Criminal Law and Proceedures Major Assessment Offensive language 2019 Example Credit Answer with Lecturer Comments PDF

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Criminal Law and Procedures Major Assignment

INTRODUCTION Criminal laws in Australia for outlawing offensive conduct and language are not often connected to bringing about harm to others or property, as such they can and have been implemented in a wide range of sometimes quite subjective instances. 1 Offensive conduct and language offences in South Australia are criminalized under the Summary Offences Act 1953 (SA). The Criminal Procedures Act 1921 (SA) s5 defines what a summary offence is.2

Some examples of summary offences are, driving under the influence of alcohol and/or drugs, minor damage to property and as what we will discuss in this paper, offensive language which is covered under the Summary Offences Act 1953 (SA) s 7. 3

Section 7 states that disorderly or offensive conduct or language is defined as any person that behaves in a manner in a public place or police station that disturbs public peace .4 For example, anyone that fights with another person or uses offensive language in an abusive or threatening way can be charged with a criminal offense. 5

A public place is defined in the Act as any place in which the public has free access too, are admitted by way of payment, or any roads or streets that include thoroughfares even if on private property that the public are allowed to use. 6

The penalties that can be

imposed for these types of offenses are a maximum fine of $1200 or imprisonment for a maximum of 3 months.7

DISCUSSION/ANALYSIS 1 Simon Bronitt, Bernadette McSherry, Offensive conduct and language crimes (2000) FindLaw Australia .

2 Legal Services Commission of South Australia, Summary Offences . 3 Ibid. 4 Summary Offences Act 1953 (SA) s 7. 5 Legal Services Commission of South Australia, Disorderly behaviour offences . 6 Summary Offences Act 1953 (SA) s 7. 7 Ibid S7(1) and 7(2).

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In this paper I will address if the “use offensive language” should be removed as a criminal offence in the Summary Offences Act 1953 (SA). To analyse this, there will be a need to address not only South Australian legislation, cases and opinions but also other states of which some have respective laws that are different and provide insight into better management of s7 of the Summary Offenses Act (SA).

As we have discussed how s7 of the Summary Offenses Act (SA) has been defined, I will begin by looking at the wide ranging definitions of what can be seen as “offensive language” in Australian society today, and the context of how the language is used and to whom. It is also important that we address the subjective versus objective measures not only used by the police when charging persons under the Act but also how the courts use subjective and objective methods to determine the verdict when a person is charged with such an offense. Measuring offensive language can be done in many ways, but most importantly, I believe it should be measured in both a reasonable person and a social and cultural context of how language is used in today’s society. Attorney-general George Brandis stated in an article published by “The Conversation” that bans on free speech “should be framed as narrowly and cautiously as possible”. 8 However, the crimes of offensive language are generally framed too broadly. 9

The

Worcester v Smith case which is the authoritative case, describes the fault and intent element of offensive conduct or language as:

“…such as is calculated to wound the

feelings, arouse anger or resentment or disgust our outrage in the mind of a reasonable person (at 318).”10 Even though subjectivism is weak in public offences, several courts have stressed the significance of mMens rea

11

especially in cases that imprisonment can

be put down as a penalty. 12

8 Elyse Methven, Section 18C and unravelling the government’s ‘freedom agenda’ (April 1, 2014), the conversation . 9 Ibid. 10 Worcester v Smith [1951] VLR 316. 11 Simon Bronitt, Bernadette McSherry, Offensive conduct and language crimes (2000) FindLaw Australia . 12 See, eg, Jeffs v Graham (1987) 8 NSWLR 292.

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Cases that would provide strong evidence towards either removing the “use offensive language” as a criminal offence or making it a separate offence all together is in the case of Police v Pfeifer and Police v Atherton. Intentional conduct is one thing, intentional conduct that causes offen cse is another. Subjectivism following the case of the Police v Pfeifer is definitely now in doubt following the outcome. The accused was convicted under s7 of the Summary Offencses Act 1953 (SA) when wearing a t-shirt that showed the words “Too Drunk to Fuck”. However, after an appeal that was won in the Supreme Court of South Australia, it was stated that along with recent reviews of authorities, 13 the prosecution did not have to prove intention or knowledge.

But that they favoured a subjective fault requirement, 14 rather applying

principles from He Kaw Teh v The Queen (1985) 157 CLR 523 which rebutted having to apply that intent and/or knowledge as an essential element of s7. 15 Another case Police v Atherton clearly points out why “offensive language” should not be a criminal office. At a confrontation at the Adelaide Oval during a cricket match, the accused tried to protect a friend from being arrested and as such took up a “fighting stance” and said “Fuck you cunts. Fucking let him go.” 16 He was then charged and acquitted in the Adelaide Magistrates court from summary offences under section 6 and 7. The Magistrate delivered her judgement “... the defendant was protesting at what he saw as being inappropriate behaviour of the police …. I accept he said those words as part of a protest to the police officers. Whilst I accept the language may be such that in perhaps other circumstances it would be considered of itself to be objectionable, in the particular circumstances in which it occurred I do not consider it was.17 When the laws on offensive language were introduced in Victorian times they meant something different than what today’s community standards hold and most “reasonable people” would take them to be. It is unfortunate that it is often not the rude/crude “four

13 See, eg, Densley v Mertin [1943] SASR 144; Normandale v Brassey {1970] SASR 177. 14 Police v Pfeifer (1997) 68 SASR 285. 15 Ibid. 16 Police v Atherton [2010] SASC 87. 17 Ibid 11.

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letter words”18 used today that are seen to be so offensive, but it is the ones surrounding sexuality, gender, race, ethnicity or religion. 19 Many articles20 specifically point out an excessive amount crimes targeted at vulnerable groups such as, but not limiting Indigenous Australians. One case is Del Vecchio v Couchy whereby the accused was arrested when intoxicated, disoriented and homeless. When approached by police walking down the street, they asked for her name and address. She ignored the demand and responded with offensive language calling the police officer a “fucking cunt" or similar.21

She was arrested and charged under s7 of the Summary Offenses Act and was sentenced to imprisonment for three weeks. She appealed this sentence but both the Queensland Court of Appeal and the High Court rejected the appeal. They did this on the grounds that to take her Aboriginality and poverty into account would be an example of reverse discrimination.22 The assessment of language at the time would have been regarded as offensive and insulting to the reasonable person. 23 Courts have tried to enforce limits on police attempts at trying to quash what they consider offensive conduct.

Especially when it should be assessed in that of what a

“reasonable person” would be offended by. An unreported case in the NSW Waverly local court, where a student had been charged with using offensive language, calling the police officer a ‘prick’ was cleared.

Magistrate Williams said he was not satisfied that a

reasonable person would find the word offensive in a typical conversation. 24

18 Elyse Methven, Section 18C and unravelling the government’s ‘freedom agenda’ (April 1, 2014), the conversation...