Peterson v Hawley - [2022] WASC 368

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION:   PETERSON -v- HAWLEY [2022] WASC 368
CORAM:   FORRESTER J
HEARD:   27 SEPTEMBER 2022
DELIVERED          :   1 NOVEMBER 2022
FILE NO/S:   SJA 1041 of 2022
BETWEEN:   NATASHA JANE PETERSON
Appellant

AND

GEOFFREY NICHOLAS HAWLEY
Respondent

ON APPEAL FROM:
For File No:   SJA 1041 of 2022
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE HARRIES
File Number            :   PE 35748 of 2021

Catchwords:

Criminal law – Single judge appeal – Appeal against conviction – Whether appellant behaved in a disorderly manner – Meaning of 'offensive' - Whether the magistrate erred by applying the wrong test in the context of a political communication – Whether the appellant's conduct was 'offensive' - Whether any error resulted in a substantial miscarriage of justice – Whether conviction was unreasonable and unsupported by the evidence - Criminal Code s 74a

Legislation:

Criminal Appeals Act 2004 (WA)
The Criminal Code (WA)

Result:

Leave to appeal granted on ground 1
Leave to appeal refused on ground 2
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	K A Heslop
Respondent	:	S J Cobbett

Solicitors:

Appellant	:	Kathryn Heslop
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
Gardner v Caporn [2005] WASCA 153
Heanes v Herangi [2007] WASC 175; (2007) 175 A Crim R 175
Keft v Fraser (unreported, WASC, Library No 6251, 21 April 1986)
Melser v Police [1967] NZLR 437
Mogridge v Foster [1999] WASCA 177
Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92
Monis v The Queen; Droudis v The Queen [2011] NSWCCA 231
Morgan v Cramer [2019] WASC 68
Moylan v Lee [2022] WASC 195
Rundle v Innerd [2015] WASC 340
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
Strahan v Brennan [2014] WASC 190
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
WS v Gardin [2015] WASC 97; (2015) 48 WAR 494

FORRESTER J:

Introduction

On 27 August 2021, the appellant was charged with behaving in a disorderly manner in a public place, contrary to s 74A(2)(a) of the Criminal Code (charge PE 35748/2021).
The appellant stood trial before a magistrate on 31 March 2022. On 6 April 2022, she was convicted and fined the sum of $1,500.
The appellant has appealed against her conviction.

The trial

The prosecution particularised the allegation as relying on s 74A(1)(a) and (b), alleging that the appellant's language and conduct was insulting and offensive.[1] At one point it appears that the appellant's counsel understood the prosecution to have confined itself to an allegation that the language and conduct was offensive,[2] but ultimately addressed the magistrate on the meanings of both 'insulting' and 'offensive'.[3]
[1] Transcript, WA Police v Natasha Jane Peterson, Magistrates Court of Western Australia, 6 April 2022, 5 (Transcript of Proceedings 6 April 2022).
[2] Transcript, WA Police v Natasha Jane Peterson, Magistrates Court of Western Australia, 31 March 2022), 41 (Transcript of Proceedings 31 March 2022).
[3] See, for example, Transcript of Proceedings 31 March 2022, 46-47
The evidence of the alleged offence came almost entirely from the exhibits. Exhibit 1 was the CCTV footage from the store in which the offence was alleged to have occurred. Exhibit 2 was City of Perth CCTV footage. Exhibit 3 was a compilation disc of footage from the appellant's social media accounts.
On 21 August 2021 at 12.12 pm, the appellant entered the Louis Vuitton store in Murray Street, Perth. She was naked apart from a flesh‑coloured G‑string. The front top half of her body was covered in a red substance which appeared to be blood and, in a later social media post, the appellant said was her menstrual blood.[4] Her outfit was later said by her counsel to be designed to resemble a flayed animal.[5] She was wearing a sign which said, 'I'd rather be naked than wear somebody else's skin'. She was accompanied by two men, who were filming her whilst she was in the store.
[4] Exhibit 3.
[5] Transcript of Proceedings 31 March 2022, 44.
The appellant walked into the store, past a short line of waiting customers. She raised her sign above her head, walked through the store and started to shout. During a little over two minutes in the store, the appellant made a number of statements, including:
Who was murdered for your leather bag, down jacket and woollen jumper? You are contributing to a holocaust. If you are not vegan, you are an animal abuser. Louis Vuitton have blood on their hands and so do you if you're not vegan. There is blood on your hands if you're not vegan. They were skinned alive, they were shot in the head. If you're not vegan you paid for their brutal murder. Louis Vuitton have blood on their hands and so do you if you're not vegan. This is murder. This is blood on your hands.
There were a number of patrons in the store, browsing or being assisted by staff. There were a few more waiting to enter the store.
Almost as soon as she entered, numerous store attendants attempted to stop her moving through the store and to usher her to the exit, but the appellant dodged them and continued to walk through the store shouting. One attendant sought to take the appellant's sign, but she wrestled with him and the sign tore. She then continued, back and forth through the store. At the point at which she shouted, 'They were skinned alive, they were shot in the head' the volume of her shouts increased. At that time, she was in a part of the store where a young child sat with his mother.
The appellant continued to resist being ushered towards the exit, but eventually the staff succeeded in directing her out of the store. The appellant shouted once more back towards the store, then lowered her sign and left the area.
One witness, a staff member from the Louis Vuitton store, gave evidence, but did not materially add to the evidence from the footage for the purposes of this appeal.
The appellant elected not to give evidence.

