The Law Handbook YOUR PRACTICAL GUIDE TO THE LAW IN NEW SOUTH WALES 15th EDITION REDFERN LEGAL CENTRE PUBLISHING 01_Title_piii-iii.indd 3 28-Nov-19 08:08:13 Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont NSW 2009 First edition published by Redfern Legal Centre as The Legal Resources Book (NSW) in 1978. First published as The Law Handbook in 1983 Second edition 1986 Third edition 1988 Fourth edition 1991 Fifth edition 1995 Sixth edition 1997 Seventh edition 1999 Eighth edition 2002 Ninth edition 2004 Tenth edition 2007 Eleventh edition 2009 Twelfth edition 2012 Thirteenth edition 2014 Fourteenth edition 2016 Fifteenth edition 2019 Note to readers: While every effort has been made to ensure the information in this book is as up to date and as accurate as possible, the law is complex and constantly changing and readers are advised to seek expert advice when faced with specific problems. The Law Handbook is intended as a guide to the law and should not be used as a substitute for legal advice. ISBN: 9780455243689 © 2020 Thomson Reuters (Professional) Australia Limited asserts copyright in the compilation of the work and the authors assert copyright in their individual chapters. This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act 1968, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. This edition is up to date as of 1 October 2019. The Law Handbook is part of a family of legal resource books published in other states: Vic: The Law Handbook by Fitzroy Legal Service, ph: (03) 9419 3744 SA: Law Handbook by the Legal Services Commission of South Australia, ph: (08) 8111 5555 Qld: The Queensland Law Handbook by Caxton Legal Centre, ph: (07) 3214 6333 Tas: Tasmanian Law Handbook by Hobart Community Legal Service, ph: (03) 6223 2500 NT: The Northern Territory Law Handbook by Northern Territory Legal Aid Commission, Australasian Legal Information Institute and Darwin Community Legal Services, ph: (08) 8982 1111 Editor: Newgen Digitalworks Product Developer: Kar en Knowles Printed by: Ligar e Pty Ltd, Riverwood, NSW This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. 02_Copy_right_piv-iv.indd 4 28-Nov-19 07:39:54 14 Criminal Law Penny Crofts – Faculty of Law, UTS Andrew Haesler – District Court NSW [14.10] Part 1 – Crime ......................................... 446 [14.290] Arrest ....................................................... 463 [14.20] Types of crime .......................................... 446 [14.340] Detention at the police station ................. 466 [14.60] Basic principles of criminal law ................. 448 [14.450] Bail ........................................................... 473 [14.110] Examples of crimes ................................... 449 [14.530] Part 3 – Court .......................................... 480 [14.190] Sex work .................................................. 458 [14.530] Criminal Court process ............................. 480 [14.230] Part 2 – Arrest, interrogation [14.540] Offences heard in the Local Court ............ 481 and bail ................................................... 460 [14.620] Offences tried by a judge and jury............ 487 [14.240] Police powers ........................................... 460 [14.700] Effect of conviction ................................... 497 1234567891234_Book.indb 445 11-Dec-19 12:51:00 446 The Law Handbook PART 1 – CRIME [14.10] The words crime and criminal are easily Roads and Maritime Services and, unlike serious applied to violence and theft. But crime also offences, generally do not need to be disclosed in includes victimless crimes such as possession of job applications. marijuana, parking violations and minor traffic offences. Drug offences are discussed in Chapter 21, Drug In its widest sense, the term criminal law includes Offences. Sexual offences are discussed in Chapter 35, any law which declares that certain conduct is an Sexual Offences. Domestic violence crimes are dealt offence and lays down a penalty for it. with in Chapter 19, Domestic Violence. Traffic In practice, however, parking violations and offences are dealt with in Chapter 20, Driving and Traffic Law. minor traffic offences are not generally regarded as crimes. They are separately recorded by The difference between crimes and civil wrongs It can be quite difficult to define the difference Who takes action? between crimes and civil wrongs. Crimes are normally prosecuted by the state or Who is wronged? Commonwealth, whereas it is generally up to an One way of looking at it is to say that a crime is a individual to take court action against a person who wrong against the community, which attracts has committed a civil wrong. community condemnation and punishment, while a It is possible for someone to