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