1997) 96 A Crim R 502. In Miers at 419, Smith J noted that the offence of unlawful possession is typically addressed to a suspect not under arrest. In Dahl, Smith J held that even when the accused was not under arrest, if he or she was “in custody” as that phrase is defined in Crimes Act 1958 s 464(1) – such as when the accused was in the company of police officers executing a search warrant – then the accused could not be in actual possession of any property found. Confiscation Act 1997 s 123, which was the precursor to the current Crimes Act s 197 for dealing with property reasonably suspected of being proceeds of crime, was enacted partly in response to these cases: see DPP v Bodouloh (2003) 144 A Crim R 37.

Ch 90

Unlawful possession (property reasonably suspected of being stolen)

315

The current position is that this charge is not usually used where an accused person was under arrest at the time police found the suspected property.

[90.110] Satisfactory account The heart of the offence contrary to Summary Offences Act 1966 s 26 is of failing to give satisfactory account of being in possession of the goods, once the prosecution establishes beyond reasonable doubt the goods were reasonably suspected of being stolen: Willis v Burnes (1921) 29 CLR 511 at 514 per Knox CJ. The accused has the legal onus of establishing a satisfactory account under s 26(2): see [4.20].

[90.120] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.4190]ff.

91 [91.10]

Weapon – controlled (possess, use or carry weapon)

Contrary to: Control of Weapons Act 1990 s 6(1), (1AA), (1AB), (2)

Section 6(1), (1AA), (1AB), (2) provide:

6

Control of controlled weapons

(1) A person must not possess, carry or use a controlled weapon without lawful excuse. (1AA) A child must not purchase a controlled weapon. (1AB) A person must not sell a controlled weapon to another person knowing that the other person is a child. (1AC) For the purposes of subsections (1AA) and (1AB), a controlled weapon does not include a disposable knife made of plastic, bamboo or wood and designed for eating purposes. (1A) A person who is in licensed premises or in a public place that is in the immediate vicinity of licensed premises must not possess, carry or use a controlled weapon without lawful excuse. (1B) If a person is convicted or found guilty of an offence against subsection (1A) in respect of an act or omission that person is not liable to be convicted or found guilty of an offence against subsection (1) in respect of the same act or omission. (2) A person must not carry a controlled weapon unless it is carried in a safe and secure manner consistent with the lawful excuse for which it is possessed or is carried or is to be used. (3) In this section lawful excuse includes— (a) the pursuit of any lawful employment, duty or activity; and (b) participation in any lawful sport, recreation or entertainment; and (c) the legitimate collection, display or exhibition of weapons— but does not include for the purpose of self-defence. (4) In considering whether a person has lawful excuse to possess, carry or use a controlled weapon, the court must have regard to the circumstances, such as time and location, of the incident.

Ch 91 Weapon – controlled (possess, use or carry weapon)

[91.20]

317

Statutory reference

90/24.6.1 90/24.6.1AA 90/24.6.1AB 90/24.6.1A 90/24.6.2

[91.30]

Statement of charge

Possess, carry or use a controlled weapon without lawful excuse: Control of Weapons Act 1990 s 6(1). Child purchase a controlled weapon: s 6(1AA). Knowingly sell a controlled weapon to a child: s 6(1AB). Possess or carry controlled weapon in licensed premises, or public place in immediate vicinity of licensed premises, without lawful excuse: s 6(2).

[91.40]

Wording of charge

Section 6(1) The accused at [place] on [date] (possessed/carried/used) a controlled weapon without lawful excuse.

Section 6(1AA) The accused at [place] on [date] was a child who purchased a controlled weapon.

Section 6(1AB) The accused at [place] on [date] sold a controlled weapon to a child and knew the purchaser was a child.

Section 6(1A) The accused at [place] on [date] (possessed/carried/used) a controlled weapon in (licensed premises/in the immediate vicinity of licensed premises) without lawful excuse.

Section 6(2) The accused at [place] on [date] (possessed/carried/used) a controlled weapon with a lawful excuse but did not carry it in a safe and secure manner consistent with that lawful excuse.

[91.50]

Penalty

Section 6(1) 120 penalty units or 1 year’s jail

Section 6(1AA) 12 penalty units

318

Offences

Section 6(1AB) 20 penalty units

Section 6(1A) 240 penalty units or 2 years’ jail

Section 6(2) 20 penalty units

[91.60]

Matters to be proved

Section 6(1) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused possessed, carried a used a controlled weapon. 4. The accused did not have a lawful excuse to possess, carry or use the controlled weapon.

Section 6(1AA) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused was a child. 4. The accused purchased a controlled weapon.

Section 6(1AB) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused sold a controlled weapon to a child. 4. The accused knew the purchaser was a child.

Section 6(1A) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused possessed, carried or used a controlled weapon. 4. The accused was in licensed premises, or in the immediate vicinity of licensed premises. 5. The accused did not have a lawful excuse to possess, carry or use the controlled weapon.

Section 6(2) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused possessed, carried or used a controlled weapon with a lawful excuse.

Ch 91

Weapon – controlled (possess, use or carry weapon)

319

4. The accused did not carry the controlled weapon in a safe and secure manner consistent with that lawful excuse. [91.70]

Controlled weapon

Controlled weapon is defined in Control of Weapons Act 1990 s 3(1) to mean: (a) a knife, other than a knife that is a prohibited weapon; or (b) an article that is prescribed by the regulations to be a controlled weapon.

Control of Weapons Regulations 2011 Sch 2 contains a list of controlled weapons: 1. Spear gun. 2. Baton or Cudgel, being a short stout stick made of any material designed as a weapon, including the weapon commonly known as a “police nightstick”. 3. Bayonet, being a thrusting, striking or cutting weapon designed to be attached to a firearm. 4. Cattle prod.

[91.80] Other possible charges: Control of Weapons Act 1990 Possess, use or carry prohibited weapon: s 5AA. Possess or carry a dangerous article in a public place: s 7(1).

[91.90]

Other possible charges: Crimes Act 1958

Armed with criminal intent: s 31B.

[91.100] Public place Under Control of Weapons Act 1990 s 3(1), public place has the same meaning as in the Summary Offences Act 1966, discussed at [76.100], and also extends to include a non-government school.

[91.110] Licensed premises Control of Weapons Act 1990 s 3(1) provides that: licensed premises means any licensed premises within the meaning of the Liquor Control Reform Act 1998 in respect of which— (a) a general licence or a late night (general) licence; or (b) an on-premises licence or a late night (on-premises) licence); or (ba) a restaurant and cafe licence; or (c) a club licence— within the meaning of that Act has been issued under that Act.

[91.120]

Lawful excuse

Lawful excuse is not defined, but by Control of Weapons Act 1990 s 6(3) includes: (a) the pursuit of any lawful employment, duty or activity; and (b) participation in any lawful sport, recreation or entertainment; and (c) the legitimate collection, display or exhibition of the article. Possession or carriage of a controlled weapon for self-defence is expressly excluded from the scope of lawful excuse. In Taikato v The Queen (1996) 186 CLR 454 at 464–467, considering similar New South Wales legislation, the High Court said that a reasonable excuse for possessing a prohibited article was determined by considering the person’s reason or purpose for possessing it.

320

Offences

For example, carrying hairspray to style hair was a reasonable excuse; carrying it to spray in a potential attacker’s eyes was not. Arguably, carrying a weapon to hand in at a police station is a reasonable excuse. In Bell v Atwell (1988) 32 A Crim R 181 the New South Wales Supreme Court held that continuity of a lawful purpose might apply beyond the time and place where the was clearly a lawful purpose for possession. In Fruendt v Hayes (1992) 59 A Crim R 430 the South Australian Supreme Court held where the appellant lawfully possessed a knife for employment, that possession did not cease being lawful unless the appellant thereafter intended to possess it for an unlawful purpose. The reasoning in these cases must be doubtful now given the legislative history of this legislation, and what seems to be a combination of positive credit assessments of the appellants by the courts in those cases and an apparent view that the items carried were not offensive or only capable of unlawful use. At the second reading of the Control of Weapons Amendment Bill 2010 the Minister for Police and Emergency Services, Bob Cameron, said: Victoria already has the toughest weapons-search-and-seizure regime in Australia. The changes to weapons laws proposed in this bill are designed to encourage a fundamental change in community attitudes about the carriage of weapons such as knives. They will send a clear message to all Victorians that it is not appropriate to carry weapons in public places and that weapons should be left at home when not necessary for lawful occupations or other purposes. Victoria has been at the forefront of initiatives to crack down on knife crime over recent years: Victoria, Parliamentary Debates, Legislative Assembly, 27 May 2010, 2002 (Bob Cameron, Minister for Police and Emergency Services).

Note there is no lawful excuse defence to a charge of a child purchasing a controlled weapon, or a person selling a controlled weapon to a child. The accused has the evidential burden of raising lawful excuse: see [4.30].

[91.130]

Possession

Possession is defined in Control of Weapons Act 1990 s 3(1) to include: (a) actual physical possession; and (b) custody or control; and (c) having and exercising access either solely or in common with others ... .

Actual possession means complete and present personal physical control of property to the exclusion of all others, either by actual manual custody or the ability to take manual control of the property at will: Moors v Burke (1919) 26 CLR 265 at 274. The phrase actual physical possession is akin to manual custody as discussed in Moors v Burke. That is, where the accused actually has the weapon on his or her person. Custody means having the property in safe-keeping, or protection, or charge or care. Control means having the power to deal with the property by restraint or direction: Yeates v Hoare [1981] VR 1034 at 1038. There is nothing in the legislation to displace the presumption that possession requires proof of knowing possession, and so the prosecution must prove the accused knew of the item: He Kaw Teh v The Queen (1985) 157 CLR 523. Forgetting the existence or possession of an, or believing that it was destroyed or disposed of does not mean the accused no longer possessed the item: R v Buswell [1972] 1 WLR 64; R v Martindale [1986] 1 WLR 1042.

[91.140] Child Child means a person under the age of 18 years: Control of Weapons Act 1990 s 3(1).

Ch 91

Weapon – controlled (possess, use or carry weapon)

321

For the offence contrary to s 6(1AB), the prosecution must prove beyond reasonable doubt that the accused knew the purchaser was a child; it will not suffice to prove merely that the purchaser was under 18 years of age. In offences involving child abuse material it has been held that whether or not a person appears to be a minor is for the tribunal of fact to determine, and is not a matter for expert evidence: Police v Kennedy (1998) 71 SASR 175 at 186–195; R v Land [1999] QB 65 at 69–71. The same reasoning would seem applicable to this provision. Proof of age can be by birth certificate: Births, Deaths and Marriages Registration Act 1996 s 46. The prosecution could rely on oral evidence from the child, or otherwise, hearsay evidence in accordance with Evidence Act 2008 s 73.

[91.150]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [5.10.700]ff.

92 [92.10]

Weapon – dangerous article (possess or carry in public place)

Contrary to: Control of Weapons Act 1990 s 7(1)–(1A)

Section 7(1)–(1A) provide:

7

Control of use of dangerous articles

(1) A person must not in a public place possess or carry a dangerous article without lawful excuse. (1A) A person who is in licensed premises or in a public place that is in the immediate vicinity of licensed premises must not possess or carry a dangerous article without lawful excuse. (1B) If a person is convicted or found guilty of an offence against subsection (1A) in respect of an act or omission that person is not liable to be convicted or found guilty of an offence against subsection (1) in respect of the same act or omission. (2) In this section lawful excuse includes— (a) the pursuit of any lawful employment, duty or activity; and (b) participation in any lawful sport, recreation or entertainment; and (c) the legitimate collection, display or exhibition of the article; and (d) the use of the article for the purpose for which it is designed or intended— but does not include possession or carriage of a dangerous article for the purpose of self-defence. (3) [Repealed] (4) In considering whether a person has a lawful excuse to possess or carry a dangerous article, the court must have regard to the circumstances, such as time and location, of the incident. [92.20] Statutory reference 90/24.7.1 90/24.7.1A

[92.30]

Statement of charge

Possess or carry dangerous article in public place without lawful excuse: Control of Weapons Act 1990 s 7(1).

Ch 92

Weapon – dangerous article (possess or carry in public place)

323

Possess or carry dangerous article in licensed premises, or public place in immediate vicinity of licensed premises, without lawful excuse: Control of Weapons Act 1990 s 7(1A).

[92.40]

Wording of charge

Section 7(1) The accused at [place] on [date] (possessed/carried) a dangerous article in a public place without lawful excuse.

Section 7(1A) The accused at [place] on [date] (possessed/carried) a dangerous article in (licensed premises/in the immediate vicinity of licensed premises) without lawful excuse.

[92.50]

Penalty

Section 7(1) 60 penalty units or 6 months’ jail

Section 7(1A) 120 penalty units or 12 months’ jail

[92.60]

Matters to be proved

Section 7(1) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused possessed or carried a dangerous article. 4. The accused was in a public place. 5. The accused did not have a lawful excuse to possess or carry the dangerous article.

Section 7(1A) 1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused possessed or carried a dangerous article. 4. The accused was in licensed premises, or in the immediate vicinity of licensed premises. 5. The accused did not have a lawful excuse to possess or carry the dangerous article.

[92.70]

Other possible charges: Control of Weapons Act 1990

Possess, use or carry prohibited weapon: s 5AA. Possess, carry or use a controlled weapon without lawful excuse: s 6(1).

[92.80]

Other possible charges: Crimes Act 1958

Armed with criminal intent: s 31B.

324

Offences

[92.90]

Dangerous article

Dangerous article is defined in Control of Weapons Act 1990 s 3(1) to mean: (a) an article which has been adapted or modified so as to be capable of being used as a weapon; or (b) any other article which is carried with the intention of being used as a weapon ... .

An item that is not ordinarily considered a weapon is not a dangerous article unless the accused had it with them with the intention of using it as a weapon: Deing v Tarola [1993] 2 VR 163.

[92.100] Public place See [91.80].

[92.110] Licensed premises See [91.110].

[92.120] Lawful excuse Lawful excuse is not defined, but by Control of Weapons Act 1990 s 7(2) is held to include: (a) the pursuit of any lawful employment, duty or activity; and (b) participation in any lawful sport, recreation or entertainment; and (c) the legitimate collection, display or exhibition of the article; and (d) the use of the article for the purpose for which it is designed or intended ... .

Lawful excuse under s 7(2) differs from that at s 6(3) by the addition of para (d), excusing possession of dangerous articles when used for their intended purpose. This would cover items such as gardening and automotive tools, or tools of trade. See also [91.120]. The accused has the evidential burden of raising lawful excuse: see [4.30].

[92.130]

Possession

See [91.130].

[92.140]

Other references

See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [5.10.800]ff.

93 [93.10]

Weapon – prohibited (possess, carry or use)

Contrary to: Control of Weapons Act 1990 s 5AA

Section 5AA provides:

5AA Offence to possess, use or carry a prohibited weapon A person must not possess, use or carry a prohibited weapon (other than an imitation firearm) without an exemption under section 8B or an approval under section 8C. [93.20] Statutory reference 90/24.5AA

[93.30]

Statement of charge

Possess, use or carry prohibited weapon without exemption or approval.

[93.40]

Wording of charge

The accused at [place] on [date] (possessed/carried/used) a prohibited weapon without an exemption or an approval.

[93.50]

Penalty

240 penalty units or imprisonment for 2 years

[93.60] 1. 2. 3. 4.

Matters to be proved

The offence occurred at the place and time alleged. The offender was the accused. The accused possessed, carried or used a prohibited weapon. The accused was not exempt from the section, and did not have an approval to do anything prohibited by the section.

[93.70]

Other possible charges: Control of Weapons Act 1990

Possess, carry or use a controlled weapon without lawful excuse: s 6(1). Possess or carry dangerous article without lawful excuse: s 7(1).

[93.80]

Other possible charges: Crimes Act 1958

Armed with criminal intent: s 31B.

[93.90]

Prohibited weapon

Prohibited weapon is defined in Control of Weapons Act 1990 s 3(1) to mean an imitation firearm or an article prescribed by the regulations to be a prohibited weapon.

326

Offences

Control of Weapons Regulations 2011 Sch 3 sets out a list of prohibited weapons: 1 Flick knife, being a knife designed or adapted so that the blade is concealed when folded or recessed into the handle and which opens by gravity or centrifugal force or by any pressure applied to a button, spring or device in or attached to the handle of the knife. 2 Dagger, being a sharp pointed stabbing instrument (other than an oyster knife), ordinarily capable of being concealed on the person and having— (a) a flat blade with cutting edges (whether serrated or not serrated) along the length of both sides; or (b) a needle-like blade, the cross section of which is elliptical or has 3 or more sides, but not including instruments such as swords or bayonets.

