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This page was last updated 23 August 2010. 6 General Criminal Offences and Powers of Police
This Chapter deals with offences and powers that operate at large, regardless of where in NSW (or on Commonwealth land) the activity is taking place. It should be noted that a raft of terrorism laws have been passed by both the Federal and NSW Governments in recent years. Although most protest actions will ostensibly fall outside their ambit, these laws are briefly dealt with here because of the wide definition of terrorism and the discretionary and subjective circumstances under which special powers can be invoked. In particular, for present purposes, a terrorist act is defined under both Commonwealth and NSW legislation to exclude advocacy, protest, dissent or industrial action, except where it is intended:
The (NSW) Terrorism (Police Powers) Act 2002 also allows the Commissioner of Police or a Deputy Commissioner of Police or, in urgent circumstances, a police officer above the rank of superintendent to grant an authorisation for the exercise of special powers to prevent or deal with a terrorist act.2 6.1 Police Responsibilities and PowersIn late 2006, police procedures for dealing with the public were watered down and made more flexible.3 In particular, the requirement to issue a warning was confined to a more limited set of circumstances, and provision was made for these responsibilities to be excluded completely in relation to certain powers.4 6.1.1 Supplying police officer’s detailsIn exercising a range of powers, police generally have an obligation to show you they are a police officer, including giving you their name and place of duty, and provide reasons for the exercise of the power.5 Relevantly, for the purposes of this Handbook, these powers are:
When asking you for identification or requesting you to submit to certain searches, the police must abide by the above obligations before exercising the power.7 Otherwise, they may do so as soon as it is reasonably practicable.8 6.1.2 WarningsFor a limited number of powers, the police generally need to give a warning that you are obliged to comply and that a failure to comply with a request may be an offence. This applies to:
The warning must be given as soon as reasonably practicable after the making of the request.10 6.2 Loitering or “Moving People On”The police have the general right to move people on in situations where there has been, for example, a breach of the peace.11 As noted immediately above, the exercise of this power carries certain responsibilities.12 Apart from this, dispersal powers are limited to the context-specific chapters following. 6.3 IdentificationPolice may ask you for your name and address, but in most cases you don't have to comply. Despite this general rule, there are a number of circumstances that may be relevant to campaigners where it is an offence to not identify yourself. Many of these are specific to where you are at the time (and consequently are dealt with in following chapters in the context of specific locations). Other circumstances, however, arise regardless of where you are. These circumstances carry wide differences in penalties for failing to comply and include where:
In exercising these powers, police or other officers generally have an obligation to provide reasons for the request, to warn you that a failure to comply is an offence,18 and also show you they are a police officer, including giving you their name and place of duty.19 6.4 Search and SeizurePolice may stop, search and detain you and items in your possession if they hold a reasonable suspicion that you:
More broadly, the police may stop, search and detain anyone in an area that is the target of an authorisation under the (NSW) Terrorism (Police Powers) Act 2002 - that is, they do not need to hold any reasonable suspicion.24 For the purpose of conducting a search pursuant to these powers, police must not detain you for longer than is reasonably necessary.25 In exercising these powers, police must show they are a police officer, give their name and place of duty, and provide reasons for the request.26 Warnings need only be given in limited circumstances regarding searches of the mouth and hair (introduced to target drug dealers) and for the exercise of certain powers in relation to terrorism.27 6.5 Hindering Police and Resisting ArrestIt is an offence in NSW to resist or hinder, or to incite someone else to assault, resist or hinder, a member of the police force in the execution of his or her duty, including the making of an arrest.28This offence is dealt with by a local court and carries a maximum penalty of 12 months gaol or a fine of $1100, or both.29 "Resist" means opposing by the threat or use of force.30 "Hinder" means making an arrest or other police action more difficult.31 It does not matter whether the resistance or hindrance actually prevents the performance of police duties or can be overcome.32 However, the resistance or hindrance must be intentional.33 Incitement means to rouse, stimulate, urge or spur on, stir up or animate;34 it is not necessarily restricted to starting or initiating.35 6.6 Assaulting PoliceRelated to the offence of hindering police and resisting arrest, it is an offence to assault, resist, or wilfully obstruct police and other officers in the execution of their duty.36 It is also an offence to assault any person, with intent to resist or prevent the lawful apprehension or detention of any person for any offence.37 This could include State Forest and National Parks officers. It is important to note that assault can be both physical and verbal.38 Therefore, threats of violence to police and other officers in the heat of the moment could have serious consequences. The maximum penalty for these offences is potentially severe, being five years gaol.39 6.7 TrespassTrespass is generally defined as an unlawful presence on land. Because of the need to be able to demonstrate that a person was on a particular property, the offence is principally dealt with under the Inclosed Lands Protection Act 1901 , which applies to private and public land and buildings (Chapter 7). However, the Summary Offences Act 1988 also contains a trespass-like offence. It prohibits abseiling, jumping or parachuting from any part of a building or other structure such as a bridge or a crane without reasonable excuse, when to do so would risk the safety of another person.40 Certain Acts may contain similar offences relating to particular infrastructure. For example, the Electricity Supply Act 1995 contains an offence of entering, climbing, or being on electricity works.41 There is also the offence of interfering with electricity supply works.42 There are similar provisions under the Gas Supply Act 1996 (NSW) for interfering with gas supply works.43 6.8 Damage to PropertyMost offences concerning property damage are of a general nature - that is, they apply to both State-owned and private land. Numerous other offences apply only to public land - such as war memorials - and these are dealt with under Chapter 8. 