Magistrate's reasons for decision

The magistrate considered the relevant authorities as to the test to be applied in the case,[6] including CRC v Taylor,[7] Melser v Police,[8] Heanes v Herangi,[9] and Mogridge v Foster.[10]
[6] Transcript of Proceedings 6 April 2022, 9 - 10.
[7] CRC v Taylor [2019] WASC 187.
[8] Melser v Police [1967] NZLR 437.
[9] Heanes v Herangi [2007] WASC 175; (2007) 175 A Crim R 175.
[10] Mogridge v Foster [1999] WASCA 177.
The magistrate found as a matter of fact that the appellant's communication was a political communication.[11] Her Honour referred to the observations of Gleeson CJ in Coleman v Power[12] as to the test which should be applied in the case of a law which places a restraint on political communications and said:
It must be of such a nature that use of the language, in the place where it is spoken, to a person of that kind, is contrary to contemporary standards of public good order and goes beyond what, by those standards, is simply an exercise of freedom of expressing opinions on controversial issues.[13]
[11] Transcript of Proceedings 6 April 2022, 11.
[12] Coleman v Power [2004] HCA 39; (2004) 220 CLR 1.
[13] Transcript of Proceedings 6 April 2022, 11.
The magistrate also referred to Monis v The Queen[14] and said:
…the behaviour must be more than simply insulting, offensive or threatening. It must be in a manner that is so sufficiently serious as to warrant the interference of the criminal law as per Melser v Police…
Some political communications may, by their very nature, be objectively calculated or likely to cause or arouse significant anger, significant resentment, outrage, disgust or hatred and therefore fall within what has been described before me as a narrow test with respect to the meaning of the word 'offensive' that is found in s 74A.[15]
[14] Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92.
[15] Transcript of Proceedings 6 April 2022, 11 - 12.
Her Honour considered the judgments in Coleman v Power as to the meaning of 'insulting' in the context of political communication and held:
In my view, the test I should adopt for criminal sanctions to apply to the conduct of an accused, as per Gleeson CJ and the majority in Coleman, must be of such a nature that the use of the language in the place where it is spoken to a person of that kind is contrary to contemporary standards of public good order and goes beyond what, by those standards, is simply an exercise of freedom of expression of opinion on a controversial issue…
To amount to insulting conduct or behaviour or language, an exhaustive list was not set out by the High Court but it was held that something more than a mere wounding of feelings is required but something less than the provocation of physical violence may suffice. In the end, my view is that the authorities clearly require a more narrow test to be applied so as not to infringe the implied right to freedom of political communication and that the key is that the conduct is sufficiently serious as to warrant a criminal sanction.[16]
[16] Transcript of Proceedings 6 April 2022, 13 - 14.
Her Honour had regard to the fact that none of the shoppers were naked, or partially so, regardless of their gender and held:
…it cannot be said that contemporary community standards are such that nudity or partial nudity in this context is a standard of propriety or public decency of a hypothetical reasonable person.[17]
[17] Transcript of Proceedings 6 April 2022, 14 - 15.
Finally, her Honour said:
In circumstances where Ms Peterson entered Louis Vuitton store during peak shopping hours in a state of partial nudity, used language which accused members of the public of murder and animal abuse, spoke loudly through a loudspeaker delivery of this message, refused to leave the store when it was made clear to her that the store management required her to leave, because a staff member tried to take her placard, because the placard was broken in the struggle, because staff tried to stop the filming, tried to direct her and her co-accused out of the store and directly asked that she leave.
I find that Ms Peterson's conduct on this occasion was such that it disturbed the order of the Louis Vuitton store and is conduct which, taking into account all of the surrounding circumstances…was of such a nature…in the place where it was spoken, together with the conduct of Ms Peterson…contrary to contemporary standards of public good order and goes beyond what, by those standards, is simply an exercise of freedom of expression of opinion on controversial issues. And, in my view, it is of sufficient seriousness as to warrant the sanction of the criminal law and consequently I find that the prosecution has proven each element of the charge against Ms Peterson beyond reasonable doubt.[18]
[18] Transcript of Proceedings 6 April 2022, 16.

