Moylan v Lee
[2022] WASC 195
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: MOYLAN -v- LEE [2022] WASC 195
CORAM: MITCHELL J
HEARD: 25 MAY 2022
DELIVERED : 8 JUNE 2022
FILE NO/S: SJA 1085 of 2021
BETWEEN: LYNDA MYRA MOYLAN
Appellant
AND
JACQUELIN LEE
Respondent
ON APPEAL FROM:
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE O’DONNELL
File Number : PE 3334 OF 2021
Catchwords:
Criminal law - Public order offences - Behaving in a disorderly manner in a public place - Test for determining whether behaviour is offensive and disorderly - Where costumed performer lifted skirts and petticoats and placed her posterior against a window of the foyer to an office tower during a peaceful protest for the amusement of fellow protesters - Whether behaviour is capable of being characterised as offensive and behaving in a disorderly manner in a public place
Legislation:
Criminal Code (WA), s 74A
Result:
Leave to appeal granted
Appeal allowed
Conviction set aside and judgment of acquittal substituted
Category: A
Representation:
Counsel:
| Appellant | : | In person |
| Respondent | : | G J Stockton |
Solicitors:
| Appellant | : | In person |
| Respondent | : | State Solicitor's Office |
Case(s) referred to in decision(s):
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
CRC v Taylor [2019] WASC 187
Fletcher v The State of New South Wales [2019] NSWCA 31
Heanes v Herangi [2007] WASC 175; (2007) 175 A Crim R 175
Keft v Fraser (unreported, WASC, Library No 6251, 21 April 1986)
LibertyWorks Inc v Commonwealth [2021] HCA 18; (2021) 391 ALR 188
Melser v Police [1967] NZLR 437
Mogridge v Foster [1999] WASCA 177
MP v Trengarth [2007] WASC 221
Police v Christie [1962] NZLR 1109
R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55; [2007] 2 AC 105
R v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] QB 458
R v Howell (Errol) [1982] QB 416
R v Van Bao Nguyen [2002] NTSC 38; (2002) 139 NTR 15
Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629
The State of New South Wales v Bouffler [2017] NSWCA 185; (2017) 95 NSWLR 521
The State of New South Wales v Tyszyk [2008] NSWCA 107
MITCHELL J:
Summary
During a peaceful protest, the appellant, a costumed performer, sought to bring comic relief in the irreverent and provocative manner of a clown to lift the spirits of fellow protesters. She lifted the back of her skirt and petticoats and, for a few seconds, pressed her underwear-clad posterior against the foyer window of an office tower. Two police officers found this behaviour to be offensive. She was charged with, and convicted by a magistrate of, behaving in a disorderly manner in a public place and fined $200. She now appeals against her conviction and sentence.
Section 74A(2)(a) of the Criminal Code (WA) (Code) creates the offence of behaving in a disorderly manner in a public place. To 'behave in a disorderly manner' is defined by s 74A(1)(b) of the Code to include behaving in an 'offensive' manner. The object of s 74A(2)(a) is to secure the ability of persons to exercise, without undue disturbance, the rights and freedoms involved in the use and enjoyment of public places. Behaviour is 'offensive', so as to constitute behaving in a disorderly manner in a public place within the meaning of s 74A(2)(a), when it would so offend a reasonable person as to prevent or interfere with that person's lawful use and enjoyment of a public place in the relevant circumstances, to such an extent as to merit criminal punishment.
In my view, the appellant's clownish behaviour was not offensive and did not prevent or interfere with the use and enjoyment of a public place at all or in any way meriting criminal punishment. Her conduct was not capable of being properly characterised as behaving in a disorderly manner in a public place within the meaning of s 74A(2)(a) of the Code.
Therefore, I would allow the appeal, set aside the appellant's conviction and substitute a judgment of acquittal.
Factual findings
The magistrate made the following findings of fact, which are not seriously challenged in this appeal.
