Peterson v Maidment
[2022] WASC 369
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: PETERSON -v- MAIDMENT [2022] WASC 369
CORAM: FORRESTER J
HEARD: 27 SEPTEMBER 2022
DELIVERED : 1 NOVEMBER 2022
FILE NO/S: SJA 1042 of 2022
BETWEEN: NATASHA JANE PETERSON
Appellant
AND
SCOTT ANTHONY MAIDMENT
Respondent
ON APPEAL FROM:
For File No: SJA 1042 of 2022
Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram: MAGISTRATE OLIVER
File Number : PE 4623 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 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 refused 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
Heanes v Herangi [2007] WASC 175; (2007) 175 A Crim R 175
Keft v Fraser (unreported, WASC, Library No 6251, 21 April 1986)
M v The Queen (1994) 181 CLR 487
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
Moylan v Lee [2022] WASC 195
NYL v The State of Western Australia [2022] WASCA 41
Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473
The State of Western Australia v Olive [2011] WASCA 25
FORRESTER J:
Introduction
On 23 January 2021, the appellant was charged with behaving in a disorderly manner in sight or hearing of any person who was in a public place, contrary to s 74A(2)(a) of the Criminal Code (charge PE 4623/2021).
The appellant stood trial before a magistrate on 15 March 2022 and on 8 April 2022 she was convicted and fined the sum of $2,000.
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 was offensive and that her behaviour was offensive.[1]
The evidence
[1] Transcript, WA Police v Natasha Jane Peterson, Magistrates Court of Western Australia, 15 March 2022, 3 ‑ 4 (Transcript of Proceedings 15 March 2022).
The events of 5 December 2020 can be seen on the CCTV footage from the store, which became Exhibit 1,[2] and the audiovisual footage which was recorded by the appellant's companion and taken from the appellant's Facebook page, tendered as Exhibit 2.[3] In those circumstances it is not necessary to summarise the evidence of the witnesses as to the conduct of the appellant and I will only summarise so much of the evidence as materially adds to that footage.
[2] Transcript of Proceedings 15 March 2022, 17.
[3] Transcript of Proceedings 15 March 2022, 18.
On 5 December 2020, the appellant attended the Boatshed Market in Cottesloe. She was dressed in a cow‑print 'onesie' with the top half tied around her waist. From her neck to waist the appellant was naked and painted with body paint in a cow‑print pattern. Her nipples and neck were painted with red paint in such a manner as to depict blood running from cuts. The appellant held a sign which read, 'They raped me and stole my babies so you can have my milk. Watchdominion.com'. The words 'raped', 'stole' and 'milk' were written in red while the rest of the sign was written in black.
Initially, the appellant stood in the dairy section, holding her sign. A male who was with her was filming her with his phone and she was wearing a microphone which captured her speech for the recording. A manager, Leandro Michelon, spoke to her and the appellant told him she was engaging in a silent protest, and would be ten minutes. However, after a very short period, the appellant walked towards the more crowded front of the store, and started to shout:
Do you know what happens to cows in the dairy industry, for you to consume their breast milk? They are raped and artificially impregnated. After a nine-month pregnancy, her babies are taken away from her immediately after birth, just so you can have her breast milk. Her daughters endure a life of slavery and rape, and her sons are murdered because they are seen as a waste product to the industry. They don't produce breast milk, so they were shot in the head as babies, just so you can have a glass of milk, or some icecream, yoghurt or cheese.
The dairy industry has lied to you. Watch Dominion on YouTube to see the truth. Feminism without veganism is hypocrisy, female enslavement, oppression of females and male oppression. Dairy cows are intelligent beings, just as loving as our beloved dogs and cats, yet we're forcing them into murder factories to be shot in the head and raping them for their breast milk. You have been lied to. You have the right to know the truth. Watch Dominion on YouTube.
The appellant then moved to the sheltered forecourt, where a promotional event, involving a band playing Christmas music and tastings, was taking place. She continued to shout loudly, repeating much of what she had said inside, as well as saying:
… [a dairy cow's] daughters endure the same life of being forcefully impregnated and raped, until she is sent to a murder factory…and male calves are shot in the head, just days to weeks old…
…
Every time you buy dairy products you are paying for blatant animal abuse and murder. If you don't agree with animal abuse, you should be vegan.
At one point, a member of the public can be heard to say, 'Shame on you. You're a hypocrite.' The appellant continued:
Shame on you for paying people to abuse animals. The blood is on your hands. You are an animal abuser if you're not vegan. You should be ashamed of yourself if you know the truth and you are still paying for this blatant animal abuse. You're an animal abuser if you are not vegan.