Knuckle knife, being an open or exposed blade or similar instrument attached to a handle that is designed or adapted to be held between the knuckles (including the device commonly known as the “Urban Pal Knife”).

3

An article that is designed to include a concealed knife or sword blade, including but not limited to— (a) a belt or similar article designed or adapted to hold a knife, dagger or similar instrument so that the presence of the knife, dagger or similar instrument is concealed or disguised as part of the belt or similar article when it is worn (for example an article known as the “Bowen Knife Belt”); (b) a swordstick, being a cane, stick or similar article designed or adapted to hold the blade of a sword so that it is concealed from view until withdrawn from the cane, stick or article; (c) a riding crop designed or adapted to hold a blade or spike so that it is concealed from view until withdrawn from the crop.

4

Butterfly knife, being a knife with a 2 piece handle that folds together to cover both edges of the blade whether the blade is serrated or not serrated. 6 Double-end knife, being a knife that has the appearance of 2 overlapping curved blades joined together so as to form an ellipse shape. 7 A knife that is designed or adapted so that the blade is concealed by a plastic, wooden or metal sheath which retracts into the handle of the knife by gravity or centrifugal force or by any pressure applied to a button, spring or device in or attached to the handle of the knife (including the knife commonly known as the “Black Eagle Knife”). 5

Push knife or similar device designed as a weapon that consists of a single-edged or multi-edged blade or spike of any material that has a handle fitted transversely to the blade or spike and allows the blade or spike to be supported by the palm of the hand so that stabbing blows or slashes can be inflicted by a punching or pushing action. 9 Trench knife or similar device that consists of a single-edged or multi-edged blade or spike of any material that is fitted with a handle made of any hard substance that can be fitted over the knuckles of the hand of the user to protect the knuckles and increase the effect of a punch or blow, or that is adapted for such use. 8

Ch 93

Weapon – prohibited (possess, carry or use)

327

Throwing blade, being a knife or axe of any material that is designed or modified to be thrown. 11 Ballistic knife, being a device or instrument designed or adapted to fire or discharge a knife, dagger or similar instrument by mechanical, percussive or explosive means. 12 Non-metal/ceramic knife, being a knife, blade or spike of which no part is metallic, excluding plastic cutlery. 13 Crossbow, being a type of bow fixed transversely on a stock grooved to direct a dart, bolt or arrow and being, in particular— (a) a Pistol Crossbow, being a crossbow that is reasonably capable of being carried or concealed about the person and of being raised and discharged by one hand; and (b) a General Category Crossbow, being a crossbow that is not a pistol crossbow. 14 Blow gun, being a blow pipe or similar device or instrument designed to propel an arrow, dart or similar projectile by air expelled from the mouth. 15 A dart designed to be projected from a blow gun or similar device. 10

A hunting sling or slingshot designed or adapted to be used with an arm brace which fits or rests on the forearm to support the wrist from the tension of the elastic material used to propel the projectile (including the device commonly known as the “Saunders Falcon Hunting Sling”).

16

A catapult, shanghai or hunting sling (without arm brace described in item 16) that is manufactured and intended for commercial distribution.

17

A dart projector (for example, an article commonly known as the “Darchery Dartslinger”) or any similar device that is manufactured and intended for commercial distribution.

18

A slingshot that is manufactured and intended for commercial distribution.

19 20

An article designed or adapted to discharge oleoresin capsicum spray.

An article designed or adapted to emit or discharge an offensive, noxious or irritant liquid, powder, gas or chemical so as to cause disability, incapacity or harm to another person. 22 An article designed or adapted to emit an electric current into a human body for the purposes of incapacitation or injury. 21

An acoustic anti-personnel device that is designed to cause permanent or temporary incapacity or disability, or to otherwise physically disorientate a person.

23

Shark Dart or any other similar device that is designed to expel, on or after contact, any gas or other substance capable of causing bodily harm. 25 Extendable baton, being a baton designed or adapted so that the length of the baton extends by gravity or centrifugal force or by any pressure applied to a button, spring or device in or attached to the handle of the baton. 26 Knuckleduster, being a device or instrument designed or adapted to be worn across a knuckle or knuckles of the hand, finger, fingers or thumb so as to— 24

328

Offences

(a)

increase the force or impact of a punch or blow when striking another person with that hand, finger, fingers or thumb; or (b) protect the knuckle or knuckles from injury when striking another person with that hand, finger, fingers or thumb. Weighted glove, being a glove or any other similar article designed or constructed to be used as a weapon (including a fingerless glove) that has weighted material sewn into it to increase the effect of a punch or blow. 28 Studded glove, being a glove or any other similar article designed or constructed to be used as a weapon (including a fingerless glove), that has a number of raised studs or spikes made of a hard substance and positioned over the back of the glove to increase the effect of a punch or blow. 29 A mace or any other similar article capable of causing injury that consists of a club or staff fitted with a flanged or spiked head, other than a ceremonial mace made for and used solely as a symbol of authority on ceremonial occasions. 27

A flail or any other similar article that consists of a staff or handle that has fitted to one end, by any means, a freely swinging striking part that is armed with spikes or studded with any protruding matter.

30

31

A whip with metal lashes.

32

A cat-o’-nine-tails with knotted lashes.

A hand-held battery-operated article commonly known as a “laser pointer” designed or adapted to emit a laser beam with an accessible emission limit of greater than 1 mW.

33

An article that consists of a baton or stick constructed in such a way that it can be unscrewed or broken so as to form two or more parts joined by chain, rope or cord, including the martial arts weapons known as “Baton-chucks” or “Bo-chucks”.

34

A scythe or sickle-shaped article designed as a weapon that has a fixed or folding blade, and which may or may not have a chain attached, including the martial arts weapon known as “Kama”.

35

An article consisting of a chain, rope or cord with a wooden or metal baton, stick or rod attached at each end, including the martial arts weapons known as “Kasari-Fundo”, “Kusari-Fundo” and “Manrikigusari”.

36

A stick or rod of any material designed as a weapon to be applied to the pressure points of the human body, including the martial arts weapon known as “Kubotan”.

37

An article designed to be attached to, or worn on, the hands or feet, that has claws attached, including the martial arts weapons known as “ninja climbing claws”, “ninja hand claws” and “ninja foot claws”. 39 An article that consists of two sticks, rods or batons joined by a cord, rope or chain including the martial arts weapon known as “Nunchaku”. 38

Sai or Jitte, being a short, tapered, metal rod, dull at the point, with flared metal prongs guarding the handle.

40

Ch 93 Weapon – prohibited (possess, carry or use)

329

An article consisting of a curved blade pointed at both ends with a handle attached to the middle, including the martial arts weapon known as “Suan Ywe Gou”.

41

An article consisting of a blade or blades with cord, rope or chain attached for the purpose of enabling the blade to be thrown and retrieved, including the martial arts weapon known as “Shoge”, “ninja KyokeysuShoge” or “Kyotetsu Shoge”.

42

Throwing star, being a sharpened star-shaped article designed for throwing, including the martial arts weapon known as “Surikan”, “Suriken” or “Shaken” (including where the throwing star is attached to a belt-buckle).

43

An article consisting of a handle and an edged blade, joined by chain or a combination of chain and metal pieces or steel rods, designed to be used as a whip, including the martial arts weapon commonly known as “Chinese whip”, “whip spear”, “7 piece iron chain”, “9 piece iron chain”, “Bian Tzu Chiang” or “Lien Tzu Chiang”. 45 The martial arts weapon known as a “Butterfly Sword”. 44

The martial arts weapon known as a “Tonfa”. 47 Sword, being a thrusting, striking or cutting weapon with a long blade having 1 or 2 edges and a hilt or handle. 46

[93.100] Exemptions Exemptions are issued under Control of Weapons Act 1990 s 8B, and are typically permitted to allow a class of person to engage in activities or use items otherwise prohibited by the Act. Any previous exemptions made under either the Prescribed Weapons Act 1989, or Control of Weapons Act s 5(2) – the exemption power contained in the original version of the Act, until its amendment by the Control of Weapons (Amendment) Act 2000 – continue in force by virtue of Control of Weapons Act s 13 and Interpretation of Legislation Act 1984 s 14. Some current exemptions are: • Victoria, Gazette: General, G26, 30 June 2011, p 1556: Imitation firearms. Victoria Police members (including recruits), and interstate and Federal police.

• Victoria, Gazette: General, G21, 21 May 2009, p 21: OPI staff authorised in writing: • purchasing oleoresin capsicum spray, extendable batons and/ or body armour • bringing oleoresin capsicum spray, extendable batons and/or body armour into Victoria, • causing oleoresin capsicum spray, extendable batons and/or body armour to be brought or sent into Victoria • possessing using or carrying oleoresin capsicum spray, extendable batons and/or body armour in accordance with the terms of the authorisation given to that person by the Director, Police Integrity.

• Victoria, Gazette: General, G28, 9 July 2009, p 96:

330

Offences Members of the Sikh religion who carry a Kirpan (a specific type of sword.)

• Victoria, Gazette: General, G45, 8 November 2007, p 2606: OC spray – certain South Australian Fisheries Officers.

• Victoria, Gazette: General, G15, 13 April 2006, p 752: OC spray – prison and escort officers of Corrections Victoria; GSL Custodial Services Pty Ltd and GEO Group Australia Pty Ltd authorised prison and escort officers.

• Victoria, Gazette: General, G36, 2005, 8 September 2005, pp 2018–2029: With effect from 6 Sep 2005: • extendable batons and body armour exemption for private security personnel; • extendable batons exemption for police; • extendable batons exemption for bailiffs and Sheriff’s Office personnel; • extendable batons, body armour and Oleoresin capsicum (OC) spray exemption for fisheries and wildlife officers; • extendable batons exemption for corrections officers; • tear gas exemption for corrections officers; • Oleoresin capsicum (OC) spray exemption for corrections officers.

• Victoria, Gazette: General, G47, 18 Nov 2004, p 3171: Taser exemption for carriage and use by police.

• Victoria, Gazette: General, G25, 17 June 2004, pp 1714–1724: • General (sword) – covering museums, actors, fencers, members and former members of the Australian Defence Forces, Masons, Scottish Highland Dancers and Scouts; • Collectors (sword) – self-evident; • Historical re-enactment (swords) – covering such esoteric organisations as the Society for Creative Anachronism and the Pike and Musket Society. • General (crossbow).

• Victoria, Gazette: General, G18, 29 April 2004, pp 1002–1003: OC spray – authorised DPI employees, Fisheries and Wildlife officers.

• Victoria, Gazette: General, G48, 27 November 2003, p 3016: Taser exemption for carriage and use by police. 12-months only.

• Victoria, Gazette: General, G26, 26 June 2003, p 1633: OC spray – authorised fisheries officers.

• Victoria, Gazette: General, G16, 17 April 2003, pp 804–805: OC spray brought into Victoria, purchased, possessed, carried or used by: • prison or escort officers of CORE • Security & Emergency Services Group of CORE • authorised prison or escort officers of Group 4 Corrections Services Pty Ltd • authorised prison or escort officers of Australasian Correctional Management • authorised prison or escort officers of Custodial Management Services, AIMS Corp.

• Victoria, Gazette: General, G46, 19 November 1998, p 2820: OC spray – officers of the Security and Emergency Services Group of CORE.

• Victoria, Gazette: Special, S65, 30 June 1998, p 1: Body armour exemption for police.

• Victoria, Gazette: General, G33, 17 April 1998, p 804: • Extendable batons exemption for police – Government Gazette G33, 20 August 1998 at p 2275. Made under previous s 5(2) of the Act, valid under s 13(4).

Ch 93

Weapon – prohibited (possess, carry or use)

331

• Oleoresin capsicum (OC) spray, tear gas and batons exemption for corrections personnel – Government Gazette G16, 17 April 2003, p 804 ff.

• Victoria, Gazette: General, G50, 21 December 1995, p 3657: Tear gas exemption for Victoria Police, Special Operations Group.

• Victoria, Gazette: General, G47, 30 November 1995, p 3358: Oleoresin capsicum (OC) spray: • all sworn members of the Victoria Police Force for the purpose of carriage and operational use of oleoresin capsicum sprays in the performance of their duty • all officers and employees of the office of the Chief Commissioner of Police required to handle oleoresin capsicum sprays in the performance of their administrative duties in relation to the supply, distribution, transportation and storage of such sprays.

[93.110] Approvals The Chief Commissioner of Police may grant approval to do anything prohibited by the section under Control of Weapons Act 1990 s 8C. The most common approval is provided for martial arts training or genuine collections.

[93.120] Without exemption or approval It seems likely that the prosecution has the legal onus of proving that the accused possessed the weapon without an exemption or approval: see [4.20]. This is because the absence of exemption or approval is part of the definition of the grounds of liability.

[93.130] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [5.10.320]ff.

94 [94.10]

Wilful and obscene exposure

Contrary to: Summary Offences Act 1966 s 19

Section 19 provides:

19

Obscene exposure A person must not wilfully and obscenely expose the genital area of his or her body in, or within the view of, a public place. With effect from 1 July 2017, or earlier if so proclaimed, s 19 provides: 19 Sexual exposure (1) A person (A) commits an offence if– (a) A exposes (to any extent) A’s genitals; and (b) A intends to expose (to any extent) A’s genitals; and (c) the exposure is sexual; and (d) the exposure is in, or is within the view of, a public place. (2) A person who commits an offence against subsection (1) is liable to level 7 imprisonment (2 years maximum). (3) It is not a defence to a charge for an offence against subsection (1) that, at the time of the conduct constituting the offence, A was under a mistaken but honest and reasonable belief that the exposure was not sexual. (4) It is a defence to a charge for an offence against subsection (1) that, at the time of the conduct constituting the offence, A was under a mistaken but honest and reasonable belief that the exposure was not in, or within the view of, a public place. (5) For the purposes of subsection (1), A’s exposure of A’s genitals may be sexual due to– (a) the fact that A seeks or gets sexual arousal or sexual gratification from the exposure; or (b) any other aspect of the exposure, including the circumstances in which it takes place and whether it is contrary to community standards of acceptable conduct. (6) A’s exposure of A’s genitals is not sexual only because it is the genitals that are exposed.5

[94.20]

Statutory reference

7405.19

[94.30]

Statement of charge

Wilful and obscene exposure. Sexual exposure. 5 Amended by Crimes Amendment (Sexual Offences) Act 2016 s 25, but at the time of writing, this provision had not commenced operation. Unless proclaimed to commence earlier, this provision commences operation on 1 July 2017.

Ch 94

[94.40]

Wilful and obscene exposure

333

Wording of charge

The accused at [place] on [date] wilfully and obscenely exposed the genital area of (his/her) body (in/within the view) of a public place. The accused at [place] on [date] intentionally exposed (his/her) genitals and the exposure was sexual and (in/within view of) a public place.

[94.50]

Penalty

Wilful and obscene exposure 2 years’ jail

Sexual exposure 2 years’ jail

[94.60]

Matters to be proved

Wilful and obscene exposure 1. 2. 3. 4.

The The The The

offence occurred at the place and time alleged. offender was the accused. accused wilfully and obscenely exposed his or her genital area. exposure was in, or in view of, a public place.

Sexual exposure 1. 2. 3. 4. 5.

The offence occurred at the place and time alleged. The offender was the accused. The accused intentionally exposed his or her genitals. That exposure was sexual. The exposure was in or within view of a public place.

[94.70]

Other possible charges: Summary Offences Act 1966

Indecent or offensive behaviour: s 17(1)(d). Disorderly conduct in public: s 17A.

[94.80]

Other possible charges: common law

Outraging public decency: R v Wellard (1884) 15 Cox 559; 14 QBD 63; R v Hamilton [2008] 1 QB 224. Public or wilful exposure: R v Reinsch [1978] 1 NSWLR 483; R v Fonyodi [1963] VR 86; R v Towe [1953] VLR 381. Public nuisance.

[94.90]

Wilfully

Wilful is synonymous with “intentional” and “voluntarily”, but also imports an element of knowledge possessed by the accused of the likely consequence of their actions: Iannella v French (1968) 119 CLR 8 at 94–95, 107–109; Bergin v Brown [1990] VR 888. In the UK, it is understood as a composite term to cover both intention and recklessness: R v Sheppard [1981] AC 394.

