can i get away with offensive language? no s#%t!

Please note: this post contains language that some may find offensive.

holy #$%^

A university student has today been cleared of an offensive language charge today after a Local Court magistrate deemed the word “prick” not offensive to a reasonable person. Another magistrate several years ago deemed the phrase “youse are fucked” said with a rude finger up after a drunken night out was also not offensive. There was widespread public condemnation at the time of that decision. It may have been because an (unreported) case said that the word “fuck” was not offensive to police officers because the word had become a part of police culture.

(Source: SMH, Nyman Gibson Stewart Lawyers)

So let’s look at the relevant legislation to see what these people were charged with and how the magistrates came to decide as they did.

The legislation

The offence of using offensive language is contained in subsection 4A(1) the Summary Offences Act 1988 (NSW). The subsection says “a person must not use offensive language in or near, or within hearing from, a public place or a school”.

There are two elements to the offence:

  • The accused used offensive language; and
  • in or near, or within hearing from, a public place or a school

Determining whether language is “offensive” is an objective test. The case of Worcester v Smith [1951] VLR 316 held that “offensive” meant conduct (or in this case, language) that “wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person” (at 312).

It was held in the case of Re Marland (1963) that a reasonable person must not be “thin-skinned”.

Kerr J mentions in Ball v McIntyre (1966) 9 FLR 237 that despite conduct being “in some sense hurtful or blameworthy, or improper”, it must still be “offensive within the meaning of the section”.

(Source: LexisNexis’ Criminal Practice & Procedure NSW)

Defence

A statutory defence exists for this offence.

Subsection 4A(2) says “it is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.”

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6 responses to “can i get away with offensive language? no s#%t!

  1. on an unrelated note, pang: I love the photos on your flickr of the planes…they are very awesome =)

  2. Thanks Jason

    Hmmm, back on topic, Benny 叔叔, I wonder what would be the consequences if I went 屌你老母 to a copper, or told him to 仆街.

    Is it language specific, and would it matter if the copper can/can’t understand Canto?

  3. It’s a good question. I don’t know the answer to whether or not it’s language specific. I guess it could be argued that swearing in Cantonese to a person that does not speak the language may be offensive within the terms of the legislation, taking into consideration the situation, environment and tone in which it was said.

  4. I think the crux of this is that while the word “prick” and “fuck” are considered improper and rude these days, they are insufficient to satisfy the objective test as set out in Worcester v Smith [1951].

    Using that same test, I would think that the case is not strong for a cop being insulted in a language they could not understand – objectively, would an ordinary person be hurt, outrage or disgusted if they have no clue what the other person is saying – even if the tone indicates that it was something unpleasant??

    On the other hand, where they can understand the language, I think there would be a case for 屌你老母 (you should never bring someone’s mother’s into the equation, no matter how much you hate them), while 仆街 might not be as strong a case… based on the fact that it would hurt people’s feelings and arouse outrage.

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