Elements of Offences.

Question 1

What are the elements for s.4(a) SOA - Offensive language?

Answer 1

• The accused.
• Without reasonable excuse.
• Used offensive language
  In, near or within hearing of a public place or school.

Question 2

What are the elements for s4 SOA - Offensive conduct?

Answer 2

• The accused.
• Without reasonable excuse.
• Conducted themselves in an offensive manner in, near, or within hearing/viewing of a public place or school.

Question 3

S. 4 Summary Offences Act 1986 – Offensive conduct:

Answer 3

S. 4 SOA 1986 – Offensive conduct

• The accused
• Without reasonable excuse
• Conducted themselves in an offensive manner
• In, near or within view/hearing of a public place or school
- The test of reasonable 3rd person applies

Maximum penalty: 6 penalty units or imprisonment for 3 months.

Question 4

S. 4A Summary Offences Act 1986 – Offensive language:

Answer 4

S. 4A SOA 1986 – Offensive language.

• The accused
• Without reasonable excuse
• Used offensive language
• In, near or within hearing of a public place or school
- The test of reasonable 3rd person applies

Maximum penalty: 6 penalty units.

Question 5

S. 5 Summary Offences Act 1986 – Obscene exposure:

Answer 5

S. 5 SOA 1986 – Obscene exposure.

• The accused
• Willfully and obscenely
• Exposed his or her person (referring to genitals)
• In, or within view from a public place or school
- The test of reasonable 3rd person applies to obscenely only.

Maximum penalty: 10 penalty units or imprisonment for six
months.

Question 6

S. 5 Summary Offences Act 1986 – Obscene exposure:

Answer 6

S. 5 SOA 1986 – Obscene exposure.

• The accused
• Willfully and obscenely
• Exposed his or her person (referring to genitals)
• In, or within view from a public place or school
- The test of reasonable 3rd person applies to obscenely only.

Maximum penalty: 10 penalty units or imprisonment for six
months.

Question 7

S. 6 Summary Offences Act 1986 – Obstructing traffic:

Answer 7

S. 6 SOA 1986 - Obstructing traffic:
• The accused
• Without reasonable excuse
• Willfully prevents free passage
• Of a person/vehicle/vessel
• In a public place

Maximum penalty: 4 penalty units.

Question 8

S. 7 Summary Offences Act 1986 – Damaging fountains:

Answer 8

S. 7 SOA 1986 – Damaging fountains:
• The accused
• Wilfully
• Damages or defaces or,
• Enters or,
• Causes any foreign material or substance to enter into
• Any part of a fountain
• In a public place

Maximum penalty: 4 penalty units.

Question 9

S. 9 SOA 1986 – Continuation of intoxicated and disorderly behaviour following move on
direction:

Answer 9

S. 9 SOA 1986 – Continuation of intoxicated and disorderly behaviour following move on direction:

• The accused
• Having previously received a direction for being intoxicated
and disorderly in public place
• Within the allocated time limit for said direction
• Continues to be intoxicated and disorderly
• In any public place.

Maximum penalty: 15 penalty units

Question 10

S. 11 SOA 1986 – Possession of liquor by minors:

Answer 10

S. 11 SOA 1986 – Possession of liquor by minors:
• The accused who is under 18
• Possesses/consumes alcohol
• Without: 
- supervision of a responsible adult, or
- a reasonable excuse,
• In a public place
- Police may seize the alcohol in these circumstances.

Question 11

S. 11B SOA 1986 – Custody of ‘offensive implement’:

Answer 11

S. 11B SOA 1986 – Custody of ‘offensive implement’:

• The accused
• Without reasonable excuse
• Has in their possession an offensive implement
• In a public place or school

Maximum penalty: 50 penalty units or imprisonment for 2 years.

