Walsh, Tamara --- "Offensive Language, Offensive Behaviour and Public Nuisance: Empirical and Theoretical Analyses" [2005] UQLawJl 5; (2005) 24(1) University of Queensland Law Journal 123

OFFENSIVE LANGUAGE, OFFENSIVE BEHAVIOUR AND PUBLIC NUISANCE: EMPIRICAL AND THEORETICAL ANALYSES

TAMARA WALSH^[*]

I. Introduction

Engaging in offensive conduct is a criminal offence in all Australian States and Territories, although the exact wording of the provisions varies between jurisdictions. All jurisdictions criminalise both the use of legally unacceptable language and engaging in legally unacceptable behaviour (with the exception of the Australian Capital Territory where there is no explicit language offence), however they differ in the adjectives they use to describe such conduct. The provisions may prohibit offensive, obscene, indecent, riotous, disorderly, violent, threatening and/or abusive language and behaviour.^[1]

In Queensland, the offences of offensive behaviour and obscene language have recently been replaced by the ‘catch-all’ offence of creating a public nuisance. This new offence was created by the Police Powers and Other Responsibilities and Other Legislation Amendment Act 2003 (Qld) and came into effect in April 2004. The old offences were previously found in s 7 of the Vagrants, Gaming and Other Offences Act 1931 (Qld). The new offence was listed as s 7AA of the Vagrants, Gaming and Other Offences Act 1931 (Qld) until the Act was repealed and replaced by the Summary Offences Act 2005 (Qld) in March 2005. The offence of public nuisance may now be found in s 6 of the Summary Offences Act 2005 (Qld).

There is a distinct lack of academic and other commentary on these offences. This may, in part, be explained by the fact that few reported decisions exist with regard to these offences; few charges are contested or appealed, and most defendants plead guilty, endure a short local court appearance and a ‘slap on the wrists’, and receive a fine.^[2] Yet, the sheer volume of offensive language and offensive behaviour cases that come before Australia’s lower courts invites attention. The Office of Economic and Statistical Research reports that around 8,000 to 10,000 people come before Queensland Magistrates’ Courts for such offences each year.^[3] Since so many people are affected by these laws, they are worthy of investigation.

Although judicial commentary on offences involving legally unacceptable language and behaviour is scarce, those reported decisions that do exist demonstrate remarkable consistency in their interpretation of such offences. There is general agreement that they should be construed narrowly and that only conduct of a serious nature should attract the attention of the criminal law. This accords with the stated intention of the legislature with regard to the new public nuisance offence. For example, the Attorney-General of Queensland stated publicly in June 2004 that the new offence of public nuisance was aimed at prosecuting only such behaviour as threatened the safety and security of members of the public.

It does not necessarily follow, however, that the interpretation and enforcement of these offences by police officers and magistrates accords with the construction they are afforded by higher courts, or the intentions of the legislature in retaining them on the statute books. Further, when the Queensland offence was amended in 2004, there was some concern amongst commentators that the changes would have an impact on the number and nature of prosecutions for legally unacceptable behaviour and language which came before the courts. This paper aims to investigate these two issues.

Empirical research was undertaken to support this analysis in the form of court observation. Information was recorded on all cases brought under s 7 and s 7AA^[4] of the Vagrants, Gaming and Other Offences Act 1931 (Qld) in Brisbane Magistrates’ Court during February and July 2004. Information was also recorded on all s 7AA cases brought before Townsville Magistrates’ Court in July 2004. The results of this study enable a preliminary comparison to be drawn both between cases prosecuted under the old s 7 and the new s 7AA, and between public nuisance cases coming before the Brisbane and Townsville Magistrates’ Courts.

As will be seen, the results of this research suggest that there has been a dramatic increase in the number of prosecutions for unacceptable language and behaviour since the introduction of the new offence. The results also suggest that the kinds of behaviours which form the basis for such charges are extremely trivial. The results of this study therefore indicate that the way in which the s 7 and s 7AA offences are applied by magistrates in Queensland is not consistent with higher courts’ interpretations of these offences, or the legislative intentions underpinning them.

II. The new offence of public nuisance

A. Section 7 and Section 7AA: Comparison

In order for an effective comparison to be made between the two provisions they must each be set out in full.

The old offence, previously found in s 7 of the Vagrants, Gaming and Other Offences Act 1931 (Qld), and hereafter referred to as ‘obscene language/offensive behaviour’, read:

Obscene, abusive language etc.

(1) Any person who, in any public place or so near to any public place that any person who might be therein, and whether any person is therein or not, could view or hear –

(a) sings any obscene song or ballad;

(b) writes or draws any indecent or obscene word, figure, or representation;

(c) uses any profane, indecent, or obscene language;

(d) uses any threatening, abusive, or insulting words to any person;

(e) behaves in a riotous, violent, disorderly, indecent, offensive, threatening, or insulting manner; shall be liable to a penalty of $100 or to imprisonment for 6 months…

The new offence, listed as s 7AA of the Vagrants, Gaming and Other Offences Act 1931 (Qld) during the study period and now found in s 6 of the Summary Offences Act 2005 (Qld), reads:

Public nuisance

(1) A person must not commit a public nuisance offence. Maximum penalty – 10 penalty units or 6 months imprisonment.

(2) A person commits a public nuisance offence if –

(a) the person behaves in –

(i) a disorderly way; or

(ii) an offensive way; or

(iii) a threatening way; or

(iv) a violent way; and

(b) the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.

(3) Without limiting subsection (2) –

(a) a person behaves in an offensive way if the person uses offensive, obscene, indecent or abusive language; and

(b) a person behaves in a threatening way if the person uses

threatening language.

(4) It is not necessary for a person to make a complaint about the

behaviour of another person before a police officer may start a proceeding against the person for a public nuisance offence.

(5) Also, in a proceeding for a public nuisance offence, more than 1 matter mentioned in subsection (2)(a) may be relied on to prove a single public nuisance offence.

On the face of it, there are four main differences between the old s 7 offence and the new offence of public nuisance in s 7AA. First, the ‘insulting words’ element of the language offence, and the ‘behaving in a riotous manner’ element of the behaviour offence, have been removed. Second, the offence is now framed as having two separate elements: the act of engaging in disorderly, offensive, threatening or violent behaviour, and that this behaviour interfered, or was likely to interfere, with the peaceful passage through or enjoyment of a public place by a member of the public. Third, it is specifically stated in s 7AA(4) that a member of the public need not make a complaint for the offence to be made out. This was always inferred from, but not clearly stated in, the old offence.^[5] And fourth, the maximum monetary penalty has been increased from $100 to $750. Otherwise, the offence is, in substance, the same as it ever was; it allows police to arrest and bring before a magistrate a person who engages in offensive language or offensive behaviour in or near a public place, and it allows magistrates to impose a fine or a sentence of imprisonment on offenders who are found guilty.^[6]

Notably, the offence was altered following the decision of the Queensland Supreme Court in Power v Coleman^[7] where, in a strong dissent, the President of the Court concluded that the prohibition against using ‘insulting words’ in the old s 7 was constitutionally invalid by reason of its encroachment on the freedom of political communication. The decision of the High Court on appeal was pending and, on the basis of the President’s judgment, it seemed possible that the section might be struck down as unconstitutional. Presumably, the section was altered in an attempt to ensure the continued validity of the offence, hence the removal of the ‘insulting words’ element. In actual fact, the offence was not ultimately struck down by the High Court.^[8]

Predictions regarding the likely practical effect of the changes to the offence were wide-ranging. Some commentators expected prosecutions for legally unacceptable behaviour and language to continue as normal, and that no substantive changes to the type or rate of prosecutions would be observed.^[9] Others, including the Attorney-General himself, believed that the number of prosecutions would decrease. The Attorney-General stated publicly that the new s 7AA offence was deliberately drafted to restrict prosecutions to situations where a person’s behaviour threatened the safety or security of a person in public space, and that the offence was targeted towards more serious criminal behaviours than was previously the case.^[10] On the contrary, many members of the community legal sector feared that the new offence would lead to an increase in the number of prosecutions for nuisance-type behaviour, and would impact particularly adversely on their vulnerable constituents.^[11]

Since statistics and other information regarding the number and nature of prosecutions for minor offences are not publicly available, empirical research was undertaken to ascertain which of these predictions were accurate.