Craig Skead, the owner of the Boatshed Market gave evidence about the events of 5 December 2020, commencing at about 1.40 pm. He first heard the appellant shouting at the back of the store from about 35 ‑ 40m away. The business was open and it was the peak trading period of the day, on which the store was holding a major Christmas promotion.[4]
[4] Transcript of Proceedings 15 March 2022, 6.
He described the appellant moving towards the front of the store. She stopped at the bakery section and screamed her slogan and anti-animal cruelty words. He said it was very confronting and disruptive.[5] Customers moved away from the area. There were some children in the area and he saw them cowering towards their mothers, who moved them away.[6]
[5] Transcript of Proceedings 15 March 2022, 7.
[6] Transcript of Proceedings 15 March 2022, 10.
The forecourt was owned by the Boatshed Market. There was a Christmas 'showcase' being held in that area, with tasting and displays, as well as a two piece band playing music.[7]
[7] Transcript of Proceedings 15 March 2022, 10 - 11.
The appellant continued to protest by shouting and being disruptive in this area.
The appellant was moved to the footpath outside the market, but returned to stand in the entrance holding her sign. Eventually she tried to re‑enter the store, claiming she wanted to leave as she had come in, but she was not allowed to re‑enter the store.
She and her companion were asked to leave and they eventually left and stood outside on the pavement, where they were when the police arrived.[8]
The appellant
[8] Transcript of Proceedings 15 March 2022, 11.
The appellant elected to give evidence. She said that she went to the Boatshed in form of protest to highlight atrocities happening in the dairy industry and she believed she had a moral obligation to create public awareness through disruptive activism. By the term 'disruptive activism' she meant taking direct action by going into places where the cruelty is happening and speaking the truth about it.[9]
[9] Transcript of Proceedings 15 March 2022, 44.
She had a cow 'onesie' tied at her waist and body paint on her top half, because, she said, creativity gets attention to the message and she was using her body to highlight the atrocities happening to others who have no bodily autonomy.[10]
[10] Transcript of Proceedings 15 March 2022, 45.
She said she originally told Mr Michelon she intended to silently protest and was going to stand there and hope people would pay attention but as she walked away from the dairy section no one was paying attention and she wanted people to know the truth. At no point while in the store or on the forecourt did she hear anyone ask her to leave. [11]
[11] Transcript of Proceedings 15 March 2022, 50.
In cross-examination, the appellant acknowledged that she became vocal because she wanted to get the attention of people and convey a message. That was the purpose of her being topless as well.[12]
Reasons for decision
[12]Transcript of Proceedings 15 March 2022, 55.
The magistrate's reasons for decision were extensive, covering almost 19 pages of transcript.[13] Her Honour found that, at the time the appellant was making the statements, she was shouting so as to be heard over the background noise of a busy marketplace and obtain the attention of members of the public who were present. In the forecourt, she could be clearly heard over the sound of the band.[14]
[13] Transcript, WA Police v Natasha Jane Peterson, Magistrates Court of Western Australia, 8 April 2022, 97 ‑ 116 (Transcript of Proceedings 8 April 2022).
[14] Transcript of Proceedings 8 April 2022, 102.
Her Honour reviewed the relevant authorities[15] and the tests as to what constituted disorderly conduct as articulated in each of them. In the course of her reasons, her Honour said:
The relevant case law is clear that, to be disorderly, the conduct and behaviour must have caused or been likely to cause serious disturbance or annoyance to others present.[16]
…
The conduct must seriously offend recognised and appropriate standards of behaviour.[17]
…
Whether the conduct is serious enough to warrant the interference of the criminal law is to be tested objectively...Whether the conduct or behaviour is disorderly is to be determined in the light of the standards of the community, not a particular witness.[18]
[15] Including Coleman v Power [2004] HCA 39; (2004) 220 CLR 1; Melser v Police [1967] NZLR 437; Mogridge v Foster [1999] WASCA 177; Heanes v Herangi [2007] WASC 175; (2007) 175 A Crim R 175; see Transcript of Proceedings 8 April 2022, 104 - 111.
[16] Transcript of Proceedings 8 April 2022 106 - 107.
[17] Transcript of Proceedings 8 April 2022, 107.
[18] Transcript of Proceedings 8 April 2022, 108.
Her Honour accepted that the appellant was engaging in political communication at the time she engaged in the words and conduct. Having reviewed the relevant authorities,[19] she found that s 74A represents a proper legislative constraint on the manner of the exercise of the freedom of political communication in public places and articulated the test to be applied in the following terms:[20]
…behaviour must be more than simply insulting, offensive or threatening; it must be in a manner which is sufficiently serious to warrant the interference of criminal law.
