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[2007] WASC 175
Supreme Court of WA
2007-08-01
Mr P, Johnson J, Magistrate P
Original judgment source is linked above.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : HEANES -v- HERANGI [2007] WASC 175
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Disorderly conduct - Collaboration in preparation of witness statements - Admissibility of evidence illegally or improperly obtained - Failure to call witness - Disorderly conduct - Offensive language - Whether necessary to establish that offence caused to a person - Whether miscarriage of justice
1 JOHNSON J: The appellant, Jonathan Stephen Heanes, appeals against his conviction in the Magistrates Court at Perth on 24 October 2006 for the offence of disorderly conduct, contrary to s 74A of the Criminal Code (WA).
2 The grounds of appeal on which the appellant relies are these:
"1. The learned magistrate erred in law and in fact in accepting and relying upon the evidence of the prosecution witnesses when that evidence was admittedly the product of collaboration between them.
Particulars
1.1 The statements of the two police witnesses reproduced typographical errors, contained obvious similarities and had patent mistakes, which indicated a common authorship.
1.2 Constable Paul, the female police officer who was the second witness called for the prosecution, accepted that she had received an electronic version of the statement prepared by Constable Herangi and had produced her own statement by 'typing over' that earlier statement.
1.3 Notably, the words complained of, which the appellant denied that he had said (which denial was supported by his father), were identical in each of the police statements.
2. The learned magistrate erred in fact in discounting the evidence of the defence witness, Stephen Heanes, to the effect that he had heard the whole of the relevant conversation and that the second expletive had not been said by the appellant.
Particulars
2.1 It was the prosecution case that the offensive words were said in the course of the telephone conversation between the appellant and his father. On this basis, there were no grounds on which the learned magistrate could find that the evidence of Stephen Heanes could be disregarded.
3. The learned magistrate erred in fact and in law in holding that the conduct of the appellant, even on the prosecution case, could amount to disorderly conduct.
Particulars
3.1 No independent witness was called to indicate any distress, disquiet or discomfort about the conduct or language used.
3.2 The appellant was arguably disrespectful and possibly rude. He offered no physical threat or challenge. That falls well short of conduct requiring the sanction of the criminal law.
3.3 The language complained of was not offensive or obscene in its proper, actual and contemporary context.
4. There was a miscarriage of justice in that the conviction was unsafe and unsatisfactory; and against the weight of the evidence.
Particulars
The appellant relies on the following:
4.1 The discrepancies between the evidence of the prosecution witnesses about the earlier behaviour of the appellant.
4.2 The disparity between the evidence of the prosecution and defence witnesses about the events forming the basis of the charge
4.3 The fact that the crucial evidence of the words said to amount to disorderly conduct was challenged; denied by the defence witness Stephen Heanes; and the product of admitted collusion."
3 The prosecution notice states that the appellant, being in Forrest Chase, behaved in a disorderly manner. The charge is not particularised and no particulars were requested or provided at the commencement of the hearing or at any other stage. However, as is apparent from the circumstances to which I will shortly refer, the conduct said to be disorderly was the language used by the appellant.
4 On 12 July 2006 the appellant and his girlfriend were crossing the road at the Wellington Street crossing, having come out of the entrance of the Perth train station. At the same time two uniformed police officers, Constable Paul and Constable Herangi, were crossing Wellington Street from Forest Chase to the train station. According to Constable Herangi, he and his partner were on duty and walking within arm's reach of each other, virtually shoulder to shoulder. He was asked whether there was a reason why they were walking so close together and he said: "That is just the way - no, nothing, to - we were just walking in a normal manner". Constable Herangi said that he was walking on Constable Paul's right side which is the side on which she wears her gun.
5 As they were crossing the road, Constable Herangi observed the appellant on the other side of the road. He was about one to two metres on Constable Herangi's right hand side. There was no eye contact between them. Constable Herangi indicated that he and Constable Paul were walking straight ahead but the appellant was cutting across. He came across in front of Constable Herangi. The two officers were just over half way when the appellant walked between them, bumped Constable Paul to the hip with his right elbow and continued on without apologising. The appellant rejoined his girlfriend who had gone straight ahead without walking between the officers. According to Constable Herangi, the appellant could have gone straight ahead as well.
6 When the appellant bumped into Constable Paul and continued on, Constable Herangi turned around and saw that the appellant was looking back at him with a smile on his face. The appellant continued looking at him until he was out of view.
7 At that point Constable Herangi said to Constable Paul, "Did he deliberately walk into us?" Constable Paul agreed that he had and they turned around and, after waiting for the lights to turn green so they could cross back over the road, the two officers went to look for him. About five minutes later the two officers located the appellant in the Myer store and asked him to come outside so they could speak to him about the incident. The appellant came outside and Constable Herangi said to him, "You deliberately walked into us." He replied, "No. I didn't see you". In cross-examination it was put to Constable Herangi that the appellant said, "No, I didn't see her?" His response was, "Yes".
8 At this point in the conversation the appellant's mobile phone rang and Constable Herangi asked him to turn it off until they had sorted the matter out. According to Constable Herangi, the appellant replied in a loud and clear voice, "I am on the phone - I am on the phone. I'm fucking talking to my dad. Fuck off." When Constable Herangi repeated what the appellant said it was in these terms: "I'm on the fucking phone talking to my dad. Fuck off." Constable Herangi stated that it was school holidays at the time and there were several children within hearing distance. There were a few people standing around as well and approximately 15 people in the vicinity.
9 The appellant was arrested, conveyed to Perth police station, charged and then released to bail. Later, when Constable Herangi let the appellant out of the main door of the station the appellant turned around and said to him, "You'd better harden up". Constable Herangi stated that he did not know what he meant by that.
10 In cross-examination Constable Herangi said that he saw the appellant bump into Constable Paul although he agreed he could not see the actual contact. Constable Herangi denied that he was upset by the fact that the appellant had walked between them but said that he found it annoying. He explained that "it just seemed weird" that he would do something like that. Constable Herangi agreed with the proposition that the appellant "had got a bit of attitude".
11 Constable Herangi denied that he grabbed the phone out of the appellant's hand and turned it off but he agreed that the appellant asked him to take the handcuffs off. Constable Herangi denied telling the appellant to "just fucking shut up". In response to the proposition that, later at the police station, when the camera used to take a photograph of the appellant would not operate, he said words to the effect, "What the fuck is wrong with this bloody thing. I can't make the fucking thing work", Constable Herangi said that he did not recall.
12 Constable Paul said in her evidence that she was walking approximately 30 centimetres apart from Constable Herangi. The appellant was approximately 1½ to 2½ metres on her right hand side and to the front of her when she first saw him. There were not very many people coming towards them and there was no one in their way as they walked across the intersection. Neither did she observe the appellant "having to negotiate any person on the crossing". What attracted her attention to the appellant was that he changed his speed as he was walking towards the two officers and began to walk faster. He walked between her and Constable Herangi and when he did that he bumped into her right hip with his right elbow. Constable Paul said that when she felt him walk into her she tried to move out of the way but it was too late. When she turned around she saw the appellant grab his girlfriend's hand, walk up the stairs to Forrest Chase and turn around and look back at them. Constable Paul said that although the appellant bumped into her, his girlfriend had continued to walk straight across the road approximately 1½ to 2½ metres away.
13 According to Constable Paul, when the appellant was spoken to and asked if he had deliberately walked between her and Constable Herangi, he denied he had and said that he did not see her. It was at this point that his phone rang. Her account of what the appellant said when asked by Constable Herangi to hang up the phone was this: "I'm on the fucking phone to my father. Get fucked. So fuck off". She said that it was lunchtime during school holidays and very busy. There were a number of children in the area within hearing distance of the accused. On Constable Paul's assessment there were at least more than 10 to 15 people in the vicinity who looked at them as they were walking past. The appellant was then arrested.
14 In cross-examination Constable Paul explained that at the time the appellant was asked to hang up his phone she was writing out a "move on" notice which would require him to leave the city for a period of time. It was suggested to Constable Paul that there was no reason why the appellant could not have been allowed to complete his phone call. Constable Paul's response was that he could have answered her questions and then continued with his phone call. It was put to Constable Paul that there was no reference to the "move on" notice in her statement but, as she pointed out, because he was arrested, she did not get to write it out. Constable Paul maintained that Constable Herangi grabbed the appellant's arm and not his phone. She denied that she or Constable Herangi used the word "fuck" in the course of their dealings with the appellant.
15 Questions were put to Constable Paul in cross-examination to the effect that she and her partner did not arrest everyone who swore and that they arrested the appellant because of what had happened when crossing the road. Constable Paul explained that often "move on" notices were given to people who used bad language but in this case he had already done something to justify the "move on" notice but he went further and therefore was arrested for his language. She did admit that she was angry with the appellant for walking into her.
16 The appellant's initial account of the incident was that, as he crossed the road, he and his girlfriend were weaving in and out of people as they came the other way. The two police officers were directly opposite him and as they walked towards him there was about a metre between both the officers and he walked straight between them. The appellant said that it was so insignificant that his girlfriend did not even notice that he had done it. This comment by the appellant of his girlfriend's knowledge of events was, of course, hearsay. The appellant maintained that there was no contact between him and either police officer and there was ample room between them.
17 The appellant stated that as he continued walking across the road he glanced back and the officers were looking back at him and he suspected they may not have been too impressed but he continued walking to Myer. Approximately five minutes later the appellant was in the Myer store, felt a hand on his shoulder and Constable Herangi told him to come outside.
18 When the appellant was asked by Constable Herangi to explain why he walked in between the two officers he explained that he had his head down at the time because he had just been writing an SMS message on his mobile phone before he and his girlfriend crossed the road. He was putting the lock on his phone when he looked up "and the officers were there". According to the appellant, there was ample room in between the two officers so he kept walking straight through and put the phone in his pocket.
19 As the appellant was explaining why he walked between the two officers his phone rang. The appellant explained that the ring was loud and the officer could clearly see that his phone was ringing. He told the officer to "hold on a minute" then answered the call which was from his father. He could tell before he answered it that it was his father because the phone came up with his father's name, although he did not mention that to the police officers.
20 The appellant stated that he had only been on the phone for 5 - 10 seconds when the male officer said "in a very rude voice", "get off the phone". He said to the officer, "hold on a minute" but the officer told him again to get off the phone and went to grab the phone out of his hand. The appellant brought the phone down and said to him, "It's my fucking dad. Just let me talk to him". According to the appellant, he did not shout when he said this. Constable Herangi said "no" and grabbed the phone out of his hand, hung up, placed the appellant under arrest and handcuffed him. The appellant maintained that there was nobody around where they were. He also said that Constable Herangi gave the phone to Constable Paul who passed it to the appellant's girlfriend. The appellant said that he girlfriend was, "very shocked and was a bit surprised at what happened". This was another hearsay statement by the appellant concerning his girlfriend.
21 According to the appellant, as he was waiting to be placed into the van and taken to the police station, he asked for the handcuffs to be removed because he was not violent and was not going to resist. The appellant stated that Constable Herangi said, "We don't fucking know what you're like". He added that there were many more people standing around at that point. It would seem that the purpose of this evidence was to show that Constable Herangi, himself, used the same language as the appellant had used.
22 The appellant stated that as they were waiting a group of four males walked past and spat right in front of them. The appellant commented to Constable Herangi that, "These are the sort of people that you should be focusing on". According to the appellant, Constable Herangi responded with, "Well, we would be if we weren't dealing with dickheads like you". The appellant maintained that during the time between his arrest and the arrival of transportation, the police also used the word "fuck" three times. The appellant also maintained that Constable Herangi used that word at the police station when he was having difficulties with the camera.
23 In cross-examination the appellant confirmed that he had his head down the whole time doing an SMS. He said that, as the lights went green, he had finalised writing the SMS message, locked the phone, went to put it in his pocket, looked up and there were two officers coming. He put the phone in his pocket and "it wasn't worth making a detour around them when there were only four metres around and I walked in between them". However, when questioned further, the appellant gave this account:
"As I said the first time, as I was walking across the road I was still writing the SMS, I finished it, then we got to about halfway. I put the key lock on my phone, put the phone in my pocket. Then about a metre away from the officers, as they were walking one to two metres away, as I was walking towards them, they were walking towards me, I finished putting the phone in my pocket and they were there. It wasn't - it would have been stupid to make a detour around either side of them."
It can be seen that there is some discrepancy in the appellant's account of the point at which he finished the SMS message and hence the point at which he became aware of the two police officers. However, the appellant denied that he had said earlier in his evidence that he had finished the SMS message before he proceeded across the intersection.
24 The appellant settled on "about a metre away" as the distance between him and the two officers when he looked up. The appellant stated that the explanation he gave the police officers was that he was writing an SMS and he had his head down. However, the explanation recounted by the two police officers did not include any reference to a SMS message.
25 The appellant disputed that the two officers were walking shoulder to shoulder and also denied that officers walking the beat walk close together. When asked why, if there was ample room between the two officers, the appellant looked back, he said, "Because I thought they were police officers, well, they must have been a little bit offended". When further asked why they would be offended if the appellant had crossed the intersection without incident, the appellant stated:
"If they weren't officers - if I had walked in between a couple I would have glanced back to say, 'Hope I didn't upset them'."
The appellant then said, "Because they were like - they were wearing the same uniform, they like to stick together and when I walked it was - like well, they mustn't have liked that". The appellant denied that he was being a smart alec.
26 In my view, it was certainly open to the Magistrate to conclude that the reasons the appellant gave for looking back were inconsistent with the account he gave of walking between two officers who were a reasonable distance apart and where, as the appellant stated, it would have looked "pretty stupid if you were walking across and all of a sudden you yanked to one side just because there were two officers".
27 With respect to the phone call from his father, the appellant said in cross-examination that he did not tell his father that he would call him back because there was no need to. He said, "He rang me up for a reason. I spoke to him". He also said that he did not think they would mind. When it was pointed out that they obviously did mind, the appellant's response was that he had no obligation to be talking to them.
28 The appellant denied that he told the police officers to "fuck off". According to the appellant, he said in a very low and casual voice, "It's my fucking dad on the phone". His explanation for using an expletive was that the officer had grabbed his hand and he was very angry and surprised and it just came out.
