Editors --- "Police v Shannon Thomas Dunn - Case Summary" [2000] AUIndigLawRpr 3; (2000) 5(1) Australian Indigenous Law Reporter 29

• Police V Shannon Thomas Dunn
• Facts:
• Findings Of The Court:
• Heilpern Sm:
• Public Policy Grounds:

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Court and Tribunal Decisions- Australia

Police v Shannon Thomas Dunn

Dubbo Local Court (Heilpern SM)
27 August 1999

Offensive language — context of use of offensive word — community standards — resist police — police not acting in execution of duty.

Facts:

The defendant was charged with offensive language, goods in custody and resist police, the goods in custody charge being previously withdrawn by the prosecution, as a result of events occurring on 29 October 1998. The defendant was riding a pushbike out of a petrol station when he was pulled over by police. According to the statement of Senior Constable Hembrow, when the defendant was unable to give the surname of the bike’s owner, he told the defendant that they would take the bike to the station and ‘sort the matter out there’ and then walked over and took hold of the handlebars. It was alleged that the defendant then pulled back the bike and said, ‘Fuck off your [sic] not taking the bike’, upon which he was placed under arrest for offensive language. A violent struggle then ensued, which formed the basis of the resist police charge.

Findings of the court:

Regarding the resist police charge, his Worship accepted the submission of the defence that he could not be satisfied beyond reasonable doubt that the police were acting in the execution of their duty, and he therefore dismissed the charge.

Regarding the offensive language charge, his Worship found that community standards had changed, and that the word ‘fuck’ was now extremely commonplace, and had ‘lost much of its punch’. His Worship noted, but did not rely upon, the fact that Aboriginal people account, proportionately, for 15 times as many offensive language offences as non-Aboriginals, as well as the concerns of the Royal Commission into Black Deaths in Custody that (inter alia) ‘[c]harges about language just become part of an oppressive mechanism of control of Aboriginals’. His Worship dismissed the charge on the grounds that a reasonably tolerant, understanding and contemporary person would not, in his or her reactions, be wounded, angered or outraged at the use of the word; it was not, therefore offensive within the meaning of the statute.^[1]

Heilpern SM:

...

Public Policy Grounds:

It was suggested in submissions that I should take note of public policy issues in determining this issue. I have conducted some short research on this point and the following is apparent.

A majority of offenders are still arrested for this offence, despite the maximum penalty only being a fine and even where issued with a CAN.^[2] In other words the police are, as in this case, most likely to impose a deprivation of liberty on an offender even though the courts are not empowered to do so.

Aboriginal people account for 15 times as many offensive language offences as would be expected by their population in the community (BCSR Brief, Aug 1999).

In 1997 there were 3609 charges under s 4A(1) of the Summary Offences Act, while in 1998 the number rose to 4115, an increase of 14 per cent (BCSR Brief, August 1999). That is about 200 cases every court day in Local Courts around NSW.

The number of offensive language incidents recorded by NSW police rose 37.7 per cent from 1997/98 to 1998/99 (BCSR Brief, August 1999).

Arrest for offensive language has a significant impact on indigenous employment prospects (BCSR Bulletin June 1999).

I was also drawn by the words of the final report of the Royal Commission into Black Deaths in Custody:

It is surely time that police learnt to ignore mere abuse, let alone simple ‘bad language’. In this day and age, many words that were once considered bad language have become commonplace and are in general use amongst police no less than amongst other people. Maintaining the pretence that they are sensitive persons offended by such language — ‘obscenities’, as their counsel told the coroner’s jury — does nothing for respect for the police. It is particularly ridiculous when offence is taken at the rantings of drunks, as is so often the case.

Charges about language just become part of an oppressive mechanism of control of Aboriginals. Too often the attempt to arrest or charge an Aboriginal for offensive language sets in train a sequence of offences by that person and others — resisting arrest, assaulting police, hindering police and so on, none of which would have occurred if police were not so easily ‘offended’.

These factors do suggest there are good public policy grounds for change. But in the final analysis these issues are of no relevance from a strictly legal perspective and thus do not form part of the reasons for my judgment.

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^[1] Only the ‘Public Policy Grounds’ section of this judgment is reproduced here.

^[2] Court attendance notice.