Grounds of Appeal

The grounds of appeal are:
(1)The learned magistrate erred at law in her construction of the appropriate test to determine whether the conduct was disorderly; and
(2)The conviction was unsafe and unsupported by the evidence.
The sole fact in issue was whether the conduct was disorderly. The remaining elements were otherwise admitted.

Leave to appeal - legal principles

The application for leave to appeal is made under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA). A sentence imposed as a result of a conviction is a decision which may be appealed.[19]
[19] CAA s 6((f)) and s 7(1).
Leave to appeal must not be granted on a ground of appeal unless the court is satisfied that the ground of has a reasonable prospect of succeeding,[20] meaning that the ground is required to have a rational and logical prospect of succeeding.[21] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[22]
[20] CAA s 9(2).
[21] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[22] CAA s 9(3).
Even if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.[23]
[23] CAA s 14(2).

Appellant's submissions

The appellant submitted that the appropriate test to be applied to whether conduct was 'offensive' was that said to have been adopted by the High Court in Monis v The Queen.
The appellant submitted that the test in fact applied by the magistrate was whether the conduct was contrary to contemporary good standards, and the magistrate's application of the facts to that test referred to contemporary standards of public good order. The appellant submitted that the magistrate failed to apply the correct test of whether the conduct was offensive and therefore made an error of law.[24]
[24] Appellant's Outline of Submissions filed 22 July 2022 [44] - [46] (Appellant's submissions).
In support of ground 2, the appellant argued that the conviction was 'unsafe and unsupported' by the evidence on the basis that:
(1) the magistrate was only satisfied that the appellant's conduct had disturbed the order of the store, was contrary to community standards of good order and went beyond what, by those standards, is simply an exercise of freedom of expression of opinion on controversial issues;
(2) the magistrate erred in law and in fact by failing to consider how a reasonable person would react to the appellant's conduct where, viewed objectively, that conduct formed part of the appellant's political protest, which was a material consideration for the purposes of considering whether a reasonable person would have viewed it as insulting or offensive;
(3) the reasons of the magistrate were inadequate, in that she failed to give reasons about whether she was satisfied that the appellant's conduct was offensive and why.[25]
[25] Appellant's submissions [47].
The appellant argued that it was of significance that the CCTV footage showed only one person leaving the store and the magistrate could have taken that into account.[26] The appellant also submitted that the CCTV footage did not show any visible signs of distress on the part of the customers.[27]
[26] Appellant's submissions [48].
[27]Appellant's submissions [48]; ts 54 - 55.
The appellant also argued that patrons of the store were less likely to be offended by the appellant's conduct because it was obviously a political protest.[28]
[28] ts 26.

Respondent's submissions

The respondent submitted that the magistrate recognised that, in order to constitute the offence of behaving in a disorderly manner, the conduct must be more than simply insulting, offensive or threatening (according to the ordinary meaning of those terms) and the test applied by her Honour does not disclose an error.[29]
[29] Respondent's Outline of Submissions filed 17 August 2022 [45] - [46] (Respondent's submissions).
The respondent contended that the magistrate was not required to make a finding that the conduct was 'offensive'; what was required was a finding that the appellant behaved in a disorderly manner. The respondent argued that the correct approach to so determining is to assess the conduct by reference to the three features outlined in Melser.[30]
[30] Respondent's submissions [47] - [50].
The respondent submitted that it was not simply the impact of the appellant's conduct on the patrons of the store which was relevant, but also the impact on its staff, who were considerably affected by the appellant's behaviour.[31]
[31] ts 51.

