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Q.1

(1a)

Under section 99 of LEPRA, police have the power to arrest individuals without the representation of
a warrant.1 Sergeant Elliot and Constable David’s arrest is considered to be identified as unlawful as
it does not satisfy the tests for lawful arrest. Firstly, R v Rondo 2, states the test of suspicion on
reasonable grounds s99(1)(a)3. Police officers need to suspect that the person is committing or has
committed an offence. In this situation, they don’t have the ability to arrest as the facts do not
display Shirley and Colleen committing an offence on any factual basis for suspicion as reasonable
suspicion under reasonable grounds involves the notion of, ‘less than a belief, but more than a
possibility’ of committing a crime. Secondly, R v McClean 4, underlines the second test of arrest being
reasonably necessary s99(1)(b)5. In-regard to this situation, to determine if the arrest is reasonably
necessary it must consist of the following: to stop a person from enacting or repeating a crime, stop
a person from fleeing and to ensure that the person is present and appears before court. According
to McClean 2008, the arrest must be reasonably necessary, however, the arrest was not reasonable
because the officers’ actions and excuses are not satisfied under section 99 (1)(b). Lastly, DPP v Carr 6,
emphasises the third test of arrest as a last resort, this situation did not call for the arrest as Shirley
and Colleen did not display any violent behaviour that could endanger the community. If both
reasonable grounds and reasonably necessary tests were met, the arrest was lawful, however, no
tests met the required conditions deeming it unlawful use of police powers triggering s138 7.

1
Law Enforcement (Powers and Responsibilities) Act 2002 s 99
2
R v Rondo [2001] NSWCCA 540

3
Law Enforcement (Powers and Responsibilities) Act 2002 s 99 (1)(a)
4
R v McClean [2008] NSWLC 11
5
Law Enforcement (Powers and Responsibilities) Act 2002 s 99 (1)(b)
6
DPP v Carr [2002] NSWSC 194
7
Evidence Act 1995 s.138
(1b)

Shirley/Offensive Conduct: The prosecution must prove the accused's guilt beyond reasonable doubt
and adult legal personhood8. Under s4, it’s considered an offense for anyone/individual to carry
themselves in an offensive matter9. The offensive act in this case was the defendant wearing a shirt
stating (T-shirts are charged under offensive conduct), ‘Black Deaths in Police Custody’. The
prosecution needs to identify three parts of actus reus to secure conviction: conduct/act, if the
conduct is offensive and if the conduct was within view or hearing from a public place or school.
They need to prove that the offensive conduct (integral circumstance) met the requirements of Ball
v Mclyntre10: Would the conduct hurt the feelings of a reasonable person? and Would it arise
feelings of anger, disgust and outrage? The next step for the prosecution is to determine the
proximity requirement (attendant circumstance) under s3 11,as a public space is defined to be a
premise that is open or used by public as the conduct was committed on a service road into the Long
Bay Correctional Complex blocking access to any service vehicles entering and exiting the gaol.
Lastly, due to s4 being silent on mens rea and offensiveness, the prosecution has to prove conduct
and circumstance using strict liability and He Kaw Tey analysis to define the nature of the offense or
conduct being offensive.12

Colleen/Offensive Language: The prosecution must prove the accused’s guilt beyond reasonable
doubt and legal personhood of an adult. Under subsection 4a, it’s considered to be an offence to
utilise offensive language in, near or within a public space 13. The offensive language in this case
refers to language containing the following words: “You must be fucking kidding me!”, and, “Oh,
fuck off, bigot”. Firstly, the prosecution needs to prove that offensive language offences are
committed in public spaces and others in, near or within a public space 14. Bilga Crescent, Matraville,
a service road is a part of Long Bay Correctional Complex premises under s3 15, as the section defines
a public place to be part of a premises that is open to public. Secondly, the prosecution needs to
prove the accused used offensive language and intended to would or arise feelings of anger and
resentment (objective test) in a reasonable person 16. It is difficult to conclude objective offensiveness
of language; however, prosecution can conclude that evidence is not necessary to declare someone
Is offended but it is sufficient enough that the behaviour occurred where members of the public
could be present, concluding that choice of language is offensive fulfilling actus reus elements. 17.
Then determine the accused through He Kaw Tey and Pregelj had the intention to offend someone
through the circumstance.

8
Shea, Peter, ‘M'Naghten Revisited-Back to the Future? (The Mental Illness Defence-A Psychiatric Perspective)’
(2001) 12(3) Current Issues in Criminal Justice 347
9
Summary Offences Act 1988 (NSW) s4
10
Ball v McIntyre (1966) 9 FLR 237
11
Summary Offences Act 1988 (NSW) s3
12
He Kaw Teh v. R, 157 C.L.R. 523 (1985).
13
Summary Offences Act 1988 (NSW) ss 4a
14
Strutsel v Reid (1990) 20 NSWLR 661
15
Summary Offences Act 1988 (NSW) s3
16
Ibid n11
17
Spence v Loguch, Unreported, NSW Supreme Court, 12 November 1991 (Sully J)
(1c)  

It is likely that Shirley will be convicted for offensive conduct because t-shirts are objects that are
charged under offensive conduct. Although, it is reasonable that protests are not offensive as a
reasonable person can judge that18, due to the offensive shirt depicting a white police officer and the
environment of a correctional centre, it is easy to determine evidence and intent of offensive
conduct as elements of s4 are met.

It is unlikely that Colleen will be convicted of offensive language although there is evidence that all
the elements under s4a were met for conviction. She has a reasonable excuse of provocation as she
responded to an outrageous provocation, evident in the scenario 19. Thus, the likelihood of conviction
is low as the prosecution will not be able to prove beyond reasonable doubt that this defence
doesn’t apply to Colleen’s case.

