The Summary Offence Act 1998 (NSW) provides penalties for
behaving "in an offensive manner" in or near or within view or
hearing from a public place or school and using Offensive
Language in or near, or within hearing from a public place or
school.
The maximum penalty for Offensive Conduct is a $660.00 fine
or imprisonment for 3 months and for Offensive Language a
$660.00 fine.
OFFENSIVE CONDUCT
What is offensive is usually considered from the point of
view of the reasonable person.
The use of Offensive Language itself, without more does not
amount to behaving in an Offensive Manner.
It can be a defence to a charge of Offensive Behaviour if
the person charged satisfies the court on the balance of
probabilities that they had a reasonable excuse for the
conduct.
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OFFENSIVE LANGUAGE
For Offensive Language the same definitions apply in
relation to the terms "public place" and "school".
It is also a defence to a charge of Offensive Language if a
person can satisfy the court on the balance of probabilities
that they had a reasonable excuse for the language
used.
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OTHER SUMMARY OFFENCES
There are a number of other offences in the Summary
Offences Act 1998, which relate to specific conduct. The
following are some examples:
- Obscene exposure.
- Obstructing traffic.
- Damaging Shrines, monuments or statues.
- Climbing on or jumping over building or other
structures.
- Damaging and defacing property by means of spray paint.
- Act of violent disorder.
- Custody of an offensive implement.
- Custody of a knife in a public place or school.
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CHARGE OR SUMMONS
A person may be brought before the court for Offensive
Conduct/Language by either charge of summons. If you are
spoken to by the Police for one of these offences you are most
likely to be charged as the offence generally relates to
behaviour which the Police themselves see first hand, such as
conduct or language used when a person is intoxicated or is
involved an altercation with other persons, which amounts to a
breach of the peace.
However, because the matter is not viewed as seriously as
many other criminal offences (the offence is contained in the
Summary Offences Act as opposed to the Crimes Act where most
serious criminal offences are contained), the Police may be
prepared to bring a person before the court by way of Field
Court Attendance Notice (a Notice like a Traffic Infringement
Notice, which a persons sign acknowledging that they will
attend court) or, by way of Summons. A Summons contains the
same allegation as contained in a Charge Sheet, but does
generally not contain a summary of the alleged conduct as is
ordinarily contained in Facts Sheet which given to a person
upon release from the Police Station after the charging
process takes place, if Bail is granted.
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RECORDS OF INTERVIEW
The Police will not always seek to interview you when
considering charging you with this offence, as the Police may
claim to have viewed the alleged conduct themselves. If you
are asked to partake in a record of interview, however, you
have the right to remain silent and you should seek legal
advice.
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COURT PROCEDURE
Where the matter comes before the court by way of Charge,
Field Court Attendance Notice or Summons, it will be listed
for what is called "mention" date where you will ordinarily be
asked whether you plead guilty of not guilty to the
allegation. If you have been brought before the court by Field
Court Attendance Notice or Summons, then you will receive a
copy of the Breach Report, which are the summary of facts
relating to the incident at court. If you do not have a legal
representative the first time the matter comes before the
court, you can generally seek an adjournment for approximately
2 weeks to get legal advice.
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IF YOU PLEAD NOT GUILTY
If you plead not guilty to the allegation the matter will
be listed for hearing. You will be required to indicate how
many witnesses if any, that you intend to call at the hearing,
so the court will know the correct amount of time to allocate
to the matter. The Prosecution witnesses will ordinarily be
the Police who witnessed any of the alleged conduct or, who
took part in procedural matters such as an arrest, or the
issuing of a Field Court Attendance Notice.
If you choose to plead not guilty, you should seek legal
advice as the hearing involves the Prosecution, through
leading evidence, attempting to prove the case against you
beyond reasonable doubt. It is up to the Magistrate to make
the determination if the Prosecution are successful in proving
the case. You may or may not wish to give evidence yourself,
or call your own witnesses.
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IF YOU PLEAD GUILTY
If you plead guilty (or if you are found guilty at the end
of a defended hearing), the Magistrate then need only consider
the appropriate penalty to impose. You should obtain character
references for use in tendering to the Magistrate and those
references should preferably be type written and contain a
statement by the referee that the referee is aware of the
matter which brings you before the court. The reference should
then make some general comments about the capacity in which
the person knows you and their comments on your character.
If you plead guilty at any stage during the proceedings,
the Magistrate is required, by law, to take that plea of
guilty into account when imposing a penalty. The benefit by
way of leniency is usually extended by a Magistrate for a plea
of guilty. On a plea of guilty, the Police Prosecutor will
tender the Facts or the Breach Report and a copy of your
Criminal History, which is obtained by the Police conducting a
finger print check (if relevant) and a name check.
Generally, the Magistrate is entitled to take into account
matters which appear on your Criminal History, when imposing a
penalty.
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EXAMPLES OF OFFENSIVE CONDUCT OR OFFENSIVE
LANGUAGE
The Summary Offensive Act provides that a person can have a
defence to a charge of Offensive Language or Offensive Conduct
if it can be shown that they acted with "reasonable excuse".
The considerations for whether there is a "reasonable excuse"
are related to the circumstances immediately before the
Offensive Conduct occurred or the Offensive Language was
used.
An example of where there was no reasonable excuse was
where a person used derogatory language towards 2 Police
Officers. The person who used the words, which included
swearing, was Aboriginal and the person was intoxicated and
had, in the hours prior to the use of the language, been
watching a video about Aboriginal Deaths in Custody. The
Police Officers arrested the person and charged him with
Offensive Language after warning him.
When a Magistrate first dealt with the matter there were a
number of factors taken into account, which the Magistrate
said amounted to the person having a reasonable excuse for the
use of the language, such as that the language was not
directed specifically to the 2 police officers who were
present at the time and that the person, being of Aboriginal
background had previously watched the video concerning
Aboriginal Deaths in Custody.
When the Magistrate found that there was a reasonable
excuse (after hearing the case for a second time) there was an
appeal to the Supreme Court with the Judge in the Supreme
Court saying that the events and circumstances immediately
before the language was used did not amount to there being a
reasonable excuse.
