POLICE OFFENCES

Origin of the Police Act What are described as 'police offences' today have their origin in English law. The law of vagrancy can be traced back to the Plague in England in the 14th century.l But as far as Western Australia is con- cerned the history of police offences may be said to have begun at the time of the first settlement of people from Great Britain in 1829. The English statutes of general application sufficed until the first local police Ordinance came into being in 1849. Further ordinances were made in 1853 (to authorise the issue of search warrants) and in 1859 (to extend and amend the scope of the 1849 Ordinance). A clean sweep was made in 1861 by a new Police Ordinance setting out, in the language used in all British colonies, the rights, duties, powers and obligations of the police force. I t also contained provisions govern- ing the commission of offences which the police were accustomed to encounter in their day to day work. For example, it created such offences as assaulting a police officer; harbouring a policeman on licensed premises during his hours of duty; permitting billiards to be played on a Sunday in a public place of amusement; ill-treatment of animals; bathing in a prohibited place; failing to remove a privy, hogstye, tanyard, cesspool or the like being a nuisance; throwing dead animals into a harbour; driving cattle into Fremantle during daylight; piercing a cask on a jetty with felonious intent; and a host of other detailed and particular offences. Some of these offences might today be contained in local government by-laws, or in special legislation, for example the Health Act, or be covered by some of the provisions of the Criminal Code. Some have disappeared. The 1861 Ordinance specified the powers of the police to take action in relation to such offences and to other situations, for example, to destroy a dog which they suspected was suffering from rabies.

The Police Act 1892 The Police Ordinance 1861 had a life of 32 years during which

time it was amended on a number of occasions before being replaced

1 See Maher and Williams, Vagrancy-a Study in Constitutional obsolescence (1970) 22 UNIV. FLORIDA L. REV. 384.

POLICE OFFENCES 255

by the Police Act 1892. This Act has survived 80 years and provides the constitutional framework within which the police force operates today. Consisting of some 142 sections it may be said to have con- cerned itself with three major topics: first, the police force itself- that is to say the rules governing appointment, suspcnsion, dismissal, duties and discipline of police officers and special constables; secondly, the powers of the police in respect of their relations with the public in fulfilling their duties, for example, their powers of arrest without a warrant; and thirdly, police offences.

The debates on the 1892 Act indicate that members were concerned with the individual provisions of the Act and it is clear that members in both the Legislative Assembly and the Legislative Council subjected the Bill to careful scrutiny. A conference between committees in both Houses was needed. I t was accepted that the Bill was a consolidating measure and that it was not intended as a radical measure giving the police a new charter; it tidied up the earlier pro~ision.~

The Amending Acts

Since 1892 there have been 38 Amending Acts. That is to say the Police Act has been the subject of examination by Parliament every second year. In fact 22 of the Amending Acts have been enacted since the end of World War, and the process of perpetually effecting minor repairs to the Act has gathered momentum to the extent that one can confidently predict that each session of Parliament will see an Amending Bill to cure some defect in the Act. A digest of the debates is contained in Appendix A to this article.

Observations on amendments

An examination of the Parliamentary debates is seldom a useful exercise for the purpose of construing a particular section of an Act in a court of law. Nevertheless certain pertinent observations may be made in respect of the Parliamentary discussion which has taken place almost annually in recent years. (i) The 1892 Act contained 142 sections. 15 of these sections have been repealed; 50 new sections have been introduced; and today there are, therefore, 177 effective sections. There have been 38 Amending Acts which have affected 134 of the 177 sections currently in effect. Few sections have emerged unscathed and some that have been un- touched may be obsolete. Part VII (the nuisance offences) only applies where municipalities have not enacted their own by-laws and some of the offences are of little significance.

2 2 Parl. Deb. 61, 238 and 313.

256 WESTERN AUSTRALIAN LAW REVIEW

(ii) The Act as it now stands retains some resemblance to the Metro- politan Police Offences Act 1839 (U.K.) and the Vagrancy Act 1824 (U.K.). For example, s. 96 of the 1892 Act partly corresponds to s. 54 of the 1839 U.K. Act. There are other examples of particular offences having their roots in English legislation but the continual process of amending the Act has resulted in the creation of a code which can seldom be read in pari materia with any other legislation either in Australia, England or elsewhere. (iii) Whenever an Amending Bill has come before the Legislature both Houses have given it careful and thorough attention. Seldom has a proposed change been treated as a formality. To this observer it appeared that the debates were distinguished by a strong element of sound, practical sense. Even though members were frequently given short notice of the contents of the Bill, it is clear from the record that the members who spoke had a full appreciation of the problems and issues. (iv) The debates reveal that at no stage has either House discussed the Police Act as a whole. Neither House has conducted a survey of the Act, its operation, and its effectiveness during the eighty years of its existence. Passing reference has been made to its philosophy, its suitability, and the manner in which it has been administered. Never- theless no exhaustive examination has been conducted as to whether it is the type of legislation which meets the needs of the 1970s. Nor has Parliament ordered such a survey to be undertaken by the Minis- ter for Police. The machinery for enacting legislation has served the State well. But there seems to be no machinery which ensures that once Parliament has enacted legislation, such legislation will be sub- jected to regular and careful scrutiny by Parliament itself. If the Act were to be repealed tomorrow and Parliament had to introduce new legislation, it is inconceivable that the new legislation would be en- acted of such an antiquated and verbose nature. (v) Many of the amending measures have themselves had to be amended on subsequent occasions because of drafting defects. The quality of the draftsmanship is uneven because of the continual pro- cess of amendment. (vi) Almost invariably the initiative for the Amendments has come from the Police Department. Seldom has there been a successful private member's Bill which has its origin in a public demand for reform. If one accepts that Members of Parliament reflect public opinion then there has been little evidence of deep public anxiety and concern over the contents or implementation of the Police Act.

I POLICE OFFENCES 257

(vii) This is not to suggest that Parliament neglects police matters. Members do ask a lot of questions about the police but they are

, usually about questions of administration and not on police law. (viii) Criminal offences are to be found in three sources; the Criminal

1 Code, the Police Act and other statutes There seems to be no logical reason why the police offences should not be contained in the Criminal Code. The Canadian Criminal Code and the East African Penal Codes contain the so called police offences; the Indian Penal Code does not. If the reason for the separation is because the powers of the police in respect of the police offences are different from their powers in respect of the Criminal Code, this is barely a valid reason. The powers of the police in respect of all criminal offences need to be considered in toto and not in isolation. (ix) I t is true that the English have shown little sign of reforming the Vagrancy Act 1824. Nevertheless there are indications that they are slowly but surely reforming many aspects of criminal law.3 I t is also true that other Australian States retain legislation in respect of police offencesa4 The absence of reform of police offences in other Australian States is not a good reason for failing to reform this law in Western Australia. In none of the Parliamentary debates has there been a demand for a new code relating to the offences; there has been no evidence of a desire to establish a model for other juris- dictions to follow. The festering sore has been allowed to hold its own.

