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Law Enforcement (Powers and Responsibilities) Act 2002 No 103 Part 2 Powers of entry Note. Safeguards containing requirements relating to the exercise of powers under this Part are set out in Part 15.

10 Power to enter to arrest or detain someone or execute warrant (1) A police officer may enter and stay for a reasonable time on premises to arrest a person, or detain a person under an Act, or arrest a person named in a warrant. (2) However, the police officer may enter a dwelling to arrest or detain a person only if the police officer believes on reasonable grounds that the person to be arrested or detained is in the dwelling. (3) A police officer who enters premises under this section may search the premises for the person. (4) This section does not authorise a police officer to enter premises to detain a person under an Act if the police officer has not complied with any requirements imposed on the police officer under that Act for entry to premises for that purpose. (5) In this section: arrest of a person named in a warrant includes apprehend, take into custody, detain, and remove to another place for examination or treatment.

Outlines of hypothetical problem questions: Exercise 2: Discus whether this was a lawful and proper exercise of police powers  Consider whether the move-on power was appropriate in the first place C  S 198: Move-on powers - Make out either A or B, not required to show both o Based on observations of behaviour (Likely to cause injury to persons, property, etc.) - discretionary powers given to police  Disorder - broadly constructed - bring in discussion o Subsection 4: Has to be in a public area with people around in the vicinity but no one needs to be around the immediate scene  S 206 o But-for the move-on power, would s 206(3) be established A  Move-on power o S 198 - not made out o S 197 - not made out, reasonableness??  Association o Power appears to be used against A because he was in the company of intoxicated individuals o Implications of public space, drinking in public vs being intoxicated - blurring of powers B

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Purpose of creating an alcohol-free zone o Protecting the safety of the public by preventing disorderly behaviour through drinking o Is disorderly behaviour a public safety issue? - Not really… S 198 - being disorderly but not an offence, move-on power is applicable o In contrast, if concept of disorderly is being stretched to include talking loudly, implications of police powers & discretion o Police don't have powers to issue fines because public drinking is no longer an offence even in an alcohol-free zone S 9 offence of breaching move-on powers and for drinking in public

Where there are overlaps, go through the substantive offence once and spend more time applying it the next time. Charges: A - S 195 Crimes Act, S 4 Graffiti Control Act, p582  Choice between either or  Large number of charges are made in relation to the crimes act  Argue which charge would be better

In the exam, identify who did what and identify issues: Bob - 17 years old  Consorting s 93X o Warning from principle would not be sufficient  Supply o Whether Bob's request amounted to causing/inciting supply s 27  S 12 Self-administration  S 4 Graffiti control Act o Subsection 4(2) aggravated offence - max penalty 12 months, (3) definition  Use of marker pen  S 5 Graffiti Control Act o Offence to possess a marker pen (graffiti implements  S 4 SOA - Offensive conduct  S 4A SOA - Offensive language  S 195 Crimes Act - serious offence of property damage - max 5 years o Start with s 195 then the alternative s 4(2) then the alternative s 4(4)  Same AR - double jeopardy - can only be convicted of one offence Anton - 13 years of age  Consorting s 93X o No knowledge  S 10 (340g) Possession  Doli incapax  S 12 Self-administration Chris 

S 10 (350g of cannabis) Possession o S 29 Deemed supply  S 29 is not an offence and hence not chargeable

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It transform the summary offence of s 10 into the indictable offence of s 25 S 25 Supply S 12 Self-administration S 11 Possession of equipment o

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Delphine  Knowingly taking part in a step in supply s 25 o Definition s 6  S 12 Self-administration Elise 

Cultivation of plants s 23 o S 23(1A) Higher penalties for "enhanced indoor means" p 1093 o Alternatively, s 23(1) Possession of prohibited plants

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Cultivation of plants s 23 o S 23(1A) Higher penalties for "enhanced indoor means" p 1093 o Alternatively, s 23(1) Possession of prohibited plants Supply s 25 o Quantity is irrelevant since there is actual supply o S 3 definition + common law definition

