Moylan v Lee

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).