The Summary Offence Act 1998 (NSW) provides penalties for behaving "in an offensive manner" in or near or within view or hearing from a public place or school and using Offensive Language in or near, or within hearing from a public place or school.

The maximum penalty for Offensive Conduct is a $660.00 fine or imprisonment for 3 months and for Offensive Language a $660.00 fine. 

OFFENSIVE CONDUCT

What is offensive is usually considered from the point of view of the reasonable person.

The use of Offensive Language itself, without more does not amount to behaving in an Offensive Manner.

It can be a defence to a charge of Offensive Behaviour if the person charged satisfies the court on the balance of probabilities that they had a reasonable excuse for the conduct. 

OFFENSIVE LANGUAGE

For Offensive Language the same definitions apply in relation to the terms "public place" and "school".

It is also a defence to a charge of Offensive Language if a person can satisfy the court on the balance of probabilities that they had a reasonable excuse for the language used. 

OTHER SUMMARY OFFENCES

There are a number of other offences in the Summary Offences Act 1998, which relate to specific conduct. The following are some examples:

• Obscene exposure.
• Obstructing traffic.
• Damaging Shrines, monuments or statues.
• Climbing on or jumping over building or other structures.
• Damaging and defacing property by means of spray paint.
• Act of violent disorder.
• Custody of an offensive implement.
• Custody of a knife in a public place or school.

CHARGE OR SUMMONS

A person may be brought before the court for Offensive Conduct/Language by either charge of summons. If you are spoken to by the Police for one of these offences you are most likely to be charged as the offence generally relates to behaviour which the Police themselves see first hand, such as conduct or language used when a person is intoxicated or is involved in an altercation with other persons, which amounts to a breach of the peace.

However, because the matter is not viewed as seriously as many other criminal offences (the offence is contained in the Summary Offences Act as opposed to the Crimes Act where most serious criminal offences are contained), the Police may be prepared to bring a person before the court by way of Field Court Attendance Notice (a Notice like a Traffic Infringement Notice, which a person signs acknowledging that they will attend court) or, by way of Summons. A Summons contains the same allegation as contained in a Charge Sheet, but does generally not contain a summary of the alleged conduct as is ordinarily contained in Facts Sheet which given to a person upon release from the Police Station after the charging process takes place, if Bail is granted. 

RECORDS OF INTERVIEW

The Police will not always seek to interview you when considering charging you with this offence, as the Police may claim to have viewed the alleged conduct themselves. If you are asked to partake in a record of interview, however, you have the right to remain silent and you should seek legal advice. 

COURT PROCEDURE

Where the matter comes before the court by way of Charge, Field Court Attendance Notice or Summons, it will be listed for what is called "mention" date where you will ordinarily be asked whether you plead guilty or not guilty to the allegation. If you have been brought before the court by Field Court Attendance Notice or Summons, then you will receive a copy of the Breach Report, which are the summary of facts relating to the incident at court. If you do not have a legal representative the first time the matter comes before the court, you can generally seek an adjournment for approximately 2 weeks to get legal advice. 

IF YOU PLEAD NOT GUILTY

If you plead not guilty to the allegation the matter will be listed for hearing. You will be required to indicate how many witnesses if any, that you intend to call at the hearing, so the court will know the correct amount of time to allocate to the matter. The Prosecution witnesses will ordinarily be the Police who witnessed any of the alleged conduct or, who took part in procedural matters such as an arrest, or the issuing of a Field Court Attendance Notice.

If you choose to plead not guilty, you should seek legal advice as the hearing involves the Prosecution, through leading evidence, attempting to prove the case against you beyond reasonable doubt. It is up to the Magistrate to make the determination if the Prosecution are successful in proving the case. You may or may not wish to give evidence yourself, or call your own witnesses. 

IF YOU PLEAD GUILTY

If you plead guilty (or if you are found guilty at the end of a defended hearing), the Magistrate then need only consider the appropriate penalty to impose. You should obtain character references for use in tendering to the Magistrate and those references should preferably be type written and contain a statement by the referee that the referee is aware of the matter which brings you before the court. The reference should then make some general comments about the capacity in which the person knows you and their comments on your character.

If you plead guilty at any stage during the proceedings, the Magistrate is required, by law, to take that plea of guilty into account when imposing a penalty. The benefit by way of leniency is usually extended by a Magistrate for a plea of guilty. On a plea of guilty, the Police Prosecutor will tender the Facts or the Breach Report and a copy of your Criminal History, which is obtained by the Police conducting a finger print check (if relevant) and a name check.

Generally, the Magistrate is entitled to take into account matters which appear on your Criminal History, when imposing a penalty. 

EXAMPLES OF OFFENSIVE CONDUCT OR OFFENSIVE LANGUAGE

The Summary Offensive Act provides that a person can have a defence to a charge of Offensive Language or Offensive Conduct if it can be shown that they acted with "reasonable excuse". The considerations for whether there is a "reasonable excuse" are related to the circumstances immediately before the Offensive Conduct occurred or the Offensive Language was used.

An example of where there was no reasonable excuse was where a person used derogatory language towards 2 Police Officers. The person who used the words, which included swearing, was Aboriginal and the person was intoxicated and had, in the hours prior to the use of the language, been watching a video about Aboriginal Deaths in Custody. The Police Officers arrested the person and charged him with Offensive Language after warning him.

When a Magistrate first dealt with the matter there were a number of factors taken into account, which the Magistrate said amounted to the person having a reasonable excuse for the use of the language, such as that the language was not directed specifically to the 2 police officers who were present at the time and that the person, being of Aboriginal background had previously watched the video concerning Aboriginal Deaths in Custody.

When the Magistrate found that there was a reasonable excuse (after hearing the case for a second time) there was an appeal to the Supreme Court with the Judge in the Supreme Court saying that the events and circumstances immediately before the language was used did not amount to there being a reasonable excuse. 

FURTHER INFORMATION

This information is provided by the firm of Ryan & Bosscher Lawyers who specialize in this area of law. They are located at Level 1, 255 Castlereagh Street Sydney 2000, or call them on (02) 9266 0708. 

Ryan and Bosscher, Lawyers, is a specialist Criminal Law firm committed to providing quality service to clients. There are very few firms practising exclusively in the area of Criminal Defence, and with a reputation of hard headedness, dogged determination and fearlessness, Ryan and Bosscher has become a leading Criminal Defence firm in New South Wales. We are committed to Justice and the protection of an individual's rights. Our specialisation ensures provision of the highest standard of representation to any person charged with a criminal offence. Our familiarity with Criminal Law also ensures that Counsel briefed for complex advocacy matters are also highly qualified in the Criminal Defence field.