Summary Offences and Penalties in SA

Prior to 10 May 1985, it was known as the Police Offences Act. The Summary Offences Act 1953 (SA) is distinct from the Summary Procedure Act and makes provision for offences against public order and for powers of police officers in relation to the investigation of offences and more.

A public venue is a place where members of the public gather for entertainment or events or activities of any kind regardless of whether money was paid, or if admission is restricted to members of a club or particular class of persons, except churches or places of worship.

Section 62 of the Evidence Act 1929 (SA) provides for proof of a public place in certain cases. The case law has provided that a fenced private road by trespassers on limited occasions does not make it a public place, but could be if there is evidence of its use by members of the public.

A theatre can be a public place even though some sections of the public are excluded from it: A-G v Huber; Ex parte Daniels (1971) 2 SASR 142 . Unfenced privately owned land to which the public has free access was held to be a public place in Roberts v O’Sullivan [1950] SASR 245.

An area which is normally a public place does not cease to be one while the public are temporarily denied access to it: Hughes v Fingleton (1977) 17 SASR 433.

Offensive weapons under the Summary Offences Act 1953 are different to those under the Criminal Law Consolidation Act 1931 (SA). The prosecution must prove that the defendant carried either a thing which was not in a common use for any purpose other than as a weapon or an instrument which has a normal use other than as a weapon, but on the occasion charged it was intended by the defendant to be a weapon of attack Coleman v Zanker (1991) 58 SASR 7 at 12.

An imitation pistol which was a cigarette lighter could be an offensive weapon where it was used offensively by the defendant: Sandaev v Forster (1983) 35 SASR 38 . The intention to use the object in an offensive manner need only be proved at the time of the commission of the offence and not earlier: R v RJS (1993) 69 A Crim R 163.

Not all knives are necessarily offensive weapons: Freundt v Hayes (1992) 59 A Crim R 430 at 437, but to the contrary is Darling v Police (2003) 228 LSJS 59; [2003] SASC 179; BC200303201  (Duggan J) which held all knives were offensive weapons without needing any proof of the purpose for which they were being carried.

In Verdiglione v Police [2007] SASC 349; BC200708463  (Kelly J): 28 September 2007, in holding that a baseball bat was an offensive weapon without proof of the purpose for which it was carried.

A pistol crossbow was held to be a dangerous article in Montgomery v SA Police (1994) 175 LSJS 419. The words written on a container do not prove the nature of its contents, but on evidence it was held that it could be inferred that its contents did constitute a dangerous article: Cooke v SA Police (2000) 211 LSJS 9; [2000] SASC 343.

A Ka-Bar knife is a knife designed or adapted for hand to hand fighting, and thus is a fighting knife for the purpose of para 7 of Sch 2 of those Regulations: Yuen v Police [2012] SASC 149.

Trespassing is an entry without right or permission by a person onto the land of another, or, if any right to enter is limited in its scope, an entry which is unrelated to the right: Barker v R (1983) 153 CLR 338 at 341–2; 47 ALR 1; 57 ALJR 426.

The offence requires a guilty intention that the defendant either knows they are trespassing they enter or while they are on the land, but no prior request to leave need be proved: Semple v Mant (1985) 39 SASR 282 . The initial trespass is not an offence under s 17A, only the refusal to leave and any subsequent entry, and there cannot be a claim of right defence to a re-entry where the defendant knew that he or she had no right to re-enter: Police v Slobodian (2008) 254 LSJS 117; [2008] SASC 69.

To loiter means to tarry or hang about even if the person has a lawful reason to be there: Samuels v Stokes (1973) 130 CLR 490; 2 ALR 269. A legal, contractual, moral or social duty of gravity, and a real necessity, may justify a person remaining after a direction to cease loitering: Power v Huffa (1976) 14 SASR 337; Walker v Hayes (1986) 44 SASR 250;

A victim of a crime seeking to report it to a police officer, and refusing to move on when requested to do so, does not have a sufficient reason not to move on, and so is offending against s 18: Cross v Police [2012] SASC 108.

The test is objective. A person who is moving cannot be loitering: Rice v Daire (1982) 30 SASR 560. There can be a defence of impossibility to comply with the direction where the defendant is physically unable to move: Starri v SA Police (1995) 182 LSJS 273; 80 A Crim R 197.

Language is indecent if it is highly offensive to recognised standards of common propriety, although not only to people who are easily shocked: Robertson v Samuels (1973) 4 SASR 465. It is the current contemporary standards of the community which are to be applied, and thus language previously considered indecent may no longer be so: Romeyko v Samuels (1972) 2 SASR 529. No evidence can be called on what is considered indecent: Prowse v Bartlett (1972) 3 SASR 472. Whether language is indecent is a question of fact and is to be assessed against the background circumstances.

“Soliciting” involves a personal approach for the purpose of, or which is accompanied by, or which constitutes or conveys, an offer that some form of sexual activity will be engaged in by the person making the approach in return for monetary gain: Coleman v DPP (2000) 49 NSWLR 371.

Soliciting must amount to an invitation to other persons going about their business to avail themselves of the services offered: Fingleton v Bryson (1980) 26 SASR 208. It requires the physical presence of the offender in the act of invitation, and so a written advertisement is not sufficient: Weisz v Monahan [1962] 1 All ER 664 ; Burge v DPP [1962] 1 All ER 666 at 667.

The offender need not be in a public place provided that the solicitation is projected into a public place: Behrendt v Burridge [1976] 3 All ER 285.

A mere offering of the services is sufficient without any further element of pestering, importuning or flaunting: Jitjarden v Thompson (1995) 85 A Crim R 24.