…
For criminal sanctions to apply and the offence provision in s 74A to be enlivened, the conduct of the accused must be of such a nature that the use of language or the conduct engaged in, in the place where it is spoken or in which the conduct is engaged in, is contrary to contemporary standards of public good order and goes beyond what, by those standards, is simply an exercise of freedom to express opinions on controversial issues.[21]
The conduct need not actually cause significant anger, resentment or outrage, disgust or hatred, but it must carry the risk of doing so and be sufficiently serious to warrant criminal sanction.[22]
[19] Including Coleman v Power [14]; Monis v The Queen [2013] HCA 4; (2013) 249 CLR 92 see Transcript of Proceedings 8 April 2022, 106, 109 – 111.
[20] Transcript of Proceedings 8 April 2022, 112.
[21] Transcript of Proceedings 8 April 2022, 112; This formulation of the test is taken from the judgment of Gleeson CJ in Coleman v Power [14].
[22] Transcript of Proceedings 8 April 2022, 112; This formulation appears to be that of the Court of Appeal in Monis v The Queen; Droudis v The Queen [2011] NSWCCA 231 [44] (Bathurst CJ), [83] (Allsop P).
The magistrate found that the appellant engaged in disorderly behaviour for the following reasons:
(1) she attended the very busy market with the clear intention of engaging in civil disobedience in the hope of bringing about societal change;
(2) her state of undress, and the nature of the body paint, from which the only reasonable inference available was that the appellant intended her state of dress to shock members of the public;
(3) the red body paint on the appellant's nipples and neck in the context of the language being used and the sign being held by the appellant;[23]
(4)no other people in the marketplace, whether they be male, female, adult or child, was topless;[24]
(5) the statements regarding rape, babies being removed shortly after birth and being forced into effective slavery, with male babies being shot in the head as waste products were made in full hearing of the public, including children;[25]
(6)while there was limited verbal response to the appellant's conduct, the footage showed that as the appellant moved to different areas of the market, the crowds would disperse and leave the immediate area, supporting an inference that members of the public were unsettled by the appellant's behaviour and made a choice to leave the area rather than be confronted by the appellant's conduct and language;[26]
(7) it was incredibly confronting for a child to be exposed to the language used by the appellant, including rape, murder, and babies being shot in the head and children may not have the knowledge of experience necessary to deal with such material and ought not be expected to when out in public with their families.[27]
[23] Transcript of Proceedings 8 April 2022, 114 - 115.
[24] Transcript of Proceedings 8 April 2022, 114.
[25] Transcript of Proceedings 8 April 2022, 115.
[26] Transcript of Proceedings 8 April 2022, 115.
[27] Transcript of Proceedings 8 April 2022, 116.
Her Honour held that:
(1) the appellant's conduct was contrary to the standards of public good order, and seriously offended against the values of orderly conduct which are recognised by right-minded members of the public;[28]
(2)the appellant's behaviour was sufficiently ill-mannered or in bad taste to meet with the disapproval of well-conducted and reasonable men and women, which tends to annoy or insult such persons as are faced with it sufficiently deeply or seriously to warrant the interference of the criminal law;[29]
(3) the nature of the comments made by the appellant involved the use of deliberately provocative, emotive and distressing language, which was being used to confront and shock listeners as part of the appellant's stated desire to engage in civil disobedience to bring about societal change;[30]
(4) there was a risk that the language would, and did in fact, seriously offend members of the public who were going about their lawful business and who had a right to do so without interference and disruption;[31]
(5)the appellant's conduct caused undue interference and annoyance to members of the public that day;[32]
(6)the language used by the appellant posed a particular risk of upsetting children;[33]
(7) the language the appellant used was contrary to contemporary standards of good order and went beyond those standards and were more than simply the exercise of a freedom to express opinions on controversial issues;[34]
(8) the appellant's conduct disturbed the good order of the market, and her conduct and language prevented citizens from going about their lawful business without undue interference or annoyance;[35]
(9)the appellant's conduct and language was offensive and sufficiently serious to attract criminal sanction.[36]
[28] Transcript of Proceedings 8 April 2022, 114.
[29] Transcript of Proceedings 8 April 2022, 115 - 116.
[30] Transcript of Proceedings 8 April 2022, 115.
[31] Transcript of Proceedings 8 April 2022, 115.
[32] Transcript of Proceedings 8 April 2022, 116.
[33] Transcript of Proceedings 8 April 2022, 116.
[34] Transcript of Proceedings 8 April 2022, 116.
[35] Transcript of Proceedings 8 April 2022, 116.
[36] Transcript of Proceedings 8 April 2022, 116.