18
Connolly v Willis [1984] 1 NSWLR 373, 384 (Wood J).
19
Karpik v Zisis (1979) 5 Petty Sessions Review 2055, 2056.
 Q.2

(2a)

Act Circumstance Consequence

Actus Reus Disruptive Protest
(obstructing path of
pedestrian or driver)
Mens Rea Basic intent in causing
a disruptive protest
Knowledge or The passage of a
recklessness in pedestrian or driver
obstructing passage being obstructed
Obstructing path Hindering the passage
without knowledge of a pedestrian or
driver

Act Circumstance Consequence

Actus Reus Producing excessive Knowledge or Provoking a disruptive
noise recklessness in protest escorted by
generating excessive excessive noise
noise
Mens Rea Basic intent in Creating excessive Initiating a disruptive
creating excessive noise without protest with excessive
noise knowledge noise
In reference to He Kaw Tey, there are certain difficulties of statutory interpretation in the proposed
Summary Offences Act 1988 (NSW) s12 Disruptive protest offence. First and foremost, referring to
He Kaw Tey,, Sherras v De Rutzen states the fact that the presumption of mens rea (evil intention) is
essential in every offence (knowledge of violation), however, this presumption has the ability to be
displace the statute into different meanings when dealing with subject matters 20. HCA Gibbs CJ (He
Kaw Tey (1985)), highlights the fact that the trial judge stated that there was no need to evidently
show any specific mind for motive, intention or knowledge; creating a situation where the defendant
could not have any defence to prove his innocent conduct on the balance of probabilities 21. Similarly,
the proposed Summary Offences Act 1988 (NSW) s12 Disruptive Protest Offence, arises the question
if the language of the statute distinctly or objectively removes the mental element? If the
government/parliament aspires or aims to dismiss the element of mens rea, they must make it
explicitly clear. The government has to notify the community and explicitly state that this is an
absolute liability offence. This does not occur in this instance/scenario as the interpretation of the
new s12 does not explicitly state mens rea as protests are mainly known as public gatherings that a
part of history which involve excessive noise and obstruction to the daily lives of individuals.
Brennan J showcases that if the statute is silent on mens rea, the presumption is that the highest
level of mens rea is required (intention)22. However, in this scenario the law is rebutted through
interpretation, creating a sense of objectivity in the hands of the law-maker.

(2b)
20
Sherras v De Rutzen [1895] 1 QB 918
21
He Kaw Teh v. R, 157 C.L.R. 523 (1985).
22
He Kaw Teh v R [1985] HCA 43, (1985) 157 CLR 523
Process as punishment:

The first issue that arises is using arrest as a last resort in conviction. The preliminary state of the
Criminal Justice System is considered to be punitive; arrests are considered to be punitive and
disciplinary whether they are conducted lawfully or unlawfully 23. In relevance to this scenario,
offensive language and offensive conduct are most commonly fine and good behaviour bond
offences, however, being detained and arrested is a type of imprisonment. Thus, highlighting
punishment without trial and police as a penal agency who has discretion in punishing people with
imprisonment, reinforcing the issue of using arrest as a last resort due to the new legislation stating
language which removes the mental element 24 , where a fine or summons would suffice25.

Secondly the issue of bail; bail insures the presumption of innocence; the burden of proof lies upon
the prosecution. However, in 2014 s3 of the Act had a significant change , it emphasised the
importance and safety of the community over the presumption of innocence 26. The show cause test
places responsibility on the accused to defend themselves from being detained, relinquishing from
the original standard of prosecution carrying the burden of proof. In relevance to his scenario, due
to the insignificant elements of mens rea, there are potential issues for the accused: spending more
time on remand that the maximum sentence and being in remand for. Along period of time without
being found guilty. Judges use their discretion and must consider the safety of the community which
is relevant in this scenario, thus highlighting the issue of bail.

Technocratic Justice:

Although, the aim is to increase efficiency in courts, the issue that arises is the, ‘Police Power Model’.
In similarity to the, ‘Crime Control Model’, it focuses on eliminating criminal activity, however, places
significance on criminal activity being the protection of public interests rather than protecting
individuals. Thus, underlining that the model is focused on protecting state authority because public
interest is determined by state, enforcing that victims and personal interests no longer play a role.

(2c)

23
Feeley, Malcolm M, The Process Is the Punishment : Handling Cases in a Lower Criminal Court (Russell Sage
Foundation, 1979)
24
DPP v Carr [2002] NSWSC 194
25
Lake v Dobson (1981) 5 PS Rev 2221
26
The Bail Amendment Act 2014
The prosecution will bear evidential burden of proof and need to prove beyond a reasonable doubt
that Shirley and Colleen have committed an offence under s12 of the Summary Offences Act 1988. It
unlikely that Shirley and Coleen will be convicted under the statute as all elements cannot be proved
or satisfied through tests. Firstly, the prosecution has no suspicion on reasonable grounds (s99 (1)
(a)27) as there is no factual basis for suspicion as both accused have not hindered or produced
excessive noise28. Secondly, the prosecution has to prove that the conviction is reasonable (s99 (1)
(b)29), which in this case is reasonable meeting the requirement of protecting the safety and welfare
of people and the person arrested30. However, the prosecution cannot prove beyond a reasonable
doubt as the actus reus of the crime, thus, making it unlikely of conviction.

27
Law Enforcement (Powers and Responsibilities) Act 2002 s 99 (1)(a)
28
R v Rondo [2001] NSWCCA 540
29
Law Enforcement (Powers and Responsibilities) Act 2002 s 99 (1)(b)
30
R v McClean [2008] NSWLC 11