DISTRICT COURT OF QUEENSLAND

Introduction

1. [1]
   A domestic incident erupted at premises occupied by the appellant. She was intoxicated and was yelling obscenities at 9.20 a.m. on 30 December 2004 during the school holidays. Police attended at her residence at Crofton Street, Bundaberg.  She was charged and convicted in the Bundaberg Magistrates Court on 25 August 2005 of committing a public nuisance and was placed on a good behaviour bond with a recognisance of $200.00 with no conviction recorded.

2. [2]
   This is an appeal against that decision of the learned magistrate. The grounds of the appeal are that the words used were directed at police and that her conduct does not amount behaviour of a disorderly or offensive way. Also, it is argued that police officers are not members of the public for the purposes of s 7AA of the Vagrants, Gaming and Other Offences Act 1931.^[1]

Relevant Legislation

3. [3]
   Vagrants Gaming and Other Offences Act 1931:

“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. (1)
   A person must not commit a public nuisance offence. Maximum penalty--10 penalty units or 6 months imprisonment.

2. (2)
   A person commits a public nuisance offence if—

1. (a)
   the person behaves in—

1. (i)
   a disorderly way; or

2. (ii)
   an offensive way; or

3. (iii)
   a threatening way; or

4. (iv)
   a violent way; and

1. (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. (3)
   Without limiting subsection (2)—

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

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

4. (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. (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.”

4. [4]
   The Explanatory Notes to the Bill provided as follows:

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

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

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

4. (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. (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 its members.

Offensive manner;

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

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

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

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

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

6. (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. (7)
   Behaving in a manner that might cause another person to leave a public place…”

5. [5]
   The Second Reading speech of the Minister for Police and Corrective Services made in relation to s 7AA provides as follows,^[2] as quoted by Skoien SJDC in Green v Ashton:^[3]

“the amendment does not in any sense relax current laws so that a person may feel free to abuse their right to use a public place and in so doing, cause an unacceptable annoyance or interference to others who also wish to use a public place … to be absolutely clear, the new provisions will also apply to persons who choose to insult or abuse police officers who are acting in the lawful execution of their duty. No one should forget that our police officers are members of our community, the same as you and I … they should not have to accept offensive language directed at them from persons who choose to break the law of Queensland”

Are police officers members of the public?

6. [6]
   It is submitted that police officers are not members of the public within the meaning of the section. Authority was cited to support that proposition.^[4]  There is authority to the contrary.^[5]  In so finding his honour Judge Skoien referred to the provisions of the Acts Interpretation Act 1954 which provides that consideration may be given to extrinsic material capable of assisting in the interpretation of a provision of an Act if the provision is ambiguous or obscure or, in any other case, to confirm the interpretation conveyed by the ordinary meaning of the provision.^[6] “Extrinsic material” includes the second reading speech in the legislative assembly and an explanatory note.^[7]  It was not necessary to decide this question in Butterworth v Geddes.^[8]

7. [7]
   In applying the reasoning of his honour, I find that the term “member of the public” in the Act includes a police officer. They are not specifically excluded by any provision. It was submitted that there are other Acts which have created offences which are specifically related to police officers. S 444 and 445 of the Police Powers and Responsibilities Act 2000 and s 340(b) of the Criminal Code.  The second reading speech points to an interpretation of s 7AA(2) to include the protection of police officers acting in the course of their duties from being the subject of disorderly or offensive or threatening conduct which is likely to interfere with their peaceful passage through a public place.  The section also includes interfering with the enjoyment of a public place, but is not limited to that.  The latter may be more apposite to other members of the public going about their daily lives. 

“Disorderly or offensive way”

8. [8]
   When the police officers arrived at the appellant’s premises, they could hear language such as “fucking cunts” being shouted as they stood on the footpath. It is sufficient if the offending words are merely heard in a public place.^[9]  When they approached the door and spoke to the appellant, they could smell alcohol on her breath, she was unsteady on her feet.  Police agreed to take her to her sister’s place.  Whilst on the footpath, the appellant started to call out loudly and said “I fucking hate all you – all you fucking cunts.  They’re all fucking bastards too the cunts.  Get fucked, you fucking Captain Cook coppers.”  The appellant was warned to calm down but continued to shout out similar statements.  She was then charged.

9. [9]
   The learned magistrate observed the following features of the conduct of the appellant which were not challenged:

1. an intoxicated person
2. yelling and screaming words as discussed
3. waving her arms about
4. continuing conduct for some time
5. on a footpath of an inner suburban street in Bundaberg

10. [10]
    The learned magistrate made the observation that this was more than just insulting words to a police officer.^[10]  The manner in which the words are spoken may be taken into account.^[11]  As was observed by his honour Judge Skoien in Green’s case (para. 13), the use of the word “cunt” is one “which would be considered offensive to most people, particularly when used as an abusive expletive.”  His honour accepted the evidence of the police officer that the language used offended him particularly used in the context of his being a “racist cunt”. 

“However, the degree of personal affront involved in the language, and the circumstances, may be significant”.^[12]

11. [11]
    Green’s case is different to the present case. Here, the learned magistrate in finding that the language used was offensive “does not rely on the defendant’s use of the words specifically directed to a police officer or whether they insulted a police officer”.^[13] Rather the learned magistrate made the following findings of fact:

“The offence is alleged to have occurred on the 30^th of December 2004, the week between Christmas and New Year. I am satisfied it is common knowledge that children would have been on school holidays, adults would have been on Christmas leave and the fact that there were no people actually walking the street at that time is not strictly speaking relevant as I have referred to earlier.

The offence is alleged to have occurred at 9.30 a.m. on a weekday morning, not unusually early or late. People may be going about their daily activities. The place where the event occurred [w]as an inner suburban street of Bundaberg and I refer to the map reference provided as an exhibit. There was evidence that there were units and houses in the street. There was two policemen there and [they] saw at least two other persons, one man in the nearby unity as they entered and another who c[ame] out of the unit while the behaviour continue[d] and [went] back in side.

In all of these circumstances the likelihood of the public being present is not remote or a mere chance, it is real, it is quite likely to be expected.”

12. [12]
    It was a different situation which faced the court in Fox v Sawdy ex.p. Fox.^[14]  It was necessary for the court to find in that case that there was a person in a public place.  It has been found in the present case, in interpreting s 7AA of the Act, that police officers are members of the public.  In the present case it does not matter that there was no evidence that there were other members of the public present in a public place.  The present legislation is less demanding.  It requires only that the offending conduct “… must at least involve a real, not remote likelihood, something more probable than a mere chance or risk” that a member of the public will have his or her “peaceful passage through, or enjoyment of, a public place” interfered with.^[15]  The findings of the learned magistrate have not been shown to be erroneous.

Orders

2. The appeal is dismissed.