ADELAIDE, 6 May 1997 (hearing), 28 May 1997 (decision)

1. This appeal raises the question of the mental element, if any, which the prosecution must establish to obtain a conviction for the statutory offence of behaving in an offensive manner contrary to s7(1) of the Summary Offences Act, 1953("the Act").

2. I will refer to the respective parties as the prosecutor (who before us was the appellant) and as the defendant (who before us was the respondent).

3. In He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 the High Court emphasised four matters.

4. First, as Brennan J said (at 565): "When a statute creates and defines an offence only by reference to its external elements, the mental element is usually implied in the definition. ... The mental element is mens rea or guilty mind." 5. Secondly, the implication or presumption of a guilty mind may be rebutted, but a Court should not lightly conclude that Parliament intended to create an offence involving no mental element other than the voluntariness of the conduct in question. The issue raised is, in the end, one of Parliament's intention as manifested by the terms of the relevant statute.

Thirdly, the concept of a guilty mind is not a reference to a single state of mind, such as intent. Depending upon the offence, and sometimes upon the element of the offence in question, the relevant state of mind might be intent, knowledge, foresight of a given consequence and so on.

Fourthly, that even if intention to bring about a given state of affairs, or knowledge that a given state of affairs is likely to eventuate, is not an element of an offence, it does not follow that the offence is one of absolute liability. In Australia the mental element required for an offence can also be described as an absence of an honest and reasonable belief in the existence of facts which would have made the relevant act innocent. Unless the offence is one of absolute liability, if the issue is raised on the facts, the prosecution must establish the absence of what I will, for convenience, call an honest and reasonable belief. If the conclusion is that the absence of such belief is an element of the offence, it is for the prosecution to establish that absence before a conviction can be secured.

On appeal the prosecutor conceded that the defendant was not guilty of the offence unless it was established that he did not have the relevant honest and reasonable belief. I consider that that concession was rightly made. It is only in exceptional circumstances that a Court would conclude that Parliament intended to create absolute liability.

In light of the concession, the issue is whether the prosecutor had to establish that the defendant intended to give offence or knew that his conduct was likely to give offence (it is not necessary in this case to deal with the concept of the reasonable person who must be offended) or whether it was sufficient for the prosecutor to prove that the defendant did not honestly and reasonably believe that his conduct would not give offence. In the latter event, the significant thing is that the reasonableness of the defendant's belief, that his conduct would not give offence, becomes an element of the offence.

In deciding the issue thus presented, it is necessary to have regard to the terms of the statute, the subject matter dealt with, the consequences of adopting the alternative views and the purpose that Parliament might have had in taking the latter approach.

The complaint of behaving in an offensive manner was heard in the Magistrates' Court. The magistrate dismissed the complaint.

On appeal to a single judge of this Court, the judge dealt with the matter on the basis that the magistrate had found the conduct to be offensive, but had dismissed the complaint because the magistrate was not satisfied beyond reasonable doubt that the defendant intended to cause offence to anyone. The judge's interpretation of the magistrate's reasons is probably correct, although the magistrate's reasons are not clear in this respect.

When counsel for the prosecutor conceded in the course of argument that, if the prosecutor succeeded on the main issue, the prosecutor would not ask to have the matter remitted to the Magistrates' Court for further proceedings on the complaint, the defendant did not pursue the question of whether the magistrate had in fact found that the conduct was offensive and the question of whether that finding was rightly made.

It remains to say that on appeal to a single judge of this Court, the judge was of the view that it was necessary for the prosecutor to prove that the defendant intended to act in an offensive manner. The judge reluctantly reached that conclusion. He took the view that earlier decisions of judges of this Court had so decided and that he should follow them. He would have preferred to follow the view adopted in yet earlier cases in this Court that intention was not an element of the offence.

The defendant wore a T-shirt in the Elizabeth City Shopping Mall at about 11.15am one day during the Christmas shopping season. The Mall was busy. The magistrate found that there were between 2,000 and 3,000 people of all ages in the vicinity.

Judging by a photograph included in the appeal book, the T-shirt was of a uniform dark background colour. On the front of the shirt was printed a picture, apparently of members of a band. Above the picture, in reasonably prominent lettering and lettering that would not be difficult to read, was the name of the band which was "Dead Kennedys". To the left of the picture, as one looks at the picture, in a column, one word to a line, appear the words "Too Drunk To Fuck". Those words also were not difficult to read. The evidence of the defendant was that these words were taken from one of the songs performed by the "Dead Kennedys".