334

Offences

[94.100] Obscenely See [76.110].

[94.110] Public place See [76.100].

[94.120] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.3210]ff.

95 [95.10]

Wilful damage

Contrary to: Summary Offences Act 1966 s 9(1)(c)

Section 9(1)(c) provides:

9

Wilful destruction, damage etc. of property

(1) Any person who— (a) destroys damages pollutes or obstructs any aqueduct dam sluice pipe pump waterway pond pool or fountain; (b) being an artificer workman journeyman or apprentice wilfully damages spoils or destroys any goods wares work or material committed to his care or charge; (c) wilfully injures or damages any property (whether private or public) the injury done being under the value of $5000; or (d) wilfully trespasses in any public place other than a Scheduled public place and neglects or refuses to leave that place after being warned to do so by the owner occupier or a person authorized by or on behalf of the owner or occupier; or (e) without express or implied authority given by the owner or occupier or given on behalf of the owner or occupier by a person authorised to give it or without any other lawful excuse, wilfully enters any private place or Scheduled public place, unless for a legitimate purpose; or (f) neglects or refuses to leave a private place or Scheduled public place after being warned to do so by the owner or occupier or a person authorised to give that warning on behalf of the owner or occupier, unless the person has a lawful excuse; or (g) without lawful excuse, enters any place (whether private or public) in a manner likely to cause a breach of the peace or reasonable apprehension of a breach of the peace— shall be guilty of an offence. (1A) In any proceedings for an offence against subsection (1) the statement on oath of any person that he is or was at any stated time the owner or occupier of any place or a person authorized by or on behalf of the owner or occupier thereof shall be evidence until the contrary is proved by or on behalf of the accused that such person is or was the owner or occupier of that place or a person authorized by or on behalf of the owner or occupier thereof (as the case requires). (1B) A person may commit an offence against paragraph (d), (e), (f) or (g) of sub-section (1) even though he or she did not intend to take possession of the place.

336

Offences

(1C) Without limiting paragraph (e) of subsection (1), examples of circumstances in which a person does not have express or implied authority to enter a place are— (a) the person enters that place after having been previously warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or (b) the person enters that place despite being then warned not to enter by the owner or occupier or a person authorised to give such a warning on behalf of the owner or occupier; or (c) the person enters that place in breach of a prominently displayed sign erected at that place by the owner or occupier or a person authorised to erect such a sign on behalf of the owner or occupier stating that— (i) the person concerned, or a class of persons of which the person concerned is a member, is prohibited from entering that place; or (ii) persons engaging in that place in the type of activity in which the person concerned is proposing to engage in that place are prohibited from entering that place— and the person has no other lawful excuse for entering that place. (1D) A warning may be given to a person under subsection (1)(f) or subsection (1C)(a) or (b)— (a) orally; or (b) by delivering written notice of it personally to the person; or (c) except in the case of a warning under subsection (1)(f), by sending written notice of it by certified mail addressed to the person at his or her usual or last known place of residence. (1E) A person may commit an offence against paragraph (g) of subsection (1) even though he or she had a right to enter that place in a manner other than that described in that paragraph. (2) For the purposes of section 86 of the Sentencing Act 1991 the cost of repairing or making good anything spoiled or damaged in contravention of this section shall be deemed to be loss or damage suffered in relation thereto. (3) Nothing contained in this section shall extend to any case where the person offending acted under a fair and reasonable supposition that he had a right to do the act complained of or to any trespass (not being wilful and malicious) committed in hunting or the pursuit of game. [95.20] Statutory reference 7405.9.1.C

[95.30]

Statement of charge

Wilfully damage or injure property.

Ch 95

[95.40]

Wilful damage

337

Wording of charge

The accused at [place] on [date] wilfully (injured/damaged) property, namely [description of property], and the value of that damage was [value of damage].

[95.50]

Penalty

25 penalty units or 6 months’ jail

[95.60]

Matters to be proved

1. The offence occurred at the place and time alleged. 2. The offender was the accused. 3. The accused wilfully injured or damage property. 4. The value of the damage was less than $5000.

[95.70]

Other possible charges: miscellaneous

Intentionally damage property: Crimes Act 1958 s 197. Mark graffiti on property without consent: Graffiti Prevention Act 2007 s 5. Discharge missile to the danger of any person or damage of any property: Summary Offences Act 1966 s 7(g).

[95.80] Wilful Wilful is synonymous with “intentional” and “voluntarily”, but also imports an element of knowledge possessed by the accused of the likely consequence of their actions: Iannella v French (1968) 119 CLR 8 at 94–95, 107–109; Bergin v Brown [1990] VR 888. In the UK, it is understood as a composite term to cover both intention and recklessness: R v Sheppard [1981] AC 394.

[95.90]

Injures or damages any property

Injury or damage to a dog, including killing it, is within the scope of the section: McDonald v Carter [1905] VLR 181. It is not always necessary that there be a cost of repair or remedy involved in order for damage to be proved. The example of the death of a domestic animal in McDonald v Carter would seem to be a case in point. In R v Previsic (2008) 185 A Crim R 383 at 385–386, the Victorian Court of Appeal reviewed the authorities on damage, and approved the statement from J Richardson (ed), Archbold: Criminal Pleading, Evidence and Practice 2008 (Sweet & Maxwell, 2008) [23]–[26] that damage “is interpreted widely to include not only permanent or temporary physical harm, but also permanent or temporary impairment of value or usefulness.” But more recently in Hammond v The Queen (2013) 85 NSWLR 313 the New South Wales Court of Criminal Appeal comprehensively considered ancient and modern cases on damage, and held the course of authority in England and Australia shows that mere interference of functionality with property is not enough to prove “damage”. What is required is either proof of: 1. physical harm to property; or 2. functional interference with the property, showing it was rendered imperfect or inoperative in the context the property exists.

338

Offences

In Hammond, the applicant was charged with spitting on a stainless steel seat in the custody area of a police station. After reviewing the authorities, the court held there was no evidence showing the seat was rendered imperfect or inoperative, and the conviction was set aside.

[95.100] Other references See also Ian Freckelton, Criminal Law, Investigation and Procedure Victoria (Thomson Reuters, subscription service) [4.2.1810]ff.

Index A

cattle, skin or carcass of stolen,

Abusive language overview, ........................................ [76.150] Accident defence of, ....................................... [9.130] Accused audio and audiovisual recordings, access and use of, ........................... [80.80] bail — see Bail brief of evidence served on full brief, ...................................... [3.40] preliminary brief, ....................... [3.30] charge-sheet, disclosure of, .......... [3.10], [3.20]

evidential burden of proof, ............ [4.30] innocence, presumption of, ............ [4.10] multiple, charges against, ............... [2.40] standard of proof, ............................ [4.20] wrongly described in charge sheet, ................................................... [2.40]

Affray charge of, . [7.80], [8.80], [70.70], [76.80], [84.80]

Age proof of, ......................... [65.100], [91.140] Airport security-controlled, enter airside or security zone without permission, .................... [87.90], [88.90], [89.90] Alms begging or gathering — see Begging alms definition, ......................................... [14.90] Ambulance service definition, ....................................... [34.100] false report of emergency to, ..... [34.10], [36.80], [37.80] matters to be proved, .............. [34.60] other possible charges, ................................... [34.70]–[34.80] penalty, ....................................... [34.50] statement of charge, ................ [34.30] statutory reference, .................. [34.20] wording of charge, ................... [34.40] impersonation of staff member, .. [60.80] Amicable contest defence, ............................................ [9.120] Animals

................................... [79.90], [90.70] dog, injury or damage to, ............ [95.90] hinder or obstruct officer in discharge of duties, ................................... [8.100] Anti-corruption examinations confidentiality, ............................... [20.120] recording of, .................................. [20.120] Appeal amendment of charge-sheet, .......... [2.60] Architects Act 1991 charges laid under, ........................... [1.50] Architects Registration Board of Victoria authority to lay charge, ................... [1.50] Armed with criminal intent charge of, ............ [91.90], [92.80], [93.80] Arrest drunk in public place, ................. [31.110] disorderly and, ........................ [30.110] execution of law, ............................ [9.140] resisting firearm use, ................................ [50.70] prior to arrest, ........................... [8.180] Arrow discharging, ......... [26.10]–[26.80], [95.70] Artwork graffiti as, ....................................... [55.100] Assault aggravated, ........... [7.10], [38.90], [39.90], [50.90], [78.80] matters to be proved, ................ [7.60] other possible charges common law, ......................... [7.80] statute, ........................ [7.70], [7.90] penalty, ......................................... [7.50] references, .................................. [7.190] separate offence, ....................... [7.100] statement of charge, .................. [7.30] statutory reference, .................... [7.20] wording of charge, ..................... [7.40] battery and, ........................................ [9.90] common, .... [7.80], [8.80], [9.10], [50.90], [84.80]

matters to be proved, ................ [9.60] other possible charges common law, ......................... [9.80] statute, .................................... [9.70]

340

Index

Assault — cont

penalty, ......................................... [9.50] statement of charge, .................. [9.30] statutory reference, .................... [9.20] wording of charge, ..................... [9.40] corporal punishment, ..................... [9.150] defences, .......................................... [9.100] amicable contest, ...................... [9.120] consent, ....................................... [9.110] duress, ......................................... [9.160] emergency, ................................. [9.160] execution of law, ...................... [9.140] intoxication, ............................... [9.160] lawful chastisement, ................ [9.150] self-defence, .............................. [9.160] definition, ........................................... [9.90] emergency worker — see Emergency worker

exempt conduct, ............................... [9.90] fear, ..................................................... [9.90] force lawful, ......................................... [9.110] present and immediate, ............. [9.90] limitation period, ............................ [9.160] local authority staff — see Local authority

references, ........................................ [9.170] sporting contests, ........................... [9.120] touch, slight, ...................................... [9.90] transmission of disease, .................. [9.90] unlawful, .... [7.70], [7.100], [8.80], [9.10], [26.70], [38.90], [39.90], [50.90], [78.80], [84.70] words, ................................................. [9.90] Audio or audiovisual recording — see also Recording of proceedings access and use of accused, by, ............................... [80.80] authorised persons, by, ........... [80.80] editing, lawful, .............................. [80.130] possess, play, supply, copy, tamper with or publish, ............................ [80.10] defences, .................................. [80.140] exceptions, ............................... [80.140] matters to be proved, .............. [80.60] other possible charges, ............ [80.70] penalty, ....................................... [80.50] rationale, .................................... [80.80] statement of charge, ................ [80.30] statutory reference, .................. [80.20] wording of charge, ................... [80.40]

Australian Consumer Law and Fair Trading Act 2012 charges laid under, ........................... [1.50] limitation period, .............................. [1.60] Authorised officer fail or refuse to supply or falsely provide name or address to, .... [71.10]–[71.90], [72.10]–[72.100], [73.70], [74.70] identity card, failure to wear or produce, ................................................. [19.50]

local government — see Local government authorised officer

refusal of entry, ............................ [23.110] scan/search powers, ..................... [23.110] Authorised person to possess etc audiovisual recording definition, ....................................... [80.120] Authorised premises under Liquor Control Reform Act 1998 definition, ....................................... [64.150] Autrefois acquit plea, striking out of charges and, . [2.30]

B Bail conduct conditions, contravention of, .................... [10.70], [11.10], [12.70] bail support services, application to, ................................................. [11.90]

infringement penalty, ............. [11.120] matters to be proved, .............. [11.60] other possible charges, ............ [11.70] penalty, ....................................... [11.50] concurrent and cumulative, ......................................... [11.110]

reasonable excuse, ................. [11.100] references, ................................ [11.130] statement of charge, ................ [11.30] statutory reference, .................. [11.20] wording of charge, ................... [11.40] failure to answer, ........................... [12.10] matters to be proved, .............. [12.60] other possible charges, ............ [12.70] penalty, ....................................... [12.50] reasonable cause, ..................... [12.90] references, ................................ [12.120] statement of charge, ................ [12.30] statutory reference, .................. [12.20] wording of charge, ................... [12.40] forfeiture of, .................................. [12.110]

Index Bail — cont

indictable offence committed while on, .................... [10.10], [11.70], [12.70] matters to be proved, .............. [10.60] other possible charges, ............ [10.70] penalty, ....................................... [10.50] concurrent and cumulative, ........................................... [10.90]

references, ................................ [10.100] statement of charge, ................ [10.30] statutory reference, .................. [10.20] wording of charge, ................... [10.40] proof of undertaking, ...... [10.80], [12.80] surety — see Surety surrender of accused into custody and not depart without leave of court, ............................................... [12.100]

Bail support service definition, ......................................... [11.90] Battery — see also Assault assault and, ........................................ [9.90] defence, ............................................ [9.130] meaning, ............................................. [9.90] Begging alms definition, ......................................... [14.80] gathering, distinguished, ............... [14.80] matters to be proved, .................... [14.60] other possible charges, .................. [14.70] penalty, ............................................. [14.50] references, ...................................... [14.100] requesting help or assistance, distinguished, ...................... [14.80] statement of charge, ...................... [14.30] statutory reference, .......... [14.10], [14.20] street performance, ........................ [14.80] wording of charge, ......................... [14.40] Behaviour disorderly, ........................................ [28.90] good, minimum requirement for, ................................................. [17.70]

indecent — see Indecent behaviour insulting, .............. [78.80], [84.70], [94.70] obscene, indecent, threatening, ................................. [76.10]–[76.180] riotous, ............................................ [76.160] Besetting premises beset, meaning, ............................. [15.100] charge of, ........... [15.10], [84.70], [86.70], [87.70], [88.70], [89.70] matters to be proved, .............. [15.60] other offences common law, ....................... [15.80]

341

statute, .................... [15.70], [15.90] penalty, ....................................... [15.50] references, ................................ [15.130] statement of charge, ................ [15.30] statutory reference, .... [15.20], [70.80] without lawful authority, ...... [15.120] wording of charge, ................... [15.40] Blackmail charge of, ......................................... [62.70] Blasphemy common law offence, .................. [76.120] Breach of the peace overview, ........................................ [70.140] trespass in manner likely to cause, ..... [76.70], [84.10]–[84.110], [87.70] Brief of evidence full, ...................................................... [3.40] particulars of charge, ....................... [3.20] preliminary, ........................................ [3.30] service of, .............................. [3.30], [3.40] Building Act 1993 charges laid under, ........................... [1.50] Buildings demolition by rioters, .................... [15.90] Burden of proof evidential, .............................. [4.10], [4.30] legal, ....................................... [4.10], [4.20] Burglary — see also Theft going equipped for, ........ [54.10], [59.70], [69.70]

connection between articles and offence, ............................... [54.100] for use, ..................................... [54.100] has with him or her, meaning, ................................................. [54.90]

matters to be proved, .............. [54.60] other possible charges, ............ [54.70] penalty, ....................................... [54.50] place of abode, ......................... [54.80] references, ................................ [54.110] statement of charge, ................ [54.30] statutory reference, .................. [54.20] wording of charge, ................... [54.40] skeleton keys, possession of, .... [54.100]

C CAMELS mnemonic overview, .......................................... [9.100] Cannabis — see also Drug — see also Drug of dependence

342

Index

Cannabis — cont

medicinal, authorisation for, ...... [29.100] use of, ............................... [29.10]–[29.100] Caravan park owner/agent offences, .... [87.80], [88.80],

invalidity, ........................................... [2.50] joinder, ................................................ [2.40] multiple accused, ............................. [2.40] particulars of offence, ..................... [2.40] disclosure to accused, pre-hearing,

[89.80]

................................................... [3.20]

Carriage bicycle, ........................................... [32.100] drunkard in charge of, .................. [32.10] matters to be proved, .............. [32.60] other possible charges, ............ [32.70] penalty, ....................................... [32.50] references, ................................ [32.110] statement of charge, ................ [32.30] statutory reference, .................. [32.20] wording of charge, ................... [32.40] Cartridge ammunition definition, ......................... [47.110], [49.80] disposal to unauthorised person,

statement of intent to deceive, injure or defraud, .................................. [2.40] striking out, ........................... [2.20], [2.30] substitute, ........................................... [2.50] summons, distinguished, ................ [2.20] time limits for commencing, ......... [1.60] undercharging, .................................. [1.40] wording, ............................................. [2.40] Charge-sheet amendment, ........................... [2.40], [2.50] appeal, on, ................................... [2.60] charge distinguished, ....................... [2.10] contents, ................................. [2.10], [2.40] copy to accused, ............................... [3.20] date of offence, ................................. [2.40] definition, ........................................... [2.10] disclosure, pre-hearing, ...... [3.10], [3.20] errors, .................................................. [2.40] filing, ................................................... [2.10] party, ............................... [1.50], [17.80] time limits, .................................. [1.60] invalidity, ........................................... [2.40] joinder of charges, ........................... [2.40] location of offence, statement as to,

................................................. [49.70]

exemption, ..................................... [49.100] incorrect storage of, ....... [46.10]–[46.140] licence, ........................................... [49.100] permit, ............................................ [49.100] possession, ....................................... [49.10] matters to be proved, .............. [49.60] other possible charges, ............ [49.70] penalty, ....................................... [49.50] statement of charge, ................ [49.30] statutory reference, .................. [49.20] without licence or permit, ..... [46.70], [49.10] wording of charge, ................... [49.40]

Catchment management authority definition, ......................................... [86.80] Cattle stolen, possession of skin or carcass from, ....................... [79.90], [90.70] Caution recording of — see Audio or audiovisual recording

Charge alternative, ......................................... amendment, ....................................... outside limitation period, ......... authority to lay, ................................ charge-sheet distinguished, ............ definition, ........................................... description, ........................................ dismissal, ........................................... duplicitous, ........................................