B. The Practical Effect of s 7AA: Empirical Research

1. Overview

Two court observation studies were carried out to determine the effect of the repeal of s 7 and its replacement with s 7AA. One study was undertaken at Brisbane Magistrates’ Court in February 2004, and another at Brisbane Magistrates’ Court and Townsville Magistrates’ Court in July 2004. The data obtained in these studies enables a preliminary comparison to be drawn between prosecutions brought under the old s 7 and the new s 7AA in Brisbane, and between prosecutions brought under s 7AA in Brisbane and Townsville.

Final year law students recorded information on all offensive language, offensive behaviour and public nuisance cases which came before the courts on each sitting day of these months. Such information included the charge, characteristics of the offender (including age, Indigenous status, socio-economic status, signs of impaired capacity), whether drugs or alcohol were implicated in the offence, and the penalty ultimately imposed. Socio-economic status was measured by recording any reference in court to the defendant’s income source (including whether they received social security benefits) and housing status (including whether they were homeless or at risk of homelessness). Impaired capacity and influence of drugs and alcohol were recorded only in cases where such circumstances were raised in court. Age, where not explicitly stated in court, was estimated within a range.

In February 2004, 26 people appeared before Brisbane Magistrates’ Court charged with obscene language/offensive behaviour under the old s 7. In July 2004, 77 people appeared before Brisbane Magistrates’ Court charged with public nuisance under the new s 7AA. This represents an increase of over 200% in the number of prosecutions for legally unacceptable language and behaviour since the new offence was introduced. In Townsville, 39 people came before the Magistrates’ Court for offending against s 7AA in July 2004.

2. Defendant characteristics

As may be seen from Table 1, defendants who came before the Brisbane court for public nuisance in July were less likely to be homeless or of low income, and were less likely to be Indigenous than those charged with obscene language/offensive behaviour in February. In February, 15% of those brought before the Brisbane Magistrates’ Court for a s 7 offence were homeless, 69% were of low income and 46% were Indigenous. In July, 5% of those brought before the Brisbane Magistrates’ Court for public nuisance were homeless, 31% were of low income, and 10% were Indigenous. In Townsville, s 7AA defendants were more likely to be homeless or of low income, Indigenous, female and older than their Brisbane counterparts (see Table 1).

These findings demonstrate that large numbers of marginalised people are prosecuted under these offences. While a lower proportion of marginalised people in Brisbane were charged under s 7AA in July than under s 7 in February, there is a reasonable explanation for this. Due to the drop in temperature between February and July, fewer marginalised people are likely to have occupied public spaces during the second study period. In winter, people who are without conventional shelter may be more likely to utilise alternative accommodation options open to them (eg. staying with friends or in a hostel), while choosing not to in the warmer months for various reasons.^[12] Since marginalised people may spend less time in public space at this time of year, they may be more likely to avoid prosecution for public space offences. The drop in temperature in Townsville is less severe and thus is less likely to have had an impact on the number of marginalised people occupying public space.

Further, while it is true that the results suggest that public nuisance offenders brought before Brisbane Magistrates’ Court in July were less likely than the s 7 offenders in February to be mentally or cognitively impaired (16% compared with 31%) or affected by alcohol or other drugs at the time of the offence (34% compared with 54%), these findings may be unreliable. Mental or cognitive impairment is often not mentioned in court despite its presence, and the influence of alcohol or other drugs on the defendant’s conduct is also often not mentioned. Thus, any result yielded on these matters must be treated with caution.

One finding of this research which is of concern is that young people (operationally defined as those aged 17 to 25) were disproportionately represented in proceedings for public nuisance, compared with the old section. In February, 46% of defendants brought before Brisbane Magistrates’ Court for obscene language/offensive behaviour were aged between 17 and 25 years. In July, 65% of public nuisance offenders brought before the court were aged between 17 and 25 years. This is a staggering increase for which there is no obvious explanation other than selective enforcement.

Table 1: Demographics

3. Penalties imposed

Defendants were much more likely to receive a fine under the new section compared with the old; in July, 74% of public nuisance offenders in Brisbane and 72% of public nuisance offenders in Townsville received a fine compared with 50% of obscene language/offensive behaviour offenders in Brisbane in February. Defendants who came before the court under the new section were much less likely to be discharged without penalty or to receive a probation order or good behaviour bond. They were also more likely to receive a custodial sentence (see Table 2).

In addition, fine amounts were much higher under the new public nuisance offence compared with the old s 7 offence. The average fine imposed on a public nuisance offender in Brisbane Magistrates’ Court in July 2004 was $202, compared with an average fine amount of $152 for offensive language and offensive behaviour under s 7 in February. This represents a 35% increase in the dollar amount of fines imposed (see Table 3).

Further, defendants prosecuted under s 7AA in July were generally given less time in which to pay their fine than defendants prosecuted under s 7 in February. In February, the average amount of time to pay given to s 7 offenders who received fines was 2.75 months, while in July, the average time limit imposed on s 7AA offenders was 1.8 months. Thus, the amount required to be paid each month increased by 100%, from $55 per month to $112 per month. Notably, defendants who were homeless or of low income were given less time to pay on average in both the February and July studies (see Table 3).

Table 2: Penalties imposed

Table 3: Average fine amounts, time to pay, payment per month, default period

The results of this research, therefore, indicate that there has been no substantive reduction in the number of vulnerable people coming before the court for legally unacceptable language and behaviour. Despite the Attorney-General’s statements to the contrary, it seems that the offence of public nuisance is not being targeted at more serious criminal behaviour. Rather, the number of prosecutions has risen, and fine amounts have dramatically increased. This increase in fines is likely to have particularly adverse effects for marginalised defendants as many will find such fines impossible to pay.^[13] This appears unjust and impractical, it will have cost implications for the State Penalties Enforcement Registry,^[14] and it is also inconsistent with best practice, which suggests that alternative methods of dealing with minor offending behaviour in public space should be explored.^[15]

III. Legally unacceptable conduct

Having established that the replacement of the old s 7 offence with the offence of public nuisance has not resulted in a reduced number of prosecutions for legally unacceptable language and behaviour, the following questions may be raised: first, what kinds of language or behaviour should amount to legally unacceptable conduct? and, second, what kinds of language and behaviour are actually being prosecuted under these sections?

