1 Appeal against conviction allowed. 2 I set aside the conviction and the penalty imposed by the Magistrate

Judgment

Danny Lim (the appellant) appeals against the conviction entered by her Honour Magistrate Stapleton on 9 February 2016 at the Waverley Local Court. The appellant pleaded not guilty to one count of behave in an offensive manner in a public place contrary to section 4(1) Summary Offences Act 1988.

Facts

The facts of the case are not in dispute. At about 8.40am on 24 August 2015 the appellant was standing near the intersection of New South Head Road and Ocean Street at Edgecliff, wearing a sandwich board. On the front of the sandwich board was written,

PEACE SMILE

PEOPLE CAN CHANGE

“TONY YOU C U N’T..”

LIAR, HEARTLESS, CRUEL

PEACE BE WITH YOU

f DANNY’S PAGE

On the back of the sandwich board was written,

“TRICKY LYING

TONY YOU C V N’T

SCREW EDUCATION

HEALTH, JOBS &

THE ENVIRONMENT

CHILDREN’S CHILDREN’S

FUTURE

SMILE

f DANNY’S PAGE

The prosecution case was that the appellant by inverting a rounded capital “A” in the word “can’t” on the front of the sign had referred to the then Prime Minister as a “cunt” (the impugned word). The appellant’s case on the appeal was that the conduct in question was not offensive, that the conduct merely involved the use of offensive language and could thereby not amount to offensive conduct, that the political nature of the appellant’s communication amounted to a reasonable excuse for the conduct and finally that section 4 was invalid because it burdened the implied freedom of political communication. In relation to the last point, the appellant issued section 78B notices and the Attorney-General of New South Wales intervened in the proceedings. It was common ground, in accordance with authority, that if the appeal was to be allowed on any or each of the first 3 arguments that the Court should not proceed to determine the validity of section 4: ICM v Commonwealth (2009) 240 CLR 140 at [141].

The relevant law

The applicable principles to be applied in determination of the appeal are as follows. Section 18(1) Crimes (Appeal and Review) Act 2001 provides that the appeal is a rehearing on the certified transcripts of evidence, obviously as supplemented by reference to the exhibits tendered in the Local Court and is not an appeal de novo: Gianoutsas v Glykis [2006] NSWCCA 137 at [24]-[31]; The principles governing appeals from judges sitting without a jury apply in that the appellate judge is to form his or her own judgement of the facts while recognising the advantage enjoyed by the Magistrate who saw and heard the witnesses called and observing the natural limitations stemming from proceeding wholly or substantially on the transcript record: Charara v R [2006] NSWCCA 244 at [17]-[22]. Whilst the Magistrate’s reasons are not part of the certified transcripts referred to in section 18(1), recourse may be had to them since the appellate function could not properly take place without reference to them: Charara [23]-[24]. The Court is obliged to give the judgement which in its opinion ought to have been given in the first instance: Fox v Percy (2003) 214 CLR 118 at [23]. The powers of the District Court are exercisable where the appellant demonstrates that the order the subject of the appeal is the result of a legal, factual or discretionary error in which event the appellate court can substitute its own decision based on the facts and law as they then stand: Dyason v Butterworth [2015] NSWCA 52 at [28]. The issue of whether or not error is strictly required before the District Court can intervene was considered but not decided in AG v Director of Public Prosecutions [2015] NSWCA 218. I have proceeded on the basis that I am bound by the law as it is stated in Dyason and other subsequent decisions including Bandana v Director of Public Prosecutions [2016] NSWCA 140 at [10] and Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 at [91]. The term “error” has no precise meaning. It refers broadly to the satisfaction of the appellate judge that the trial judge was wrong and should be corrected. Put negatively, it means that the judgment of the trial judge will not be set aside unless the appellate judge is satisfied that the judgment is wrong. How that state of satisfaction is achieved will depend on a range of factors. A miscarriage of justice warranting intervention may occur in the absence of “error” in the ordinary meaning of that term: AG at [34] per Basten JA. Section 4 Summary Offences Act 1988 provides

A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school.

Maximum penalty: 6 penalty units or imprisonment for 3 months.

A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language.

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.

Section 4A Summary Offences Act 1988 relevantly provides

A person must not use offensive language in or near, or within hearing from, a public place or a school.

Maximum penalty: 6 penalty units.

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.

