Butterworth v Geddes[2005] QDC 333

DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   At 12.50 a.m. on 8 October 2004, police officers were called to a disturbance at Walton Street, Mt. Isa. The appellant, Kaylor Maree Butterworth, had been drinking alcohol. She was in her own yard, and was using language such as “fucking leave them alone” and “fucking pigs”. When asked to settle down, a further tirade occurred and she stated “You cunts – you cunts can’t come into my yard”, “you can get fucked”.

2. [2]
   At the material time, there were children and other persons in the street. The appellant was charged and subsequently convicted after a trial of the offence of committing a public nuisance.^[1] She was fined $75.00 in default one day imprisonment and given one month to pay.

3. [3]
   Leave was sought to add grounds to the appeal against her conviction which include that the learned magistrate erred in finding that she used obscene language, that she behaved in an offensive or disorderly manner. The finding that police officers were members of the public was pursued on appeal but there was a specific finding that other members of the public were in the vicinity at the material time. It became unnecessary to determine the finding in relation to the police officers.^[2]  The other ground was that the learned magistrate erred in finding that the conduct of the appellant was likely to interfere with the peaceful passage through or enjoyment of the public place viz. Walton Street.

4. [4]
   The application to amend the Notice of Appeal was not opposed and leave is granted to amend in terms of paragraph 2 of the written submissions.

Relevant legislation

5. [5]
   The Act provides as follows:

Part 2A – QUALITY OF COMMUNITY USE  

    OF PUBLIC PLACES

7. Object of Pt 2A

This part has, as its object, ensuring, as far as practicable, members of the public may lawfully use and pass through public places without interference from unlawful acts of nuisance committed by others.

7AA Public nuisance

(1) A person must not commit a public nuisance offence.

Maximum penalty--10 penalty units or 6 months imprisonment.

(2) A person commits a public nuisance offence if--

(a) the person behaves in--

(i) a disorderly way; or

(ii) an offensive way; or

(iii) a threatening way; or

(iv) a violent way; and

(b) the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.

(3) Without limiting subsection (2)--

(a) a person behaves in an offensive way if the person uses offensive, obscene, indecent or abusive language; and

(b) a person behaves in a threatening way if the person uses threatening language.

(4) It is not necessary for a person to make a complaint about the behaviour of another person before a police officer may start a proceeding against the person for a public nuisance offence.

(5) Also, in a proceeding for a public nuisance offence, more than 1 matter mentioned in subsection (2)(a) may be relied on to prove a single public nuisance offence.

6. [6]
   The learned magistrate correctly made reference to the Explanatory Notes to the Bill which are contained in his reasons^[3]

“ …..In determining  what is a “public nuisance” offence in terms of the section, a court, is not limited by, but should take into account the following examples –

Offensive language;

(1) A person calling another person a slut in a shopping centre or a park may constitute offensive language.

(2) A person calling another person a slut in the public bar of a hotel may not constitute offensive language.

(3)A person using obscene language in a mall or street may constitute offensive language.

(4) A person using obscene language in the public bar of a hotel in the course of a conversation with another person may not constitute offensive language.

(5) A person disrupts a church service by using language offensive to persons at a service or to persons who are gathering for the service or to persons who are outside a place of worship after a service may constitute an offence. However, the section does not prevent a person from lawfully protesting and expressing an opinion about adverse decisions or actions of a church or it’s members.

Offensive manner;

(1) A person encourages another to participate in a fight.

(2) A person running over the roofs of parked cars.

(3) A person engaging in sexual intercourse in view of others in a public place.

(4) A person urinating in view of another in a public place.

(5) A person walking past persons dining and interfering with that person’s food.

(6) A person seeking money or property from another in a manner that causes a person to be intimidated, have concern about their safety, or such as to cause a person to leave a public place.

(7) Behaving in a manner that might cause another person to leave a public place…”

7. [7]
   It has been conceded by the appellant in this case that it is not a requirement of the Act that the appellant be in a public place. That concession is in accord with the provisions of s 7AA and also with earlier authority on the Act.^[4]  The defendant who exposed himself in that case was on private property. The Court of Appeal held that it was an element of the offence for the prosecution to prove that there was a person in the public place.

Relevant principles

“behaving in a disorderly way”

8. [8]
   The High Court has recently considered the meaning of “insulting words” as s 7 of the Act was previously framed.^[5]  The discussion is of some interest although touching upon a different provision. Gleeson CJ stated with respect what are the principles to be applied in the present case:

“The New Zealand courts faced this problem in relation to the prohibition of "disorderly" conduct. Having decided that there was no justification for reading into their 1927 Act a requirement of intended or likely breach of the peace, they had to address the issue of the kind of disorder that would justify the imposition of a criminal sanction. In Melser v Police [1967] NZLR 437, the Court of Appeal declined to give the word "disorderly" its widest meaning. North P referred to a South Australian case (Barrington v Austin [1939] SASR 130) which held that "disorderly behaviour" referred to "any substantial breach of decorum which tends to disturb the peace or to interfere with the comfort of other people who may be in, or in the vicinity of, a street or public place". He went on to say that the words "are directed to conduct which at least is likely to cause a disturbance or annoyance to others" ([1967] NZLR 437 at 443). Turner J pointed out that the disorderly behaviour, like the insulting behaviour, prohibited by the section had to be such as would tend to annoy or insult people sufficiently deeply or seriously to warrant the interference of the criminal law. It was not sufficient that the conduct be indecorous, ill-mannered, or in bad taste. The question, he said, was a matter of degree ([1967] NZLR 437 at 444). McCarthy J pointed out that the law had to take due account of the rights, and freedoms, of citizens. He said that, to be characterised as disorderly, conduct had to be "likely to cause a disturbance or to annoy others considerably"

