Thurley v Hayes [1920] HCA 28; (1920) 27 CLR 548 (3 May 1920)

HIGH COURT OF AUSTRALIA

Thurley Complainant, Appellant; and Hayes Defendant, Respondent.

H C of A

On appeal from the Supreme Court of Tasmania.

3 May 1920

Knox C.J., Gavan Duffy and Rich JJ.

Gilbert Johnstone, for the appellant,

There was no appearance for the respondent.

The judgment of the Court, which was delivered by Rich J., was as follows:—

Knox C.J.,

Gavan Duffy and Rich JJ.

This is an appeal from Ewing J., who set aside a decision of magistrates convicting the respondent of an offence under sec. 137 (iv.) of the Police Act 1905, which runs as follows: "No person shall, in any public place, or within the hearing of any person passing therein ... (iv.) Use any threatening, abusive, or insulting words or behaviour with intent or calculated to provoke a breach of the peace, or whereby a breach of the peace may be occasioned." The prosecution was based on that portion of the sub-section which forbids the use of insulting words calculated to provoke a breach of the peace. The portion of the sub-section relating to intent and the portion relating to the actual occurrence of a breach of the peace were not in question. It is important to make this distinction, because the case of R v. Justices of Clifton; Ex parte McGovern[1], on which Ewing J. relied and from which he in effect quoted, was confined to the effect of the third part of the sub-section, and therefore has no relevancy to the present case. With regard to Sellers' Case[2], it has relevance to the phrase "insulting words," but it affords no assistance in the present instance. "Insulting" is a very large term, and in a statement of this kind is generally understood to be a word not cramped within narrow limits. In the Oxford Dictionary under the word "insult," we find it means in a transitive sense "to assail with offensively dishonouring or contemptuous speech or action; to treat with scornful abuse or offensive disrespect; to offer indignity to; to affront, outrage." We find in the same dictionary: "Hence insulted, treated with contemptuous abuse, outraged." There is, therefore, in this case no warrant for saying that the words complained of and found to have been used were not legally capable of being regarded as insulting words.

The insulting words must be used so as to be "calculated to provoke a breach of the peace." Whether words are so used on any particular occasion depends entirely on the circumstances. The place must be a public place, or the words must be used within the hearing of any person passing therein; that the section requires: but they may be used in circumstances which would exclude either the possibility or the probability of having the effect postulated by the enactment. For instance, if they were used at a public telephone to a person a hundred miles away, it would be absurd to attribute that effect to them, but, if circumstances are proved upon which the justices could reasonably think that the insulting words were calculated to produce the effect against public order which the enactment is designed to prevent, we do not consider that we are at liberty to interfere with their decision. As to the word "calculated," it has been frequently held equivalent to "likely to have the effect." (See North Cheshire and Manchester Brewery Co. v. Manchester Brewery Co.[3]; Boord & Son v. Bagots, Hutton & Co.[4]; In re Lyndon's Trade Mark[5]; Catts v. Murdoch[6].)

We therefore think that the learned Judge was in error in reversing the decision of the magistrates, and that their decision ought to be restored by allowing this appeal.

Appeal allowed. Order nisi discharged. Conviction affirmed. Respondent to pay costs of proceedings in Supreme Court and High Court.

Solicitors for the appellant, Crisp & Crisp.

[1] (1903) S.R. (Qd.), 177.

[2] 11 A.L.R. (C.N.), 61.

[3] (1899) A.C., 83, at p. 84.

[4] (1916) 2 A.C., 382, at pp. 387, 394.

[5] 32 Ch. D., 109, at p. 119.

[6] [1917] HCA 71; 24 C.L.R., 160, at p. 161.