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.[37]
[37] 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,[38] meaning that the ground is required to have a rational and logical prospect of succeeding.[39] Unless leave to appeal is granted on at least one ground, the appeal is taken to have been dismissed.[40]
[38] CAA s 9(2).
[39] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[40] 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.[41]
[41] 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.
It should be noted that part of the test articulated by her Honour and set out at [22] above adopts the formulation from Monis. Notwithstanding this, the applicant contends that it was in the application of the test that her Honour erred.
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.[42]
[42] Appellant's Outline of Submissions filed 22 July 2022 [49] - [50], [53] (Appellant's submissions).
In support of ground 2, the appellant argues that the conviction was 'unsafe and unsupported' by the evidence, in that the magistrate's decision was unreasonable having regard to:
(1) The magistrate's reliance on the state of dress of other patrons in determining that the appellant's dress was contrary to the contemporary good standards of public good order and decency and therefore the dress of the appellant would seriously offend the values of rightly minded members of the public;
(2)the magistrate's finding that some members of the public going out of their way to disperse indicated they were offended by the appellant's words or conduct.[43]
[43] Appellant's submissions [61].
Respondent's submissions
The respondent submitted that the magistrate correctly identified and applied the authorities concerning the meaning of disorderly behaviour under the Criminal Code.[44]
[44] Respondent's Outline of Submissions filed 17 August 2022 [109] (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.[45] The respondent argued that the correct approach to determine so is to assess the conduct by reference to the three features outlined in Melser.[46]
[45] Respondent's submissions [47]-[50]
[46] Melser v Police; Respondent's submissions [50].
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 decision 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'.[47] 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.[48] 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.[49]
[47] Monis v The Queen; Droudis v The Queen [44] (Bathurst CJ), [83] (Allsop P).
[48] Monis v The Queen [151].
[49] 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.[50] 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.'
[50] See, for example, Keft v Fraser (unreported, WASC, Library No 6251, 21 April 1986); Mogridge v Foster; Heanes v Herangi; CRC v Taylor [2019] WASC 187; 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,[51] 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].
[51] Moylan v Lee [2022] WASC 195.
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.[52]
[52] 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.[53]
[53] 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 issue in this appeal is not to be resolved by a review of words in isolation, or parts of the findings of the magistrate divorced from other parts. The issue is to be resolved by reviewing the reasons for decision as a whole to determine whether the appellant's words and conduct were properly found to have reached the point at which they constituted behaving in a disorderly manner.
The appellant focussed heavily on the meaning of the term 'offensive' and argued that the magistrate conflated the term 'annoy' with 'insult' and 'offend', and therefore applied a lower standard than required in finding that the appellant's conduct constituted behaving in a disorderly manner.
In support of this submission, the appellant cited the following passage from her Honour's reasons for decision:
The accused's behaviour was sufficiently ill-mannered and in bad taste to meet the disapproval of well-conducted and reasonable men and women, and it had a tendency to annoy and insult such persons sufficiently deeply or seriously to warrant criminal intervention. Further, I am satisfied that Ms Peterson's conduct on this occasion disturbed the good order of the Boatshed market, and her conduct and language prevented citizens from going about their lawful business without undue interference or annoyance. I therefore find that the accused's conduct and language that day was offensive.[54]
[54] Transcript of Proceedings 8 April 2022,116; see also Transcript of Proceedings 8 April 2022, 115; Her Honour was clearly referencing the formulation of Turner J in Melser v Police (cited with approval by Mitchell J in Moylan v Lee).
Firstly, the first sentence of this extract is a direct reference to the test as set out in Melser.[55] Second, this submission suggests that there is only one way of expressing the test to be applied in order to prove that conduct was offensive, and thus constituted behaving in a disorderly manner. However, while Mitchell J expressed the test in clear terms in Moylan, his Honour also referred to previous cases in which the test has been articulated correctly, albeit in different terms.[56]
[55] Melser v Police, 444.
[56] Moylan v Lee [13] - [14], [16] - [33].
One of the definitions of the word 'offensive' in the Oxford English Dictionary is 'giving, or liable to give, offence; displeasing; annoying; insulting'.[57] There is no reason why it was inappropriate for her Honour to use the terms 'offend', 'insult' and 'annoy' interchangeably in this context. The necessary standard is set not only by use of the word 'offend', 'annoy' or 'insult' but the extent of the effect which the conduct would have on reasonable people in their lawful use and enjoyment of the public place, which the magistrate properly dealt with later in the same passage.
[57] Oxford English Dictionary (3rd ed, 2004).