Concepts of what is disorderly, or indecent, or offensive, vary with time and place, and may be affected by the circumstances in which the relevant conduct occurs. The same is true of insulting behaviour or speech. In the context of legislation imposing criminal sanctions for breaches of public order, which potentially impairs freedom of speech and expression, it would be wrong to attribute to Parliament an intention that any words or conduct that could wound a person's feelings should involve a criminal offence. At the same time, to return to an example given earlier, a group of thugs who, in a public place, threaten, abuse or insult a weak and vulnerable person may be unlikely to provoke any retaliation, but their conduct, nevertheless, may be of a kind that Parliament intended to prohibit. ( [1967] NZLR 437 at 446)”^[6]

9. [9]
   In my view, the conduct of the appellant fell into the category of being disorderly. The noise created by her conduct caused neighbours to come into the street. It obviously disturbed them. The tirade would have annoyed them looking at the matter objectively. The noise was created in the early hours of the morning. The police may have been in the street for other reasons, but the conduct of the appellant was of such a nature to create a disturbance for persons in the street at the material time. A public place includes a road^[7].  This aspect was not contested on appeal.

“behaving in an offensive way”

10. [10]
    This definition includes obscene or abusive language. “Abusive” or “insulting” words can be understood as including a physical retaliation.^[8]  It seems that the words used in the present case were directed to police not to the public who were likely to be in a public place.   However, it might be said that the language “might cause another person to leave a public place”^[9]. The fact that the present appellant was intoxicated could also be considered in this respect as part of the circumstances justifying the finding made by the learned magistrate.

11. [11]
    It is unnecessary to find that the language was obscene before finding that the appellant was acting in an offensive way. It may be that obscene language used in a street is offensive language and so a public nuisance^[10]. Other cases have found that the words used here are not obscene or insulting when directed to a male police officer.^[11]   An alternative finding is open if addressed to a female officer.^[12]  The manner in which the words are spoken may be taken into account.^[13] 

12. [12]
    I agree with the learned magistrate that the combination of factors amounted to the appellant acting in both a disorderly and offensive way: the waving of her arms, the nature of the language used, the tone of the words, the time of early morning and in a residential area, her intoxicated state and the presence of both adults and children in the street and within hearing distance.

“the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public”

13. [13]
    The evidence of the police officer in this respect is clearly one way^[14]:

‘as I said, about probably four or five metres away and----

Thank you? --  it was clearly audible to me.

Okay. Was there anybody else around?  -- Well, other than what I’ve already mentioned, there was the police officers, there was the six youths in the street, there was – there was neighbours there. I can’t recall  exact numbers and – and so forth, but there was other neighbours there. I do recall that.’

14. [14]
    One can readily draw the inference that given the time of the morning and the number of people in the street, that the conduct of the appellant had interfered with the peace of persons in their own homes. That is not the test. What the prosecution must establish relevantly is that there was actual interference or that it was likely that the conduct of the appellant would interfere “with the peaceful passage through, or enjoyment of, a public place by a member of the public”. What is not clear in the present case is whether it was the conduct of the young persons in the street or the conduct of the appellant which was causing other persons to come into the street. That does not matter. Once in the street the conduct of the appellant is then subject to scrutiny.

15. [15]
    In MAN v MAM^[15] McGill DCJ stated:

“….Likely” in my view does not in the statute mean more probable than not, but it must at least involve a real, not remote likelihood, something more probable than a mere chance or risk.”^[16]

16. [16]
    It may be that persons in the street that evening were there as a result of the behaviour of the young persons whom the police were interviewing. Once in a public place, it then becomes a question as to whether the enjoyment of the public place by anyone of them was likely to be interfered with as a result of the conduct of the appellant.^[17]  In Buetel’s case the court was concerned with determining “…if it is proved that a person in any part of the named public place could hear the obscene language…”. Philp J. said at p.79:

“In my view the word “any” means “anyone” so that if any one person who might have been in the public place could have heard it, then the offence provided by the section is complete…”

17. [17]
    In my view, the learned magistrate was correct in finding that this element of the offence has been established. If only one of the persons in the street was to have his or her enjoyment interfered with by the conduct of the appellant whilst that person was in the street, then the element of the offence is established. It is able to be inferred from the nature of the conduct that it was likely that the appellant’s conduct did interfere with the peaceful passage of or enjoyment of anyone passing by or in the street at the material time. It may be a technical breach of the Act given the circumstances of the incident but the requisite elements have been proved beyond a reasonable doubt.

Orders

1. The appeal is dismissed.
2. No order as to costs.