Ball v McIntyre

REPRESENTATION: Senior Sergeant Willett for the Prosecution Kate Biffin, Aboriginal Legal Service, for the Defendant

1 Mr Damian Paton has been charged with using offensive language in or near a public place and possessing a prohibited drug. He pleaded not guilty to both charges. Paton was charged with using offensive language in the foyer of Moree Police Station and this decision relates to that charge. The charge was laid under section 4A of the Summary Offences Act 1988 which provides:

"A person must not use offensive language in or near, or within hearing from, a public place or a school.

Maximum penalty: 6 penalty units." 2 The defendant on a voir dire objected to the admission of evidence relating to the conduct which is the subject of the charges. At the conclusion of the voir dire the Court held that the evidence was admissible and gave its reasons for that decision. 3 The evidence given by the prosecution on the voir dire became evidence in the case. In addition, evidence was given in Court by a further police officer in relation to the events. 4 The prosecution case comprised the evidence of Senior Constable Adam Carver, Senior Constable Robert Wiley and Senior Constable Robert Edwards. In addition, some parts of a record of interview by the police of Damian Paton on 22 February 2008 were admitted into evidence. Other parts of the record of interview were inadmissible. 5 The defendant elected not to give evidence in the proceedings and, accordingly, the case will be determined on the basis of the prosecution's evidence and the submissions that have been made. The submissions focussed on whether the use of the word "fuck" and its derivatives was offensive. The issue for the Court to determine is one of law. 6 On 22 February 2008 Colleen Knox went to Moree Police Station to make a complaint about Damian Paton. The thrust of the complaint was along the lines that he gets "silly" when he has been drinking. The Court understands that Aboriginal people use the word "silly" in this context to mean violent. In other words, Colleen Knox was going to the police station to make a complaint about violent conduct by Damian Paton towards her. She had with her at the time two young children. The ages of the children are not known to this Court. There is evidence before the Court that Paton had been drinking. The defendant was in the foyer of the police station with Colleen Knox and the two children. It is said, on the police case, that Paton was not only intoxicated, his speech was slurred, his dress untidy and police officer Edwards smelt alcohol on Paton's breath. The police say that Paton became verbally abusive to his partner, Knox, and said "Don't do this, you fucking idiot". This verbal abuse continued and Paton said these words, or similar words, on a number of occasions. The words that he used invariably referred to Colleen Knox being a "fucking idiot". Paton was warned by two police officers about his use of this language. He was warned by police officer Edwards and by police officer Carter and he was told in clear terms to drop the language but, nevertheless, the verbal abuse continued. 7 Senior Constable Carter says:

"I saw Constable Edwards attend to the counter. I saw Constable Edwards speak to the accused and his partner, Colleen Knox. Shortly after Constable Edwards started to speak to the accused and Colleen Knox I heard the accused say in a raised voice 'Don't do this, you fucking idiot'. Constable Edwards continued to speak to both the accused and Colleen Knox. During this time I heard the accused yell out 'You're a fucking idiot'. After I heard the accused say this a number of times I heard Constable Edwards say to the accused 'Drop your language'. After I heard Constable Edwards say this to the accused I heard the accused say a few more times to his partner Colleen Knox 'You're a fucking idiot'. I said to the accused 'You have been warned about your language, so drop it'. Shortly after I said this to the accused I heard the accused say again 'You're a fucking idiot' inside the station foyer. I entered the foyer area of the station and I said to the accused 'You've been warned about your language, you're under arrest for offensive language'."

"At about 4.45pm that day Damian Paton, Colleen Knox and their two younger children attended the foyer at Moree police station. I observed Damian Paton. He appeared to be intoxicated as his speech was slurred. His dress was untidy and I could smell alcohol on his breath. Colleen Knox said to me 'I came here because Damian gets silly when he's been drinking'. Damian Paton became verbally abusive towards Colleen Knox. He said to her 'Don't do this, you fucking idiot'. Damian Paton continued to be verbally abusive to Colleen Knox. He said to Colleen Knox a number of times 'You're a fucking idiot'. I said to Damian Paton 'Drop your language'. Damian Paton continued to be verbally abusive towards Colleen Knox and repeatedly said to her 'You're a fucking idiot'. The two younger children were in the foyer with both of their parents." 8 There is no doubt, on the evidence, that these words were used and it is not submitted by the defendant that they were not. The question that has been put to the Court is whether the use of the word "fuck" or any derivatives of the word "fuck" in the circumstances pertaining on that day was offensive. The defendant's solicitor relies on a decision of Police v Butler [2003] NSWLC 2 by His Honour Magistrate Heilpern. In that case the Magistrate engages in a comprehensive analysis of the case law as it relates to the use of the word "fuck" or its derivatives. In the case before His Honour, there were a number of police out around in front of 36 Thomas Street in Moruya. A number of young people came out of that place and began to yell and shout at the occupants of the house next door. One of these young persons was the son of the defendant. The defendant came out on the porch and shouted at the police and eventually, also, at the neighbours. Despite the police continual efforts to quieten the defendant and warnings to her she continued to shout. Eventually the police calmed the situation and were able to leave. They later summonsed the defendant for offensive language. The words directed at the police and at neighbours complained of were as follows:

"What the fuck are youse doing here? My fucking son had to get me out of bed. I can't believe youse are here. What the fuck are youse doing here?"

"I fucking know what this is about. It's about that fucking gas bottle. They can get fucked. I'm not paying them fucking nothing. They can get me fucking bottle back".

"We never had any fucking trouble until you fucking moved here. Youse have fucking caused this trouble and called the fucking police on me."

These words were directed to the neighbours. 9 These words were said about 10 metres from a public place and the words could be heard. His Honour decided that the words used were not offensive. 10 In this case, it was conceded that the foyer of the Moree Police Station is a "public place". There is no doubt that Mr Paton used the word "fucking". The issue is whether in the circumstances the use by him of the words constituted offensive language. There are numerous authorities referred to in Police v Butler. Magistrate Heilpern's view was the authorities on the question of whether the use of the word "fuck" or any of its derivatives is offensive language were mixed. He formed the view that there was no binding authority upon him to the effect that the use of the word "fuck" or its derivatives is offensive. He made reference to a number of cases, some New South Wales cases and some cases from other jurisdictions. He also made reference to the fact that he hears the word "fuck" all the time in the course of his work. He and his children hear it on the television. It is heard in films. It is a word used by politicians from time to time and it is a word commonly used in his opinion. And I would go further and say the words are common parlance in indigenous communities. Case Authorities 11 Before looking at the cases, the Court notes that the Macquarie Concise Dictionary 3rd Edition defines "offensive" as "causing offence or displeasure, irritating, highly annoying, disagreeable to the sense, repugnant to the moral sense, good taste, or the like, insulting". 12 In Spence v Loguch (unreported, NSWSC, 12 November 1991), Sully J considered many case authorities on offensive behaviour. In that case, the appellant was passing a hotel in a police car when he saw the respondent urinating in the beer garden of that hotel. The Magistrate dismissed a charge of behaving in an offensive manner and the Supreme Court did not interfere with that decision. In the course of his judgment, Sully J said about the statutory offence of behaving in an offensive manner the following:

Put simply, those antecedent decisions had established, with reference in particular to the statutory offence of behaving in an offensive manner, the following propositions: 1. That the offence contemplated behaviour "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; Inglis v Fish [1961] VR 607 and cases there cited at 609(5)-612(30); Ellis v Fingleton [1972] 3 SASR 437; Ball v McIntyre [1966] 9 FLR 237. 2. That it is not necessary to prove in a particular case that any such reasonable person was in fact present at the time the offensive behaviour occurred, provided only that it was open to be found reasonably that some such reasonable person might be expected to come upon the place where the behaviour in question was occurring and thereupon to see it. 3. That "... whether behaviour of any kind can be said to be 'offensive' within the meaning of this section must depend to some extent upon where the behaviour took place, and the circumstances in which it took place. Conduct which might undoubtedly be described as offensive if it took place on a public street or footpath could hardly be said to be 'offensive' if it took place in the privacy of the front room of a house which abutted on to that street or footpath if the blinds were drawn so that it was not possible to see what was going on". Inglis v Fish (above). 13 In Connors v Craigie (1994) 76 A Crim R 502), the respondent had been charged with using offensive language. The respondent approached two police officers who were speaking to a man and said "fuck off all you white cunts. We've had enough of you. We'd like to see you all dead". The respondent said similar words on three occasions. He was intoxicated. He was warned by the police about his language. In the first appeal on the question of whether the words were offensive, McInerney J said:

"The test to be applied on whether the language was 'offensive' is an objective one as to whether the language complained of was 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; Ball v McIntyre (1966) 9 FLR 237 and Spence v Loquch (unreported, Sully J, 12 November 1991)). It has been said that a so-called reasonable person is reasonably tolerant and understanding and reasonably contemporary in his reactions ( Ball v McIntyre and Spence v Loquch ) ..." 14 Magistrate Heilpern also referred to an unreported decision of the Police Tribunal, in which the word "fuck" was used by a police officer (Anderson, unreported NSWCCA CA40469/95). In that decision Meagher JA came to the conclusion that the use of the word "fuck" in those circumstances was probably not offensive. He said:

"Undoubtedly the behaviour of the opponent was unchivalrous and unbecoming of the office he occupies. This is however a long way from the language he allegedly used being offensive in the legal sense. I should say the defendant's a police officer. There was no evidence that persons in the public were ever offended, nor that the public area was frequented by, and I am quoting, "gentle old ladies or convent school girls." Bearing in mind that we are living in a post Chatterley, post Wolfeston age taking into account all the circumstances and judging the matter from the point of view of reasonably contemporary standards I cannot believe Sergeant Anderson's language was legally offensive." 15 In McNamara v Freeman (unreported, NSWSC, 5 August 1988), Justice Yeldham held that the Magistrate had not erred in law finding that the words "get fucked you cunts, I'm just trying to help my mates" used to Police in a street brawl were not offensive. 16 In McCormack v Langham (unreported, NSWSC, 5 September 1991), Justice Studdert held that the use of the words "watch those two fucking poofters persecute me" in a hot food bar in Lismore was offensive. There were children in the food bar amongst the 30 patrons at the time the words were uttered. 17 In Thommery v Humphries (unreported, NSWSC, 19 June 1987), the words "you fucking mole you, you fucking mole" and "cunts, cunts" were addressed to a female police officer in the foyer of Darlinghurst Police Station. Members of the public, offenders, suspected offenders and police officers were present. Foster J decided that:

"The words themselves are quite unacceptable in any civilised circumstances. They are not words that require further explanation by way of indication that they would have special meaning to persons hearing them. They are in themselves words which could also be described as offensive to any reasonable hearer." 18 In Evans v Frances (unreported, NSWSC, 10 August 1990), the alleged offender said loudly in a public place in the presence of 20 people:

"You pricks I want my fucking keys ... I lost them in a club down the road and these cunts won't let me in ... You fucking useless cunt." 19 Lusher JA found these words to be offensive and said of the reasonable person hypothetically present:

"He has some sensitivity, I should have thought, to social behaviour, social expectations in public places where other people are." 20 Some of these decisions concerned the use of the words "fuck" and "fucking" whereas other cases involved the use of the word "fuck" or its derivatives and the other words which might of themselves be regarded as offensive or, perhaps more offensive. In my view, in the absence of clear binding authority as to whether in law the use of the word "fuck" is offensive, the Court should apply the tests established by the cases to determine whether language and/or behaviour is offensive in the particular circumstances. I note that Justice Simpson in Burns v Seagrave [2000] NSWSC 77 stated that the decisions in the Australian Capital Territory are "important particularly as guides to Magistrates charged with the duty of determining whether particular conduct amounts to an offence". 21 For behaviour to be offensive it must be calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person. One of the primary cases on "offensive" behaviour is a Supreme Court of the ACT decision of Ball and McIntyre (1996) 9 FLR 237. Ball, who was a student from the Australian National University, was expressing his views about the Vietnam War in a certain way and was charged with offensive behaviour. He climbed onto a statue of King George V and hung a placard carrying the words "I will not fight in Vietnam". Much of the reasoning about what constitutes the elements of "offensive" conduct is based on the decision. In that case Justice Kerr said:

"It follows from what was said in this case [ Anderson v Kynaston [1924] VLR 214], and I agree with and adopt it, that some conduct which is hurtful or blameworthy or improper is not offensive within the meaning of the section. What has to be considered in the particular case is whether the conduct in question, even if in some sense hurtful or blameworthy, or improper, is also offensive within the meaning of the section. It is important, I think, for this point to be made because it is sometimes thought that it is sufficient to constitute offensive behaviour if it can be said that conduct is hurtful, blameworthy or improper, and thus may offend.

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 commonly accepted social rules, may well be ill-advised, hurtful, not proper conduct.

