Sheriff Act 1900 Review


Offences

3.5.7.1 Carrying dangerous goods into court

In order to protect the court and its users from danger, a number of jurisdictions include an offence in their legislation for bringing weapons, firearms and explosives into court premises without a lawful excuse Court Security Act 1980 (Vic) section 4; Public Order (Protection of Persons and Property) Act 1971 (Cth) section 13F; Court Security Act 1998 (NT) section 9. The penalties under the different jurisdictions range from 12 months imprisonment in the case of the Commonwealth to 7 years imprisonment in Victoria.

In NSW the Crimes Act includes certain offences, such as “possessing explosives with intent to injure Crimes Act 1900 (NSW) section 55” or “trespassing with or dangerous use of firearm or spear gun Crimes Act 1900 (NSW) section 93H”, which may cover many of the cases where undesirable objects may be bought into court. However, it is not certain that all cases would be covered which may necessitate a specific offence of bringing weapons, explosives and firearms into court without lawful excuse.

Q.60 Should court security legislation include an offence of bringing weapons explosives and firearms into court without lawful excuse?

If Sheriff’s officers are to be permitted to demand identification in certain circumstances then it would appear to be reasonable to include some sort of sanction for providing false or misleading identification. An offence of refusing to provide information, giving false information and providing false evidence of identity has been included in the majority of other jurisdictions See for example Court Security Act 1980 (Vic) section 3(2); Public Order (Protection of Persons and Property) Act 1971 (Cth) section 13C(2); State Buildings Protective Security Act 1983 (Qld) section 20(2); Admission to Courts Regulations 1995 clause 6(3); Court Security Act 1998 (NT) section 7.

A similar provision is contained in the NSW Passenger Transport Act in relation to failing to give, or giving false information to an authorised officer Passenger Transport Act 1990 (NSW) section 55. In that case the offence is punishable by a maximum of five penalty units.

Q.61 Should a Court Security Act contain an offence of failing to give, or giving false, identification details when lawfully required to do so?

This is a similar issue to the previous one in that a power to demand a person leave premises may need to backed up with a sanction in cases where a person refuses to obey. An offence along these lines has been included in a number of other Australian jurisdictions See for example Court Security Act 1998 (NT) section 14; State Buildings Protective Security Act 1983 (Qld) section 21D(3); Admission to Courts Regulations 1995 clause 6(4). It has also been included in NSW in relation to exclusion from Parliamentary precincts Parliamentary Precincts Act 1997 (NSW) section 19 which appears to be closely analogous to the court situation.

Under the Parliamentary Precincts Act a person who is lawfully directed to leave the precincts must not fail to leave or attempt to re-enter during the time the direction is in force. The offence attracts a maximum penalty of 10 penalty units.

3.5.7.4 Damaging or stealing court property

It would appear that no other Australian court security legislation contains an offence relating to the destruction or theft of court property. These matters are generally dealt with in NSW under Part 4 of the Crimes Act. While it could be advantageous to the Sheriff to have an offence along these lines in the Court Security Act, it may, once again, be considered to be unnecessary duplication. Another problem may be the difficulty in defining the property to which such an offence would attach.

Certain court users such as witnesses, judges and jurors are specifically protected from harassment and intimidation both before during and after court proceedings, particularly when the offending behaviour is designed to influence those proceedings or act as a reprisal Crimes Act 1900 (NSW) Part 7 Division 3.

In the case of other court users who may not be directly involved in the process, or in cases where the harassment is not designed to influence proceedings, more general criminal offences need to be relied upon.

It may be argued that the inclusion of a specific offence may make it easier for officers to explain to a person the consequences should they engage in certain behaviour. On the other hand it may be seen as further duplication of offences which is undesirable.

3.5.7.6 Failure to comply with a reasonable direction

This would cover cases where a Sheriff’s officer made a reasonable request, for example such as asking a person to stop smoking or to stop some other activity such as busking, begging or annoying another court user. Failure to comply with a direction in a reasonable manner or in a reasonable time would then be an offence. This power has been granted in relation to other public lands in NSW See for example Zoological Parks Regulation 1993 (NSW) Clause 19(c) which makes it an offence (1 penalty unit) to fail to comply with any reasonable direction given by a member of staff and the Royal Botanic Gardens and Domain Trust Regulation 1997 (NSW) clause 14 making it an offence punishable by 5 penalty units for failing to comply with any reasonable direction given by a ranger, by a member of staff of the Trust or by a police officer. The Centennial Park and Moore Park Trust Regulation 1999 clause 22 makes a similar offence (punishable by 10 penalty units) but requires the direction to be given for the purpose of securing good order and management and enjoyment of the Trust lands. .

The advantage of this approach is that it gives Sheriff’s officers a degree of flexibility in responding to unforeseen or novel circumstances. On the other hand this flexibility may also be considered to be oppressive in that it makes the law arbitrary or capricious. It is foreseeable that such a law could be used to harass a person such as a homeless person, not because, of what they are actually doing, but because of who they are. In this regard, what one person may view as a discretionary application of the law may be considered by another to be discriminatory.

It may be possible to balance these two positions by limiting the circumstances in which an officer is permitted to give directions. For example, the legislation could list the types of activity which can found such a direction, possibly in regulations made under the Act.

A further safeguard may be to include a requirement that the officer explain the basis for the direction and to explain the consequences of the person failing to comply.

Q.65 Should the Act contain an offence of failing to comply with a reasonable direction? If so, what safeguards, if any, need to be applied to the exercise of this power?

If a range of offences is to be included in a Court Security Act, then it may be necessary to provide for different proceedings depending upon the seriousness of the offence. For example a person failing to stop smoking when asked to do so should be treated quite differently from a person attempting to bring explosives into a courtroom.

It may be appropriate to provide for several different procedures, including the power for Sheriff’s officers to issue penalty notices. Penalty notices are currently used by a number of bodies in NSW for less serious offences, for example in relation to offences under the Local Government Act Local Government Act 1993 (NSW) section 679 and the Passenger Transport Act Passenger Transport Act 1990 (NSW) section 59.

Penalty notices offer the advantage of allowing people, who accept that they are guilty of an offence, to pay a set fine without the necessity of attending a court.