DISTRICT COURT OF QUEENSLAND

1. [1]
   This is an appeal under s. 222 of the Justices Act 1886 against the decision of Mr McKay, stipendiary magistrate, given at Bundaberg on 22 July 2005 when he convicted the appellant of a public nuisance offence committed at Bundaberg on 17 December 2004.  It concerned the effect of words spoken by the appellant to police officers.

The Legislation

2. [2]
   The offence of committing a public nuisance is created by s. 7AA of the Vagrants, Gaming and Other Offences Act 1931 which, relevantly, is:

7AA(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.

Police – members of the public

3. [3]
   The second reading speech for the Police Powers and Responsibilities and Other Legislation Amendment Act (2003), when this proposed s. 7AA was moved by the Minister for Police and Corrective Services, includes this

“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”

4. [4]
   Pursuant to s. 14B(3)(f) of the Acts Interpretation Act 1954 this statement of legislative intent is able to be used in the interpretation of s. 7AA if the provision is ambiguous or obscure (s. 14B(1)(a)) or in any other case to confirm the interpretation conveyed by the ordinary meaning of the provision (s. 14B(1)(c)).

5. [5]
   So if there is any ambiguity or obscurity on the question whether s. 7AA applies to the benefit of police officers while acting in the course of their duty, the second reading speech puts the matter beyond doubt. It does apply. I regret that I disagree with the contrary view of Her Honour O'Sullivan DCJ in Darney v Fisher, in her judgment on 8 June 2005 in the Bundaberg District Court.  I note that Her Honour does not appear to have been referred to the provisions of s. 14B of the Acts Interpretation Act.  I regret I must also differ from Her Honour on her observation that it would have been easy to define “members of the public”.  I cannot think how one could do that except perhaps by saying “everyone who is not specifically excepted by a statute”, which seems to me to be self-evident.  Certainly one could not essay an all-inclusive list of those who are members of the public.

6. [6]
   Indeed I do not think it necessary to have recourse to s. 14B. In my view police officers when acting in the course of their duty are members of the public unless they are specifically excepted from public rights and duties by some statute or given some extra or exclusive right or duty, (as they are, most notably by the Police Powers and Responsibilities Act 2000) but also by other statutes – as for example the right to carry firearms as part of performance of duty.  See Weapons Act 1990, s. 2(1)(e).  But in general they are treated by the law like anyone else.  Thus it would not be true to say that a police officer, on duty, cannot commit offences.  If charged with committing an offence it would be odd to think that Chapter 5 of the Criminal Code could not be relied upon in defence.  In the application of the criminal law, in general a police officer, on duty, is treated no differently from any other citizen.  The offence of serious assault (that is, of a police officer acting in the course of duty, Criminal Code s. 340) contains the element of common assault, that is, the unlawful assault of any member of the public, R v Timmins, [1913] QWN 44.  And again, in general, a police officer on duty is surely amenable to the civil law.

7. [7]
   I think it likely that any doubt whether a police officer acting in the course of duty is a member of the public has been largely created by the regrettably common use, in speech, of a distinction between “police” and “civilians”. This use is often encountered and it overlooks the fact that members of the Queensland Police Service are the civil police. They are not the military police. They are the civil force entrusted with the duty and power to assist in the enforcement of the criminal (and quasi criminal) law and to maintain public order. It is interesting to note that in Coleman v Power, (2004) 78 ALJR 1166, at para [200], Gummow and Hayne JJ, after referring to police officers refer to “other civilians” (the use of “other” demonstrating their view that police officers are also civilians).

8. [8]
   In my view, therefore, Queensland police are members of the public, even when acting in the course of their duty, unless that status is expressly excluded by statute for the particular circumstances then applying. There is no such statutory exclusion in s. 7AA. In aid of that interpretation of s. 7AA, which I take to be the ordinary meaning of the provision, I can refer to the second reading speech for confirmation (Act Interpretations Act, s. 14B(1)(c)).