29 Stephen Heanes, the father of the appellant, gave evidence that he calls his son quite often and there was no particular reason for calling him on that occasion; nothing pressing about the particular phone call. He stated that he chatted with the appellant for a very short while, "friendly as we always are". The appellant greeted him and said that he was in the city with Samantha, his girlfriend, and then the noise started. Approximately half a minute had elapsed at that point. Mr Heanes heard some very loud aggressive voices in the background and heard lots of commotion and asked the appellant what was going on. Mr Heanes said that it was very difficult to hear what the voices in the background were saying. The phone then went dead. The last words he heard the appellant say was that he had been arrested and was being taken out of the shop. He did not know police were involved until 10 or 15 minutes later when he rang back and the phone was answered. With respect to the background voices, Mr Heanes stated that there was a mixture of voices with the aggressive one mainly being a male voice. He also said in cross-examination that he heard the appellant say "I'm on the fucking phone" but he did not hear anything after that apart from a lot of aggressive noise from other people.
30 The Magistrate concluded that the prosecution had proved the charge against the appellant. He found that the appellant did bump into Constable Paul on the pedestrian crossing and this was the result of carelessness on his part. The Magistrate further found that, when the appellant was being spoken to by the police officers and his phone rang, he could have, and should have, said that he would call his father back. It was noted that the father was making nothing more than a routine call. The Magistrate accepted that the appellant, having been asked to switch off the phone, said "I am on the fucking phone. Fuck off." In reaching that conclusion the Magistrate considered that the evidence of the appellant's father did not particularly assist because he had not heard all of what was said. The words were found to have been said in the proximity and within the hearing of both adults and children. The Magistrate stated that he accepted the evidence of Constable Paul that the appellant yelled the comment. He also accepted Constable Paul's evidence that the reason the appellant was arrested was because she was already writing a "move on" notice in relation to the appellant's earlier conduct.
31 The Magistrate accepted in substance the testimony of the two police officers. In particular, he accepted the evidence of Constable Paul that the appellant had bumped into her. The Magistrate also stated that he rejected the evidence of the appellant and gave his reasons for doing so. The Magistrate said that, despite the appellant's assertion that there was no contact between him and Constable Paul, the appellant looked back and continued to look back as he walked away. He was also pursued by the two police officers regarding his conduct. The Magistrate considered that neither of these things made sense if the appellant had merely walked between the two officers without making contact.
32 With respect to the issue of whether the conduct, as found by the Magistrate, amounted to disorderly conduct, the Magistrate stated that the appellant's conduct of continuing with a routine call was clearly, and at least, "inappropriate and rude behaviour". He added:
33 "As to whether it was disorderly, even in what might be described as a more liberal view or attitude to swearing in public, to tell a police officer, loudly in Forrest Chase to "fuck off" is, in my view, still sufficient to be a clear case of disorderly behaviour."
34 The appellant alleges that the Magistrate erred in accepting and relying on the evidence of the police officers when that evidence was the product of collaboration between them. The appellant's submission is that collaboration affects the admissibility of the evidence and not simply the weight to be given to that evidence. Counsel for the prosecution submitted that collaboration is relevant only to the weight of the evidence.
35 In cross-examination Constable Herangi was asked about communications with Constable Paul. He said that he had discussed the case with Constable Paul. He also said that he prepared his statement first. He denied he showed his statement to her. It was put to Constable Herangi that some of the paragraphs are identical. His response was that he did not know because he had not read Constable Paul's statement.
36 Constable Herangi was not cross-examined on the effect on his recollection of the discussion with Constable Paul. Indeed, the nature and purpose of that discussion was neither addressed nor identified and there was, therefore, no evidence upon which to base a conclusion that this conversation had any impact on his recollection of events.
37 In cross-examination Constable Paul said that she discussed the case with Constable Herangi after it happened and before statements were made. Similarly, the nature and purpose of that discussion and the effect, if any, on her recollection was not addressed in cross-examination. Constable Paul further stated that she read Constable Herangi's statement before she made her own. She explained that Constable Herangi would have sent her his statement to have a look at it and she typed over the top of it. In re-examination Constable Paul further explained that she received Constable Herangi's statement on the computer. She said that her practice was to read the statement of the other officer and then type her own out or type over the top of the other officer's statement. She added that whoever is compiling the brief normally sends the statement to the other officer. As with Constable Herangi, Constable Paul was not cross-examined about the impact on her evidence of the circumstances relating to the preparation of her statement. Specifically, Constable Paul was not asked whether Constable Herangi's statement refreshed her own memory of events or provided her with information which she did not actually recall.
38 The appellant's counsel at trial made a submission of no case to answer on the basis that the way in which the statements were prepared was an abuse of process. It was submitted that, where issues of credibility arise, evidence that the witnesses have prepared their statement and "colluded or co-operated in this way" is unacceptable and it is an abuse of process to prosecute a case based on such evidence. The appellant's trial counsel added:
"The care that one takes to make sure that evidence of a witness is his or her uncontaminated and independent recollection is, in my respectful submission, crucial to the presentation of a proper prosecution case."
39 The submission was prefaced by the observation that it was made without any criticism at all of the two police officers concerned and that observation was repeated at a later point in the submission.
40 As I understand the submission, the complaint being made was with respect to the process and the potential for evidence based on statements prepared in that way to include matters which were not part of the witness's own recollection. It was not submitted that the evidence of either officer was in fact contaminated or that either witness knowingly gave evidence of something not seen, not heard or not recalled. However, it appears from a response by counsel to a question from the Magistrate that counsel was submitting that such a process could result in a witness unintentionally adopting as his or her own recollection, the recollection of the other person. The Magistrate's question involved two propositions. The first was whether counsel was suggesting that the testimony was false. The second was whether counsel was suggesting that the process was flawed and, consequently, the prosecution should be dismissed simply because the process by which prosecution witnesses prepared the statements from which they refreshed their memory before giving evidence was flawed. I believe counsel's response of, "That is exactly right", was in fact a response to the second question. Counsel's additional statement that there was no suggestion that the officers had deliberately concocted their evidence would be inconsistent with the response being to the first question.
41 The prosecution submitted that it was common place in this age of technology for police officers to create a statement by cutting and pasting or typing over a statement in electronic format. It is said that officers are busy and are expected to prepare statements in a short period of time and get back to performing their duties. It was further suggested that any issue arising had been dealt with under cross-examination and it was a matter for the Magistrate to assess the credibility of the witnesses having been made aware of the circumstances. It is apparent that the prosecution's position was that the circumstances surrounding the preparation of the witness statements were something to be addressed in cross-examination and went only to the weight of the evidence.
42 In rejecting the application to dismiss the charge on the basis that the conduct did not amount to an abuse of process, the Magistrate expressed the view that "there has been certainly collaboration between the two officers as to the two statements to, in effect, come up with a result which has the effect of the two statements being virtually identical". I note in passing that there was no evidence from either police officer that the purpose of the process was to ensure that the two statements were virtually identical, nor was such a proposition put to either witness in cross-examination. The reasons for the Magistrate's decision were these:
"Now, I would have thought that that, in many cases, is not desirable because there are situations whereby people's recollections are not a hundred per cent correct and the same applies even to police officers and, unfortunately, there seems to be this policy of making the statements as identical as they possibly can so that when we get to a situation like this where there is disclosure now in these courts ... the statements which are disclosed to defence counsel are scrutinised and the cross-examination often proceeds on the basis of quite careful cross-examination based on the differences between the two typed statements.
To some extent this practice, which I do not consider to be desirable, of the two police officers collaborating and producing identical statements, to some extent it seems has flowed out of the disclosure process that is now the case in these Magistrate's Courts and I don't consider, really, it is the best way to prepare a case for prosecution, but, unfortunately, that seems to be what has been happening."
The Magistrate noted that there was no suggestion that the witnesses had concocted evidence and in their collaboration produced a false story.
43 Having determined that there was a case to answer, the defence went into evidence calling both the appellant and his father. As noted above, the Magistrate found the charge proved. The reasons for his decision have already been referred to but, in short, the Magistrate accepted the police officers' testimony. He rejected the appellant's version as not credible and gave his reasons for reaching that conclusion. In deciding to accept the evidence of the police officers the Magistrate made no mention of the fact that the police evidence was consistent or was corroborated.
(iii) Admissibility of evidence where there has been collaboration between witnesses
44 The appellant does not seek to pursue the argument that, because of the way in which the statements of the police officers came into existence, the prosecution was an abuse of process. The ground of appeal alleges that evidence which is admittedly the product of collaboration between witnesses should not be accepted or relied upon. I understand the ground of appeal to deal with the Magistrate's acceptance of the evidence in the sense of reliance on it, rather than with respect to allowing the evidence to be given. I make that distinction because at no stage did counsel for the appellant at first instance suggest that the evidence should be excluded, albeit that it had already been given. However, in written submissions counsel for the appellant referred to authorities which deal with the admissibility of evidence improperly obtained. Further, in the course of oral submissions counsel submitted that unless a witness could give evidence of his or her independent recollection of events, wholly unaffected by any other person's recollection, that evidence should be excluded in the exercise of the judicial discretion. Counsel directed the balance of his submissions to the proposition that the Magistrate should not have relied on the evidence in any event.
45 Because of the way in which the matter was dealt with by counsel for the appellant at first instance, I have reservations as to whether it is now open to the appellant to submit that the Magistrate should have rejected the evidence in the sense of excluding it from evidence rather than declining to rely on it. I put to one side the question whether evidence which has already been led can be later excluded. However, I propose to consider the authorities dealing with the admissibility of evidence on the basis that they provide the rationale for declining to rely on the evidence in this case as well as the rationale for declining to admit evidence of this type. Further, as I have noted, it is apparent from the submissions made on behalf of the application that, irrespective of whether it is now open to address on appeal the admissibility of the evidence of Constable Herangi and Constable Paul, the appellant's position is that, as a matter of principle, collaboration affects admissibility as well as weight.
(a) Whether a wholly independent recollection of events is a pre-requisite to admissibility
46 On behalf of the appellant it is said that the Magistrate's fact finding was flawed because he relied on evidence which was the product of collaboration which reasonably precluded any reliance being placed on consistency or on the fact that the evidence was corroborated.
47 The terms "concoction", "collusion" and "collaboration" are used by counsel for the appellant, and also in a number of authorities, as if synonyms or, at least, different aspects of the same conduct. The terms are almost invariably used in a pejorative sense, although the term collaboration is usually defined simply to mean to "work jointly". It is the surrounding circumstances which determine whether the collaboration may reasonably be the subject of criticism. In the context of witness statements the issue is whether the collaboration has led, or is liable to lead, a witness to include in his or her statement something of which the witness has no personal recollection.
48 In the course of oral submissions counsel submitted that unless a witness could give evidence of his or her independent recollection of events, wholly unaffected by any other person's recollection, that evidence should be excluded in the exercise of the judicial discretion. No authority was provided for that proposition which was said by counsel to be obviously correct.
49 Counsel also submitted that it is fundamental to the assessment of credibility that the evidence of a witness should be an independent and uncontaminated recollection. Certainly circumstances which may affect the accuracy or reliability of a witness's evidence, in particular whether a witness has discussed his or her evidence with others, are commonly addressed in cross-examination. Indeed, juries are almost invariably told by judges to consider any and all matters which they consider might affect the reliability of a witness's evidence. It was further said by counsel for the appellant that, notoriously, courts often proceed by accepting evidence which is consistent in preference to that which contains discrepancies. That may well be so, although complete consistency may be an indication of inappropriate collaboration or rehearsed false statements.
50 I accept the proposition that, when assessing the credibility of a witness, it is relevant to consider whether the evidence of the witness is an independent and uncontaminated recollection. However, it does not automatically follow that evidence from a witness who has discussed the event with another is inadmissible or should be the subject of a discretionary exclusion. It would be naïve to suggest that witnesses do not discuss with others events which are significant or important to them. Witnesses make complaints to others who might question them and to police officers who participate in obtaining a statement from the witness. With respect to police officers, in many cases it will be necessary to discuss the circumstances of an incident with a fellow officer in order to determine the extent of the available evidence and whether charges should be laid. There are a multitude of circumstances with the potential to affect a witness's account of a particular event. If the absence of discussion with another were the criteria for admissibility there would be little available evidence.
51 Of course, the type of discussion or collaboration which occurred in this case, and which is the subject of the appellant's submission, is with another person with actual knowledge of the event as a result of which there is the potential for one person's recollection to be influenced by the other person's recollection of events. However, police officers who take statements from witnesses often also have knowledge of the event. That, too, would be a situation where there is the potential for the witness's recollection to be influenced by the person preparing the statement. If the potential for personal recollection to be influenced provides a basis for excluding evidence, the effect of such a principle would be far-reaching indeed.
52 I am not aware of any authority for the proposition that the mere fact of discussion or collaboration renders a witness's evidence inadmissible or provides a justification for excluding that evidence in the exercise of the judge's discretion. Counsel for the appellant placed considerable emphasis on the decision in Hoch v The Queen [1988] HCA 50; (1988) 165 CLR 292 to support the proposition that evidence which has been "contaminated" by collaboration between witnesses should be excluded or, at the very least, not relied upon. That is said to be because, as a result of the decision in Hoch v The Queen (supra) and until a recent legislative change, courts would order separate trials where there was even the possibility of concoction of prosecution evidence. The fact that Hoch v The Queen (supra) and similar cases seem invariably to concern allegations of sexual offences is said by counsel for the appellant not to confine the principle as the reasoning in such authorities does not logically confine the principle in that way and the legislative reform that has abrogated the effect of Hoch v The Queen (supra) is not so restricted: see Noto v The State of Western Australia [2006] WASCA 278 and Sweeney v The State of Western Australia [2006] WASCA 118. I accept that the principle is not so confined.
53 However, in my opinion, in relying on Hoch v The Queen (supra), counsel for the appellant misconceives the principle underpinning the decision in that case. In Hoch v The Queen (supra) the Court was dealing with the admissibility of similar fact evidence. The question raised on the application for special leave to appeal was whether there should have been separate trials of the separate counts contained in the indictment presented against the applicant. Each count charged the commission of a sexual offence and, unless the evidence of each offence was admissible in relation to the other offences, separate trials should have been ordered: De Jesus v The Queen [1986] HCA 65; (1986) 61 ALJR 1.
54 However, as the majority pointed out (at 294), having referred to Dixon J's discussion in Martin v Osborne [1936] HCA 23; (1936) 55 CLR 367 at 375, the basis for the admission of similar fact evidence lies in its possessing a particular probative value or cogency by reason that it reveals a pattern of activity that, if accepted, bears no reasonable explanation other than the inculpation of the accused person in the offence charged. In other words, once relevance is established, the criterion of admissibly is the strength of its probative force: at 294. The probative force of similar fact evidence lies in the improbability of the witness giving accounts of happenings having the requisite degree of similarity unless the happenings occurred. Similar fact evidence which does not raise a question of improbability lacks the requisite probative value that renders it admissible: at 295.
