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District Court 29 August 2017

Danny Lim v Regina

[2017] NSWDC 231

Public order & justice offences
CRIMINAL LAW SUMMARY OFFENCE IMPUGNED WORD APPEAL APPEAL AGAINST CONVICTION NOT GUILTY LEGISLATIVE PROVISIONS INTERPRETATION

Citation: Danny Lim v Regina [2017] NSWDC 231
Court: District Court of New South Wales
Date: 29 August 2017
Judge: Judge AC Scotting

Background

The appellant was a member of the public who, in August 2015, stood near a busy Sydney intersection wearing a homemade sandwich board bearing political commentary directed at the then Prime Minister. The front of the board included text that, by inverting a rounded capital letter "A" in the word "can't", could be read as containing a well-known obscenity. The back of the board contained similar text, along with criticism of government policy on education, health, jobs, and the environment.

The appellant was charged with offensive conduct in a public place contrary to section 4(1) of the Summary Offences Act 1988. He pleaded not guilty before Magistrate Stapleton at Waverley Local Court in February 2016, where he was convicted. He then appealed to the District Court.

The appeal raised four distinct arguments: that the conduct was not offensive; that it amounted only to the use of offensive language (which is separately and more narrowly regulated); that the political nature of the communication provided a reasonable excuse; and, as a constitutional argument, that section 4 was invalid for burdening the implied freedom of political communication. Section 78B notices were issued on the constitutional point, and the Attorney-General of New South Wales intervened.

  • Whether the appellant's conduct, in wearing the sandwich board, met the legal threshold for "offensive conduct" under section 4(1) of the Summary Offences Act 1988
  • Whether section 4(2), which provides that a person does not engage in offensive conduct "merely by using offensive language", applied to exempt the appellant's written display from the conduct offence
  • Whether the political nature of the communication constituted a "reasonable excuse" under section 4(3)
  • Whether section 4 was invalid as an unjustified burden on the implied constitutional freedom of political communication

Decision

Was the conduct offensive?

Judge Scotting applied the established standard: offensive conduct must be likely to provoke reactions such as anger, disgust, resentment, or outrage in a hypothetical reasonable person who is reasonably tolerant, understanding, and contemporary. The word used was not unequivocally present on the sign. The text was a play on words that permitted an innocent reading, and the impugned meaning was not the only logical conclusion a viewer would draw. Taking into account the political context and the nature of the display, the court was not satisfied that a reasonable person of ordinary sensibilities would be sufficiently provoked to meet the required threshold. The conduct did not reach the high end of the range necessary to constitute the offence.

Did section 4(2) apply?

The appellant argued that, because the conduct involved written language, it fell within the carve-out in section 4(2), which provides that a person does not engage in offensive conduct "merely by using offensive language." The court rejected this argument. Construing the provision in context, including the requirement in the separate offensive language offence under section 4A that language be used "within hearing" of a public place, the court concluded that "using" offensive language in section 4(2) refers to speaking or uttering language, not to displaying it in writing. A written display is therefore capable of amounting to offensive conduct and is not excluded by section 4(2).

Did the appellant have a reasonable excuse?

The court found the conduct was not offensive, so the reasonable excuse issue did not strictly arise. However, Judge Scotting addressed it in the alternative. The Magistrate had accepted that the appellant wore the board to make a political comment and did not intend to be offensive. The court found it was open to balance the freedom of political communication against the marginally offensive nature of the conduct. On the balance of probabilities, the appellant demonstrated a reasonable excuse: in expressing a political comment, he published a play on words that was only capable of being construed as offensive.

Constitutional validity of section 4

Because the court resolved the appeal in the appellant's favour on the first and third grounds, it declined to rule on the constitutional question, consistent with the principle in ICM v Commonwealth that courts should not determine constitutional issues unnecessarily.

Orders Made

  • Appeal against conviction allowed
  • Conviction and penalty imposed by the Magistrate set aside

Key Takeaways

  • A conviction for offensive conduct under section 4(1) of the Summary Offences Act 1988 requires conduct at the higher end of the range of offensive behaviour, capable of provoking significant reactions such as anger, disgust, or outrage in a hypothetical, reasonably tolerant and contemporary person.
  • The District Court held that the carve-out in section 4(2), which provides that a person does not engage in offensive conduct "merely by using offensive language," applies only to spoken or uttered language, not to written displays; written material can still constitute offensive conduct.
  • Where constructional choices are available, a court should prefer a reading of section 4 that goes no further than necessary to achieve the provision's protective purpose and that limits the burden on political communication, consistent with Monis v The Queen and Coleman v Power.
  • A defendant's political purpose in engaging in conduct near a public place is capable, in an appropriate case, of constituting a "reasonable excuse" under section 4(3), assessed by balancing the political expression against the degree of offensiveness of the conduct.
  • Courts will decline to resolve constitutional questions about legislative validity when the appeal can be determined on other grounds, following the approach confirmed in ICM v Commonwealth.

Legislation and Cases Referenced

Legislation
- Summary Offences Act 1988 (NSW), ss 4(1), 4(2), 4A
- Crimes (Appeal and Review) Act 2001 (NSW), s 18(1)
- Interpretation Act 1987 (NSW), s 31(1)
- Justices Act 1987 (NSW), ss 72B, 74

Cases
- ICM v Commonwealth (2009) 240 CLR 140
- Gianoutsas v Glykis [2006] NSWCCA 137
- Charara v R [2006] NSWCCA 244
- Fox v Percy (2003) 214 CLR 118
- Dyason v Butterworth [2015] NSWCA 52
- Bandana v Director of Public Prosecutions [2016] NSWCA 140
- Englebrecht v Director of Public Prosecutions [2016] NSWCA 290
- State of New South Wales v Beck [2013] NSWCA 437
- Beck v State of New South Wales [2012] NSWSC 1483
- Connolly v Willis [1984] 1 NSWLR 373
- Ball v McIntyre (1966) 9 FLR 237
- Worcester v Smith [1951] VLR 316
- Monis v The Queen (2013) 249 CLR 92
- Dalton v Bartlett (1972) 3 SASR 549
- Dowse v New South Wales [2012] NSWCA 337
- Coleman v Power (2004) 220 CLR 1
- Taikato v The Queen (1996) 186 CLR 454
- SAS Trustee Corporation v Woollard [2014] NSWCA 75