Question 12

S. 11C SOA 1986 – Custody of knife (any blade) in public place or school:

Answer 12

S. 11C SOA 1986 – Custody of knife (any blade) in public place or school:

• The accused
• Without reasonable excuse: (POKEROTE)
P – Preparation of food or drink (e.g. picnic)
O – Official uniform
K – Knife collection or exhibition
E – Exhibition of knives for retail, etc.
R – Genuine Religious reasons
O – Lawful Occupation
T – Travelling to and from any of these activities
E – Lawful Entertainment, recreation or sport (e.g. fencing
practice)
• Has in their custody a knife
• In a public place or school

Question 13

S. 11D SOA 1986 – Parents who allow children to carry knives:

Answer 13

• The accused who is a parent of a child:
Under 18 years,
Who committed an offence under S.11C SOA,
• Knowingly authorises or permits the child to commit the
offence.

Maximum penalty: 5 penalty units.

Question 14

S. 11E SOA 1986 - Wielding of knives in a public place or a school:

Answer 14

S. 11E SOA 1986 - Wielding of knives in a public place or a school:
• The accused
• Without reasonable excuse
• Uses/carries a knife
• That is visible
• In a public place or school

Maximum penalty: 50 penalty units or imprisonment for 2 years.

Question 15

S. 11F SOA 1986 – Sale of knife to child under 16:

Answer 15

S. 11F SOA 1986 – Sale of knife to child under 16:
• The accused
• Sells a knife
• To a child under 16 years of age
- Employer is guilty of the offence unless it can be proved there was no knowledge of the sale or they could not prevent the sale (by exercise of due diligence).

Maximum penalty: 50 penalty units.

Question 16

What are the element for s35 CA Assault Occasioning Grievous Bodily Harm?

Answer 16

• The accused
• Assaulted
• The person
• Causing grievous bodily harm and was reckless as to causing actual bodily harm.
  10 years

Question 17

S. 51A CA – Predatory Driving – ‘High Range’ road rage:

Answer 17

• The accused,
• Drove a vehicle (s. 52A(9) CA definition),
- in pursuit of another vehicle or,
- travelling near another vehicle
• And engaged in conduct which caused or threatened to cause an impact:
- with any other vehicle/person/object or,
- by overturning or leaving a road,
• With the intention of causing another person ABH.

– Usually some form of relationship between the victim and the offender.
– No need to have actual bodily harm, intent is sufficient.
– The prosecution must prove the offender’s vehicle caused
the impact.

Question 18

S. 52A CA – Dangerous Driving Occasioning GBH

or Death.

Answer 18

• The accused
• Drove a vehicle (s. 52A(9) CA definition):
- under the influence of alcohol or drugs or,
- at a speed dangerous to person/s or,
- in a manner dangerous to person/s
• Occasioning death or GBH of a person
• Conveyed in or on any vehicle (including passengers)
• Through an impact involving:
- overturning or leaving a road or,
- any object/person/vehicle or,
- any object/vehicle in, on or near the person at the time of impact or,
- anything on/attached to the vehicle, or
- anything in motion through falling from the vehicle or,
- the person falling, being thrown or ejected from the vehicle or,
- any object as a result of the person (or any part) protruding from the vehicle
• (7) circumstances of aggravation.
– This offence is not restricted to driving on the road.

Question 19

S. 33 CA 1900 - Wounding or Grievous Bodily Harm with Intent:

Answer 19

• The accused
• Wounds or causes grievous bodily harm
• To the person
• With intent to cause grievous bodily harm to that or any other person

Shall be liable maximum imprisonment for 25 years.

Question 20

S. 35 CA 1900 - Assault Occasioning Grievous Bodily Harm:

Answer 20

• The accused
• Assaulted
• The person
• Causing Grievous Bodily Harm and was reckless as to causing actual bodily harm.

Shall be liable maximum imprisonment for 10 years.