55 However, in cases where there is a possibility of joint concoction there is another rational view of the evidence. Joint concoction, therefore, destroys the probative value of the evidence which is a condition precedent to its admissibility: 296 - 297.
56 Referring to and relying on the observations of Lord Wilberforce in Director of Public Prosecutions v Boardman [1975] AC 421 at 444 where his Lordship posited that the possibility of concoction - not a probability or real chance of concoction - served to render such evidence inadmissible, Brennan and Dawson JJ held (at 300 - 301) that a trial judge should exclude similar fact evidence unless he is satisfied that there is no real chance that it is the product of a cause common to the witnesses. Mason CJ, Wilson and Gaudron JJ reached the same conclusion (at 296) stating that the admissibility of similar fact evidence in cases involving allegations of sexual offences against several persons depends on that evidence having a probative value which is absent if the evidence is reasonably explicable on the basis of concoction.
57 As Mason CJ, Wilson and Gaudron JJ observed (at 297):
"On the other hand, if the depositions or the statements indicate that the complainants have a sufficient relationship to each other and had opportunity and motive for concoction then, as a matter of common sense and experience, the evidence will lack the degree of probative value necessary to render it admissible."
58 The decision in Hoch v The Queen (supra) is not authority for the proposition that evidence which is affected by collaboration or collusion should be excluded from evidence or, if admitted, should not be relied upon. The quality of the evidence was relevant only to whether it could properly be admitted as similar fact evidence. If the similarity could be the result of collaboration it did not meet the test for admissibility and, as that was the only basis upon which the separate charges could be heard together, it was necessary to order separate trials. Indeed, the practical effect of the decision was that the evidence of the witnesses would be put before the court at separate trials. If the appellant's interpretation of the decision in Hoch v The Queen (supra) were correct, the evidence of the complainants would be inadmissible or would be excluded in the exercise of the judicial discretion, whether sought to be adduced at a joint or separate trial.
59 The appellant also relies on the case of Houda v The State of New South Wales [2005] NSWSC 1053; (2005) Aust Torts Reports 81-816 which sets out the reasons for decision of Acting Justice Cooper with respect to a civil action based on vicarious liability brought by the plaintiff against the State with respect to the actions of a number of police officers. The Statement of Claim alleged malicious prosecution, false imprisonment, wrongful arrest and assault. Three police officers gave evidence on behalf of the defendant. Two of the police witnesses indicated in their evidence that they prepared their statements at a time when a statement of the third police officer had been provided to them "as an aid memoir, to refresh my memory from the incident that had occurred".
60 One constable said she had read the other statement when she prepared her statement. She further stated under cross-examination that if she did not think it was right, "there is no way it would be in my statement, it's not what I saw or heard or thought was correct. That's the only thing in my statement, what's correct".
61 The third police officer agreed in his evidence that he gave a copy of his statement or provided access to his notebook to each of the other police witnesses. He did this because he assumed the plaintiff was going to plead "not guilty" and he wanted them to do their statements.
62 In making his findings of fact the learned trial Judge made the following comments (at [246] - [248]):
"All of the police officers said that they saw nothing wrong with using the notebook or statement of another police officer in order to assist them in preparing their own statements. They emphasised that it was merely to help them refresh their memory and if something was said with which they did not agree they would not have adopted it as part of their own statement.
The fact, however, is that what each of the officers was doing was not writing down something that was his/her own independent recollection. What they were doing was accepting the recollection and statements of Constable Stebbing as their own recollection. This practice overlooks the fact that in relying upon another officer's statement as to the details of conversations there is a real danger of it being accepted as correct even though the personal recollection of the writer of the statement may be unclear or slightly different.
Furthermore, the value of evidence as corroboration is seriously diminished when that evidence is all based upon a statement of the witness sought to be corroborated."
63 That is the only reference in the judgment to the issue of witness statements being prepared in collaboration with other witnesses. It is apparent that Cooper AJ was not dealing with the issue of admissibility of the evidence, only of weight and whether he was prepared to rely on the evidence. Further, in his reasons for decision Cooper AJ did not refer to any cross-examination or other evidence which supported his interpretation of the quality of the evidence, nor did he refer to any questions asked to address that issue. It is the case that his Honour's view of the witnesses may well have affected his conclusions on how the other statements came into existence and the relevance of that in relation to the credibility of each particular witness.
64 In my view, the decision in Houda v The State of New South Wales (supra) does not support the appellant's position. Indeed, it supports the respondent's view that the circumstances of the preparation of a witness' statement is relevant only to weight and credibility and will be one of a number of relevant factors.
65 All evidence which is sufficiently relevant to the issue before the court is admissible: Hollington v Hewthorn and Co Ltd [1943] KB 587 at 594 per Goddard LJ. As noted above, there is a distinction between the admissibility of evidence and the weight to be attached to it, although the weight of evidence may effect its admissibility: see R v Quin [1962] 2 QB 245 at 257. Further in Cross on Evidence (7th Aust ed) at [1540] the learned author observed that the courts rightly take the view that the degree to which an item of evidence is relevant to an issue diminishes in proportion to the likelihood of evidence being manufactured. Reference is made to the decision of the Court of Appeal of England in Corke v Corke [1958] 1 All ER 224 where the husband petitioned divorce on the grounds of adultery. The wife having been found in the co-respondent's bedroom, when challenged by the husband the wife and the co-respondent denied adultery. Shortly after, they phoned a doctor with a request that he should examine them in order to certify that recent intercourse had not taken place. The doctor did not perform the examination because, in his view, it would have been useless. A majority of the Court of Appeal considered that evidence of the phone conversation ought not to have been admitted by the trial judge, principally on the ground that the wife and co-respondent might have prepared themselves for the examination, or been aware of its inutility, with the result, in either case, that they would simply have been manufacturing evidence. However, based on that reasoning, it could be said that the exclusion had more to do with the rule against self-serving statements than the concern that the evidence might have been manufactured. In this case there was no evidence before the court that the evidence was manufactured.
66 In Palmer v The Queen [1998] HCA 2; (1998) 193 CLR 1 at [55] McHugh J observed that, in general, evidence of a relevant fact is excluded only when it infringes some policy of law: see also Cross on Evidence (supra) at [1570] which refers to infringing any of the exclusionary rules that may be applicable. However, in R v Dietrich [1992] HCA 57; (1992) 177 CLR 292, on which the appellant relies, the High Court re-stated the fundamental principle of our criminal justice system that every accused has a right to receive a fair trial according to law: per Mason CJ and McHugh J at 299; per Toohey J at 353; per Gaudron J at 362. As Deane J observed (at 326) the requirement of fairness transcends the content of more particularized legal rules and principles and provides the ultimate rationale and touchstone of the rules and practices which the common law requires to be observed in the administration of the substantive criminal law.
67 In this context counsel for the appellant referred the Court to the decision of the High Court in Bunning v Cross [1978] HCA 22; (1977) 141 CLR 54 and in Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 which deal with the discretion to exclude evidence because of the way in which it has been obtained or has come into existence. In Bunning v Cross (supra) the High Court dealt with the admissibility of illegally procured evidence. The High Court in Ridgeway v The Queen (supra) (at 37) relied on the principle in Bunning v Cross (supra), by way of analogy, to recognise a discretion to exclude evidence of an illegally procured offence, or an element of it. Mason CJ and Deane and Dawson JJ decided that the considerations of "high public policy" referred to in Bunning v Cross (supra) which justify the existence of the discretion to exclude particular evidence in the case where it has been unlawfully obtained, were also applicable to support the recognition of a more general discretion to exclude any evidence of guilt in the case where the actual commission of the offence was procured by unlawful conduct on the part of law enforcement officers for the purpose of obtaining a conviction: at 31 - 32. Mason CJ, Deane and Dawson JJ considered the reception of the evidence by the courts as a critical step in the obtaining by law enforcement officers of curial advantage which is the objective of the unlawful conduct: at 32.
68 Of course, in this case, there is no suggestion that any issue of illegality arises from or is involved in the conduct of the two police officers in preparing their statements of evidence. An express finding was made by the Magistrate to the contrary. However, in Ridgeway v The Queen (supra) the Court also addressed the issue of whether the discretion to exclude evidence extends to circumstances of impropriety. Although it was unnecessary to resolve this issue for the purposes of determining the case before it, Mason CJ, Deane and Dawson JJ concluded that impropriety could also provide the basis for excluding evidence in the exercise of the discretion: at 36. Their Honours considered that circumstances can conceivably exist in which a law enforcement officer intentionally brings about the opportunity for the commission of a criminal offence by conduct which is not criminal but which is quite inconsistent with the minimum standards which society should expect and require of those entrusted with powers of law enforcement. The decision in Bunning v Cross (supra) is said, again by analogy, to support the conclusion that the discretion to exclude evidence of an offence or an element of an offence procured by unlawful conduct extends to evidence of an offence or an element of an offence procured by conduct which, while not unlawful, is improper: at 36.
69 The basis of the conclusion is stated to be found in the case of R v Ireland [1970] HCA 21; (1970) 126 CLR 321 at 334 - 335, where the public policy discretion had its origin, in particular in the judgment of Barwick CJ where it was made clear that the discretion to exclude evidence on public policy grounds extended to evidence obtained by "unfair" as well as "unlawful" conduct on the part of law enforcement officers. Barwick CJ said (at 334):
"Whenever such unlawfulness or unfairness appears, the judge has a discretion to reject the evidence. He must consider its exercise. In the exercise of it, the competing public requirements must be considered and weighed against each other. On the one hand there is the public need to bring to conviction those who commit criminal offences. On the other hand there is the public interest in the protection of the individual from unlawful and unfair treatment. Convictions obtained by the aid of unlawful or unfair acts may be obtained at too high a price. Hence the judicial discretion."
70 In Bunning v Cross (supra) Stephen and Aickin JJ plainly accepted (at 75) that the discretion extended to "unfair ... conduct on the part of the authorities". However, the phrase "improper conduct" was considered by Stephen and Aickin JJ (at 75) to be preferable to the term "unfair" and in subsequent cases "impropriety" has been the preferred term. It is now well accepted that the principle in Bunning v Cross (supra) applies also to cases of improper conduct: see Cleland v The Queen [1982] HCA 67; (1982) 151 CLR 1 at 16 - 17. McHugh J, in Ridgeway v The Queen (supra) (at 82), stated the principle in these terms:
"A trial judge has a discretion to exclude evidence obtained by unlawful or improper means irrespective of whether the admission of the evidence would be unfair to the accused. The discretion to exclude such evidence is grounded in public policy."
71 The term "impropriety" lacks the precision of "illegality". Possibly because of the wide range of conduct which can constitute impropriety and the fact that it involves a subjective judgment, Mason CJ, Deane and Dawson JJ in Ridgeway v The Queen (supra) placed the following qualification on the term in this context (at 37):
"The most that can be said is that the stage of impropriety will be reached in the case of conduct which is not illegal only in cases involving a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances, including, amongst other things, the nature and extent of any known or suspected existing or threatened criminal activity, the basis and justification of any suspicion, the difficulty of effective investigation or prevention and any imminent danger to the community."
72 In Norton v R (No 2) (2001) 24 WAR 488, Roberts-Smith J (with whom Wallwork J and Pidgeon AUJ agreed) set out the principles of admissibility, in the context of confessional evidence, in the following terms (at 521 - 522):
"A voluntary confession may be excluded in the exercise of the discretion on the ground of unfairness to the accused (McDermott (at 512-513), per Dixon J). This is not a sanction against the conduct of the police officers: see R v Lee (at 154). The question is whether the reception on an accused's trial of evidence obtained by illegal or improper methods would be unfair to him: see Cleland (at 18) per Deane J. The exercise of the discretion is therefore to be governed by the effect of the illegality or impropriety rather than the inherent nature of the police conduct: see Swaffield (at 174) per Brennan CJ."
73 Roberts-Smith J also noted the view expressed by Brennan CJ in Duke v The Queen [1989] HCA 1; (1989) 180 CLR 508 at 512 and in Foster v The Queen (1993) 67 ALJR 550 and by Mason CJ in Van der Meer v The Queen [1988] HCA 56; (1988) 62 ALJR 656 that the exclusion of a confession as a matter of public policy should be regarded as also falling for consideration under the fairness discretion.
74 In Question of Law Reserved (No 1 of 1998) (1998) 70 SASR 281 the South Australian Supreme Court observed (at 287) that there is no doubt that, in the exercise of the discretion, a court can exclude evidence other than confessional evidence. However, Doyle CJ, with whom Cox and Matheson JJ agreed) noted (at 287) that it is equally clear that the discretion permits the exclusion of evidence only if that evidence was obtained by unlawful or improper conduct. Doyle CJ explained (at 287 - 288) that the rationale underlying the exercise of the discretion to exclude evidence is that considerations of public policy may require the court to prevent the prosecution from gaining "curial advantage" by using improperly or unlawfully obtained evidence, and may require the court not to appear to approve of the illegality or impropriety by which the evidence was obtained, by allowing the use of the evidence as part of the prosecution case. Consequently, according to his Honour, if the evidence in question was not obtained by unlawful or improper means, this discretion does not arise.
75 However, it has long been established that, once a court is seized of criminal proceedings, it has control of them and may, in a variety of circumstances, reject relevant and otherwise admissible evidence on discretionary grounds, for example where its prejudicial effect outweighs its probative value: Ridgeway v The Queen (supra) at 33 per Mason CJ, Deane and Dawson JJ; Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 523, 541; Alexander v The Queen [1981] HCA 17; (1981) 145 CLR 395 at 402 - 403, 417 - 418, 428 - 430, 435; Sutton v The Queen [1984] HCA 5; (1984) 152 CLR 528 at 534, 558 - 559, 565. Irrespective of the circumstances and the particular test or tests to be applied in assessing whether evidence should be excluded, it is for the party which asserts that the evidence should be excluded to establish, often by cross-examination on a voir dire, that exclusion is warranted.
76 Before the effect of these principles can be determined, it is necessary to identify the precise conduct of which complaint is made. In particular, because the alleged impropriety is said to be the fact of collaboration, it is important to also consider whether the "quality" of the evidence has been impaired by the process adopted or whether there has been an attempt by the police officers to manipulate the evidence by the process adopted.
