CRIMINAL P ROCEDURE NOTES

Transcription

1 LAWS1014/5003 CRIMINAL P ROCEDURE NOTES Introduction to Criminal Procedure 2 Why is Procedure Important 2 Social Justice: Outcome & Procedure (T Tyler) 2 Distributive Justice 2 Procedural Justice 2 Value Deferment 2 Participation 2 Neutrality 2 Trustworthiness of Authority 3 Treatment with Dignity and Respect 3 Procedural Justice Limitations 3 Underlying Principles of the Criminal Process 3 X7 v Australian Crime Commission [2013] 3 Key Pre-Trial Rights 3 Em [2007] 4 Criminal Trials 4 Indictable Offence 4 Committal Proceedings 4 s 64 Criminal Procedure Act (NSW) 4 Criminal Pleadings 5 Article 14(3) ICCPR 5 s 16(1) Criminal Procedure Act (NSW) 5 Prosecutors Pleadings 5 Accused Pleadings 5 s 22 Crimes Sentencing Act (NSW) 5 Criminal Responsibility and Burden of Proof 6 Woolmington v DPP [1935] 6 The Golden Thread in Practice 6 s 29 DMTA (NSW) 6 s 527C Crimes Act (NSW) 6 Persuasive and Evidential Burden 6 Discretion and Diversion 6 Two Tiers of Justice (McBarnet) 6 Process as Punishment 7 Invisibility of Pre-Trial Process 7 Technocratic Efficiency 7 The Steps of Discretion 7 Regulating Discretion 7 Young Offenders Act 1997 (NSW) 8 Court Hierarchy 8 Local Court 8 s 9 Local Court Act (NSW) 8 s 6 Criminal Procedure Act (NSW) 9 s 7 Criminal Procedure Act (NSW) 9 Supreme and District Courts 9 s 23 Supreme Court Act (NSW) 9 s 9 District Court Act (NSW) 9 s 46 Criminal Procedure Act (NSW) 9 s 260 Criminal Procedure Act (NSW) 9 Table 1 9 Table 2 9 Offensive Language 9 s 4 Summary Offences Act (NSW 9 Penalty Notices 10 s 333 Criminal procedure Act (NSW) 10 s 334 Criminal procedure Act (NSW) 10 s 334 Criminal procedure Act (NSW) 10 s 106 Criminal Procedure Regulations (NSW) 10 Schedule 3 10 Police v Butler [2003] 10 Pfieffer (1996) 10 Policing, Powers and Discretion 11 Constructing the Suspect Population 11 Racial Profiling 11 Case Example: Flemington/Kensington 11 Arrest 12 s 99 LEPRA Amendment Act (NSW) 12 Arrest as Last or First Resort 12 Lake v Dobson (1981) 13 Royal Commission Aboriginal Deaths in Custody 13 DPP v Carr (2002) 13 Reactive to Proactive Policing 14 Voluntarily Assisting Police 14 S and J (1983) 14 Arrest for Questioning 15 s 109(d) LEPRA Amendment Act (NSW) 15 s 110(1) LEPRA Amendment Act (NSW) 15 Police Interrogation/Verballing 15 Regulating the Police 15 Video-taping 15 Admissibility of Confessions 16 Evidence Act (NSW): Protections 16 s 281 Criminal Procedure Act (NSW) 16 Reid [1999] 17 Right to Silence 17 s 122 LEPRA (NSW) 17 s 89A Evidence Act (NSW) 17 Police Search Powers 18 LEPRA (NSW): Search Powers 18 s 21 LEPRA (NSW) 18 LEPRA: 3 types of searches 19 Other Police Powers 19 Requesting Identity 19