[5.40] [2.50] [1.60] [1.50] [2.10] [2.10] [2.40] [2.30] [2.50]

................................................... [2.40]

multiple charges, .............................. [2.40] nature and function, ............ [2.10], [2.20] repealed statutory provisions, ....... [2.50] requirements, ..................................... [2.40] Chastisement lawful, defence of, ......................... [9.150] Cheating going equipped for, ........ [54.10], [59.70], [69.70]

connection between articles and offence, ............................... [54.100] for use, meaning, ................... [54.100] has with him or her, meaning, ................................................. [54.90]

matters to be proved, .............. [54.60] other possible charges, ............ [54.70] penalty, ....................................... [54.50] place of abode, meaning, ....... [54.80] references, ................................ [54.110] statement of charge, ................ [54.30]

Index Cheating — cont

statutory reference, .................. [54.20] wording of charge, ................... [54.40] Cheque valueless, obtaining goods by, ... [79.90], [90.70]

Child charge on summons, ........................ [2.20] corporal punishment, ..................... [9.150] definition, ......................... [16.80], [91.140] determination of status as, ......... [91.140] failure to protect from harm, ....... [16.70] lawful chastisement of, ................. [9.150] leaving unattended, ........................ [16.10] charge against young person, ................................................. [16.90]

consultation with Secretary, . [16.100] matters to be proved, .............. [16.60] other possible charges, ............ [16.70] penalty, ....................................... [16.50] statement of charge, ................ [16.30] statutory reference, .................. [16.20] voluntary conduct, ................. [16.110] wording of charge, ................... [16.40] liquor possessed or consumed by, ................................. [65.10]–[65.100] protection, in need of, failure to report, ................................................. [16.70]

purchase of weapons, .................. [91.140] Child abuse material distribution of, .... [51.90], [61.80], [62.70] minor, determination of status, . [91.140] production of, ................................. [61.80] transmission of, ................ [51.90], [61.80] Child pornography publication or transmission of, .. [51.90],

343

contravention of, ............................ [18.10] matters to be proved, .............. [18.60] penalty, ....................................... [18.50] reasonable excuse, ................. [18.100] statement of charge, ................ [18.30] statutory reference, .................. [18.20] wording of charge, ................... [18.30] proof of, ......................................... [18.110] Community standards of acceptable conduct overview, ........................................ [61.110] Computer system assistance with access, failure to comply with, ........................................ [6.70] warrant for access, failure to comply with, ........................................ [6.10] matters to be proved, ................ [6.60] other possible charges, .............. [6.70] penalty, ......................................... [6.50] self-incrimination, ...................... [6.80] statement of charge, .................. [6.30] statutory reference, .................... [6.20] without reasonable excuse, ...... [6.90] wording of charge, ..................... [6.40] Confessions and admissions recording of — see Audio or audiovisual recording

Consent defence to assault, .......................... [9.110] deposit document in or on vehicle, ................................................. [68.80]

graffiti marking, ............ [55.100], [55.110] intimate image and, ..................... [61.120] medical procedures, ....................... [9.110] tattooing, piercing and branding,

[61.80]

................................................. [9.110]

Child-related employment registrable offender applying or engaging in, ......................... [81.70] Children’s Court proceedings publication of identifying details, ............................... [21.100], [22.100] summary offences, ..................... [1.40] Chroming offensive behaviour, .................... [76.130] Cognate offence substitution of charge, ..................... [2.50] Community correction order (CCO) commencement, .............................. [18.70] conditions, ....................................... [18.70]

Consumer Affairs Victoria authority to lay charge, ................... [1.50] Contamination of goods — see also Spiking of food/drink intent to cause or being reckless as to causing public alarm or economic loss, ....................................... [83.80] Contempt charge of, ......... [20.90], [20.120], [21.90], [22.90]

party bringing suit, .......................... [1.50] sub judice, ......................... [21.90], [22.90] Contravention bail conduct conditions, .............. [10.70], [11.10]–[11.130]

344

Index

Contravention — cont CCO, ................................. [18.10]–[18.110] closed court order, ...... [20.100], [21.100], [22.100] definition, ......................................... [17.70]

family violence matters intervention order, .... [38.10]–[38.150] protection order, ......... [38.80], [39.80] safety notice, ............................ [38.80], [39.10]–[39.150] firearm licence conditions, ................................... [44.10]–[44.90] move on direction, ......... [70.10]–[70.160] personal safety intervention order, ................................. [78.10]–[78.120] release on adjournment, ................................. [17.10]–[17.110] suppression order, ........ [21.100], [22.100] Control of Weapons Act 1990 limitation period, .............................. [1.60] Conveying meaning, ........................................... [90.90] Copy audio or audiovisual recording, ................................. [80.10]–[80.140] Corporal punishment proscribed by statute, .................... [9.150] Country area — see also Metropolitan district definition, ....................................... [36.110] fire causing in extreme weather, ................................... [40.10]–[40.90] danger period, offences during, ................................... [40.70], [41.70] County Court amendment of charge before, ........ [2.60] proceedings for summary offences, ................................................... [1.40]

transfer, contravention of order for release on adjournment, ... [17.90] Court authorised officer, ........................... [19.80] powers of, .................. [23.10], [23.110] reasonable grounds for belief, ............................................... [23.120]

search/scan/surrender request, refusal to comply with, .. [23.10]–[23.120] chief executive officer, .................. [19.90] clerk of, ............................................ [19.90] closed, contravention of order, .............. [20.100], [21.100], [22.100]

contempt of — see Contempt definition, ......................... [19.70], [58.130] security, charges in relation to — see Court security

Court proceeding criminal, ......................................... [58.120] intentionally recording, ................. [20.10] defences, .................................. [20.130] matters to be proved, .............. [20.60] other possible charges common law, ....................... [20.90] statute, .... [20.70]–[20.80], [20.100] penalty, ....................................... [20.50] statement of charge, ................ [20.30] statutory reference, .................. [20.20] wording of charge, ................... [20.40] proceeding, definition, ................ [20.120] Court security failure to wear/produce identity card, ................................... [19.10]–[19.90] prohibited item, ............................ [23.130] recording of proceedings, ................................. [20.10]–[20.130] publication of, ........... [21.10]–[21.140] transmission or giving of, ............................ [22.10]–[22.22.130] search/scan/surrender of items, refusal to comply with, .. [23.10]–[23.120] Crimes Amendment (Abolition of Defensive Homicide) Act 2014 evidential burden, ............................ [4.30] Criminal proceeding definition, ....................................... [58.120] Crown Prosecutor filing of charge-sheet, ................... [17.80] Custody escape from, .................................... [33.70] housebreaking implements, of .... [59.90] lawful definition, ................................... [33.80] escape from, ................. [7.70], [8.100], [33.10]–[33.90] legal, escape from, ......................... [33.70] officer, ............................................... [25.90]

D Damage — see also Property damage criminal, ............................. [55.70], [56.70] wilful, ... [55.90], [56.90], [95.10]–[95.100]

Index

Dangerous article — see also Cartridge ammunition — see also Firearm — see also Weapon definition, ......................................... [92.90] discharging stone, arrow or missile, ..................... [26.10]–[26.80], [95.70] possess or carry in public place, .................... [91.80], [92.10], [93.70] lawful excuse, ......................... [92.120] matters to be proved, .............. [92.60] other possible charges, ................................... [92.70]–[92.80] penalty, ....................................... [92.50] references, ................................ [92.140] statement of charge, ................ [92.30] statutory reference, .................. [92.20] wording of charge, ................... [92.40] Dangerous Goods Act 1958 charges laid under, ........................... [1.50] Date offence, statement in charge-sheet, ................................................... [2.40]

Deception obtain property by, ......................... [79.70] statement as to intent, ..................... [2.40] Defence force unauthorised entry on premises or accommodation, .. [87.90], [88.90], [89.90]

Defences accident, ........................................... [9.130] amicable contest, ............................ [9.120] assault, .............................................. [9.100] audio or audiovisual recording, proscribed use of, ............ [80.140] battery, .............................................. [9.130] CAMELS mnemonic, ................... [9.100] consent, ............................................. [9.110] defence of others, .......................... [9.160] drugs of dependence, use of, .... [29.100] duress, ............................................... [9.160] emergency, ....................................... [9.160] evidential burden, .............. [4.30], [9.160] execution of law, ............................ [9.140] firefighting, .................................... [41.110] fires country area, causing in extreme weather, ................................ [40.90] total fire ban day, lighting on, ............................................... [41.110]

graffiti marking, ............................ [56.120]

345

intoxication, ..................................... [9.160] knowledge, lack of, ..................... [41.110] lawful chastisement, ...................... [9.150] licensee/permittee allowing intoxicated person on premises, ......... [64.160] misadventure, .................................. [9.130] registrable offender, failure to comply with reporting obligations, ............................................... [81.130]

self-defence, .................................... [9.160] Department of Human Services Secretary, consultation regarding leaving child unattended, .............. [16.100] Detained person acting in prejudicial or threatening manner, in police gaol, ..... [24.10] matters to be proved, .............. [24.60] other possible charges, ............ [24.70] penalty, ....................................... [24.50] statement of charge, ................ [24.30] statutory reference, .................. [24.20] wording of charge, ................... [24.40] definition, ........................... [24.80], [25.80] disobeying lawful order, ............... [25.10] lawful order, meaning, .......... [25.100] matters to be proved, .............. [25.60] other possible charges, ............ [25.70] penalty, ....................................... [25.50] statement of charge, ................ [25.30] statutory reference, .................. [25.20] wording of charge, ................... [25.40] Director of Public Prosecutions contempt proceedings, .................... [1.50] filing of charge-sheet, ................... [17.80] Discharging stone, arrow or missile matters to be proved, .................... [26.60] other missile, meaning, ................. [26.80] other possible charges, .................. [26.70] penalty, ............................................. [26.50] statement of charge, ...................... [26.30] statutory reference, .......... [36.10], [26.20] wording of charge, ......................... [26.40] Disclosure order, ................................................... [3.30] pre-hearing, ....................................... [3.10] purpose, .............................................. [3.40] refusal by informant, .......... [3.30], [3.40] Disease transmission of, ................................ [9.90] Disguised with unlawful intent history, .............................................. [27.90]

346

Index

Disguised with unlawful intent — cont matters to be proved, .................... [27.60] meaning, ......................................... [27.100] other possible charges, .... [27.70]–[27.80] penalty, ............................................. [27.50] references, ...................................... [27.110] statement of charge, ...................... [27.30] statutory reference, .......... [27.10], [27.20] wording of charge, ......................... [27.40]

Dismissal charge, ................................................ [2.30] Disorderly drunk and, in public place, ......... [28.70], [30.10]–[30.120] drunkard behaving in riotous or disorderly manner, ............ [28.70], [32.10]–[32.110] Disorderly behaviour overview, .......................................... [28.90] Disorderly conduct public place, in, .............. [28.10], [38.90], [39.90], [52.70], [63.80], [64.80], [65.70], [76.70], [78.80], [84.70], [94.70]

matters to be proved, .............. [28.60] other possible charges common law, ....................... [28.80] statute, .................................. [28.70] penalty, ....................................... [28.50] references, ................................ [28.110] statement of charge, ................ [28.30] statutory reference, .................. [28.20] wording of charge, ................... [28.40] Distribute (intimate images) definition, ......................................... [61.90] Document description in charge, ...................... [2.40] Dog injury or damage to, ...................... [95.90] Domestic Animals Act 1994 charges laid under, ........................... [1.50] Donations false statement while seeking, .... [14.70] Drug administer to render person incapable of resistance to sexual penetration, ................................................. [83.80]

committer of drug-related offences, ................................... [69.80], [69.90] definition, ......................................... [43.90] firearm, carry or use under influence of, ...... [43.10]–[43.90], [45.70], [50.80]

related offences, .............................. [69.90] committer of, .............. [69.80], [69.90] Drug of dependence cannabis — see Cannabis definition, ......................................... [29.90] introduce into body of another person, ................................................. [83.70]

possession, .......... [29.70], [29.80], [82.70] use of, ............................................... [29.10] authorisation or license, ....... [29.100] defence, .................................... [29.100] definition, ................................... [29.80] matters to be proved, .............. [29.60] other possible charges, ............ [29.70] penalty, ....................................... [29.50] statement of charge, ................ [29.30] statutory reference, .................. [29.20] wording of charge, ................... [29.30] Drugs, Poisons and Controlled Substances Act 1981 burden of proof, ............................... [4.20] charges, ............................................. [29.70] limitation period, .............................. [1.60] use, definition, ................................ [29.80] Drunk — see also Drunkard — see also Intoxication — see also Liquor drunkard behaving in riotous or disorderly manner, ............ [28.70], [32.10]

public place, in, .............. [31.10], [32.70], [64.80], [65.70] arrest, ........................................ [31.110] found, meaning, ........................ [31.80] matters to be proved, .............. [31.60] other possible charges, ............ [31.70] penalty, ....................................... [31.50] references, ................................ [31.120] statement of charge, ................ [31.30] statutory reference, .................. [31.20] wording of charge, ................... [31.40] question of fact, ............................. [31.90] refuse or failure to leave licensed premises, ............. [63.10]–[63.100], [64.70]

Drunk and disorderly public place, in, .............. [28.70], [30.10], [32.70], [63.80], [64.80], [65.70] arrest, ........................................ [30.110] matters to be proved, .............. [30.60] other possible charges, ............ [30.70] penalty, ....................................... [30.50]

Index Drunk and disorderly — cont references, ................................ [30.120] statement of charge, ................ [30.30] statutory reference, .................. [30.20] wording of charge, ................... [30.40]

Drunkard — see also Drunk — see also Intoxication — see also Liquor carriage, in charge of, ... [32.10], [32.100] riotous or disorderly manner, behaving in, ............. [28.70], [32.10], [63.80], [64.80], [65.70] matters to be proved, .............. [32.60] other possible charges, ............ [32.70] penalty, ....................................... [32.50] references, ................................ [32.110] statement of charge, ................ [32.30] statutory reference, .................. [32.20] wording of charge, ................... [32.40] Duress defence of, ....................................... [9.160]

E Economic loss contaminating goods with intent to cause or being reckless as to causing, ................................ [83.80] Electricity Safety Act 1998 limitation period, .............................. [1.60] Emergency call service, improper use of, ..... [34.80], [36.80], [37.80] codification of defence, ................ [9.160] false report of fire, .......... [35.10], [36.10] false report to ambulance service, .... [34.10]–[34.100], [36.80], [37.80] Emergency worker ambulance — see Ambulance service assault of, .............................. [7.70], [8.10] background to s 51(2), (4), .... [8.110] knowledge of emergency worker’s status, .................................... [8.120] matters to be proved, ................ [8.60] other possible charges common law, ......................... [8.80] statute, .......... [8.70], [8.90]–[8.100] penalty, ......................................... [8.50] statement of charge, .................. [8.30] statutory reference, .................... [8.20] wording of charge, ..................... [8.40] fire brigade — see Fire brigade