Examination of the Act by the courts

The reported cases on the Police Act5 give no true indication of - the importance of the Act in relation to the number of cases which are heard each year in the magistrates' courts. There are numerous - police offences on which there are no reported cases. The problems

3 See [I9681 CRIM. L. REV. 412; criticisms of particular vagrancy provisions have been made in England: see, for example, Dickey, Soliciting for the Purposes of Prostitution [I9691 CRIM. L. REV. 538. Criticisms of the vagrancy and loitering laws are frequent in the United States: see, for example Lacey, Vagrancy and Other Crimes of Personal Condition (1952) 66 HAR- VARD L. REV. 1203; Davis, Vagrancy-Loitering Laws (1968) 35 TENNESSEE L. REV. 617; Sherry, Vagrants, Rogues and Vagabonds (1960) 48 CALIFORNIA L. REV. 557.

4 Cf. Police Offences Act 1901 (New South Wales) ; Vagrants, Gaming and Other Offences Act 1931 (Queensland) ; Police Offences Act 1953 (South Australia) ; Police Offences Act 1935 (Tasmania) ; Police Offences Act 1958 (Victoria) ; Police and Police Offences Ordinance 1923 (Northern Territory) ; Police Offences Ordinance 1930 (Australian Capital Territory) ; Police Offences Act 1927 (New Zealand).

5 See Appendix B.

258 WESTERN AUSTRALIAN LAW REVIEW

are largely ones of fact, not of law. Few cases come before the Su- preme Court.

In examining the reported cases on the Police Act it is possible to draw some conclusions. ( i ) There is of course a wealth of case law from other States in Australia on similar provisions in their respective s t a t ~ t e s . ~ There is also a considerable body of English law. Judgments in cases such as Ledwith v. Roberts7 have had considerable influence in Australian States. But no two enactments in Australia are the same and the use to which the interpretation of a similar section in, say, Victoria can be put in Western Australia is much more limited than it used to be. Slight differences in wording may result in a different conclusion on similar factual circumstances. (ii) Few legal problems have come before the Supreme Court in regard to the procedural aspects of the Act, for example, in relation to the exercise of the power of arrest without a warrant. Almost all the reported cases have been concerned with the substantive offences. (iii) The judges have stressed the importance of the precise wording of the sections in the Act and given them an importance which the history of the legislation barely justifies. I t is a problem of which the courts are aware. In Zanetti v. Hill, Dixon C.J. said in respect of s. 65:

I t is obvious that to transfer the application of such provisions from rural England in Tudor times and later, to the very differ- ent condition of city life in Perth, and give it a just and respect- able operation must involve many difficultie~.~

Undoubtedly the judges have put some of the police offences in per- spective. Nevertheless, they have given a strict interpretation to many of the sections-sections which were drafted over a century ago. While they may have been amended from time to time the amend- ments have not necessarily resulted in an improvement.

Police and prison figures

There is a disturbing lack of statistical information about criminal cases. Parliament has not seen fit to insist that either the Chief Justice or the Attorney-General prepare annual statements showing precisely what is happening in the criminal courts. The figures pub- lished annually by the Commissioners of Police and Prisons are in-

6 See Allen's, POLICE OFFENCES OF QUEENSLAND (3rd ed., 1971) . 7 [I9371 1 K.B. 232. 8 (1962) 168 C.L.R. 433, 437.

POLICE OFFENCES 259

adequate. The Commissioner of Police does not show in his annual reports how many people have been (a ) arrested, (b) subsequently charged and (c) convicted of offences under the Police Act. How- ever, since 1966 the Commissioner has included statistics in respect of seven country districts and these give some indication of the import- ance of the Act.

The figures for Albany, an area of about 32,000 square miles with a population of about 55,000 people, may serve to illustrate. Year Arrests Court cases (adults and juveniles)

Criminal Police Traffic Licensing Other Code Act Act Act Acts

1966167 1286 468 1004 282 98 21 1 1970171 1843 575 1066 498 4 1 157

Albany represents about 5% of the population in the state. If the pattern is repeated elsewhere there may well be some 20,000 cases each year involving offences under the Police Act.

According to the Annual Report of the Prisons Departmente for 1971, of some 9,130 male and 1,173 female prisoners committed to prison in 1970, no less than 2,093 male and 553 female prisoners were committed in respect of drunkenness. Another 768 male and 246 female were classified under the heading of disorderly conduct or obscene language. Two prisoners were committed for living on the proceeds of prostitution and 38 were committed for improper pos- session or use of drugs. The figures reveal that a substantial number of Aborigines commit police offences.

The figures that are available are disturbing. Is it really appropriate that in the 1970s men should be committed to prison for drunkenness and obscene language? Do such social problems justify imprisonment? Clearly the police must have adequate power to deal with drunken- ness when it becomes offensive and a nuisance in public places. But whether the sordid process of prosecution through a court of petty sessions is the appropriate remedy on the following day after a night at the police station is doubtful. At any rate it is a subject on which there should be a proper review.

I t is again disturbing that there has been so little expression of opinion by the justices of the peace in the courts of petty sessions on the Police Act, its effectiveness and its suitability in the modern world. For example, in the Journal of the Justices of the Peace of Western

9 Renamed the Department of Corrections in the Prisons Act Amendment Act 1971 (W.A.).

260 WESTERN AUSTRALIAN LAW REVIEW

Australia, barely a critical word has appeared in recent years on the operation of the Act.

The term 'police court', which was the convenient term used to describe the court of petty sessions, is slowly dropping out of common parlance. So also is the term 'police magistrate', although both phrases are taking a long time to disappear. To some observers the terms sug- gest that the court is managed by or under the control of the police. To those with little experience of these courts it must appear that there is little distinction between police and judicial functions. I t is to be hoped that the expression 'police offences' will disappear so the public is aware that the offences are criminal offences against the public and not offences against the police.

Conclusions

The Police Act is no longer adequate to cope with the problems of the 1970s. I t is in immediate need of review.

In reviewing the whole scope of the law governing the role of the police in society attention needs to be paid to the following points:-

(a ) The term "police offences" needs to be abolished. Such offences as are relevant to modern life should-be transferred (and re-drafted) either to the Criminal Code or to particular legislation governing the subject. If, for example, s. 84A (keeping a house for betting) is to be retained as an offence it should either be made a substantive criminal offence and be included in the Criminal Code, or it should be in- cluded in gaming legislation. If s. 96(14) (rolling a cask on the footway) is to be retained as an offence it should be transferred to legislation governing traffic and highways.