The defendant gave evidence that his mother had purchased the T-shirt for his nineteenth birthday, which had been shortly before the day in question. The shirt had been purchased from a music shop at Elizabeth. The defendant said that he liked the "Dead Kennedys" and had no intention to offend anyone in wearing the shirt. He had worn it before and had not been aware of any adverse reaction to it.

Section 7(1) of the Act provides as follows: "A person who, in a public place or a police station - (a) behaves in a disorderly or offensive manner; or (b) fights with another person; or (c) uses offensive language, is guilty of an offence." 19. The maximum penalty for this offence is three months' imprisonment or a fine of $1,000.

The Act is of a type common in Australia. Section 7 appears in a part headed "Offences Against Public Order", which part contains provisions dealing with matters such as challenges to fight, begging alms, offensive weapons, trespassers, public meetings and so on. Another part of the Act, headed "Offences Against Decency and Morality" deals with matters such as indecent language, urinating in a public place, soliciting and like matters. Another part of the Act, headed "Nuisances and Annoyances", deals with matters such as unlawfully ringing doorbells, throwing fireworks, obstructing public places and so on.

I refer to these parts of the Act in particular because they contain provisions of a type common in Australia and of long standing. By and large, they deal with conduct which is either likely to be upsetting to or to offend many members of the community who would be regarded as average people, or likely to cause a disturbance because of an adverse reaction by such persons to the conduct. Many of the offences, although not all, involve conduct which does not cause harm or injury to any other person, but is the sort of conduct which many members of the community consider they should not have to tolerate.

Many of the relevant offences are defined in terms of the quality or nature of the conduct involved. Some of the offences are defined in terms which refer both to the quality of the conduct and to a particular result. For example, s7A deals with those who by, among other things offensive behaviour, interrupt or disturb the order and solemnity of a congregation gathered for religious worship.

It is also noticeable when one looks through the various provisions that from time to time Parliament has identified a relevant state of mind that must be established.

Thus, in s7A to which I just referred, a person is guilty only if by offensive behaviour the person "intentionally" interrupts or disturbs the gathering. Section 9A deals with the supply of methylated spirits by a person "knowing, or having reason to suspect, that it is intended to be drunk." Section 15, dealing with offensive weapons, punishes those who have such weapons "without lawful excuse". Section 22, dealing with indecent language, makes it an offence to use indecent language in a public place and in certain other specified situations, but then provides that apart from that it is an offence to use indecent language anywhere "with intent to offend or insult any person". Thus, when the indecent language is not used in one of the specified circumstances, there is an offence only if the prosecution establishes the relevant intent. Section 50, dealing with unlawfully ringing doorbells, penalises persons who, disturb another by "wilfully pulling or ringing the doorbell of a house" if that is done "without reasonable excuse". Section 58, dealing with the obstruction of public places, punishes a person who "wilfully obstructs the free passage of a public place".

Interspersed among the provisions to which I have referred are numerous provisions which create an offence in terms which merely identify conduct of a given type, and make no reference to any state of mind.

At this stage I say no more than that, in my opinion, it would not be surprising if Parliament intended to punish the commission of acts identified even if the person charged did not intend that the act have the relevant quality (for example, that of being offensive) or know that it had that quality. I say this because, in my opinion, it would not be surprising if Parliament, in the interests of protecting the sensibilities of the average member of the community, and in the interests of preventing the disputes and disorder which can follow when conduct which upsets and annoys takes place, took the view that members of our society can be expected to take care to ensure that their conduct does not offend or constitute a possible cause of disruption.

It is not surprising that it should be argued that the defendant is guilty only if an intention to offend or knowledge that he would offend could be proved. In today's society there is considerable emphasis upon individual rights such as freedom of speech, and there is no doubt that requiring proof of a guilty mind enhances freedom of speech. Moreover, the decision of the High Court in He Kaw Teh has emphasised that the starting point in interpreting a statute which creates an offence is the presumption that no offence is committed unless a guilty state of mind is proved.

However, as I have already noted, there is no universally applicable guilty state of mind, assuming that one is required. The relevant state of mind can vary from offence to offence. In the present case, in view of the prosecutor's concession, the question is not whether or not a guilty mind is required, but whether Parliament intended to punish only those who intend or foresee that their behaviour will be offensive, or intended to punish those whose conduct gives offence unless they reasonably thought that it would not do so.