347

meaning, ........................................... [8.130] on duty and execution of duty, ... [8.140] police — see Police officer Energy Safety Act 1998 charges laid under, ........................... [1.50] EnergySafe Victoria authority to lay charge, ................... [1.50] Entry forcible, charge of, ........................ [15.90] permit, ............................................. [89.110] refusal by authorised officer, ..... [23.110] Environment Protection Act 1970 authority to charge, ........................ [66.80] charges laid under, ........................... [1.50] Environment Protection Authority authority to lay charge, ................... [1.50] Escape custody, from, ................................. [33.70] lawful custody, from, ....... [7.70], [8.100], [33.10]

matters to be proved, .............. [33.60] other possible charges, ............ [33.70] penalty, ....................................... [33.50] references, .................................. [33.90] statement of charge, ................ [33.30] statutory reference, .................. [33.20] wording of charge, ................... [33.40] Estate Agents Act 1980 charges laid under, ........................... [1.50] Evidence brief — see Brief of evidence false, recording of, ....................... [21.100] Exposure anal or genital region, . [76.110], [76.170] public or wilful, ............................. [94.80] sexual, ................... [94.10], [94.50]–[94.60] wilful and obscene — see Wilful and obscene exposure

F False report ambulance service, to, .. [34.10]–[34.100] fire, of Country Fire Authority Act 1958, under, ...... [34.80], [36.10]–[36.110] Metropolitan Fire Brigades Act 1958, under, ....................... [34.80], [35.10]–[35.110] police, to, ........... [34.70], [35.70], [36.70], [37.10]

348

Index

False report — cont

causes to be reported, definition, ............................................... [37.110]

matters to be proved, .............. [37.60] other possible charges common law, ....................... [37.90] statute, ..................... [37.70]–[37.80] payment of expenses incurred, ............................................... [37.130]

penalty, ....................................... [37.50] references, ................................ [37.160] statement of charge, ................ [37.30] statutory reference, .................. [37.20] summary determination, ....... [37.120] voluntarily, definition, ........... [37.100] wording of charge, ................... [37.40] Family violence explanation of notices, ............... [38.110], [39.110]

intervention order — see Family violence intervention order

protection order — see Family violence protection order

protection proceeding, publication of, ............................................... [21.100]

safety notice — see Family violence safety notice

Family violence intervention order contravention of, ............................ [38.10] matters to be proved, .............. [38.60] other possible charges, ................................... [38.70]–[38.90] penalty, ....................................... [38.50] protected person, whether abettor, ............................................... [39.140]

references, ................................ [38.150] statement of charge, ................ [38.30] statutory reference, .................. [38.20] wording of charge, ................... [38.40] interim, ........................................... [38.110] service of, ...................................... [38.100] Family violence protection order contravention of, .............. [38.80], [39.80] matters to be proved, .............. [38.60] other possible charges, ................................... [38.70]–[38.90] penalty, ....................................... [39.50] protected person, whether abettor, ............................................... [39.140]

references, ................................ [39.150] statement of charge, ................ [39.30] statutory reference, .................. [39.20]

wording of charge, ................... [39.40] Family violence safety notice contravention of, .............. [38.80], [39.10] location of offending, ............ [39.120] matters to be proved, .............. [39.60] mens rea, .................................. [39.130] other possible charges, ................................... [39.70]–[39.90] penalty, ....................................... [39.50] references, ................................ [39.150] statement of charge, ................ [39.30] statutory reference, .................. [39.20] wording of charge, ................... [39.40] explanation of, .............. [38.110], [39.110] service of, ...................................... [39.100] Filing charge party, ............................................. [1.50] time limits, .................................. [1.60] charge-sheet, ...................................... [2.10] electronic, .......................................... [2.10] Fines calculation, ........................................ [1.30] Fire country area, causing in extreme weather, ................................ [40.10] defences, .................................... [40.90] matters to be proved, .............. [40.60] other possible charges, ................................... [40.70]–[40.80] penalty, ....................................... [40.50] statement of charge, ................ [40.30] statutory reference, .................. [40.20] wording of charge, ................... [40.40] definition, ........................... [35.90], [36.90] false alarm of, ................................. [35.90] false report of cost recovery, ............................ [35.90] Country Fire Authority Act 1958, contrary to, ......................... [34.80], [36.10]–[36.110], [37.80] Metropolitan Fire Brigades Act 1958, contrary to, ............. [34.80], [35.10]–[35.110], [36.80], [37.80] non-fire incidents excluded, . [35.90], [36.90]

lighting in open air, ......... [40.80], [41.80] meal preparation, .......................... [41.110] open air, definition, ........................ [41.90] primary production, ..................... [41.110] total fire ban, definition, ............. [41.100]

Index Fire — cont

total fire ban day, lighting on, .... [41.10] defences, ................................... [41.110] matters to be proved, .............. [41.60] other possible charges, ................................... [41.70]–[41.80] penalty, ....................................... [41.50] statement of charge, ................ [41.30] statutory reference, .................. [41.20] wording of charge, ................... [41.40] Fire brigade definition, ....................................... [36.100] hinder or obstruct member, ...................................... [8.100] officer, ......................................... [8.100] operational staff, ....................... [8.100] impersonation of officer, member or volunteer, ............................. [60.80] metropolitan unit, ......................... [35.100] Fire danger period offences during, ................ [40.70], [41.70] Firearm — see also Cartridge ammunition — see also Weapon antique handgun, definition, ...... [47.110] carry or use in town or populous place, ..... [42.10], [43.70], [45.70], [48.70], [50.90]

defences, ................................... [41.110] matters to be proved, .............. [42.60] other possible charges, ............ [42.70] penalty, ....................................... [42.50] statement of charge, ................ [42.30] statutory reference, .................. [42.20] wording of charge, ................... [42.40] damage property with, ... [45.10]–[45.90], [50.80] injury or damage, meaning, ... [45.80] matters to be proved, .............. [45.60] other possible charges, ............ [45.70] penalty, ....................................... [45.50] statement of charge, ................ [45.30] statutory reference, .................. [45.20] wording of charge, ................... [45.40] definition, ....................................... [47.110] handgun, definition, ..................... [47.110]

insecure or dangerous manner of carrying or use, ... [42.70], [46.70], [49.70]

intoxicating liquor or drugs, use under influence of, ......... [43.10], [45.70], [50.80]

349

intoxicating liquor or drug, definition, ............................. [43.90] matters to be proved, .............. [43.60] other possible charges, ............ [43.70] penalty, ....................................... [43.50] statement of charge, ................ [43.30] statutory reference, .................. [43.20] wording of charge, ................... [43.40] licence — see Firearm licence loaded, definition, .......................... [42.70] longarm category A, .............................. [47.140] category B, .............................. [47.150] category C, .............................. [46.120] category D, .............................. [46.130] definition, ................................. [47.130] paintball marker, definition, ....... [47.160] percussion, definition, ................. [47.110] police, ............................................. [42.100] possess on private property without consent, ... [43.70], [45.70], [48.10], [50.80]

matters to be proved, .............. [48.60] other possible charges, ............ [48.70] penalty, ....................................... [48.50] statement of charge, ................ [48.30] statutory reference, .................. [48.20] wording of charge, ................... [48.40] possession, ..................................... [47.100] prohibited person, by, ............. [42.70] without licence, ....................... [42.70], [47.10]–[47.200] registered, definition, ................... [47.110] single shot antique handgun, definition, ............................................... [47.110]

storage of longarm, incorrect, ..... [46.10] firearms collector, ...... [46.70], [49.70] matters to be proved, .............. [46.60] other possible charges, ............ [46.70] penalty, ....................................... [46.50] Schedule 4 requirements, ..... [46.140] statement of charge, ................ [46.30] statutory reference, .................. [46.20] unlicensed person, ................... [46.70] wording of charge, ................... [46.40] summary offences, ......................... [47.80] use in dangerous manner, ........... [43.70], [45.70], [48.70], [49.70], [50.10] matters to be proved, .............. [50.60] other possible charges, ................................... [50.70]–[50.90]

350

Index

Firearm — cont

penalty, ....................................... [50.50] statement of charge, ................ [50.30] statutory reference, .................. [50.20] wording of charge, ................... [50.40] Firearm licence Chief Commissioner’s power, .. [47.170], [47.180]

delegation, ............................... [47.200] contravention of conditions, ........ [44.10] matters to be proved, .............. [44.60] other possible charges, ............ [44.70] penalty, ....................................... [44.50] statement of charge, ................ [44.30] statutory reference, .................. [44.20] wording of charge, ................... [44.40] exemptions, ................................... [47.120] failure to comply with, ................. [47.70] junior, ............................... [44.80], [47.190] longarm, ........................................... [44.80] category A, .............................. [47.190] category B, .............................. [47.190] Part 2 Firearms Act 1996, under, ............................................... [47.170]

in accordance with, ............... [47.180] possession without, ......... [42.70], [47.10] matters to be proved, .............. [47.60] other possible charges, ............ [47.70] penalty, ....................................... [47.50] statement of charge, ................ [47.30] statutory reference, .................. [47.20] wording of charge, ................... [47.40] Schedule 1 and 2 Firearms Act 1996 conditions, ......................... [47.190] Fisheries Act 1995 limitation period, .............................. [1.60] Fisheries officer assault etc, ....................................... [8.100] Food Act 1984 charges laid under, ........................... [1.50] limitation period, .............................. [1.60] Food/drink give, meaning, ................................ [83.90] spiking — see Spiking of food/drink Footpath obstruction of, .................. [15.70], [70.80] Foyer public place, .................................. [76.100] Fraud statement as to intent, ..................... [2.40] Frisk search

authorised officer, by, .................. [23.110]

G Gaol — see also Prison good order or management, ........ [24.90] police act in manner prejudicial to safety of person in, ... [7.90], [24.10]–[24.90] escape or attempt, .................... [33.70] Genital or anal region definition, ....................................... [52.100] distribution of image, .... [51.10], [52.70], [62.80]

exceptions, ............................... [51.120] matters to be proved, .............. [51.60] other possible charges common law, ....................... [51.80] statute, .................... [51.70], [51.90] penalty, ....................................... [51.50] references, ................................ [51.130] statement of charge, ................ [51.30] statutory reference, .................. [51.20] third parties and, .................... [51.100] wording of charge, ................... [51.40] exposure, ........................ [76.110], [76.170] observation aided by device, ...... [51.70], [52.10]

device, definition, ................... [52.110] exceptions, ............................... [52.130] history, ........................................ [52.90] matters to be proved, .............. [52.60] other possible charges common law, ....................... [52.80] statute, .................................. [52.70] penalty, ....................................... [52.50] reasonable expectation, ......... [52.120] references, ................................ [52.140] statement of charge, ................ [52.30] statutory reference, .................. [52.20] wording of charge, ................... [52.40] visually capture, ............ [51.70], [51.100], [52.70], [53.10] definition, ................................. [53.100] exceptions, ............................... [53.130] matters to be proved, .............. [53.60] other possible charges common law, ....................... [53.80] statute, .................... [53.70], [53.90] penalty, ....................................... [53.50] references, ................................ [53.140]

Index Genital or anal region — cont

statement of charge, ................ [53.30] statutory reference, .................. [53.20] wording of charge, ................... [53.40] Good behaviour minimum requirement, ................. [17.70] Going equipped for burglary or theft — see also Theft going equipped for, ........ [54.10], [59.70], [69.70]

connection between articles and offence, ............................... [54.100] for use, ..................................... [54.100] has with him or her, meaning, ................................................. [54.90] matters to be proved, .............. [54.60] other possible charges, ............ [54.70] penalty, ....................................... [54.50] place of abode, ......................... [54.80] references, ................................ [54.110] statement of charge, ................ [54.30] statutory reference, .................. [54.20] wording of charge, ................... [54.40] skeleton keys, possession of, .... [54.100]

Graffiti implement, possession of prescribed, ................................................. [57.10]

adjacent public place, ........... [57.120] lawful excuse, ......................... [57.100] matters to be proved, .............. [57.60] other possible charges, ................................... [57.70]–[57.80] penalty, ....................................... [57.50] prescribed graffiti implement, meaning, ............................... [57.90] property of transport company, ............................................... [57.110]

statement of charge, ................ [57.30] statutory reference, .................. [57.20] wording of charge, ................... [57.40] marking of, ......... [55.10], [56.80], [95.70] matters to be proved, .............. [55.60] meaning, ................................... [55.100] other possible charges, ................................... [55.70]–[55.90] penalty, ....................................... [55.50] references, ................................ [54.110] statement of charge, ................ [55.30] statutory reference, .................. [55.20] wording of charge, ................... [55.40] offensive, marking of, ..... [55.80], [56.10] defence, .................................... [56.120]

351

matters to be proved, .............. [56.60] meaning, ................................... [55.100] offend, definition, ................... [56.110] other possible charges, ................................... [56.70]–[56.90] penalty, ....................................... [56.50] references, ................................ [54.110] statement of charge, ................ [56.30] statutory reference, .................. [56.20] wording of charge, ................... [56.40] political comment, ....................... [56.120]

H Harass definition, ....................................... [58.100] Harassment postal service, via, ......... [58.100], [67.80] silent phone calls, ........................ [58.100] witness, of — see Witness Harm definition, ....................................... [83.110] Hindrance emergency worker, ........................... [8.10] fire brigade officer, member or operational staff, ................. [8.100] fisheries officer, .............................. [8.100] intention or reckless, requirement, ................................................. [8.160]

local authority staff on duty, ......... [8.10] local government authorised officer, ................................................. [72.80]

overview, .......................................... [8.150] service performance, ..................... [15.90] Housebreaking implement meaning, ......................................... [59.100] possession of, ................... [54.70], [59.10] history, ........................................ [59.80] lawful excuse, ......................... [59.110] matters to be proved, .............. [59.60] other possible charges, ............ [59.70] penalty, ....................................... [59.50] possession or custody, meaning, ................................................. [59.90]

references, ................................ [59.120] statement of charge, ................ [59.30] statutory reference, .................. [59.20] wording of charge, ................... [59.40]

352

Index

I Identification — see also Name and address Children’s Court proceeding, publication, ........ [21.100], [22.100] police, manufacture, possess, use or supply, ................................... [60.70] victim, publication, ...... [21.100], [22.100] Identity card failure to wear or produce, .......... [19.10] matters to be proved, .............. [19.60] penalty, ....................................... [19.50] statement of charge, ................ [19.30] statutory reference, .................. [19.20] wording of charge, ................... [19.40] Image — see also Photograph genital or anal region, distribution of, .... [51.10]–[51.130], [52.70], [62.80] intimate — see Intimate image Impersonation ambulance service member, ........ [60.80] Country Fire Authority officer, member or volunteer, ........................ [60.80] fire brigade unit member, ............. [60.80] police officer, .................................. [60.10] holding out to be, .................. [60.100] matters to be proved, .............. [60.60] other possible charges, ............ [60.70] penalty, ....................................... [60.50] references, ................................ [59.120] statement of charge, ................ [60.30] statutory reference, .................. [60.20] wording of charge, ................... [60.40] Imprisonment summary offences, maximum term, ................................................... [1.30]

Indecency — see also Obscenity — see also Profanity publication of material, ............. [21.100], [22.100]

Indecent — see also Obscene — see also Offensive assessment, .................................... [76.110] context, ........................................... [76.110] meaning, ......................... [76.110], [76.130] Indecent behaviour charge of, ........................... [51.70], [52.70] public place, in or near, .. [8.90], [15.70], [28.70], [76.10]–[76.180], [78.80], [87.70], [94.70]

public transport, ............................. [76.90] Independent Broad-based Anti-corruption Commission (IBAC) examinations, confidentiality of, ............................................... [20.120]

Indictable offences bail, committed while on, ........... [10.10], [11.70], [12.70] matters to be proved, .............. [10.60] other possible charges, ............ [10.70] penalty, ......................... [10.90], [10.90] references, ................................ [10.100] statement of charge, ................ [10.30] statutory reference, .................. [10.40] wording of charge, ................... [10.40] classification, ..................................... [1.30] loitering with intent to commit, ................................. [69.10]–[69.130] Indictment joinder of charges, ........................... [2.40] Industrial dispute lock-out or strike, participation in, ................................................. [15.90]

picketing, ....................................... [15.100] protected industrial action, immunity for, ....................................... [15.100] Informant definition, ........................................... [2.10] refusal to disclose information, ... [3.30], [3.40]

Information commencement of proceedings by, ................................................... [2.10]

Infringement notice abalone poaching offences, ........ [11.130] contravention of bail conduct conditions, .......................... [11.130] Injury intentionally or recklessly causing, .................... [38.70], [39.70], [78.70] serious intentionally causing, ............. [38.70], [39.70], [78.70] reckless conduct endangering, ................................................. [50.70]

threat to inflict, .......... [38.70], [39.70], [50.70]

statement as to intent, ..................... [2.40] Innocence presumption of, ................................ [4.10] Insult definition, ....................................... [76.150]

