Offensive conduct is a frequently prosecuted crime in NSW.
The offence is different to ‘offensive language’ which is a crime under section 4A of the same Act – indeed, the legislation makes it clear that a person cannot be found guilty of offensive conduct merely by using offensive language.
It is a defence to a charge of offensive conduct where a person has a “reasonable excuse for conducting himself or herself in the manner.”
The maximum penalty for offensive conduct is 3 months behind bars or a fine of $660. A conviction for the offence results in a criminal record.
The Summary Offences Act doesn’t list or define what is considered “offensive.” So we must turn to the common law to gain an understanding the word in the context of criminal law.
In the classic 1951 Victorian Supreme Court (VSC) case of Worcester v Smith, Justice O’Bryan found that something is offensive if it is “… calculated to wound the feelings, arouse anger or resentment or disgust in the mind of a reasonable person.”
Justice Kerr affirmed and expanded upon this definition in the 1966 ACT Supreme Court case of Ball v McIntyre, which involved a war protester with a placard that read “I will not fight in Vietnam” squatting on a statute of King George V outside Parliament House in Canberra.
According to Justice Kerr, conduct can be “hurtful or blameworthy or improper” and offend “against standards of good taste or good manners,” but may still not amount to offensive under the criminal law.
Defending the offensive
Sydney barrister Mark Dennis in his 2011 paper ‘Dog Arse Cunts’ takes a look at what constitutes offensive manner and language under Australian law.
Mr Dennis outlines that a key issue regarding the definition of offensive from the perspective of a criminal defence lawyer is that the word “calculated” means “intended,” as it is much harder for the prosecution to prove that offensive behaviour was intended to be so.
Another pertinent aspect to the argument is the question of “contemporary standards.” Mr Dennis cites the comments of VSC Justice Harper in 1998’s Pell v The Council of the National Gallery of Victoria.
That case involved then Catholic Archbishop George Pell seeking an injunction to prevent a photo of a crucifix immersed in urine – Andres Serrano’s Piss Christ – from being publicly displayed, as he argued it breached state summary offences because it displayed “an indecent or obscene figure.”
Justice Harper explained the prevailing values of the “multicultural, partly secular and largely tolerant if not permissive” society of the day had to be considered when establishing whether the artwork was offensive.
A breach of the peace
The justice refused the injunction, as he could not ascertain whether exhibiting the photo would breach the criminal law, because there was no evidence of “any unrest of any kind following or likely to follow the showing of the photograph in question.”
Mr Dennis suggests the “unrest” Justice Harper was referring to is the concept of a “breach of the peace.” He points out that the common law is evolving, or has evolved, to a point where a breach of the peace must be determined in to establish an “offensiveness”.
A mens rea of offensive
Mr Dennis points out that the word “calculated” makes it necessary to establish a mens rea, or a criminal intention, behind behaviour that’s led to a charge of offensive conduct.
The barrister further backs up this line of thought by citing the 1985 High Court of Australia case He Kaw Teh v The Queen which established that it’s essential for a mens rea, or intention, to be proven for statutory offences.
And in regard to charges of offensive conduct, Mr Dennis asserts there’s a need for the laws of all Australian jurisdictions to move towards conformity with the view outlined by the High Court.
Section 4A of the Summary Offences Act makes it an offence to “use offensive language in or near, or within hearing from, a public place or a school.” The maximum penalty for doing so is a fine of $660.
But the question arises, are ‘four-letter words’ like fuck, shit and cunt necessarily offensive? Mr Dennis points out that the NSW courts have taken an inconsistent approach to this issue.
In the 1988 NSW Supreme Court (NSWSC) case of McNamara v Freeburn, Justice Yeldham found that a defendant who’d been arrested for saying to police, “Get fucked you cunts, I’m trying to help my mate,” was not necessarily being offensive without further proof.
By contrast, Justice Lusher found in the 1990 NSWSC case of Evans v Frances that certain profane words used by a defendant were necessarily offensive. These included lines such as “You pricks I want my fucking keys” and “You fucking useless cunt.”
“To convert the reasonable man into one who is not so thin-skinned as not to be distressed or offended by such language in my submission is not to apply the test of the reasonable man,” Justice Lusher remarked.
The reasonable person
The hypothetical ‘reasonable person’ is the measure by which a court determines whether something is offensive. This ‘person’ is said to exercise average care, skill and judgement in conducting themselves, and is not thin-skinned.
In the case of Ball v McIntyre, the court held that the reasonable person is “reasonably contemporary.” Mr Dennis points out that this “raises the prospect that what may be regarded as offensive at one point in time may not be offensive at another”.
This proposition can also be seen working in the context of language, as words like “bloody” or “bugger” are now commonplace, Mr Dennis explains. He further states that words such as “fuck” and “cunt” might now be getting to that point as well.
Indeed, the barrister suggests that changing contemporary standards leave it open to be argued that past precedents set in regard to offensive behaviour and language are of little assistance, “and the court is perhaps even in error to consider dated precedent in assessing what is ‘contemporary.’”