David v Joel [2017] QDC 256

[1] This is an appeal against conviction pursuant to the provision of s 222 of the Justices Act 1886.

[2] On 21 March 2017 the applicant was convicted after a summary trial in the Magistrates Court at Aurukun on a charge that on the third day of November 2016 at Aurukun she committed a public nuisance. The charge was laid under the provisions of the Summary Offences Act 2005 ("the Act").

[3] She has now appealed that conviction on a number of grounds which essentially come down to whether or not the evidence heard before the learned magistrate was sufficient to justify the finding that she behaved in an offensive way which is an element of the offence of committing public nuisance.

[4] It is well accepted that matters such as this are appeals by way of rehearing, and that I should also have due regard to the advantage that the magistrate had in seeing the witnesses in a summary hearing.

[5] The trial in question was a very short one and the only witness called by either party was Gareth Paul Joel, the arresting officer who is the respondent in these proceedings. At the outset of the trial the police prosecutor provided the following particulars of the offence:

"There was a disturbance at around 12.30am in the morning on 3 November 2016. The police attended, spoke to the defendant. She was constantly yelling and swearing in the street, and particularly during her interaction with the police, your Honour, said words to the effect to the police officers 'You and the other cunts can go fuck yourself' and provide - insulted the police officer that was directed at. It was in a public place, your Honour. The prosecution will call one witness, well hopefully it should be loud enough that I can play an audio on my laptop. That device over there didn't seem to work very well."

[6] The reference to something being played on the laptop related to the fact that the arresting officer had a recorder on his person at the time and had burnt a disc from that recording. Apparently, however, it was not of good quality and the parties agreed that it may be difficult to hear at the time of the summary hearing in Aurukun.

[7] By the time the matter came to this court we had the use of far more advanced equipment and were able to hear much better the recording but still it was not of a particularly good quality.

[8] During his evidence the respondent described how the incident occurred in Muttich Street at Aurukun at about 12.30 in the morning. When he and a fellow officer where on patrol they observed the applicant in the middle of the street and stopped. She was quite heavily intoxicated and complained that she had had an argument with her boyfriend and that he had taken her baby. The respondent conceded that the applicant was clearly concerned about the welfare of the baby. She told the police that the baby had been taken to her partner's parent's house. She told them that there had been an altercation between her partner and her, that he had struck her with a pram and she had punched him back. There was no sign of him at the time. Police told her to stay where she was and then proceeded down to the grandparents' house which was about 100 meters down the road. It appears that she followed some distance behind them. They checked with the parents and found out that the child was asleep so they decided that it would be best if the child stayed there. They then went out to the road and spoke to her again. The respondent said that she was given several warnings about yelling. He said that he then started his personal digital recorder and she continued yelling and screaming. He said that she turned to them after about four or five warnings to stop yelling and screaming and said words to the effect of "fuck off, you cunts". He said she continued to yell and scream and at that stage he arrested her for public nuisance.

[9] The CD disc which was Exhibit 1 in the proceedings was then played and what followed illustrated the difficulty it seems that everyone had with the quality of that recording. The prosecutor questioned the respondent further and after referring to the words used as being equivalent to what was said in the evidence, namely "fuck off, you cunts", he asked the respondent how he felt when those words were used. He then replied:

"When she said 'you cunts can go fuck yourself' I was offended, it's a public place."[1]

[10] He went on to explain that he was offended by being called a cunt and being told to fuck himself.[2] In cross-examination he agreed that she was very upset at the time they saw her after she complained of the earlier domestic incident and that her child had been taken.

[11] The applicant did not give or call any evidence.

[12] The prosecution submitted that all elements of the offence had been satisfied, whilst the defence submitted that there was insufficient evidence of offensive behaviour and that this was one of those matters where the behaviour, when looked at in its totality, was not deserving of criminal sanction.

[13] In his decision the learned magistrate accepted the evidence of the respondent. He found that at the relevant time the applicant said to the respondent words to the effect of "fuck off you cunts, go fuck yourself". This finding differs to what the respondent said in evidence.

[14] He referred to a decision of Skoien DCJ in this court in Green v Ashton [2006] QDC 8 in terms of the test that applies in matters such as this, where he said:

"The question whether a person behaves in an offensive way, by the use of offensive language, must no doubt be judged objectively. Otherwise, an offence could be committed by saying to a person of extremely delicate sensibilities, something which that person found offensive but which most people would regard as quite acceptable. But in making an objective judgment the surrounding circumstances are surely relevant; such things as the time and place, the vehemence of the utterance and whether the utterance would be known by the speaker to have, and is intended by the speaker to have, special relevance to the recipient." (the underlining is mine).

[15] He also referred to a decision of Forde DCJ in Kris v Tramacchi [2006] QDC 35, particularly the reference in that decision to the use of the word "cunt" and the context in which that can be offensive.

[16] Applying the test as set out above, he made the following findings in terms of the surrounding circumstances:

"The relevant surrounding circumstances in this case are, the defendant and her partner had been involved in a domestic violence incident. The defendant has been hit with a pram, and her child has been taken by her partner and given to his parents. The behaviour occurred late at night, and the only people other than the police officers in the area were the grandparents. The defendant, as a result of the DV incident, being hit with the pram and her child being taken, was distressed, that is, upset. On the other hand, the defendant was intoxicated and her words were directed to the police officer as an abusive expletive. The defendant had been warned about her yelling and screaming prior, and the police officer, when subjected to the language, was assisting the defendant."[3]

[17] He then went on to convict the applicant and imposed a fine of $300 which was referred to the State Penalties Enforcement Registry.

