Criminal Law Guidebook - Chapter 4: Public Order Offences

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1 The following is a suggested solution to the problem on page 87. It represents an answer of an above average standard. The ILAC approach to problem-solving as set out in the How to Answer Questions section of the preliminary pages of the Criminal Law Guidebook has been used in devising this solution. Offences by both Andrew and Claire At the outset, it is likely from the fact that Constable Boots knew nothing about the rally and his enquiry drawing the response from Claire to, stand aside and let us exercise our democratic rights, that the rally has not been authorised as a public assembly 1. Thus, in addition to offences resulting from a failure to maintain proper order 2, Andrew and Claire may face charges for participating in an unlawful assembly 3. First, however, it is useful to consider the most serious public order offences that could be proved against both Andrew and Claire, given the public nature of their demonstration in a city street. This relates to the actual behaviour of Andrew and Claire with others during the march of the crowd of students from the city square along the middle of the street, involving blocking the traffic, yelling and screaming, and throwing and kicking rubbish such that onlookers were frightened and ran off. If this occurred in New South Wales or Victoria, it is possible that Andrew and Claire could be charged with riot 4 or affray 5. Riot The statutory elements of riot under Crimes Act 1900 (NSW) s 93B are that 12 or more persons present together use of or threaten unlawful violence for a common purpose such as would cause a person of reasonable firmness present at the scene to fear for his or her personal safety. Violence is defined in Crimes Act 1900 (NSW) s 93A and it means any violent conduct towards persons or property not restricted to causing injury or damage. The common law elements are similar; although at least three persons need to be present and the force or violence used must be displayed in such a manner as to alarm at least one person of reasonable firmness and courage 6. It is arguable that Andrew and Claire together with the crowd of approximately 200 students used force in proceeding with their demonstration through the city street, and the throwing and kicking of rubbish may amount to unlawful violence within the statutory meaning. Andrew s specific actions of throwing a can of spray paint in the direction of Constable Boots, and then forcibly pushing past him using his shoulder, are forms of violent conduct. It is not clear what the crowd was yelling and screaming, although it may be inferred 1 Summary Offences Act 1988 (NSW) Part 4; Public Assemblies Act 1972 (SA) ss 4, 6. 2 Hubbard v Pitt [1976] 1 QB See Crimes Act 1900 (NSW) s 545C. 4 Crimes Act 1900 (NSW) s 93B. Riot is a common law offence in Victoria see Field v Receiver of Metropolitan Police [1907] 2 KB 853, 860. The offence has been abolished in South Australia. 5 Crimes Act 1900 (NSW) s 93C. Affray is a common law offence in Victoria see Taylor v DPP [1973] AC 964, 989. The offence has been abolished in South Australia. 6 Field v Receiver of Metropolitan Police [1907] 2 KB 853, 860.

2 that it was Claire s prepared chant, Fuck off PM hear us shout! Fuck off PM let them out! Arguably, these words do not threaten unlawful violence, but the actions alone may be violent as they caused onlookers to flee from the scene. It is arguable that these onlookers were people of reasonable firmness and courage present at the scene, who were at least alarmed by the activities of the students during the demonstration, or they may even have feared for their personal safety in deciding to run from the crowd. Accordingly, the actus reus of riot could be established beyond reasonable doubt. The mental element of riot under Crimes Act 1900 (NSW) s 93D(1) is that the person must intend to use violence or be aware that their conduct may be violent. It is not clear that the original intent of the organisers was for a violent protest. Ostensibly, the rally was organised as a consciousness raising exercise, but Andrew and Claire also wanted the demonstrators to be motivated and the rally fired up before the march on federal government offices. Collectively, this is not evidence that they intended to use violence. The alternative form of recklessness 7 may, however, be established, as there is an argument that in the rush to get the march moving before it was broken up by the police, Andrew and Claire were reckless in the sense of being aware that their conduct may be violent. The behaviour of a crowd of 200 students is not readily predictable, but in all the circumstances, including the actions of Andrew and Claire as leaders of the demonstration, it is certainly arguable that they were each aware that the conduct may be violent and a charge of riot could be proved beyond reasonable doubt against them. Affray The alternative affray offence has similar elements to riot, although there is no requirement for a certain number of people to be present using or threatening unlawful violence. The provision in Crimes Act 1900 (NSW) s 93C(2) refers to the conduct of 2 or more persons and it would usually be the case that more than one person is involved in an affray. At common law an affray involves a display of force or participation in actual violence that causes others to fear for their own safety 8. Similar arguments can be made in applying the elements of this offence to the given facts. The conduct of Andrew and Claire with the crowd of students marching in the street, yelling and throwing and kicking rubbish, could amount to conduct that is violent or threatening violence as the onlookers began to flee, arguably demonstrating fear for their personal safety. Again the mental element of affray could be proved by the awareness of Andrew and Claire that their conduct may be violent or threaten violence 9. There is sufficient evidence to charge Claire and Andrew with the lesser offence of affray in the alternative to riot, and this may be a more appropriate charge given that the demonstration was quickly brought under control by the police once the leaders were arrested and removed from the scene. 7 Crimes Act 1900 (NSW) s 93D(1). 8 Taylor v DPP [1973] AC 964, Crimes Act 1900 (NSW) s 93D(2).

