LLB 130 Lecture Notes - Lecture 10: Crimes Act 1900, Mens Rea, Crime Prevention
Week 10 – Public Order Offences
• Make up 10% of Local Court summary offences
• 2014 – more than $15,000 public order offence charges finalised in NSW Local
Courts
Police discretion
• Primarily prosecute but also investigate, run proceedings and arrest offenders
• Discretion is central when determining if and when something is offensive and when
involved in pursuing conduct, arresting, laying charges, making decisions and legal
submissions, witnesses and prosecuting
Discretion on issues like:
• Decision to charge, issue a criminal infringement notice or prosecute
• Decisions to plead
• Review of infringement notices
• Whether agistrates ad/or appellate judges fid odut/speeh offesie
Summary Offences Act 1988
S 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
Penalty: $500
S 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
CIN is $500
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AR of Offensive Conduct and Language
• Conduct or language
- The conduct or language is offensive; and
- The conduct was in or near or within view or hearing from a public place or
school
or
- The speech was in or near or within hearing from a public place or school
- The act/conduct must be voluntary
- See the conduct in Pfeiffer; Ball v McIntyre; Police v Butler cf, Jolly v R
… suh as is calculated to wound the feelings, or arouse anger, resentment, disgust, or
outrage in the mind of a reasonable man, notwithstanding that no member of the public is
preset, or if there e eers of the puli preset that ood is offeded...: Inglis v
Fish [1961]; Ball v McIntyre (1966)
May change over time with community standards: Police v Butler; Jolly v R
Circumstances
1. Offensiveness of conduct/language
- What is offensive? Variety of speech/language falls within this
- What are the characteristics of the reasonable person and offensive conduct?
- Context
- Crucial role of police/differing values of magistrates/limited role of judges on
appeal
Reasonable person
• ‘easoal tolerat ad uderstadig ad reasoal oteporar i his
reatios - Ball v McIntyre at 254
• Not necessary that a particular person was in fact offended: Connolly v Willis [1984]
Beck v NSW [2012] NSWSC 1483 (CB 521)
• Adams J originally founf that there was no offence committed as there was no one
around to see
• On appeal: the NSW Court of Appeal held that this was a misapplication of the
hpothetial perso test
The conclusion incorrectly focused on whether there was anyone physically around
to see and be offended. The relevant question should have been, if there had been
a ordiar reasoale perso i the street at the tie… that perso ould hae
seen and been offended by the conduct
Police v Butler [2003] NSWLC 2
• A aorigial oa ade etesie use of the ord fuk he talkig to polie
• It as held that sear ords of that ature are rude ad iproper ut ot
offesie ithi the eaig of the setio, eause the are prett much a part of
eerda soiet heard i TV, o the streets, ee i ourt. The hae lost their
puh
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Document Summary
Week 10 public order offences: make up 10% of local court summary offences, 2014 more than ,000 public order offence charges finalised in nsw local. Discretion on issues like: decision to charge, issue a criminal infringement notice or prosecute, decisions to plead, review of infringement notices, whether (cid:373)agistrates a(cid:374)d/or appellate judges fi(cid:374)d (cid:272)o(cid:374)du(cid:272)t/spee(cid:272)h (cid:862)offe(cid:374)si(cid:448)e(cid:863) S 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. S 4a offensive language (1) a person must not use offensive language in or near, or within hearing from, a public place or a school. Ar of offensive conduct and language: conduct or language. The conduct or language is offensive; and. The conduct was in or near or within view or hearing from a public place or school or. The speech was in or near or within hearing from a public place or school.