77 Both officers were witnesses to the same incident although at different times they had different roles and, necessarily, different perspectives. Both officers stated that they discussed the case after it happened and before making their statements. No questions were asked about this discussion and there is no evidence of the nature and purpose of the discussion and what effect, if any, it had on the individual recollections of the two officers. In those circumstances, I consider it cannot be said that the discussion was part of a deliberate process of ensuring that the respective statements were identical in terms and also that the evidence based on the statements was identical.
78 Constable Herangi's evidence was that he prepared his statement and sent it to Constable Paul. He stated that he had not read Constable Paul's statement and Constable Paul did not make a contrary assertion. On that basis, there is no conduct on the part of Constable Herangi which affects the content and quality of his evidence. Unlike Constable Paul, Constable Herangi did not have before him another statement of the events which might impact on his own recollection. Therefore, putting to one side the initial discussion with Constable Paul, in determining this appeal it must be kept in mind that the evidence of Constable Herangi was not affected by being provided with a statement on which to model his own statement. Hence, his evidence could not be rejected on that basis and was properly before the Court. Constable Herangi may be said to have collaborated with Constable Paul by providing her with a copy of his statement, but that "collaboration" had no impact on his statement or on his evidence. It was only Constable Paul who said in her evidence that she read Constable Herangi's statement, which she was provided with in electronic form, and typed her own statement over the top of it. Again, no questions were asked which were directed at determining the effect of this process on her evidence. There was, therefore, no evidence from which a conclusion could be drawn that the process resulted in Constable Paul giving evidence of something which she did not actually see, hear, or recollect, or that such was the purpose.
79 Of course, as I understand the submission, the concern with the practice of discussing an event with another witness, or being provided with a copy of the witness statement of another, is that such a process could result in a witness unintentionally adopting as his or her own recollection, the recollection of the other person. However, in my view, excluding evidence simply because of that potential is an inappropriate way of dealing with one of many factors that can affect the accuracy and reliability of a witness's evidence and which are usually dealt with in cross-examination and left to the tribunal of fact to determine. Whether the practice is sufficiently likely to cause a witness to inadvertently adopt the recollection of another, and therefore should be discouraged by rejecting the evidence, is something about which there is, in my view, insufficient information to justify such a serious consequence.
(iv) The deference given by appellate courts to the influence of demeanour on the assessment of credibility
80 In support of the appellant's submission that the evidence should be excluded or not relied upon, this court has been referred to the line of authority dealing with the reliance placed by appeal courts on the assessment of witnesses by the primary tribunal. In Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 the "trilogy of cases" which reiterated the High Court's earlier statements concerning the need for appellate respect for the advantages of a trial judge were identified in the joint judgment of Gleeson CJ, Gummow and Kirby JJ as Jones v Hyde [1989] HCA 20; (1989) 85 ALR 23 at 27 - 288, Abalos v Australian Postal Commission [1990] HCA 47; (1990) 171 CLR 167 at 179 and Devries v Australian National Railways Commission (1993) 177 CLR 472 at 479, 482 - 483: at [26]. Despite the judicial acceptance of the principle in Fox v Percy (supra) the majority did make the following observation (at [27]):
"The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute."
81 The High Court in Fox v Percy (supra) (see for example McHugh J at [71] and [90]) and in State Rail Authority and Earthline Constructions Pty Ltd (In Liq) [1999] HCA 3; (1990) 160 ALR 588 (see for example Kirby J at [68], [87] - [88]) did criticise the giving of undue deference to the influence of demeanour. However, as counsel for the respondent observed in his submissions, some Justices of the Court have more recently cautioned that the influence of demeanour should not be overlooked: see CSR Ltd v Maddalena [2006] HCA 1; (2006) 80 ALJR 458 at 492 per Callinan and Heydon JJ; but see contra Kirby J at 466 and Gleeson CJ at 462.
82 I have referred to this line of authority and the debate which has occurred as to the extent to which the principle of deference to the influence of demeanour should constrain an appellate court because of the emphasis placed on it in the submissions of the appellant. However, I fail to see how it impacts on this appeal. Obviously, if witnesses have collaborated to give a false impression of consistency then the tribunal at first instance is in no better position than an appellate court to determine issues of credibility. However, in this case, the Magistrate was well aware of the circumstances by which the witness statements were prepared and did not have a false or impaired impression of consistency. Further, armed with that knowledge, the Magistrate was the person in the best position to assess the credibility of the witnesses from the way in which they addressed this issue and the manner in which they gave their evidence. In any event, as I have noted, there was no evidence to suggest that any consistency was deliberately achieved through collaboration rather than as a result of having the same recollection.
83 If the proposition being put is that, because of the practice adopted by the witnesses in this case, the extent of which is not known, there is the potential for the court at first instance to be misled with respect to consistency and hence with respect to credibility, which would wholly undermine the principle set out in cases such as Devries v Australian National Railways Commission (supra), then I believe there is a short answer to that concern. Wherever the statements of corroborating police witnesses are identical, those witnesses can be questioned about the circumstances surrounding the preparation of the statements and the impact, if any, of the procedure adopted on the evidence given. This, in my view, is a standard approach where witnesses express matters in identical terms where some variation might be expected. The court at first instance will then have the relevant knowledge and will remain in the best position to assess credibility.
(iv) Conclusions on admissibility of the police evidence
84 Having considered the principles established by the authorities outlined above, I am of the view that the appellant has failed to discharge the onus of establishing that the evidence of the police witnesses should have been excluded from evidence. Establishing the fact of collaboration and the circumstances of the creation of Constable Paul's statement does not, in my view, achieve that result. In my opinion, applying the tests for admissibility outlined above to the evidence which was adduced at trial as to the circumstances in which the witness statements were created, would not result in the exclusion of the evidence. Indeed, with respect to the public policy test, it is necessary for the conduct of which complaint is made to be improper. Even if the conduct could be labelled improper, something of which I am not persuaded, it does not on the available evidence reach "a degree of harassment or manipulation which is clearly inconsistent with minimum standards of acceptable police conduct in all the circumstances": see Ridgeway v The Queen (supra) per Mason CJ, Deane and Dawson JJ at 37.
85 The discussion between the witnesses and the way in which Constable Paul's statement was prepared were, in my view, clearly relevant to the weight of the evidence of the police witnesses and matters to be considered by the Magistrate. The evidence was in fact treated by the Magistrate in that way and, in my view, no error occurred in adopting that approach.
86 There are many aspects of an event which it is necessary to include in a witness statement that are not contentious and can be variously expressed without there being any difference in meaning. Witness statements also include facts which are taken from other documents. Dates on which events occurred, dates and times of arrival and departure, reference to vehicle registration numbers and descriptions of items seized, are all examples of items of evidence which are often taken from running sheets or exhibit lists and other sources and included in statements for criminal trials. To expect each individual officer to go through source material and retrieve such information is, in my view, a waste of valuable time and scarce resources. Further, it is unfortunately but almost inevitably the case that any inconsistency, and I include in that term any difference in expressing the same proposition, will in many cases be the subject of extensive cross-examination. Presumably this is one of the reasons why some police witnesses prepare their statements in the way referred to by Constable Paul.
87 With respect to contentious matters, provided that police officers are aware that they may reproduce the recollection of another officer only if it accords with their own recollection, I can see no problem with using the statement of another officer as a template from which to produce their own statement. Constable Paul's knowledge and understanding of her responsibility to include in her witness statement only matters of which she had an actual recollection was not tested in cross-examination and there is, in my view, no reason to assume that she was unaware of such a fundamental point.
88 I consider the practice adopted to be a legitimate and efficient method of preparing witness statements, provided the content of the statement is in accordance with the particular officer's recollection of events; something which should be tested in cross-examination as it often is with lay witnesses.
89 Of course, if a witness is prepared to give false evidence in order to ensure that the witness's evidence is consistent with the evidence of another, there are many and varied ways of achieving that end. The giving of false evidence is something which may occur in any trial irrespective of the way in which witness statements are prepared and, in an adversary system, one of the purposes of cross-examination is to test the evidence and provide the tribunal of fact with information which allows it to determine the credibility of witnesses. In those circumstances, it seems to me that excluding evidence based on witness statements prepared in the way that Constable Paul prepared her statement because it could be used to achieve a false consistency is an approach which, if applied consistently, would severely and unjustifiably limit the evidence available for consideration by the tribunal of fact in criminal trials.
90 As I have noted, an application of the principles of admissibility referred to above to the evidence in this case would not, in my view, result in the exclusion of the evidence, nor in a conclusion that the evidence, although before the court, should not be relied upon.
91 Finally, in view of the observations I have made with respect to the evidence of Constable Herangi on the making of his statement, there was before the Court evidence of each element of the offence which was unaffected by the issues raised by this ground of appeal. Further, that evidence was accepted by the Magistrate who also noted that there was no suggestion that the witnesses had concocted evidence and in their collaboration produced a false story.
92 In relation to this ground of appeal, counsel for the appellant made a number of submissions relating to the Magistrate's decision to accept the evidence of the police officers. In my view, those submissions do not withstand scrutiny.
93 It is said that the Magistrate accepted the evidence of the two police officers without reserve or any explanation and without reminding himself of the comments that he had expressed when the submissions was made at the close of the prosecution case. It is the case that the Magistrate did not refer to or repeat any of the comments he had earlier made with respect to the circumstances in which Constable Paul's statement was made. However, those statements had only been made a short time earlier and I am not prepared to conclude that no consideration was given to those circumstances simply because no specific reference to them was made. It is implicit in the Magistrate's findings that, notwithstanding the fact that the two witnesses had discussed the event and Constable Paul had a copy of Constable Herangi's statement when she prepared her statement, he accepted their evidence. In circumstances where it was never suggested to either witness that, because of these factors, their evidence was inaccurate or untruthful, there was nothing to prevent the Magistrate from accepting that evidence.
94 The appellant also submits that the Magistrate dismissed the evidence of the accused without reasons. There is no substance to that proposition. As I have noted above, the Magistrate did indeed set out the reasons why he disbelieved the appellant. No attack has been made on those reasons and, in my opinion, nor could there be.
95 In this context, the appellant suggests that, to the extent that the Magistrate based any decision on the failure to call the accused's girlfriend, this was an error in itself. The appellant relies on the decision in Dyers v The Queen (2002) 210 CLR 285 where the High Court held (at 305 - 306 per Kirby J; at 292 per Gaudron and Hayne JJ); that, as a general rule, a Jones v Dunkel direction should not be given in a criminal trial, and the giving of such a direction in that case was found to be a material misdirection. That is because a defendant in a criminal trial is not bound to give evidence and is not obliged to prove his innocence. Consequently, as the basis of a Jones v Dunkel direction is that the person concerned not only could shed light on the subject but also would ordinarily be expected to do so, and as there can be no expectation that an accused will call any witness in a criminal trial, there can be no basis for the direction: see Gaudron and Hayne JJ at 292; see Callinan J at 328
96 In the course of his reasons for decision the Magistrate made the following statement:
"There is no evidence today from his girlfriend. She has not been called to give evidence to cast any light upon what happened".
97 That statement needs to be considered in the context of the appellant's evidence that his girlfriend did not notice that he had made contact with Constable Paul and also to the effect that she had been shocked and a bit surprised at what had happened with respect to the phone. In circumstances where the appellant gave hearsay evidence of his girlfriend's knowledge and reaction to certain events, it is understandable for the Magistrate to note that there would be no evidence from that source.
98 The Magistrate made no reference to drawing an adverse inference from the fact that the girlfriend has not been called. Neither am I able to discern from his reasons that he must have done so. In its context, I consider the reference to the appellant's girlfriend to be no more than an indication that no assistance can be obtained from that source in resolving the conflict in the evidence.
99 Another aspect of the appellant's submissions with respect to this ground of appeal related to the statement of the prosecutor that the prosecution evidence "is quite clear, it is corroborated". It is said that, in the context of this trial, where there was no independent or objective evidence of any sort, the prosecutor must have meant that the evidence of the two officers supported each other. This statement was made by the prosecutor at the commencement of his closing submission. It is apparent from the transcript that the Magistrate did not make any comments during the course of the closing submissions of either the prosecution or the defence. Therefore, it cannot be said that if the Magistrate did not reject this proposition, he must have relied on it. More significantly, in his reasons for decision the Magistrate neither referred to the prosecutor's submission nor mentioned the issue of corroboration. He did not purport to rely on the evidence of the police officers because of any consistency between the evidence of one witness and that of the other. I therefore attach no significance to the fact that such a proposition was put to the Court.
100 However, I do not accept that there was no corroboration. Evidence which is admissible, relevant to the evidence requiring corroboration and (if believed) confirmatory of that evidence in a material particular, is capable of being corroborative and, when believed, is corroboration. The word "corroboration" means no more than evidence tending to confirm, support or strengthen other evidence: 11 Halsbury's Laws of Australia (4th ed) at [454]; Director of Public Prosecutions v Hester [1972] 3 All ER 1056 at 1070 per Lord Pearson; R v Baskerville [1916] 2 KB 658 at 667. However, in order that evidence may amount to corroboration it must be extraneous to the witness who is to be corroborated: R v Whitehead [1929] 1 KB 99 at 102 per Lord Hewart CJ. Consequently the evidence of a witness cannot be corroborated by the evidence of another witness of what he or she was told by the first witness.
101 Whether or not Constable Paul's evidence was corroborative of Constable Herangi's evidence depended on whether, notwithstanding having discussed the incident and having been provided with a copy of Constable Herangi's statement, Constable Paul's evidence was an account of her own recollection of events. Unfortunately, whether the information from Constable Herangi refreshed Constable Paul's own recollection of events or whether she simply accepted and repeated Constable Paul's account was never canvassed in cross-examination. The Magistrate was left to draw his own conclusions based on hearing and observing the evidence of the witness. However, he clearly accepted Constable Paul's evidence which, in the circumstances, I consider he was entitled to do.
102 Counsel for the appellant further submitted that it was "ironical" that the prosecutor suggested that "the accused has concocted his version of events". Reference was also made to the fact that the prosecutor made statements from the bar table about police procedures with respect to the situation where two officers walk together whilst armed. It certainly was not appropriate for such matters to be raised by the prosecutor where they had not been addressed in evidence. However, again, the Magistrate makes no mention of such matters when giving his reasons. In my view, it cannot be assumed, and there was no basis upon which to conclude, that they had any impact on his determination. As to the criticism of the submission that the accused concocted his version of events, I consider this was a submission which the prosecution were quite entitled to make in view of the nature of the conflict in the evidence which could not readily be explained by a difference in perspective or recollection. Indeed, it was a submission which the Magistrate accepted as is evident from his specific finding that he did not accept the evidence of the appellant. It was also a submission which the defence were entitled to make in relation to the prosecution witnesses but elected not to do so.