[18] With the benefit of technology we were able to listen to an enhanced copy of the CD (Exhibit 1) and it is clear that what she actually said was not directed at the police officers. What I heard was consistent with what is contained in paragraph 24 of the submissions by the solicitor for the applicant in that she can be heard saying "it's not yous and those other cunts can go fuck [inaudible] themselves [inaudible]". What is contained on the tape is clearly the best evidence of what was said and when one accepts that that is what was said there is no evidence to support the learned magistrate's finding that her words were directed to the police officer as an abusive expletive.

[19] Section 6(2) of the Act provides:

"(2) A person commits a public nuisance offence if -

(b) the person's behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public."

[20] Section 6(3) provides:

(a) a person behaves in an offensive way if the person uses offensive, obscene, indecent or abusive language; and

[21] When considering this section I gained considerable assistance from the decision of McGill DCJ in Couchy v Birchley [2005] QDC 334.

[22] His Honour considered s 7AA of the Vagrants Gaming and Other Offences Act 1931 which was in the same terms as s 6 of the Act and considered the relevant second reading speech of the then Minister.

[23] His Honour concluded that insofar as the element of behaving in an offensive manner was concerned it was not a question of whether or not the individual who was addressed by the words felt abused or for that matter was offended or regarded them as obscene or indecent. The question is whether objectively in the prevailing circumstances the words met that description.[4] In that matter the words were directed at a security officer and evidence was accepted on trial that the security officer was offended by the language used. His Honour noted that the attitude to the words used by the offender in those circumstances was not relevant and should not have been admitted.[5] It follows here that the evidence of the respondent as to his attitude to the words which he believed were used by the applicant should not have been admitted as it was irrelevant. The real test is objectively whether or not what she did say in the circumstances in which it was said could justify a finding that she used offensive, obscene, indecent or abusive language.

[24] I have had the benefit of hearing the evidence at its best and, in view of the fact that the language was clearly not directed at the police per se, I do not consider that it was offensive or abusive language.

[25] On the evidence, the only two people present in the street beside her were the two police officers. What she said was not offensive towards them nor abusive towards them. It may be argued that the use of the word "cunts" was obscene or indecent but again it seems to me that the use of that word has to be considered in context. It is a word which at different times is used by people in public places in circumstances where it is not necessarily offensive to others or abusive to others who are there or obscene or indecent and is not accepted as such.

[26] I am not satisfied that it would be obscene or indecent language for someone in her situation who had just lost her child to use these words when referring to others who she perceived to be party to if not the taking of the child, then the continuing detention of the child.

[27] Had the language been directed at the police, I would have had no hesitation in arriving at the same conclusion as the learned magistrate because the language would clearly have been offensive and abusive, and obscene and indecent when directed directly at them when they were present.

[28] It is also useful to consider the relevant element of the offence under subsection 6(2)(b), namely that the behaviour interfered or was likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.

[29] Had the language been directed at the police officers, clearly it would have interfered with their peaceful passage through, or enjoyment of, the public place and they can for the purpose of this subsection be members of the public. However I do not consider that the way in which the language was used i.e. by referring to members of the child's father's family, would have in any way interfered with the peaceful passage through, or enjoyment of, the public place by either of the police officers.

[30] It was accepted on argument before the learned magistrate that no one else was in the street at the time. So there is no suggestion that she interfered with the peaceful passage through or enjoyment of the public place by anyone else.

[31] On the hearing of the appeal the prosecution argued that even if the language was not directed at the police officers there was sufficient evidence to justify a conviction based around what was effectively her constant yelling in the public place despite a number of warnings on the part of the respondent for her to stop.

[32] I note that one of the options open under s 6(2)(a) of the Act is behaving in a disorderly way. The case did not appear to be presented or particularised on the basis that the police were relying on s 6(2)(a)(i). The case was presented and argued by the prosecution on the basis of s 6(2)(a)(ii), namely that she had behaved in an offensive way. The case was determined solely on that basis.[6] In those circumstances I do not believe that there is any substance to that argument.

[33] In summary, on reviewing the evidence which was available before the magistrate, I consider that there was an error in the sense that the finding that she said to the police "fuck off you cunts, go fuck yourself" was against the evidence and against the weight of the evidence. I am satisfied that the language was not directed at the police and in those circumstances, I am not satisfied that the element of the offence, namely that she behaved in an offensive manner has been made out.

[34] I should add that this decision is not a criticism of the respondent. He was placed in a difficult position in his dealings with the applicant that night and in the lead up to charging her displayed considerable patience. Time and again he attempted to calm her down. He only arrested her after she made the relevant comments and did so mistakenly believing that they were directed at him and his follow officer. This all occurred in the heat of what was clearly a difficult time for him.

[35] In the circumstances, I make the following orders:

2. The conviction for the offence of committing public nuisance is set aside and the charge is dismissed.