Question 21

S. 58 Crimes Act 1900 – Assault with intent to commit a serious indictable offence on certain officers:

Answer 21

• The accused
• Assaults any person with intent to commit a serious
indictable offence or,
• Assaults, resists, or wilfully obstructs any officer while in the execution of his or her duty or,
• Assaults any person, with intent to resist or prevent the
lawful apprehension or detainer of any person for any offence

Shall be liable to imprisonment for 5 years.

Question 22

S. 59 CA 1900 - Assault Occasioning Actual Bodily Harm:

Answer 22

1. The accused
2. Assaulted
3. The person
4. Occasioning Actual Bodily Harm

Shall be liable for imprisonment for 7 years.

Question 23

S. 60 (1) CA 1900 – Assault and other actions against police officers:

Answer 23

• The accused
• Assaults, throws a missile at, stalks, harasses or intimidates
• A police officer while in the execution of the officer’s duty
• Although no ABH occasioned to the officer

Is liable to imprisonment for 5 years.

Question 24

S. 61 CA 1900 – Common assault:

Answer 24

• The accused
• Assaulted a person
• Intentionally or recklessly
• Without consent
• Without lawful excuse
– May include spitting or no physical signs.

2 years imprisonment –Indictable Offence

Question 25

S. 546c CA 1900 – Resisting etc police:

Answer 25

``` • The accused o Resists or hinders or, o Incites any person to assault, resist or hinder • A police officer • In the execution of their duty ``` Imprisonment for 12 months or to a fine of 10 penalty units, or both.

Question 26

S. 93B CA 1900 – Riot (common purpose):

Answer 26

``` • 12 or more persons • Presented together • Common purpose • Conduct taken together • Use or threaten unlawful violence • Towards person or property • In a public or private place • Causes person of reasonable firmness to fear for their safety (need not be present). ``` Imprisonment for 15 years.

Question 27

S. 93C CA 1900 – Affray (NO ‘present together’ or ‘property’):

Answer 27

``` • 1 or more persons • Conduct taken together • Use or threaten unlawful violence • Towards person • In a public or private place • Causes person of reasonable firmness to fear for their safety (need not be present). ``` Imprisonment for 10 years.

Question 28

S. 112(1)(A) CA Breaking etc into any house etc and committing serious indictable offence:

Answer 28

• The accused • Broke Actual Breaking – Involves breaking the seal of the premises, interfering with the physical security of the premises. Constructive Breaking (KFC Tonight) K – KEY – Keys obtained and used for a purpose they weren’t intended. F – FRAUD – False representations are made to gain access. C – CONSPIRACY – You work with another person who has legal access to the premises and lets you in without the consent of the owner. T – THREAT is made to the person with legal ability to give you access to the property. • Entered It does not need to be the whole body, can be one part or even an implement if inserted with the intention to commit a serious indictable offence. • Dwelling-house or other building • Committed a serious indictable offence. Can be committed in two ways: 1. Break and enter and commit serious indictable offence 2. Already in premises, commit serious indictable offence and break out.

Question 29

S. 118 CA – Intent to Return Property is No Defence:

Answer 29

``` • The accused • Who is on trial for larceny • Appropriated the property for - Their own use/benefit or, - The use/benefit of another • But intended to eventually restore the property • Is not entitled to an acquittal ```

Question 30

S. 124 CA – Fraudulent Appropriation – “intent formed afterward”:

Answer 30

* The accused * Did not originally intend to steal the item * But later appropriated the property for his or her own use. – The accused is charged with larceny as only a court can determine this offence.

