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Offensiveness - Coggle Diagram
Offensiveness
Was there conduct? Section 4(1)
was it more than merely offensive language 4(2)
Was it "in or near, or within view of hearing from a public place?"
section 3 - public place
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
Camp
: somewhere the public goes; it does not distinguish between public/private property; a place where goes whether they have the right to go or not
Stutsel v Reid
: A person does not need to be physically present to be offended; law is to protect those who may use it, sufficient if it was in view
Did it cause offence to a reasonable tolerant, understanding and contemporary person?
Ball v McIntyre
Test is objective and is of a reasonable person (
Connolly v Willis
)
offensive: calculated to wound the feeling, arouse anger or resentment or outrage in the mind of a reasonable person (
Ball v McIntyre
)
reasonable person - reasonably tolerant in his reactions (
Ball v McIntyre
)
Provocative or ‘cheeky’ does not = offensive (Danny Lim v R [2017])
Regard to context of the situation and the reasonable person
context - was it a political protest
intention of the accused - SOA Remains silent on intention (approaches to take are as follows)
evidence of bystanders - while relevant and admissible - not strictly essential to the prosecution because of objective test posed (
Connolly v Willis
)
Is the conduct reasonably accepted in contemporary society? was there a reasonable excuse?
section 4(3) and section 4A(2) - burden of proof on defendant on the
BoP
Karpik v Zisis
[NSW]
where the behaviour : is almsot a reflex action, for instance a trite example, a heavy implement falling on one’s foot, suddenly being hurt or angered by a sudden outrageous outburst or provocation, this could all be reasonable excuse
Conners v Craigie
- Legal Principle: SC Dunford J •‘Reasonable excuse involves both subjective and objective considerations, but these considerations
must be related to the immediately prevailing circumstances in which the offensive words etc are used
.’ •‘There must always be something involved in the immediate particular circumstances before there can be a reasonable excuse
Beck v New South Wales
- Adams J found that the fact that a man was “busting” (unable to prevent himself from urinating and had no other place to urinate in private) constituted a reasonable excuse on a charge of offensive conduct in a public place after he had discretely urinated in a largely deserted public street in the early hours of the morning