2 s 11 LEPRA (NSW) 19 s 12 LEPRA (NSW) 19 Arrest Without a Warrant 19 s 99 LEPRA (NSW) 19 Bail and Appeals 20 History of NSW Bail 20 Bail and Appeals 20 s 7 Bail Act 20 M v R [2015] 20 DPP v Orrock [2012] 21 Old v New Legislation 21 Bail Application: Process 22 Show Cause Requirement 22 s 16A Bail Act 22 s 16B Bail Act 22 Unacceptable Risk 23 s 18 Bail Act 23 s 19 Bail Act 23 Rules of Evidence for Bail 23 s 31 Bail Act 23 s 32 Bail Act 24 s 21 Bail Act 24 Bail Conditions 24 s 20A Bail Act 24 s 23 Bail Act 24 s 25 Bail Act 24 Other Provisions 24 Appeals 24 Local to District 24 District/Supreme to CCA 24 Appeal to High Court 25 Deciding to Prosecute 25 Likiardopoulos [ Pearce (1988) 25 Court ordered Stays 25 Maxwell [1996] 25 Rules of Prosecution 26 s 15A DPP Act 1986 (NSW) 26 r NSW Bar Association Rules 26 s 142 CPA (NSW) 26 s 144 CPA (NSW) 26 Rules of Defence 26 s 141 CPA (NSW) 26 s 143 CPA (NSW) 26 s 146A CPA (NSW) 26 s 147 CPA (NSW) 26 s 150 CPA (NSW) 27 s 151 CPA (NSW) 27 Charge Negotiation 27 s153 CPA (NSW) 27 DPP Guidelines 27 DPP Guidelines 27 Sentencing 29 Just Deserts 29 Restorative Justice 30 Confining Judicial Discretion 30 Legislative Attempts 30 s 21A CSPA Way [ Plea of Guilty 31 s 22 CSPA Act Assisting Authorities 31 s 23 CSPA Act Guideline Judgments 32 ss 37, 37A, 37B CSPA Act Jurisic (1998) 32 Other Guidelines Since Jurisic 32 Henry [1999] 32 Muldrock: Intuitive Sythesis 32 Muldrock [2011] 32 Purposes of Sentencing 33 s 3A CSPA Act Veen (No 2) (1988) 33 Sentencing Principles 33 Proportionality 33 Parsimony 34 Totality 34 Consistency 34 Individualised justice 35 Imprisonment as Last Resort 35 Intuitive v two-tier 35 Sentencing Aboriginals: Fernando 36 Fernando (1992) 36 Post-Fernando 37 Bugmy [2013] 37 Sentencing Options 37 Process 37 MERIT and CREDIT 37 Section 10: Dismissal 37 Section 9: Good Behavior 38 Non-Association Orders 38

3 Deferred Sentence 38 Drug Court 38 Suspended Sentence 39 Fine 39 Probation 39 Community Service 39 Intensive Correction Order 40 Home Detention 40 Restitution 40 Imprisonment 40 Key Sentencing Provisions 41 s 3A CSPA Act s 4 CSPA Act s 5 CSPA Act s 21 CSPA Act s 21A CSPA s 22 CSPA Act s 28 CSPA Act ss 37, 37A, 37B CSPA Act s 44 CSPA Act R v Loveridge [2013] 43 R v Loveridge [2014] 45 R v James Dean-Wilcocks [2012] 46 Muldrock v The Queen [2011] 47 Bugmy v The Queens [2013] 48 The Queen v Pham [2015] 48 Other Material 49

4 Introduction to Criminal Procedure Why is Procedure Important Social Justice: Outcome & Procedure (T Tyler) People are more willing to accept decisions when they feel that those decisions are made through a decision-making process they view as fair. Fairness is often evaluated through things such as whether there are opportunities to participate; whether the authorities are neutral; the degree to which people trust the motives of the authorities; whether they are treated with dignity and respect. Distributive Justice Equity theory argues that fairness means peoples rewards should be proportional to contributions. The problem with this is that people tend to exaggerate the importance or value of their contributions. Thus, it is difficult to provide people with the level of rewards they regard as fair, relative to their subjective sense of worth. Procedural Justice The key factor in such a scenario is the deferment to authority. Unless there is a trusted authority, people are less likely to defer to such an authority. People make such judgements based upon how fair they perceive the decision-making process. Further, it has been found that when authority acts fairly to someone in a first encounter, that person is more likely to effectively defer to it in future. Value Deferment If people have internal values that lead them to voluntarily defer to authority and to act in prosocial ways, authorities need not seek to compel such behaviour through promise of reward/punishment. Having fair decision-making processes however is essential to the development and maintainence or such supportive internal values. Participation People feel more fairly treated if they are allowed to participate in the resolution of their problems or conflicts by presenting their suggestions about what should be done. Research suggests that procedural justice is a more useful mechanism for resolving social conflicts than distributive justice. Procedural justice is based upon the notion that people will be willing to accept outcomes because those outcomes were fairly decided upon. One way that groups can gain desired cooperative behaviours is through shaping the costs and benefits associated with cooperation. People can be made to accept decisions by threats of punishment or incentives for cooperation. People tend to voluntarily cooperate with groups when they judge the decision as being made fairly. Obviously this is strengthened when people feel that what they are saying is actually going to have an impact on the outcome, however even in situations where someone feels that what they have to say wont shape the outcome they feel that having the opportunity to participate makes the process fairer. Victims value the opportunity to speak at a sentencing hearing whether it influences or not. Neutrality People are influences by judgements about the honesty, impartiality, and objectivity of authorities. They believe that authorities should not allow their 2

