20th May 2013

A young drunken Irish lad charged by Police with using offensive language (the 4 letter “F” word) in a Public Place which he repeatedly directed at Police and passersby. What penalty was imposed by the Magistrate at the Local Court ? Can you guess? Was this penalty to harsh or too lenient or was it just right? In my opinion the Magistrate “nailed it”.

In a recent case, which I referred to below, my client was charged with offensive language involving the commonly used the 4 letter “F” expletive in a public place and repeatedly directed to the police and passing public.

It was on the bottom end of the scale of seriousness as far as I was concerned with a touch of comical mischief in which no one was hurt and not deserving of any punishment by the court in the circumstances.

Being arrested often teaches an offender a salutary and helpful lesson. Having a photograph taken in an inebriated state, and being fingerprinted, (with this information automatically shared overseas with other Law Enforcement Agencies) plus a short period in the police cells and the requirement that he or she attend the court is a very humbling experience and is often sufficient punishment. Also it’s an expensive and time consuming exercise as the services of a Lawyer are needed to achieve the most lenient outcome. There are always multiple layers of penalties.

I set out the factual background and outcome of the case at the bottom of my research on the matter.  This is not intended to be a heavy or intellectual commentary but an interesting and thought provoking case.

My brief was to analyse of the Section 4A of the Summary Offences Act, in conjunction with the events of the evening of the offence and provide the court with details of my client’s previous history and background.

Section 4 and Section 4A of the Summary Offences Act requires a person to “act nicely” and not to behave offensively in a public place or to use offensive language. The maximum penalty under the act is $660 or imprisonment for three months.

This simple statement of the law is not as simple as you might think. This matter has more quills than a porcupine.

What is offensive behavior?

What use offensive language?

Obviously there are numerous degrees of behaving offensively. The scale ranges from aggressive, appalling and disgraceful behavior to silly, juvenile, stupid, high spirited and thoughtless behavior.

Take the word “offensive” and look at some of synonyms or variations of the word offences: –threatening, unpleasant, nasty, distasteful, disgusting, odious, hateful, insulting, abusive, rude, insolent, discourteous, and disrespectful.

A saying that I frequently hear on television is “he disrespected me”. This is a very personal evaluation by the person to whom the language was targeted. Put simply “you embarrassed me, you hurt my feelings and you make me look foolish amongst my friends” (sob sob!!!!)

A person, the focus of the inflammatory attack may be absolutely furious with the comment, whilst an outside observer may think it is not quite as distasteful as the recipient of the abuse does.

A judge or a magistrate may well think that the charge should never have been brought before the court, that it is a waste of the court’s precious time and the whole thing is a “storm in a teacup” and should be dismissed without penalty.

Similarly a police officer who has been told in colourful colloquial terms by a member of the public us to “go away and tie your shoelaces” (“on your bike” or “get lost” or “leave me alone”) take offence. Whether the public would find it offensive is determined by the Court which applied an objective measuring tool.

It may not be nice, but is it offensive? It must arouse disgust in the mind of the mythical reasonable person.  Ahhh, the reasonable person test. The Legal mythical “reasonable person” is actually the Judge or Magistrate – a view of what is reasonable by one Judge or Magistrate may be completely different from the view of other Judges and Magistrates, but fortunately we, in Australia can resort to the legal appeal process if we feel wronged.

This type of language is not apparently used in refined or polite society (the flag bearers being the House of Windsor, the Vatican or a Monastery of monastic monks who have taken the vow of silence).

Possibly if the phase commenced or end with the word “please” it would significantly dilute the preserved and nasty connotations and unpleasantness of the request (“would you please F… off” or please f….off”)

I listen to people talking around me and the “F” word is frequently used. This word is now commonly used in theatre and film.  Who is this mythical reasonable person? Some  groups cry out for the head of the person who has offended, yet many of us find it hard to see the offence.

As I was analysing this matter, a quirky thought came to me about my client’s Irish dialect. The “F” word sounds like “fork off”, “faulk off” or “foork off” and with the lovely Irish lilt it does not sound quite as harsh and terrible although we all know what he was saying regardless of the pronunciation?

What about people who swear in their native language? Again we know what the person was saying because of their demeanour.

The vernacular of the world has undergone a phenomenal change in one generation. New words seem to be invented every day and become generic. For example such Kleenex for handkerchief.

“You mongrel” can actually be a term of admiration. Similarly “you bastard” can be taken as a term of endearment. My son calls me a “cockroach” as I have come through various medical procedures unscathed.

Migrant Australians were called “wogs” and “dagos”. Now this  name is worn as a badge of honour by our new Australian Citizens and Residents.  An Italian Solicitor who worked for me years ago insisted tongue in cheek “Call me a wog, but don’t call me a dago”.

Australians are not averse to taking the “mickey” out of anyone including the Prime Minister of Australia, the President of the United States of America, the Royal Family, the Pope etc.

Fortunately the Court Systems are not manned by robots( thankfully not yet ), otherwise I suspect that most of the population could be charged with offensive language or behaviour at some time in their life. Fortunately humans determine and judge whether an offence has been committed and this has to be put in the context of all the background and circumstances of the matter.

My client was very intoxicated (as full as a goog) and could hardly stand up, but he was not threatening or argumentative, but rather in high spirits.

The police were concerned for his safety as he was blocking traffic in a very busy intersection. The police gently led him from the roadway and my client went with them voluntarily and without resistance.

The matter might well have ended there however the incident created a crowd of people, and my Irish client asked them what they were looking at and told them to “fork off”.

When the police asked for my Irish client’s identification he also suggested that the police should also “fork off”. From my perspective, he was arrested largely because he could not produce any identification rather than the offensive language. He didn’t have his passport with him as he was afraid of losing it. Also , I think the Police wanted to make sure he did not injure himself and that they executed their civic responsibility appropriately in the circumstances.

Be that as it may there was no violence associated with the matter, and my intoxicated Irish client had never had any previous court or criminal convictions. Underneath, he was a likeable larrikin and was not  hurting anyone except himself. It would be a terrible indictment of our legal system if a person were to be convicted of such a minor transgression. A conviction appears for time immemorial on a person’s criminal record, possibly impeding his application for Australian citizenship, his holiday movement to other countries, job opportunities and so forth.

What was the court’s judgement? Can you guess?

My Irish client didn’t know what to expect, although I had indicated my views. At the very least he expected a monetary penalty and to be fined about $500.

In fact, the Magistrate dismissed the charges without penalty, under section 10 of the Crime Sentencing Act, and the Irish lad left the court in a cheerful mood, optimistic of his future in the “land down under” and another soon to be a new “wild colonial boy”.

Was this penalty to harsh or too lenient or was it just right?


Offensive Language and behavior.

Offensive Language and behavior.

In my opinion the Magistrate “nailed it”.