Index

Insulting behaviour or manner in or near public place, ........ [78.80], [84.70], [94.70] language or behaviour, ............... [76.150] Intent disguised with unlawful — see Disguised

353

Intoxication codification of defence, ................ [9.160] involuntary, ...................................... [9.160] self-induced, .................................... [9.160] state of, ........................................... [64.100] test, .................................................... [31.90]

with unlawful intent

loitering with — see Loitering Intention hindrance/obstruction, requirement, ................................................. [8.160]

Interrogation — see also Questioning recording, charges in relation to, ................................... [21.80], [22.80] Intimate image consent, .......................................... [61.120] definition, ....................................... [61.100] distribution of, ... [51.70], [52.70], [61.10], [62.80]

contrary to community standards of acceptable conduct, .......... [61.110] distribute, meaning, ................. [61.90] exceptions, ............................... [61.120] matters to be proved, .............. [61.60] other possible charges, ................................... [61.70]–[61.80] penalty, ....................................... [61.50] references, ................................ [61.130] statement of charge, ................ [61.30] statutory reference, .................. [61.20] wording of charge, ................... [61.40] threat to distribute, ......... [51.70], [52.70], [62.10] existence of image, .................. [62.90] matters to be proved, .............. [62.60] mens rea, .................................... [62.90]

other possible charges, ................................... [62.70]–[62.80] penalty, ....................................... [62.50] references, ................................ [62.120] statement of charge, ................ [62.30] statutory reference, .................. [62.20] wording of charge, ................... [62.40] Intoxicated person — see also Drunk — see also Drunkard supply by licensee or permittee of liquor to, ............... [64.10]–[64.160] Intoxicating substance — see also Drug of dependence — see also Liquor administer for sexual purpose, .... [83.80] definition, ....................................... [83.100]

J Joinder charges, ............................................... [2.40] prosecution-onus and reverse-onus offences, ............................. [79.140] Junk mail — see also Litter charge of, ......................................... [67.30]

K Kill threat to, ............. [38.70], [39.70], [50.70], [78.70]

Knowledge lack of, defence, ........................... [41.110] possession, requirement for, ....... [59.90], [65.70]

spiking of food and drink, ......... [83.130] suspicion, distinguished, ............. [83.130] wilfulness and, .............. [15.110], [34.90], [88.100], [89.100], [94.90], [95.80]

L Land — see also Private property — see also Property Commonwealth, trespassing on, .................... [87.90], [88.90], [89.90] Language — see also Words abusive, .......................................... [76.150] blasphemy, ..................................... [76.120] indecent and obscene, ................. [76.110] indecent or offensive on public transport, .............................. [76.90] insulting, ........................................ [76.150] obscene, indecent, threatening, ................................. [76.10]–[76.180] offensive, ........................................ [76.130] profanity, ........................................ [76.120] Lawful authority evidential burden of raising, ......... [6.90] Lawful excuse graffiti implement, possession of, ............................................... [57.100]

354

Index

Lawful excuse — cont

housebreaking implements, possession of, ........................................ [57.100] trespass manner likely to cause breach of the peace, .................................. [84.100] refuse or neglect to leave private or scheduled public place, .. [87.130] wilfully enter private or scheduled public place, ...................... [88.130] weapons offences controlled weapon, possess, use or carry in public place, ...... [91.120] dangerous article, possess or carry in public place, ...................... [92.120] Legal practitioner definition, ....................................... [80.110] Legitimate purpose wilfully enter private or scheduled public place, ...................... [88.140] Licence drug of dependence, .................... [29.100] firearm — see Firearm licence liquor — see Liquor licence trespass and, .................. [89.110], [89.120] Licensed premises — see also Liquor definition, ....................... [64.150], [91.110] drunk, violent or quarrelsome person refuse or fail to leave on request, ................................... [63.10], [64.70] matters to be proved, .............. [63.60] other possible charges, ................................... [63.70]–[63.80] penalty, ....................................... [63.40] quarrelsome, definition, ........ [63.100] statement of charge, ................ [63.30] statutory reference, .................. [63.20] wording of charge, ................... [63.40] licensee or permittee offences — see Licensee/permittee

Licensee/permittee allowing intoxicated person on licensed premises, .............................. [64.10] accused, ...................................... [64.90] liability of body corporate officers, ................................................. [64.90]

licensed or authorised premises, ............................................... [64.150]

liquor, ........................................ [64.140] matters to be proved, .............. [64.60]

other possible charges, ................................... [64.70]–[64.80] penalty, ....................................... [64.50] state of intoxication, .............. [64.100] statement of charge, ................ [64.30] statutory reference, .................. [64.20] wording of charge, ................... [64.40] licensee, definition, ........................ [64.90] permittee, definition, ..................... [64.90] supplying intoxicated person, ..... [64.10] accused, ...................................... [64.90] liability of body corporate officers, ................................................. [64.90]

liquor, ........................................ [64.140] matters to be proved, .............. [64.60] other possible charges, ................................... [64.70]–[64.80] penalty, ....................................... [64.50] state of intoxication, .............. [64.100] statement of charge, ................ [64.30] statutory reference, .................. [64.20] supply, definition, ................... [64.130] wording of charge, ................... [64.40] Lies hindering/obstructing police, ....... [8.150] Limitation periods amendment of charge, ........ [1.60], [2.50] assault, .............................................. [9.160] continuing offences, ......................... [1.60] sexual offences, historical, ............. [1.60] summary proceedings, .... [1.60], [72.100] summons, extension of, .................. [2.20] Liquor — see also Licensed premises intoxicating carry or use firearm under influence of, ............. [43.10]–[43.90], [45.70], [50.80]

definition, ................................... [43.90] possession or consumption by minor, ................................................. [65.10]

evidence of consumption, ...... [65.80] matters to be proved, .............. [65.60] other possible charges, ............ [65.70] penalty, ....................................... [65.50] possess or consume, ................ [65.80] proof of age, ........................... [65.100] statement of charge, ................ [65.30] statutory reference, .................. [65.20] wording of charge, ................... [65.40] supply to intoxicated person, ................................. [64.10]–[64.160]

355

Index

Liquor Control Reform Act 1998 charges laid under, ........................... [1.50] Liquor licence — see also Licensed premises endorsed person, ............................ [64.90] licensee/permittee offences — see Licensee/permittee

nominee, ........................................... [64.90] Litter advertising material in certain mailboxes, deposit of, ....... [67.10] matters to be proved, .............. [67.60] other possible charges, ................................... [67.70]–[67.80] penalty, ....................................... [67.50] statement of charge, ................ [67.30] statutory reference, .................. [67.20] wording of charge, ................... [67.40] aggravated, ........................ [66.70], [68.70] deposit of, ........................................ [66.10] authority to charge, .................. [66.80] defences, .................................... [66.90] matters to be proved, .............. [66.60] other possible charges, ............ [66.70] penalty, ....................................... [66.50] statement of charge, ................ [66.30] statutory reference, .................. [66.20] wording of charge, ................... [66.40] document deposited in or on vehicle, ................................... [66.70], [68.10] express consent, ....................... [68.80] matters to be proved, .............. [68.60] other possible charges, ............ [68.70] penalty, ....................................... [68.50] statement of charge, ................ [68.30] statutory reference, .................. [68.20] wording of charge, ................... [68.40] unsolicited mail other than in mailbox, ................................................. [67.70]

Litter enforcement officer definition, ......................................... [66.80] Local authority staff on duty, assault of, ..... [7.70], [8.10] background to s 51(3), ............ [8.110] matters to be proved, ................ [8.60] other possible charges common law, ......................... [8.80] statute, ...................... [8.90], [8.100] penalty, ......................................... [8.50] references, .................................. [8.200] statement of charge, .................. [8.30]

statutory reference, .................... [8.20] wording of charge, ..................... [8.40] Local Government Act 1989 limitation period, ............. [1.60], [72.100] Local government authorised officer appointment of, .............................. [72.70] refuse to give name and address to, ................... [72.10]–[72.100], [73.70] Location offence, statement in charge-sheet, ................................................... [2.40]

Loitering intent to commit indictable offence, ................................................. [69.10]

conduct in furtherance of, .... [69.120] history, ........................................ [69.80] intention, proof of, ................. [69.110] known or reputed thief or committer of drug-related offences, . [69.80], [69.90]

matters to be proved, .............. [69.90] other possible charges, ............ [69.70] penalty, ....................................... [69.50] references, ................................ [69.130] statement of charge, ................ [69.30] statutory reference, .................. [69.20] wording of charge, ................... [69.40] lawful, ............................................. [69.100] meaning, ......................................... [69.100] offender classes, historical, .......... [69.80] Lotteries Gaming and Betting Act 1966 charges laid under, ........................... [1.50]

M Magistrates’ Court commencement of proceedings, ... [2.10] determination of offences indictable, .................................... [1.30] summary, ......................... [1.30], [1.40] transfer of proceeding, contravention of order for release on adjournment, ................................................. [17.90]

Mail junk mail, deposit in certain mailboxes, ................................... [67.10]–[67.80] unsolicited, other than in mailbox, ................................................. [67.70]

Manufacture police identification, ...................... [60.70] Marriage

356

Index

Marriage — cont

dissolution, publication of proceedings, ............................... [21.100], [22.100] Medical procedures assault, ................................................ [9.10] consent to, ........................................ [9.110] Meetings riotous, charge of, .......................... [15.90] Menace postal service, via, ......................... [67.80] Mens rea element, .......................................... [39.130] family violence offences, ........... [39.130] registrable offender, failure to comply with reporting obligations, ............................................... [81.130]

spiking food/drink, ...................... [83.130] threat to distribute intimate image, ................................................. [62.90]

Mental Health Tribunal recording of hearing, ................... [20.120] Metropolitan district definition, ....................................... [35.100] false report of fire within/outside, ............................................... [35.100]

Misadventure defence of, ....................................... [9.130] Missile discharging, ......... [26.10]–[26.80], [95.70] Money — see also Cheque begging — see Begging alms highway collection conducted without permission, .......................... [14.70] Mooning meaning, ......................................... [76.170] Motor vehicle deposit document without consent, ..................... [66.70], [68.10]–[68.80] disobey direction by police officer or authorised person, .............. [73.70] driver/person in charge of, fail to state or state false name or address, ................................... [73.10]–[73.80] driving when directed to stop, .... [73.70] loitering in, .................................... [69.100] offensive behaviour by person in declared area, ...................... [76.70] place of abode, ............................... [54.80] police pursuit, ................................. [73.70] public place, .................... [31.80], [76.100] stopping in disabled parking area, fail to

state name and address on request, ................... [73.70], [74.70] Move on direction connection with mischief to be prevented, .......................... [70.120] contravention of, .............. [15.70], [70.10] matters to be proved, .............. [70.60] other possible charges common law, ....................... [70.70] statute, ..................... [70.80]–[70.90] penalty, ....................................... [70.50] police officer or PSO at designated place, ................................... [70.110] reasonable excuse, ................. [70.150] references, ................................ [70.160] statement of charge, ................ [70.30] statutory reference, .................. [70.20] wording of charge, ................... [70.40] reasonable grounds, ..................... [70.130] scope, .............................................. [70.120]

N Name and address — see also Identification fail or refuse to supply to authorised officer, ...... [71.10], [73.70], [74.70] matters to be proved, .............. [71.60] other possible charges, ............ [71.70] penalty, ....................................... [71.50] statement of charge, ................ [71.30] statutory reference, .................. [71.20] wording of charge, ................... [71.40] fail to state or state falsely, driver/person in charge of motor vehicle, ................................. [73.10] matters to be proved, .............. [73.60] other possible charges, ............ [73.70] penalty, ....................................... [73.50] statement of charge, ................ [73.30] statutory reference, .................. [73.20] wording of charge, ................... [73.40] fail to state when stopping in disabled parking area, ......... [73.70], [74.70] falsely provide to authorised officer, ................................................. [71.10]

matters to be proved, .............. [71.60] other possible charges, ............ [71.70] penalty, ....................................... [71.50] statement of charge, ................ [71.30] statutory reference, .................. [71.20]

Index Name and address — cont

wording of charge, ................... [71.40] refuse or falsely state to police officer, ................................... [73.70], [74.10] matters to be proved, .............. [74.60] other possible charges, ............ [74.70] penalty, ....................................... [74.50] references, .................................. [74.90] statement of charge, ................ [74.30] statutory reference, .................. [74.20] wording of charge, ................... [74.40] refuse to give to local government authorised officer, .............. [72.10], [73.70]

matters to be proved, .............. [72.60] obstruct or hinder, .................... [72.80] penalty, ....................................... [72.50] statement of charge, ................ [72.30] statutory reference, .................. [72.20] time limit for proceeding, .... [72.100] wording of charge, ................... [72.40] Non-prohibited person definition, ......................................... [47.90] Nuisance besetting premises, ...................... [15.100] public — see Public nuisance

O Objectionable material publication or transmission of, .. [51.90], [61.80]

Obscene — see also Indecent — see also Offensive assessment, .................................... [76.110] definition, ....................................... [76.110] exposure — see Wilful and obscene exposure

Obscene, indecent, threatening language and behaviour in public assessment, .................................... [76.110] community standards, ................. [76.110] context, ........................................... [76.110] matters to be proved, .................... [76.60] other possible charges common law, ............................. [76.80] statute, .......................... [76.70], [76.90] statement of charge, ...................... [76.30] statutory reference, .......... [76.10], [76.20] wording of charge, ......................... [76.40] Obscenity — see also Indecency — see also Profanity

357

word, figure or representation, draw etc, ................................................. [56.90]

Obstruction emergency worker, ........................... [8.10] footpath, ............................. [15.70], [70.80] intention/recklessness, requirement, ................................................. [8.160]

local authority staff on duty, ......... [8.10] local government authorised officer, ................................................. [72.80]

overview, .......................................... [8.150] road, ...................... [15.70], [15.90], [70.80] service performance, ..................... [15.90] Occupational Health and Safety Act 2004 charges laid under, ........................... [1.50] Offensive — see also Indecent — see also Obscene behaviour, ...................................... [76.130] charge of, ..................... [51.70], [52.70] person in motor vehicle in declared area, ....................................... [76.70] public place, in or near, .......... [8.90], [15.70], [28.70], [78.80], [84.70], [94.70]

sex worker, towards, ............... [76.80] definition, ....................................... [76.130] language, ........................................ [76.130] Order amendment of charge-sheet, .......... [2.50] closed court, contravention of, . [20.100] community correction order — see Community correction order (CCO)

disclosure, .......................................... [3.30] family violence intervention order — see Family violence intervention order

protection order — see Family violence protection order

interlocutory, striking out charge, ................................................... [2.30]

parole — see Parole order particulars of charge-sheet, ............ [3.20] personal safety intervention order — see Personal safety intervention order

registrable offender, ....................... [81.90] release on adjournment, contravention of, .......................................... [17.10] commencement of proceeding, ................................................. [17.80]

matters to be proved, .............. [17.60] penalty, ....................................... [17.50] statement of charge, ................ [17.30]

358

Index

Order — cont

statutory reference, .................. [17.20] transfer of proceeding, ............ [17.90] wording of charge, ................... [17.40] sentencing, ......................................... [5.40] suppression order — see Suppression order

P Paintball marker — see also Firearm definition, ....................................... [47.160] Parole order breach term or condition, ............. [77.10] matters to be proved, .............. [77.60] penalty, ....................................... [77.50] reasonable excuse, ................. [77.100] statement of charge, ................ [77.30] statutory reference, .................. [77.20] wording of charge, ................... [77.40] cancellation, .................................... [77.50] prescribed term or condition, ...... [77.90] regulations, ...................................... [77.80] Peace keeping application to bind person over, ... [1.50] Penalty access to computer system, failure to comply with warrant, .......... [6.50] assault aggravated, .................................. [7.50] common, ...................................... [9.50] emergency worker, ..................... [8.50] local authority staff, ................... [8.50] audio or audiovisual recording, possess, play, supply, copy, tamper with or publish, ................................. [80.50] authorised court officer identity card, failure to wear or produce, ................................ [19.50] search/scan by, refusal to comply with, ...................................... [23.50] bail conduct conditions, contravention of, ................. [11.50], [11.110], [11.120] failure to answer, ..................... [12.50] indictable offence committed while on, ........................... [10.50], [10.90] surety, indemnification of, ..... [13.50] begging alms, .................................. [14.50] besetting premises, ........................ [15.50] burglary, going equipped for, ...... [54.50]