commence criminal civil wrong is a wrong against an individual, which proceedings against a person who has committed requires compensation or repayment to the person a crime against them, such as assault, but it is wronged. For example, if a person takes money from rarely done. someone’s bag without their permission, they are Actions that are both crimes and civil wrongs committing a criminal offence for which they can be punished by the state. If they carelessly damage Many acts, such as assault, can constitute a crime and someone’s bag, the owner may take them to a civil a civil wrong at the same time. The police may be court and they may be ordered to pay compensation, reluctant to commence criminal charges for minor this is quite separate from the punishment process. assaults unless there are witnesses or noticeable injuries, and they will leave it up to the person On the other hand, a person who fails to pay back a assaulted to take action. In this case, the person may loan is not committing a crime. Although a civil case have to choose between starting criminal proceedings can be taken against them to get the money back, the and starting civil proceedings. person cannot be prosecuted for a criminal offence. If the police bring criminal proceedings, the person Of course, a crime is often (not always) also a wrong can still bring a civil action. against an individual. Types of crime [14.20] Crimes may be tried by a magistrate, or Examples of summary offences are driving with by a judge and jury. Usually this depends on the the prescribed concentration of alcohol, smoking seriousness of the crime. marijuana and offensive behaviour. [14.30] Crimes tried by a Can the person have a jury? magistrate A person charged with a summary offence cannot Crimes tried by a magistrate in a Local Court are insist on having a jury to decide their innocence or called summary offences. They are less serious than guilt. Because of the expense and delay involved those tried by a judge and jury (indictable offences), in a trial by jury, most new offences created by and the penalties are less. parliament are tried by a magistrate. 1234567891234_Book.indb 446 11-Dec-19 12:51:00 14 Criminal Law 447 Time limits is sent to the higher court for sentence (Criminal Proceedings for a summary offence must be started Procedure Act, ss 96, 97). within six months of the date of the alleged offence (Criminal Procedure Act 1986 (NSW), s 179(1)). The court hierarchy is discussed in Chapter 1, About the Legal System. Court proceedings are discussed later in the chapter at [14.530]. Children and summary offences When a person under 18 is charged with a criminal offence, the case is heard, at least initially, in the Children’s Court, and special provisions apply (see [14.50] Crimes tried by either a Chapter 7, Children and Young People). magistrate or a judge and jury Many less serious types of indictable offences, such as stealing and breaking and entering, may [14.40] Crimes tried by a judge (or must) be dealt with by a magistrate in the Local and jury Court under some circumstances. There are special procedures for dealing with these cases. Crimes tried by a judge and jury are generally more serious (indictable offences). In jury trials, the judge rules on questions of law, and the jury rules Time limits on questions of fact. There is no time limit for the prosecution to lay a charge for indictable offences that can be dealt with summarily, even though they are heard in the In the Supreme Court Local Court. Only extremely serious charges – generally murder, terrorism and major corporate frauds – are heard in the Supreme Court. Indictable offences dealt with summarily Legislation divides indictable offences into those In the District Court which may: • not be tried summarily; Cases arising from other indictable offences such as robbery, malicious wounding and • be tried summarily unless the prosecuting dangerous driving causing death are heard in the authority or the accused elects to have the District Court. offences dealt with on indictment (Table 1); and • be dealt with summarily unless the prosecuting authority elects to have them dealt with on Time limits indictment. There is no time limit for a charge to be laid for an indictable offence. This means that a large number of indictable offences are likely to be tried summarily. The tables, which are found at the end of the Criminal The pre-trial hearing Procedure Act, should be checked, as they are Before people charged with indictable offences are changed regularly. sent to a higher court there is a preliminary hearing in a Local Court, called a committal hearing. At the pre-trial hearing, directions are made Choosing a District Court trial to ensure all evidence is available.