5 personal values and biases to enter into their decisions - people seek a level playing ground. Trustworthiness of Authority It is argued however, that despite procedural differences the very existence of procedural practices is something that can be common across cultures, and thus help to build a relationship. People generally recognise that third-party adjudicators have considerable discretion to implement formal procedures in varying ways. They look to the decision maker and judge whether they are benevolent or caring along with other elements to shape an assessment as to their trustworthiness. A key factor for an authority to demonstrate trustworthiness is through justification. They need to make clear that they have listened to and considered the arguments made The next issue to face is social categorisation. This is where people of certain social or cultural groups a less concerned about justice when they are dealing with people outside of their own group. Another issue is identification. It s shown that people care more about justice when they identify with the group and the authorities. All of these issues point towards a need to build a consensus society that fosters identification. Treatment with Dignity and Respect More than any other issue, treatment with dignity and respect is something that authorities can give to everyone with whom they deal. People value having respect shown for their rights and their status within society. Procedural Justice Limitations A key limitation is the notion of social consensus. The potential of cultural background disrupting the viability of procedural strategies. Someone s cultural background might change the degree to which people care about procedural justice or it might change the criteria by which people define the fairness of procedures (why limit this to cultural background, no doubt social and personal background have just as much of an impact). Underlying Principles of the Criminal Process X7 v Australian Crime Commission [2013] Presumption of innocence: The process for the investigation, prosecution and trial of an indictable Commonwealth offence is accusatorial in the sense that an accused person is not called on to make any answer to an allegation of wrong-doing, or to any charge that is laid, until the prosecuting authorities have made available to the accused particulars of evidence on which it relies. Even after that information has been provided, the accused need only plead guilty or not guilty. If they do the latter, they are entitled to go to trial and put the prosecution to task to prove the charge and test the strength of the evidence. Key Pre-Trial Rights 1. Presumption of innocence Until a charge has been proven and person convicted the presumption is to be that they are innocent; 3

6 2. Right to privacy No one can just march into a suspect s house to search for evidence; 3. Right to silence No one can demand a suspect explain his or her whereabouts, motivations or feelings; 4. Right to liberty No one can detain or lock up a suspect because that is more convenient than allowing them to remain at large. These are not absolute rights, but they provide longstanding protections that go back centuries. Em [2007] Indictable Offence These are the most serious type of offences as defined by s 3 of the CPA. Unless there is a reverse burden of proof, prosecution must prove physical and legal elements beyond reasonable doubt. Indictable offences commence with an indictment that is filed in a higher court, charging the accused with an offence triable before a jury. Pleading guilty avoids the full court process, other than a sentencing hearing. It may be possible to opt to have the mater determined in a lower court, or even without a jury for a judge alone trial. Subterfuge, ruses and tricks may be lawfully employed by police, acting in the public interest. There is nothing improper in these tactics where they are lawfully deployed in an endeavour to investigate crime so as to bring the guilty to justice It is whether the trick may be through to involve such an unfairness to the accused that a court should exercise its discretion to exclude that evidence, notwithstanding its probative value. Criminal Trials In Australian trials, parties determine the witnesses they call, the evidence that is before the court, the questions to be asked of witnesses and the issues to be contested. This is a process where parties dominate the trial process, with judges deferring to the parties on the substance of the contest. Judges ensure that rules of process ad evidence are adhered to, and can seek clarification of a witness s testimony through questions, but they cannot raise new issues or cross-examine a witness. Committal Proceedings The process for finalising a contested charge for an indictable offence. The charge must be taken through a court-based screening determination. In NSW these are initiated by a Court Attendance Notice (CAN). The magistrate will then establish whether the prosecution has a sufficient case. s 64 Criminal Procedure Act (NSW) Standard for committing To Trial The standard for committing to trial is whether there is a reasonable prospect that a reasonable jury, properly instructed, would convict the accused person of an indictable offence. Committal proceeding doesn t call witnesses, the defence in testing the prosecution is excepted. The DPP goes through similar internal process. 4