(b) A new code, separate and distinct from the police offences, is required governing the appointment, promotion, discipline, resigna- tion, dismissal, retirement, suspension, duties, rights, pensions, super- annuation, investigation of complaints, special constables, rewards, liability of the Crown for the wrongful acts of a policeman and all other matters relating to the employment of police officers.1°

(c) New legislation is required governing the powers of the police in relation to arrest, search and seizure of goods and its rights and duties in relation to the public.ll I n particular attention needs to be

l o Cf. Police Regulation Act 1952 (South Australia) ; Police Act 1937 (Queens- land) ; Police Regulation Act 1898 (Tasmania) ; Police Regulation Act 1958 (Victoria) ; Police Regulation Act 1899 (New South Wales). The Police

Act 1968 (Quebec) and the Police Act 1970 (Northern Ireland) are better examples of what is needed in Western Australia.

11 Cf. Crimes (Powers of Arrest) Act 1972 (Victoria).

POLICE OFFENCES 26 1

paid to the duty of a policeman to deal with obstruction, drunkenness, disorderly behaviour, demonstrations, protests and other occasions which can be loosely classified as falling under the head of public nuisance.

In an interview with The Times Lord Widgery C. J. said:-

I think that the fact that so many people readily commit what are criminal offences, although of a relatively minor kind, is destroying the authority of the law. I t is occupying the police in matters which they could well be relieved of to deal with the serious criminals.12

A long hard look is needed at the police offences in this State. We do not need a police force to deal with the trivia; we do need it to deal with serious, sophisticated and determined criminals who are a threat to peace and good order.

D. BROWN*

12 The Times, August 8, 1972. * Senior Lecturer in Law, University of Western Australia.

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APPENDIX A

The Police Act Amendment Acts 1893 to 1972 in Parliament

1893. The first amending Act was introduced in the Legislative As- sembly by a private member, Mr. I?. C. Monger. He regarded the original Act as the most "oppressive measure" introduced during the previous session. The Amending Bill was introduced for the purpose of placing "spinning jennies and whirligigs" at race courses under the control of the W.A. Turf Club. A number of amendments to the Act were made during the committee stage which had the effect of creating new gaming and betting 0ffences.l I t subsequently became s. 84H of the Police Act 1892 in the 1952 Consolidation.

In answer to a question in 1958 the Minister for Police revealed that no separate record of convictions under s. 84H had been kept but he understood that there were six charges in 1957.2 The five other Australian States and Western Australia modelled the offence on the Betting Act 1853 (U.K.) .S

1894. Mr. Monger again introduced an amendment to the Act to "prevent bookmakers and others from going down to our cricket fields and football matches, and publicly offering to lay wagers on the match about to be ~ontested".~ Such men should not be allowed to prey on the public was the general theme and the Legislature sought to limit the "demoralising influences of unrestricted public gambling".6 The result was a new offence of betting in public places to replace a more restricted offence in the 1893 Amendment Act. However, the section only had a limited life before being repealed in 1898. The Bill was introduced by Mr. R. S. Haynes in the Legislative Council largely, on the ground that the section was inoperative and while the Colonial Secretary (Mr. G. Randell) said he was "totally opposed to wagering in any form" the deletion of the section was put through both house^.^ 1902. The Act created a number of new offences concerning gold stealing, prostitution, juvenile smoking, Sunday entertainments, and damage in public gardens. According to the Attorney General (Mr.

1 3 PARL. DEB. 245, 286, 365, and 417. 2 149 PARL. DEB. 273. 3 Gaming and Betting Act 1912 (N.S.W.) ; Police Offences Act 1915 (Vic.) ;

Lottery and Gaming Act 1917 (S. Aust.) : Suppression of Gambling Act 1895 (Qld.) ; Suppression of Public Betting and Gaming Act 1896 (Tas.) .

4 7 PARL. DEB. 982. 5 Id. 986. 6 12 PARI.. DEB. 995.

POLICE OFFENCES 263

W. James) gold stealing was rampant on the Golden Belt and stringent provisions were needed to check and stamp out the p ra~ t i ce .~ The effect of the provision was to place the onus of proof on a person found in possession of gold to prove that it was his. Unless he gave a satisfactory explanation he was deemed to be a receiver. Considerable discussion ensued on this and the other provisions. One member ob- served that "cigarette smoking is one of the greatest curses that we have in Australia today" and he supported the measure to stop boys smoking in Perth.8 I t was noted that there was nothing in the Bill for which there was not a clear precedent in the Imperial Acts.'

Pearls were added to gold in 1907. 1915. The object of the Act was to legalise the appointment of special constables. Under the legislation as it stood special constables could only be appointed in the event of riot or turmoil. In fact special constables were being used for a variety of purposes and the Amend- ment Act made it possible for them to fulfil ordinary police duties. They were needed for the purpose of looking after prisoners sent by sea to various places. A former Minister, Mr. J. D. Connolly, ex- pressed misgivings at the powers being given to special constables being too wide, but there was little debate on the subject in either House.l0 1928. The Police ~ i f ences (Drugs) Act 1928 replaced the Opium Smoking Prohibition Art 1913. I t created a new Part VIA of the 1892 Act and was designed to regulate the manufacture, sale, posses- sion, distribution, and supply of opium and certain other "dangerous" drugs. Mr. S. W. Munsie, the Minister for Health, explained to the Legislative Assembly that the Bill was introduced for two purposes: (i) to comply with request of the drug conference held at Geneva, and (ii) to act as a preventative to the drug habit, "which has not yet got a hold in Western A~st ra l ia" .~~ The Commonwealth of Aus- tralia, together with all the other Dominions, had signed the conven- tion and protocol in 1926. New South Wales and Victoria had enacted similar legislation and the other States were expected to do SO. I n the words of the Premier, Mr. P. Collier, it was an "Empire move- ment".12 The Bill encountered no opposition in either House and in

21 PARL. DEB. 1565. 8 Id. 1581. 9 22 PARL. DEB. 2084.

10 50 PARL. DEB. 1109. 11 79 PARL. DEB. 720. 12 80 PARL. DEB. 1424.