103 In my view, these matters have no substance and do not persuade me that there is any substance to this ground.
104 For all these reasons I would dismiss this ground of appeal.
105 In this ground the appellant alleges error by the Magistrate in discounting the evidence of Stephen Heanes. It is said that there was no basis on which the Magistrate could disregard Mr Heane's evidence. Reference is also made to the fact that the evidence of Mr Heanes was that he heard the whole of the relevant conversation and the second expletive was not said.
106 As set out above, Mr Heanes stated that he heard the appellant say "I'm on the fucking phone" but he did not hear anything after that apart from a lot of aggressive noise from other people. Mr Heanes did not say that he heard the whole of the relevant conversation. He simply stated what he did hear. There is a significant difference between the two circumstances. Further, the Magistrate did not disregard Mr Heanes' evidence. He concluded that the evidence of the appellant's father did not particularly assist because he had not heard all of what was said. The witness acknowledged that there was background noise. There are other factors which, logically, may affect whether a caller hears all of what is said by a person talking to him on a mobile phone, such as whether the person was at all times speaking directly into the phone and, in the circumstances of this case, at what point the phone was taken off him. I do not accept the proposition that, because Mr Heanes heard background noises, it was not logically possible to conclude that he had heard only part of the conversation. Presumably the basis of this proposition is that, if he heard the background noises he would have heard the words alleged to have been said by the appellant. That proposition overlooks the factors mentioned above and the fact that background noise can drown out other sounds. The fact that there exists other explanations for why Mr Heanes may not have heard any other words indicates the flaw in the proposition that it is not logically possible to discount his evidence. Ultimately, it was a matter for the Magistrate to determine on the whole of the evidence before him.
107 For these reasons I am of the view that it was open on the evidence for the Magistrate to conclude that Mr Heanes had not heard all of what was said. Such a finding would not involve disregarding the witness's evidence.
109 The appellant alleges that the conduct of the appellant as found by the Magistrate could not amount to disorderly conduct because the language, though impolite, was not insulting, offensive or threatening in its proper, actual and contemporary context and fell well short of conduct requiring the sanction of the criminal law and attracting a significant penalty under s 74A of the Criminal Code. In essence, the submission made by counsel for the appellant was that the conduct was too trivial to be disorderly, irrespective of the number of times the offending word was said and the fact that the language was used to a person in a position of authority. Counsel for the appellant submitted that the standard for disorderly conduct ought to be examined and determined in the light of the High Court's decision in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 and especially the comments of Gleeson CJ at [11] - [17].
110 The appellant also relies on the fact that no independent witness was called to indicate any distress, disquiet or discomfort about the language used.
111 The comments of Gleeson CJ in Coleman v Power (supra) to which the Court was directed included the following (at [12]):
"Concepts of what is disorderly, or indecent, or offensive, vary with time and place, and may be affected by the circumstances in which the relevant conduct occurs. The same is true of insulting behaviour or speech. In the context of legislation imposing criminal sanctions for breaches of public order, which potentially impairs freedom of speech and expression, it would be wrong to attribute to Parliament an intention that any words or conduct that could wound a person's feelings should involve a criminal offence. At the same time ... a group of thugs who, in a public place, threaten, abuse or insult a weak and vulnerable person may be unlikely to provoke any retaliation, but their conduct, nevertheless, may be of a kind that Parliament intended to prohibit."
112 The following extract from Gleeson CJ's judgment is said to support a view that, as police officers are meant to be less sensitive than the average member of the public, language which may be offensive to the public may not be offensive when used in relation to police officers and heard only by them (at [16]):
"The fact that the person to whom the words in question were used is a police officer may also be relevant, although not necessarily decisive. It may eliminate, for practical purposes, any likelihood of a breach of the peace [Marsh v Arscott (1982) 75 Cr App R 211]. It may also negate a context of victimisation. As Glidewell LJ pointed out in Director of Public Prosecutions v Orum [(1989) 1 WLR 88 at 93] it will often happen that 'words and behaviour with which police officers will be wearily familiar will have little emotional impact on them save that of boredom'. But police officers are not required to be completely impervious to insult. A public accusation of corruption made about a police officer to his face, even in the context of a political protest or demonstration, is a form of conduct that a magistrate is entitled to regard as a serious contravention of public order by contemporary standards of behaviour."
113 These comments are to be understood in the context of the issues under consideration in Coleman v Power (supra). The High Court were there considering s 7 of the Vagrants, Gaming and Other Offences Act (Qld) ("the Vagrants Act") which provided that any person who, in a public place or so near to any public place that any person who might be therein, and whether any person was therein or not, could view or hear used any threatening, abusive or insulting words to any person should be liable to a penalty. A man distributing in a mall pamphlets containing charges of corruption against several police officer was approached by a police officer who demanded a pamphlet. The man refused and in a loud voice identified the officer by name and described him as a corrupt police officer. He was then arrested and later convicted of using insulting words to a person in a public place contrary to s 7 of the Vagrants Act. The Magistrate rejected a defence that the defendant was not guilty of the charge because his statements were part of a communication about government or political matters and were within the immunity from legislative action formulated in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. The appellant was convicted of using insulting words to a person in a public place, distributing printed matter containing insulting words and two offences of assaulting a police officer in the execution of his duty. On appeal, the Court of Appeal of the Supreme Court of Queensland set aside the conviction for distributing printed matter containing insulting words.
114 In the High Court McHugh, Gummow, Kirby and Hayne JJ held (Gleeson CJ, Callinan and Heydon JJ dissenting) that the conviction for using insulting words to a person in a public place should be set aside. McHugh J based his decision on the grounds that the word "insulting" in s 7(1)(d) of the Vagrants Act required proof, by direct evidence or inference, that the words used had a personal effect on the person or persons who heard them, but otherwise should have its natural and ordinary meaning: at 40. It was said to be the inclusion of the qualifying words "to him" in s 7(1)(d) which resulted in McHugh J reaching that conclusion: at 39 - 40. His Honour added (at 40):
"However, I can see no reason for otherwise limiting the natural and ordinary meaning of 'insulting'. The provision imposed its own limitations: the insulting words had to be directed to a person and they had to be used in or near a public place. Accordingly, if the words were used in or near a public place and were calculated to hurt the personal feelings of a person and did affect the feelings of that person, they were insulting words for the purpose of s 7(1)(d)."
115 McHugh J rejected the appellant's proposition that s 7(1)(d) was further limited by an additional requirement that the insulting words should be likely to occasion a breach of the peace: at 41. His Honour drew a distinction between enacting the provision to prevent breaches of the peace from occurring and requiring proof of a breach or potential breach of the peace as an element of the offence. McHugh J considered that there was nothing in the terms of the provision that indicated a breach of the peace requirement: at 41.
116 The second basis for McHugh J's decision (at 33) to set aside the conviction was that s 7(1)(d) was capable of burdening communications about government or political matters and was not reasonably appropriate and adapted to achieving a legitimate end in a manner consistent with the system of representative government enshrined in the Commonwealth Constitution. Hence s 7(1)(d) was invalid in so far as the words "or insulting" burdened the communication of political and government matters and should be read down accordingly: at 54 and 56. This conclusion further underlines the fact that the comments made in the course of the judgment related specifically to the word "insulting" rather than to all such descriptive terms.
117 Gummow and Hayne JJ, with whom Kirby J agreed, held that the conviction should be set aside on the ground that, in so far as it referred to insulting words, s 7(1)(d) proscribed words which were directed to hurting an identified person and were provocative, in the sense that either they were intended to provoke unlawful physical retaliation from either the person to whom they were directed or some other person who heard the words uttered. The legislative history of the relevant provision was given close consideration (at 68 - 70) and particular note was made of the departures from the model provided by earlier and related legislation omitting any reference to breach of the peace and also by dealing with the use of threatening, abusive or insulting words separately from behaving in a riotous, violent, disorderly, indecent, offensive, threatening or insulting manner. It also required that the words be used to "any person": at 70.
118 Gummow and Hayne JJ held (at 74) that the combination of four factors required the section to be given a confined operation. Firstly, in construing s 7(1) it was necessary to notice first, and most obviously, that it creates criminal offences: at 73,74. Secondly it was said to be obviously necessary to read "insulting" in the contexts in which it is used in the section: at 73, 74. The third factor was the requirement that the words be used to a person: at 74. The final factor was the requirement that the words be used in, or within hearing of, a public place: at 74.
119 Gummow and Hayne JJ explained (at 74) that those four factors, standing alone, suggest that the "insulting" words that are proscribed are those which are directed to hurting an identified person and are words which, in the circumstances in which they are used, are provocative, in the sense that either they are intended to provoke unlawful physical retaliation from either the person to whom they are directed or some other who hears the words uttered. Whether words are insulting was said to turn on the assessment of whether, in the circumstances in which they were used, they were either intended to provoke unlawful physical retaliation, or were reasonably likely to do so: at 74.
120 A consideration of this statement in the context of the four factor referred to above and of the balance of the relevant part of the joint judgment of Gummow and Hayne JJ indicates that the requirement to establish that the words spoken were intended to provoke unlawful physical retaliation from some person, or were reasonably likely to do so, is based on the inclusion in s 7(1) of the requirement that the words be used "to" another person: at 76. Their Honours observed (at 76):
"By contrast, the requirement that 'threatening, abusive, or insulting words' be used to a person demonstrates that s 7(1)(d) is not directed simply to regulating the way in which people speak in public. No crime would be committed by uttering threats to, or abuse or insults about, some person who is not there to hear what is said ... That being so, the proscription of the use of insulting words to another, and for that matter the proscription of engaging in insulting behaviour, must find support in more than the creation and enforcement of particular standards of discourse and behaviour in public. Making criminal the use of certain kinds of words to another can be explained only by reference to the effect on, or the reaction of, the person to whom the words are directed. It can be explained only by the provocation offered."
121 Gummow and Hayne JJ considered (at 77) that it is only if the words "abusive and insulting" are read as being words which, in the circumstances in which they are used, are so hurtful as either they are intended to, or they are reasonably likely to, provoke unlawful physical retaliation, is there a public purpose to the regulation of what is said to a person in public.
122 Having considered the constitutional issue, the conclusion drawn by their Honour's (at 69) was that s 7(1)(d) was not invalid. However, it was held to have a more limited operation than it was understood to have in the courts below. Gummow and Hayne JJ explained as follows (at 79):
"In particular, it does not suffice for the person to whom the words were used to assert that he or she was insulted by what was said. And it does not suffice to show that the words used were calculated to hurt the self-esteem of the hearer. Where, as here, the words were used to a police officer, then unless more is shown, it can be expected that the police officer will not physically retaliate. It follows that unless there is something in the surrounding circumstances (as, for example, the presence of other civilians who are affected by what is said) the bare use of words to a police officer which the user intends should hurt that officer will not constitute an offence. By their training and temperament police officers must be expected to resist the sting of insults directed to them. The use of such words would constitute no offence unless others who hear what is said are reasonably likely to be provoked to physical retaliation."
123 As there was no evidence before the Magistrate which would show that the words used were intended or were reasonably likely to provoke physical retaliation, the charge should have been dismissed: at 79.
124 Kirby J, referring to the approach taken by him in R v Hughes (2000) 202 CLR 535 at 565 - 566, noted that, in considering the validity or otherwise of the legislation it is necessary at the threshold to elucidate the meaning and operation of the provision in question: at 84. His Honour identified (at 85) the question as whether, as stated in the joint reasons, the impugned words must be intended, or reasonably likely, to provoke unlawful physical retaliation to come within the scope of "insulting" or whether, as stated in the several reasons of Gleeson CJ, McHugh, Callinan and Heydon JJ, "insulting" is not so confined. Kirby J identified the conclusions drawn by these judges by positing the following questions (at 85):
"Is it sufficient that the impugned words are potentially provocative or incompatible with civilised discourse (Callinan J at 108-9), liable to hurt the personal feelings of individuals (Heydon J at 118), or contrary to contemporary standards of public good order (Gleeson CJ at 26)?"
125 Kirby J concluded (at 87) that the fact that the section imposes a criminal sanction, together with the public purposes of the section, suggests a need to adopt a more restrictive reading. Further, his Honour considered the situation of the word "insulting" in a concatenation of words that include "abusive" and "threatening" together with the use of the preposition "to", also suggested the narrow interpretation. Consequently, Kirby J concluded (at 87) that the construction explained in the joint reasons should be preferred. Thus, "insulting" means words which are intended or likely to provoke unlawful physical retaliation.
126 Further, Kirby J reached (at 99) the same conclusion as stated in the joint reasons as to the validity of s 7(1)(d) of the Vagrants Act, although by somewhat different reasoning which, for present purposes, it is not necessary to discuss.
127 In concluding that the relevant part of the section had been misinterpreted by the Courts and misapplied in the appellant's case, Kirby J expressed the view (at 99) that there was no prospect that the respondent police officers would be provoked to unlawful physical violence by the words used. At least, his Honour said, the law would not impute that possibility to police officers who, like other public officials, are expected to be thick-skinned and broad shouldered in the performance of their duties. Kirby J also considered that others nearby would not be so provoked to unlawful violence or the risk thereof against the appellant by words of the kind that he uttered.
128 With respect, Kirby J, as did Gummow and Hayne JJ in their joint reasons, fails to consider that others present may be encouraged to act violently, or in a disorderly manner, towards police officers by the appellant's use of such words to a police officer.
129 I believe it is apparent from this analysis of the reasons of the majority that the inclusion in s 7(1)(d) of the Vagrants Act of the qualifying words "to any person" was a fundamental part of the conclusion that, for words to be insulting they must be intended or reasonably likely to provoke an unlawful physical retaliation. Hence, in order to establish a breach of the provision there must be evidence, direct or inferential, that the words used had a personal effect on the person or persons who heard them. Such a requirement is, in my view, far easier to accept where the provisions requires the language to be used "to" a person. Whether something is insulting to a person depends to a far greater extent on the person to whom it is said or those persons who may reasonably be expected to hear it and hence may require some evidence of the impact of the words on those person. In that sense, there is more of a subjective aspect to the impact of the language. However, a provision which prohibits language of a particular type and deems it to be disorderly does not logically require the views of those present to establish the nature of the language. It is the objective nature of the language, according to then current mores, which is the relevant consideration.