Disposition

Construction of s 74A of the Code

Section 74A of the Criminal Code relevantly provides as follows:
74A. Disorderly behaviour in public
(1)In this section -
behave in a disorderly matter 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; or
(b)in a police station or lock‑up,
is guilty of an offence and is liable to a fine of $6 000.
At trial, and in submissions before me, the appellant relied upon the test set out in Monis v The Queen as to the meaning of 'offensive', namely that the conduct must be:
…calculated or likely to arouse significant anger, significant resentment, outrage, disgust or hatred in the mind of a reasonable person in all the circumstances [24], [57].
However, in Monis the court proceeded on the basis of the meaning of 'offensive' adopted by the court below without finally determining the meaning of the term 'offensive'.[32] Further, Hayne J observed that there is no single definition of offensive which is apt for every different form of crime; much turns on the context in which it is used.[33] Crennan, Kiefel and Bell JJ stated that it was 'not useful' to draw comparison with the standard set in some of the judgments in Coleman v Power because that case involved a public order offence, which had a different purpose and operation than the provision in Monis.[34]
[32] Monis v The Queen; Droudis v The Queen [2011] NSWCCA 231 [44] (Bathurst CJ), [83] (Allsop P).
[33] Monis v The Queen [151].
[34] Monis v The Queen [339].
There is a long line of authority in relation to the interpretation of s 74A (and its predecessor) in this State, which does not include reference to Monis.[35] Having regard to the different type of legislation under consideration in Monis, the cautions expressed by Hayne, Crennan, Kiefel and Bell JJ in that case, and the significance of context in the construction of the term 'offensive', I do not consider that Monis is authority for the proposition that, for conduct to be offensive within the meaning of s 74A, it must be '…calculated or likely to arouse significant anger, significant resentment, outrage, disgust or hatred in the mind of a reasonable person in all the circumstances.'
[35] See, for example, Keft v Fraser (unreported, WASC, Library No 6251, 21 April 1986); Mogridge v Foster; Heanes v Herangi; CRC v Taylor; Moylan v Lee [2022] WASC 195.
In Coleman v Power Gleeson CJ described the object of legislation creating public order offences such as s 74A as being:
…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 [32].
As Mitchell J observed in Moylan v Lee, terms such as 'insulting' and 'offensive' in s 74A must be understood in light of that statutory purpose:
The ordinary dictionary meaning of those words are potentially very broad. The Macquarie Dictionary definitions of 'offensive' include 'causing…displeasure' and 'irritating', while an insult is declined 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…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. The presumption that Parliament intended to enact a valid law counts strongly against a construction of s 74 that would render it invalid, at least in its application to political communications [19] – [20].

Mitchell J referred to the three features of disorderly behaviour identified by Turner J in Melser v Police, which has previously been applied in relation to s 74A (and its predecessor) in this State:
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.[36]
[36] Moylan v Lee [22] - [24].
His Honour concluded:
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.[37]
[37] Moylan v Lee [30] - [31].
There are various ways of expressing the appropriate test as to what constitutes behaving in a disorderly manner within the meaning of s 74A, with the formulation of Mitchell J in Moylan being the most recent. However, the fundamentals remain as set out in Melser. The court must apply a test which recognises the objective nature of the test, the fact that the words and/or conduct must affect reasonable persons in their lawful use and enjoyment of the public place, and that the seriousness of the effect on the reasonable person in their lawful use and enjoyment must warrant criminal punishment.
I propose to approach the appeal on this basis.

