Offensive language or conduct offences are measured in relation to the circumstances surrounding the event at the time. This includes (but is not limited to) the phrases or words used, the people present, the place and time. The mere use of a swear word does not make it offensive.
Police may charge people for offensive language, particularly when the words f**k or c**t are used. However, in circumstances when Police charge someone only to maintain order and command authority, this may be a wrongful exercise of their discretionary police power.
What are the applicable penalties?
- For offensive conduct, the penalties are $660 and/or 3-months imprisonment.
- For offensive language, the maximum penalty is a $660 fine.
Both are considered Summary Offences which means they are dealt with in the Local Court by a Magistrate in the absence of a Judge and Jury.
What must the Prosecution prove?
The Prosecution must prove beyond reasonable doubt that: -
- The conduct or language would cause offence in the mind of the reasonable person, and;
- That the offensive conduct or language was able to be seen or heard in a public place or school.
Who is this ‘reasonable person’?
The “reasonable person” is a fictional person used by judges to determine whether conduct is reasonable according to current community standards. In the area of offensive language and conduct, the Courts have emphasised that the reasonable person is ‘not easily shocked, but rather is largely tolerant (if not permissive), understanding, secular, and contemporary in his reactions’.
What is a ‘public place’?
A ‘public place’ is defined as a place (whether or not covered by water), or a part of premises that is open to the public, or is used by the public whether or not on payment of money or other consideration, whether or not the place or part is ordinarily so open or used and whether or not the public to whom it is open consists only of a limited class of persons.
This will include parks, roads, beaches, shopping centres, movie theatres and licensed premises.
What defences are available?
The defence of ‘reasonable excuse’ exists if you can prove that you had a reasonable excuse for your alleged offensive conduct or language. Examples of this have included cases where the accused has sworn reflexively. In one instance the accused swore when a heavy implement was dropped on their foot, while in another case the accused swore when suddenly provoked to anger.
What if I plead guilty?
If you enter an early plea of guilty to the offence, you may be entitled to a discount on your sentence. We would recommend this course if the facts are overwhelmingly in favour of your conduct or language being declared as offensive.
The Magistrate may choose to impose a Conditional Release Order with or without a conviction or a Community Correction Order with or without a fine.
What if I plead not guilty?
If you choose to plead not guilty, your criminal defence lawyer will put forward submissions to argue that your conduct or language was not offensive, or that you had a reasonable excuse for doing/saying what you did.
We are here to help
You shouldn’t feel compelled to plead guilty to a charge of offensive conduct and/or language without a proper analysis of your case. This is a tricky legal area where a lot depends on the interpretation of words and the meaning given to them. You don’t have to do this alone. In fact, your prospects of a fair and just outcome are increased when you obtain legal assistance.
Fourtree Lawyers have extensive experience assisting clients on the Central Coast, Newcastle, the Hunter Region and Sydney with matters related to Offensive Language / Conduct in Court. Our lawyers can explain and guide you through the entire Court process and work with you to minimise the legal ramifications of your offence. Instructing a lawyer to act on your behalf will ensure you fully understand your position and your options and will assist you in getting the best possible results for your particular case.
Contact our Central Coast Lawyers on 1300 529 444 as soon as possible. The earlier we can start building a strong case for you, the better your chance of getting a good outcome.
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