130 Further, in my view, it is in that limited context of the precise wording of s 7(1)(d) of the Vagrants Act that comments were made in Coleman v Power (supra) to the effect that there would be no prospect that police officers would be provoked to unlawful physical violence by an insult: per Kirby J at 99; per Gummow and Hayne J at 79.
131 However, the terms of s 74A of the Criminal Code are not identical to those of s 7(1)(d) of the Vagrants Act. Section 74A is in the following terms:
"74A. Disorderly behaviour in public
(1) In this section -
(a) to use insulting, offensive or threatening language_;_ and
(b) to behave in an insulting, offensive or threatening manner.
(2) A person who behaves in a disorderly manner -
(a) in a public place or in the sight or hearing of any person who is in a public place_;_ or
(b) in a police station or lock-up,
is guilty of an offence and is liable to a fine of $6 000.
(3) A person who has the control or management of a place where food or refreshments are sold to or consumed by the public and who permits a person to behave in a disorderly manner in that place is guilty of an offence and is liable to a fine of $4 000.
(4) It is lawful for any person to arrest without warrant any person who is, or whom the person suspects, on reasonable grounds, to be, in the course of committing an offence under this section."
132 The first observation which can be made about the section is that, contrary to the legislation considered in many of the authorities referred to by the parties, some of which I will refer to shortly, the language used need not be obscene in order to amount to disorderly conduct. Secondly, the provision is not drafted to require the language to be directed to a person which in Coleman v Power (supra), as I have noted, was a fundamental issue.
133 Because the decision of the majority in Coleman v Power (supra) was based, to a considerable extent, on factors not applicable to s 74A of the Criminal Code, I believe some assistance can be obtained in interpreting s 74A from the reasons of the minority where little, if any significance was placed on such factors.
134 Gleeson CJ observed (at 24) that it is open to Parliament to form the view that threatening, abusive or insulting speech and behaviour may in some circumstances constitute a serious interference with public order, even where there is no intention, no realistic possibility, that the person threatened, abused or insulted, or some third person, might respond in such a manner that a breach of the peace will occur. Further, Gleeson CJ noted (at 25) that concepts of what is disorderly, or indecent, or offensive, vary with time and place, and may be affected by the circumstances in which the relevant conduct occurs. The same was said to be true of insulting behaviour or speech. However, Gleeson CJ's view was that, in the context of legislation imposing criminal sanctions for breaches of public order, which potentially impairs freedom of speech and expression, it would be wrong to attribute to Parliament an intention that any words or conduct that could wound a person's feelings should involve a criminal offence. And yet, Gleeson CJ considered (at 25) that, in a public place, threats, abuse or insults by a group of people with respect to a week and vulnerable person may be unlikely to provoke a retaliation but that conduct, nevertheless, may be of a kind that Parliament intended to prohibit.
135 In this context Gleeson CJ addressed offensive behaviour, a term used in s 74A of the Criminal Code and not used in s 7(1)(d) of the Vagrants Act, but one often used together with terms such as "threatening, abusive and insulting". His Honour referred (at 25 - 26) to the decision of Kerr J in Ball v McIntyre (1966) 9 FLR 237 to the effect that what was involved in these terms had to be behaviour that would produce, in the reasonable person, an emotional reaction (such as anger, resentment, disgust or outrage) beyond a reaction that was no more than the consequence of a difference of opinion.
136 The definition of insulting words given by Gleeson CJ (at 26) was that the language in question must be not merely derogatory of the person to whom it is addressed; it must be of such a nature that the use of the language, in the place where it is spoken, to a person of that kind, is contrary to contemporary standards of public good order, and goes beyond what, by those standards, is simply an exercise of freedom of express opinions on controversial issues. It was at this point that Gleeson CJ made the observation (at 26 - 27), referred to above, that the fact that the person to whom the words in question were used is a police officer may be relevant rather than decisive, although police officers are not required to be completely impervious to insult.
137 In determining that the legislation was valid, Gleeson CJ stated (at 32) that he was unable to conclude that the legislation, in its application to the case, was not suitable to the end of maintaining public order in a manner consistent with an appropriate balance of all the various rights, freedoms and interests, which require consideration.
138 Contrary to the view expressed on behalf of the applicant, I can see nothing in the judgment of Gleeson CJ, in particular the passages at pages 25 - 27 to which counsel referred, which supports a departure from the way in which offences of this type have been dealt with in Western Australia.
139 Callinan J concluded (at 108) that the relevant section should not be construed or confined to insulting words which are likely or intended to provoke a breach of the peace. However, the fact that words may have done so may well provide powerful evidence of their insulting nature. Callinan J added (at 111 - 112):
"Many people use and resort to public places. These include people of both tender and advanced years, inarticulate people unable to make an effective response, and people of greater and lesser sensitivities. The fact that some may be robust and sufficiently restrained to ignore, or to respond but not in kind, or turn the other cheek to offensive statements, is not a reason for risking the peace, the avoidance of which is the legitimate end of the section. The Courts should not be called upon to weigh up those sensitivities, to make assumptions, for example, about the relative vulnerability of soldiers, or police officers, or tradespeople, or clergy, or mothers, or husbands, or otherwise. Who such persons are, and what they do, may be relevant to the question whether the words are insulting in fact, but have nothing to say about the construction of the section otherwise, particularly whether the notion of a need for the likelihood of the realisation of a risk should be read into it. It is on the risk, and not on whether it may in fact be realised that emphasis is to be placed ... The Queensland legislature has taken the view that the risk to the peace from insulting words is simply not worth running. That is a view peculiarly for a legislature and not a court to form.
What the section seeks to further therefore is peaceable, civilised passage through, and assembly and discourse in public places free from threat, abuse or insult to persons there. In that sense, the section seeks itself to advance a valuable freedom. Free speech as this Court said in Lange has never been an absolute right. Various constraints upon it have always been essential for the existence of a peaceable, civilised, democratic country."
140 Callinan J noted (at 114) that, although the police officer concerned may not in fact have been provoked, that did not avail the appellant. The fact that Constable Power was a police officer and unlikely to retaliate was also said not to avail the appellant. In Callinan J's view, the words used inevitably produced a risk of that but that was not the only risk. His Honour considered there to be a further risk that other people present, or in the vicinity, might take exception to, and be moved to take matters into their own hands, because a constable was being insulted.
141 The final judgment in Coleman v Power (supra) was of Heydon J who considered (at 115 - 116) various dictionary definitions identifying the meaning of the word "insult" before concluding that the conduct of the appellant was well within the ordinary meaning of the word. Heydon J then looked at the question of whether the context required a conclusion that the ordinary meaning of the expression "insulting words" is not its true construction (at 117 - 118):
"But words can be provoking even though the speaker does not intend to provoke unlawful physical retaliation, and even though the words are not reasonably likely to do so (because, in circumstances of the present type, it is to be expected that the object of the words will resist their sting, it being contrary to the training of a police officer to engage in, and it being the duty of a police officer to refrain from, unlawful physical retaliation). Insults are apt, or have a tendency, to excite and enrage their objects (and other persons who hear them) even though the objects of the insult (and other hearers) have a peaceful disposition and take the line of least resistance, or have considerable self-control, or have professional training or duties not to respond with violence. The test is an objective one."
142 Heydon J concluded (at 127) that the proscription by s 7(1)(d) of the uttering of insulting words to a person in or near a public place was reasonable regulation in the interest of an ordered society.
143 A consideration of the reasons of the minority in Coleman v Power (supra) identifies a legitimate purpose to proscribing conduct where the impact on a specific person of that conduct is neither intended nor likely to provoke unlawful retaliation and where establishing the impact of the conduct on another person is not a requirement of the section. Further, in the reasons of the minority the purpose of such legislation is identified as furthering peaceable, civilised passage through, and assembly and discourse in public places free from threat, abuse or insult to persons there. If such a purpose is accepted, the fact that police officers are trained not to react to insult, threat or offence becomes irrelevant.
144 Because of the differences between the legislation considered in Coleman v Power (supra) and s 74A of the Criminal Code, including the fact that the relevant conduct for the purposes of this appeal may also include "offensive" and "threatening" language, I believe assistance can be provided by a consideration of the various authorities cited on behalf of the respondent.
145 Many of the earlier authorities on disorderly conduct deal with the type of conduct which could constitute disorderly behaviour. To some extent this issue has been addressed by the inclusion in various statutory provisions of non-inclusive definitions as is the case in s 74A of the Criminal Code. However, whether language is insulting or offensive has itself proved to be a vexed question for the Courts. Changing attitudes, different interpretations and contexts have on occasions led to different results when dealing with the same language.
146 Early New Zealand authorities addressed, and discounted, the then commonly held view that, in order to establish disorderly conduct, it was necessary to show that the conduct was such as to provoke a breach of the peace or to be calculated to do so.
147 In Police v Christie [1962] NZLR 1109 the Magistrate determined that the respondent was not guilty of behaving in a disorderly manner and dismissed the information on the basis that, as the relevant statutory provision was aimed at the suppression of breaches of the peace or at conduct calculated to provoke a breach of the peace, proof that the conduct provoked a breach of the peace or was calculated to do so was an essential ingredient of the offence: at 1110. In determining that there was no such requirement in the current statutory formulation of the offence, Henry J observed (at 1112) that the specific elements were not re-enacted and the provision, by the addition of further epithets such as riotous, offensive and disorderly, became more comprehensive and included conduct which may not necessarily lead to a beach or a likely breach of the peace. His Honour therefore concluded that the provision was re-enacted in wider terms with the deliberate exclusion of any intent or any likelihood of a breach of the peace being occasioned.
148 Having reached that conclusion Henry J referred to the nature of disorderly conduct in these terms (at 1113):
"The behaviour in respect of which the section speaks is behaviour in a public place, so it becomes simply a question whether or not the behaviour in a public place seriously offends against those values of orderly conduct which are recognised by right thinking members of the public ... The standard fixed ought to be reasonable and such as not unduly to limit freedom of movement or speech or to imposed conditions or restrictions that are too narrow. The conduct must be serious enough to incur the sanction of a criminal statute. A conviction ought not to be entered unless the conduct or behaviour is such that it constitutes an attack upon public values that ought to be preserved."
149 The decision in Police v Christie (supra) was considered by the Full Court of the New Zealand Supreme Court in Melser v Police [1967] NZCA 5; [1967] NZLR 437 when considering a submission that, in order to justify conviction on a charge of disorderly behaviour, it must be established that the conduct caused or was likely to cause disturbance or annoyance to others present. In considering the decision of Henry J in Police v Christie (supra), North P agreed (at 443) that a person may be guilty of disorderly conduct which does not reach the stage that it is calculated to provoke a breach of the peace, but concluded that not only must the behaviour seriously offend against those values of orderly conduct which are recognised by right-thinking members of the public but it must at least be of a character which is likely to cause annoyance to others who are present. North P considered that Henry J meant to be so understood. A wider test was considered by North P to be contrary to the public interest and might unduly restrict the actions of citizens who, for one reason or another, do not accept the values of orderly conduct which at the time are recognised by other members of the public. His Honour concluded that there must be reasonable room for change in habits and behaviour.
150 Turner J agreed with the reasons of North P but added the following, oft-quoted definition of disorderly conduct (at 444):
"Disorderly conduct is conduct which is disorderly; it is conduct which, while sufficiently ill-mannered, or in bad taste, to meet with the disapproval of well-conducted and reasonable men and women, is also something more - it must, in my opinion, tend to annoy or insult such persons as are faced with it - and sufficiently deeply or seriously to warrant the interference of the criminal law."
151 Turner J was also of the view that, just as it was not enough that the conduct charged should be disapproved by the majority as merely ill-mannered or in bad taste, it is also apparent, on any deliberate consideration of the matter, that it cannot on the other hand be necessary to go so far as to prove a likely or imminent breach of the peace.
152 McCarthy J also concluded (at 446) that for disorderly behaviour to be established there must be conduct which not only can fairly be characterised as disorderly but also is likely to cause a disturbance or to annoy others considerably.
153 The requirement in these cases that the conduct must be serious enough to incur the sanction of a criminal statute was a factor also relied on by the High Court in Coleman v Power (supra).
154 In 1986 the Full Court of the Supreme Court of Western Australia considered the case of Keft v Fraser, unreported; FCt SCt of WA; Library No 6251; 21 April 1986. The appellant had been convicted of the offence of using obscene language in a public place, contrary to s 59 of the Police Act, the disorderly conduct provision which preceded s 74A of the Criminal Code. Section 59 of the Police Act provided that "every person who in any street or public place or to the annoyance of the inhabitants or passengers shall sing any obscene song or ballad, or write or draw any indecent or obscene word, figure of representation or use any profane, indecent, or obscene language, shall be deemed guilty of disorderly conduct and be punishable accordingly". Section 54 of the Act provided that "every person who shall be guilty of any disorderly conduct on any street, public place ... shall, on conviction, be liable to a penalty of not more than five hundred dollars for every such offence, or to imprisonment ... for any term not exceeding six calendar months ...".
155 Despite the fact that the conduct alleged against the appellant in Keft v Fraser (supra) was obscene language, which is not specifically identified as conduct meeting the definition of disorderly in s 74A of the Criminal Code, the decision is still one which deals with establishing the offence of disorderly conduct.
156 The appellant was a comedian using the stage name Rodney Rude. He performed in a wide range of venues throughout Australia. On 28 July 1985 he performed in the Perth Concert Hall before a sell-out audience. Entrance was gained by purchasing a ticket and in a prominent place in or about the entrances were displayed signs clearly visible stating "persons under 18 not permitted" and "some language might offend". Measured by audience reaction the performance appears to have been a great success. The appellant was enthusiastically applauded and his jokes provoked much laughter. However, throughout the performance and at approximately three minute intervals the appellant used the word "fuck" or one of its many derivatives. He did so on 30 occasions. One of the grounds of appeal was that generally, the words complained of were not obscene in the circumstances.
157 Dealing firstly with the relevant legislation, Burt CJ observed (at 5) that the appellant commits an offence against s 54 simply because he is brought within the description of the person to be found within the first limb of s 59. He added (at 5):
"This, I think, is of some importance because it shows the prohibition to be directed to conduct which is against the order of the place in which it occurs and this, I think has a direct bearing upon the meaning to be given to the word 'obscene' as it is used in that section."
His Honour also noted (at 6) that to establish the offence it is necessary to prove that the appellant used the obscene language in the "public place or to the annoyance of the inhabitants or passengers".
