The silly season is upon us – and for most of us, the holiday period is marked by festivities and celebrations with family and friends.
It is an especially busy period for police across Australia, who will charge thousands of people with a range of criminal offences – the most common of which are likely to be drink driving, common assault and drug possession.
Police maintain a strong presence in public places over the festive season – which is how many people are brought to notice.
This blog outlines what is meant by a ‘public place,’ and explains some of the offences which can only be committed in public places.
Offences in Public Places
The law contains a raft of offences which can only occur in or near public places.
Two of the most common are ‘offensive language’ and ‘offensive conduct’. These offences occur when a person uses offensive language, or behaves in an offensive manner, in or near, or within view or hearing from, a public place or a school.
There are also several weapons and firearms offences which can occur in public places. For instance, section 11C of the Summary Offences Act contains the offence of ‘custody of knife in a public place or school,’ while section 93I(1) of the Crimes Act relates to ‘possessing an unregistered firearm in a public place.’
For a person to be found guilty of these offences, the prosecution must prove beyond reasonable doubt that the conduct occurred in a ‘public place’.
What is a Public Place?
There are several different definitions of ‘public place’ under the law. Section 8 of the Crimes Act 1900 defines a ‘public place’ as:
‘…a vessel or vehicle only, or a room, or field, or place, ordinarily private, was at the time used for a public purpose, or as a place of common resort, or was open to the public on the payment of money or otherwise. ’
Under section 3 of the Summary Offences Act 1988, a public place is:
‘(a) a place (whether or not covered by water), or
(b) a part of premises,
that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons, but does not include a school.’
If you think these definitions are a little confusing, you are not alone. Over the years, courts have struggled to interpret exactly what is meant by a ‘public place’ under the law.
The definition of ‘public place’ was considered in Hardman v Director of Public Prosecutions (NSW)  NSWCA 130.
Jamie Hardman was charged with ‘possession of a loaded firearm in a public place’ after police stopped his Toyota Landcruiser on a deserted country road near Moree.
Mr Hardman was a professional shooter whose car was fitted out ‘in the normal manner of a person that shoots kangaroos or pigs.’ There were several animal carcasses on the back of his car, and a rifle was sitting in a bracket on top of the dashboard, pointing out the driver’s door.
Police asked Mr Hardman, who held a valid NSW firearms licence, to remove the rifle and hand it over to them. Mr Hardman complied with that request. Police found that the weapon was loaded with live cartridges and, although it was entirely within the car, charged him with ‘possessing a loaded firearm in a public place’ under 93G of the Crimes Act 1900. That section reads:
(1) Any person who:
(a) possesses a loaded firearm or loaded spear gun:
(i) in a public place, or
(ii) in any other place so as to endanger the life of any other person, or
(b) fires a firearm or spear gun in or near a public place, or
(c) carries or fires a firearm or spear gun in a manner likely to injure, or endanger the safety of, himself or herself or any other person or any property, or with disregard for the safety of himself or herself or any other person, is liable to imprisonment for 10 years.
Mr Hardman defended the charge on the basis that his weapon was inside his car, which is not a ‘public place.’ The Local Court magistrate found him ‘not guilty’, but the prosecution appealed to the District Court, which found him guilty on the basis that his car was on a public road.
Undeterred, Mr Hardman appealed to the Court of Criminal Appeal (Supreme Court), arguing that his rifle was not in a public place because it was enclosed within his private vehicle, which is separate from the public road.
That Court agreed with Mr Hardman, with Justice Tobias finding that the law ‘assumes that others will be endangered by the mere fact that the person charged possesses a loaded firearm in the public place.’
Justice Tobias went on to find that:
‘The purpose or object of the provision in question is not achieved where the person charged is in possession of a loaded firearm not in the public place itself but in an enclosed motor vehicle which stands in a public place. It is one thing to be in possession of a loaded firearm within the confines of such a motor vehicle standing in a public place: it is quite another to be in possession of such a firearm when standing in a public place outside the confines of such a vehicle.’
He pointed out that whether an offence occurs in a ‘public place’ depends on the facts and circumstances of the particular case, and that the intention behind the provision is highly relevant. For instance, if Mr Hardman were to have a loaded firearm on a motorbike or pushbike, he may have been found guilty of the offence.
So, while the Court provided some clarity when it comes to the possession of firearms in motor vehicles, what counts as a ‘public place’ in other situations remains open to interpretation.
Without legislative clarification, the courts will almost certainly be called upon to determine the meaning of public place in other contexts in the future.