Cunneen, Chris --- "Times Have Changed? Police v Dunn" [1999] IndigLawB 80; (1999) 4(24) Indigenous Law Bulletin 13

Times Have Changed?

Police v Dunn

Police v Dunn

Unreported

Dubbo Local Court

David Heilpern, S.M.

27 August 1999

by Chris Cunneen

Good authors too who once knew better words,

Now only use four-letter words

Writing prose,

Anything goes.

Cole Porter, Anything Goes.1934.

Perhaps police in western New South Wales have never read the ‘good authors’ Cole Porter referred to in his 1934 song, Anything Goes. Perhaps some police only find the word ‘fuck’ offensive when it is uttered by Koori young people. The hypocrisy of charging Aboriginal people with offensive language, particularly in situations arising from police intervention, has been commented upon continually since the 1980s. This specific policing tactic against Aboriginal people has drawn negative comment from the New South Wales Anti Discrimination Board, from the International Commission of Jurists, from the Royal Commission into Aboriginal Deaths in Custody, Amnesty International, and numerous other individuals and organisations.^[1]

The facts of the case of Dunn^[2] reflect how little police strategies have changed when dealing with Aboriginal people. Indeed the current New South Wales strategies of ‘harassing’ repeat offenders are probably exacerbating these types of proactive interventions. Dunn, an 18 year old male was charged with offensive language, goods in custody, and resist police. On 29 October 1998 two police officers, saw the defendant ride a bicycle into a petrol station, enter the workshop area, and leave a short time later. The police then drove into the service station.

According to the arresting officer:

I called out “Shannon can you come over here?” The defendant then rode his pushbike to where the police vehicle was parked. I said to the defendant “How are you? Shannon what were you doing in the workshop area?”. He said “I was just seeing a bloke I know”. I said, “Who owns the bike?”. He said, “Wayne. I don’t know his last name”. I said “Wayne who?” He said “He gave me a lend of the bike. It’s not stolen”. I said “Unless you can tell me who he is we will have to take the bike and make inquiries as to the owner”. He said “Your (sic) not taking the bike”. I said, “Settle down. We will take the bike to the station and we can sort the matter out there”. I then walked toward the bike and took hold of the handlebars. The defendant then pulled the bike from my grasp and said “Fuck off your (sic) not taking the bike”. I said “Your (sic) under arrest for offensive language”.

The police then violently struggled with Dunn while arresting and handcuffing him, and the defendant bashed his head on the police vehicle while being placed inside.

The ‘goods in custody’ charge was withdrawn by the prosecution. Heilpern S.M. found that although the language offended against the standards of good taste it was not offensive within the meaning of the law.^[3] Heilpern noted that community standards have changed and that the word ‘fuck’ in the context of this case is not offensive. Heilpern noted previous authority which found that the word “fuck” or its derivatives is prima facie offensive was some eight years old, was distinguishable on its facts, was inconsistent with earlier New South Wales Supreme Court decisions, and was inconsistent with obiter comments in a later appeal to the Court of Criminal Appeal from the New South Wales Police Tribunal. Accordingly the charge was dismissed. It was common ground that the defendant resisted arrest. However Heilpern found that he could not be satisfied beyond reasonable doubt that the officers were in fact acting in the execution of their duty and the resist arrest charge was also dismissed.

The policing issues which surround the Dunn case deserve further comment. The Royal Commission into Aboriginal Deaths in Custody^[4] recommended ‘that the use of offensive language in circumstances of intervention initiated by police should not normally be occasion for arrest or charge’^[5] Further, the Royal Commission recommended that ‘all police services should adopt and apply the principle of arrest being the sanction of last resort in dealing with offenders’^[6] Indeed the New South Wales Police Commissioner’s instruction 96.01 instructs police not to arrest an alleged offender for a minor offence when a summons would be effective. The Dunn case shows how easily these recommendations are ignored in practice.

Recent research published by the Bureau of Crime Statistics and Research show that Dunn is really only the tip of a significantly larger problem.^[7] Recorded crime statistics for offensive language and offensive behaviour have been rapidly increasing in New South Wales, rising by 38% and 31% respectively between 1997/98 and 1998/99.^[8] Of the recorded incidents of offensive language in 1998/99, some 27% (or more than one in four) involved Indigenous people. Thus Aboriginal people account for 15 times as many offensive language offences as would be expected by their population in the community. This figure is really quite staggering - particularly given that the increase in these offences reflects policing enforcement and activity rather than actual changes in offending behaviour. Furthermore the increase in crime statistics for offensive language matters rose more dramatically for Aboriginal people (42.8%) compared to non-Aboriginal people (35.4%) between 1997/98 and 1998/99.

Some 94% of offensive language charges are found proven by the court. There is no significant difference in this regard between Indigenous and non-Indigenous people. In the majority of cases a fine is imposed. However, Indigenous defendants are significantly more likely to be fined and less likely to have the matter dismissed without conviction than non-Indigenous defendants. Finally, many people (48.5%) who appear in court for offensive language do so only in relation to that matter and with no other charges recorded against them. There has also been a significant increase (36%) in the number of Indigenous people appearing in court charged solely with offensive language.

Indeed, anything goes.

Chris Cunneen is Director of the Institute of Criminology at the Sydney University Law School.

^[1] See for example, Anti-Discrimination Board, Study of Street Offences by Aborigines (1982); International Commission of Jurists, Report of the Aboriginals and Law Mission (1990); Amnesty International A Criminal Justice System Weighted Against Aboriginal People (1993).

^[2] Police v Dunn, Unreported, Dubbo Local Court, NSW, Heilpern SM, 27 August 1999 (Dunn).

^[3] Section 4A, Summary Offences Act 1988 (NSW).

^[4] E Johnston, National Report. Overview and Recommendations, Royal Commission into Aboriginal Deaths in Custody (1991).

^[5] Ibid 50, Recommendation 86.

^[6] Ibid 50, Recommendation 87.

^[7] New South Wales Bureau of Crime Statistics and Research, Bureau Brief No 2 (August 1999) 2

^[8] Ibid.