At about midday on Friday 2 October 2020, the appellant was one of a group of people who were protesting at the QV1 office tower in the Perth central business district. Some of the protesters were standing peacefully at the front of the building holding banners. Some of the protesters inside the building had glued their hands to the glass. There were also members of the public inside the foyer going about their business.[1]
[1] Trial ts 26, 33.
The appellant was present on the forecourt of the building. At the time of the alleged offence, she was wearing a black vest over a blue dress. The skirt had a shawl or similar garment wrapped around it, which partially covered the back of the skirt. Under the skirt, the appellant was wearing a red petticoat and a green petticoat. She was also wearing red calf-high boots, had a cloth mask over her face and had a set of headphones around her neck.[2]
[2] Trial ts 26 - 27.
Within view of two police officers and other members of the public, the appellant lifted her voluminous skirts and pressed her buttocks against the glass of the QV1 building in a space near the revolving door at the front of the building. She moved in a 'shimmying' action for about 6 seconds. After putting her skirts back down, the appellant gazed deliberately into the foyer as she began to walk away. She then pumped her fist into the air, bowed to a security officer, and then again raised her fist in the air before thrusting both fists downward in a 'sharpish sort of action'.[3]
[3] Trial ts 29 - 30.
The appellant is a performer and was trying to bring an 'air of positivity to the people'. She was trying to please the protesters inside the building and was also trying to draw attention to herself in a provocative manner.[4]
[4] Trial ts 30.
The magistrate found it unnecessary to resolve a debate at trial as to whether the appellant was wearing ordinary underwear, or pantaloons and fishnet stockings, under her skirts. Her Honour accepted the evidence of the two police officers that 'they did see some flesh' but found that they did not 'see great expanses of flesh'.[5]
[5] Trial ts 28 - 29.
The magistrate's approach
The magistrate referred to s 74A of the Code,[6] which relevantly provides:
[6] Trial ts 26.
(1)In this section —
behave in a disorderly manner includes —
(a)to use insulting, offensive or threatening language; and
(b)to behave in an insulting, offensive or threatening manner.
(2)A person who behaves in a disorderly manner —
(a)in a public place or in the sight or hearing of any person who is in a public place; …
is guilty of an offence and is liable to a fine of $6 000.
The magistrate noted that the prosecution case was that the appellant behaved in a disorderly manner 'by behaving in an offensive manner' when she lifted her skirts and 'pressed her buttocks' against the glass of the QV1 building.[7]
[7] Trial ts 26, 30.
The magistrate referred to CRC v Taylor,[8] in which Smith J observed:[9]
To constitute disorderly behaviour, the conduct or behaviour must disturb the order of the public place at the particular time in question. That is, the behaviour must be behaviour that tends to disturb the peace. (citations omitted)
[8] CRC v Taylor [2019] WASC 187 [42].
[9] Trial ts 31.
The magistrate also referred to Heanes v Herangi,[10] in which Johnson J said that the approach to establishing disorderly behaviour set out in Police v Christie,[11] and Melser v Police,[12] was relevant to both language and conduct (and therefore 'behaviour') under s 74A of the Code.[13] The magistrate quoted the following observations by Johnson J:[14]
[A] person may be guilty of disorderly conduct which does not reach the stage that it is calculated to provoke a breach of the peace, but concluded that not only must the behaviour seriously offend against those values of orderly conduct which are recognised by right-thinking members of the public but it must at least be of a character which is likely to cause annoyance to others who are present.
[10] Heanes v Herangi [2007] WASC 175; (2007) 175 A Crim R 175 [204].
[11] Police v Christie [1962] NZLR 1109.
[12] Melser v Police [1967] NZLR 437.
[13] Trial ts 31 - 32.
[14] Heanes [149].
The magistrate concluded:[15]
And I do consider that in that case of Heanes v Herangi, Johnson J did an extremely thorough summary of all of the relevant principles. Objectively speaking, beyond certain particular contexts it is generally offensive for a grown woman to lift up her skirts in a very considered and deliberate manner and to shimmy her buttocks against the glass of a public building.
