Rant 1 - Basic Principles Of Criminal Law

Rant 2 - The Weekend That Was – 18-21 October 2012

Rant 3 - Powers Of Arrest

Rant 1

The Redfern Legal Centre publishes a book called The Law Handbook. Currently in its 12th edition, it is an excellent legal resource that endeavours to provide a practical guide to the law in NSW. Chapter 16 is all about criminal law and it is freely available online. I will provide links to this invaluable resource on the Big Rob’s Facebook page and the Big Rob’s Website after the show.

As mentioned earlier in the show, the basic principles of criminal law are listed as:

At first glance, these seem simple enough. However, unbeknown to many and ignored by most, these very old, well established basic legal principles are being ignored more and more with the passing of time and the result is the dilution of various fundamental rights many of us hold true and dear to our heart. I will address each principle individually.

It is said that the basis of our criminal justice system is that a person charged with an offence is innocent until proven guilty. This seems to be the case when we hear about individuals accused of various crimes go through the court process having their matters heard by Magistrates, Judges or Juries before a verdict is returned. A guilty mind or deliberate intention is also required to be found guilty. The onus is said to be on the prosecution to prove guilt and this is the case in many matters.

Where this principle is ignored is when we are dealing with matters described as strict liability or absolute liability offences. A strict liability offence is one where a guilty mind is not required. A good example is driving while suspended. There are various defences available to strict liability offences and many people get off these every day.

Absolute liability offences can only be described as strict liability offences on steroids. These are very similar to strict liability offences, however, the defence of an honest and reasonable mistake of fact is not available. A very common example of these is a parking fine. Many people also get off these regularly.

Where it gets tricky with strict liability offences is when the defence of honest and reasonable mistake of fact is used. The onus then lies on the prosecution to prove that no such belief existed. In relation to absolute liability offences, the defence has to continue to prove their innocence. Innocence until guilt is proven is ignored to make things easier on society.

When innocence until guilt is proven is respected, the prosecution must prove guilt. The accused does not have to say a word to establish their innocence but there are situations where they must notify the prosecution of a defence or even prove a particular defence, such as insanity, on the balance of probabilities.

Beyond reasonable doubt is the onus placed on the prosecution and it is intentionally a difficult one to dispense with. The act and the intent to commit the act must be proved as well as disproving any defences raised to secure a conviction.

This all sounds great in practice but in reality it is not as fair as it may seem in many situations. One very common situation is where an accused is charged by police with one or more offences and the only witnesses are the police. No CCTV, sound or independent witness evidence is available or put forward in many cases.

Even though our highest courts have warned time and time again of the dangers of accepting police evidence in such situations, the lower courts have a tendency to accept corroborating evidence from two or more police officers as the truth even when they are accused of lying. Just the nature of the scenario demonstrates a clear conflict of interest and the very high number of former police officers serving time in our gaols shows that not all police officers are honest.

The right to remain silent is one with its strength based in common law supported by legislation. The High Court in Petty v The Queen held that a person who believes on reasonable grounds that he or she is suspected of having committed a criminal offence has the right to remain silent when questioned by a person in authority about the offence.

Section 89 of the Evidence Act provides that no adverse inferences can be drawn where the defendant has remained silent. Excluding certain circumstances such as identifying ourselves or in some vehicle matters, it would seem pretty safe to assume that we are not required to answer questions put to us by police officers.

Sadly, the NSW State Government is moving to dilute the right to silence through the introduction of new legislation requiring us to answer questions put to us by police or a negative inference could be drawn. This has not yet happened and the move is facing very strong opposition from many individuals and groups.

That brings us to our last basic principle of criminal law commonly known as double jeopardy. Many believe that once acquitted, we cannot be tried again. It is important to note that acquittal only refers to a returned verdict of not guilty after a matter has been heard. It does not include situations where charges are withdrawn or dropped for any other reasons. These can be relisted.

Even in situations where there has been an acquittal in a very serious matter, if there is evidence of the acquittal coming as the result of fraud or perjury, the case can be retried.

If we as a society cannot even protect our basic principles of criminal law, what hope do we really have of living lives of liberty, equality and brotherhood?

You are listening to River FM 92.9 and I am Big Rob.

Big Rob’s Rant is interactive while being broadcast. You can find me on Facebook by following the links to Big Rob’s Rant on the Big Rob’s website at bigrobs.com.au.

Rant 2

Before getting into ‘The Weekend That Was’ this week, I need to explain how it works a bit more. I talk about various events, crimes, issues or other incidents. I do not broadcast names or provide evidence to police about any of the matters discussed during the show. I do not even witness all the incidents discussed. Many are reported to me either directly in person or indirectly by email or private messages and all, except information provided from police sources, are checked to confirm them.

‘The Weekend That Was’ was pretty wild last week.