It appears that for some time in this State authority favoured the view that to obtain a conviction it is not necessary to prove an intention to offend or knowledge that the conduct will offend. That was the view taken by Napier CJ in Densley v Merton [1943] SAStRp 31; [1943] SASR 144. The same view was taken by Wells J in Normandale v Brassey [1970] SASR 177, dealing with the offence of behaving in an indecent manner in a place other than a public place so as to offend or insult any person contrary to s23 of the Police Offences Act. Wells J examined a number of the sections in the relevant part of the Act as it then was, and noted (at 179): "...that they are designed to prevent behaviour that is inherently offensive, or, depending on circumstances, that is capable of becoming offensive, from adversely affecting members of the community." 30. He noted that the provisions by and large directed one's attention to the quality or character of the conduct in question and sometimes to a consequence of that conduct. He noted that on occasions the relevant conduct was punished only if committed wilfully. I mention that Wells J was of the view that the defendant would not be guilty if his conduct was attributable to a mistake entertained by him on reasonable grounds (at 182).

31. In Ellis v Fingleton (1972) 3 SASR 437 Mitchell J appears not to have required proof of an intention to offend or knowledge that the conduct in question would offend.

32. But in Daire v Stone [1991] SASC 2928; (1991) 56 SASR 90 Legoe J, without referring to Densley v Merton [1943] SAStRp 31; [1943] SASR 144 or Normandale v Brassey [1970] SASR 177, said (at 93) that the prosecution had to prove: "...that the conduct of the accused person was intentionally done to bring about such an interference." 33. The offence charged in that case was behaving in a disorderly manner in a public place.

In Stone v Ford (1993) 59 SASR 444 the charge was behaving in an offensive manner in a public place. Bollen J referred to the earlier cases holding that it was not necessary to prove an intention to be offensive, but took the view that he should hold that it was necessary to prove that the person charged intended to be offensive. He took the view that He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 and the decision of Legoe J were authority to that effect. He also regarded the decision of the Court of Criminal Appeal of the Northern Territory in Pregelj v Manison (1987) 88 FLR 346 as authority to the same effect.

In the judgment under appeal in this case Bollen J again took the view, reluctantly, that he should follow the later cases rather than the earlier cases.

In my respectful opinion the decision in Pregelj v Manison (supra)is of no assistance in the present case. That dealt with a charge of offensive behaviour under the Summary Offences Act (NT). A majority of the Court held that the defendants were not guilty unless they intended the punishable act or foresaw it as a possible consequence of their conduct. Although the judgments refer to He Kaw Teh v The Queen (supra) and other cases, including Normandale v Brassey (supra), it is clear that the decision rested upon s31 of the Criminal Code (NT) which provided that a person was excused from criminal responsibility for an act omission or event unless it was intended or foreseen by him as a possible consequence of his conduct: see Nader J at 361, Kearney J at 362-363. This provision stands not as a statutory presumption but as a generally applicable provision. Rice J reached the same result by a different route, but again his reasoning depended upon the Code: see at 367-369. Because the reasoning of the Court depended so much upon the provisions of the Northern Territory Code, it is my opinion that the decision provides no guidance in the present case.

I have already referred to the decision of the High Court in He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523, which establishes the approach to be taken by Australian Courts.

There, the majority affirmed that statutes that create offences are to be read in the light of the presumption that a guilty mind is an essential ingredient of every offence, but that that presumption may be rebutted in the light of the terms of the statute or the subject matter with which the statute deals: Gibbs CJ at 528, Brennan J at 565-566, Dawson J at 590-591. Their Honours also noted that if a guilty mind is an element of the offence, there remains the question of identifying the mental state required to constitute the relevant guilty mind: Gibbs CJ at 529, Brennan J at 568-569.

As Brennan J said (at 567) the issue is ultimately one of statutory interpretation. The presumption which the Court applied reflects a long standing common law principle. Parliament is presumed to legislate in the context of those principles, because they are part of the fabric of our criminal law. Legislation creating criminal offences takes its place within the fabric of our criminal law. Such legislation can be fully and properly understood only if one assumes that Parliament intends legislation to operate within and affected by relevant common law principles.

The bare fact that Parliament has not spelt out a requirement to establish a guilty mind, nor identified the guilty mind required, is of no particular significance. That is because Parliament enacts the legislation to operate in a system in which there is a presumption that a person will be convicted of a criminal offence only if that person has a guilty mind.

However, because we are here dealing with a presumption or implication, it is open to being rebutted. Parliament has left it to the Courts, on a case by case basis, to determine whether any and what mental element is required for those provisions which do not identify any mental element. Deciding whether the presumption has been rebutted can be a difficult exercise, but is to be done by reference to familiar considerations.

I express the matter in terms of the rebutting of a presumption, even though the issue in this case is whether what must be proved is intent or knowledge on the one hand or absence of an honest and reasonable belief on the other hand.