6.8.1 Graffiti and sign postingIt is an offence to intentionally damage or deface any property with any graffiti implement,44 or indeed, to have any graffiti implement in your possession with the intent to damage or deface property.45 Defacing walls with placards or other materials such as chalk is also illegal (providing that the material can be seen from a public place) without the consent of the property owner.46 If you are convicted of any offence under the Graffiti Control Act and the actions giving rise to your conviction caused property damage, then as well as a fine you can be held liable to pay the costs of restoration or repair up to $2200.47 6.8.2 Offences under the (NSW) Crimes Act 1900More serious damage may constitute an offence under the (NSW) Crimes Act 1900, with these offences usually able to be tried either as an indictable offence (District Court), or summarily (Local Court). The (NSW) Crimes Act 1900 contains numerous provisions relating to property damage, with property being defined broadly.48 It is an offence to intentionally or recklessly destroy or damage property,49 as well as to threaten to destroy property with an intention to cause another to fear the threat will be carried out.50 It is also an offence to possess an instrument with an intention that it should be used to destroy property51 or to destroy property belonging to a mine or hinder the working of equipment belonging to a mine.52 6.9 Other Serious Offences6.9.1 IntimidationIt is an offence to, among other things, wrongfully and without legal authority:
The offence has been commonly used against non-violent environmental campaigners. 6.9.2 Riot and affrayThe offence of riot is committed when 12 or more people use or threaten unlawful violence in a public or private place for a common purpose and their conduct is such that a person of reasonable firmness would be put in fear for his or her safety.54 Note that the 12 or more people at the scene need not use or threaten violence at the same time, and a person of reasonable firmness need not be present, in order for there to be a conviction.55 If there are less than 12 people present the offence of affray may be committed, provided that the conduct associated with affray is directed explicitly toward another person (unlike riot).56 Also, a threat of unlawful violence cannot be proved by showing a person used threatening words alone.57 Assaults committed in the course of a riot carry a maximum penalty of five year's gaol, or seven years if actual bodily harm is occasioned.58 Riot and affray are normally dealt with summarily but can be dealt with on indictment by request of the prosecutor or defendant. The Local Court can impose penalties of 2 years for these offences.59 Where the prosecution or defendant chooses to proceed by way of trial upon indictment for riot and affray, the maximum penalties increase to 15 years gaol for riot and 10 years for affray.60 6.9.3 Violent disorderThe NSW statutory offence of "violent disorder" is committed where three or more persons together use or threaten unlawful violence towards a person or property that would "cause a person of reasonable firmness present at the scene to fear for his or her personal safety".61 An offence may be committed even if no "person of reasonable firmness" is, or is likely to be, present at the scene.62 The statutory offence is similar to the common law offence of unlawful assembly, except that in the former the prosecution must show that violence was actually used or threatened.63 6.9.4 DisguisesIn some non-violent actions, people may consider concealing their identity, especially where police or other surveillance cameras are in use. Under the NSW Crimes Act it is an offence (punishable by imprisonment for up to seven years) where a person "has his face blackened or otherwise disguised, or has in his possession the means of blackening or otherwise disguising his face, with intent to commit a felony or misdemeanour".64 Of course, the prosecution will have to prove the intention to actually commit an offence of sufficient magnitude - the intent to commit a summary offence will not suffice. 6.9.5 Peep and pryCampaigners undertaking surveillance of a site may inadvertently risk being charged with the offence of peep and pry. It is an offence to be in, on or near a building with intent to peep or pry on another person without reasonable cause.65 6.10 Victim's compensation orders (Directions for compensation)Increasingly, the provisions of the (NSW) Victim's Support and Rehabilitation Act 1996 are being used to seek monetary compensation from offenders. This means if you are convicted of an offence, in addition to receiving a criminal conviction, you may be liable to pay considerable amounts in compensation. Compensation can be awarded in relation to the commission of any crime (for example, entering inclosed lands) and even if the damage suffered relates to property damage or some other type of economic loss. If you are convicted of an offence, the court may, after notice is given to you, direct that you pay compensation to any aggrieved person for any loss sustained through or by reason of the offence you committed.66 A direction for compensation may be given by a court on its own initiative or on an application made by or on behalf of the aggrieved person.67 In giving a direction for compensation, the court must have regard to:68
If you are notified that a compensation order is being sought against you, you should immediately seek legal advice. However, generally speaking, it is important to note:
Case-study: Leathart and ors v Director of Public Prosecutions
In June 2009, four climate change protestors from Rising Tide were jointly imposed with a $5,000 victim's compensation order under s 77B of the (NSW) Victims Support and Rehabilitation Act 1996 . The protestors were campaigning against cheap electricity and CPRS concessions being provided to heavy polluters like Aluminium smelters. The protestors had attached themselves to railings on the premises of the Tomago Aluminium Smelter - blocking the passage of trucks. They were charged and convicted with entering inclosed lands and resisting or hindering police. In addition, they were ordered to pay compensation in the sum of $5,000 to Tomago Aluminium Company Pty Limited (substantially owned by Rio Tinto Alcan) for alleged over time paid to workers as a result of the disruption to the company's operations caused by the protest. The protestors appealed the compensation order in the District Court with the assistance of the EDO . In the appeal, the protestors argued: there was no reliable evidence supporting the alleged loss; there was no link between the enter inclosed land offence and the alleged loss; and, proper regard ought to be had to the matters set out in s 77D of the (NSW) Victims Support and Rehabilitation Act 1996 . On 19 November 2009, Justice Blanch of the District Court quashed the compensation order and held that the order should not have been made by the magistrate in the first instance because there was no reliable evidence of the alleged loss suffered by Tomago Aluminium Company.
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