7 Criminal Pleadings Article 14(3) ICCPR Person Charged to be Informed In determination of any criminal charge against him, everyone shall be entitled to the following guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him. Modern procedural law allows for certain defects in pleadings to be waived, and subject to limitations, amendments are permitted at almost anytime before a verdict, for example: s 16(1) Criminal Procedure Act (NSW) An indictment is not bad, insufficient, void, erroneous or defective on any of the following grounds: (g) Except where time is an essential ingredient, for omitting to state the time at which an offence was committed, for stating the time wrongly or for stating the time imperfectly. fail but so will the prosecution. Recharging following notice of the defect may be possible, but not always. Pleadings must meet certain requirements, namely they must be sufficient, thus meeting the defined factual elements of the offence such as the time, place and manner in which the alleged offence took place. They must also have clarity, a legal principle that works against failures of duplicity and the need for certainty. For example each charge must be relatable only to a single offence. Accused Pleadings Rarely more than a couple of words, i.e. guilty or not-guilty. A 2014 study found that 83% of pleadings in the NSW District Court were guilty pleas. s 22 Crimes Sentencing Act (NSW) Plea Negotiations Negotiations between defendant and prosecution over guilty pleas operate in return for a reduction in sentence. Prosecutors Pleadings These are vital because they define the court s jurisdiction, setting jurisdictional limits to hear and determine as case based on the issues, by determining the legal and factual elements that the defence is on notice to meet Goldsmith v Sandilands [2002]; John Holland v Industrial [2010] Prosecutorial pleadings are vital and thus have strict base-line and technical requirements. If they are not met and as a result a pleading defect strikes at the heart of its validity, not only will the pleading It has been shown that people will sometimes plead guilty to charges even when they are innocent, for reasons such as embarrassment, cost, work etc. A defendant who pleads guilty but then wishes to change to not-guilty must demonstrate that their initial plea lacked integrity. Such examples are: Lack of appreciation for the nature of the charge - Ferrer-Esis (1991) Plea was not free and voluntary Chiron [1980] Not attributable to genuine conscious guilt Murphy [1965] Mistake or other circumstance Sagiv (1986) 5

8 Criminal Responsibility and Burden of Proof One must not only be concerned about what has to be proved by way of mens rea, but also with who has to prove it. For example, a mens rea requirement in the definition of a criminal offence will prove to be an illusory advantage to the accused if the burden of proving it is not placed on the prosecution. Woolmington v DPP [1935] Juries are always told that, if conviction there is to be, the prosecution must prove the case beyond reasonable doubt. Throughout criminal law one golden thread is always to be seen that there is the duty of the prosecution to prove the prisoner s guilt. The Golden Thread in Practice The golden thread is only relevant so far as the offence definitions specify particular elements. For example, one way of relieving the burden on the prosecution of proving the accused s state of mind at the time of the actus reus is to make liability turn on the state of mind of the hypothetical reasonable person or to make liability absolute. Increasingly, the concept of the golden thread has been worn away by statutory incursions which involve reversing the persuasive burden of proof so that it lies on the defence to prove an excuse on the balance of probabilities. A common example of this is in drugs legislations where deeming provisions state that a person is presumed to be supplying if they hold more than a certain quantity of drugs it is then up to the defendant to rebut the presumption. s 29 DMTA (NSW) Deemed Supply A person who has in his or her possession an amount of a prohibited drug which is not less than the traffickable quantity of the prohibited drug shall, for the purposes of this Division, be deemed to have the prohibited drug in his or her possession for supply, unless: (a) the person proves that he or she had the prohibited drug in his or her possession otherwise than for supply s 527C Crimes Act (NSW) Deemed Theft It is an offence to be in custody of goods that are reasonably suspected of being stolen. Persuasive and Evidential Burden Persuasive burden is duty of a party to persuade the trier of fact by the end of the case of the truth of certain propositions. As per Woolmington this burden falls upon the prosecution and must be proved beyond reasonable doubt. Evidential burden refers to party s duty of producing sufficient evidence to call upon for other party to answer. When used against accused, it means that the matter is to be taken as proved unless there is sufficient evidence to contrary. Discretion and Diversion Two Tiers of Justice (McBarnet) This term is used to highlight the differences between summary justice administered by magistrates and higher court justice administered by judges. 6