People may be offended by such conduct, but it may well not be offensive conduct within the meaning of the section. Some types of political conduct may offend against accepted views or opinions and may be hurtful to those who hold those accepted views or opinions. But such political conduct, even though not thought to be proper conduct by accepted standards, may not be offensive conduct within the section. Conduct showing a refusal to accept commonly held attitudes of respect to institutions or objects held in high esteem by most may not produce offensive behaviour, although in some cases, of course, it may." 22 This decision was followed by the ACT Supreme Court in Saunders v Herold (1991) 105 FLR 1. In the Canberra Workers Club foyer, three people were arguing with the duty manager. The police attended. While there were different accounts given of events, the appellant after being told to watch the language said "we haven't done anything wrong. Why don't you fucking cunts just leave us alone?" Further, there was evidence that the appellant said twice "go and get fucked". The appellant was aggressive and intoxicated. The conduct occurred late on a Friday night in the context of a heated argument with a police officer. The Court adopted the approach of Justice Kerr in Ball v McIntyre and it said "what constitutes behaving in an offensive manner depends very much on the circumstances. Conduct and language engaged in at a football match or on a tennis or squash court may be acceptable, or, at least, unremarkable, but offensive if engaged in during a church service or a formal social event. The Court ruled the conduct not to be offensive judged on the standard of a reasonable bystander. 23 What has to be considered in any particular case is whether the conduct in question, even if in some sense hurtful or blameworthy or improper, is also offensive within the meaning of the section. Conduct is offensive behaviour if it is hurtful, blameworthy or improper and thus may offend. What has to be done in each case is to decide whether the conduct is in truth offensive. That reasoning of Kerr J in Ball v McIntyre has been followed in New South Wales. 24 It is important for the Court to make that assessment having regard to the circumstances and having regard to what a reasonable person would think in those circumstances. It needs to be pointed out that a reasonable person is a robust person, a contemporary person and not a sensitive person who has not been exposed to worldly pursuits. It is a question of making an assessment of what a worldly person might reasonably think of the language or the conduct in the particular circumstances. It is not necessary to prove that there was any person present when the language was used who was actually offended. 25 In this case of course there is no evidence before the Court that any person present thought this language was offensive. But what the Court has to do is to make an assessment of what response a reasonable person would think of the language used by the defendant. KerrJ said:

"I recognise that different minds may well come to different conclusions as to the reaction of a reasonable man in situations involving attitudes, beliefs and values in the community. But for my part, I believe that the so-called reasonable man is reasonably tolerant and understanding and reasonably contemporary in his reactions." 26 Applying the law to the circumstances of this case we have a situation where a woman is making a complaint about Paton concerning his violence when drunk. The conduct takes place in a police station foyer. There is reference in the cases to use of language in public places in circumstances that might deter members of the public going to those places and doing what they would otherwise do in those places but for their hearing this offensive language Stutsel v Reid (1990) 20 NSWLR 661 per Loveday J. This defendant before the Court today was at the time intoxicated. There were, "two younger children present." There is no evidence that the children heard the words used by Paton. There is no evidence that anybody, including Colleen Knox, was actually offended. There is evidence before the Court which would suggest to this Court that the defendant, Paton, uses the word "fuck" or "fucking," as if it were part of ordinary syntax. In his record of interview, when he is answering questions, invariably he uses these words. 27 It is not necessary for this Court to make any findings as to whether it is an "indecent" word. Paton was warned about his language by two police officers on more than one occasion. He continues to use the language. He is eventually arrested and he is charged. It is different to Butler because in this instance the words are used in circumstances where a woman is making a complaint to the police in the police station about violent things that happened to her. He is trying to prevent her making the complaint about him. In Butler, the words used by the defendant were directed at the police and neighbours in a community environment. Based on the decision in Anderson, the use of the word "fuck" by a police officer or its derivatives of the word "fuck" by police officers or in communications with police officers is probably not offensive because it is a word heard by the police every day in performance of their duties. But whether its use is offensive has to be determined having regard to the circumstances. If these words were used for example, to young children in a playground of a school or to nuns in a convent, a reasonable robust person would regard the use of those words to be offensive. The question is what a reasonable robust person might think of the use of the words in the particular circumstances. 28 This is a situation where a woman wishes to make a complaint about an act of violence to the police. She is being confronted by Paton who is clearly motivated to stop her making the complaint for whatever reason. The context is threatening and intimidatory. He is calling her "a fucking idiot" in circumstances where she is trying to make a complaint about him being "silly" towards her. It was persistent conduct. He was warned but continued to use the words. The words were disparaging of Colleen Knox and what she was trying to do. It is conduct that would arise ill feeling and emotion and potentially fear depending on the venom in which the words were said. In this Court's view a reasonable person as defined by the authorities would find the persistent use by Paton of those words in the foyer of Moree Police Station to be offensive. The Prosecution has proved its case beyond a reasonable doubt.

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