In this particular case I take into account, in considering context, that this conduct occurred in the midst of a protest and that the accused was sympathetic to the cause and was effectively part of the protest, although she was assuming a performing role during it. The reason why I raised that as important context is that protests always bear a risk of becoming unruly.
It is not suggested that this protest did so, but any behaviour which could be seen to be offensive must be seen properly in that context because it has a greater probability of inspiring a – a spirit of rebellion which could then lead to further trouble or bad behaviour. All in all, I certainly do not consider that the accused’s behaviour was calculated to provoke breach of the peace.
But given Johnson J's remarks to which I have referred, I don't consider that I have to find that it was calculated to do so. And it – it doesn’t have to be so in order for me to find beyond reasonable doubt that the accused is guilty as charged. So in all of those circumstances, I find that her behaviour was offensive and therefore disorderly and I enter a judgment of conviction.
[15] Trial ts 32 - 33.
Proper construction of s 74A of the Code
Section 74A(2)(a) of the Code creates a criminal offence, proscribing behaviour in, or within sight or hearing of, a 'public place'. In its terms, it is directed to the preservation of order in public places.
The object of legislation creating public order offences of this kind was described by Gleeson CJ, in Coleman v Power,[16] in the following terms:
The object of such legislation is generally the same: the preservation of order in public places in the interests of the amenity and security of citizens, and so that they may exercise, without undue disturbance, the rights and freedoms involved in the use and enjoyment of such places.
[16] Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 [32].
To similar effect, in Mogridge v Foster,[17] McKechnie J identified the offence of disorderly conduct, previously provided for in s 54 of the Police Act 1892 (WA) (the predecessor to s 74A), as being:
[D]esigned to prevent breaches of the peace and to allow citizens to go about their lawful business without undue interference or annoyance.
[17] Mogridge v Foster [1999] WASCA 177 [7].
Terms appearing in s 74A(1) of the Code, such as 'insulting' and 'offensive', must be understood in light of that evident statutory purpose. The ordinary dictionary meanings of those words are potentially very broad. The Macquarie Dictionary definitions of 'offensive' include 'causing … displeasure' and 'irritating', while an insult is defined to include 'affront'. However, it cannot reasonably be thought that, by enacting s 74A, Parliament objectively intended to criminalise any behaviour whatsoever that might irritate or cause displeasure or affront to someone in a public place.
Further, a very expansive reading of s 74A may lead to that provision impermissibly burdening the freedom of political communication implicitly protected by the Commonwealth Constitution. The validity of s 74A is not in issue in this case, and the magistrate found that the charged behaviour in this case was not itself political communication. However, s 74A is clearly apt to have potential application to political protests and gatherings, which commonly occur in public places. If the section penalised political communications that merely had some capacity to irritate or cause displeasure or affront to some person in a public place, then it is difficult to see how s 74A would not infringe the implied limitation on legislative power to make laws burdening political communication.[18] The presumption that Parliament intended to enact a valid law counts strongly against a construction of s 74A that would render it invalid, at least in its application to political communications.[19]
[18] As to the current test for determining whether a law infringes that implied limitation on legislative power, see, for example, LibertyWorks Inc v Commonwealth [2021] HCA 18; (2021) 391 ALR 188 [44] - [48].
[19] Residual Assco Group Ltd v Spalvins [2000] HCA 33; (2000) 202 CLR 629 [28].
The concept of disorderly behaviour explained in the New Zealand case of Melser has been applied in this State, both in relation to the former s 54 of the Police Act and to s 74A of the Code.[20] In Melser, Turner J said:[21]
Disorderly conduct is conduct which is disorderly; it is conduct which, while sufficiently ill-mannered, or in bad taste, to meet with the disapproval of well-conducted and reasonable men and women, is also something more - it must, in my opinion, tend to annoy or insult such persons as are faced with it - and sufficiently deeply or seriously to warrant the interference of the criminal law.
This passage in Melser identifies three features of disorderly behaviour which are relevant under s 74A of the Code.
[20] See, for example, Mogridge [5] - [6] and cases there cited; MP v Trengarth [2007] WASC 221; Heanes [204].