A. What Kinds of Language and Behaviour should amount to Legally Unacceptable Conduct?

1. Definition of terms

The higher courts have stated that the words that appear in these sections, such as ‘offensive’, ‘obscene’, ‘indecent’ and ‘disorderly’, should be given their ordinary contemporary meaning.^[16] ‘Offensive’ has been defined as being ‘displeasing, annoying or insulting’,^[17] or ‘calculated to wound the feelings, arouse anger or resentment or disgust or outrage.’^[18] ‘Obscene’ has been defined as ‘offensive to common propriety’,^[19] ‘offending the conscience of the community’,^[20] ‘filthy, bawdy, lewd and disgusting’,^[21] ‘very annoying and offensive’,^[22] ‘indecent or disgusting’ and offending against good taste or current standards of decency.^[23] ‘Indecent’ has been defined as ‘offending against recognised standards of propriety and delicacy’.^[24] ‘Disorderly’ has been said to denote ‘a substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people’.^[25] And ‘abusive’ and ‘insulting’ words have been defined similarly as words of an aggravated nature (i.e. not merely derogatory) which are intended to hurt the hearer.^[26]

Clearly, there is a fair degree of overlap between these discrete definitions, which would tend to suggest that the distinctions between them are largely illusory.^[27]

2. The test for legal unacceptability

Reported higher court decisions on offensive language and offensive behaviour suggest that in order for conduct to be legally unacceptable, it must be of a reasonably high level of seriousness. It is well-established that the test for whether behaviour or language is offensive is an objective one;^[28] that is, the behaviour or language in question must attract the disapproval of fair-minded and reasonable people.^[29] The courts have emphasised that the reasonable person is not easily shocked, but rather is largely tolerant (if not permissive), understanding, secular and ‘contemporary in his [sic] reactions’.^[30] Judges agree that the standard should be that of ‘plain sober and simple notions’ rather than ‘elegant or dainty modes or habits’:^[31] that of the majority rather than a sensitive minority.^[32]

It is equally well-established that the question of whether certain behaviour or language is legally unacceptable cannot be divorced from the context in which the behaviour was conducted or the words uttered. Members of the judiciary have noted that it is not possible to proscribe a list of words which are always offensive regardless of their context;^[33] rather, all the circumstances, including date, time, verbal context, intonation and even intention are relevant.^[34]

An examination of the reported cases demonstrates how much community standards have changed, even in recent decades.^[35] For example, in his dissenting judgment in Bradbury v Staines,^[36] Stable J suggested that one way to test whether the word ‘fuck’ was considered offensive by ordinary ‘decent-minded’ people, would be for an ordinary man to say to his wife when confronted with a distasteful breakfast dish ‘Fucking porridge!’. Stable J proposed that the reaction of his wife would provide the answer.^[37] Such a pronouncement is, of course, outdated on a number of different levels.

In the same case, Stable J explained the offensiveness of the word ‘fuck’ to women as arising from its sexual undertone.^[38] Yet only a few years later (in 1978), it was proved by empirical research that only a minority of people ascribed a sexual meaning to the word and only a minority of people considered it to be ‘legally’ offensive.^[39] Indeed, as early as 1973, Hart J remarked with regard to the word ‘fuck’ that ‘current usage has no doubt taken some of the offensiveness out of the word.’^[40]

It is now generally agreed that since the word is commonly used in contemporary society, and indeed is frequently used by police officers themselves, it should not ordinarily be considered offensive.^[41] As NSW Magistrate David Heilpern has said:

The word ‘fuck’ is extremely common place now and has lost much of its punch … In court, I am regularly confronted by witnesses who seem physically unable to speak without using the word in every sentence – it has become as common in their language as any other word and they use it without intent to offend, or without any knowledge that others would find it other than completely normal.^[42]

Further, higher court judges have stated that certain characteristics of the defendant may be relevant when determining whether the use of certain language amounts to an offence. Some higher court judges have noted that these offences should not be used as a ‘punishment for poverty’.^[43] Nor, presumably, should they be used to criminalise young people, or those who are members of a particular race. As Paul Wilson has explained, Aboriginal English differs in many respects to ‘European’ English, one of these being the more prolific use of words which may be considered ‘impolite’ in European circles.^[44] The same might be said of the form of English spoken by young people. A number of judges and magistrates have noted that these offences should not be used to punish people for their illiteracy or deficient vocabulary in circumstances where a more ‘studied’, less emotive comment or insult might have escaped the law’s notice.^[45]

The Vagrants, Gaming and Other Offences Act Review Committee remarked that people ‘should not be prevented from doing things just because other members of society disapprove’^[46] and in Ball v McIntyre, Kerr J said that these offences are not available to ‘ensure punishment of those who differ from the majority.’^[47] Kerr J remarked that it is not sufficient for such behaviour to be merely ‘hurtful, blameworthy or improper’,^[48] ‘foolish or misguided’^[49] or ‘a breach of the rules of courtesy or good manners’^[50] but rather it must arouse a ‘significant emotional reaction’ to amount to an offence.^[51]

The offensiveness of the language or behaviour in question must, therefore, be of a sufficient level of seriousness to warrant the attention of the criminal law.^[52] The courts have commented that mere indifference, annoyance, or even anguish is not sufficient to warrant the imposition of a criminal penalty on the actor.^[53] The appropriate balance must be struck between the rights of the community and the rights of individuals, and this requires a ‘substantial departure’ from the standard of conduct that the relevant section establishes^[54] and/or a disturbance or considerable annoyance to others.^[55] Indeed, in the recent High Court decision of Coleman v Power, three of the seven judges (Gummow, Hayne and Kirby JJ) agreed that only ‘fighting words’, or words which are intended or likely to provoke unlawful physical retaliation, should amount to an offence.^[56] Gleeson CJ did not go so far. He remarked that the language in question should involve a serious disturbance of public order, or an affront to standards of contemporary behaviour, to amount to an offence.^[57] He did not limit ‘disturbance of public order’ to the provocation of violence, but he did say that it should at least involve some threat to the peace or victimisation.^[58]

The reported decisions, therefore, set a fairly high evidentiary standard which prosecutors must meet in order to establish that a defendant’s conduct was offensive within the meaning of the section. The question remains, however, whether either of these offences, the old s 7 or the new s 7AA, have been interpreted and enforced by police and magistrates in the manner proscribed by the higher courts. The results of this study tend to suggest that they have not.

B. What kinds of language and behaviour are actually being prosecuted under these sections?

Data yielded from the court observation studies undertaken in February and July 2004 suggests that police and magistrates in Queensland are not interpreting these offences in a manner consistent with prevailing judicial opinion. The majority of cases observed during the study period concerned only extremely trivial behaviour which does not meet the level of seriousness proscribed by the higher court decisions outlined above.

For example, 19% of all s 7AA cases which came before the Brisbane Magistrates’ Court in July were for public urination. In not one of these cases was the act of public urination alleged by police to amount to wilful or indecent exposure; rather the conduct generally occurred late at night, in a discrete manner, either as a result of necessity or intoxication. Many defendants claimed they were simply unable to access toilet facilities in time, or did not have sufficient money to pay to enter premises where they could access such facilities. In one case, a 17 year old boy had been at a friend’s house and had consumed a large amount of soft drink; he urinated in a car park on his walk home late at night and was arrested for public nuisance as a result.

