With fast-changing government responses to the Coronavirus pandemic, it is important to be aware of your rights now more than ever. Police are given powers under the Law Enforcement (Powers and Responsibilities) Act 2002 (NSW) (LEPRA). it is important to note these powers pursuant to LEPRA have not been amended as a response to this pandemic.

The Public Health Act 2010 (NSW) (“PHA”) also contains provisions that give authorities the power to enforce orders and ministerial directions and therefore impose penalties on civilians who do not comply with said orders.

What exactly can the police question me regarding my movements?

Police are given the powers to direct that a person provides their name and full residential address if they suspect you have breached, or are breaching, any provision of the PHA or the regulations, or are in charge of premises where the breach is occurring.

The Public Health (Covid-19 Restrictions on Gathering and Movement) Order 2020 (“Coronavirus order”) contains ministerial directions made under the PHA which came into force on 31 March 2020. The directions include reasonable excuses for leaving your home which include working, exercising, shopping, caring for someone, conducting changeovers and additional reasons which are included in Schedule 1 of this order.

If the Police suspect that you have breached or are breaching these directions, they have the power to direct you to provide your name and full residential address. The level of suspicion is quite general being ordinarily defined as “having an impression or idea of the existence, presence, or truth of (something) without certain proof”. This means that the police cannot simply ask every civilian why they have left their home as there are several reasonable excuses that a person is currently permitted to do so. However, if the police have an impression based on the existence of a material fact, this power to direct identification may be elicited.

Recent examples of individuals receiving warnings to move on or being imposed with fines include:

• Driving on a highway or in an area significantly away from a person’s residential address i.e. traveling to the coast or going for an aimless drive;
• Leaving isolation which may be required if you have recently arrived in Australia or come into close contact with someone who has tested positive for Coronavirus;
• Eating a kebab or stopping to enjoy a coffee on a park bench in a public place; and
• Gathering in crowds of more than two people in public or attending a house gathering;

Do I have the right to remain silent?

Yes, you do have the right to remain silent if you are asked further questions by the police including why you have left your home. The police may only direct that you provide your name and residential address if they suspect a breach against the Coronavirus order. Although the police may have several questions regarding what, where, when and how you may reserve your right to not answer them.

The right to remain silent originates from common law and is a longstanding privilege against self-incrimination: Sorby v Commonwealth (1983) 152 CLR 281. In exercising your right to remain silent it is important to remember that an adverse  inference cannot be drawn against you: RPS v The Queen (2000) 199 CLR 620; Sanchez v R (2009) 196 A Crim R 472.

Who has to prove that I left my home without a reasonable excuse?

If the offence is contested in court, you are not required to defend your actions by providing a reasonable excuse as to why you left home on that occasion. The prosecution bears the “onus of proof” which means that the prosecution or police must prove beyond a reasonable doubt that you as the alleged offender, left your home for a purpose that was not a reasonable excuse under the Coronavirus order.

In situations where an alleged offender has reserved their right to remain silent, complying only with the directions to provide their name and address when suspected of breaching the Coronavirus order, the police have a high threshold to prove the offence. If facts of the offence lend themselves to proving that the alleged offender did not leave the house for a reasonable excuse then it may be easier to prove this offence was committed. This could be in circumstances where a person has travelled a significant distance from their home to a vacation spot when this is not permitted under the coronavirus order, or where a group of individuals were gathered in close proximity in a public place for a meal, or where businesses who were not permitted to operate were caught conducting business as usual.

What does this all this mean for me?

In light of the current pandemic it is important that if you are suspected by the police of breaching the coronavirus order you remember the following:

• The police have the power to direct you to provide your name and address;
• Any other questions the police have, you may reserve your right to remain silent;
• Reserving your right to remain silent cannot be used adversely against you to support a finding of guilt;
• It is the prosecution or police’s role to prove beyond a reasonable doubt the offence was committed if you choose to contest this in court;
• It is always a good idea to be cooperative and courteous with the police when reserving your rights;
• You should ask the police what grounds they have for suspecting you for a breach;
• If you are told to move on consider their warning carefully and comply if persistence of your actions or behaviour would amount to a breach of the Coronavirus order.

If you have been charged with a criminal offence or been issued a fine in relation to breaching the Coronavirus order, give Pannu Lawyers a call to speak to one of our experienced criminal lawyers on (02) 9920 1787 to find out how we can assist with your case. Some of our staff are working remotely and have the resources to facilitate telephone and skype conferences to ensure we do our part in flattening the curve whilst delivering quality legal services to those in need.