158 Burt CJ considered (at 8) that the impact of the language used upon those persons who hear it is not to be ignored when judging whether the words used are obscene within the meaning of the section. His Honour felt it was a mistake to seek a definition of the word obscene without regard to the context in which it is used.
159 Burt CJ's conclusions on the purpose of the legislative provision and the relevance of context were these (at 10 - 11):
"And conduct by words may have that character [disorderly] whether they have a tendency to deprave or corrupt or not. They are disorderly not because the person hearing them react by using physical violence or anything of that kind but simply because their use is an affront to a person's sensibility and likely to arouse in others shock, shame, disquiet, or revulsion. And a single taboo word can do that. Whether it does so or not and from the point of view of the person who is to try the issue whether it should be held to have done so or not must, I think, be judged as best one can having regard inter alia to the audience or, in the terms of s 59 of the Police Act, the nature of the public place in which the words are used. The idea of a 'public place' as used in the statute is not simply geographical. It is assumed to contain human beings with ears. And so regarded all public places are not the same. If it be a place where people of all kinds are assembled such as, to take a local example, the Hay Street Mall at high noon, then the use of the words complained of here if uttered for all to hear could, I think, be fairly described as being obscene and to use such words in that way and in that place and at that time could fairly, I think, be described as being disorderly conduct. Their use upsets the order of that place by interfering with the free use of that place by persons who have a right to use that place without being subjected to words which offend them and cause them distress. The use of the words in those circumstances are a kind of public nuisance. I would, for the purposes of the Police Act, adopt the 'public offensiveness' or 'public nuisance' rationale of obscenity which 'is based upon recognition of the fact that the community is acutely sensitive to public breaches of sexual and scatalogical taboos'. It is also based upon an acceptance of the view that in their use of places of public resort, citizens have as much right to be safeguarded from erotic forms of public nuisance as they have to be protected from nuisances which are physically harmful. However, it must again be emphasised that this justification for the law of obscenity does not consider whether the dissemination of obscenity is immoral or is a cause of anti-social behaviour. It simply proposes that the display of obscene matter in the face of the public seriously offends the sensibilities of ordinary citizens who do not desire to view it and further, that it is no great infringement of individual liberty to insist that displays of this nature either take place in private or conform to accepted standards of public decency."
160 In my view, this description of the purpose and justification of the provision which does not require that the conduct be directed to a particular person is in accordance with the description given by Gleeson CJ at 23 - 24 and Callinan J at 111 - 112 in Coleman v Power (supra).
161 In dismissing the complaint against the appellant, Burt CJ held (at 12) that it was relevant to the question of whether the words used were obscene, so as to deem the appellant to be disorderly and to be punished, to consider that the words were used in a setting where the audience had been warned of the content of the show and had paid to enter and see it.
162 Wallace J noted (at 3) that it was common ground that all that was involved in the appeal was whether his Worship erred in making the finding that the words in question taken out of context were obscene. In reaching his decision, his Honour referred (at 3 - 5) to a number of authorities, each of which identified two separate requirements. Firstly, for a word to be obscene it must be calculated to deprave or corrupt or have a tendency to deprave or corrupt. Secondly, the term is used to describe things which, in the manner in which they are presented, are offensive to current standards of decency.
163 Wallace J concluded (at 5) that it was clear that one cannot reach his Worship's affirmative conclusion where the words complained of are taken out of context. In reaching that conclusion his Honour referred (at 3) to the fact that the relevant word was in common usage, whether as a noun, adverb or adjective and however distasteful its use may be found. Consequently, Wallace J considered (at 5) that the repeated use of the four letter taboo word in its various forms was simply part of our language as defined in the dictionaries and, in those circumstances, he was unable to conclude that the words used were obscene.
164 Despite the reference in Wallace J's judgment to the fact that the use of the allegedly obscene word must be considered in context, it seems that there is some support to be found for the appellant's position in his Honour's judgment. However, when the Annexure to the judgment which sets out examples of the words and expressions used by the appellant, is considered in full, it becomes apparent that there was more allegedly, and arguably, obscene expressions than simply the word "fuck" used as a noun, adverb or adjective. Further, it must be kept in mind that the specific conduct under consideration in that case was "obscene" language.
165 Rowland J expressed the opinion (at 4) that the Magistrate found that the language was obscene because some words used were capable of being obscene and not because, as required, there was evidence before him to enable him to reach the conclusion that the language used in the particular case was obscene. Rowland J considered one relevant factor to be the fact that the appellant was not using the language to express a sexual connotation. His Honour stated (at 5) that the appellant was generally using shock words and phrases to emphasise the jokes and stories. The other factor relied upon (at 6) was that the language must be gauged in its particular setting and its particular circumstances. Rowland J referred, as a pointer only, to the fact that it was necessary to ascertain the audience and to note the reaction of the audience. Ultimately, Rowland J determined that the appellant's case succeeded because the evidence accepted by the Magistrate did not disclose that the words used in context were obscene language.
166 It is difficult to identify the ratio of the decision in Keft v Fraser (supra). Both Burt CJ and Rowland J considered context to be a relevant factor. In Burt CJ's judgment a word may be obscene if it is an affront to a person's sensibility and likely to arouse in others shock, shame, disquiet, or revulsion and the use of the word in one place or context may meet that description whereas in another place where the people have paid to hear such words it may not.
167 However, in Rowland J's view the nature of the audience and their reaction to the language was seen only as a pointer to whether the language was obscene. Whether the word was being used to express a sexual connotation was another. The definition of obscenity on which Rowland J relied was that of Windeyer J in Crowe v Graham [1968] HCA 6; (1967) 121 CLR 375 where his Honour stated (at 395), with respect to a publication, that "[t]he question still is - does the publication by reason of the extent to which and the manner in which it deals with sexual matters transgress the generally accepted bounds of decency?". With respect to his Honour, that definition must be considered in light of the nature of the words used in the particular publication. In my view, when that is done it will be seen that, in order to meet the definition of obscene, it is not necessary for the words to be intended to express a sexual connotation. The only requirement is whether the words used transgress the generally accepted bounds of decency or are an affront to sensibilities. In my opinion, in certain situations, that definition will be met simply because the words have a sexual connotation, irrespective of whether they are being used in that sense.
168 Although Wallace J clearly referred to the requirement for the words to be considered in context, the fact that one of the words was in common usage, irrespective of how distasteful the word may be, was the basis for his Honour's conclusion that the word was part of our language and therefore could not be obscene. With respect to his Honour, I cannot accept that the fact that a word is defined in a dictionary and is used, however extensively, by a section of society, means that the word can never be obscene, or offensive for that matter, in any circumstance.
169 In any event, whether or not a word continues to have a sexual connotation or is intended to express a sexual connotation may be relevant to whether the language is obscene but it does not follow that either is a requirement when it is alleged that the language is offensive.
170 It seems to me that the only common proposition in the judgments in Keft v Fraser (supra) is that, in order to determine whether a word is obscene, its use must be considered in context. Whilst some factors referred to in Keft v Fraser may be limited to language which is obscene, I consider the issue of context is equally and obviously relevant to language said to be offensive.
171 The decision in Keft v Fraser (supra) was considered and applied in E (A Child) v STAATS (1994) 13 WAR 1. The appellant relies on this case in support of the proposition that the words he used to a police officer were not insulting or offensive. In that case the appellant was convicted on a charge of disorderly conduct in that he used obscene language at the WA City Police Station in contravention of s 54 of the Police Act 1892. When taken to the police station the appellant was told to wait until a responsible person came to collect him. The appellant wished to leave and was told that he had to wait. He then used the following language, "I want to fucking go", "You can get fucked", and "Fuck you". Between the first and second, and the second and third statement, the appellant was warned about his language and told he would be charged if he repeated it. When he did, he was arrested. On appeal, White J held that a Police Station was not a public place and as certain conduct was disorderly only if carried out in a public place, the conviction could not stand. However, his Honour also held (at 5) that the question as to whether the words were obscene, in the sense that they offended current standards of decency, was to be determined in the light of the standards of the community, not a particular witness. White J noted that the words used were used as expletives and there were no sexual overtones or implications in the words used. His Honour then referred, without comment, to a lengthy extract from the judgment of Burt CJ in Keft v Fraser (supra). White J then referred (at 7) to Wallace J's conclusion that the repeated use of a word that is part of our language and found in the dictionary was not obscene. Reference was then made by White J (at 7) to Rowland J's comment that the relevant word, in some circumstances, is not necessarily obscene and that the Magistrate had erred in concluding the word was obscene because some words used were capable of being obscene.
172 White J then referred to one case where it was held that the term was in common use and not offensive before referring to an extract from Dalton v Bartlett (1972) 3 SASR 549 which emphasised the fact that in order to determine whether words were obscene, the context in which they are used must be considered. Reference was also made (at 8) to the decisions in Melser v Police (supra) and Police v Christie (supra) to which I have already referred.
173 White J concluded his judgment with this statements (at 10):
"In my opinion, the learned magistrate erred in holding that the language used by the applicant was obscene. In the context in which it was used, as it seems to me, it was clearly neither indecent nor obscene, albeit it was coarse and would be offensive to many members of the community."
174 Leaving to one side the issue of whether White J was correct in concluding that the particular language used in that case was not obscene, his Honour drew a distinction between language which is obscene and language which is offensive. Indeed, White J expressed the opinion, obiter dicta, that the language in question would be offensive to many members of the community. To that extent, the decision in E (A child) v STAATS (supra) does not support the appellant's position.
175 The legislative change from the Police Act provisions relating to disorderly conduct to the Criminal Code provisions set out above, has resolved the problem with respect to police stations as public places. Further, as noted above, it is only necessary to establish to the requisite standard that language used by a person is insulting, offensive or threatening for that person to be found to be disorderly under s 74A.
176 Counsel for the respondent submits that there are two consistent themes in the "seemingly disparate decisions" regarding offences akin to disorderly conduct. The first is said to be the requirement that for conduct to be disorderly, it must disturb the "order" of the particular place at that particular time. This particular theme is consistent with the public nuisance rationale to which Burt CJ referred in Keft v Fraser (supra) and the requirement for the conduct to be considered in context to which I have already referred. Counsel for the respondent specifically relied on the decision in E (A child) v STAATS (supra) at 1113 quoting with approval from Police v Christie (supra) at 1109 and to Coleman v Power (supra) at 56 per Gummow and Hayne JJ in support of this proposition. I accept this to be both a consistent and relevant theme, irrespective of whether disturbing the "order" of the particular place is established by the objective nature of the language or by evidence of the actual or likely impact of the language on those present at the time.
177 The other consistent theme is said by counsel for the respondent to be that where police are involved behaviour, including language, that challenges the authority of police officers is likely to be considered to be disorderly. I accept that to be a theme of a number of cases and to be an appropriate concern because of the potential for the language to incite others to involve themselves in challenging the authority of the officers. In discussing either the actual or the potential impact on public order of obscene language, the members of the court in Coleman v Power (supra) appeared not to give any consideration to this issue, presumably because, as the facts of that case involved an allegation of corruption, it had no specific relevance. Support for the respondent's proposition can be found in the following cases which are considered hereunder: Director of Public Prosecutions v AM [2006] NSWSC 348; Robinson v Police [2004] SASC 271; Bilney v Police [2004] SASC 356 ;and Birch v Police [2003] SASC 354.
178 Counsel for the respondent also relied on the following decisions in support of the principle that a criminal sanction is warranted if the words used disrupt public order: DPP (NSW) v AM (supra), Bilney v Police (supra), Birch v Police (supra), Ashley v Balchin [2006] NTSC 41; (2006) 161 A Crim R 497 and Beahan v McDermott, unreported; SCt of WA; Library No 8830; 24 April 1991.
179 Dealing with the cases on which the respondent relies in no particular order, the case of Beahan v McDermott (supra) involved a charge of being disorderly by using obscene language. The incident occurred at Rottnest Island and the appellant entered a plea of guilty. The relevant facts were that the appellant was asked to leave the scene where his friend was being arrested for street drinking. This he did but as he was walking away he uttered a single obscenity. It was stated by his counsel (and not disputed at any stage) that he uttered this obscenity "to himself". It was heard by the police officers and he was called back, arrested and charged. The Magistrate refused an application that the charge be dismissed under the "first offender" provision of the Criminal Code which required, inter alia, that the offence be of a trivial nature.
180 Anderson J held that the Magistrate had misapprehended the approach to be taken in ascertaining the triviality of the offence by referring only to the maximum penalty provided for in the statutory provision. The particular facts of the particular case did not justify the Magistrate's conclusion that there was serious interference by the appellant in matters that did not concern him. Indeed, it is difficult to see how the use of a single obscenity to oneself, albeit audibly, could constitute a serious interference with public order. Nevertheless, the plea of guilty indicates that, irrespective of whether the obscenity was used to a person, the fact that that an obscenity of that type was able to be heard in a public place was the relevant factor and justified a criminal sanction. Anderson J also made the following comment with respect to the issue of context and the relevance of the fact that the language was used to, or in the presence of, police officers (at 8):
"I am not unmindful of the fact that officers stationed on Rottnest Island at that time of the year, that is, the post exam end of school-year period, encounter difficulties of law enforcement. It is notorious that the Island becomes crowded with young people who often behave badly, sometimes with total disregard for the convenience and well-being of others. Police officers charged with the responsibility of maintaining order in those circumstances must be supported by the Courts. Young people who flaunt the law, abuse police officers and fling obscenities about cannot always expect to be dealt with sympathetically, either by the police or by the courts. Generally speaking they must be punished for the public good."
181 In Ashley v Balchin (supra), the appeal related to charges arising from a decision to arrest the appellant for disorderly conduct by using obscene or offensive language. The conduct occurred at approximately 11.30 am in a public car park when the appellant was seated in the rear passenger seat of a parked car. The language used was this: "Why don't you fucking leave us alone, you cunts. Fuck off cunt, why don't you fuck off." It was said in the presence of the other occupants of the vehicle and was heard by three police officers, two of whom had approached the vehicle to speak with the driver. When the officer who was standing close by asked who had said the words, the appellant replied, "Fuck off cunt, why don't you fuck off".
182 The relevant issue on appeal was whether the arresting officer believed on reasonable grounds that an offence had been committed. In determining that issue, Angel ACJ referred (at [15]) to the fact that the Magistrate dismissed a charge of offensive language against the appellant after referring to the High Court decision in Coleman v Power (supra).