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the words of one member it was a Bill which "must meet with the approval of every thinking man".13 1933. This Amendment sought to prevent people from claiming or receiving or continuing to receive sustenance from the funds made available for the relief of unemployment when not entitled to do so. It appears that a substantial number of people had been making false declarations to enable them to claim unemployment relief to which they were in truth not entitled. Broadly speaking the Bill was wel- comed as a measure to protect the public funds from "exploitation". One or two voices expressed disquiet at too much power being given to the police, and some members did suggest that the objectionable practices should be dealt with in a separate legislative enactment. Divisions occurred in both Houses on the second reading.14 The Chief Secretary, Mr. J. M. Drew expressed some concern at the "sickly sen- timentalism shown towards defrauders of the poor".15 1940. No debate occurred on this non-contentious Amendment16 which enabled fines and penalties imposed on members of the police force to be paid into the Treasury instead of into the Police Benefit Fund which had been abolished during the previous year.17 1945. The first Amendment created specific offences for the un- authorized use of the word "detective" (s. 16A) and for giving false information of an alleged offence (s. 90A). Apparently a number of private detectives had been mistaken by the public for detectives of the Police Department.18 In the Legislative Council Mr. H. S. W. Parker spoke of the 1892 Act as "very old", "in need of many altera- tions", "obsolete", in need of "re-drafting", and it could not "be readily understood".lg In the Legislative Assembly Mr. L. L. Hill spoke of the police as "a very fine and efficient body of men" with a strength of "something under 600 men, which is equal to one for every 861 of our pop~ la t ion" .~~ The Bill passed both Houses without any disagreement.

The second Act amended the 1902 Act. It provided that Christmas Day and Good Friday should be observed as Sundays so far as public

13 80 PARL. DEB. 1619. 14 90 PARL. DEB. 708, 1313. 15 Idem 1312. 16 4 and 5 Geo 6, No. 19. 17 105 PARL. DEB. 608, and 106 PARL. DEB. 1428; Police Benefit Abolition Act

1939-1955. 18 115 PARL. DEB. 670, 943. 19 Idem 759. 20 Idem 1113.

POLICE OFFENCES

entertainments were concerned. I t passed through both Houses without

I comment.21 1952. Introducing the Act the Minister for Police, Mr. A. V. R. Abbott said that the 1892 Act had been out of print for many years and there had been a constant demand for it especially by the Police Department, legal practitioners, university students and members of the public. There had been 11 amendments and it was time to con- solidate and reprint the Both Houses agreed without dissent, but Mr. H. S. W. Parker in the Legislativc Council suggested that the Act be redrafted into two parts, one to deal with the administration of the Police Force and the other with petty offences. He was con-

1 cerned with the confused division of offences between the Criminal Code and the Police 1953. This Amendment sought to dcaI with the problem of heroin. I t sought to have the manufacture, use or sale of heroin in any form banned. The initiative stemmed originally from the World Health Organisation and thence the Commonwealth Government which had decided to ban its importation. The Bill was not regarded as in any way con t rn t iou~ .~~ 1954. The purpose of the first Amendment was to increase the penalties for wilful damage to property and to birds, animals, gardens, trees, etc. The incidence of vandalism had been the cause of concern to the government authorities. The average number of convictions for this type of offence had numbered about 170 over the previous seven years. There had been a considerable outcry at the killing and maiming of the quokkas at Rottnest Island. No objections were raised to the Bill which received general support in both Houses.25

A month later the Minister for Police, Mr. H. H. Styants, was seeking a further amendment to the Act in the Legislative A~sembly .~~ On this occasion it was to inaugurate a punishments appeal board for the Police Force which had been brought forward at the request of the Police Union which wished to establish a right of appeal against punishment inflicted upon them by the board or by the commissioner. According to the Minister Western Australia and Tasmania were the only two Australian States which did not possess such an appeal board.

21 115 PARL. DEB. 672, 943. 22 132 PARL. DEB. 1250. 23 Idem 1558. 24 135 PARL. DEB. 1782 and 136 PARL. DEB. 2123. 25 138 PARL. DEB. 576, 863. 26 139 PARL. DEB. 1854; s. 33B (2) (c) of the Act.

266 WESTERN AUSTRALIAN LAW REVIEW

In the committee stage in the Legislative Council there was some controversy on whether the Police Force representative should be elected or selected from the executive of the union only. Apart from a number of points of detail this Bill also met with general approval.27 1955. The Amendment sought to improve the scope of s. 65 of the Act to deal principally with criminals coming from other States by extending the scope of idle and disorderly persons. I t also sought to amend s. 85 by permitting a justice of the peace to sign a warrant without having to seal it. The use of seals was regarded as obsolete. There was no opposition to either amendment.28 1956. The purpose of this Amendment was to make it an offence to carry a lethal weapon without lawful excuse. The effect was to classify such an individual as an idle and disorderly person under s. 63. The Minister for Police, Mr. J. J. Brady, told the Legislative Assembly that "over recent years there has been an alarming increase in the incidence of carrying lethal, offensive and/or concealable weapons". He added that there was "no effective means of dealing with a person found to be armed with a cosh, knife, knuckleduster, sharpened chain or other similar weapon". He cited various incidents which had oc- curred involving the use of offensive weapons.2s The measure met with general approval.30

Subsequently in the same session a private member, Mr. A. F. Watts, sought to amend s. 50 which authorises a police constable to demand the name and address of any individual and authorises him to appre- hend him should he refuse to give his name and address. Mr. Watts's Bill was largely inspired by observations made by Mr. Justice Fullagar in the High Court.31 Mr. Watts thought that the authority of a police officer to demand the name and address of any person should be confined to a person whom he reasonably suspected of having com- mitted, committing or being about to commit an offence. He also thought that a police officer should be in uniform at the time of seeking a name and address and said that in 1892 the only constables in existence were those who wore uniform.32 The Minister for Police thought it undesirable that the power of the police should be restricted

27 138 PARL. DEB. 962 and 139 PARL. DEB. 1471. 28 141 PARL. DEB. 373, 935. 29 144 PARL. DEB. 1372. 30 Idem 1454, 1688. 31 Trobridge v. Hardy (1956) 29 A.L.J. 532, 533; s. 50 was later amended in

1965.

POLICE OFFENCES 267

in this way and the Bill was defeated by 25 votes to 16 in the Legis- lative A ~ s e m l y . ~ ~ 1959. This Amendment sought to create a new offence relating to the passing of valueless cheques (s. 64A). A minor amendment to s. 94A was also made enabling a proclamation to be revoked. I n one debate concern was expressed for a situation where an innocent person finds himself inadvertently overdrawing on his bank account. The onus of proof moved to the defendant to show he had reasonable grounds for believing the cheque would be met and had no intent to defraud. There was considerable discussion on the merits of the proposed offence and its relation to s. 426(f) of the Criminal Code and the provision that a prosecution could only be commenced with the written consent of the Commissioner of Police satisfied members.34 1961. The Amendment sought to control the use of slot machines, sometimes referred to as pin-ball machines which were regarded by the Commissioner of Police as a public nuisance.35 Mr. A. R. G. Hawke, Leader of the Opposition in the Legislative Assembly, was not sure whether the Government or the Police were "setting out to try to prevent the fool and his money from being soon parted or whether they are setting out to reduce gambling activities". He did not think that major gambling activities were in slot machines or in minor gambling devices of that character. I t did not compare to the "huge organized gambling activities which go on at every registered race meeting and at every registered trotting meeting".36 I t was con- ceded by both Houses that the Bill was necessary and timely, but it was hoped that it would not have the effect of stopping harmless am~se rnen t s .~~ 1962. The Amendment was in the nature of a number of small repairs to a number of sections. Section 66, the vagrancy section, was amended to cope with the type of offender commonly referred to as a "Peeping Tom". According to the Minister for Police, Mr. J. F. Craig, it was a complaint "dealt with practically every night by the members of patrol cars, the culprit often causing considerable mental distress to women folk and young ~ h i l d r e n " . ~ ~ Section 90A was re-

33 Idem 2037. 34 152 PARL. DEB. 883, 1143 and 153 PARL. DEB. 1273, 1336. 35 160 PARL. DEB. 2527. 36 Idem 2614. 37 Idem 2578, 2622. 38 161 PARL. DEB. 558.

