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Challenging a direction to move on

Information about what the prosecution have to prove if a person wants to challenge a direction to move away from a public place.

If an officer gives a direction, a person has to stay away from that place for up to 24 hours. If they refuse to move on or stay away from the area without a reasonable excuse, the police can issue an on-the-spot fine of two penalty units.

If the matter is heard in court, then a person charged with contravening a direction to move on can be fined up to 5 penalty units.

If a person decides to challenge this penalty in court, the prosecution must prove all of the elements of the offence. These are that:

  • the offence happened at the time and place that police (or protective services officer (PSO)) alleges
  • the offender was the person who is accused
  • the accused was in a public place
  • a member of the police force (or a PSO on duty in [or in the vicinity of] a designated place) gave the direction to leave the public place, and to stay away from that place for up to 24 hours
  • the accused person contravened that direction, and,
  • the accused did not have a reasonable excuse for contravening the direction.

Did the officer have reasonable grounds to suspect?

The prosecution does not have to prove that the officer had reasonable grounds for suspecting that the person was (or was likely to) behave in a way that allowed police to issue a direction to move on under s. 6(1) Summary Offences Act 1966 (Cth).

However, commentary in Criminal law, investigation and procedure (link below) suggests that if the accused person claims that the police had no reasonable grounds for their suspicion then this may form the basis of a reasonable excuse, which would exempt them from the offence.

They go on to claim that, based on s. 72 of the Criminal Procedure Act 2009 (Vic), the accused has to point to evidence that suggests a reasonable possibility of facts that, if they existed, would establish the excuse. If this is done, then it is up to the prosecution to negate the existence of the excuse, or to establish that it was reasonable, beyond reasonable doubt.

See s. 72—Criminal Procedure Act 2009 (Vic) and Criminal law investigation and procedure, Victoria—Direction to move on [4.2.1270].

More information

Legislation

Summary Offences Act 1966 (Vic)

  • s. 6—direction to move on
  • s. 6(5)—exemptions for picketing, protests etc relating to move on powers
  • s. 6(6)—allows police to direct protesters under other subsections of section 6.

See Summary Offences Act 1966 (Vic).

Criminal Procedure Act 2009 (Vic)

  • s. 72—evidential burden on accused for exceptions etc.

See Criminal Procedure Act 2009 (Vic).

Reference

Criminal law investigation and procedure, Victoria

For commentary about the move on powers, including elements of the offence.

See Direction to move on [4.2.1270].

Updated