9 McBarnet argues that one tier, the higher courts, are for pubic consumption, the arena where ideology of justice is put on display. The other tier, the lower courts, are deliberately structured in defiance of ideology of justice, concerned less with ideological messages, more with direct control. Process as Punishment For many arrest, detention, denial of bail, pre-trial custody is a form of punishment akin to punishment that is handed out later down the track. The idea that the whole process is punishing. Particularly in relation to summary matters where a fine is likely, these pre-determination processes no doubt are seen as the higher form of punishment. Invisibility of Pre-Trial Process There is an extensive amount of discretion involved in the police s pre-trial processes which are largely beneath the threshold of judicial supervision. Police evidence gathering does not merely involve the finding of evidence. but can have a constitutive role in constructing a case. This can be seen in conscious efforts by the police to construct a case in support of the prosecution. Technocratic Efficiency Considering cost, waste, efficiency, management, technology and economic reform drive certain changes in the criminal system. Trials and running cases are expensive processes, and as society increases the number of criminal offences that are prosecutable backlogs are likely. This has seen a drive to increase things such as on the spot fines and instant determinations. Further to this you see a large number of matter heard summarily, which has seen t he lower courts adopt a churning process that at best is chaotic. The Steps of Discretion Once an event occurs decisions are made by a large number of players such as the public, participants, and witnesses as to whether something constitutes a crime and thus whether to report it to police. The police then decide whether and how to respond, investigating a number of discretionary powers of investigation. This may lead to the issuing of informal caution, a formal caution, interrogation, arrest and prosecution, election of charge, mode of trial all determining how the case will proceed through the system. It might then move on to the DPP who will exercise a number of discretions concerning whether to proceed to trial, what charges to lay, calling of evidence and the conduct of the prosecution. Next there are decision of judicial officer, magistrates, judges on how to conduct the hearing and how to operate sentencing. Regulating Discretion Discretion is generally seen as inevitable and highly desirable. However, there is a need to ensure that discretion is exercised in an open and fair manner, and wherever possible, according to published or publicly accessible principle and guidelines. 7

10 Young Offenders Act 1997 (NSW) Introduced a diversionary scheme in relation to young offender involving warnings, cautions and youth justice conferences. Reporting of the Act saw that led to substantial increases in warnings and cautions, and a corresponding decline in court proceedings. It has also found that the Act has been successful in reducing re-offending rates. Court Hierarchy The basic structure of the criminal courts is between the lower criminal courts (Local Court, Children Court and Coroners Court) and the higher criminal courts (District Court, Supreme Court). In % of cases where heard in the lower courts, 5% in the Children s Courts and 3% in the higher courts. Local Court s 6 Criminal Procedure Act (NSW) Offences to be Dealt with Summarily (1) The following offences must be dealt with summarily: (c) an offence for which the maximum penalty that may be imposed is not, and does not include, imprisonment for more than 2 years. s 7 Criminal Procedure Act (NSW) Summary Offences to be Dealt with Local Court (1) An offence that is permitted or required to be dealt with summarily is to be dealt with by the Local Court. Supreme and District Courts The Supreme Court exercises and original jurisdiction and appellate jurisdiction (Court of Criminal Appeal Criminal Appeal Act 1912). The District Court was created under the District Court Act The general jurisdiction of the Local Court is outlined in the Local Court Act 2007 and the Criminal Procedure Act The substantive criminal offences dealt with in the local court come from the Crimes Act 1900 and the Summary Offences Act Legislation has been passed to allow for indictable matters to be sent down the summary courts for determination Criminal Procedure Amendment (Indictable Offences) Act s 9 Local Court Act (NSW) Local Court Jurisdiction Outlines the jurisdiction vested in the local courts of New South Wales. The Supreme and District Courts have broadly concurrent jurisdictions, with most serious indictable offences heard in the District Court. In both courts an accused may elect for a judge alone trial Criminal Procedure Act ss 132/132A. s 23 Supreme Court Act (NSW) Supreme Court Jurisdiction The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales. s 9 District Court Act (NSW) District Court Jurisdiction 8