[21] Melser (444).
First, the test for whether words or conduct may be characterised as behaving in a disorderly manner is objective in nature. It does not depend on the peculiar sensitivities of the particular person or persons exposed to the words or conduct concerned. Section 74A does not constrain the lawful conduct and language of a person in, or within sight or hearing of, a public place by reference to the idiosyncrasies or delicate sensibilities of a particular complainant. Rather, the character of the behaviour concerned is to be judged by the effect it would have on a reasonable person in the relevant circumstances. In that way, the offence-creating provision protects the lawful use of public places from unreasonable interference.
Secondly, it is not sufficient that a reasonable person might merely disapprove of the words or conduct said to constitute disorderly behaviour. The words or conduct must also be such as to affect reasonable persons in their lawful use and enjoyment of the public place.
Thirdly, in the context of a criminal statute, the effect which the relevant behaviour would have on reasonable persons in a public place must be sufficiently serious to warrant the imposition of criminal punishment.
These limitations were similarly expressed by Smith J in CRC v Taylor in the following terms:[22]
To constitute disorderly behaviour, the conduct or behaviour must disturb the order of the public place at the particular time in question. That is, the behaviour must be behaviour that tends to disturb the peace.
… Not only must the conduct be disorderly, the conduct or behaviour must be sufficiently serious to warrant the interference of the criminal law.
It follows, therefore, that disorderly behaviour must be objectively seriously disruptive of public order and not merely a private affront or annoyance to either the person to whom it is directed or a person present. (citations omitted)
[22] CRC v Taylor [42] - [44].
Counsel for the respondent expressed some apprehension that the reference to 'behaviour that tends to disturb the peace' in the passage just quoted may be read as confining the offence to conduct which constitutes or provokes a 'breach of the peace'.[23]
[23] Appeal ts 12.
On one view, a common law 'breach of the peace', which will provide a valid ground for an arrest, requires actual or threatened violence to a person or to property in the owner's presence.[24] However, New South Wales courts have taken a broader view, recognising the notion of 'breach of the peace' to be multifaceted and to include a wide range of actions and threatened actions that interfere with the ordinary operation of civil society.[25] A still broader view is that a breach of the peace may occur whenever a person lawfully carrying out work is unlawfully and physically prevented by another from doing it.[26] On the broadest of these views, conduct that interferes with the lawful use and enjoyment of a public place might constitute a breach of the peace.
[24] See R v Howell (Errol) [1982] QB 416, 427; R (Laporte) v Chief Constable of Gloucestershire Constabulary [2006] UKHL 55; [2007] 2 AC 105 [27] - [29].
[25] See the discussion in TheState of New South Wales v Bouffler [2017] NSWCA 185; (2017) 95 NSWLR 521 [159] - [164] adopting the views of Campbell JA in The State of New South Wales v Tyszyk [2008] NSWCA 107; see also Fletcher v The State of New South Wales [2019] NSWCA 31.
[26] R v Chief Constable of Devon and Cornwall; Ex parte Central Electricity Generating Board [1982] QB 458, 471 per Lord Denning; R v Van Bao Nguyen [2002] NTSC 38; (2002) 139 NTR 15 [11].
I do not consider Smith J in CRC v Taylor to be confining the concept of disorderly behaviour to behaviour that constitutes or is likely to provoke a breach of the peace as that concept is conceived by the common law (whatever the limits of the conception might be). I certainly do not read her Honour as intending to limit the concept of disorderly behaviour to behaviour that involves, or is likely to provoke, actual or threatened violence. Rather, by referring to behaviour that tends to disturb the peace, I take her Honour to be referring to behaviour that tends to disturb the peaceful use and enjoyment of public places by persons going about their lawful business in those places.
That view of the concept of disorderly behaviour is consistent with the purpose of the provision, identified at [17] above, to protect the exercise, without undue disturbance, of the rights and freedoms involved in the use and enjoyment of public places.
