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Danny Lim v Regina

Danny Lim v Regina

Case [2017] NSWDC 231 29 August 2017

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: Danny Lim v Regina [2017] NSWDC 231
Hearing dates: 25 July 2017
Date of orders: 29 August 2017
Decision date: 29 August 2017
Jurisdiction: Criminal
Before: Judge AC Scotting
Decision:
1 Appeal against conviction allowed.
2 I set aside the conviction and the penalty imposed by the Magistrate

Catchwords: CRIMINAL LAW – summary offence – use of offensive language in or near public place or school – impugned word
APPEAL – appeal against conviction – not guilty – legislative provisions
INTERPRETATION – object of the act - meaning of offensive language – particulars of charge – freedom of speech – implied right – meaning of provision – context – freedom of expression – invalidity of provision – freedom of political communication – purposive approach -
DEFENCE – defence available – reasonable excuse
OTHER – sandwich board – sign
Legislation Cited: Summary Offences Act 1988 s.4(1), 4(2), 4A
Crimes (Appeal and Review) Act 2001 s.18(1)
Interpretation Act 1987 s.31(1)
Justices Act 1987 ss.72B, 74
Cases Cited: ICM v Commonwealth (2009) 240 CLR 140
Gianoutsas v Glykis [2006] NSWCCA 137
Charara v R [2006] NSWCCA 244
Fox v Percy (2003) 214 CLR 118
Dyason v Butterworth [2015] NSWCA 52
Bandana v Director of Public Prosecutions [2016] NSWCA 140
Englebrecht v Director of Public Prosecutions [2016]
NSWCA 290
State of New South Wales v Beck [2013] NSWCA 437
Beck v State of New South Wales [2012] NSWSC 1483
Connolly v Willis [1984] 1 NSWLR 373
Ball v McIntyre (1966) 9 FLR 237 at 243
Worcester v Smith (1951) VLR 316
Monis v The Queen (2103) 249 CLR 92
Dalton v Bartlett (1972) 3 SASR 549
Dowse v New South Wales [2012] NSWCA 337
Coleman v Power (2004) 220 CLR 1
Taikato v The Queen (1996) 186 CLR 454
SAS Trustee Corporation v Woollard [2014] NSWCA 75
Category: Principal judgment
Parties: Danny Lim (Appellant)
Regina (Respondent)
Attorney General for the State of New South Wales (Intervener)
Representation:
Counsel:
Mr Lange with Mr Parkin (Appellant)
Mr Emmett (Intervener)
Solicitors:
Murphy’s Lawyers Inc (Appellant)
C Hyland, Solicitor for Public Prosecutions (Respondent)
L Armstrong, Crown Solicitor for the State of New South Wales (Intervener)

File Number(s): 2015/00292109
Publication restriction: None

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 Act1988.

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 CUN’T..”
LIAR, HEARTLESS, CRUEL
PEACE BE WITH YOU
f DANNY’S PAGE

On the back of the sandwich board was written,

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Danny Lim v Regina

Details

AGLC: Danny Lim v Regina [2017] NSWDC 231
Case: [2017] NSWDC 231
Decision Date: 29 August 2017

CaseChat Overview and Summary

The appellant, Danny Lim, was convicted of a summary offence under the Summary Offences Act 1988 (Vic) for using offensive language in or near a public place or school. The court of appeal heard the case, assessing the validity of the conviction and the penalty imposed by the magistrate. The central issue was whether the word used by the appellant constituted "offensive language" as defined by the statute. Additionally, the court examined whether the provision in question infringed upon the implied right to freedom of political communication.

The court's reasoning focused on interpreting the meaning of "offensive language" within the context of the statute. The appellant argued that the word in question was not offensive and, if it was, the provision was invalid as it infringed upon the implied right to freedom of political communication. The court adopted a purposive approach, considering the object of the act and the context in which the word was used. It was determined that the word did not meet the threshold of being offensive and that the provision did not infringe upon the implied right to freedom of political communication. Consequently, the court found that the appellant had a reasonable excuse for using the word, which was protected under the statute. The appeal against the conviction was allowed, and the conviction and penalty imposed by the magistrate were set aside.

Orders

Orders of the court

1 Appeal against conviction allowed.

2 I set aside the conviction and the penalty imposed by the Magistrate

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Danny Lim v Regina [2017] NSWDC 231

Most Recent Citation

Rowlands v The Queen [2021] NSWDC 723

Cases citing this decision · 2 of 2 shown

Rowlands v The Queen
[2021] NSWDC 723

…forcement (Powers and Responsibilities) Act 2002 , s 99 Cases Cited: Dyason v Butterworth [2015] NSWCA 52 Lim v R (2017) 25 DCLR (NSW) 253; [2017] NSWDC 231 Monis v R; Droudis v R (2013) 249 CLR 92; [2013] HCA 4 Police v Paton [2009] NSWLC 34 R v Jovanovic (1997) 42 NSWLR 520 Category: Principal judgment Parties: S…
Dowling v Prothonotary of the Supreme Court of New South Wales
[2018] NSWCA 233 Para 36