Public Nuisance

9. [9]
   The question before the learned magistrate concerned words uttered by the appellant at about 9.00pm on Friday, 17 December 2004 in Takalvan Street and directed towards Constables Ashton and McLucas who were investigating a reported disturbance. A van drove up and several people alighted including the appellant who initially directed a torrent of abuse at a person to whom the constables were attempting to speak. When asked to stop the abuse lest she be arrested for committing a public nuisance she directed the abuse at the constables. In particular she shouted at them “I don’t care, you are all racist cunts”. That evidence was given by each constable and was found as a fact by the learned magistrate who also found that the statement was directed at the constables. No evidence was led by the defence and I see no reason to doubt that it was open to the learned magistrate to make those findings.

10. [10]
    Constable Ashton, in evidence, said he was offended by the words, both by the allegation that he was a racist (which attitude he denied holding) and by the use of the word “cunt” (an epithet he said he did not tend to use himself).

11. [11]
    There was no evidence of the ethnicity of the appellant but I note that Mr Burgess of counsel who appeared for her was instructed by the Aboriginal and Torres Strait Islander Legal Service (as he was on the appeal before me). It is obvious therefore that she is either Aboriginal or an Islander. This is relevant to the likely effect of the words on the person to whom they were directed. In Bundaberg, which I have regularly visited on circuit, it is notorious that many of the people charged in the courts with indictable or summary offences are of Aboriginal or Torres Strait Islander blood. It is also notorious that tension exists between some members of those communities and police officers. I have no doubt that police officers are often the butt of an accusation of carrying out their duties in a racist way and that many police officers are particularly sensitive to these allegations.

12. [12]
    Under s. 7AA the question whether a person behaves in an offensive way (subsection (2)(a)(ii)) by the use of offensive language (subsection (3)(a)) must no doubt be judged objectively. Otherwise an offence could be committed by saying, to a person of extremely delicate sensibilities, something which that person found offensive but which most people would regard as quite acceptable. But in making an objective judgment the surrounding circumstances are surely relevant; such things as the time and place, the vehemence of the utterance and, relevantly, whether the utterance has, would be known by the speaker to have, and is intended by the speaker to have, special relevance to the recipient. In my opinion this utterance was vehement; the appellant must have known it to carry an extra sting when directed at police; she must have intended to inflict that extra sting.

13. [13]
    One should not overlook the extra effect of the addition of the epithet “cunt”. While today many erstwhile obscenities have lost some of their effect because of their frequent use in films, books and general speech, in my opinion that word remains one which would be considered offensive to most people, particularly when used as an abusive expletive. I do not consider that Constable Ashton should have been disbelieved when he said it offended him even though he may hear it used as abuse more often than most people. And of course its joinder with the epithet “racist” added to the sting. Indeed quite apart from the subjective effect of the words on Constable Ashton, to which he swore, it seems to me to be clear enough that the learned magistrate found the words to be offensive when viewed objectively, a conclusion quite open to him and indeed one with what I would agree.

14. [14]
    In his reasons the learned Magistrate described the words complained of as “insulting” rather than “offensive” I do not regard that as a failure to find that the use of the words amounted to behaving in an offensive way. The listing of “offensive, obscene, indecent or abusive language” in s. 7AA(3)(a) as examples of offensive behaviour is not exclusive. The evidence of Constable Ashton was that he was offended. In any event the Shorter Oxford English Dictionary defines “insult” to include:-

“To assail with scornful abuse or offensive disrespect”

and in Coleman v Power op. cit. McHugh J at para [55] accepted this definition of “insulting” from an earlier case:

“something provocative, something that would be offensive to some person to whose hearing the words would come”

and at [56] he accepted a statement of Rich J in an earlier case:-

“’Insulting’ is a very large term, and in a statement of this kind is generally understood to be a word not cramped within narrow limits.” (The statement, to a returned soldier was “you are sponging on the Government and you waste public money and I will report you.”)

15. [15]
    I consider therefore that the learned Magistrate can be seen to have accepted that the words used by the appellant constituted offensive behaviour within the meaning of s. 7AA(2)(a)(ii) and 3(a).

16. [16]
    To convert behaving in an offensive way into a public nuisance offence s. 7AA(2)(b) must be satisfied. It requires interference with the “peaceful passage through … a public place” or “the enjoyment of a public place” by a member of the public, here a police officer, Constable Ashton.