268 WESTERN AUSTRALIAN LAW REVIEW

drafted. The subject of gambling machines was discussed at length by a number of members and the Bill met with general approval.39

I 1963. The object of this Amendment according to the Minister for Police, Mr. J. F. Craig, was "to tighten the sections dealing with trespass provisions (ss. 82 and 82A), and . . . to give effect to judicial and general views on the anomalies existing in s. 84 of the Act re- garding juvenile^".^^ Representations had been made seeking assistance to combat damage caused by trespassing, mainly on farming proper- ties. Picnickers who went mushrooming at weekends were alleged to cause a lot of damage. The allegation that "every year thousands of pounds worth of damage was caused by these trespassers" was queried, and it was suggested that the Police Department already had ample power to cope with the situation.41 The Amendment met with general support in both Houses.42 1964. The first Amendment increased the penalties provided for in the Police NO provision was made for the imposition of mini- mum penalties. Disquiet was expressed at the increase of penalties by as much as 100 per cent to 900 per cent. Mr. J. J. Brady referred to the staggering number of the native population who were convicted of offences under the Act and other members referred to the paucity of information to justify the increased penalties. The Bill was sub- jected to some caustic comments in the Legislative Assembly but met with a more favourable reception in the Legislative Council.&

The second Amendment was passed in consequence of the Poisons Act 1964 and changes made to the list of drugs of addiction in the Eighth Schedule to that Act were made applicable to the Police Act. The Amendment was treated as a formality.45 1965. The problem of fraudulent cheques and slot machines were again before the Legislature. Although there were some sharp criticisms made of the changes and a discussion on whether it was an offence to put an English or New Zealand sixpence in a parking meter under the new s. 89B,46 the Amendment was passed without a vote being taken on the second reading in either House.47 When it came to con-

39 161 PARL. DEB. 653 and 162 PARL. DEB. 1001. 40 165 PARL. DEB. 2442. 41 Idem 2557. 42 Idem 2565, and 166 PARL. DEB. 2790. 43 167 PARL. DEB. 882. 44 168 PARL. DEB. 1283, 1581. 45 168 PARL. DEB. 1938, 2090. 46 170 PARL. DEB. 170. 47 Idem 668, 799.

i

POLICE OFFENCES 269

sidering whether putting a metal washer in a slot machine was an offence the Minister for Mines, Mr. A. F. Griffiths, explained in the Legislative Council :

We can generally rely on the commonsense of the police in these matters. The police do not prosecute just for the sake of prose- cuting; they do so to reduce and prevent these offences.48

1967. The first Amendment transferred prosecutions in relation to obscene publications from the Police Act to the Indecent Publications Act 1902-1967. I t was treated as a formality in both Houses.49

The second Amendment was also treated as a formality being a complementary measure to an amendment to the Poisons Act 1964- 1967 which required an amendment to s. 94A. Mr. J. J. Brady wel- comed it as a measure to combat drug addictioc60 1968. The Amendment had two objects-to make it an offence for a female person to live on the earnings of prostitution as well as male persons (s. 76G) ; and to enable the smoking of marijuana to be more easily controlled by bringing it under s. 94B. Mr. Brady thought the changes to the Act were in keeping with the times in which we live and this seems to have been the general consensus of opinion.61 1969. The Amendment dealt with two separate topics: some minor amendments as a result of a change in the classification of commis- sioned officers in the Police Force; and a redefinition of the offences under ss. 16 and 16A of impersonating a police officer. The latter amendment was rendered necessary by the acquittal of an accused person at Northam Police Court by reason of the fact that the prose- cution had not established that the accused was not a member of the Police Force.52 Opposing this amendment in the Legislative Assembly Mr. Brady said:

The Opposition believes that to introduce legislation to deal with isolated cases is not the correct approach. I think the legal pro- fession generally accepts the fact that isolated cases do not make for good legislation. . . . it is better than half a dozen men be acquitted than one innocent man be found

1 The effect of ss. l ( 2 ) and 16A(2) was to place the onus of proof upon the accused to show that he was not a policeman.

48 Idem 799. 49 176 PARL. DEB. 744 and 177 PARL. DEB. 977. 50 177 PARL. DEB. 2194. 61 179 PARL. DEB. 1243, 1509. 52 182 PARL. DEB. 3311. 63 Idem 3312.

270 WESTERN AUSTRALIAN LAW REVIEW

1970. The first Amendment increased the possible penalties which could be imposed on police officers for breach of discipline (ss. 23

l and 24) and altered s. 81 relating to the unlawful removal of boats.

1

Apparently legal opinion was that the offence was restricted to the removal of boats on water and did not include those beached or on slips or even those on trailers.54 Apart from some discussion as to the meaning of the word "flat" ( a punt or flat-bottomed sailing boat?) the Amendment met with approval.55

The second Amendment dealt with ( i ) "antisocial conduct" by "overwhelming numbers of milling, disorderly people" (disorderly assembly s. 56A) ; (ii) vandalism (ss. 58A and 80) ; and (iii) drugs (ss. 94-94H). Of all the Amending Bills submitted to the Legislative Assembly this Bill led to the longest debate on the second reading. There was a division on the introduction of the new offence of dis- orderly assembly (s. 54A) during the Committee stage in the Legis- lative Assembly and there was a full discussion on the same section in the Legislative Council.56

The Amendment also created a new section, s. 138A, which author- ized the making of regulations with power to impose penalties of up to $100 for contravention. I t is disturbing that the Legislature should have seen fit to delegate its power in this field. 1972. The Amendment contained three separate amendments to s. 61 (amusement centres to be open on Sundays), s. 75 (sale of un- claimed stolen goods), s. 65 (unlawful use of motor vehicles and possession of dangerous weapons in motor vehicles). None of the changes proved to be controver~ia1.~7

54 See Wills v. Williams [I9711 W.A.R. 29. 55 185 PARL. DEB. 2786, 2940. 56 188 PARL. DEB. 1683, 1800. 57 193 PAUL. DEB. 484, 954.

