Summary Offences Flashcards
(43 cards)
What is a public place as defined in Section 3 of the Summary Offences Act?
“Public Place” means:
(a) a place (whether or not covered by water);
or
(b) a part of premises, that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include a school
Learning hint:
Public place means:
* place (whether or not covered by water);
* part of a premises
* open to or used by the public
* whether or not on payment of money or other consideration
* whether or not the place or part is ordinarily so open to or used AND
* whether or not the public to whom it is open consists only of a limited class of persons,
* but does not include a school
What is the definition of “Vehicle” in the Summary Offences Act and where would I find that definition?
Section 3 of the Summary Offences Act describes a “Vehicle” as:
Vehicle includes:
(a) . a motor vehicle (whether or not still capable of being driven); and
(b) . a train or other vehicle used on a railway or monorail; and
(c) . a caravan or anything else constructed to be drawn by a vehicle or animal.
SECTION 3(2) provides - For the purposes of this Act, a person who is in a vehicle in any place shall be taken to be in that place.
Section 3(2) of the Summary Offences Act provides what?
For the purposes of this Act, a person who is in a vehicle in any place shall be taken to be in that place.
Who are the two authorities in relation to “wilful”?
- R v Senior; and
2. Fitzgerald v Montoya.
R v Senior found what in relation to the meaning of “WILFUL”?
R V Senior held that:
“Wilfully means that the act is done deliberately and intentionally, not by accident or inadvertence, but so that the mind of the person who does the act goes with it.
What did Fitzgerald v Montoya find in relation to “Wilful”?
Fitzgerald v Montoya held that:
“…. the act complained of must not only have been done deliberately but with the knowledge and intention that it will have the effect of preventing the free passage of someone else without any lawful excuse for doing so”.
There are two authorities in relation to “reasonable excuse”. Cite authorities.
- Minkley v Monroe [1986]; and
2. Connors v Craigie.
What is a “reasonable excuse”? Cite authority.
A reasonable excuse is NOT a lawful excuse.
Minkley v Monroe [1986] found:
The concept of “Reasonable excuse” has not been incontrovertibly defined because each excuse put forward in answer to a charge is unique to the facts surrounding the case. It’s proper evaluation requires both a subjective and an objective examination of the circumstances”.
What did Connors v Craigie find in relation to “Reasonable Excuse”?
“Reasonable excuse involves both subjective and objective considerations but these considerations MUST BE RELATED TO THE IMMEDIATE PREVAILING CIRCUMSTANCES IN WHICH THE OFFENSIVE WORDS, etc are used, just as in self defence or provocation the response of the Accused must be related in some way to the actions of the victim and the particular circumstances”.
What did Taikato v The Queen find in relation to “Lawful purpose”.
Is a High Court decision giving a very useful definition of “lawful purpose”.
In this matter if was held that:
“Lawful purpose” should be read as a purpose that is authorised, as opposed to not forbidden, by law”. (For self defence).
What is the definition of “lawful purpose”? Cite authority.
Taikato vs the Queen stated:
“Lawful purpose” should be read as a purpose that is authorised, as opposed to not forbidden by law.
What did Worcester and Smith [1951] find in relation to “Offensive”.
Worcester and Smith [1951] found that:
“For behaviour and language to be “offensive” it must,
“be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person”.
What is the offence of Offensive Conduct and where would I find it?
Section 4 of the Summary Offences Act.
Offensive conduct
(1) A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school.
(2) A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language.
(3) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.
What does behaviour and language have to have to make it offensive? Cite authority.
For behaviour and language to be “offensive” it must:
“… be such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person”. Worcester v Smith [1951]
Does language alone constitute “offensive conduct”?
No. Language alone does not constitute offensive conduct.
What was found in the case of Thommery v Humphries in relation to the word “fucking”?
The word “fucking” is, as a matter of law, prima facie offensive.
Under what Section of the Summary Offences Act would I find the offence of Offensive Language?
Section 4A
(1) A person must not use offensive language in or near, or within hearing from, a public place or a school.
Maximum penalty: 6 penalty units.
(2) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.
What is the test (in which way must the Court look at) offences?
From two perspectives. Subjective and Objective.
Subjective is from the point of view of the Accused.
Objective is from the point of view of a reasonable person.
Section 4, Subsection (3) provides a defence for Offensive Conduct. What is that defence?
It is open to the defendant to satisfy the Court (on the balance of probabilities) that he/she had a reasonable excuse for the conduct.
Remember that a “reasonable excuse” is not the same as a lawful excuse and its proper evaluation requires both a subjective and objective examination of the circumstances.
Under what Section of the Summary Offences Act would I find the offence of Obscene Exposure?
Section 5.
A person shall not, in or within view from a public place or a school, wilfully and obscenely expose his or her person.
Maximum penalty: 10 penalty units or imprisonment for six months.
Is it necessary to prove in a particular case that a reasonable person was in fact present at the time the offensive behaviour occurred?
No. It is open to the Court to reasonably find that some such reasonable person might be expected to come within the area effected by the behaviour in question.
What did Ball v McIntyre find in relation to “reasonable person”?
Ball v McIntryre [1966] found:
The “reasonable person” contemplated by the test is envisaged as being “reasonably tolerant and understanding and reasonably contemporary in his reactions”.
Do we need to establish intent? Cite caselaw
In Jeffs v Graham (1987), Yeldham J found that “.. the Prosecution must at least prove beyond a reasonable doubt that the conduct engaged in was voluntary”.
What is regarded as offensive? It changes as Society changes.
The following cases deal with this:
Police v Anderson - Sgt Anderson said something to a probationary Constable.
Police v Butler [2003] - swearing at North Sydney Railway Station -
