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Local Court 17 March 2009

Police V Paton

[2009] NSWLC 34

Public order & justice offences
CRIMINAL LAW OFFENSIVE LANGUAGE

Citation: Police v Paton [2009] NSWLC 34
Court: Local Court of New South Wales (Moree)
Date: 17 March 2009
Judge(s): Magistrate Richardson

Background

The defendant was charged with using offensive language in or near a public place, contrary to section 4A of the Summary Offences Act 1988, and with possessing a prohibited drug. This post concerns the offensive language charge only. The defendant pleaded not guilty.

The incident occurred on 22 February 2008 in the foyer of Moree Police Station. The defendant's partner had attended the station with two young children to make a complaint about the defendant's violent conduct toward her. The defendant was present in the foyer and, according to police witnesses, was visibly intoxicated with slurred speech.

Police evidence established that the defendant repeatedly called his partner "a fucking idiot" in a raised voice. Two officers separately warned him to stop, but the conduct continued. He was ultimately arrested for offensive language.

  • Whether the foyer of Moree Police Station constituted a public place for the purposes of the offence (this was conceded).
  • Whether the defendant's repeated use of the word "fuck" and its derivatives amounted to "offensive language" within the meaning of section 4A of the Summary Offences Act 1988.
  • Whether the assessment of offensive language requires consideration of the particular circumstances, including the context, the target, and the manner of use, through the lens of a reasonable and robust person.

Decision

Magistrate Richardson identified that the central question was not merely whether the word "fuck" was used, but whether its use in these specific circumstances would be regarded as offensive by a reasonable and robust person. The Magistrate noted that the case law on the word "fuck" and its derivatives is mixed, and that there is no absolute rule that its use is always offensive.

The Magistrate considered the decision in Police v Butler [2003] NSWLC 2, on which the defence relied heavily. In that case, Magistrate Heilpern had found that the use of the word "fuck" directed at police and neighbours in a community setting was not offensive, partly because police hear such language daily in the course of their duties. The Magistrate in this case acknowledged that reasoning but distinguished the present facts.

The critical distinguishing features were the context and purpose of the language. Here, the defendant's partner was attempting to make a complaint about violence she had suffered. The defendant was using the repeated, disparaging phrase to intimidate and deter her from making that complaint. The language was persistent, continued after two police warnings, and was capable of causing fear and distress in an already threatening and intimidatory situation.

Magistrate Richardson concluded that a reasonable person would find the persistent use of those words in those circumstances to be offensive. The prosecution proved the charge beyond a reasonable doubt.

Orders Made

• The prosecution proved its case beyond a reasonable doubt

Key Takeaways

  • Whether language is "offensive" under section 4A of the Summary Offences Act 1988 is assessed by reference to what a reasonable and robust person would think, having regard to all the circumstances of the particular case.
  • No binding rule exists that the word "fuck" or its derivatives is always offensive, or never offensive. The outcome turns on the specific context in which the words are used.
  • A relevant distinction exists between the general use of coarse language in a community environment (as in Butler) and language used persistently and in an intimidatory manner to deter a domestic violence complainant from reporting to police.
  • The Moree Local Court treated the repeated nature of the conduct, the prior police warnings, the intoxicated state of the defendant, the presence of children, and the threatening dynamic of the situation as cumulatively relevant to the reasonable person assessment.
  • Sufficient evidence existed to establish the offensive language charge beyond a reasonable doubt, even where there was no direct evidence that the complainant herself expressed offence.

Legislation and Cases Referenced

Legislation
- Summary Offences Act 1988 (NSW), s 4A

Cases
- Police v Butler [2003] NSWLC 2
- Anderson (unreported, NSWCCA, CA40469/95, Meagher JA)
- Ball v McIntyre (1966) 9 FLR 237
- Burns v Seagrave [2000] NSWSC 77
- Connors v Craigie (1994) 76 A Crim R 502
- Evans v Frances (unreported, NSWSC, Lusher JA, 10 August 1990)
- McNamara v Freeburn (unreported, NSWSC, Yeldham J, 5 August 1988)
- McCormack v Langham (unreported, NSWSC, Studdert J, 5 September 1991)
- Saunders v Herold (1991) 105 FLR 1
- Spence v Loguch (unreported, NSWSC, Sully J, 12 November 1991)
- Stutsel v Reid (unreported, NSWSC, Loveday J, 5 October 1990)
- Thommery v Humphries (unreported, NSWSC, Foster J, 19 June 1987)