PO LICE OFFENCES

APPENDIX B

Reported Cases on Police Act 1893-1972

S. 20 Interference with police Maingay u. Mansfield (1919) 21 W.A.R. 70

A licensee of certain licensed premises, which are being visited by police officers after the proper hour for closing, who runs to warn persons inside the premises of the arrival of the police, and by his actions does warn the persons inside the licensed premises, is guilty of an offence under s. 20.

S. 43 Loitering, drunkenness, disorderly conduct, indecent language, etc.

Hagan u. Ridley (1948) 50 W.A.L.R. 112 To constitute the offence it is not incumbent on the prosecution to

establish that there was a purpose which was unlawful, or that the person charged was already under suspicion. The section is based on English vagrancy legislation: Ledwith u. Roberts [I9371 1 K.B. 232 considered. The offence is different from s. 96(12) which penalises the act of standing or loitering about in any street to the annoyance of passers by. S. 43 applies where the accused remains without any apparent purpose or reason such as one might be expected to have in the conditions existing.

Thurley u. Hayes (1920) 27 C.L.R. 548 The words "calculated to provoke a breach of the peace" in s.

137(1), Police Act 1905 (Tasmania) (which are used in s. 69) mean likely to have that effect. The words "You are sponging on the Government and you waste public money and I will report you", spoken to a returned soldier, might properly be found to be insulting and to be calculated to provoke a breach of the peace.

S. 65 Idle and disorderly persons Lee Fan u. Dempsey (1907) 5 C.L.R. 310

Upon prima facie proof of the absence of lawful means of support, the onus falls upon the accused to prove the existence of such means to the satisfaction of the court under s. 65 ( 1 ) .

(Wilson u. Benson [I9051 V.L.R. 229 and Wilson u. Trauers [I9061 V.L.R. 734--justices cannot be required to require accused to give an account of his means of support-overruled.)

Martinelli v. Mann (1909) 11 W.A.L.R. 240 Where an accused, who kept a small shop in conjunction with an-

other man and frequently visited the house of a woman of ill fame, failed in answer to give a good account of his means of support, he was rightly convicted. I Egan v. McLernon (1949) 51 W.A.L.R. 83 1

By a majority of 2-1 (Dwyer C.J. dissenting) it was held that an I accused person's past activities and his conduct at the time of his , arrest may be sufficient to indicate prima facie that he is without visible means of support in the terms of s. 65(1). Lee Fan v. Demp- sey (1907) 5 C.L.R. 310 discussed.

Zanetti v. Hill (1962) 108 C.L.R. 433 In order to require an accused to give a good account of his means

of support under s. 65 (1) it is necessary for the prosecution to prove the absence or insufficiency of visible lawful means of support beyond reasonable doubt; it is sufficient if it raises a reasonable or probable presumption of the absence or insufficiency thereof.

S. 66 Rogues and vagabonds Isherwood v. OJBrien (1921) 23 W.A.R. 10

The mere pretending or professing to tell fortunes is an offence under s. 66(3). The legislature intended to make it unlawful for any person to pretend or profess to tell fortunes and to prohibit any per- son from so doing.

(Davis v . Curry [I9181 1 K.B. 109 not followed.)

Hare v . Clarey ( 1951 ) 53 W.A.L.R. 78 The ingredients of the offence under s. 66(8) are: (i) the presence

of the accused in or upon any place, and (ii) the existence of an un- lawful purpose. The purpose is unlawful when it is related to an in- tention to do something which, if carried out, would be punishable as an offence under the criminal law. The circumstances surrounding the presence may be such that, in the absence of explanation, a general inference that the purpose was unlawful may be drawn.

Wills v. Williams [I9711 W.A.R. 29 The expression "lawful excuse" in s. 66(13) does not mean legal

right and the onus is upon the prosecution to show facts from which it could be inferred that an accused was on the premises for a criminal purpose.

POLICE OFFENCES 273

(Carter v . Redper [I9201 V.L.R. 337 followed, except in regard to the burden of proof.)

Hansen v. Archdall (1931) 44 C.L.R. 265 Fortune-telling, if dishonestly made, is an offence under s. 3,

Vagrant Act 1851 (Queensland) (similar to s. 66(3) ) and is not limited to cases of imposition by way of charity.

Hancock v. Birsa (1971) 10 WEST AUST. L. REV. 180 The expression "without lawful excuse" in s. 66(13) does not mean

"for an unlawful purpose", but means without a reasonable excuse. Wills v. Williams [I9711 W.A.R. 29 distinguished.

S. 69 Persons suspected of having stolen goods R. v. Hahn (1901) 3 W.A.R. 78

Section 69 must be read with, and is supplemental to, s. 49 (power to police to apprehend certain offenders), both sections relating to the person having anything suspected of having been stolen in his personal possession in a street or place, and not to his possession in a house.

Lynch U. Sharpe (1901) 4 W.A.R. 10 The failure of an accused to give a satisfactory account of how he

came to be in possession of certain property does not of itself justify a conviction under s. 69; the prosecutor must satisfy the court that the property might be reasonably suspected to have been stolen, or other- wise unlawfully obtained. R. v. Hahn, supra, followed.

R. v. Quick (1903) 5 W.A.R. 118 The offence under s. 69 is not merely that the person accused is

suspected of having on his person or in any place, or conveying any property reasonably suspected of being stolen or unlawfully obtained; it is of the essence of the offence that the accused, having been arrested on suspicion of having on his person or in any place, or con- veying anything which may be reasonably suspected of being stolen or unlawfully obtained, and who, being brought before a Justice, does not give an account to the satisfaction of such Justice how he came by the same.

274 WESTERN A U S T R A L I A N L A W R E V I E W

Kauanagh v. Claudias (1907) 9 W.A.R. 55 The words "in any place" in s. 69, which are not found in s. 24,

Metropolitan Police Courts Act 1839 (the corresponding section), require a construction of the section extending beyond that to which it was limited in Hadley v. Perks (1866) L.R. 1 Q.B. 444.

The jurisdiction of the magistrate under s. 69 was not ousted by the fact that the goods in question had been found in the course of the execution of a search warrant under s. 70 and R. v. Hahn 3 W.A.R. 78 and R. v. Deeble 5 W.A.R. 56 were wrongly decided.

Buckley v. Lewis (1920) 22 W.A.R. 71 Section 208, Justices Act 1902-1919 gives power to a court of petty

sessions to amend a conviction to make it conform with s. 69, Police Act; the object of the legislature was to do away with such technical objections.