3 Violent disorder A further lesser alternative charge is violent disorder 10, which has similar conduct and mental 11 elements to affray but requires that 3 or more persons must be present together using or threatening unlawful violence. This summary offence carries a significantly lower maximum penalty, and may be used as a back-up charge and for plea negotiations with the defence in New South Wales, but could be considered as the principal charge if the events took place in South Australia. Unlawful assembly The offence of knowingly joining or continuing in an unlawful assembly under Crimes Act 1900 (NSW) s 545C(1) can be proved against both Andrew and Claire as they both knew the assembly they organised was unauthorised and they knowingly joined in the march. Obstructing traffic Also, the offence of obstructing traffic 12 could be proved against both Andrew and Claire. The requirements for this offence are satisfied when the march takes place in the middle of the street blocking all traffic, that is, the free passage of persons and vehicles in a public place is wilfully prevented through these actions. The prosecution could charge these summary offences as additional charges because they encompass specific conduct apart from the actual violent activity in the march. Depending on the outcome of the more serious charges they may ultimately not proceed. Disorderly or offensive behaviour As these various offences apart from violent disorder are not available in South Australia, it is prudent to consider whether Andrew and Claire s conduct in the march is behaving in a disorderly or offensive manner 13. The elements are that the accused behaved in an offensive or disorderly manner in a public place. It is a strict liability offence 14, so the defence of honest and reasonable mistake of fact would be open to Andrew and Claire. In seeking to prove that behaviour is offensive, the word carries its ordinary meaning, and in a general sense, means of giving, or of a nature to give offence; displeasing, annoying, insulting 15. It is conduct which arouses anger, resentment, disgust or outrage (in) the reasonable man (who is) reasonably tolerant and understanding and reasonably contemporary in his reactions. 16 The entire context in which behaviour takes place is important 17 and contextualising the actual conduct of marching accompanied by yelling, screaming, throwing and kicking rubbish in a public street as part of a student protest may not be offensive, but it could be characterised as disorderly behaviour in its 10 Summary Offences Act 1988 (NSW) s 11A; Summary Offences Act 1953 (SA) s 6A. 11 Summary Offences Act 1988 (NSW) s 11A(5); Summary Offences Act 1953 (SA) s 6A(5). 12 Summary Offences Act 1988 (NSW) s Summary Offences Act 1953 (SA) s 7(1)(a). There are comparable offences in Summary Offences Act 1988 (NSW) s 4 and Summary Offences Act 1966 (Vic) s 17(1)(d). 14 Police v Pfeifer (1997) 68 SASR R v Smith [1974] 2 NSWLR Ball v McIntyre (1966) 9 FLR 237, Saunders v Herold (1991) 105 FLR 1.

4 ordinary meaning of being unruly and contrary to public order 18 or because it includes riotous behaviour 19. Such a charge could also be considered as an alternative in Victoria, as the relevant legislative provision encompasses a broad range of conduct including behaving in a riotous manner 20. In New South Wales, however, the relevant offence is offensive conduct and offensiveness may be difficult to prove beyond reasonable doubt. Additional offences by Andrew Andrew s spray painting NUS supports ending detention on a wall in the public square in which the rally intended to gather, raises the possibility of an offence of intentional damage to property 21 or defacing property by graffiti 22. In relation to the former more serious charge, there must be damage, which does not have to permanent 23, and the act of damaging the property must be intentionally directed towards the property 24. Arguably, there is deliberation by Andrew in purchasing the can of spray paint and then using it on a public wall where, although the writing can probably be removed, it may be difficult and time consuming to remove. The writing, albeit temporary, amounts to damage, and there is a reasonably strong argument that it was intentional. Therefore, this is an additional charge which could be proved against Andrew. There is a lesser alternative charge based on the same facts, because the writing on the wall amounts to defacing of property by a form of graffiti, or simply painting on a wall under the relevant Victorian provision 25. There is no argument that Andrew had any form of lawful authority 26 or consent 27 to paint this slogan on the wall. Another possible offence by Andrew is when he threw the can of spray paint in the direction of Constable Boots, and then pushed past the officer using his shoulder when the officer was standing in his way attempting to block the protest leaders. Arguably this conduct of Andrew is subsumed in a riot or affray offence and would not be separately charged as it has a close temporal and purposive connection with the student march and associated violent activity. It could, however, amount to an offence of assault police 28 as 18 Della Thompson (ed), The Concise Oxford Dictionary (9 th ed, 1995) Summary Offences Act 1953 (SA) s 7(3). 20 Summary Offences Act 1966 (Vic) s 17(1)(d). 21 Crimes Act 1900 (NSW) s 195(1)(a); Crimes Act 1958 (Vic) s 197(1); Criminal Law Consolidation Act 1935 (SA) s 85(3). 22 Graffiti Control Act 2008 (NSW) s 4; Graffiti Control Act 2001 (SA) s 9; Summary Offences Act 1966 (Vic) s 10(1). 23 Morphitis v Salmon [1990] Crim LR R v Phillips [1973] 1 NSWLR 275, 289; Kippist v Parnell (1988) 8 Petty Sessions Review There is an alternative mental state of recklessness available in New South Wales and South Australia. 25 See above n Graffiti Control Act 2008 (NSW) s Summary Offences Act 1966 (Vic) s 10(1). 28 Crimes Act 1900 (NSW) s 60(1); Crimes Act 1958 (Vic) s 31(1)(b); Summary Offences Act 1953 (SA) s 6.