In my view, for behaviour to be 'offensive' as contemplated by s 74A(1), and thereby to constitute behaving in a disorderly manner in a public place within the meaning of s 74A(2)(a), it must be behaviour that would so offend a reasonable person as to prevent or interfere with that person's lawful use and enjoyment of a public place in the relevant circumstances, to such an extent as to merit criminal punishment.
That construction of s 74A explains why behaviour that may be characterised as disorderly in one place and circumstance may not be so characterised in a different place and circumstance. That is because, in assessing whether behaviour is disorderly, account must be taken of the use and enjoyment to which the place concerned is being put at the time of the behaviour. The question is therefore whether the charged behaviour would prevent or interfere with that use and enjoyment of the public place by a reasonable person to such an extent as to merit criminal punishment.
This last point is illustrated by Keft v Fraser.[27] In Keft, a comedian performing under the stage name 'Rodney Rude' used the word 'fuck' 30 times during a comedy routine performed before a sold‑out adult audience at the Perth Concert Hall. The Full Court found that the performer was not guilty of using obscene language in a public place, so as to be deemed guilty of disorderly conduct. This can be explained on the basis that the use of profane language by a performing comic did not prevent or interfere with the use and enjoyment of the Perth Concert Hall as a venue for viewing the performance of what was advertised as an adults-only comedy routine with language that might offend. At the same time, Burt CJ recognised that the use of the same words in the Hay Street mall at midday could be described as disorderly conduct, on the basis that:[28]
Their use upsets the order of that place by interfering with the free use of that place by persons who have a right to use that place without being subjected to words which offend them and cause them distress. The use of the words in those circumstances are a kind of public nuisance.
[27] Keft v Fraser (unreported, WASC, Library No 6251, 21 April 1986).
[28] Keft (10 - 11).
It is, therefore, necessary to have regard to the use which is being made of a public place at the relevant time in considering whether behaviour amounts to behaving in a disorderly manner in a public place. The use to which the relevant public place is being put at the time of the alleged offence forms part of the circumstances in which the impact of the behaviour on a reasonable person must be assessed. The question is whether charged behaviour would prevent or interfere with that use and enjoyment of the public place by a reasonable person to such an extent as to merit criminal punishment.
Disposition of the appeal against conviction
There is no contest that the forecourt and foyer of the QV1 building is a public place for the purposes of s 74A of the Code. Nor is there any real dispute as to what the appellant did in that public place. The question raised by the appeal is whether that behaviour can be characterised as behaving in a disorderly manner in a public place on the basis that it was offensive in the circumstances. As I have explained, the answer to that question turns on whether the behaviour would so offend a reasonable person as to prevent or interfere with that person's lawful use and enjoyment of a public place in the relevant circumstances, to such an extent as to merit criminal punishment. The relevant circumstances here are that, at the time of the charged behaviour, the forecourt and foyer of the QV1 building were being used by persons having business in the office tower to enter and leave the premises, and as a venue for a peaceful protest.
In assessing whether a reasonable person would regard the appellant's behaviour to be offensive, it is necessary to focus on the specific features of the particular behaviour concerned.
The magistrate concluded that, at the time of the behaviour, the appellant was not obviously dressed as a clown.[29] However, the CCTV footage shows that she was plainly a costumed performer acting in a clownish manner. She could not in any sense be regarded as being immodestly dressed, as she was wearing a number of layers of clothing. The magistrate found that it did not matter what kind of underwear the appellant was wearing,[30] and so must have regarded the conduct to be offensive even if the appellant was wearing the polka‑dotted pantaloons she described in her evidence. It was not, and could not reasonably be, found that the appellant was indecently exposing herself to the public.
[29] Trial ts 30 - 31.
[30] Trial ts 28.
The charged behaviour was obviously part of a comic performance designed to amuse an audience. There was nothing in the behaviour that could be reasonably characterised as aggressive or threatening to anyone. The appellant did not interfere with or obstruct the movement or actions of anyone in the vicinity of the forecourt and foyer of the QV1 building. The behaviour lasted for only a few seconds.