The comments of higher court judges outlined above regarding the importance of context when determining the offensiveness of a particular course of conduct would suggest that while such behaviour is undesirable, it is probably not, in the absence of some aggravating circumstance, sufficiently serious to warrant the imposition of a criminal penalty. Indeed, this view was expressed by a number of members of the Queensland Legislative Assembly in the course of parliamentary debates regarding the Summary Offences Act 2005 (Qld). Two members of Parliament noted that public urination should not be considered offensive in case of accident or, for example, where a homeless person is forced to urinate in public because they have no private space to which they can retreat.^[59]

Further, 21% of s 7AA offenders who came before the Brisbane Magistrates’ Court in July, and 32% of s 7AA offenders who came before the Townsville Magistrates’ Court in July, were charged because they were yelling or swearing in a public place. In many cases recorded in this study, mere yelling (without swearing) formed the basis for the charge, despite the fact that there may have been a reasonable excuse for the person’s behaviour. When the case examples are examined, it can be seen that many involve behaviour which would not, according to the balance of judicial opinion, be of sufficient seriousness to warrant the imposition of a criminal penalty. For example, in one case, a defendant was engaged in an argument with his mother. He stormed out of the house, and continued to yell at her from the footpath. He was found guilty of public nuisance at the Brisbane Magistrates’ Court in July. Another two defendants in July, one in Brisbane and one in Townsville, were yelling at their neighbours regarding a barking dog. They, too, were found guilty of public nuisance. In yet another case, a group of young people were gathering in a park at night. They were behaving loudly, and a number of them were charged with, and found guilty of, public nuisance. According to the balance of judicial opinion, such trivial behaviour probably does not warrant the intervention of the police or the courts.

Many other case examples may be cited to demonstrate the trivial kinds of conduct which were prosecuted during the study periods. For example, a homeless man was found guilty of public nuisance in Brisbane for accidentally upsetting a cart of oranges at an outdoor juice bar. Another man was found guilty of public nuisance for attempting to commit suicide outside an Ozcare office. Two people, one in Brisbane and one in Townsville, were found guilty of public nuisance for vomiting in a public place. And a further two defendants were found guilty of offensive behaviour under s 7 for swinging their arms around in public.

Clearly, these offences are not being applied in a manner consistent with prevailing judicial opinion; many people are being found guilty of an offence for language or behaviour which is not offensive within the meaning of the section.

IV. Mens rea and other defences

Of course, even if the court does conclude that the language or behaviour of the defendant was legally unacceptable within the meaning of the section, it may still be open to the defendant to argue that they did not possess the relevant mental element to establish the offence, or that there is some legal defence available to them.

It has long been held that there is a presumption that mens rea is an essential element of every criminal offence, although this presumption may be displaced either by express words or by necessary implication.^[60] Of course, mere absence of the words ‘intentionally’ or ‘knowingly’ in the phrasing of an offence is not sufficient to displace the presumption; rather, it has been held that their absence may indicate merely a reversal of the onus of proof.^[61] Having said this, some exceptions to this rule have been recognised. Criminal offences which will not require mens rea to be established include: those which criminalise acts which are not in any real sense criminal, but rather exist to protect the public interest; acts which are akin to toxic torts; and those which merely provide a summary method of enforcing a civil right, such as trespass.^[62]

Yet, despite the fact that offensive language and offensive behaviour offences do not come within any of the three classes of cases listed above (and despite the fact that there are few policy reasons to treat offensive language and offensive behaviour cases in a manner akin to these more serious crimes),^[63] in some cases judges have implied that mens rea may not need to be established in cases of offensive language and offensive behaviour, and that intent may ordinarily be inferred from the doing of the act.^[64] For example, Cockburn J said in R v Hicklin^[65] that ‘it does not lie in the mouth of the man who [engages in offensive conduct] to say “well, I was breaking the law, but I was breaking it for some wholesome and salutary purpose.”’^[66] Subsequent cases have implied that this approach may be incorrect, and that while proof of intent or knowledge may not be required, involuntariness or honest and reasonable mistake of fact may be offered as a defence to such a charge.^[67]

The debate is likely to be merely academic in the Queensland context as these defences, as well as the defence of emergency, are listed as statutory defences in ss 23, 24 and 25 of the Criminal Code 1899 (Qld).^[68] Yet, despite the clear availability of these defences to public nuisance defendants in Queensland,^[69] in not one case observed throughout the study period was mens rea or any of these statutory defences mentioned or debated in court. In fact, defendants very rarely contested such charges. Not one defendant pleaded not guilty during the February court observation period, and in July, only 4% of public nuisance defendants in Brisbane and 8% of public nuisance defendants in Townsville contested the charge.

When the fact scenarios are examined, it becomes clear that in many cases, it may have been open to the defendant to argue that s/he was acting involuntarily, as a result of necessity, or under an honest and reasonable mistake of fact as to the legal unacceptability of his/her actions. For example, many of the defendants charged with public nuisance for urinating in public may have been able to argue that they were acting against their will (under s 23 of the Criminal Code 1899 (Qld)), or as a result of an emergency over which they did not have self-control and could not have been expected to act otherwise (under s 25 of the Criminal Code 1899 (Qld)). Likewise, the two defendants found guilty of public nuisance for vomiting in public might have attempted to raise these defences.

Further, those defendants who were charged with public nuisance for yelling in public, having an argument with someone in public, or swearing in public might have been able to argue that they were acting under the honest and reasonable belief that their actions were not offensive, threatening, disorderly or violent within the meaning of the section. This might have proved particularly persuasive in the case of the homeless man who accidentally upset a cart of oranges at a juice bar, and the man who was found to be creating a public nuisance for attempting to commit suicide in a public place.

This defence might also have been raised by some defendants charged with public nuisance as a result of an altercation with police. For example, in one case, a defendant was charged with public nuisance after yelling at police to leave her friend, whom they were attempting to arrest, alone. In fact, the defendant was trying to explain to police that her friend had a broken collar bone and that forcing her hands behind her back might aggravate her injury. It is likely that such a defendant may have been able to establish that she honestly and reasonably believed that this would not amount to legally unacceptable conduct.

The defence of honest and reasonable mistake of fact might also have been raised by the three defendants in Townsville who were charged with and convicted of public nuisance for drinking alcohol in a public place, in the absence of any aggravating circumstances such as causing a disturbance or acting in a disorderly manner. While they could not have claimed ignorance as to the existence of the offence of drinking alcohol in public,^[70] they might reasonably have argued that they were under the honest apprehension that their behaviour would not cause offence to, or be experienced as threatening or abusive towards, anyone and thus would not amount to a public nuisance.^[71]

Another statutory defence which may have been open to some defendants observed during this study period is the defence of mental illness.^[72] As noted above, mental illness was stated in court to have contributed to the commission of the offence in 31% of obscene language/offensive behaviour cases brought before the Brisbane Magistrates Court in February, and 16% of public nuisance cases observed in Brisbane and Townsville in July. One mentally impaired defendant, for example, was charged with public nuisance for acting ‘abusively’ towards police and hospital staff after taking an overdose of his anti-psychotic medication. Another mentally impaired defendant had been behaving ‘violently’ in a mall because he was suffering from hallucinations and believed he was being chased by motorcycle gangs. Another mentally impaired defendant was found guilty of public nuisance for shouting obscenities at police officers and urinating on a tree. It seems that in all of these cases, it would have been open to defendants to raise the defence of mental illness. The defence of mental illness might also have been available to the defendant who was charged with public nuisance for attempting to commit suicide.