Treacy v. OJBrien (1921) 23 W.A.R. 34 An accused who deposits certain gold in a bank does not commit

an offence under s. 69. The meaning of the section is that any sus- pected person may be arrested if he be found in actual as opposed to constructive possession of property supposed to have been stolen, whether he has it on his person, or in any place, or is conveying it in any way; but a person cannot be said to have actual possession of property in a place unless he has at the time either physical control of the property or exclusive control of the place.

Cox v. Angove (1930) 32 W.A.R. 75 Where a wharf labourer coming from the hatch of a ship on being

approached by a police constable was seen to fumble with his cloth- ing and silk gloves were found on the floor where he had been stand- ing there was sufficient evidence, unless controverted, to establish (a ) that the goods were on the person of the defendant, and (b) that there was reasonable suspicion that they had been stolen.

Wightman v. Copperwaite (1930) 32 W.A.R. 101 The accused was seen carrying a bag of chaff which he had no

authority to take; shortly afterwards the police searched the premises occupied by the accused and found ( a ) a bin containing approxi- mately one bag of chaff and (b) an empty chaff bag lying alongside the bin. A contention that the charge should have been one of stealing and not under s. 69 was not justified.

POLICE OFFENCES 275

Baldock v. Douglas (1954) 56 W.A.L.R. 83 In the course of investigating another charge detectives found at

the back of the accused's premises some wooden blocks. In answer to questions the accused made statements which resulted in his being charged with and subsequently convicted of unlawful possession con- trary to s. 69. I t was held that the evidence of admissions made to the detective by the accused was admissible. McDermott v. R. (1947) 76 C.L.R. 501, 515; and Hough v. Ah Sam (1912) 15 C.L.R. 452, 455 applied.

Where the goods the subject of the charge are not in the physical possession of the accused, but are alleged to be in the control of the accused in some places, difficulties arise, and the Courts have not always spoken with a single voice on the matter.

OJSullivan v. Reedy (1952) 87 C.L.R. 291 I t is a necessary ingredient of s. 93(1), Police Act 1936-1951 (South

Australia) (similar to s. 69) that a concrete suspicion must have been actually entertained on reasonable grounds by some particular person at some particular time prior to the making of the charge; a complaint alleging that the defendant had goods in his possession which "might have been" reasonably suspected of having been stolen did not dis- close an offence under the section. (Moore v. Allchurch [I9241 S.A.S.R. 11 1 approved.)

Moors v. Burke (1919) 26 C.L.R. 265 The expression "actual possession" in s. 40, Police Offences Act

1915 (Victoria) (which is not used in s. 69) means complete personal physical control of the property, to the exclusion of others who are not acting in concert with the accused, either by having the property in his present manual custody or by having it where he chose, to the exclusion of such others, has the right or power to place his hands on it, and so to have manual custody when he wishes.

Willis v. Burnes (1921) 29 C.L.R. 511 Where the Crown has established that the defendant knowingly

was in possession of certain property and that that property might reasonably be suspected of having been stolen, by s. 27 Police Offences Act 1901 (New South Wales) (similar to s. 69) the onus is upon the defendant of satisfying the justice that he came by the property honestly, and that onus is not discharged if the justice is left in doubt as to whether the defendant came by the property honestly.

2 76 WESTERN AUSTRALIAN L A W REVIEW

S. 70 Information given that reasonable cause to suspect goods stolen R . v. Deeble (1903) 5 W.A.R. 56

Section 69 has no connection with s. 70. Section 70 empowers a police constable to take the person found

in the house or place where the goods have been discovered under a search warrant before a Justice; it does not empower the Justice to proceed further and convict.

S. 76A Unlawful possession of gold (previously s. 2, Police Act Amend- ment Act 1902)

McArthur v. Gee (1907) 9 W.A.R. 218 In order to sustain a conviction under the section there must be

actual or constructive possession at the time of the arrest.

Hughes v. Dempsey (1915) 17 W.A.R. 186 Reasonable suspicion means that there must be something more than

mere imagination or conjecture. I t must be the suspicion of a reason- able man, warranted by facts from which inferences can be drawn; but it is something which falls short of legal proof.

Dunleavy v. Dempsey (1916) 18 W.A.R. 90 I t is necessary to prove : ( 1) the finding of gold in the possession

of the accused person on premises of which he is the reputed occu- pier; ( 2 ) circumstances connected with such finding which give rise to a reasonable suspicion that the gold so found was unlawfully ob- tained; and ( 3 ) such suspicion must arise contemporaneously with the finding or antecedent to it.

Wittman v. Pitman (1919) 21 W.A.R. 81 On a conviction for having had in his possession on certain premises,

of which the appellant was the reputed occupier, gold reasonably sus- pected of being unlawfully obtained, a magistrate has no jurisdiction under s. 76A to order the return of untreated ore to the alleged owners.

Hoepner v. Manning (1928) 31 W.A.R. 42 The accused was present when police officers discovered, in an old

underground working on a mining lease of which he was the holder, ( a ) a lighted furnace, which was well hidden, and (b) a considerable quantity of gold-bearing ore in a crucible in the furnace. The accused stated he had abandoned the lease, denied all knowledge of the exist-

POLICE OFFENCES 277

ence of the furnace, expressed his opinion that the gold had been stolen and blamed some Italian miners who were in the vicinity. I t was held that the accused had failed to prove that he was not in possession of such gold.

Egan v. Kevan (1942) 44 W.A.L.R. 14 The accused were charged on complaint that they had in their

possession gold reasonably suspected of having been stolen or other- wise unlawfully obtained but the complaint did not indicate under what Act it purported to have been brought. At the hearing the Magistrate and both parties considered that the complaint was laid under s. 2, Police Act Amendment Act 1902. The complaint was justified in its form and contents by s. 69 and a conviction was proper under this section.

Douglas v. Radalj (1949) 51 W.A.L.R. 43 The explanation given by an accused found in possession of gold

must be not only reasonable and probable, but also honest and true. If a magistrate is left in a state of doubt, then he is not satisfied and should find the charge proved.

S. 76G Living on earnings of prostitution Middleton v. McGinty (1926) 28 W.A.R. 88

There is power under s. 212, Justices Act 1902-1920 to amend a conviction under s. 8, Police Act Amendment Act 1902 (now s. 76G), and it is the duty of the court to amend it consistently with the merits of the case.

S. 78 Unlawful detention of goods Evans v. Waller (1903) 5 W.A.R. 102

Books of account are not "goods" within the meaning of this part of s. 78, but are "deeds, muniments or papers relating to property". I n proceedings under s. 78 for the unlawful detention of books of account containing books debts exceeding in value the sum of £50 ($loo), the court has no jurisdiction.