17. [17]
    The peaceful passage of Constable Ashton through a public place, namely Takalvan Street does not seem to be an appropriate consideration. However whether his enjoyment of Takalvan Street was interfered with is germane. The concept of an on-duty police officer “enjoying” a public street may at first blush seem strange but to my mind “enjoyment” does not necessitate the obtaining of actual pleasure by the police officer from his being present in the street. A citizen “enjoys” many social rights without necessarily being conscious of actual pleasure from the possession of those rights. Enjoyment of a public street rather means the ability to be in it free of unpleasantness or, as the second reading speech (para [4] above) puts it, “free of unacceptable annoyance”.

18. [18]
    It is clear that the learned Magistrate accepted the evidence of Constable Ashton and found that the words complained of were actually highly insulting to him or, as I interpret that, actually offensive to him. It is also clear that the use of such offensive words interfered with Constable Ashton’s enjoyment of Takalvan Street. Thus the findings necessary to fulfil the requirements of s. 7AA(2) were found and as his introductory remarks demonstrate, the learned Magistrate made his findings by applying the criminal onus of proof, that is, beyond reasonable doubt.

Coleman v Power

19. [19]
    Mr Burgess, for the appellant, relied heavily on this High Court authority but in my opinion it is clearly distinguishable from this appeal. Of course Coleman in part concerned the implied constitutional protection of free speech in matters of political or governmental interest.  That aspect of the case was not raised here, nor in my opinion could it be.

20. [20]
    Mr Burgess relied on statements in Coleman in support of his argument that police officers are not members of the public (with which I have dealt) but also in order to argue that what was said to the constables could not have offended Constable Ashton.

21. [21]
    At paragraph [200] Gummow and Hayne JJ said:

“Section 7(1)(d) … does however, have a more limited operation than it was understood to have in the courts below.  In particular, it does not suffice for the person to whom the words were used to assert that he or she was insulted by what was said.  It does not suffice to show that the words used were calculated to hurt the self-esteem of the hearer

.

Where, as here, the words were used to a police officer, then unless more is shown, it can be expected that the police officer will not physically retaliate.  It follows that unless there is something in the surrounding circumstances (as, for example, the presence of other civilians who are affected by what is said) the bare use of words to a police officer which the user intends should hurt that officer will constitute an office.  By their training and temperament, police officers must be expected to resist that sting of insults directed to them.  The use of such words would constitute no offence unless others who hear what is said are reasonably likely to be provoked to physical retaliation.”

22. [22]
    At paragraph [258] Kirby J said:

“There was no prosect that the respondent police officers would be provoked to unlawful physical violence by the words used.  At least the law would not impute that possibility to police officers who, like other public officials, are expected to be thick skinned and broad shouldered in the performance of their duties.  Nor would others nearby be so provoked to unlawful violence or the risk thereof against the appellant by words of the kind that he uttered.”

23. [23]
    Those passages support my opinion (para [12] above) that subjective matters can be considered when deciding whether a statement is offensive to a particular person, but I do not take their Honours to be laying down a general rule that police officers cannot be offended by publicly expressed insult or abuse. The thrust of their comments was to the effect that the likelihood of a breach of the peace occurring as a result of the insult or abuse was an essential element of the offence under s. 7(i)(d) of the Vagrants Act, the provision then being considered.

24. [24]
    In my view s. 7AA (which replaced s. 7) is cast in a quite different mould from s. 7. That is to be seen most plainly in the care with which the public nuisance offence is defined, particularly “offensive behaviour”. Subsection (2)(b), by enacting that it is enough if the behaviour “interferes with, or is likely to interfere with … the enjoyment of a public place by a member of the public” makes it clear that no element of retaliation by the member of the public is raised.

25. [25]
    In any event, even in Coleman the majority did not consider that retaliation or potential retaliation was an essential in the offence as it then existed.  See per Gleeson CJ at paras [9]-[10]; per McHugh J at para [67]; per Callinan J at para [287] and per Heydon J at para [310].

Conclusion

26. [26]
    It follows that I am not persuaded that the learned Magistrate fell into error. I dismiss the appeal.