At around 9.20pm on Saturday 16 July 2022, a 31-year old man allegedly climbed to the rooftop of a packed Sydney Cricket Ground during a Wallabies test match and appeared to relieve himself .
Shortly thereafter, police arrested the man and charged with offensive conduct over his actions.
For his part, Rugby Australia Chief Executive Andy Marinos described the man’s conduct as “deplorable… disgraceful and dangerous”.
Footage of the incident was posted to social media and, in addition to facing court, the man was banned from the stadium for life.
And while there are not many of us who would act as brazen or, indeed, “offensively” as the SCG Pisser, we’ve all been in the situation of walking home from a pub at nigh, often after a few too many, absolutely busting with no toilet in sight.
But while it may be tempting to sneak down an alley and relieve the pressure, it is important to be aware you will be running the risk of a potential criminal record and hefty fine for public urination.
The crime of pissing
Although specific laws against public urination exist in Queensland, South Australia and the ACT, there is no such discrete offence in New South Wales.
Rather, such acts may amount to “offensive conduct”, which is a crime under section 4 of the Summary Offences Act 1988 (NSW).
To establish the offence, the prosecution is required to prove beyond a reasonable doubt that the defendant conduct himself or herself in an “offensive manner” in or near, or within view or hearing from, a public place or a school.
The maximum penalty for the offence is a fine of 6 penalty units (currently $660) or imprisonment for three months.
Alternatively, police have discretion to issue a criminal infringement notice (a fine) for the offence in the sum of $500, rather than sending a person to court.
Paying a criminal infringement notice does not lead to a criminal record, and a person can challenge the notice and seek to defend the charge in court if he or she wishes to do so.
What counts as a “public place”?
A public place is defined as a place or part of a premises that is open to, or used by the public, whether or not for payment, and whether or not only open to a limited class of persons.
It is a very broad definition which includes streets and footpaths, parks and beaches, car parks and all other areas open to sections of the public
What does “offensive” mean?
Whether or not conduct is considered “offensive” under New South Wales law is determined by prevailing community standards, and courts have made clear the hypothetical person used to assess this must be “reasonably contemporary” and “not too thin-skinned”.
That said, urinating in a public place within view of others has generally been seen by the courts as sufficient to make out the ‘offensive’ element of the crime.
However, the law in cases where a person goes out of his or her way to relieve themselves in a secluded yet public place is not so clear-cut, and it will depend on the specific circumstances.
A Reasonable Excuse?
One of the defences available to those who are suspected or accused of offensive conduct is having a “reasonable excuse”.
In that regard, section 4(3) of the Act makes clear a defendant is not guilty if he or she satisfies the court that, on the balance of probabilities, he or she had “a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence”.
Other legal defences to the charge include necessity and duress.
Sydney icon Danny Lim
In 2017, sandwich board activist and beloved Sydney Icon Danny Lim defeated a charge of offensive conduct on appeal over signs he held in public which used veiled explicit language to criticise politicians.
Judge AC Scotting of the NSW District Court found that:
“[T]he appellant has demonstrated a reasonable excuse for his actions that in the course of expressing a political comment he published a play on words that was capable of being construed as offensive.”
So, is there a reasonable excuse for public urination?
In the context of public urination
In Beck v State of NSW, a police officer was trying to get re-instated into the force after he was fired following a charge of offensive conduct relating to public urination whilst off duty. The officer argued that he physically could not hold on any longer and the offence occurred in an act of desperation.
Although the case was ultimately successful because evidence from both the charging officers and management within police were unreliable, on the question of “reasonable excuse”, Justice Adams remarked:
“If the plaintiff’s evidence be accepted (as it must, for present purposes), he was unable to prevent himself from urinating. This must be a reasonable excuse and, on that ground as well, he has committed no offence.”
This indicates that if you are absolutely desperate, you may have a defence to any charge of offensive conduct.
A Crisis of Public Services?
Offences relating to public urination have been criticised for disproportionately targeting the vulnerable and for taking a blunt “law and order” approach to what is ultimately a failure in public amenities.
In her submission to the National Inquiry Into Homelessness, Dr Kris Klugman from Civil Liberties Australia lists laws against public urination, along with laws against public drinking, as examples of seemingly uniform offences that: “impact disproportionately on people experiencing homelessness because they have relatively little choice except to carry out their private activities in public”.
Social planner Katherine Webber from The University of Queensland notes that “there is no legislative requirement in Australia for ensuring the adequate supply of public access to toilets located outside of the home”. A situation which has resulted in a lack of quality public toilets in most of Australian cities.
Webber argues that the lack of public toilets raises some serious issues of equity in urban planning:
“The impact of this failure for users can be significant, and disproportional for people living with disability or health conditions, women, parents and carers, children, and people who are trans or gender diverse. These users, in particular, need to feel confident they will be able to locate and access a toilet when they are out of their home.”
Rather than focusing our efforts on prosecuting public urinators, it seems far more useful to ask why people are so busting in the first place.
Going to court?
If you have been charged with offensive conduct, call Sydney Criminal Lawyers anytime on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who will advise you of your options, the best way forward and fight for the optimal outcome.