5 it involves an unlawful physical contact which is intentionally carried out by Andrew 29. There is no requirement that Andrew must know the person he is assaulting is a police officer 30, but it is clear that Constable Boots had identified himself and spoken to both Andrew and Claire prior to the start of the march. Constable Boots was acting in the execution of his duty at the time 31, and this offence could be proved against Andrew if it was not included as part of the conduct constituting riot or affray. Additional offences by Claire The additional offences that could be proved against Claire relate to the three occasions on which she used language that may be regarded as offensive 32. In testing the microphone at set up stage, Claire chanted Fuck off PM hear us shout! Fuck off PM let them out!, which at approximately 9am that day could be heard at the local primary school 600 metres away and prompted a local shopkeeper to contact the police. Later during the march Claire called the police officer arresting Andrew, a fucking pig and then said to the officer who arrested her, You fucking cunt, let go of my fucking neck! The expletive, fuck, is used in each instance and also cunt is used in the last incident. The question is whether these words are offensive in the various contexts. Claire doesn t have to intend to be offensive as it is a strict liability offence 33. As discussed above, the entire context must be considered in determining whether the quality of the words used is offensive in the sense of displeasing, annoying, insulting to the reasonable person 34. In the context of a public place 35, where a number of people were present in the morning and its proximity to a primary school, where children were present at 9am, the manner of expression and volume of the words spoken by Claire may be regarded as offensive by a reasonable person. The later comments to the police officers have a slightly different context to the earlier chants in that Claire was then heavily involved in the student protest rally, and there is an argument that Claire s words were spoken in the nature of a reflex action 36, as she was angered by seeing Andrew being pulled to the paddy wagon and then herself being grabbed around the neck by another police officer. It is not apparent that Claire yelled or screamed out these words and given the nature of the protest march they may not have been audible except to those persons in close proximity to Claire. This may provide grounds to raise the defence of reasonable excuse 37, or the defence could argue that in the overall context of the student protest rally, the use of 29 R v Venna [1976] 2 QB R v Reynhoudt (1962) 107 CLR DPP Reference No 1: R v K (1993) 118 ALR 596, Summary Offences Act 1988 (NSW) s 4A; Summary Offences Act 1966 (Vic) s 17(1)(c); Summary Offences Act 1953 (SA) s 7(1)(c). 33 See above n See above notes Summary Offences Act 1988 (NSW) s 3; Summary Offences Act 1953 (SA) s 4(1); Summary Offences Act 1966 (Vic) s Karpik v Zisis (1979) 5 Petty Sessions Review 2055, Summary Offences Act 1988 (NSW) s 4A(2).

6 the expletives could not be regarded as offensive 38. Claire calling the police officer a cunt at the time of her arrest may, however, be regarded as offensive or insulting 39 such that the offence could be proved beyond reasonable doubt. Overall, there are alternative arguments to be raised in relation to the offensive or insulting nature of Claire s use of the words fuck and cunt in the different contexts. It is certainly arguable that at least one count of offensive language could be proved against her for her chanting fuck into the microphone at the city square, that was amplified 600 metres to a local primary school at a time when children would have been arriving ready to start school for the day. It is also arguable that a second offence relating to calling the police officer you fucking cunt could be proved in all the circumstances. 38 Police v Dunn (1999) 24(5) Alternative Law Journal 238, Police v Butler [2003] NSWLC Ferguson v Walkley [2008] VSC 7; Coleman v Power (2004) 220 CLR 1.

Criminal Law Guidebook Second Edition Chapter 4: Public Order Offences

Criminal Law Guidebook Second Edition Chapter 4: Public Order Offences The following is a suggested solution to the problem on pages 95 96. It represents an answer of an above average standard. The ILAC approach to problem-solving as set out in the How to Answer Questions