CCO, contravention of, ................ [18.50] cheating, going equipped for, ...... [54.50] child left unattended, .................... [16.50] detained person acting in prejudicial or threatening manner in police gaol, ...... [24.50] disobeying lawful order, ......... [25.50] discharging stone, arrow or missile, ................................................. [26.50]

disguised with unlawful intent, .. [27.50] disorderly conduct in public place, ................................................. [28.50]

drugs of dependence, use of, ...... [29.50] drunk and disorderly in public place, ................................................. [30.50]

drunkard behaving in riotous or disorderly manner, ............. [32.50] escape from lawful custody, ........ [33.50] exposure, wilful and obscene, ..... [94.50] false report ambulance service, to, ............ [34.50] fire, ................................ [35.50], [36.50] police, to, ................................... [37.50] family violence intervention order, contravention of, ................................................. [38.50]

safety notice, contravention of, ................................................. [39.50]

fire offences country area in extreme weather, ................................................. [40.50]

false report, ................. [35.50], [36.50] lighting in open on total fire ban day, ........................................ [41.50] firearm offences carry or use in town or populous place, ..................................... [42.50] carry or use under influence of intoxicating liquor or drug, ................................................. [43.50]

cartridge ammunition, possession of, ................................................. [49.50]

incorrect storage of longarm or cartridge ammunition, ....... [46.50] possess on private property, .. [48.50] possession without licence, .. [47.50], [49.50]

property damage, ..................... [45.50] use in dangerous manner, ...... [50.50] genital or anal region, offences related to distribution of image, .............. [51.50]

Index Penalty — cont

observation aided by device, . [52.50] visually capture, ....................... [53.50] wilful and obscene exposure, ................................................. [94.50]

graffiti marking, ..................................... [55.50] offensive, .................................... [56.50] harass witness, ................................ [58.50] housebreaking implements, possession of, .......................................... [59.50] impersonating police, .................... [60.50] infringement, ................................. [11.120] intimate image, offences in relation to distribution of, .......................... [61.50] threat to distribute, .................. [62.50] licensed premises, offences related to drunk, violent or quarrelsome person fail or refuse to leave, ....... [63.40] licensee/permittee offences, ... [64.50] liquor possession or consumption by minor, .................................... [65.50] litter, depositing, ............................. [66.50] advertising material in certain mailboxes, ............................ [67.50] loitering with intent to commit indictable offence, .............. [69.50] move on direction, contravention of, ................................................. [70.50]

name and address, offences related to driver/person in charge of motor vehicle fail or falsely state, ................................................. [73.50]

fail or refuse to supply to authorised officer, ................................... [71.50] falsely provide to authorised officer, ................................................. [71.50]

refuse or fail to state or falsely state to police officer, ................. [74.50] refuse to give to local government authorised officer, ............... [72.50] obscene, indecent, threatening language and behaviour in public, .. [76.50] parole, breach term or condition of, ................................................. [77.50]

personal safety intervention order, contravention of, ................ [78.50] poison, scheduled, possession of, ................................................. [82.50]

police officer, refuse or fail to state name, rank or place of duty, ................................................. [75.50]

359

proceeds of crime, dealing with property suspected of being, ................................................. [79.50]

recording court proceeding, ......... [20.50] publication of, ........................... [21.50] transmit or give to another, ... [22.50] release on adjournment, contravention of order, ................................ [17.50] reporting obligations of registrable offender, failure to comply with, ................................................. [81.50]

spiking food or drink, ................... [83.50] theft, going equipped for, ............. [54.50] trespass breach of the peace, likely to cause, ................................................. [84.50]

refuse or neglect to leave private or scheduled public place, .... [87.50] Roads Corporation or Rail Track land or premises, ................ [85.50] wilfully enter private or scheduled public place, ........................ [88.50] wilfully in public place and refuse to leave, ..................................... [89.50] unlawful possession of property reasonably suspected of being stolen, ................................... [90.50] weapons offences controlled, possess, use or carry, ................................................. [91.50]

dangerous article, possess or carry in public place, ........................ [92.50] prohibited, possess, carry or use, ................................................. [93.50]

wilful damage to property, ........... [95.50] Penalty unit definition, ............................. [1.30], [5.120] review, ................................................ [5.10] summary offences, ........................... [1.30] Person description in charge, ...................... [2.40] Personal injury discharging stone, arrow or missile, ................................... [26.10], [95.70] matters to be proved, .............. [26.60] other missile, meaning, ........... [26.80] other possible charges, ............ [26.70] penalty, ....................................... [26.50] statement of charge, ................ [26.30] statutory reference, .................. [26.20] wording of charge, ................... [26.40]

360

Index

Personal safety intervention order contravention of, ............................ [78.10] location of offending, ............ [78.110] matters to be proved, .............. [78.60] other possible charges, ................................... [78.70]–[78.80] penalty, ....................................... [78.50] statement of charge, ................ [78.30] statutory reference, .................. [78.20] wording of charge, ................... [78.40] explanation of notice, ................. [78.100] interim order, ................................ [78.100] service of, ........................................ [78.90] Personal safety proceeding publication of, ............................... [21.100] Pervert course of justice attempt, ............................ [37.90], [37.140] charge of, ......................................... [13.70] Photograph — see also Image — see also Intimate image agency, unauthorised use by media organisation, ...... [21.100], [22.100] Picketing unlawful, ........................................ [15.100] Place designated, ....................... [70.110], [73.80] public — see Public place Place of abode meaning, ........................................... [54.80] Plea autrefois acquit, ................................ [2.30] bar, in, ................................................. [2.30] Poison scheduled — see Scheduled poison Poisons Standard overview, .......................................... [82.90] Police officer — see also Emergency worker appointment of, .............................. [60.90] assault of, ........................................... [8.10] background to s 51(2), (4), .... [8.110] knowledge of police officer’s status, ................................................. [8.120]

matters to be proved, ................ [8.60] other possible charges common law, ......................... [8.80] statute, .......... [8.70], [8.90]–[8.100] penalty, ......................................... [8.50] statement of charge, .................. [8.30] statutory reference, .................... [8.20] wording of charge, ..................... [8.40]

authority to lay charge, ................... [1.50] custody officer, ............................... [25.90] definition, ........... [19.80], [25.90], [60.90], [70.110], [75.80] disobey direction by, ..................... [70.90] failure to remain with/accompany when not under arrest, ................. [8.150] false report to, ... [34.70], [35.70], [36.70], [37.10]–[37.160] firearm, ........................................... [42.100] hinder and obstruct, ....................... [8.150] intent or reckless required, .... [8.160] holding out to be, ........................ [60.100] identity card, failure to wear or produce on request, ............. [19.10]–[19.90] impersonation of — see Impersonation inaction or indifference to request by, ................................................. [8.150]

indecent and obscene language aimed at, ......................... [76.110], [76.130] meaning, ........................................... [8.130] move on direction — see Move on direction

name, rank or place of duty, refuse or fail to state on request, ..... [75.10] matters to be proved, .............. [75.60] other possible charges, ............ [75.70] penalty, ....................................... [75.50] references, .................................. [75.90] statement of charge, ................ [75.30] statutory reference, .................. [75.20] wording of charge, ................... [75.40] on duty and execution of duty, ... [8.140] questioning by — see Questioning request for name and address by, refuse or falsely state, .................. [73.70], [74.10]–[74.90] resist, ................................................. [8.180] trespass by, .................................... [89.110] warning others of approach, ........ [8.150] weapons, .......................... [91.70], [93.100] Police pursuit driving motor vehicle when directed to stop, ....................................... [73.70] Pornography child, publication or transmission of, ................................... [51.90], [61.80] “revenge porn”, ............................ [61.100] Possession acting in concert, ........................... [59.90] actual, . [54.90], [90.90], [90.100], [91.130]

Index Possession — cont

audio or audiovisual recording, ................................. [80.10]–[80.140] drug of dependence, ........ [29.80], [82.70] firearm, ........................... [47.100], [49.100] prohibited person, .................... [42.70] without licence, ........................ [42.70] housebreaking implements, ........ [54.90], [54.100], [59.90] knowledge requirement, . [59.90], [65.90] liquor, by minor, ............. [65.10]–[65.100] meaning, ........................................... [82.80] police identification, ...................... [60.70] property from wrecks, .... [79.90], [90.70] reasonable excuse, ....................... [91.120] scheduled poison, .......................... [29.70], [82.10]–[82.110] stolen cattle, skin or carcass of, ................................... [79.90], [90.70] unlawful — see Unlawful possession weapons — see Weapon Postal service harass via, ...................................... [58.100] menace, harass or cause offence via, ................................................. [67.80]

Premises — see also Private property — see also Property — see also Residential tenancies besetting — see Besetting premises caravan park — see Caravan park licensed — see Licensed premises Primary production lighting fire on total fire ban day, ............................................... [41.110]

Prison — see also Gaol escape from, .................................... [33.70] Prisoner definition, ......................................... [77.70] Private place trespassing — see Trespass Private property possess firearm without consent, ..... [43.70], [45.70], [48.10]–[48.80], [50.80]

Proceeds of crime conversion of property, ............... [79.120] dealing with property suspected of being, ...................... [79.10], [90.80] deal with, definition, .............. [79.110] matters to be proved, .............. [79.60] other possible charges, ................................... [79.70]–[79.90]

361

penalty, ....................................... [79.50] reasonably suspected, ............. [79.80], [79.130]

statement of charge, ................ [79.30] statutory reference, .................. [79.20] wording of charge, ................... [79.40] definition, ....................................... [79.120] knowingly deal with, .................... [79.70] intend to conceal, and, ............ [79.70] negligently deal with, ................... [79.70] of any value, dealing in, .............. [79.80] recklessly deal with, ...................... [79.70] Processions unlawful, .......................................... [15.90] Profane definition, ....................................... [76.120] Profanity — see also Indecency — see also Obscenity overview, ........................................ [76.120] Prohibited person definition, ......................................... [47.90] possession of firearm, ................... [42.70] Proof burden — see Burden of proof CCO, ............................................... [18.110] onus, .................................................... [4.30] police officer, appointment as, .... [60.90] standard — see Standard of proof undertaking bail, ............................... [10.80], [12.80] release on adjournment, ........ [17.110] Property — see also Private property — see also Residential tenancies caravan park, owner or agent enter caravan other than permitted and without reasonable excuse, .................... [87.80], [88.80], [89.80] damage to — see Property damage definition, ....................................... [79.100] description in charge, ...................... [2.40] obtain by deception, ...................... [79.70] person require, force, attempt to require, attempt to force resident to vacate room or take possession of room, .................... [87.80], [88.80], [89.80] proceeds of crime — see Proceeds of crime

removal by police, unauthorised, ................................................. [8.140]

rooming house, owner or agent enter

362

Index

Property — cont

other than permitted and without reasonable excuse, ............ [87.80], [88.80], [89.80] seizure, obstruction of, ................. [8.150] stolen — see Stolen goods unlawful possession, .................... [79.90], [90.10]–[90.120] workmen retaining or disposing, ................................... [79.90], [90.70] wrecks, possession of, .... [79.90], [90.70] Property damage discharging stone, arrow or missile, ................................... [26.10], [95.70] matters to be proved, .............. [26.60] other missile, meaning, ........... [26.80] other possible charges, ............ [26.70] penalty, ....................................... [26.50] statement of charge, ................ [26.30] statutory reference, .................. [26.20] wording of charge, ................... [26.40] firearm, with, ...... [45.10]–[45.90], [50.80] intentional, ....................................... [95.70] interference with property, ........... [95.90] proof of, ........................................... [95.90] repair or remedy costs, ................. [95.90] threat, ................... [38.70], [39.70], [78.70] wilful — see Wilful damage Protected industrial action immunity, ....................................... [15.100] Protective Services Officer (PSO) disobey move on direction from, ................................. [70.10]–[70.160] function, ......................................... [70.110] powers of, ........................................ [73.80] refuse or falsely state name and address to, ............................ [73.70], [74.70] Public alarm contaminating goods with intent to cause or being reckless as to causing, ................................ [83.80] riotous behaviour, requirement, ............................................... [76.160]

Public decency outraging, ............ [51.80], [52.80], [94.80] Public morality publication of indecent material, ............................... [21.100], [22.100] Public nuisance charge of, ........... [15.80], [28.80], [37.90], [70.70], [76.80], [87.90], [88.90], [89.90], [94.80]

overview, ........................................ [37.150] Public place adjacent, definition, ..................... [57.120] barrier to, ....................................... [76.100] dangerous article, possess or carry, ................... [91.80], [92.10]–[92.140] definition, ...... [55.120], [76.100], [91.100] disorderly conduct in, .. [28.10]–[28.110], [38.90], [39.90], [63.80], [64.80], [65.70], [76.70], [78.80], [84.70], [94.70]

drunk and disorderly in, ................... [30.10]–[30.120], [32.70] drunk in, ........... [31.10]–[31.120], [32.70], [63.80], [64.80], [65.70] foyer, ............................................... [76.100] motor vehicle, ................. [31.80], [76.100] obscene, indecent, threatening language and behaviour in, ................................. [76.10]–[76.180] offences in, near or within, ........ [76.100] riotous behaviour in, ...... [38.90], [39.90], [70.80]

riotous, indecent, offensive or insulting behaviour in or near, .......... [8.90], [15.70], [78.80], [84.70], [94.70] scheduled, ...................................... [89.160] shopping mall, .............................. [76.100] trespass — see Trespass Public transport indecent or offensive language or behaviour, ............................ [76.90] Publication child pornography, ......................... [51.90] objectionable material, ... [51.90], [61.80] recording of proceeding, ............. [21.10], [80.70]

defences, .................................. [21.140] matters to be proved, .............. [21.60] other possible charges common law, ....................... [21.90] statute, .... [21.70]–[21.80], [21.100] penalty, ....................................... [21.50] statement of charge, ................ [21.30] statutory reference, .................. [21.20] wording of charge, ................... [21.40] Publish audio or audiovisual recording, ................................. [80.10]–[80.140] definition, ........ [21.130], [80.80], [80.100] Pursuit

Index Pursuit — cont

driving motor vehicle when directed to stop, ....................................... [73.70]

Q Quarrelsome definition, ....................................... [63.100] refuse or fail to leave licensed premises on request, .......... [63.10]–[63.100], [64.70]

Questioning — see also Interrogation police officer, by execution of duty, outside of, ................................................. [8.140]

failure to answer, ..................... [8.150] recording of — see Audio or audiovisual recording

right to silence, ............................... [8.150]

R Racial and Religious Tolerances Act 2001 charges laid under, ........................... [1.50] Rail Track definition, ....................................... [85.110] trespass on land or premises of, ..... [85.10]–[85.90], [87.90], [88.90], [89.90]

Reasonable excuse CCO, contravention of, .............. [18.100] evidential burden, ......................... [11.100] move on direction, contravention of, ............................................... [70.150]

parole order, breach of term of condition of, ...................... [77.100] possession of prohibited article, ............................................... [91.120]

registrable offender, failure to comply with reporting obligations,

363

family violence protection, ........ [21.100] IBAC examinations, .................... [20.120] intentionally make, ........................ [80.70] Mental Health Tribunal, ............. [20.120] prohibitions, .................................. [20.120] publication of — see Publication recording, definition, ..... [20.110], [80.90] Royal Commission, ..................... [20.120] transcript, ....................................... [22.130] transmit or give to another, ........ [20.70], [21.70], [22.10], [80.70] defences, .................................. [22.130] matters to be proved, .............. [22.60] other possible charges common law, ....................... [22.90] statute, .... [22.70]–[22.80], [22.100] penalty, ....................................... [22.50] statement of charge, ................ [22.30] statutory reference, .................. [22.20] wording of charge, ................... [22.40] Registrable offence definition, ......................................... [81.90] Registrable offender definition, ......................................... [81.80] duration and nature of reporting obligations, ........................ [81.100] fail to disclose charges, ................ [81.70] failure to comply with reporting obligations, .......................... [81.10] defences, .................................. [81.130] evidence of, ............................. [81.120] frequently changed personal details, ................................................. [81.70]

matters to be proved, .............. [81.60] mens rea, .................................. [81.130] other possible charges, ............ [81.70] other than reporting personal details, ................................................. [81.70]

