1.2 offensive behaviour and language

language

Stutsel v Reid held that it was not necessary to establish that there was a person present in the public place at the time the words were alleged to have been spoken (although the fact that there was nobody present was considered material on the question of penalty).

SUMMARY OFFENCES ACT 1988 - SECT 4A
Offensive language (1) A person must not use offensive language in or near, or within hearing from, a public place or a school.
Maximum penalty: 6 penalty units. (2) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence. b(3) Instead of imposing a fine on a person, the court: (a) may make an order under section 8 (1) of the Crimes (Sentencing Procedure) Act 1999 directing the person to perform community service work, or (b) may make an order under section 5 (1) of the Children (Community Service Orders) Act 1987 requiring the person to perform community service work,
as the case requires.
(6) However, the maximum number of hours of community service work that a person may be required to perform under an order in respect of an offence under this section is 100 hours.

SA Police v Pfeifer T-shirt: " too drunk to fuck" ruled that it was not necessary to prove an intention to offend for a charge of offensive behaviour. an intention to offend, or knowledge that the conduct necessary

Jolly: the court ruled that the reasonable excuse for swearing is only available if it was in response to the circumstances. In this case, the defendant was swearing not as a reaction to the dog bite, but to insult the officer.

fuck

statment about a person

Coleman v Power a police officer ‘a corrupt police officer’.due to modern notions of free speech and freedom of communication, the defendant was not guilty.

offensive conduct -behaviour

SUMMARY OFFENCES ACT 1988 - SECT 4 Offensive conduct,(1) A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school. Maximum penalty: 6 penalty units or imprisonment for 3 months. (2) A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language. (3) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.

DPP v Pfeifer a person must hold the honest and reasonable belief that the behaviour was not offensive #

Daire v Stone, the prosecution must prove: the behaviour was deliberate and conscious conduct intended to interfere with the comfort of others; such conduct is to be objectively tested.

Ball v McIntyre: the test for offensiveness is whether the reasonable person would be wounded or feel anger, resentment, disgust or outrage. The reasonable man is reasonably tolerant and understanding, and reasonably contemporary in his reactions. In this case, it was unlikely that anyone would be wounded or such by the conduct. # #

NT Pregelj and Wurramurra v Mansion- sex in the house, strict and absolute liabilities in special cases. In these offences, there must be an intention to offend someone.

reasonable excuse

Karpik v Zisis “The behaviour can occur quite obviously with a reasonable excuse, indeed words, actions could be said or done in circumstances where the person saying or doing the words or actions has a completely proper excuse, as for instance, a trite example, a heavy object falling on one’s foot, suddenly being hurt or angered by a sudden outrageous outburst of provocation, this could all be reasonable excuse.” #

Conners v Craigie, where it was qualified by saying that the offensive behaviour must have been an immediate reaction to something, not a reaction to something which happened long ago

Worcester v Smith O’Bryan J held that “offensive” meant “...such as is calculated to wound the feelings, arouse anger or resentment or disgust in the mind of a reasonable person...”. #

voluntary

Jeffs v Graham the prosecution must “at least” prove beyond reasonable doubt that the conduct engaged in was voluntary.

Beck - the behaviour should be seeing from a point of view of a reasonable person - objective test

Saunders v Herold What constitutes behaving in an offensive manner depends very much on the circumstances. Conduct and language engaged in at a football match or on a tennis or squash court may be acceptable, or, at least, unremarkable, but offensive if engaged in during a church service or a formal social event.

Police v Butler swear words (e.g. fuck) of that nature are 'rude and improper’ but not ‘offensive within the meaning of the section’, because they are pretty much a part of everyday society (can be heard everywhere on the streets, on tv, even in court etc). They have 'lost their punch'.

Tessadri v Holcombe, wright and Rose- " fuck " can not constitute offensive beyond reasonable doubt

Beck v NSW the behaviour (urinating) can constitute a reasonable excuse because he was unable to stop himself from urinating- involuntary act.

racist language

Police v Susan Bernobich verbal abuse of a number of passengers of Asian descent on a school bus and was identified by police and issued a CAN for offensive language under s 4A

Police v Karen Bailey A woman whose racist rant on a crowded Sydney train in July shocked the city has escaped without a conviction after telling the court she was "absolutely appalled" at her behaviour.

NSW Racial Vilification Legislation S 18C ANTI-DISCRIMINATION ACT 1977
Division 3A - Racial vilification20B. Definition of "public act"(a) any form of communication to the public, including speaking, writing, printing, displaying notices, broadcasting, telecasting, screening and playing of tapes or other recorded material, and (b) any conduct (not being a form of communication referred to in paragraph (a)) observable by the public, including actions and gestures and the wearing or display of clothing, signs, flags, emblems and insignia, and (c) the distribution or dissemination of any matter to the public with knowledge that the matter promotes or expresses hatred towards, serious contempt for, or severe ridicule of, a person or group of persons on the ground of the race of the person or members of the group.

20C. Racial vilification unlawful

20D. Offence of serious racial vilification- test

20 B definition of public act-test

18 C Offensive behaviour because of race, colour or national or ethnic origin.

Eatock v Bolt Man found guilty writing in article ' fair- skinned Aboriginal people'