Of course, as McHugh J stated in Coleman v Power,^[73] this is not a particularly wide or appropriate range of defences. It is lamentable that when introducing the new public nuisance offence the Queensland Government did not follow the New South Wales model, whereby a statutory defence of reasonable excuse is available in offensive language and offensive behaviour cases.^[74] However, the limited defences available to Queensland defendants do provide them with some scope for challenging unjust or inappropriate charges, and it is hoped that their usefulness will be further explored in future cases.

V. Police practices and legally unacceptable language and behaviour

Many cases of offensive language and offensive behaviour that come before Australian lower courts are founded on insulting or abusive words or behaviour directed at police officers.^[75] Thus, in addition to commenting generally on the kinds of behaviour that may be considered legally unacceptable and the defences that may be available to such defendants, many higher court judges have taken the opportunity to comment on the impact that police practices can have on the nature and rate of prosecutions for offensive language and offensive behaviour.

A. Conduct Directed at Police Officers

A number of judges have remarked that when determining whether certain behaviour or language is legally unacceptable, the evidence of police officers should be given little weight.^[76] As the court in Stutsel v Reid reiterated, the purpose of the offence is to protect the public from unlawful interference, not to protect police from insults.^[77] Moreover, while a police officer may claim to be the member of the public whose enjoyment of public space was being interfered with, judges have said that most often, police officers will not be able to claim that they were affected by the conduct in this way. As Glidewell LJ said in DPP v Orum, such behaviour is likely to be ‘wearily familiar’ to police officers to the extent that it ‘will have little emotional impact save that of boredom.’^[78] Indeed, a majority of the High Court in Coleman v Power agreed that merely directing an insult at a police officer will not amount to a criminal offence because such conduct is unlikely to amount to victimisation, result in a breach of the peace, or provoke unlawful physical retaliation.^[79] While the judges agreed that police officers must not be expected to be impervious to insult,^[80] they remarked that police officers should be ‘thick-skinned and broad shouldered in the performance of their duties’^[81] and that they should be expected to ‘resist the sting of insults directed to them’.^[82]

The reports of the Royal Commission into Aboriginal Deaths in Custody also voiced support for a permissive approach to such incidents. Recommendation 86(a) stated that ‘the use of offensive language in circumstances of interventions initiated by police should not normally be occasion for arrest or charge.’^[83] And Commissioner Wootten remarked in the inquiry into the death of David Gundy:

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 … does nothing for respect for the police.^[84]

Judges have remarked that in many cases, the most appropriate course of action for a police officer to whom offensive language or behaviour has been directed will be to turn a blind eye. For example, in Bryant v Stone, a police officer was persisting in pursuing a hitchhiker on a rural road. As the police car pulled away, the defendant extended his middle finger, ‘seeking to give a well-known sign of disapproval’.^[85] The court held that the police officer should have continued driving and permitted the defendant to engage in ‘what was, after all, a quite mild form of protest’ to his unwarranted interference.^[86]

Indeed, the courts have recognised that in some cases, police officers may actually provoke the commission of an offence, and that in such cases, the defendant should not necessarily be held to blame. For example, in Bryant v Stone the court expressed the view that a threat to arrest the defendant if he persisted in certain comments ‘virtually invited’ the defendant to commit an offence. The defendant had remarked to the police officer that ‘you pigs are all the same’. The police officer told the defendant that he would arrest him if he continued ‘with this language’. Wylie DCJ said:

[The defendant] was not in any way insulting when he informed the [police officer] that he was no different from any other police officer … [The police officer] should have been quite flattered by that declaration, but stupidly, in my view, he virtually invited [the defendant] to repeat the word by his threat to arrest.^[87]

Similarly, in Singh v Duncan, the judge remarked:

I can appreciate why in the circumstances the appellant should become hostile and aggressive towards a person who is warning him to stop using language of a type which was not an offence to use … He was entitled to respond in a way which can reasonably be treated as putting [the police officer] in his place.^[88]

Further, in the 1966 High Court case of Ball v McIntyre, a man had climbed onto a statue and posted a placard on it. He persisted in this behaviour, even though he was instructed to come down by a police officer. Kerr J commented that mere persistence in this behaviour, which was not in itself offensive, did not amount to an offence: behaviour which is not offensive to begin with cannot become offensive simply because it is continued against the wishes of a police officer.^[89]

In light of these judicial remarks, one might expect charges for legally unacceptable language and behaviour based solely on conduct directed at police officers to be few and far between. However, the results of this research suggest that this is far from the case. Indeed, 42% of charges under s 7 which came before the Brisbane Magistrates’ Court in February, 34% of charges under s 7AA which came before the Brisbane Magistrates’ Court in July, and 22% of charges under s 7AA which came before the Townsville Magistrates’ Court in July were based solely on behaviour or language directed at police officers. In the majority of these cases, the charge was based on a mere insult directed at a police officer; most commonly, the defendant had called a police officer a name, such as ‘pig’, ‘faggot’, ‘fuck-head’, ‘thug’, ‘mole’ or ‘racist’. Thus, again, it seems that the enforcement and interpretation of these offences by police and magistrates is not in line with higher court authority.

B. Public Nuisance as a Gateway Offence

The Royal Commission into Aboriginal Deaths in Custody noted that the offence of public drunkenness can often act as a ‘gateway offence’, that is, interactions between police and public drunkenness offenders may result in the imposition of additional charges on the offender such as obstructing a police officer in the course of his/her duty, resisting arrest, or assaulting a police officer.^[90] However, it is not just the offence of public drunkenness that may have this effect. Interactions initiated by police in response to what they perceive to be offensive language or offensive behaviour may also lead to the imposition of additional offences.^[91] This is often known as the trifecta, ‘ham, cheese and tomato sandwich’ or ‘hamburger with the lot’ effect.^[92] Ultimately, the trifecta effect may result in disproportionately high penalties being imposed on defendants for what was originally extremely trivial offending behaviour.

The results of this research demonstrate that in Queensland the offences of obscene language/offensive behaviour and public nuisance are often accompanied by additional charges arising out of the same facts. In February 2004, 23% of offensive behaviour and offensive language charges brought before the Brisbane and Townsville Magistrates’ Courts were accompanied by an obstruct police charge, while in July, 17% of public nuisance offences were accompanied by an obstruct police charge and 8% were accompanied by both an obstruct police and an assault police charge.

VI. The philosophy behind the criminalisation

of offensive language and behaviour: Explaining the differences between the approaches of police, magistrates, judges and legislators

It has been established, based on legal and empirical analyses, that the interpretation and enforcement of the offences of obscene language/ offensive behaviour and public nuisance by police and magistrates in Queensland may not accord with the balance of judicial opinion regarding how these offences should be constructed and applied. Therefore, it may well be asked why this is the case. One possible suggestion will be advanced here.