Question 31

S. 125 CA – Larceny by a Bailee “agreement breached by bailee”:

Answer 31

* The accused * Received property from the owner under an agreement (expressed or implied) * Where the accused was a bailee of such property * Fraudulently (dishonestly) * Took such property (or part thereof) or converted such property to his own use or exchanged such property

Question 32

S. 148 CA – Stealing Property in a Dwelling- House – “148... no break”:

Answer 32

``` • The accused • Stole • Property • Inside a dwelling-house • Carried it out of such dwelling-house • The goods must be under the protection of the house (deposited there for safe custody). • It is not sufficient that they are under the eye or personal care of someone who happens to be there. This is determined by a judge. ```

Question 33

S. 154A CA – Take and Drive Conveyance:

Answer 33

• The accused • Without consent • Took and drove conveyance • Drive or be carried in/on knowing it has been taken without consent. -No need to permanently deprive -Includes the passengers if they rode in the car knowing it was taken without consent. -Definition of conveyance broader than definition of motor vehicle.

Question 34

S. 154F CA – Steal Motor Vehicle elements:

Answer 34

* The accused * Stole * Property (motor vehicle) * Must prove fraudulently

Question 35

S. 156 CA – Larceny by Clerk or Servant – “after the till”:

Answer 35

• The accused • Was employed as a clerk or servant • Stole property • Belonging to the master/employer – After the till offence, property must have transferred ownership to the master entirely before it is stolen (customer’s money in till, then into pocket)

Question 36

S. 157 CA – Embezzlement – “before the till”:

Answer 36

* The accused * Received property on behalf of their master * Fraudulently embezzled that property Fraudulently – Dishonestly obtained, at the time they took the item they had the intention to permanently deprive the property from them. Embezzled – To constitute embezzlement the property must have been received by the accused on the account of his or her master or employer (customer money straight in pocket).

Question 37

S. 188 CA – Receiving Stolen Property (Serious Indictable Offence):

Answer 37

• The accused • Received, disposed of, or attempted to dispose of stolen property • The stealing was a serious indictable offence • The accused knew the property was stolen at the time they received, disposed of, or attempted to dispose of it. – It must be shown that the goods were the result of a serious indictable offence – e.g. Larceny. – The accused must know the status of the property was stolen at the time they received it. – If the accused innocently comes into possession of property then becomes aware of its status and either retains it or attempts to dispose of it, it is still an offence.

Question 38

S. 192E CA – Fraud:

Answer 38

* The accused * Used deception * Obtained property, financial advantage or caused financial disadvantage. – Fraud includes where the accused forms the intent to permanently deprive after the item is stolen.

Question 39

S. 254 CA – Use False Document:

Answer 39

* The accused * Used a false document * With the intent to induce the victim to accept it as genuine.

Question 40

S. 527C CA – Persons Unlawfully in Possession of Property – “Goods in custody”:

Answer 40

• The accused • Had anything • In his or her custody, or the custody of another, or in the premises • Which reasonably may be suspected of being stolen or unlawfully obtained – 6 month statute of limitations for goods in custody. – 2 year statute of limitations for goods in custody relating to motor vehicles. – Reflects that the goods were stolen or unlawfully obtained. – May not be able to be convicted for the original stealing offence. – Police do not need to prove that the goods were stolen but must prove that it is reasonable to assume the goods were stolen or otherwise unlawfully obtained. – Suspicion must be on the goods and not on the person who is in possession. Cannot base decision on the item being stolen on a person’s criminal history, only on the item. – Viable defence if the accused satisfies the court that he/she had no reasonable grounds for suspecting that the thing was stolen or otherwise unlawfully obtained.

Question 41

Property Damage - S.195 Crimes Act 1900 - Destroying or damaging property Part 1:

Answer 41

PART 1: 1. The accused 2. Intentionally or recklessly 3. Destroys or damage property 4. Belonging to another person or joint ownership Imprisonment for 5 years – Caused by fire or explosives = Imprisonment for 10 years.

Question 42

Property Damage - S.195 C Act 1900 - Destroying or damaging property Part 1(A):

Answer 42

PART 1(A): 1. The accused 2. In the company of another person or persons 3. Intentionally or recklessly 4. Destroys or damages property 5. Belonging to another person or to the person and another. Imprisonment for 6 years – Caused by fire or explosives = Imprisonment for 11 years.

Question 43

Property Damage - S.195 C Act 1900 - Destroying or damaging property Part 2:

Answer 43

Part 2 1. The accused 2. In the company of another person or persons 3. Intentionally or recklessly 4. During a public disorder 5. Destroys or damages property 6. Belonging to another person or to the person and another. Imprisonment for 7 years – Caused by fire or explosives = Imprisonment for 12 years.

Question 44

What are the element for s35 CA Assault Occasioning Grievous Bodily Harm?

Answer 44

- The accused - Assaulted - The person - Causing grievous bodily harm and was reckless as to causing actual bodily harm. 10 years

Question 45

What are the elements to s195 Crimes act Destroying or damaging property?

Answer 45