Carmichael v. Castieau @ Co. (1917) 19 W.A.R. 36 Summary procedure has been laid down by which, where the

property is under a certain value, it can be recovered in the police court; a children's court constituted under the State Children Act 1907 has no jurisidiction to hear a claim by a boy aged 14 years for

278 WESTERN AUSTRALIAN LAW REVIEW

the recovery of a pony, but the court of petty sessions constituted under the Justices Act 1902 has jurisdiction to hear and determine the matter.

S. 80 Malicious injury to property (repealed and replaced by No. 85 of 1970)

Carpenter v. Marshall (1922) 25 W.A.R. 105 An order for compensation can only be made on a conviction being

recorded.

S. 81 Removing boat from anchorage Wills v. Williams [I9711 W.A.R. 29

On its proper construction the section requires that the act of re- moval whether from anchorage, mooring or place, occur in public waters.

[The section was subsequently amended in 1970.1

S. 84 Houses of public resort Higgon v. O'Dea [I9621 W.A.R. 140

The provisions of the section, "in so far as they relate to the activities of children, if interpreted literally and enforced without discrimina- tion, could operate so absurdly, unjustly and unreasonably that they cannot be regarded as an appropriate means of curing such a mis- chief".-per Wolff C.J. at 142.

Relationship to s. 44, Metropolitan Police Act 1839 (U.K.) dis- cussed.

"Under this section every shop-keeper, hotel-keeper and theatre proprietor who pennits a child to enter his premises commits an offence, as does every local authority which permits a child to enter its parks and reserves. Such a result is clearly absurd but, to my mind, it is equally clear that this is what the section enacts. . . . the words of s. 84, are, in my opinion, too intractable to permit any alternative choice of meaning."-per Hale J. at 146.

[Subsequently amended in 1963, 1964 and 1965.1

S. 84A House kept for the purposes of betting (previously s. 4, Police Act Amendment Act 1893)

Dunn v. Littlejohn (1900) 2 W.A.R. 138 The evidence of a police constable who laid a bet for the purpose

of detection is not the evidence of an accomplice and the amount of corroboration required lies in the discretion of the Judge.

POLICE OFFENCES 279

Christie v. Stubbs (1947) 49 W.A.L.R. 21 Where there was no evidence that betting actually took place in

the accused's shops, but bets were made in an adjoining lane by the accused with various persons, it was held that the lane and shop were sufficiently confined and localised to justify a conviction under the section.

Rosich v. Rappeport (1947) 49 W.A.L.R. 100 The form of warrant authorised by s. 85 to enter, search and seize

in common gaming houses is applicable to the types of premises specified in s. 84A.

An order for forfeiture of moneys lawfully seized under a warrant authorized by s. 85 is valid.

S. 84A covers everyone in the shop assisting in the common purpose of betting. Marchesi v. Rosich (1947) 49 W.A.L.R. 92

Evidence that bets were made in a shop must be distinguished from using the club for the making of bets; there must be clear evidence of use and localisation to sustain a conviction under the section.

S. 89 Gaming Beano v. Turner [I9611 W.A.R. 59

Section 89 is essentially an evidentiary section and contemplates the discovery of things by their very nature fall within the class of "instru- ments of gaming used in playing an unlawful game". I n this context "used" cannot mean "which are being used", but must mean "which are normally used" or "which are designed to be used". The instru- ment should be recognizable as something designed to be used in playing an unlawful game, i.e. a game which is unlawful in all cir- cumstances and not merely unlawful when played in circumstances in which it is an offence to play it.

The section does not empower a magistrate to order the destruction of a pin ball machine seized in a common gaming house and proved to have been used for gaming.

S. 138 Incorporation of Interpretation Act Luetich v. Walton [I9601 W.A.R. 109

Paragraph H of the Second Schedule to the Interpretation Act 1918-1957, incorporated in the Police Act by s. 138 requires direct proof of malice, inter alia, in an action against a constable on account of any act done in carrying the provisions of the Police Act into effect. Malice is present where a police constable arrests a person for an

280 WESTERN AUSTRALIAN LAW REVIEW

offence not known to the law as a result of pique. The police should exercise extreme caution in interfering in private squabbles.

There are of course a substantial number of police offences on which there have been no reported decisions, namely s. 18 (harbour- ing constables on duty), s. 41 (hindering searches on vessels) s. 42 (refusing to leave gaming house), s. 44 (drunkenness and disorderly behaviour on vessels or in licensed premises) s. 50 (refusing to give name and address), s. 51 (owning rabid dogs), s. 52 (obstructing streets during public processions), s. 53 (drunkenness), s. 54 (dis- orderly conduct) s. 54H (disorderly assembly), s. 57 (negligent and furious driving) s. 58A (damaging animals and plants in public gar- dens), s. 59 (obscenity), s. 51 (playing games on Sundays) s. 62A (pointing a firearm) s. 63 (taking dog into public gardens), s. 64 (challenge to fight), s. 64A (valueless cheques), s. 67 (incorrigible rogues), s. 71 (possession of stolen goods by carrier), s. 76C (being found on premises where stolen gold found), s. 76D (being accessory where stolen gold seized), s. 76F (assisting prostitution), s. 76H (Sun- day entertainments), s. 79A (unlawfully taking or branding animals), s. 82A (trespassing on enclosed land), s. 83 (selling adulterated or unwholesome food) s. 84D (receiving money for betting) s. 84G (Ex- hibiting placards or advertising betting houses), s. 84H (advertising betting or lotteries), s. 86 (keeping a gaming house), s. 89A (using or possessing slot machines), s. 89B (using metal washers in slot machines), s. 90 (obstructing police officer), s. 90A (false reporting to police) s. 94 (cheating at play) s. 94B (possessing dangerous drugs), s. 94D (obstructing search for drugs), s. 94G (possessing heroin), s. 96 (public nuisance), s. 97 (destruction of acclimatised animals or birds), s. 98 (playing musical instruments in street), s. 99 (firing canon near dwelling house), s. 100 (failing to remove pig-sty), s. 101 (slaughter houses) s. 102 (inspection of meat), s. 103 (neglect of private avenues), s. 104 (proper bathing costume), s. 105 (damaging public buildings), s. 106 (polluting watercourses), s. 107 (injuring public fountains), s. 108 (conveying night-soil at prohibited hours), s. 109 (removing night-soil at prohibited hours), s. 110 (removing dead animals), s. 11 1 (removing turf from streets), s. 112 (drawing or trailing timber), s. 113 (covering entrances to cellars), s. 114 (cellars beneath footways), s. 115 (covering walls), s. 116 (enclosing vaults), s. 117 (stalls on carriage-way), s. 119 (rain from eaves on footways), s. 120 (erection of boards), s. 121 (blasting rock), s. 125 (compounding informations), and s. 128 (frivolous information) .