................................................. [8.160]

penalty, ....................................... [81.50] reasonable excuse, ................. [81.140] statement of charge, ................ [81.30] statutory reference, .................. [81.20] wording of charge, ................... [81.40] false or misleading information furnished by, ........................ [81.70] personal details, ............................ [81.110] publication identifying, .............. [21.100],

proof of, ......................................... [83.130] Recording of proceedings — see also Audio or audiovisual recording Children’s Court, ......... [21.100], [22.100]

written notice of obligations, .... [81.130] Registration order registrable offender, ....................... [81.90]

............................................... [81.140]

Recklessness conduct endangering life, ...................... [50.70] serious injury, endangering, ... [50.70] deal with proceeds of crime, ....... [79.70] hindrance/obstruction, requirement,

[22.100]

364

Index

Report false — see False report Residential tenancies landlord and agent offences, ...... [87.80], [88.80], [89.80] tenant offences, .. [87.80], [88.80], [89.80] Resist arrest — see Emergency worker Revenge porn related charge, ............................... [61.100] Riot charge of, ........... [15.80], [28.80], [70.70], [76.80], [84.80] elements, ........................................ [76.160] Riotous behaviour charge of, . [7.70], [8.90], [15.70], [28.70], [32.10]–[32.110], [38.90], [39.90], [63.80], [64.80], [65.70], [70.80], [78.80], [84.70], [94.70] overview, ........................................ [76.160] Road highway collection without permission, ................................................. [14.70]

obstruction of, .... [15.70], [15.90], [70.80] placing object on, .......................... [15.90] Road Safety Act 1986 burden of proof, ............................... [4.20] charges laid under, ........................... [1.50] Roads Corporation definition, ....................................... [85.100] trespass on land or premises of, ..... [85.10]–[85.90], [87.90], [88.90], [89.90]

Rout charge of, ........... [28.80], [70.70], [76.80], [84.80]

Royal Commission recording of proceedings, .......... [20.120]

S Safe access zone definition, ......................................... [15.90] prohibited behaviour within, ....... [15.90] Scanning search authorised court officer, by, ....... [23.110] Scheduled poison possession of, ................... [29.70], [82.10] matters to be proved, .............. [82.60] meaning, ..................................... [82.80] other possible charges, ............ [82.70] penalty, ....................................... [82.50] statement of charge, ................ [82.30]

statutory reference, .................. [82.20] without being authorised or licensed, ............................................... [82.110]

wording of charge, ................... [82.40] proof of, ......................................... [82.100] Schedule 4, 8 or 9, ........................ [82.90] related charges, ......................... [83.70] Search authorised court officer, by, refusal to comply with, ....................... [23.10] matters to be proved, .............. [23.60] other possible charges, ................................... [23.70]–[23.80] penalty, ....................................... [23.50] reasonable grounds for belief, ............................................... [23.120]

statement of charge, ................ [23.30] statutory reference, .................. [23.20] wording of charge, ................... [23.40] frisk, ................................................ [23.110] Self-defence overview, .......................................... [9.160] Self-incrimination Charter of Human Rights and Responsibilities Act 2006, under, ................................................... [6.80]

Sentencing alternative liability, .......................... [5.40] concurrent and cumulative contravention of conduct conditions, ............................................... [11.110]

offence while on bail, ............. [10.90] jurisdictional limits, ......................... [5.30] Sentencing order guilt as, ............................................... [5.40] Service brief of evidence full, ................................................ [3.40] preliminary, .................................. [3.30] family violence intervention order, ............................................... [38.100]

family violence safety notice, ... [39.100] personal safety intervention order, ................................................. [78.90]

Sex offender — see Registrable offender Sex worker offensive behaviour towards, ....... [76.80] Sexual exposure — see also Wilful and obscene exposure matters to be proved, .................... [94.60] other possible charges

Index Sexual exposure — cont common law, ............................. [94.80] statute, ........................................ [94.70] penalty, ............................................. [94.50] references, ...................................... [94.120] statement of charge, ...................... [94.30] statutory reference, .......... [94.10], [94.20] wording of charge, ......................... [94.40]

Sexual offences exposure — see Exposure food/drink spiking and, — see Spiking of food/drink

historical, time limit for proceedings, ................................................... [1.60]

publication of proceedings, ....... [21.100] Shopping mall public place, .................................. [76.100] Silence, right to hinder/obstruct police and, .......... [8.150] Skeleton keys possession of, ................................ [54.100] Spiking of food/drink charge of, ......................................... [83.10] give food or drink, .................. [83.90] harm, ......................................... [83.110] intoxicating substance, .......... [83.100] matters to be proved, .............. [83.60] mens rea, .................................. [83.130] other possible charges, ................................... [83.70]–[83.80] penalty, ....................................... [83.50] purpose of provision, ............ [83.120] references, ................................ [83.140] statement of charge, ................ [83.30] statutory reference, .................. [83.20] wording of charge, ................... [83.40] Sport amicable contest defence, ............ [9.120] Stalking charge of, ........... [38.70], [39.70], [52.90], [78.70]

Standard of proof civil, .................................................... [4.20] criminal, ............................................. [4.30] Statutory offence charge-sheet, requirements of, ...... [2.40] definition, ........................................... [2.40] Stealing — see Theft Stolen goods handling, ............................ [79.70], [90.80]

365

reasonably suspected to be stolen, meaning, ............................. [90.100] unlawful possession of, ................................. [90.10]–[90.120] Stone discharging, ......... [26.10]–[26.80], [95.70] Street performer begging, ............................................ [14.80] Summary case conference definition, ........................................... [3.40] Summary offences authority to charge, .......................... [1.50] classification, ..................................... [1.30] date, ..................................................... [2.40] definition, ........................................... [1.10] determination of, .................. [1.20], [1.30] firearm, in relation to, ................... [47.80] levels, .................................................. [1.30] maximum term of imprisonment, ................................................... [1.30]

particulars of charge, ....................... [2.40] penalty units, ..................................... [1.30] proceedings, ...................................... [1.40] undercharging, .................................. [1.40] Summary Offences Act 1966 burden of proof, ............................... [4.20] Summary proceedings commencement procedure, .................................... [2.10] time limits, .................................. [1.60] determination of, ..... [1.20], [1.30], [1.40] Summons charge, distinguished, ...................... [2.20] child offenders, ................................. [2.20] defective/invalid, .............................. [2.20] extension, limits on, ........................ [2.20] function, ............................................. [2.20] “instant” procedure, ......................... [2.20] meaning, ............................................. [2.20] unserved, ............................................ [2.20] Supply audio or audiovisual recording, ................................. [80.10]–[80.140] definition, ....................................... [64.130] liquor to intoxicated person, ................................. [64.10]–[64.160] police identification, ...................... [60.70] Suppression order contravention of, .......... [21.100], [22.100] Supreme Court

366

Index

Supreme Court — cont

proceedings for summary offences, ................................................... [1.40]

Surety indemnification of, ......................... [13.10] liability of surety and indemnifier, ................................................. [13.80]

matters to be proved, .............. [13.60] other possible charges, ............ [13.70] penalty, ....................................... [13.50] references, ................................ [13.100] statement of charge, ................ [13.30] statutory reference, .................. [13.20] wording of charge, ................... [13.40] Suspicion goods reasonably suspected to be stolen, ............................................... [90.100]

knowledge, distinguished, .......... [83.130] overview, ........................................ [70.130] proceeds of crime, ....................... [79.130] reasonable, ..................... [79.130], [90.100]

T Telephone call silent, .............................................. [58.100] Theft — see also Burglary going equipped for, ........ [54.10], [59.70], [69.70]

connection between articles and offence, ............................... [54.100] for use, meaning, ................... [54.100] has with him or her, meaning, ................................................. [54.90]

matters to be proved, .............. [54.60] other possible charges, ............ [54.70] penalty, ....................................... [54.50] place of abode, meaning, ....... [54.80] references, ................................ [54.110] statement of charge, ................ [54.30] statutory reference, .................. [54.20] wording of charge, ................... [54.40] Thief known, ................................ [69.80], [69.90] reputed, .............................. [69.80], [69.90] Threat damage to property, ....... [38.70], [39.70], [78.70]

distribute intimate image, ........... [51.70], [52.70], [62.10]–[62.120] kill, to, ... [38.70], [39.70], [50.70], [78.70] menace, distinguished, ................ [76.140]

obscene, indecent, threatening language and behaviour in public, ................................. [76.10]–[76.180] qualified, ........................................ [76.140] serious injury, infliction of, ........ [38.70], [39.70], [50.70] threatening, meaning, .................. [76.140] Total fire ban — see also Fire definition, ....................................... [41.100] Transcript of proceedings unofficial, transmitting of recording for, ............................................... [22.130]

Transport company definition, ....................................... [57.110] property of, possession of graffiti implement on, ..................... [57.10] Transport (Compliance and Miscellaneous) Act 1983 charges laid under, ........................... [1.50] Trespass airports, ................ [87.90], [88.90], [89.90] breach of the peace, manner likely to cause, ........ [76.70], [84.10], [87.70] lawful excuse, ......................... [84.100] matters to be proved, .............. [84.60] other possible charges common law, ....................... [84.80] statute, .................................. [84.70] penalty, ....................................... [84.50] references, ................................ [84.110] statement of charge, ................ [84.30] statutory reference, .................. [84.20] wording of charge, ................... [84.40] Commonwealth land, ..... [87.90], [88.90], [89.90]

defence force premises or accommodation, unauthorised entry on, .. [87.90], [88.90], [89.90] definition, ....................................... [89.100] entry permits, ................................ [89.110] licences, .......................... [89.110], [89.120] overview, ........................................ [89.110] owner, occupier or some other person authorised, ......................... [89.140] police, by, ....................................... [89.110] Rail Track land or premises, ...... [85.10], [87.90], [88.90], [89.90] definition, ................................. [85.110] matters to be proved, .............. [85.60] other possible charges, ............ [85.70] penalty, ....................................... [85.50]

Index Trespass — cont

statement of charge, ................ [85.30] statutory reference, .................. [85.20] wording of charge, ................... [85.40] refuse or neglect to leave private or scheduled public place, ... [84.70], [85.70], [86.10], [87.10], [88.70], [89.70]

lawful excuse, ......................... [87.130] matters to be proved, .............. [87.60] other possible charges, ................................... [87.70]–[87.90] penalty, ....................................... [87.50] references, ................................ [87.140] scheduled public place, meaning, ............................................... [89.160]

statement of charge, ................ [87.30] statutory reference, .................. [87.20] wording of charge, ................... [87.40] residential tenancy offences, ...... [87.80], [88.80], [89.80] Roads Corporation land or premises, ...... [85.10], [87.90], [88.90], [89.90] definition, ................................. [85.100] matters to be proved, .............. [85.60] other possible charges, ............ [85.70] penalty, ....................................... [85.50] statement of charge, ................ [85.30] statutory reference, .................. [85.20] wording of charge, ................... [85.40] sufficient time to vacate, ............ [89.110] warning to leave, ......................... [89.120] Water Authority land or premises,

367

statement of charge, ................ [88.30] statutory reference, .................. [88.20] wording of charge, ................... [88.40] wilfully in public place and refuse to leave, ....... [84.70], [85.70], [86.70], [87.70], [88.70], [89.10] fair or reasonable supposition of right to do act complained of, ............................................... [89.170]

matters to be proved, .............. [89.60] neglects or refuses to leave, meaning, ............................. [89.130] other possible charges, ................................... [89.70]–[89.90] penalty, ....................................... [89.50] references, ................................ [89.180] statement of charge, ................ [89.30] statutory reference, .................. [89.20] wording of charge, ................... [89.40]

U Undertaking proof of bail, ............................... [10.80], [12.80] release on adjournment, ........ [17.110] release on adjournment, contravention of, ........................... [17.10]–[17.110] Unlawful assembly charge of, ........... [15.80], [28.80], [70.70], [84.80]

............................................... [88.130]

Unlawful possession property reasonably suspected of being stolen, ..................... [79.90], [90.10] actual possession, .... [90.90], [90.100] conveying, ................................. [90.90] matters to be proved, .............. [90.60] other possible charges, ................................... [90.70]–[90.80] penalty, ....................................... [90.50] reasonably suspected to be stolen, meaning, ............................. [90.100] references, ................................ [90.120] satisfactory account, absence of,

lawful excuse, ......................... [88.130] legitimate purpose, ................ [88.140] matters to be proved, .............. [88.60] other possible charges, ................................... [88.70]–[88.90] penalty, ....................................... [88.50] references, ................................ [88.150]

statement of charge, ................ [90.30] statutory reference, .................. [90.20] wording of charge, ................... [90.40] Unlawfully at large charge of, ......................................... [33.70] Upskirting

................................................. [86.10]

authority, .................................... [86.80] matters to be proved, .............. [85.60] other possible charges, ............ [86.70] penalty, ....................................... [86.50] statement of charge, ................ [86.30] statutory reference, .................. [86.20] wording of charge, ................... [86.40] wilfully enter private or scheduled public place, .......... [88.10], 89.70] authority, express or implied,

............................................... [90.110]

368

Index

Upskirting — cont overview, .......................................... [52.90]

V Vagrancy — see Loitering VicRoads authority to lay charge, ................... [1.50] Victim personal information, disclosure of, ................................................... [3.30]

publication of identifying material, ............................... [21.100], [22.100]

W

exemptions under Control of Weapons Act 1989, ............................ [93.100] martial arts training, .................... [93.110] offences, limitation period, ............ [1.60] offensive, ........................................ [23.130] police, ............................................. [93.100] prohibited, possess, use or carry, ................................... [91.80], [92.70] examples of prohibited weapons, ................................................. [93.90]

matters to be proved, .............. [93.60] other possible charges, ................................... [93.70]–[93.80] penalty, ....................................... [93.50] prohibited weapon, definition, ................................................. [93.90]

Warning leave premises, trespass and, .... [89.120] Warrant access to computer or computer system, failure to comply with, ....................................... [6.10]–[6.90] failure of accused to appear, ......... [2.20] Water Authority definition, ......................................... [86.80] trespass on land or premises of, ................................... [86.10]–[86.70] Water corporation definition, ......................................... [86.80] Weapon — see also Cartridge ammunition — see also Dangerous article — see also Firearm approval by Chief Commissioner of Police, ................................. [93.110] armed with criminal intent, ........ [91.90], [92.80], [93.80] collections, ..................................... [93.110] controlled, possess, use or carry, .................... [91.10], [92.70], [93.70] controlled weapon, definition,

references, ................................ [93.130] statement of charge, ................ [93.30] statutory reference, .................. [93.20] without exemption or approval, ............................................... [93.120]

................................................. [91.70]

wording of charge, ................... [93.40] stone, arrow or missile, discharging, ..................... [26.10]–[26.80], [95.70] Wilful meaning, ......... [15.110], [34.90], [88.100], [89.100], [94.90], [95.80] trespass — see Trespass Wilful and obscene exposure — see also Sexual exposure matters to be proved, .................... [94.60] other possible charges common law, ............................. [94.80] statute, ........................................ [94.70] penalty, ............................................. [94.50] references, ...................................... [94.120] statement of charge, ...................... [94.30] statutory reference, .......... [94.10], [94.20] wording of charge, ......................... [94.40] Wilful damage property, to, ....... [26.70], [55.90], [56.90],

lawful excuse, ......................... [91.120] matters to be proved, .............. [91.60] other possible charges, ................................... [91.80]–[90.80] penalty, ....................................... [91.50] possession, meaning, ............. [91.130] references, ................................ [91.150] statement of charge, ................ [91.30] statutory reference, .................. [91.20] wording of charge, ................... [91.40]

injures or damages any property, meaning, ............................... [95.90] matters to be proved, .............. [95.60] other possible charges, ............ [95.70] penalty, ....................................... [95.50] references, ................................ [95.100] statement of charge, ................ [95.30] statutory reference, .................. [95.20] wording of charge, ................... [95.40]

[95.10]

Index

Witness harassment of, ................................. [58.10] harass, definition, ................... [58.100] matters to be proved, .............. [58.60] other possible charges common law, ....................... [58.90] statute, ..................... [58.70]–[58.80] penalty, ....................................... [58.50] protection, scope of, .............. [58.110] references, ................................ [58.140] statement of charge, ................ [58.30] statutory reference, .................. [58.20]

369

wording of charge, ................... [58.40] Words — see also Language assault by, .......................................... [9.90] WorkCover Authority authority to lay charge, ................... [1.50] Workmen retaining or disposing of property, ................................... [79.90], [90.70] Wrecks possession of property from, ...... [79.90], [90.70]