I do so because it may be that the presumption is in favour of intent or knowledge in particular, as distinct from some state of mind such as absence of honest reasonable belief. In that respect, what their Honours said in He Kaw Teh v The Queen [1985] HCA 43; (1985) 157 CLR 523 is not decisive: cf Gibbs CJ at 528-529 and 534, Brennan J at 565-567 and 576, Dawson J at 590-593. It is clear that whether one is concerned with admitting a presumption or simply identifying the relevant state of mind, the matters to be considered are the same: Brennan J at 576.

Because the position is unclear, I proceed on the basis that the rebuttal of a presumption in favour of intent or knowledge as elements of the offence is in issue.

I have already referred to the legislative provisions in a general way.

There is, as I have said, a common thread of punishing and deterring behaviour likely to annoy, disturb or upset average members of the community. Expressed differently, the relevant provisions can be regarded as requiring conformity to standards accepted by a wide range of people in society. The provisions operate on actions and conduct likely to occur in everyday life.

I have also referred to the fact that from time to time Parliament has distinguished between the bare prohibition of conduct having a certain quality, conduct which has a certain character and produces a certain consequence, conduct done with a particular intention, conduct done with knowledge of a particular consequence and conduct done without lawful excuse.

The provisions of the relevant sections indicate that Parliament has given some attention to the question of a guilty mind or state of mind. Within some provisions, such as s22, the presence of a specific reference to an intent implies that in other parts of that same provision an intent is not required.

From this survey I conclude that when Parliament omits reference to any consequence or mental element, it may well have intended that guilt of the offence should not require proof of any intention, but while the terms of the legislation incline me that way, I do not consider the terms of the legislation as being conclusive.

However, my inclination towards that conclusion is confirmed by the subject matter of the legislation, a matter upon which I have already touched. It is commonplace that in our daily life we all must, in various ways, consider the interests and activities of others. We all understand that in various ways we should or must refrain from doing things either because society could not function unless we all adhere to some particular rule of conduct (such as driving on the left hand side of the road) or because society could not function unless we take some account of the wishes and sensibilities of society. I do not find it difficult to conclude, in the case of legislative provisions such as those in question, that Parliament may have intended to punish not only those who intended to give offence or knew that they would give offence, but also those who act unreasonably in the sense of having no reasonable grounds to believe that their conduct will not give offence.

On the other hand, when one considers the nature of the offences, although one would not say that a conviction for offensive behaviour carries with it serious social stigma, I acknowledge that many people would regard a conviction for such an offence as not without significance. Putting it a little differently, a conviction for such an offence is capable of reflecting adversely on a person's character. And the maximum penalty of three months' imprisonment or $1,000 is a significant penalty.

Next it is necessary to consider the consequence of adopting the view that intent or knowledge does not have to be proved. To do so is not to visit punishment upon a luckless offender, upon a completely innocent victim. I consider that most people in Australian society have a fair idea of the generally accepted standards of behaviour in our society. It makes sense to say that people must, in certain areas of their life, take care not to give offence to others by their conduct. To acknowledge that a person who honestly and reasonably believes that his or her conduct will not give offence cannot be convicted, means that it is only those whose beliefs can be regarded as unreasonable who will be convicted although they did not know that their conduct might offend. To punish such persons, albeit subjectively blameless, is consistent with the view that the purpose of the legislation is to compel people to take care that, without intending it, they should not give offence. Only those whose belief is unreasonable will be punished for conduct that they did not regard as offensive.

In the light of those particular considerations which incline me to the view that neither intent nor knowledge must be proved, I come back to the purpose of the particular provision.

It appears to me to be a provision intended to protect members of society from disturbance and annoyance through offensive behaviour, intended to prevent the sort of

disputes and disturbances that might arise if such behaviour is not prevented by law with the consequence that members of society react to it or resist it in other ways. To convict only those who intentionally or knowing offend will achieve a good deal, but does not go that extra step of requiring members of society to take care to ensure that they do not breach generally accepted standards of behaviour.

For those reasons I conclude that any presumption that intent or knowledge is an essential element of the offence is rebutted. If it is established that the relevant conduct is offensive in the required sense, a person charged will be convicted if the prosecutor proves that the person did not honestly and reasonably believe that the conduct was not offensive. If the magistrate dismissed the complaint because an intention to offend, or knowledge that the conduct would offend, was not proved, the magistrate erred. In view of the concession by the prosecutor it is not necessary to refer the matter back to the magistrate for further consideration to clarify that issue.

57. I agree with the substance of the reasons of the Chief Justice. I agree the appeal should be dismissed.

58. I agree with the reasons of the Chief Justice and that the appeal ought to be dismissed.