11 (2) The Court shall have a criminal jurisdiction, consisting of s 46 Criminal Procedure Act (NSW) Jurisdiction of Supreme v District (1) The Supreme Court has jurisdiction in respect of all indictable offences. (2) The District Court has jurisdiction in respect of all indictable offences, other than such offences as may be prescribed by the regulations for the purposes of this section. s 260 Criminal Procedure Act (NSW) Offences to be dealt with summarily unless election made to proceed on indictment (1) An indictable offence listed in Table 1 to Schedule 1 is to be dealt with summarily by the Local Court unless the prosecutor or the person charged with the offence elects in accordance with this Chapter to have the offence dealt with on indictment. (2) An indictable offence listed in Table 2 to Schedule 1 is to be dealt with summarily by the Local Court unless the prosecutor elects in accordance with this Chapter to have the offence dealt with on indictment. ss 267 and 268 provide maximum penalties. Table 1 Indictable offences dealt with summarily unless prosecutor or charged elects An offence under section 61E, 66C (1) (as in force before the commencement of Schedule 1 [9] to the Crimes Amendment (Sexual Offences) Act 2003 ), 66C (3) (as in force after the commencement of Schedule 1 [9] to the Crimes Amendment (Sexual Offences) Act 2003 ), 66D, 71, 72, 76, 76A or 81 of the Crimes Act 1900 where the person against whom the offence was committed was at the time of the commission of the offence of or above the age of 14 years. An offence under section 31, 31C, 33B (1), 35, 35A (1), 37 (1), 39, 41, 41A, 43, 43A, 44, 49, 51A, 52A (other than an offence by which death was occasioned), 52B (other than an offence by which death was occasioned), 53, 54, 55, 57, 60 (2) or (2A), 60A (2), 60E (2), 61M, 61O (2) or (2A), 66EB, 78Q, 80, 81A, 81B, 81C, 82, 83, 84, 85 (where the person charged is the mother of the child and is not charged with any other person), 90, 91, 91A, 91B, 91H, 91J (3), 91K (3), 91L (3), 92 or 93 of the Crimes Act Many More (see legislation at end) Table 2 Indictable offences dealt with summarily unless prosecutor elects An offence under section 35A (2), 49A, 51B, 56, 58, 59, 59A, 60 (1) or (1A), 60A (1), 60B, 60C, 60E (1) and (4), 61, 61L, 61N or 61O (1) or (1A) of the Crimes Act Many More (see legislation at end) Offensive Language s 4 Summary Offences Act (NSW) 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. Maximum penalty: 6 penalty units or imprisonment for 3 months. (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 9

12 excuse for conducting himself or herself in the manner alleged in the information for the offence. s 333 Criminal procedure Act (NSW) Police may issue penalty notices for certain offences A police officer may serve a penalty notice on a person if it appears to the officer that the person has committed a penalty notice offence. s 334 Criminal Procedure Act (NSW) Penalty notices (1) A penalty notice is a notice to the effect that, if the person served does not wish to have the matter determined by a court, the person can pay, within the time and to the person specified in the notice, the amount of the penalty prescribed by the regulations for the offence if dealt with under this Part. (2) For the purposes of section 337 of the Act, the prescribed penalty for any such offence is the amount specified in Column 2 of Schedule 3 opposite the offence. Schedule 3 Column 1 Column 2 Amount of Offence penalty Crimes Act 1900 section 117, if value of property $300 or amount does not exceed $300 section 527C (1) $350 Summary Offences Act 1988 section 4 (1) $500 section 4A (1) $500 section 6 $200 section 6A $250 section 9 $1,100 Police v Butler [2003] s 334 Criminal procedure Act (NSW) Penalty notice offences (1) The regulations may prescribe an offence under any Act or statutory rule made under an Act as a penalty notice offence for the purposes of penalty notices served by police officers under this Part. (2) Any such regulation may specify the offence or refer to the provision creating the offence. An indigenous woman made extensive use of the word fuck when talking to police. It was held that swear words of that nature are 'rude and improper but not offensive within the meaning of the section, because they are pretty much a part of everyday society (can be heard everywhere on the streets, on tv, even in court etc). They have 'lost their punch'. s 106 Criminal Procedure Regulations (NSW) Penalty notice offences (1) For the purposes of section 336 of the Act, each offence created by a provision specified in Column 1 of Schedule 3 is prescribed as a penalty notice offence. Pfieffer (1996) Defendant wore a shirt saying 'too drunk to fuck'. He was charged for offensive language. He argued that he did not intend to offend anyone - it was the name of a song of a popular band which he liked (the shirt also had the name of the band). 10

