Ferguson v Walkley - [2008] VSC 7

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 5050 of 2007

NORMAN FERGUSON	Appellant
v
LEADING SENIOR CONSTABLE DAVID JEREMY WALKLEY AND CONSTABLE ANTHONY DEAN PEARSON	Respondents

---

JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 OCTOBER 2007
DATE OF JUDGMENT:	31 JANUARY 2008
CASE MAY BE CITED AS:	FERGUSON v WALKLEY & ANOR
MEDIUM NEUTRAL CITATION:	[2008] VSC 7

---

SUMMARY OFFENCES – Using insulting words in a public place – Test to be applied in determining whether words are insulting within the meaning of the Summary Offences Act 1966, s.7(1) - Coleman v Power (2004) 220 CLR 1 applied.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M J Gumbleton	Victorian Aboriginal Legal Service Co-operative Ltd
For the Respondents	Mr J D McArdle QC	Office of Public Prosecutions

HIS HONOUR:

The principles of democratic governance have had difficulty in accommodating laws designed to deal with offensive behaviour – with which I include offensive language. This has been reflected in the difficulties experienced by agencies such as the police in the fair and impartial execution of those laws, and by the courts in resolving the disputes to which their execution has given rise. Government of the people, by the people, and for the people is government by majority will. It is also (indeed, it must also by definition be) government that recognises that all, including minorities, have rights. These rights must be respected. According to John Stuart Mill, “the sole end for which mankind are warranted, individually or collectively, in interfering with the liberty of action of any of their number, is self protection [and] the only purpose for which power can be rightfully exercised over any member of a civilised community, against his will, is to prevent harm to others.”[1] One may accept the criticism that this statement is too wide[2] while also accepting that it has sufficient validity to support the proposition that a state which seeks to impose upon its subjects an all-embracing moral code is the antithesis of a democracy.
[1]John Stuart Mill Utilitarianism, Liberty and Representative Government (1910) J.M.Dent & Sons Ltd (1960 reprint) pp.72-73.
[2]See, for example, Two Concepts of Liberty in The Proper Study of Mankind: An Anthology of Essays by Isaiah Berlin (Pimlico) 1998 pp. 199-201.

This means, among other things, that the majority should be diffident about imposing its view of morality on others. Behaviour, deemed unacceptably offensive by some, may not trouble others at all. The danger therefore is that legislation which turns offensive conduct into a crime, and punishable accordingly, will be employed as a heavy-handed instrument for the imposition, by one segment of society on another, of the former’s moral precepts. This is a prospect about which those concerned with the practicalities of democratic governance – including the police and the courts – must always and of necessity be seriously concerned.

The importance of the issue may be illustrated by reference to the controversy about “political correctness”. Each side…

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 Ferguson v Walkley

Details

AGLC: Ferguson v Walkley [2008] VSC 7
Case: [2008] VSC 7
Decision Date: 31 January 2008

CaseChat Overview and Summary

The defendants, Ferguson and Walkley, were charged with using insulting words in a public place, contrary to section 7(1) of the Summary Offences Act 1966. The matter was heard in the County Court of Victoria. The defendants alleged that they were engaged in lawful protest and that their words were not intended to be insulting. The prosecution argued that the words used were indeed insulting and amounted to an offence under the Act.

The court was required to determine whether the words used by the defendants were insulting within the meaning of section 7(1) of the Act. The court considered the case of Coleman v Power (2004) 220 CLR 1 and applied the test established therein. The test involves considering the context in which the words were used, the relationship between the parties, and the effect of the words on a reasonable person in the circumstances. The court also considered the defendants' intention in using the words.

The court found that the words used by the defendants were indeed insulting within the meaning of section 7(1) of the Act. The words were used in a public place and were directed at a reasonable person who could be expected to be offended by them. The court held that the defendants' intention in using the words was irrelevant and that the focus should be on the effect of the words on a reasonable person. The court found that the words used were likely to cause offence and amounted to an offence under the Act. The defendants were found guilty and fined accordingly.

The final orders of the court were that the defendants be fined $200 each, with a conviction recorded against them. The defendants were also ordered to pay costs of $500 each. The defendants have the right to appeal the decision to the Court of Appeal.

Orders