Archives For Criminal Law

This morning, the Sydney Morning Herald reported a story about a Sydney based hire-car driver who, sick of Uber X drivers, ordered one himself and proceeded to “arrest” him (J. Saulwicjk and M. Power, “Taxi and hire car drivers plot fight back against uberX“, Sydney Morning Herald, 24 November 2014).

Holy disruptive industries, Batman!

Holy disruptive industries, Batman!

The arrest was obviously a manufactured spectacle, with the disgruntled hire-car driver inviting SMH’s reporters to the Star to witness the thing.

The article wasn’t quite clear about what the driver did when the poor Uber X driver arrived. The scant detailing seemed to suggest that:

  1. somehow the hire-car vigilante got the Uber X driver out of his car; and,
  2. somehow the hire-car vigilante got the Uber X driver to stay at the scene, not only until Casino Security arrived, but until the police arrived.

Since the text of the article suggested that this was more than a mere venting of the hire-car driver’s spleen, but an “arrest”, I will assume that the traditional definition of arrest applies, simply, that the Vigilante deprived the Uber X driver of his liberty.

Citizen’s arrest

The SMH stated that it is perfectly legal to undertake a “citizen’s arrest” where you see someone committing an offence.

I don’t think that we should take this statement at face value. Rather, let’s break this down step by step.

The SMH statement seems to be based on S100 of LEPRA, which states:

Section 100 –  Power of other persons to arrest without warrant

(1) A person (other than a police officer) may, without a warrant, arrest a person if:

(a) the person is in the act of committing an offence under any Act or statutory instrument, or

(b) the person has just committed any such offence, or

[…]

(2) A person who arrests another person under this section must, as soon as is reasonably practicable, take the person, and any property found on the person, before an authorised officer to be dealt with according to law.

Section 231 of LEPRA then provides that, in the course of the arrest, the vigilante “may use such force as is reasonably necessary to make the arrest or to prevent the escape of the person after arrest”.

So, there are a few elements that need be carried out for the vigilante arrest to be within the law:

  1. the arresting person must not be a police officer [✓]
  2. the arrested person must satisfy one of the conditions in sub-s (a)-(c) [?]
  3. the arresting person must take the arrested person to an authorised officer [x]

The first requirement, here is uncontroversial.

… an offence under an Act …

The second is a little more complex. First, it has to be shown that the arrested person was doing something that is an offence under an Act.

There is relevant legislation. There are, here, provisions about who may be a taxi-driver, and what constitutes a hire-car.

That the arrested person does not comply with these requirements is not enough to arrest him or her. The arresting person must show that driving an Uber X is not only breaching a provision of these laws, but that such a breach is an offence under that legislation. This is not plain, and the NSW Government’s jawboning on the issue (despite what the SMH may say) does not make it more of an offence.

Further, even if it is shown that driving in such a manner is an offence, the arresting person must show that a breach was occurring or just occurred. If the Uber X was electronically hailed, but no offence was yet committed (despite the likelihood of the offence occurring), then the arrest is in breach of these provisions of LEPRA.

… an authorised officer …

The third requirement burdens the arresting person with producing the arrested person before an “authorised officer” (see s 3 definition of “authorised officer”). This is not an open-ended category, but is strictly defined, including only a magistrate, registrar or certain Attorney General’s department employees.

This certainly does not include police officers, who were the only persons called after the “arrest,” depriving the arrested person from the right to be “dealt with according to the law”.

This failure brings the whole process outside of the provisions for a “citizen’s arrest” under LEPRA – leaving the hire-car batman (likely) outside of the protections of an arresting person under LEPRA.

… such force as is reasonably necessary …

Even if the arrest is carried out to the letter of the law, our hire-car Batman is still not in the clear. If any force was used in making the arrest, it must have been reasonably necessary.

Here, you can get in trouble even if the crime that the arrested person was detained for was serious. There is not much flexibility here, as vigilantism is discouraged.

Where the “offence” was one of a type that would be ordinarily dissuaded by the issuance of a fine or a court attendance notice, and where a reasonable cop would be very unlikely to arrest someone (e.g. most traffic and licensing offences, and most offences covered by the relevant legislation), then leniency would be even narrower. You are unlikely to get away with anything.

So what?

If our Batman arrests a person improperly, or with greater force than is reasonably necessary, he himself will have committed at least tortious assault and false imprisonment and possibly some crimes as well.

This is a dangerous game (which could lead to the absurd result where one party “citizens arrests” the person who originally tried to “citizens arrest” them for committing crimes in the attempt of an arrest, potentially ad infinitum), and should definitely not have been encouraged by the SMH.