13 It was held that the mens rea standard is one of strict liability. Parliament intended to also punish those who act unreasonably, in the sense of having no reasonable grounds to believe that their conduct will not give offence. The absence of a mens rea requirement will compel people to take greater care when using offensive language. Racial Profiling There is often an explicit racial dimension to notions of suspect populations, recently typified in NSW by the formation of the Middle Eastern Serious Crime squad and the attribution of certain types of criminal behaviours to ethnic minorities. Policing, Powers and Discretion Constructing the Suspect Population What makes someone a suspect? Most would simply answer this by saying anyone who breaks the law or excites police suspicion that they have done so. Racial profiling is the adverse use of police discretionary decision-making based on assumptions concerning the racial characteristics of individuals. It involves police making decisions to initiate contact with individuals on the basis of their race or ethnicity. The suspect population is constructed on the basis of complex interaction of rules and principles. They are police rather than legal rules and principles. They are not illegal, but simply arise from the discretion which police enjoy. Police do not have to stop and search an individual on the street, but they may do so; they do not have to arrest individuals, but they may do; they do not have to detain and process individuals, but they may do so. The law in general, and the requirement that stopsearch and arrest be based on reasonable suspicion in particular does not constrain the police from taking most of the actions which they consider desirable. The law is sufficiently vague and flexible allowing police very extensive discretion. The police use the law as a control device. The aims of stops and arrests are often not to enforce the aw per se, but to secure broader objectives: the imposition of order, the assertion of authority, the acquisition of information. Case Example: Flemington/Kensington A number of complaints of police harassment were raised by youths of African descent in the Flemington/Kensington areas of Melbourne including incidents of assaults, beatings of handcuffed or restrained people, unlawful imprisonments, torture and brutality, excessive use of force, threats of violence, unjustified use of capsicum spray, strip searches, thefts and racial and sexist comments. From the Legal Centre documents these occurrences. The Victorian Police were unable to provide any data to justify the assertion that African youths in the area had engaged in disproportionate levels of criminal activity. A subsequent case followed this, which was settled by the Victorian Police when they agreed to start an enquiry into the issues. The local Legal Centre also issued a report which found: - Young men of African descent were more likely to be stopped by the police on the 11

14 street compared to Anglo men 51.4% to 34.2% - They were more likely to experience heavy handed treatment by the police 23% %. Arrest A defendant comes before a criminal court in one of three ways: by arrest without a warrant; by arrest under warrant; and in response to a summons or a court attendance notice. The statutory powers of arrest are set out in s 8 of LEPRA. The power to arrest without a warrant was repealed, and then re-enacted it in s 99 the LEPRA Amendment Act. The new provision significantly expanded the lawful authority of the police to arrest in a number ways. s 99 LEPRA Amendment Act (NSW) Power of police officers to arrest without a warrant. (1) Can arrest with no warrant if: (a) suspects on reasonable grounds person is committing or has committed offence, and (Test 1: Suspects on Reasonable Grounds) (b) satisfied arrest is reasonably necessary for any one or more of the following reasons: (Test 2: Arrest is reasonably Necessary) (i) stop person committing or repeating offence or committing another offence (ii) stop person fleeing police, location of offence (iii) enable inquiries to establish person s identity if it cannot be readily established or if police officer suspects on reasonable grounds that identity information provided is false, (iv) ensure person appears before a court in relation to offence, (v) (vi) (vii) to obtain property in the possession of the person that is connected with the offence, to preserve evidence of the offence or prevent the fabrication of evidence, to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence, (viii) to protect the safety or welfare of any person (including the person arrested), (ix) because of the nature and seriousness of the offence. (2) A police officer may also arrest a person without a warrant if directed to do so by another police officer. The other police officer is not to give such a direction unless the other officer may lawfully arrest the person without a warrant. (3) A police officer who arrests a person under this section must, as soon as is reasonably practicable, take the person before an authorised officer to be dealt with according to law. Note : The police officer may discontinue the arrest at any time and without taking the arrested person before an authorised officer-see section 105. (4) A person who has been lawfully arrested under this section may be detained by any police officer under Part 9 for the purpose of investigating whether the person committed the offence for which the person has been arrested and for any other purpose authorised by that Part. s 99 Test 1. Does officer suspect on reasonable grounds that person is committing or has committed offence? 2. Is the arrest reasonably necessary for one of the nine listed purposes of arrest? Arrest as Last or First Resort When s 99 was first inserted into LEPRA in 2002 the power reflected the common law position that 12