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Moylan v Lee

Moylan v Lee

Case [2022] WASC 195 8 June 2022

Public Order Offences

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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…

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 Moylan v Lee

Details

AGLC: Moylan v Lee [2022] WASC 195
Case: [2022] WASC 195
Decision Date

CaseChat Overview and Summary

The appeal was brought by Lynda Myra Moylan against her conviction for behaving in a disorderly manner in a public place, an offence under s 74A(2)(a) of the Criminal Code (WA). Moylan, a costumed performer, had lifted her skirts and petticoats and placed her posterior against the window of the foyer to an office tower during a peaceful protest. She was charged and convicted by a magistrate and fined $200. Moylan appealed the conviction and sentence on the ground that her conduct did not constitute disorderly behaviour in a public place. The Supreme Court of Western Australia allowed the appeal, set aside the conviction, and substituted a judgment of acquittal. In reaching its decision, the court examined the objective nature of the test for whether words or conduct may be characterised as disorderly behaviour under s 74A of the Code. The court found that for behaviour to be 'offensive' within the meaning of s 74A(1) and thereby constitute behaving in a disorderly manner in a public place under s 74A(2)(a), it must be behaviour that 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 court held that Moylan's clownish behaviour did not amount to disorderly behaviour in a public place. It was not offensive and did not prevent or interfere with the use and enjoyment of a public place in any way meriting criminal punishment.

The appeal against sentence was not determined as the appeal against conviction had succeeded. The court invited the parties to make submissions on the question of what order should be made in relation to trial and appeal costs under s 5(4) of the Official Prosecutions (Accused's Costs) Act 1973 (WA).

Orders