Your Legal Rights and Responsibilities in Public Places

by Jarryd Bartle & Ugur Nedim

The Sydney Gay and Lesbian Mardi Gras will soon be in full swing, with glitter, tassels and jockstraps flying off shelves like hotcakes as revellers gear up for the fabulous Oxford Street parade on the 29th of February.

As with any major event, a heavy police presence is expected, along with drug detection dogs. It’s therefore important to know your legal rights to ensure you are able to have a good time without being unlawfully treated.

Drug Detection Dogs

Mardi Gras wouldn’t be a Sydney event without the presence of sniffer dogs, despite the fact they are ineffective, expensive and can result in harmful drug-taking conduct such as ‘pre-loading’ and ‘loading up’.

It’s important that festival-goers are aware that drug detection dogs on patrol are trained to detect trace amounts of cannabis, ecstasy (MDMA) and methamphetamine (ice).

If a dog provides a positive response, the police will likely conduct a ‘pat-down-search’ for illicit drugs. It’s very important that you do not consent to any search by police.

There is a strong argument that a positive response by a sniffer dog does not provide ‘reasonable suspicion’ for a search. By not consenting you are ensuring that police must justify their actions.

Although it’s important that you verbalise you don’t consent, it’s in your best interest not to resist a search if the police proceed anyway.

Police must conduct the least invasive search possible on your persons or your property.

A strip search can only be conducted if certain strict criteria are met, and police are not allowed to perform an internal search on you.

Drug offences

Drug offences can be treated seriously by the courts, and you should seek legal advice immediately if you are arrested and charged with a drug-related offence.

It’s important to be aware that you can be charged with drug supply if you are found in possession of more than the ‘traffickable quantity’ of drugs, even if the drugs in your possession are for personal use. This is known as the offence of ‘deemed supply’.

Public Exposure

The Mardi Gras parade is known for showing a bit of skin, but too much exposure can lead to trouble.

Under s 5 of the Summary Offences Act 1988 (NSW), “a person shall not, in or within view from a public place or a school, wilfully and obscenely expose his or her person.”

Being charged for obscene exposure could land you a $1,100 fine or six months in prison, so it’s important to understand the limits.

An exposure will be ‘obscene’ if it is of a kind that an ordinary person would hold to be indecent. You must be intentionally indecent for the charge to be made out.

All of this is to say, it may be best to keep breasts and genitals at least somewhat covered during the parade.

And keep in mind that a ‘public place’ is broadly defined as a place or part of a premises that is open to, or used by the public, whether or not for payment, and whether or not only open only to a limited class of persons.

It includes privately owned places that are open to the public such as pubs, clubs, shopping centres, shops, sporting and entertainment venues and the like.

Drunken Behaviour

Like any party, libations will be flowing freely at the Mardi Gras – but this does come with some legal risks.

New South Wales does not have a specific criminal law against public drunkenness.

However, there are several offences under the Summary Offences Act 1988 (NSW) against acting in a way that is seen as socially unacceptable. These include offensive conduct (section 4), offensive language (section 4A) and obstructing traffic (section 6) – which police may use against those they see as unruly.

Criminal infringement notices (CINs) apply in many of these offences, which means police have an option of giving you a fine rather than taking you to court. The fines for CINs are typically a few hundred dollars, and if you feel you have been unfairly issued with a CIN you have the option of electing to take the matter to court.

However, be aware that CINs do not come with a criminal record, and that if you elect to go to court and are found guilty, the magistrate have the option of convicting you.

So all in all, it’s best to look after your friends and pace yourself to ensure you don’t end up with a costly night out.

Right to Remain silent, Investigation Period and Bail

If you are placed under arrest by police on the night it’s very important that you do not provide them with any information beyond your name and address.

You have a right to remain silent, unless it is a traffic offence in which case you will be required to provide police with the details of the person driving. This is called a ‘form of demand’.

If you are under arrest, police are trying to build a case against you. They are not your friends and you should not feel compelled to speak to them.

Police can only hold you in custody for a ‘reasonable time’ – which is normally 6 hours, not counting ‘time out periods’ such as the time it takes to get you to the police station, refreshments and so on – in order to conduct an investigation otherwise they must either charge you or let you go without charge.

If you are refused bail at the police station, you must be taken to a court ‘as soon as practicable’ where a magistrate will decide whether to release you from custody, unconditionally or with bail conditions.

Stay safe, look after your mates and have a blast at the Mardi Gras!

Authors

Jarryd Bartle

Jarryd Bartle practised as a criminal defence lawyer before moving on to specialist consultancy. He has written for several publications including The Guardian, VICE and The Conversation, covering a range of criminal justice-related topics.

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with over 20 years of experience as a criminal defence lawyer. He is the Principal of Sydney Criminal Lawyers®.

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