``` 1- The accused. 2- Intentionally or recklessly. 3- Destroys or damages property. 4- Belonging to another person or joint ownership. - Imprisonment of 5 years. - Caused by fire or explosive 10 years. - Another person = 6 years. Fire and Explosives with another person = 11 years. - Public disorder = 7 years. Fire and Explosives = 12 ```

Question 46

S. 117(1) RTA – Negligent Driving – “Neg Driving”

Answer 46

``` • The accused, • Drove a motor vehicle, • On a road or road related area, • Negligently (3 levels): o (A) occasioning Death. o (B) occasioning GBH. o (C) neither GBH or death (the most common charge). ``` – Do not give a ticket for negligent driving if you are able to give a ticket for a more specific offence. Example: A specific offence they did wrong which was negligent, like ignore a stop sign.

Question 47

S. 117(2) RTA – Furious, Reckless Driving and Speed/Manner Dangerous:

Answer 47

``` • The accused, • Drove a motor vehicle, • On a road or road related area o furiously or, o recklessly or, o at a speed dangerous to the public or, o in a manner dangerous to the public. ``` – You must establish the element of danger to the public. If you cannot establish this then you cannot proceed with the offence. – It requires a serious breach of the proper conduct of the motor vehicle, so serious as to be in reality and not speculatively, potentially dangerous to others. – Members of the public can be in the car, only if the passengers are non-willing participants.

Question 48

S. 118 RTA – Menacing Driving – 'Low Range' road rage:

Answer 48

• The accused, • Drove a motor vehicle, • On a road or road related area, • In a manner that would: - (1) intentionally menace - INTENTIONAL - (2) conduct likely to menace - POSSIBLE • Another person • Whether or not the person is: - menaced by threat of personal injury - menaced by threat of damage to property - on a road – Defence: if the accused could not reasonably avoid menacing the other person. – Double Jeopardy: accused cannot be charged under both (1) and (2) or s. 117 and s. 118. – Obtain statement from victim, details of vehicle (rego, make, model), establish the driver, form of demand on driver and ask questions. – No need to establish that the victim felt intimidated. – Dependant on the intent of the accused. – DO transport check to make sure vehicle hasn't been stolen.

Question 49

S. 10 DMTA 1985 – Possession of prohibited drugs:

Answer 49

``` • The accused • Had in their possession • A prohibited drug – *MUST* prove knowledge (Mens Rea) + at least defacto control (Actus Reus) ```

Question 50

S. 11 DMTA 1985 – Possession of equipment for administration of prohibited drugs:

Answer 50

• The accused • Had in their possession • An item of equipment for use in the administration of a prohibited drug – Does not include hypodermic needles – *MUST* prove it is intended for future use

Question 51

S. 12 DMTA 1985 – Self administration of prohibited drugs:

Answer 51

* The accused * Administered to him/herself or, * Attempted to administer * A prohibited drug

Question 52

S. 23 DMTA 1985 – Offences with respect to prohibited plants:

Answer 52

* The accused * Cultivates, supplies or has in their possession * A prohibited plant

Question 53

S. 24(1) DMTA 1985 – Manufacture and production of prohibited drugs:

Answer 53

• The accused • Manufactures/produces or, • Knowingly takes part in manufacturing/producing • (1A) exposes a child to that manufacturing or production process or substances related • A prohibited drug - Indictable drug offence.

Question 54

S. 25 DMTA 1985 – Supply of prohibited drugs:

Answer 54