The Explanatory Note to the Summary Offences Act 2005 (Qld) states that the purpose of the public nuisance offence is to ensure that members of the public are ‘able to lawfully use and pass through public places without interference from the unlawful acts of nuisance committed by other people.’ This is consistent with remarks made by many judges in Australia regarding the purpose of like offences over the past century.^[93]

But the question of why exactly the public needs protection has always been a source of contention. Two possible reasons have been proffered: the need to protect morality in general, and the need to protect individuals from interference from things which are offensive to them.^[94] In Crowe v Graham, Barwick CJ maintained that references to ‘obscenity’ in these offences implied an intention by the legislature to protect morality, while the use of the word ‘indecent’ implied an intention to maintain individuals’ freedom from material which might offend. In Normandale v Brassey,^[95] Wells J identified the latter purpose as the correct one without distinguishing between the specific types of unacceptable language or behaviour listed in the relevant section. Similarly, in Police v Pfeifer,^[96] the court held that the offences of offensive language and offensive behaviour were aimed at preventing individuals from becoming upset or offended by prohibiting conduct which ‘members of the community consider they should not have to tolerate.’^[97] However, in Bryant v Stone, Wylie DCJ asserted that Parliament’s purpose was to promote ‘purity of language’ and ‘dignity of conversation’,^[98] both of which seem to reflect moral rather than practical concerns.

Law enforcers’ conceptions of why such offences are considered necessary in modern legal systems may have important implications for the manner in which they undertake their role. If the aim is to ensure that members of the community are free to enjoy public spaces without interference, then contemporary reactions to behaviour or language considered ‘offensive’ are particularly relevant. Under this conception, the behaviour or language in question may be considered ‘immoral’ by society’s elite, but as long as it does not prevent members of the community from enjoying public spaces, the law enforcer will conclude that it does not warrant the attention of the criminal law. If, on the other hand, the aim is to enforce morality, adherence to abstract standards set by ‘the powerful’ seems at least superficially justifiable, notwithstanding its tendency towards hegemony.

This inquiry into motives also has implications for the perceived legitimacy of law enforcers’ actions. As Bray points out, if the aim is to enforce a moral code, it must be asked what the content of that code is: is it Christian in nature, or is it secular?^[99] Either way, the extent to which it is appropriate to enforce any one form of morality in a multicultural, pluralistic society may be questioned.^[100]

Based on this analysis, it may be concluded that one possible reason for the divergence between the approaches of police and magistrates to offensive behaviour and offensive language offences, and those of higher court judges and legislators, is that they differ in their conceptions regarding the social purpose of such offences. In short, it may be that police and magistrates approach these cases as ‘moral defenders’ while higher court judges share legislators’ more pragmatic concern of safeguarding the capacity of community members to enjoy public spaces.^[101] It is submitted that if such a divergence in philosophy remains, dissonance in approach is likely to continue. Ultimately, this will mean than many more defendants will receive convictions and penalties for behaviour which does not lawfully amount to an offence.

VII. Conclusion

These findings demonstrate that the new offence of public nuisance is not meeting its objectives and, in practice, is not targeted merely at behaviour which threatens the safety or security of people using public space.

Of course, once it is established that police and magistrates are not interpreting or enforcing these offences in a lawful manner (in that their approaches are not consistent with those of higher court judges), the question must be asked ‘who is to blame?’ Unsurprisingly, the Minister for Police and Corrective Services blames the magistrates, and the Attorney-General blames the police.^[102] The answer, as always, is probably that blame must be apportioned between a number of different actors. Magistrates may need reminding that their approach to offensive language and offensive behaviour cases should reflect that of the higher courts; and police may require education regarding the impact that such laws have on vulnerable groups, as well as training in tolerance. But ultimately, their approaches will be guided by the wording of the offence, and it is for this that the legislature must accept responsibility.

The new offence of public nuisance has been referred to the Crime and Misconduct Commission for review, and the Commission is due to release its report by the end of 2005. It is hoped that the Queensland Government will seriously consider amending the offence in light of the practical effect that the amendments have had on the number and nature of prosecutions for legally unacceptable language and behaviour, perhaps by creating a statutory defence of reasonable excuse or clarifying the standard of offensiveness that the prosecution is required to prove. Alternatively, education programs for police and magistrate should be introduced.

^[*] Tamara Walsh LLB, BSW (Hons I), PhD Candidate. Lecturer, TC Beirne School of Law, University of Queensland. I would like to thank research assistants Anastasia Angelopoulos, Tanya Anderson and Naomi de Costa for their contribution to this research.

^[1] See Summary Offences Act 1988 (NSW) ss 4, 4A; Summary Offences Act 1966 (Vic) s 17; Police Act 1892 (WA) ss 54, 59; Police Offences Act 1935 (Tas) ss 12, 13; Summary Offences Act 1953 (SA) ss 7, 22, 23; Summary Offences Act 1923 (NT) s 47; Crimes Act 1900 (ACT) s 392.

^[2] The Office of Economic and Statistical Research (OESR) reports that in 1999/00, 8807 people were prosecuted for offensive behaviour in Queensland Magistrates’ Courts, but not one person appeared before the District or Supreme Courts for offensive behaviour that year; OESR, Crime and Justice Statistics, Queensland, 1999/00, Tables 2.2.4 and 2.2.5, obtained from <www.oesr.qld.gov.au>. See also Tamara Walsh, ‘Won’t pay or can’t pay?’ (2005) Current Issues in Criminal Justice (forthcoming).

^[3] OESR, ibid.

^[4] Since for the duration of the study period the offence of public nuisance was found in s 7AA of the Vagrants, Gaming and Other Offences Act 1931 (Qld), I will refer to it as ‘s 7AA’. In fact, it is now found in s 6 of the Summary Offences Act 2005 (Qld).

^[5] For evidence that a complaint was never required for the offence to be made out, see Purvis v Inglis [1915] NZGazLawRp 201; (1915) 34 NZLR 1051, 1058; Connolly v Willis [1984] 1 NSWLR 373, 384; Stutsel v Reid (1990) 20 NSWLR 661, 663; Spence v Loguch, Unreported, NSW Supreme Court, 12 November 1991 (Sully J).

^[6] The alternative sentences of probation and community service may be imposed instead of a sentence of imprisonment under ss 91 and 101 of the Penalties and Sentences Act 1992 (Qld).

^[7] [2001] QCA 539; [2002] 2 Qd R 620.

^[8] (2004) 209 ALR 192 (McHugh J dissenting).

^[9] I was one such commentator. See Tamara Walsh, ‘“Reforms” to the Vagrants, Gaming and Other Offences Act: What do they achieve?’ (2004) February Proctor 23.

^[10] Statement made at a public forum: Legislated Intolerance: Public Order Law in Queensland held at the Banco Court in June 2004.

^[11] See Rights in Public Space Action Group (RIPS), ‘Queensland no “Smart State” for the homeless and poor’, Media Release, 28 October 2003. RIPS is a coalition of community agencies that provide legal and other services to homeless people in Queensland.

^[12] This is particularly true of transient Indigenous people: see Paul Memmott, Stephen Long, Catherine Chambers and Frederick Spring, Categories of Indigenous ‘Homeless’ People and Good Practice Responses to their Needs (2003).