An offence can be made out even if there was no person present to witness the behaviour. What is required is that a hypothetical reasonable person witnessing the conduct would be offended: State of New South Wales v Beck [2103] NSWCA 437 at [162] and [165]-[166]. For behaviour to be offensive, it must be likely to provoke reactions such as anger, disgust, resentment or outrage: Beck v State of New South Wales [2012] NSWSC 1483 at [20], Connolly v Willis [1984] 1 NSWLR 373 at 384, Ball v McIntyre (1966) 9 FLR 237 at 243, Worcester v Smith (1951) VLR 316 at 318. The behaviour must arouse a significant emotional reaction: Ball at 243 and Monis v The Queen (2103) 249 CLR 92 at [303] per Crennan, Kiefel and Bell JJ. It is not enough that the conduct is hurtful, blameworthy or improper even though that might offend someone. The reasonable person is reasonably tolerant and understanding and reasonably contemporary in his or her reactions: Ball at 245. The use of an offensive word will not be prima facie offensive. Whether or not the language is offensive will depend on the application of an evaluatory standard after due consideration of the circumstances and the context: Dalton v Bartlett (1972) 3 SASR 549 at 555, cited in Dowse v New South Wales [2012] NSWCA 337 at [24] per Basten JA (McColl and Hoeben JJA agreeing). Conduct capable of amounting to an offence should be limited to conduct at the high end of the range that could be considered “offensive”. The purpose of section 4 is to protect members of the public from undue disturbance of the use and enjoyment of public places: Coleman v Power (2004) 220 CLR 1 at [32] per Gleeson CJ. Section 4 extends to conduct in or near a school. This indicates that part of the purpose of the section is to restrict behaviour that might cause a parent or guardian concern for what their child may be exposed to. As such in assessing whether conduct is offensive, the reaction to it being witnessed by children must be considered. Where constructional choices are open, a meaning that limits the effect on political communication is to be preferred: Monis at [331]. The legislation should be read as going no further than is necessary to achieve its protective purpose, consistent with its terms, without unduly burdening political communications: Monis at [334]. In Coleman, Gleeson CJ at [14]-[15] said that a Queensland statute prohibiting the use of “threatening, abusive or insulting words” in a public place required more than the language being “merely derogatory” of the person to whom it was addressed. The language needed to be of such a nature that the use of it in a public place was contrary to the contemporary standards of public good order and goes beyond an exercise of freedom to express an opinion on controversial issues. The reasonable excuse defence involves an evaluative judgement. It is open to conclude that the political nature of a communication could be considered to be a reasonable excuse, in an appropriate case. The term “reasonable excuse” has been used in many statutes. What is a reasonable excuse depends upon the circumstances of the case and the purpose of the provision to which the defence of reasonable excuse is an exception: Taikato v The Queen (1996) 186 CLR 454 at 464 per Brennan CJ, Toohey, McHugh and Gummow JJ. A reasonable excuse is no more or less than an excuse that would be accepted by a reasonable person: Taikato at 470. The onus of proving a reasonable excuse is on the appellant on the balance of probabilities.

Analysis of the Magistrate’s reasons

The Magistrate gave an ex tempore judgment. The Magistrate set out the terms of the sandwich board and accurately recorded the circumstances of the appellant wearing it on 24 August 2015. The Magistrate accepted that the appellant’s use of the impugned word was intended to be a play on words, in particular the word “can’t”. The Magistrate referred to the evidence about the appellant’s intentions, before correctly stating that the appellant’s intentions were irrelevant. She noted that the appellant intended to arouse discussion. She also noted that the Daily Telegraph had not published the impugned word a week earlier (by pixilating it out of a photograph of the sandwich board). The Magistrate then set out the legal argument presented on behalf of the appellant. Ultimately, the Magistrate found it to be a very “straightforward case”. She found that the reasonable person would have been offended by the sandwich board because the Impugned word was used by reference to the Prime Minister. The Magistrate’s reasons did not state the reasons why a reasonable person would have been offended. I interpolate that the Magistrate found that it was the use of the impugned word alone that was offensive. In both of these respects I am satisfied that the Magistrate fell into error. First, the Magistrate failed to give reasons for her finding as to why the conduct was capable of arousing a significant emotional reaction and was thereby offensive, and second the only available inference is that Magistrate decided that the use of the impugned word was of itself offensive.

Consideration

Having found error, it is now necessary to consider the decision to be made on the basis of the facts and the law as they now stand.

Was the conduct offensive?

