Summary Offences - Lecture notes 3 PDF

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L3 - Summary Offences

Summary Offences • Less serious • Determined finally in the Local Court: s 7 of the Criminal Procedure Act 1986 (NSW) • Tried before a Magistrate, a trier of fact and law • To be proved by the prosecution, beyond reasonable doubt • Generally created by Parliament and do not exist at common law

Public Order Offences • Not all public order offences are summary offences (eg riot, affray) • Regulation of behavior deemed as anti-social or undesirable • Criminalises behaviour acceptable in private • Public order offences often tied to moral panics • Public order offences tied closely with police powers • Police granted wide-ranging discretion in relation to public order

Prohibitive Behaviour Offences • Many target the disenfranchised or youth • DJH – Not to be noticeably impaired by alcohol or illicit/deleterious substances at any place in Western Australia to which the public has access • TRM – shall not video record Police employees; contact or speak with Police unless to report a genuine incident or emergency; wear; carry or be in possession of any mask or disguise in a public place (including in a vehicle); make or display signage in a public place. • GCM - Not to own, utilise or subscribe to any device (including, but not limited to mobile phone, smart phone, tablet or computer) that can send or receive Short Message Service (SMS), text messages, iMessages, Multimedia Message Services (MMS) or any other message service (including, but not limited to Facebook Message, Viber, WhatsApp) 1

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Offensive Language • No. Of Offensive Crimes correlates to places selling alcohol • Offensive is defined at common law as:“such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person.” (Worcester v Smith [1951] VLR 316 at 318) • Offensive language and conduct crimes are concerned with hypothetical not actual offence ( Stutsel v Reid (1990) 20 NSWLR 661) —> doesn’t require a victim • Purpose: “Members of the public who use or may use public places should know that they are protected from offensive language used in the public place or within hearing distance of the public place. In the absence of such protection they might well avoid the public place.”(Jolly v R (2009) 9 DCLR (NSW) 225 at 228 per Cogswell DCJ) • Offensiveness is judged from the perspective of the hypothetical reasonable person, according to contemporary community standards. • The decision maker must have regard to context. (i.e. political, not used to offend, but to make a statement) • Location element – language conduct occurs in or near, or within view/ hearing from, a public place. • Police tend to target the swear words (mainly fuck and/ or cunt). • Shifting attitudes mean that swear words often change e.g. ‘the word fuck is extremely common place now and has lost much of its punch’ Police v Butler [2003[ NSWLC 2 (14 June 2002)

Mens Rea • Common law presumption that all criminal offences require proof of mens rea • Debate about mens rea element for offensive language/conduct crimes: Divergent approaches taken by NT and SA Supreme Courts: see Police v Pfeifer (1997) 68 SASR 285; Pregelj v Manison (1987) 51 NTR

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Sunday, 2 May y • See Luke McNamara and Julia Quilter, ‘Time to Define “The Cornerstone of Public Order Legislation”: The Elements of Offensive Conduct and Language under the Summary Offences Act 1988 (NSW)’ (2013) 36(2) University of New South Wales Law Journal 534

Language as a Tool of Resistance • Particularly in America, used to ignite social revolution • NWA, ‘Fuck tha Police’ - This song was deemed a ‘threat to public order’ after its release by the US govt - Where is the line when it comes to music or entertainment value of language? • Sometimes offensive terms are reclaimed (e.g. n) -> are they still offensive?

Common theories about swearing • Swear words are inherently harmful, sexual or dirty • Swearing is a sign of an “impoverished vocabulary” • People who swear are “lazy” • Swearing is “common” or “not classy” • One should not swear in front of women or children • Swearing is not ‘ladylike’ • Criminal punishment prevents the use of four-letter words • Criminalisation of offensive language has not deterred its use

Indigenous Australians Criminalising swearing has been used as a tool of social control for minorities • Indigenous Australians are much more likely than non-Indigenous Australians to be charged with using offensive language. • Indigenous persons are also subjected to a greater degree of intervention in their everyday activities, including the ‘most intimate parts of their lives’ (NSW Bureau of Crime Statistics and Research, 1999).

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Sunday, 2 May y • Many Indigenous Australians use swearwords differently and more frequently than non-Indigenous Australians (Taylor, 1995, p. 236).

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