``` • The accused • Supplied or, • Knowingly takes part in the supply of • A prohibited drug - Indictable drug offence. ```

Question 55

S. 29 DMTA 1985 – Traffickable quantity-possession taken to be for supply:

Answer 55

• The accused • Has in their possession • An amount of a prohibited drug not less than the traffickable quantity (“deemed supply”) • Unless the accused proves: o they had the drug for reasons other than possession or, o they obtained possession with a prescription of a doctor, nurse, midwife, dentist or vet. - Indictable drug offence.

Question 56

S. 16(1) PTGA 1966 – Possess prescribed restricted substances:

Answer 56

* The accused * Possessed or attempted to obtain possession of * A prescribed restricted substance

Question 57

S. 16(2) PTGA 1966 – Fraudulently alter/utter prescription:

Answer 57

• The accused o forged or fraudulently altered or, o uttered knowing it to be forged or fraudulently altered • Any prescription of a medical practitioner, nurse, dentist or vet • Relating to any prescribed restricted substance

Question 58

S. 16(3) PTGA 1966 – False and misleading representations:

Answer 58

• The accused • By a representation that the person knows, or ought reasonably to know is false/misleading and: o obtains/attempts to obtain a prescription or, o induces/attempts to induce a pharmacist to dispense a prescription, knowing the prescription to be forged or fraudulently altered. • Is in actual possession of a prescription knowing it to be: o forged or fraudulently altered or, o obtained via false or misleading circumstances. – Prescription = in relation to a prescribed restricted substance.

Question 59

Animals - S. 5 PCAA – Cruelty to animals:

Answer 59

• The accused • Shall not commit or authorise an act of cruelty upon an animal or, • Fail at any time to – exercise reasonable care, control or supervision of an animal to prevent the commission of an act of cruelty upon the animal. – alleviate the pain of an animal where necessary. – provide veterinary treatment where necessary.

Question 60

Animals - S. 6 PCAA – Aggravated cruelty to animals:

Answer 60

* The accused | * Shall not commit an act of aggravated cruelty upon an animal.

Question 61

Animals - S. 35A(1) CA – Causing dog to inflict GBH:

Answer 61

* The accused * Has control of a dog, and * Does any act that causes the dog to inflict grievous bodily harm on another person, and * Is reckless as to the injury that may be caused to a person by the act.

Question 62

Animals - S. 35A(2) CA – Causing dog to inflict ABH:

Answer 62

* The accused * Has control of a dog, and * Does any act that causes the dog to inflict ABH on another person, and * Is reckless as to the injury that may be caused to a person by the act.

Question 63

S. 13 CDPVA – Stalking or Intimidation:

Answer 63

• The accused • Stalks or intimidates the victim • With intent to cause fear of physical or mental harm. – Includes those in domestic relationships. – Intention includes conduct not intended but 'likely' it could cause fear. – Prosecution not required to prove actual fear by the victim.

Question 64

Elements of a Graffiti offence (Graffiti Control Act 2008 S.4):

Answer 64

Section 4 (1) elements: • The accused, without a reasonable excuse or prior consent; • Intentionally • Marks any premises or property. – Does not apply to the marking of any public footpath or public pavement with chalk Maximum penalty: 4 penalty units. Section 4 (2) • All of the above elements • Circumstance of aggravation Maximum penalty: 20 penalty units or Imprisonment for 12 months. – Must only send a person to prison if they have a previous graffiti conviction or possession of graffiti implement (S. 5 GTA)

Question 65

What are the elements of s.4(1) Graffiti control Act?

Answer 65

- The accused, - Without reasonable excuse or prior consent - Intentionally - Marks premises or property.