183 In drawing the conclusion (at [18]) that, on the evidence before the learned Magistrate, the arresting officer believed on reasonable grounds that an offence had been committed, Angel ACJ considered as relevant the fact that the words were directed at the officer and were said in a belligerent manner. Further, his Honour relied upon the comments made by Turner J in Melser v Police (supra) at 444 which is cited in full above, and relying on the decision in Watson v Trenerry [1998] NTCA 22; (1998) 122 NTR 1 at 5 to the effect that, in the case of disorderly behaviour in a public place, it is not necessary to prove that the behaviour in fact disturbed the peace or in fact interfered with the comfort of others; it is sufficient if it had a tendency to do so.
184 In the case of Bilney v Police (supra), cited in support of the proposition that one of the recurrent themes in cases of this type is maintaining public order, pleas of guilty were made to a charge of disorderly conduct by using offensive language in a public place, namely North Terrace in Adelaide. When approached by police officers the appellant told them to "fuck off". The words "fuck" and "cunt" were used repeatedly. There was a group of about 10 people on the first floor of a building next to where the police officers were standing with the appellant who were looking out the window and appeared to hear what was being said. This case was an appeal against sentence and is therefore significant only in that it contains no suggestion that the conduct was not properly the subject of the particular charge.
185 In Birch v Police (supra) the appellant was charged, inter alia, with behaving in a disorderly manner in a public place and using offensive language in a public place. The circumstances of the offences were that police attended at a disturbance. The appellant was in a group of people. He was grossly intoxicated and was behaving in a loud and abusive manner waving his arms about and stumbling. The language which was the subject of the offensive language count was this: "What the fuck do you want that for?", "I don't have to tell you shit", and "Fuck off cunt". As with Bilney v Police (supra) this case involved an appeal against a sentence of imprisonment. Despite allowing the appeal and imposing a good behaviour bond, Bleby J expressed the view that the appellant needed a strong incentive and a constant reminder that that sort of behaviour is unacceptable and will not be tolerated.
186 In Robinson v Police (supra) the appellant was charged with behaving in a disorderly manner. He was unrepresented and pleaded guilty but subsequently appealed against the recording of a conviction. The appellant was a member of a group of three people, one of whom was arrested by police. The appellant said to the arresting officer, "This is fucking bullshit" and "Why the fuck did you lock him up? You're piss weak". The officer cautioned the appellant about his language, following which the appellant said, "What fucking language? What offence?" and the officer replied "Disorderly behaviour". The appellant then shouted "Ha, the judge will fucking laugh at this bullshit". He then moved closer to the police officer and appeared to challenge him to a fight.
187 The appellant admitted that he had become abusive but was not aware when he appeared unrepresented that he could challenge the statement of facts. Nyland J allowed the appeal on the basis that the Magistrate had not canvassed the appellant's rights and duties with him when taking a plea of guilty from an unrepresented defendant and did not give the appellant an opportunity for an adjournment to seek legal advice. Further, the appellant was given an opportunity to present evidence on his own behalf by way of mitigation which might have enabled the Magistrate to proceed without recording a conviction, a course taken with one of the co-offenders.
188 To my mind, the only significance of this decision is the statement of Nyland J (at [18]) that the offence could not be regarded as "trifling". I make that point in the context of the submission by counsel for the appellant that the language used by the appellant to Constable Herangi was trivial.
189 Counsel for the respondent has identified the following cases as falling into a category of cases where less consideration has been given to decorum of the public place in question, although it is submitted by counsel that the cases can be distinguished: Cumaiyi v Taylor [2006] NTSC 72; Robinson v Police (supra); Hales v Nebro [2003] NTSC 2; and E (A Child) (supra).
190 I have already dealt with the decision in E (A Child) and with Robinson v Police (supra). In the latter case, although counsel for the respondent considers the court in that case gave less consideration to the issue of public order, it was also relied upon as an example of a case which places greater emphasis on the challenge to police authority in determining whether certain language warrants a criminal sanction.
191 In Cumaiyi v Taylor (supra), Martin AJ set aside a conviction for behaving in a disorderly manner in a public place because there was no direct evidence or circumstances from which a proper inference could be drawn that the group of persons to whom the relevant words were directed, and who were in a public place, were within hearing of those words, something he considered to be an essential element of the offence: at [7]. The facts of the case were that the appellant was intoxicated aboard a charter aircraft. Police were waiting for him on his arrival. After disembarking and as he was walking across the car park he yelled out "Evil, fuck you mob, evil is back", directing his words towards opposing gang members near the airport hangar. He was arrested and taken to the police station where he started yelling at the police saying, "We're going to get you, both of you, all yous boys, the evil mob". At that time he was pointing at both police officers who were attempting to search him as he would not empty his pockets.
192 Martin AJ concluded the above statement of his reasons as follows:
"The police heard the words, but it is not the respondent's case that they considered the word 'disorderly' insofar as they impacted upon them."
193 Whilst I do not accept that it is a requirement that the person or persons to whom the words were directed consider the words to be disorderly, it is relevant that a case presented on one basis can only be established on another.
194 In Hales v Nebro (supra), the respondent was charged with two offences, both of which occurred at a Centrelink office. The first was that she behaved in a disorderly manner in that she was yelling and screaming. In the second charge, which arose from the same incident, it was alleged that the respondent behaved in an offensive manner in that she used the words "fuck" and "cunt". The Magistrate dismissed the second charge because the words "merged" into the other charge "but as to the matter of offensive manner I don't find that made out": [at 19]. No appeal was lodged with respect to the way in which the Magistrate dealt with that charge. The prosecution appealed only with respect to the Magistrate's decision to discharge the respondent without conviction, a decision which was set aside on appeal. Consequently, the decision of the appellate court in Hales v Nebro (supra) neither supports nor rejects the view held by the Magistrate that the words used were not offensive.
195 One authority included in the respondent's list of authorities, but not specifically referred to in submissions, is the case of Mogridge v Foster [1999] WASCA 177 which was decided before the change of the relevant statutory provision for disorderly conduct from the Police Act to s 74A of the Criminal Code. In that case, the accused was standing in the middle of a footpath and three young ladies (still teenagers) were walking towards him. He was taking up a fair bit of the footpath, swaying from side to side a bit. As they approached they tried to walk around him. He moved across in front of them to block their access and they went a bit further and tried to go around him. As they did try he shouted very loudly and caused them to jump back. They looked quite shocked. They attempted to walk around him again and then he held up his hands in front of him and moved his arms as they went to move. Each time they went to go around him he would jump in front of them. At one stage there was contact with one of the girls. All girls managed to get around him and went down the street at a fairly fast pace. No complaint was made to the police by the girls. The appellant's explanation was: "I was just having a bit of fun" and "I'm well within my rights, I can do what I like."
196 McKechnie J concluded (at [9]) that the circumstances of the conduct were capable of being described as disorderly and dismissed the appeal. The significance of this case, which did not involve offensive language, is McKechnie J's formulation of the nature and purpose of the offence, his emphasis on context and his reliance on the decision of the New Zealand Court of Appeal in Melser v Police (supra). His Honour observed (at [7] - [8]):
"It is true that surrounding circumstances will have a bearing on the issue. General rowdiness within a boisterous crowd on New Year's Eve may not in the circumstances amount to such conduct as to require the sanction of the criminal law. Disorderly conduct is, as it name implies, a public order offence within the Police Act designed to prevent breaches of the peace and to allow citizens to go about their lawful business without undue interference or annoyance.
Magistrates with a wide experience of life and human foibles are generally in the best position to judge whether conduct should be categorised as disorderly. In the present case, the situation created by the appellant went beyond noisy good humour. It may have been funny to him but the young women appeared shocked and were impeded in their walk up the street for a little time."
197 Further, as I have noted, McKechnie J adopted the formulation of Turner J in Melser v Police (supra) which identified disorderly conduct as conduct which is sufficiently ill-mannered or in bad taste to meet with the disapproval of well-conducted and reasonable men and woman and which not only tends to annoy or insult those persons faced with it but is sufficiently serious to warrant the interference of the criminal law.
198 In Crowe v Graham [1968] HCA 6; (1967) 121 CLR 375, an authority cited by the Magistrate in Keft v Fraser (supra), Windeyer J stated (at 399) that contemporary standards are those currently adopted by the Australian community and community standards are those which ordinary decent-minded people accept. I would add that standards accepted by ordinary decent-minded people in some circumstances may not be standards accepted by them in all circumstances and, in particular, in public. In the context of this case, words which ordinary decent-minded people may consider acceptable if spoken in private in very limited circumstances, may not be considered acceptable if said in public or to an authority figure or in the presence of children.
199 The following remark of Windeyer J in Crowe v Graham (supra) is of particular application to words that have become more prevalent in some circumstances by some members of society (at 399):
"I agree with the remark of Sholl J in the Supreme Court of Victoria, repeated by North J in the Supreme Court of New Zealand, that 'the court is not called upon to overlook or minimize what is really obscenity, merely in order supposedly to show its own judicial broadmindedness or tolerance or imperturbability or even cynicism': Mackay v Gordon & Gotch (A/sia) Ltd ([1959] VR 420 at 426); In Re Lolita ([1961] NZLR 542 at 553)."
200 In my view, the remark is equally applicable to determining whether words such as the relevant word in this case, are offensive.
201 I consider the following observations of Heydon J in Coleman v Power (supra) (at 121 - 122) to be a compelling statement of the importance of prohibiting, in appropriate circumstances and in public places, words of a particular type, be they insulting or offensive:
"In seeking to prevent provocative statements of an insolent, scornful, contemptuous or abusive character, s 7(1)(d) does seek to serve legitimate ends. Insulting statements give rise to a risk of acrimony leading to breaches of the peace, disorder and violence, and the first legitimate end of s 7(1)(d) is to diminish that risk. A second legitimate end is to forestall the wounding effect on the person publicly insulted. A third legitimate end is to prevent other persons who hear the insults from feeling intimidated or otherwise upset: they have an interest in public peace and an interest in feeling secure, and one specific consequence of those interests being invaded is that they may withdraw from public debate or desist from contributing to it. Insulting words are a form of uncivilised violence and intimidation. It is true that the violence is verbal, not physical, but it is violence which, in its outrage to self-respect, desire for security and like human feelings, may be as damaging and unpredictable in its consequences as other forms of violence. And while the harm that insulting words cause may not be intended, what matters in all instances is the possible effect - the victim of the insult driven to a breach of the peace, the victim of the insult wounded in feelings, other hearers of the insult upset."
202 I consider that inciting others to challenge the authority of police officers, even if such a result is not intended, can also be added to Heydon J's examples of the harm which results from the use in public of, in this case, offensive words to a police officer.
203 Having reviewed the relevant authorities, I am not persuaded that the decision in Coleman v Power (supra) alters the standard to be applied when considering whether language is offensive and whether it warrants a charge of disorderly conduct. Further, I am not persuaded that, in establishing such a charge, it is necessary for the prosecution to adduce evidence of the impact on those present of the words used. Neither is it an essential ingredient of the offence that the conduct provoked a breach of the peace or was calculated to do so. However, I am of the view that the words used by the appellant had that character when spoken to a police officer in the circumstances that prevailed at the time.
204 In view of the changes effected by the legislature in the wording of s 74A of the Criminal Code, some of the authorities referred to above are no longer of application. Certainly, as I have noted, the difference in legislation is the most significant aspect of my conclusion that the decision in Coleman v Power (supra) has little, if any, application in this case. However, some of the general principles remain applicable in construing s 74A. In particular, I consider the approach to establishing disorderly conduct set out in Police v Christie (supra) and Melser v Police (supra) is relevant to language as well as conduct and is as relevant today under the new legislation as it was in the past.
205 Applying the principles in the cases which I have addressed, and considered to be relevant to a charge of this specific nature in the terms of s 74A of the Criminal Code, I do not consider the Magistrate has erred in concluding that, in the context in which the relevant words were used, they offended contemporary community standards and were offensive and deserving of criminal sanction.
206 The appellant alleges that his conviction was unsafe and unsatisfactory and against the weight of the evidence and consequently there was a miscarriage of justice.
207 Where an appeal court is asked to conclude that a conviction is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that, upon the whole of the evidence, it was open to the Magistrate to be satisfied beyond reasonable doubt that the accused was guilty of the charge. In answering that question the court must not disregard or discount either the consideration that the Magistrate is entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the Magistrate has had the benefit having seen and heard the witnesses: M v The Queen [1994] HCA 63; (1994) 181 CLR 487 per Mason CJ, Deane, Dawson and Toohey JJ at 493.
208 In support of this ground the appellant relied, in particular, on the discrepancies between the evidence of the prosecution witnesses about the earlier behaviour of the appellant and the disparity between the evidence of the prosecution and defence witnesses about the relevant events. The appellant also relied on the fact that the evidence of the words said to be the offensive words was denied by Stephen Heanes and was the product of admitted collusion.
209 I have already dealt with the issue of the evidence of Mr Heanes and the fact that there were competing versions of events told by the prosecution and the defence and I have also dealt with the allegation concerning the Magistrate's reference to the appellant's girlfriend. None of the matters specifically referred to in submissions with respect to this ground of appeal, or any matter raised in the other grounds of appeal, persuade me that there has been any miscarriage of justice.
210 Further, other than the statement of Constable Herangi that he discussed the case with Constable Paul, the nature, purpose and effect of which was not addressed in any way at trial, the issue of the practice adopted in preparing the witness statements did not affect Constable Herangi's statement. It was open to the Magistrate to accept the evidence of Constable Herangi. This he did and I believe this is a situation where he was in the best place to make that assessment. There was, therefore, evidence of each element of the offence and hence evidence to support the conviction entered.
(1988) 165 CLR 292
(1986) 61 ALJR 1
(1936) 55 CLR 367
(1998) 193 CLR 1
(1992) 177 CLR 292
(1977) 141 CLR 54
(1995) 184 CLR 19
(1970) 126 CLR 321
(1982) 151 CLR 1
(2001) 24 WAR 488
(1989) 180 CLR 508
(1993) 67 ALJR 550
(1988) 62 ALJR 656
(1998) 70 SASR 281
(1977) 137 CLR 517
(1981) 145 CLR 395
(1984) 152 CLR 528
(2003) 214 CLR 118
(1989) 85 ALR 23
(1990) 171 CLR 167
(1993) 177 CLR 472
(1990) 160 ALR 588
(2006) 80 ALJR 458
(2002) 210 CLR 285
(2004) 220 CLR 1
(1997) 189 CLR 520
(2000) 202 CLR 535
(1966) 9 FLR 237
(1967) 121 CLR 375
(1994) 13 WAR 1
(1972) 3 SASR 549
(1994) 181 CLR 487