The police were out in big numbers doing the community thing. POLAIR 1, the police helicopter, and its crew spent some time at Kadina High School with students. They also helped Casino Police catch a break and enter offender on Thursday. There were also police at the North Coast National showing off their stuff and having fun. River FM 92.9 also broadcast from the show on all three days. It sounded like lots of fun.

‘Chest Puff Thursday’ stepped up a notch. It started off with a group of young children, many of who were under 12 years old, hanging around the streets. The police moved them on after becoming aware of them. There was a bit of chest puffing when two teenagers confronted a guy who did not welcome their approach. The situation was quickly diffused and everyone moved on. 

A much more serious incident was reported where a brawl saw four guys assaulted with one of them being knocked unconscious. It seems they are all ok now.

‘Friday Fight Night’ saw an early brawl in front of Night Owl reported as a flow on dispute from the North Coast National. Four underage girls threw punches before being dispersed and moved on. The girls really went wild this weekend with another fight between two ladies this time in front of Big Rob’s and more punches thrown. One of the two was arrested after trying to assault police officers dealing with the matter. She was charged with re-entering a licensed premises after being refused entry, behaving in an offensive manner and assaulting police.

It looked like some property was damaged on a path heading over towards North Lismore. This often happens when someone walks off after an argument and kicks or punches everything along the way.

There were some groups of people hanging around the streets late into the night as often occurs on Friday nights. Not much came out of it last weekend in Lismore. However, Casino had a few problems with a large group of people causing trouble and fighting in Centre Street. They were moved on by police.

The trouble started early on Saturday night with an ongoing argument between two men ending up inside the Night Owl. One guy, who had allegedly pulled a knife in the past, was swinging a pole at another man before running into the store when the other man kept coming at him. The situation was diffused and police were called. Police also assisted a young girl following fears for her safety.

Police reported one licensed venue with a smashed window after they kicked someone out. They are also making enquiries into three males allegedly inciting violence and a few fines were issued for failing to leave licensed premises.

There was a street fight that involved three men fighting against one other that saw security pouncing on top of one of the men pinning him to the road. A lot of police responded quickly. This may be those allegedly inciting violence.

A three day police operation called Operation AVERT 10 was also conducted over the weekend targeting outstanding offenders. It resulted in 13 arrests, 21 charges, 2 criminal infringement notices and 113 random breath tests returning 4 arrests for PCA.

Finally, I have to mention an incident at Kyogle also reported by police. A man was dragged out of his car, assaulted and robbed during the day on Sunday while eating lunch in Roxy Lane behind the Library. This brazen day time robbery is quite concerning.

This is River FM 92.9 and I am Big Rob.

Find me on Facebook by following the Big Rob’s Rant links on the Big Rob’s website at bigrobs.com.au. 

Rant 3

The most important things to remember when facing arrest is that you cannot be arrested solely for questioning and, once lawfully arrested, you can only be detained for a reasonable period for the purpose of investigating whether you have committed the offence you have been arrested for. Although an arrest may require touch, it does not require force. It can be by words and consent alone.

The safeguards when being arrested include evidence that the person arresting you is a police officer if not in uniform, their name and place of duty, the reason for the arrest and a warning that failure or refusal to comply with a request made during the arrest may be an offence.

A warrant is not needed to affect an arrest. If a police officer suspects on reasonable grounds that you are committing, or you have committed an offence, they can arrest you.

Arrest is the last choice. A police officer should always consider alternatives. They must suspect on reasonable grounds that arrest is necessary to achieve one or more of the following:

• to ensure appearance in court;
• to prevent repetition or continuation of the offence or other offences;
• to prevent concealment, loss or destruction of evidence;
• to prevent harassment of, or interference with, a person required to give evidence;
• to prevent fabrication of evidence; and
• to preserve the safety or welfare of the arrested person.

As well as having reasonable grounds for their suspicion, police must execute an arrest with minimum force if it is required at all. Only force that is reasonably necessary in the circumstances can be justified. The safeguards must be complied with and you must be taken to the nearest police station and charged using your real name where possible.

A caution is not required prior to arrest but should be given as soon as possible if you are arrested without being cautioned. The amount of force used, if any, will vary according to levels of resistance. Only force that is reasonably necessary to make the arrest or prevent escape can be used.

Alternatives to arrest include caution, warning, infringement notice, penalty notice, court attendance notice or youth justice conference. Many of these are often ignored with police moving straight to arrest using force. Unfortunately, this also often results in additional offences being added such as resisting arrest when individuals react to the shock of being physically handled. Police also have the option to discontinue arrest at any time.

Once arrested, police can search you and they can detain you for up to four hours if no applications are made to extend the time and times out do not apply.

Further restrictions apply where children are involved.

Of course, staying out of trouble is always the best thing to do.

This is River FM 92.9 and I am Big Rob bringing you Big Rob’s Rant.