Can you believe that with all the language we hear daily on television, in movies, newspapers and on radio, those same words can be considered offensive? It all depends on the circumstances in which they are used.
If you have been charged with offensive language and conduct for telling someone to “fuck off”, or worse, read on – you might not have committed an offence at all!
Time and time again, people are prosecuted for using the word “fuck” in one of its many derivatives – or other words, such as the “c” word.
When morality collides with legality – normally only when a decision is handed down in the Local Court dismissing such a prosecution – the real name calling commences.
Offensive language case study
Our client, a young man, left a hotel at the Rocks shortly after midnight on a Monday. He was intoxicated and stood near a police bus with tinted windows parked outside a police station, extended his middle finger and said “you’re fucked” in a voice loud enough for the ten or so officers on the bus to feel offended – or perhaps it was their belief that other members of the public were offended. The matter was dismissed by the Magistrate with costs.
The Magistrate was wrongly blamed by those ignorant of the law. Shock jocks called for Her Honour to be sacked. The police commissioner publicly denounced the decision. The Director of Public Prosecutions office wrote to our firm indicating that an appeal was being considered
The media loved it – aiding and abetting a change of standards over time by allowing the frequent use of such language, yet in some instances critical of the decision. A double standard or simply free speech?
There was no appeal. The law has not changed. The law correctly applied by the learned Magistrate still applies today. Would the other pub-goers have been offended? Hardly.
As far back as 1966, propositions were laid down in the case of Ball v McIntire (1966) 9FLR 237 as follows:
“Behaviour to be offensive…must…be such as is calculated to wound the feeling, arouse anger of resentment or disgust or outrage in the mind of the reasonable person.” “Conduct which offends against the standards of good taste or good manners which is a breach of the rules of courtesy or runs contrary to accepted social rules may be ill advised, hurtful, not proper conduct.”…”I believe that a so-called reasonable man is reasonably tolerant and understanding and reasonably contemporary in his reactions.”
Let’s return to the question of whether the police were offended in the above case study concerning our client in the Rocks. In the decision of Anderson, an unreported decision of the court of Criminal Appeal in 1995, the Court was examining a complaint of a police officer repeatedly using the word “fuck” directed at another police officer within the hearing of the public foyer. His Honour Meagher JA noted the following:
“Undoubtedly the behaviour of the opponent (officer) was unchivalrous and unbecoming of the office he occupies. This is, however a long way from the language he allegedly used being offensive in any legal sense…there was no evidence that persons in the public area were ever offended, nor that the public area was frequented by gentle old ladies or convent school girls. Bearing in mind that we are living in a post-Chatterly, post-Wolfenden age, taking into account all circumstances, and judging the matter from the point of view of reasonable contemporary standards, I cannot believe Sergeant Anderson’s language was legally “offensive”.
In fact, it was held in Anderson that the word “fuck” was part of the police culture.
For a well written and well researched discussion and history of the use of such language and its treatment by the law, one need go no further than the decision of respected Magistrate David Heilpern in the case of Police v Butler  NSWLC 2.
Police abuse of power
Offensive language prosecution can be a tool improperly used by police to silence the impolite or disrespectful. Those who are socio-economically disadvantaged are easy targets. It used to be said in legal circles that the offence of offensive language completed the trifecta when added to charges of assaulting police and resisting arrest.
If someone has been arrested for offensive language or conduct, in many circumstances it is a blatant abuse of power by the police. Too many people are unaware of their rights and have been prosecuted and possibly convicted for using offensive language when a valid defence was likely available to them.
Nyman Gibson Miralis provides expert advice and representation in all areas of criminal law. We are experienced in defending people charged with offensive language and conduct.
Contact us if you require assistance.