Issue: Possession Relevant authority: Always start with the legislation (Legislation trumps case law)  S 10 o Prosecution has to prove:  AR - Filippetti - Exclusive physical control  Dib - Issue of joint possession  Delon - Whether exclusive control extends to outside the house Application to facts: Identify who does what here  Anton - Dib - His backpack  Bob & Chris - Joint possession - Purchaser Conclusion: What would the prosecution and the defence argue? Relevant authority:  MR - HKT - Knowledge o Saad, Band, Khaal - Knowledge gets watered down Conclusion: Can the prosecution BARD that they were in possession of … Issue: Supply Relevant authority - S 25 - S3, S 29, S 6 Application:  Frankie - Actual supply  Delphine - Taking part in  Bob & Chris - Deemed supply S 11 equipment & S 12 Self-administration - Deal with in 1-2 sentences: No case law  It is an offence to possess a bong according to… Chris was in possession of a bong hence … Issue: Offensive conduct/language Relevant authority: Ss 4, 4ASOA

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Think of which case for AR o Voluntary - Ryan - Not an issue - deal with in 1 sentence o Proximity test - S 3 definition, Cans - what is public depends on circumstances  If there is no issue - clearly a public place  If there is an issue - Usage by public, trespassers  Stutsel v Reid - No one has to actually be in the public place, determined by whether the hypothetical reasonable person would be offended  Do o Offensive - "repugnant"  Ball v McIntyre - Test for offensiveness  Connelly v Wallace - confirms that it is an objective test  Police v Butler - Go through mini cases - Offensiveness depends on circumstances  Freeburn v Mc - Language was found to be offensive because it was said in front of 30 other people and children Conclusion Relevant authority: MR  Provision is silent on MR - Presumption that MR is required (Intention/recklessness) -HKT  Jeff v Graham - voluntary NSWSC  Ball v McIntyre - Calculated to wound - implies a mental state ACTCA  Pregelj v Wamarama NTSC - MR - Subjective intention  Pfifier Full Court SCSA - MR -Strict liability  Quiler v McNamara - Constructive  Answer for NSW: No conclusion so can argue and reason as to which case should apply Conclusion: Defence for reasonable excuse: Not necessarily to tell a mother to "fuck off" in front of her children  Case law Police powers - Spot the power, determine whether it has been used properly, lawfully  If police uses power improperly/unlawfully (if LEPRA is used improperly/unlawfully) - S 138 EA o Balancing act - look at the seriousness of the breach and how  Public policy - Don't want police to misuse powers o If police don't arrest as a last resort  Decision in Carr - not unlawful but improper  Need reasonable suspicion for search powers and arrest powers to be activated  Woman gives a description of Bob & Anton and Bob look similar o Gives police reasonable suspicion *Police powers - Safeguards, vehicle searching (skip issues related to those topics) When spotting offences - assume the police knows everything that happened before arrival When establishing reasonable suspicion on the part of the police - Assume they only know what they've been told Assume all facts are admissible, assume all the accused know they are doing something wrong Drugs   

S 4 definition of admixtures triggers s 10 possession Ss 3,6 triggers s 25 S 40 triggers s 25

Policy question: Just jump into the question & answer it - Possible to use MIRRAT - Don't be descriptive, be critical - Do a 1 page summary for each key concept  Criminalisation o Nominative theories  Public order offences o Social reaction - Bail o Law and order, commonsense - Bail o Penal populism - Bail o Aboriginality, colonialism - Police powers (objects of offences, subjects of police powers)  Process o Police & DPP discretion  Ubiquity of discretion  Mallard Case - invisibility of the pre-trial process o Process as punishment - Bail, detention, can be arrested and detained for offensive language  Components - Statutory interpretation  Police powers o Search o Arrest o Move-on o Evidence s 138 o Intoxication & move-on o S 9 SOA  Offences o Drugs o Public order - ss4,4A, riot, affray, unlawful violence o Criminal association...