^[13] This is largely because social security benefits in Australia are pegged at levels well below the poverty line: see Tamara Walsh, ‘Social security or social exclusion?’ (2005) Parity (forthcoming).

^[14] SPER is the administrative agency which enforces the payment of fines in Queensland.

^[15] See Tamara Walsh, above n 2.

^[16] Purvis v Inglis [1915] NZGazLawRp 201; (1915) 34 NZLR 1051, 1058; Norley v Malthouse [1924] SAStRp 38; [1924] SASR 268, 269; R v Smith [1974] 2 NSWLR 586, 587 (Street CJ); Carpenter v Halsted [1973] Qd R 35, 46-7 (Skerman J); Tracey v Wyles, Unreported, Townsville District Court, 1 March 1990; Coleman v Power [2004] HCA 39; (2004) 209 ALR 182, 199 (McHugh J), 262 (Heydon J).

^[17] R v Smith [1974] 2 NSWLR 586, 587-8 (Street CJ).

^[18] Worcester v Smith [1950] VicLawRp 62; [1951] VLR 316, 318 (O’Bryan J).

^[19] Purvis v Inglis [1915] NZGazLawRp 201; (1915) 34 NZLR 1051, 1058.

^[20] Sancoff v Halford; ex parte Halford [1973] Qd R 25, 28 (Campbell J).

^[21] Crowe v Graham [1968] HCA 6; (1968) 121 CLR 375 (Windeyer J).

^[22] Carpenter v Halsted [1973] Qd R 35, 52 (Hart J).

^[23] R v Close [1948] VicLawRp 47; [1948] VLR 445, 463 (Fullagar J).

^[24] Norley v Malthouse [1924] SAStRp 38; [1924] SASR 268, 269.

^[25] Barrington v Austin & Others [1939] SAStRp 38; [1939] SASR 130, 132.

^[26] Coleman v Power [2004] HCA 39; (2004) 209 ALR 182, 188 (Gleeson CJ), 229 (Gummow and Hayne JJ), 246 (Kirby J).

^[27] See Windeyer J in Crowe v Graham [1968] HCA 6; (1968) 121 CLR 375.

^[28] Connolly v Willis [1984] 1 NSWLR 373, 378; Coleman v Power [2004] HCA 39; (2004) 209 ALR 182, 262 (Heydon J). The question of whether certain language or behaviour is offensive is a question of fact to be determined by the magistrate; see Barrington v Austin & Others [1939] SAStRp 38; [1939] SASR 130, 132; Humphries v Smith [1963] Qd R 67 (Mansfield CJ).

^[29] Vagrants, Gaming and Other Offences Act Review Committee, Final Report of the Vagrants, Gaming and Other Offences Act Review Committee to the Minister for Police and Emergency Services, 1993, 11.

^[30] Norley v Malthouse [1924] SAStRp 38; [1924] SASR 268, 269-70; Ball v McIntyre [1966] 9 FLR 237, 245; Pell v Council of the Trustees of the National Gallery [1998] 2 VR 391.

^[31] Norley v Malthouse [1924] SAStRp 38; [1924] SASR 268, 269-70.

^[32] Tracey v Wyles, Unreported, Townsville District Court, 1 March 1990.

^[33] See Tracey v Wyles, Unreported, Townsville District Court, 1 March 1990 with regard to the word ‘fuck’; Bryant v Stone, Unreported, Townsville District Court, 26 October 1990 at 4 when determining whether referring to police officers as ‘pigs’ was offensive.

^[34] Bradbury v Staines [1970] Qd R 76, 89 (Matthews J); Connolly v Willis [1984] 1 NSWLR 373, 378; Pregelj and Wurramurra v Manison (1987) 51 NTR 1, 17 (Nader J), 24 (Rice J); Bryant v Stone, Unreported, Townsville District Court, 26 October 1990, 3; Spence v Loguch, Unreported, NSW Supreme Court, 12 November 1991 (Sully J); Nelson v Mathieson [2003] VSC 451; Police v Couchy, Unreported, Brisbane Magistrates’ Court, 13 August 2004; Coleman v Power [2004] HCA 39; (2004) 209 ALR 182, 188 (Gleeson CJ).

^[35] A possibility noted by Wylie DCJ in Tracey v Wyles, Unreported, Townsvile District Court, 1 March 1990 and Hart J in Attorney-General v Twelfth Night [1969] Qd R 319, 327.

^[36] [1970] Qd R 76.

^[37] [1970] Qd R 76, 82-3.

^[38] Ibid.

^[39] Paul R. Wilson, ‘What is deviant language?’ in Paul R. Wilson and John Braithwaite, Two Faces of Deviance: Crimes of the Powerless and the Powerful (1978).

^[40] Carpenter v Halsted [1973] Qd R 35, 51-2.

^[41] Even in 1978, Paul Wilson found that the vast majority of people admit to having used the word ‘fuck’ before; indeed 44.5% of non-Indigenous people surveyed and 50.5% of Indigenous people surveyed admitted to using the word very often or often. The study also demonstrated that police officers use the word as frequently as the remainder of the population; Paul R. Wilson, ‘What is deviant language?’ in Paul R. Wilson, above n 39, 53-5. See also Police v Couchy, Unreported, Brisbane Magistrates’ Court, 13 August; and see Commissioner of Police v Anderson & Anor, Unreported, Supreme Court of NSW, 21 October 1996 for an example of use of the word ‘fuck’ by a police officer.

^[42] David Heilpern, ‘Judgement: Police v Shannon Thomas Dunn’ [1999] AltLawJl 78; (1999) 24(5) Alternative Law Journal 238. This approach was affirmed by Mr Shine, ALP Member for Toowoomba North in the Parliamentary debate prior to the passing of the Summary Offences Act 2005 (Qld); see Queensland Parliament Hansard, 23 February 2005 at 142.

^[43] Zanetti v Hill [1962] HCA 62; (1962) 108 CLR 433, 442; Moore v Moulds (1981) The Queensland Lawyer 227, 230.

^[44] Paul R Wilson, above n 39, 47.

^[45] Bryant v Stone, Unreported, Townsville District Court, 26 October 1990 (Wylie DCJ); Police v Couchy, Unreported, Brisbane Magistrates Court, 13 August 2004; Coleman v Power [2004] HCA 39; (2004) 209 ALR 182, 248 (Kirby J). See also Paul R. Wilson, above n 39, 47.

^[46] VGOO Act Review Committee, 11.

^[47] [1966] 9 FLR 237; see also Moore v Moulds (1981) The Queensland Lawyer 227, 230.

^[48] [1966] 9 FLR 237, 241.

^[49] [1966] 9 FLR 237, 244.

^[50] [1966] 9 FLR 237, 241.

^[51] [1966] 9 FLR 237, 243.

^[52] Dillon v Byrne (1972) 66 QJPR 112; Police v Couchy, Unreported, Brisbane Magistrates’ Court, 13 August 2004; Melser v Police [1967] NZLR 437 (Turner J).

^[53] Nelson v Mathieson [2003] VSC 451.

^[54] Normandale v Brassey [1970] SASR 177, 182.

^[55] Melser v Police [1967] NZLR 437, cited with approval by Gleeson CJ in Coleman v Power (2004) 209 ALR 192 at [11].