In my view, a reasonable person observing the appellant would have perceived a costumed performer clowning about in a harmless manner as part of her performance. A reasonable person would not have found the behaviour to be offensive. Even if he or she had found it mildly annoying rather than amusing, the brief glimpse of a costumed performer's clothed posterior would not have in any way prevented or interfered with a reasonable person's use and enjoyment of the forecourt and foyer of the QV1 building. The relevant use being made of the public place was as a venue for peaceful protest activity and as a thoroughfare for those attending to business in the offices in the QV1 tower. The appellant's performance could not in any way have interfered with that use and enjoyment of the forecourt and foyer of the QV1 building by a reasonable person. It certainly could not have done so to any extent that could merit criminal punishment.
The magistrate appeared concerned that 'protests always bear a risk of becoming unruly' and that the appellant's performance might inspire 'a spirit of rebellion which could then lead to further trouble or bad behaviour'.[31] That was not the actual effect of the appellant's performance. Watching the CCTV footage, I have difficulty in seeing the basis for any reasonable apprehension that the appellant's performance was likely to have that effect. In any event, to convict the appellant of an offence against s 74A(2)(a), it was not enough for the prosecution to show that the appellant's conduct might merely inspire other persons to behave in a disorderly manner in a public place.
[31] Trial ts 33.
Rather, what the prosecution had to prove in this case was that the appellant behaved in a disorderly manner in a public place. In this case, the prosecution sought to prove this by establishing that the charged behaviour would so offend a reasonable person as to prevent or interfere with the person's lawful use and enjoyment of a public place in the relevant circumstances, to such an extent as to merit criminal punishment.
The prosecution failed to establish that element of the offence, and the magistrate erred in holding to the contrary. In my view, the magistrate can be seen to have erred in not focussing attention on the questions of:
1.whether, and to what extent, the appellant's behaviour would prevent or interfere with the use and enjoyment to which the forecourt and foyer of the QV1 building was being put at the relevant time by a reasonable person; and
2.whether the extent of any such interference merited criminal punishment.
These were not issues addressed in her Honour's ex tempore reasons.
I note that in Mogridge, McKechnie J observed, 'Magistrates with a wide experience of life and human foibles are generally in the best position to judge whether conduct should be categorised as disorderly'.[32]
[32] Mogridge [8].
There is no doubt that a magistrate who has seen and heard the evidence during the trial of a matter is generally in a much better position than an appellate court to find facts and to appreciate nuances in the circumstances described by the contested oral evidence. For myself, I doubt whether a magistrate is in any better or worse position than a judge of this court to make an evaluative judgment about whether particular behaviour is to be characterised as disorderly, particularly where that behaviour is recorded on CCTV footage tendered in evidence. It may be (and it is unnecessary to decide in this case) that on appeal the correct question is whether it was open to the magistrate to characterise the charged behaviour as disorderly, rather than whether the appellate judge regards that behaviour to be disorderly. However, in this case, I am satisfied that it was not open to the magistrate to conclude that the appellant's behaviour was disorderly, and that the magistrate failed to address the correct question, as noted at paragraph [41] above.
In my view, the appellant's clownish behaviour was not offensive and did not interfere with or prevent the use and enjoyment of a public place in any way meriting criminal punishment. Her behaviour was not capable of being properly characterised as behaving in a disorderly manner in a public place within the meaning of s 74A(2)(a) of the Code. The appeal must be allowed, the conviction of behaving in a disorderly manner in a public place set aside, and a judgment of acquittal substituted.
Orders
As the ground of appeal against conviction has succeeded, it is unnecessary to determine the appeal against sentence. The orders should be:
1.Leave to appeal is granted on ground 1.
2.The appeal is allowed.
3.The appellant's conviction on prosecution notice PE 3334/2021 is set aside and a judgment of acquittal is substituted.
I would hear from the parties on the question of what order fixing the appellant's trial and appeal costs should be made under s 5(4) of the Official Prosecutions (Accused's Costs) Act 1973 (WA).
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Mitchell
8 JUNE 2022
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