…ept the submission. The same submission was made about the language used by Mr Danny Lim whose appeal against conviction was allowed in Danny Lim v R [2017] NSWDC 231. I do not accept this submission, either. Neither case dealt with whether the conduct was a contempt based on scandalous statements made in Court. Fo…

View all 2 citing cases →

Cases cited in this decision · 16 of 16 shown

Engelbrecht v Director of Public Prosecutions (NSW)
[2016] NSWCA 290 Para 16

…r 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].…
Bandana v Director of Public Prosecutions
[2016] NSWCA 140 Para 16

…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].…
AG v Director of Public Prosecutions (NSW)
[2015] NSWCA 218 Para 16

…ther 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 Pu…
Dyason v Butterworth
[2015] NSWCA 52 Para 15

…etionary 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].…
SAS Trustee Corporation v Woollard
[2014] NSWCA 75 Para 58

…ection 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.…
State of New South Wales v Beck; Commissioner of Police v Beck
[2013] NSWCA 437

…016] NSWCA 140 Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 State of New South Wales v Beck [2013] NSWCA 437 Beck v State of New South Wales [2012] NSWSC 1483 Connolly v Willis [1984] 1 NSWLR 373 Ball v McIntyre (1966) 9 FLR 237 at 243 Worcester v Smith (1951) VLR 316 Monis v The Queen (2103) 249…
Monis v The Queen
[2013] HCA 4 Para 22

…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.…
Beck v State of New South Wales; Beck v Commissioner of Police New South Wales
[2012] NSWSC 1483 Para 21

…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.…
Dowse v New South Wales
[2012] NSWCA 337 Para 25

…y 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).…
ICM Agriculture Pty Ltd v The Commonwealth
[2009] HCA 51 Para 9

…as 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].…
Charara v R
[2006] NSWCCA 244 Para 12

…ard 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].…
Gianoutsos v Glykis
[2006] NSWCCA 137 Para 11

…pts 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];…
Coleman v Power
[2004] HCA 39 Para 26

…”. 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.…
Fox v Percy
[2003] HCA 22 Para 14

…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].…
Taikato v The Queen
[1996] HCA 28 Para 31

…pon 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:…
[2103] NSWCA 437
[2103] NSWCA 437 Para 20

…ss 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].…

Legislation cited in this decision · 3

Summary Offences Act 1988 (NSW)
4(1), 4(2), 4A 4 mentions (from Para 2)
Crimes (Appeal and Review) Act 2001 (NSW)
18(1) 2 mentions (from Para 11)
Interpretation Act 1987 (NSW)
31(1) 1 mention

Medium Neutral Citation:	Danny Lim v Regina [2017] NSWDC 231
Hearing dates:	25 July 2017
Date of orders:	29 August 2017
Decision date:	29 August 2017
Jurisdiction:	Criminal
Before:	Judge AC Scotting
Decision:	1 Appeal against conviction allowed. 2 I set aside the conviction and the penalty imposed by the Magistrate
Catchwords:	CRIMINAL LAW – summary offence – use of offensive language in or near public place or school – impugned word APPEAL – appeal against conviction – not guilty – legislative provisions INTERPRETATION – object of the act - meaning of offensive language – particulars of charge – freedom of speech – implied right – meaning of provision – context – freedom of expression – invalidity of provision – freedom of political communication – purposive approach - DEFENCE – defence available – reasonable excuse OTHER – sandwich board – sign
Legislation Cited:	Summary Offences Act 1988 s.4(1), 4(2), 4A Crimes (Appeal and Review) Act 2001 s.18(1) Interpretation Act 1987 s.31(1) Justices Act 1987 ss.72B, 74
Cases Cited:	ICM v Commonwealth (2009) 240 CLR 140 Gianoutsas v Glykis [2006] NSWCCA 137 Charara v R [2006] NSWCCA 244 Fox v Percy (2003) 214 CLR 118 Dyason v Butterworth [2015] NSWCA 52 Bandana v Director of Public Prosecutions [2016] NSWCA 140 Englebrecht v Director of Public Prosecutions [2016] NSWCA 290 State of New South Wales v Beck [2013] NSWCA 437 Beck v State of New South Wales [2012] NSWSC 1483 Connolly v Willis [1984] 1 NSWLR 373 Ball v McIntyre (1966) 9 FLR 237 at 243 Worcester v Smith (1951) VLR 316 Monis v The Queen (2103) 249 CLR 92 Dalton v Bartlett (1972) 3 SASR 549 Dowse v New South Wales [2012] NSWCA 337 Coleman v Power (2004) 220 CLR 1 Taikato v The Queen (1996) 186 CLR 454 SAS Trustee Corporation v Woollard [2014] NSWCA 75
Category:	Principal judgment
Parties:	Danny Lim (Appellant) Regina (Respondent) Attorney General for the State of New South Wales (Intervener)
Representation:	Counsel: Mr Lange with Mr Parkin (Appellant) Mr Emmett (Intervener) Solicitors: Murphy’s Lawyers Inc (Appellant) C Hyland, Solicitor for Public Prosecutions (Respondent) L Armstrong, Crown Solicitor for the State of New South Wales (Intervener)
File Number(s):	2015/00292109
Publication restriction:	None