^[56] [2004] HCA 39; (2004) 209 ALR 182, 227 (Gummow and Hayne JJ), 246-7 (Kirby J).

^[57] Ibid 191 (Gleeson CJ).

^[58] Ibid 188 (Gleeson CJ).

^[59] See the comments of Mr Shine (the ALP member for Toowoomba North) and Dr Flegg (the Liberal member for Moggill), Queensland Parliament Hansard, 23 February 2005 at 142, 156.

^[60] Nicols v Hall (1873) LR 8 CP 322; R v Tolston [1889] UKLawRpKQB 85; (1889) 23 QBD 168, 187; He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, 565 (Brennan J).

^[61] Sherras v De Rutzen [1895] UKLawRpKQB 77; [1895] 1 QB 918, 921.

^[62] Ibid 922. See also Pregelj and Wurramura v Manison (1987) 51 NTR 1 (Nader J).

^[63] Pregelj and Wurramura v Manison (1987) 51 NTR 1, 12 (Nader J).

^[64] See particularly R v Close [1948] VicLawRp 47; [1948] VLR 445 which concerned an obscene publication.

^[65] [1868] LR 3 QB 360.

^[66] [1868] LR 3 QB 360, 373.

^[67] Normandale v Brassey [1970] SASR 177, 180, 182; Pregelj and Wurramura v Manison (1987) 51 NTR 1, 24 (Rice J); Police v Pfeifer [1997] SASC 6172; (1997) 68 SASR 285.

^[68] O’Connor and Fairall have claimed that common law rules related to mens rea and criminal defences are not applicable in Code States, although they may assist with the interpretation of terms used in the Codes (see D O’Connor and P A Fairall, Criminal Defences, 1996 at 12-14). However, in Stingel v R [1990] HCA 61; (1990) 171 CLR 312 where the question of the relevance of common law rules to Code States was posed, the court was not prepared to come to this conclusion.

^[69] In the Vagrants, Gaming and Other Offences Act 1931 (Cth), it was expressly stated in s 52 that the defences outlined in the Criminal Code 1899 (Qld) applied to offences committed under the former Act. This section has not been replicated in the new Summary Offences Act 2005 (Qld), however s 12(1) of the Criminal Code 1899 (Qld) tends to suggest that s 52 was superfluous anyway.

^[70] Drinking alcohol in public is an offence under s 173B of the Liquor Act 1992 (Qld). Ignorance of the law is no excuse under s 22(1) Criminal Code 1899 (Qld).

^[71] The most probable reason why the police choose to prosecute such defendants under the public nuisance offence rather than public drinking is because the latter attracts a maximum penalty of a fine of only $75, while public nuisance attracts a maximum fine of $750 or six months imprisonment.

^[72] Available under s 27 of the Criminal Code Act 1899 (Qld).

^[73] [2004] HCA 39; (2004) 209 ALR 182 at [71].

^[74] See s 4(3) and s 4A(2) of the Summary Offences Act 1988 (NSW). Interestingly, the Summary Offences Act 2005 (Qld) contains a provision whereby police are instructed to inquire of a defendant whether they have a reasonable explanation for their actions and to take any reasonable explanation into account when deciding whether to start proceedings against an offender (Schedule 1). However, this provision does not extend to the offence of public nuisance. For further discussion of the defence of reasonable excuse, see Tamara Walsh, ‘Who is the public in public space?’ (2004) 29(2) Alternative Law Journal 82.

^[75] See Commissioner E Johnson, Royal Commission into Aboriginal Deaths in Custody: Overview and Recommendations, Recommendation 86; Commissioner JH Wootten, Report of the Inquiry into the Death of David John Gundy (1991).

^[76] Most clearly in Connolly v Willis [1984] 1 NSWLR 373, 384.

^[77] (1990) 20 NSWLR 661 at 663-4; see also Coleman v Power [2004] HCA 39; (2004) 209 ALR 182, 247-8 (Kirby J).

^[78] [1988] 3 All ER 449, 451-2.

^[79] [2004] HCA 39; (2004) 209 ALR 182, 188 (Gleeson CJ), 231 (Gummow and Hayne JJ), 247-8 (Kirby J).

^[80] Ibid 188 (Gleeson CJ); Stutsel v Reid (1990) 20 NSWLR 661, 663.

^[81] Coleman v Power [2004] HCA 39; (2004) 209 ALR 182, 247 (Kirby J).

^[82] Ibid 256 (Gummow and Hayne JJ). See also Bryant v Stone, Unreported, Townsville District Court, 26 October 1990 and Singh v Duncan, Unreported, Townsville District Court, 11 December 1990.

^[83] Commissioner E Johnson, above n 75.

^[84] Commissioner JH Wootten, above n 75.

^[85] Bryant v Stone, Unreported, Townsville District Court, 26 October 1990.

^[86] Ibid 5.

^[87] Ibid.

^[88] Unreported, Townsville District Court, 11 December 1990, 4.

^[89] [1966] 9 FLR 237, 242.

^[90] Commissioner JH Wootten, Royal Commission into Aboriginal Deaths in Custody: Regional Report of the Inquiry into New South Wales, Victoria and Tasmania, 1991; Commissioner JH Wootten, Royal Commission into Aboriginal Deaths in Custody: Report of the Inquiry into the Death of James Archibald Moore, 1990.

^[91] Other offences may also have the same effect, such as failure to follow a police direction. See Richard Harding, ‘Justice and injustice’ paper presented at the Benchmarking Workshop, 18-19 November 1998.

^[92] See also Rick Sarre and Syd Sparrow, ‘Race relations’ in Tim Prenzler and Janet Ransley (eds) Police Reform: Building Integrity, 2002 at 56; Mark Dennis ‘Is this the death of the trifecta?’ (2002) 40(3) Law Society Journal 66.

^[93] Norley v Malthouse [1924] SAStRp 38; [1924] SASR 268, 269; Tracey v Wyles, Unreported, Townsville District Court, 1 March 1990, 7.

^[94] Crowe v Graham [1968] HCA 6; (1968) 121 CLR 375 (Barwick CJ).

^[95] [1970] SASR 177.

^[96] (1997) SASR 285.

^[97] Ibid (Doyle CJ).

^[98] Unreported, Townsville District Court, 26 October 1990, 3.

^[99] JJ Bray, ‘The juristic basis of the law relating to offences against public morality and decency’ (1972) 46 The Australian Law Journal 100, 103-4.

^[100] Note the comments of Harper J in Pell v Council of the Trustees of the National Gallery [1998] 2 VR 391 when reflecting on whether certain blasphemous representations constituted offensive behaviour.

^[101] There are, however, two lower court cases which provide notable exceptions to this general rule: Police v Couchy, Unreported, Brisbane Magistrates’ Court, 13 August 2004 (transcript obtained from the Brisbane Magistrates’ Court) and Police v Shannon Thomas Dunn, Unreported, Dubbo Local Court (for a transcript of the judgement, see David Heilpern, ‘Judgement: Police v Shannon Thomas Dunn’ [1999] AltLawJl 78; (1999) 24(5) Alternative Law Journal 238).

^[102] See for example the comments of Attorney-General Rod Welford at the forum, Legislated Intolerance: Public Order Law in Queensland held at the Banco Court in June 2004.