Video footage has been published of a NSW detective inspector giving a press conference outside Albury police station when an apparently intoxicated man walks from across the street with a beer in his hand and yells “bullshit”.
The seasoned officer is so incensed by the taunt that he walks away from the cameras, confronts the man and directs him to “put the glass bottle down”. The man immediately complies. The officer then forcefully grabs the man by the sleeve and drags him towards the police station while stating “you’re under arrest for offensive language”.
The man is later issued with a criminal infringement notice for using offensive language.
What is offensive language?
‘Offensive language’ is a crime under section 4A of the Summary Offences Act 1988 (NSW) which carries a maximum penalty of a $660 fine, or up to 100 hours of community service.
The section states that:
(1) A person must not use offensive language in or near, or within hearing from, a public place or a school.
Subsection 2 contains a statutory defence to the charge:
(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.
Such circumstances might include bathing naked at a nude beach or impulsively uttering a profanity when struck or hurt.
‘Offensive’ has been defined as that which is “calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person”; per O’Bryan J in Worcester v Smith  VLR 316.
The judge in that case goes on to state, “The mere expression of political views… does not, in my opinion, amount to offensive…”.
An objective test is applied when determining whether language is offensive.
“What has to be considered in the particular case is whether the conduct in question, even if in some sense hurtful or blameworthy, or improper, is also offensive”; per Kerr J in Ball v McIntyre (1966) 9 FLR 237.
Significantly, the hypothetical ‘reasonable person’ must not be “thin skinned”; Re Marland  1 DCR 224.
Applying the test the situation of the arrested man, there is an argument that the prosecution would have difficulty proving beyond reasonable doubt that saying the word “bullshit” in the context of a press conference amounts to ‘offensive language’ under the law.
Indeed, there is an argument that the experienced officer and media reporters would need to be fairly “thin skinned” to be offended by the remark.
Police powers of arrest
Courts have traditionally found that arrest should be a measure of “last resort” – a “significant intrusion on a citizen’s liberty” which is often “humiliating and degrading” and is only to be exercised for minor offences in rare circumstances, such as where the identity of the suspect cannot be ascertained for the purpose of issuing a summons (or court attendance notice); see, for example, DPP (NSW) v Carr  NSWSC 194.
However in December 2013, the police powers contained in section 99 of the Law Enforcement (Powers and Responsibilities) Act 2002 were significantly expanded to allow arrests without a warrant in the following circumstances:
(a) where the officer suspects on reasonable grounds that the person is committing or has committed an offence, and
(b) where the officer is satisfied that the arrest is reasonably necessary for any one or more of the following reasons:
(i) to stop the person committing or repeating the offence or committing another offence,
(ii) to stop the person fleeing,
(iii) to enable inquiries to establish the person’s identity if it cannot be readily established or if the officer suspects on reasonable grounds that identity information provided is false,
(iv) to ensure that the person appears before a court in relation to the offence,
(v) to obtain property connected with the offence,
(vi) to preserve evidence of the offence or prevent the fabrication of evidence,
(vii) to prevent the harassment of, or interference with, any person who may give evidence in relation to the offence,
(viii) to protect the safety or welfare of any person (including the person arrested),
(ix) because of the nature and seriousness of the offence.
According to authors Vicki Sentas and Rebecca McMahon, those amendments represent a “radical shift from the purpose of arrest as a last resort for bringing charges against an offender, to a first resort for increasing arrest rates”.
The authors note that the changes were “[p]assed without a formal consultation process and with great haste” and are based upon “flawed Government rationale” that expanding powers of arrest deters crime.
Back to the arrested man…
So it seems that the question of whether the arrested man committed a criminal offence is debatable.
The legality of the arrest is also dubious, as the arresting officer would need to establish that he:
- ‘suspect[ed] on reasonable grounds’ than an offence had been committed, and
- the arrest was reasonably necessary to “stop the person… repeating the offence”, or “stop the person from fleeing” (there does not appear to be any evidence of this as the man is compliant), or to “protect the safety or welfare of any person” (again, there does not appear to be any evidence that anyone required protection).
It appears that excessive force was used to perform the arrest in any event.