Ground 1

The appellant submitted that the test applied by the magistrate was inconsistent with the law as stated in Moylan.[38]
[38] ts 11.
The magistrate stated that the test of whether conduct is offensive or insulting is an objective one, to be determined in light of the standards of the community. Her Honour found that the conduct was contrary to contemporary standards of public good order, that it disturbed the order of the store and was of such seriousness as to warrant criminal punishment. [39]
[39] Transcript of Proceedings 6 April 2022, 15 - 16.
In my view, it was not necessary for her Honour to expressly find that the appellant's conduct was 'offensive' in order for her to be satisfied that the appellant was guilty of the offence. The offence is behaving in a disorderly manner in a public place. To 'behave in a disorderly manner' includes, but does not require, using offensive language and/or behaving in an offensive manner. The prosecution particularised the conduct upon which it relied to prove that the conduct was disorderly. The fact that her Honour did not specifically find it to be 'offensive' does not, in my view, establish error.
However, while her Honour found that the appellant's conduct did disturb the order of the store, her Honour did not specifically address the second factor as outlined in Melser, which was also referred to in the test formulated in Moylan. That factor is the impact that the conduct would have on a reasonable person's lawful use and enjoyment of the public place. It is the impact the conduct would have on the reasonable person in their use and enjoyment of the public place which must be such as to merit criminal punishment.
Instead, the test her Honour applied was whether the appellant's conduct of itself merited criminal punishment. In addition to the passage already extracted at [18] above, examples of this are:
…I find that the behaviour must be more than simply insulting, offensive or threatening. It must be in a manner that is so sufficiently serious as to warrant the interference of the criminal law as per Melser v The Police.[40]
…
The kind of conduct attracting the charge must be sufficient to justify the imposition of a criminal sanction.[41]
…
…my view is that the authorities clearly require a more narrow test to be applied so as not to infringe the implied right to freedom of political communication and that the key is that the conduct is sufficiently serious as to warrant a criminal sanction.[42]
[40] Transcript of Proceedings 6 April 2022, 11-12
[41] Transcript of Proceedings 6 April 2022, 13
[42] Transcript of Proceedings 6 April 2022, 14
In determining this appeal, I am conscious of the large volume of cases magistrates are required to deal with daily, and the need for them to do so with expedition and a degree of informality. As such, an appeal court should not be overly critical of the reasons given by a magistrate, or to infer from infelicity of language that error is thereby demonstrated. As such, I have given careful consideration to whether her Honour could have been using the word 'conduct' in a broad sense to include its impact.[43]
[43] Gardner v Caporn [2005] WASCA 153 [59]; See also Rundle v Innerd [2015] WASC 340 [117]; Strahan v Brennan [2014] WASC 190 [89] - [90].
However, in this case her Honour had the opportunity to adjourn the matter and formulate her reasons for decision, and there was a consistent absence of reference to the impact the conduct would have on a reasonable person's lawful enjoyment of the public place. In my view, in the context of this case, it is apparent that her Honour did not turn her mind to this specific aspect of disorderly conduct when determining whether the conduct fell within its scope.
Accordingly, I am satisfied that her Honour erred in the test to be applied.
That does not, however, finally resolve the issue. Pursuant to s 14(2) of the CAA, if a ground of appeal might be decided in favour of the appellant, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.
As Hall J observed in Morgan v Cramer,[44] this form of the proviso needs to be understood as operating in a context where, unlike a jury, the magistrate provides detailed reasons for their decision. This enables an assessment to be made of whether any error was in fact material to the result, rather than merely having the potential to have such an effect.
[44] Morgan v Cramer [2019] WASC 68 [45]; see also WS v Gardin [2015] WASC 97; (2015) 48 WAR 494 [219] - [242] (Mitchell J).
In this case, the error was one of law. In such a case, there may be circumstances where the error has not affected the outcome, but there has been such a significant breach of the presuppositions of a trial that the operation of the proviso is excluded.[45]
[45] Morgan v Cramer [45]; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [45].
In the present case, the factual bases of the magistrate's decision are not challenged. This is particularly so having regard to the significant majority of the evidence being by way of audiovisual recording. The error of law occurred in the process of the magistrate making a finding as to whether the factual findings satisfied the elements of the offence. As such, in my view, this is not a case in which there has been such a significant breach of the presuppositions of a trial that the operation of the proviso is excluded.
There are two pathways to a determination that there has been no substantial miscarriage of justice. The first is that the error had no material effect on the verdict of the magistrate. The second is if the court is satisfied, on a review of the evidence, that the evidence properly admitted at trial proved, beyond reasonable doubt, the appellant's guilt.[46]
