Offensive conduct

If you have been charged with an offensive conduct offence, then the prosecution must establish certain elements of the offence beyond reasonable doubt, including:

You were in, near, or within view of a public place or school AND
You acted in an offensive manner

'Offensive' means that the conduct would wound the feelings or cause disgust or outrage in a reasonable person (Ball v McIntyre; Smith). An example of offensive conduct may be urinating in a public place or street fighting.

If the conduct, however, only involved offensive language, then this would not be enough for the offence to be established. Furthermore, the prosecution needs to show that you either intended to be offensive, or were recklessly offensive. You must be shown to have knowledge that your conduct would at the very least offend.

Penalty

The maximum penalty for this offence is 3 months’ imprisonment and/or a $660 fine (6 penalty units) – s.4(1) Summary Offences Act 1988.

Offensive language

If you have been charged with an offensive language offence, then the prosecution must establish certain elements of the offence beyond reasonable doubt. These include:

You were in, near, or within view of a public place or school AND
You used offensive language

'Offensive' for this offence means the same as it does for offensive conduct offences. Again, the prosecution needs to show that you either intended to be offensive, or were recklessly offensive. In determining whether the language used was offensive, the court will take into consideration the words used and the circumstances in which the words were used, such as who was present at the time and who the words were directed at.

Penalty

Generally, the maximum penalty for this offence is a $660 fine (6 penalty units) (s.4A(1) Summary Offences Act 1988). However, where the case requires, the court may make an order of up to 100 hours of community service order – s.4A(3) Summary Offences Act 1988.

Defences

There are legal defences available to persons who have been charged with offensive conduct or language type offences. Does your scenario fit into a legal defence?

The conduct is NOT offensive - Ball v. McIntyre is a very old but still leading case in the area of offensiveness and reasonableness. Kerr J said the following in relation to whether an action is offensive or not :

"... some conduct which is hurtful or blameworthy or improper is NOT offensive within the meaning of the section. What has to be considered in the particular case is whether the conduct in question, even if in some sense hurtful or blameworthy, or improper, is also offensive within the meaning of the section. It is important, I think, for this point to be made because it is sometimes thought that it is sufficient to constitute offensive behavior if it can be said that conduct is hurtful, blameworthy or improper, and thus may offend. Conduct which offends against the standards of good taste or good manners, which is a breach of the rules of courtesy or runs contrary to commonly accepted social rules, may well be ill advised, hurtful, not proper conduct. People may be offended by such conduct, but it may well not be offensive within the meaning of the section. "

Interestingly, there are numerous examples where the F-bomb or C-bomb have been held NOT to be offensive.

Reasonable excuse – can you show that you had a reasonable excuse for conducting yourself or using the language in that offensive manner? For example, if you were acting in an unsavoury manner in a hotel foyer, but you had acted in this manner because your drink had been spiked.
Intoxication – as this offence requires the prosecution to establish intention, if you were intoxicated then this may negate the voluntariness of you engaging in the offensive conduct (Jeffs v Graham (1987) 8 NSWLR 292).
Self-defence – a person believes that the conduct was necessary to defend themselves or another and the conduct is a reasonable response in the circumstances as the person perceives them.
Necessity – you had conducted yourself in that manner to prevent serious injury or danger.

Ideally you should speak to your solicitor before you speak to police – you need advice as to your rights and obligations so that you are more comfortable with the processes and understand what is happening. Only then can you make the best decisions.

YOUR NEXT STEPS WHEN YOU ARE CHARGED WITH AN OFFENSIVE CONDUCT TYPE OFFENCE

1. Contact us. Early contact with Tankard’s Law is extremely important, so that you can start to take the right actions immediately. Should you pay the Penalty Notice or elect to take the matter to Court? What are the time limits for making these decisions? Obtaining advice in relation to making a statement to police or not. You need early advice.

2. Gather material immediately. You should immediately type out your version of what occurred during the incident and provide this to your lawyer – details get lost in your memory over time. This step is crucial. You should find out who else might be a witness to what took place and get their details. This is particularly important if the actual words said are the basis for the charge - what was said? How was it said?

3. Prepare. Your best chance in achieving the outcome that you want is to prepare your case properly. Let us help you.

If you have a question about the processes involved in arrest or charge, or attending court and what charges you face or need help understanding what the police are saying to you, contact us by phone on 02 6921 3220 or make a website enquiry. We will get back to you promptly.

Principal Solicitor and Director, Zac Tankard, has been helping Riverina locals charged with criminal offences since 1998. There is no one better qualified to get behind you when you need it most.