HEANES -v- HERANGI [2007] WASC 175 (1 August 2007)

HEANES -v- HERANGI [2007] WASC 175 (1 August 2007) - WASC 2007 case summary — Zoe

[8]

"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."

[202]

"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."

[214]

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.

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Judgment (259 paragraphs)

HEANES -v- HERANGI [2007] WASC 175 (1 August 2007)

Cases Cited (32)