[46] Weiss v The Queen [44].
In my view, the error cannot positively be said to have had no effect on the magistrate's verdict. Accordingly, if the proviso is to apply in this case, I must be satisfied from my own review of the evidence that the evidence establishes the appellant's guilt beyond reasonable doubt.
It is not in dispute that the appellant was in a public place within the meaning of the Criminal Code. The sole issue is whether the appellant's conduct constituted behaving in a disorderly manner.
Applying the test as formulated by Mitchell J in Moylan, the sole issue in this case is whether the appellant's behaviour was '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.'
I consider the following factors to be relevant to the assessment I must make:
(1) the conduct was engaged in on a Saturday afternoon, during what would be expected to be a peak shopping period (which would have been verified by the line outside the store);
(2)the appellant was clothed only in a flesh coloured g-string, so as to deliberately appear to be completely naked from a distance;
(3)the appellant had liberally smeared her front torso in a substance which appeared to be blood, and which also trailed down and between her legs. Not only was this an extremely confronting image, a reasonable person would have been conscious of the potential biohazard the appellant posed even though they could not have been aware that the substance was, according to the appellant, actually her own blood;
(4)the language used by the appellant was deliberately provocative and emotive, and accused people of animal abuse and murder, and contributing to a 'holocaust'. She became louder when saying that 'they were skinned alive, they were shot in the head', at which point she was in the same room as a young child sitting with his mother;
(5)the volume of the appellant's words was such as to be heard throughout the store and outside it. It was not possible for anyone in the store to avoid hearing her without leaving the store;
(6)the appellant was carrying a sign which said 'I would rather be naked than wearing someone else's skin'.
(7)the appellant ignored the repeated pleas from staff of the store to leave, and physically wrestled with a staff member who was trying to take her placard from her;
(8)the appellant's refusal to leave the store over time resulted in an increasing number of the store's staff having to surround her and direct her towards the door in order to get her to leave without physically handling her;
(9) it is clear that the appellant would not have left the store when she did had she not been forced to so after being surrounded by numerous staff members.
The fact that only one person left the store while the appellant was in it is not a significant factor, in my view. There was a line to get into the store, and it would have been apparent to the customers that significant attempts were being made to evict the appellant, almost from the start. However, the majority of the staff were diverted in order to deal with the appellant, and it is clear that the customers were unable to move freely about the store and conduct their business properly while the appellant was inside. Meanwhile, they were subjected to shouted abuse and accusation by the appellant, about the particular activity in which they were engaged.
I also do not consider that the absence of obvious distress visible on the CCTV footage is significant. A comment made towards the appellant from off-camera indicates that at least one person in the store was substantially adversely affected by the appellant's conduct. Further, and in any event, it is not necessary that the appellant's behaviour cause visible trauma in order for it to constitute offensive behaviour.
In the case of the children, they may not have had the capacity to properly understand much of what the appellant said, but some of it was likely to be understood by them. In my view, reasonable people in the position of parents would have been so offended on behalf of their children by the appellant's conduct to have significantly impacted on their use of the place.
I am satisfied beyond reasonable doubt that the conduct of the appellant I have outlined, including her appearance and language, in a central city store selling leather goods and clothing on a Saturday afternoon, would so offend a reasonable person in that place and waiting to use that place as to prevent or interfere with their lawful use and enjoyment of that place.
I am also satisfied beyond reasonable doubt that the extent to which the conduct would prevent or interfere with a reasonable person's lawful use and enjoyment of the store was such as to merit criminal punishment. The interference was not momentary or slight, and involved a high level of abuse directly related to the activity in which the patrons were engaged, accompanied by graphic descriptions. The fact that its impact was not more significant does not mean that it did not merit criminal intervention.
As a result of those findings, I am satisfied that, despite the error of the magistrate, there was no substantial miscarriage of justice in this case.

Ground 2

My finding on ground 1 that the evidence establishes the appellant's guilt beyond reasonable doubt necessarily disposes of ground 2. I am satisfied not only that it was open to her Honour to find the appellant guilty, but that the conviction of the appellant was inevitable on the evidence adduced at trial.
Leave to appeal granted on ground 1.
Leave to appeal refused on ground 2.
The appeal is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AT
Associate to the Honourable Justice Forrester
1 NOVEMBER 2022