Don’t try this at home, or anywhere – even if you are doing it right, you can get in trouble.

Joke's on you

Joke’s on you

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70218: Criminal Law

oatsandsugar —  July 27, 2010 — 3 Comments

Crim’s a bit difficult.

Patrick Bateman: Psychopaths aren't crazy in Australia: Wilgoss (1960)

The concepts and all that are really quite easy, and the exam isn’t on too much content, really (we were lucky, the law on statutory larceny offences changed while we were learning, and that whole chunk was taken out of our exams).  The problem questions are also blissfully short/simple (i.e. they have one or two issues in each), especially when compared to Torts.  The markers are ridiculously finicky though, and mark quite harshly.  Really harshly.  That’s where they get you.

Regarding the teachers; I’ve experienced Leslie Townsend and Peter … something.  Leslie once judged me in WitEx (Witness Examination competition, I’ll write about it later in the term).  She also taught one of my good mates.  She is meant to be a tad scary, a lot strict, brilliant as anything and an awesome teacher.  Peter taught our night class.  He was pretty funky, a criminal defense lawyer filled with stories about his cases and with an intense practical and applied knowledge of the law.  It was cool because his stories would ground the theoretical law into a concrete scenario, and keep everything nice and interesting.

Onto the assessments; the assignment, the class participation mark and the finals.

The assignment (on murder) actually killed me.  It wasn’t that difficult conceptually, it was just that there was so much to say; I didn’t know which points of law I had to talk about, and which I could assume known, how much to talk about each section, how much to talk about the facts of this case, of the cases I discussed — it was my first attempt at a legal problem response, and I went for the scatter-gun approach, I tried to write everything.

In the end, though, I didn’t write enough about the two major issues, instead focusing on slightly relevant (and even some irrelevant) points of law without applying them.  I’ll take the risk of sounding like your Method tutor; use the IRAC method, I didn’t, and it cost me.

  1. Actually identify the issues in the question.  This is where the scatter-gun approach failed me, I touched on the two main issues (in my assignment they were provocation and causation) without going into enough depth on either because I spent so much time discussing non-issues.
  2. Now summarize the legal rule.  What does authority tell you?  Are there any cases with a congruent/comparable factual make-up? If there is a case that is similar enough or you wish to differentiate this case from authority, don’t be scared of summarizing the facts of that case quickly to draw parallels/distinctions.
  3. Here’s the fun part; apply the facts of the case to the legal rule described below.  To put it simply: either apply the facts to the test outlined in cases or distinguish the facts from said case.  This is the most important part of the criminal law and, indeed, most other, assignments.  This is where you should focus.  This is where you get the majority of your marks.
  4. Then conclude succinctly and decisively.

Again, whilst you must focus on the issues in the case, you also need to jump through certain hoops; the “golden strand” of criminal law, the evidentiary burden, etc.  I went on a bit too much with this; wasted words.

I’ll post my assignment up with the following warning: DO NOT use the assignment as a guide, I did not do at all well in it.  I passed, but not by much.  Rather, use it with the advice above: 70218Asst1.

One good thing came of my assignment, though: I talked through problem solving method with the subject coördinator and paid a lot more attention in class.  A bit of prep goes a long way in Crim for the class mark, enjoy the easy marks!  Just try pepper your logical answers to problem questions with the cases/legislation that you were assigned to read, and you’ll get a HD like magic.  It’s also good practice for problem solving on the spot for the exam.

Like I said above, the exam wasn’t too hard, simple concepts and a relatively small area of law (we only had to study sexual assault, assault, larceny, joint criminality, defenses and attempt: all of them together less difficult than murder).  Have organised exam notes, do a few practice papers and watch your time and you should do fine.  Here are my exam notes, with a special shout-out to Nesha for helping with the end part (I ran out of time to make notes before the exam) 70218Notes.  Also, don’t be scared to bring in textbooks and the notes they give you; if you have a moment at the end of the exam and you need to look something up, they will come in useful.

UPDATED: Sorry, I totally forgot to mention this: the first/most important textbook you need to buy for this subject is Essential Criminal Law by Penny Crofts (the subject coördinator).  It is succinct, well structured and easy to understand.  It is great to use in the assignment, in class and in the finals.  It is a lifesaver.  I used the third edition, but I’m sure a new one will be released shortly to deal with the changes in the law of larceny. You need this book [UTS LibraryAmazon].

Enjoy! This subject, although it’s a bit tough, is good fun!