King (1996) 88 A Crim R 150

Weissensteiner v The Queen [1993] HCA 65; [1993] 178 CLR 217

1 McKECHNIE J: Just before Christmas on 18 December 1998, at about 11.35 pm, the appellant Mr Mogridge was observed by police in William Street, Northbridge. The description is probably best taken from Constable Lalor who gave evidence in respect of Mr Mogridge:

"...He was standing in the middle of the footpath and he was facing east, towards Williams Street, and three young ladies, quite young, still teenagers I imagine, were walking towards him. He was sort of taking up a fair bit of the footpath, swaying from side to side a bit. And as they approached they tried to walk around him. He moved across in front of them, and - - to block their access, and they went a bit further and tried to go round him. As they did try to go round him he shouted very loudly and caused them to jump back. They looked quite shocked at that stage. They then attempted to walk on again and he held up - - the defendant Mogridge help [sic] up his arms, in front of him.

PROSECUTOR: Can you show how - - what he did, could you demonstrate please?---He held up his arms like that and moved as they went to move.

You're indicating a swaying motion from side to side?---Yes, each time one of the girls tried to go round he jumped in front of them.

Right---When he actually did that, at one stage, one of the girls walked into his arms, there was contact then.

Did that cause anything to happen to the girl?---Yes, she stepped backwards away from him again, and then - - she didn't actually run, but she scurried fairly quickly around him, and all three girls actually managed to get around him, then went down the street at a fairly fast pace...If he hadn't have jumped in front of her, she wouldn't have touched him."

2 That appears to be the essence of the behaviour which is said to be disorderly conduct. None of the young girls made a complaint to police officers. Mr Mogridge said: "I was just having a bit of fun" and "I'm well within my rights, I can do what I like." The learned Magistrate described this as a clear case of disorderly conduct, convicted the appellant and fined him $70.

3 The appellant did not appear at the trial but was represented by counsel. On 14 June 1999, I granted leave to appeal on the ground that the learned Magistrate had erred in law and in fact by finding that the evidence established beyond a reasonable doubt that the appellant's conduct constituted disorderly conduct.

4 The single issue in this appeal is whether the behaviour can constitute disorderly conduct. There was no dispute as to the facts and so the issue is a matter of law.

5 The nature of disorderly behaviour was the subject of the decision of the New Zealand Court of Appeal in Melser v Police [1967] NZCA 5; [1967] NZLR 437. That case has since been generally relied upon as defining the concept of disorderly conduct in this State; for example, see Campbell v Johnstone; unreported; SCt of WA (White J); Library No 950209; 2 May 1995 and Poynton v Balcombe, unreported; SCt of WA (Rowland J); Library No 6847; 28 August 1977.

6 For the purpose of the resolution of this appeal I adopt the formulation of Turner J in Melser v Police (supra) at 444 where he said:

"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."

7 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 its 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.

8 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. It was not a case of gross disorderly conduct. Clearly, from the moderate fine imposed, the Magistrate did not think so.

9 However, in my view the circumstances of the conduct were capable of being described as disorderly. In consequence it cannot be said that the Magistrate erred in being satisfied beyond reasonable doubt that the conduct was disorderly. I therefore dismiss the appeal.