The only aspect of the appellant’s conduct that could be considered to be offensive was the use of the impugned word on the front of the sandwich board. The use of the upside down pointed capital “A” on the back of the sandwich board did not create the same logical inference that the use of the impugned word was intended and I am not satisfied beyond reasonable doubt that the reasonable person would read the back of the sandwich board as a reference to the impugned word. It should be noted that on both the front and back of the sandwich board that the appellant used the apostrophe in the same position as if he was using the word “can’t”. There was nothing that could have been considered to be offensive by the appellant wearing a sandwich board containing a political comment, in the absence of the impugned word, for example if the appellant had used the word “can’t” instead. At its highest, the prosecution case is that the use of the impugned word was used as derogatory description of the Prime Minister, and it is the use of the impugned word that is offensive. As a matter of law, the impugned word is not necessarily offensive, even when used in a public place: Dalton at 555. The impugned word is often used as a derogatory term to describe a person of any gender. In this use, it is best described as an expletive, rather than as an intensive or it being used for its literal significance. Politicians and their views are often subject to criticism in public. This is an essential and accepted part of any democracy. That criticism can often extend to personal denigration or perhaps even ridicule, but still maintain its essential character as political comment. There is no reason to conclude that the Prime Minister, as the leader of the Federal Government should be treated any differently to any other person who holds or seeks political office. The front of the sandwich board, at the height of the prosecution case, conveyed no more than a reference to the Prime Minister in derogatory terms. It was clear that the description of the Prime Minister was given by reference to disapproval with the policies of the government and or the Prime Minister’s decisions relating to those policies. The impugned word is now more prevalent in everyday language than it has previously been. It is commonplace in movies and television entertainment, although it is not without restriction in that context. The impugned word is of ancient English origin and featured in Shakespeare’s Hamlet. The prevalence of the impugned word in Australian language is evidence that it is considered less offensive in Australia than other English speaking countries, such as the United States. However, that also appears to be changing as is evidenced from the increase in American entertainment content featuring the impugned word. References to the impugned word are often included in print media, usually a reference to a direct quote with the “u” or the “un” removed. This treatment of the word does little to alleviate the meaning to be conveyed and is directed more at decorum than avoiding offence that may be caused by the publication of the impugned word. It was also open to read the front of the sandwich board as a play on words, comparing the similarity in the pronunciation of the word “can’t” and the impugned word. This is particularly demonstrated by the inclusion of the apostrophe in the relevant position. The front of the sandwich board is capable of being construed as being clever or light hearted and thereby removing or reducing the force of the impugned word. It is also capable of being read as the word “can’t”. I am not satisfied beyond reasonable doubt that a reasonable person considering all of the circumstances of the case would have had a significant emotional reaction such as anger, disgust, resentment or outrage to the appellant’s conduct. Whilst the conduct was inappropriate and in poor taste, I am not satisfied beyond reasonable doubt that it was offensive, or so offensive as to be considered in the high end of the range of what would be considered to be offensive.

Was the offensive conduct any more than the use of offensive language?

The appellant’s second contention was that the appellant’s conduct involved no more than a use of offensive language and was thereby excluded from the offence of offensive conduct, by section 4(2) Summary Offences Act 1988. The term “use” is defined in the Macquarie Dictionary to “employ for some purpose, to avail oneself of, to expend or consume, or to utter words or speak a language”. The word in section 4(2) is “using” but I do not think that is a significant difference. Whilst the definition of “use” refers to spoken language, the appellant says that there is no good reason to restrict the meaning of the word to that narrow use in the context of the legislation. In other words, the display of the impugned word on the front of the sandwich board was no more than a use of offensive language. The prosecution case is that what the appellant did was to prepare and wear a sandwich board in a public place that contained offensive language and that the whole of his conduct should be considered to be offensive. To determine the interpretation of section 4(2) it is necessary to consider it in the context of the statute, bearing in mind the legislative purpose: SAS Trustee Corporation v Woollard [2014] NSWCA 75 at [58] per Bathurst CJ. The offensive language offence in section 4A Summary Offences Act 1988, provides that, “[A] person must not use offensive language in or near, or within hearing from , a public place or school”. The narrow definition of “use” in this context promotes the purpose of the legislation, to restrict the uttering or speaking of offensive language in public places. The requirement that the offensive language must be used within the hearing of a public place or school supports this interpretation. The wider definition of “use” of offensive language, such as where it is written, is covered by the offence of offensive conduct. That interpretation is consistent with the limiting employment of the word “merely” in section 4(2). For these reasons, the word “using” in section 4(2) means speaking or uttering offensive language and the appellant has not made out this contention.

Did the appellant have a reasonable excuse for his conduct?

The Magistrate accepted the only evidence before her that the appellant made and wore the sandwich board for the purpose of making a political comment. If I am wrong in the conclusion that the appellant’s conduct was offensive, then it is open to balance the right of freedom of political communication with the offensiveness of the appellant’s conduct, to determine if the appellant had a reasonable excuse for his actions. In the present case, the appellant did not unequivocally use the impugned word. The front of the sandwich board presented a depiction of the word “can’t” that could be read as “cunt”, but it was not the only logical conclusion to draw. The language used was clearly a play on words. If the appellant’s conduct was offensive, contrary to my view, in my view it was only marginally so. The Magistrate accepted the appellant’s evidence that he did not intend to be offensive by using the words that he did. In my view this is also a relevant consideration. I am satisfied on the balance of probabilities that in the circumstances of this case that the appellant has demonstrated a reasonable excuse for his actions that in the course of expressing a political comment he published a play on words that was capable of being construed as offensive.

Is section 4 Summary Offences Act 1988 valid?

For the reasons expressed, I am not satisfied beyond reasonable doubt that the appellant has committed the offence provided for by section 4. Accordingly, it is inappropriate to decide this issue.

Conclusion

The orders I make are as follows:

Appeal against conviction allowed. I set aside the conviction and the penalty imposed by the Magistrate.

**********

Amendments

29 August 2017 - Jurisdiction changed to Criminal

26 April 2019 - 26 April 2019, amended by ewaite0

removal of "[" from paragraph 58.

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