It is also necessary to consider the impugned passage in light of her Honour's remarks immediately preceding it:
I consider that the accused's conduct seriously offended recognised and appropriate standards of behaviour. In the circumstances, I am satisfied that the language the accused used that day was contrary to contemporary standards of good order and went beyond those standards and were more than simply the exercise of a freedom to express opinions on controversial issues.[58]
[58] Transcript of Proceedings 8 April 2022, 116; This formulation references the statement of Gleeson CJ in Coleman v Power [14].
The appellant's submission also fails to acknowledge other passages in her Honour's lengthy reasons for decision, such as:
I am satisfied that the nature of the comments made by the accused that day involved the use of deliberatively provocative, emotive and distressing language, which was being used to confront and shock listeners as part of the accused's stated desire to engage in civil disobedience to bring about societal change.[59]
There was a risk that the language would, and did in fact, seriously offend members of the public who were going about their lawful business and who had a right to do so without such interference and disruption.[60]
…
Her passion for the issues she is seeking to advance does not justify her behaving in a way that seriously offends against the values of orderly conduct which are recognised by right-thinking members of the public or behaving in a way that could cause or is likely to cause a serious disturbance and annoyance to others who are present, going about their lawful business in public places.[61]
[59] Transcript of Proceedings 8 April 2022, 115.
[60] Transcript of Proceedings 8 April 2022, 115.
[61] Transcript of Proceedings 8 April 2022, 116.
The appellant claims that the magistrate erred in finding that the conduct amounted to offensive conduct by considering what other members of the public were wearing as being a basis to conclude the appellant's outfit would 'offend against the values of orderly conduct', arguing that the 'reasonable person' test does not consider uniformity between people in determining the acceptableness of conduct.'[62]
[62] Appellant's submissions [57.a].
In my view, the magistrate did not err in considering the state of dress of others. It is well‑established that the nature of the conduct is to be judged, in part, by the circumstances in which it occurs, a point emphasised by Mitchell J in Moylan.[63] What might be offensive in one circumstance may well not be in another. The fact that in the circumstances which existed on this day at the Boatshed market no other person saw fit to attend the market topless - be they male or female - is one indication of contemporary standards and her Honour was entitled to take that into account.
[63] Moylan v Lee [31].
The appellant also argues that the magistrate erred in finding that the conduct was 'sufficiently ill‑mannered or in bad taste to meet with the disapproval of the well‑conducted and reasonable members of the public' on the basis that this falls below the requirement for offence required by the Code.[64] However, the appellant has cited only a segment of a sentence in her Honour's reasons. That segment does not fully state the test applied by her Honour.
[64] Appellant's submissions [57.b].
The appellant also submitted that her Honour erred in concluding that members of the public left areas that the appellant was in, in concluding that this indicated they were 'unsettled' by the appellant's behaviour, and inferring that they were seriously offended. It is argued that 'unsettled' is a lower standard than 'seriously offended'.[65]
[65] Appellant's submissions [57.c].
In my view, her Honour was entitled, on the basis of the CCTV footage, to find that at least some patrons of the market removed themselves from the areas of the market where the appellant was engaging in the conduct as a result of the appellant's conduct. I do not consider that her Honour equated the term 'unsettled' with being 'seriously offended'. Further, and in any event, her finding in this regard was but one factor her Honour considered in coming to the conclusion that the appellant's words and behaviour were offensive.
Having regard to the totality of the magistrate's reasons for decision, I am satisfied that her Honour applied the appropriate test to the facts as she found them. While her Honour at times made findings as to the actual impact of the conduct, she also repeatedly referred to the effect the appellant's conduct would have on reasonable men, women and children in their lawful enjoyment and use of the market, that it was so significant as to impact on their lawful use and enjoyment of the market, and that that impact warranted criminal sanction.
Ground 2
The appellant submits that the conviction was unsafe and unsupported by the evidence. Her submissions assert that the finding of guilt was unreasonable, having regard to the magistrate's reliance on the state of dress of other patrons in determining that the appellant's dress was contrary to contemporary standards and her finding that some members went out of their way to disperse indicated they were offended by the appellant's words or conduct.
The principles governing an appeal on the ground that the verdict is unreasonable and unsupported by the evidence are well settled. In NYL v The State of Western Australia[66] the Court of Appeal summarised those principles, derived from the decision of the High Court in M v The Queen:[67]
1. The appeal court must undertake its own independent assessment of the sufficiency and quality of the evidence. It is not simply a matter of deciding whether as a matter of law there was evidence to support the verdict. The appeal court must determine whether, in all the circumstances, it would be dangerous to permit the verdict to stand.
2.The question for the appeal court is whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
3.That question requires consideration of whether the jury must, as distinct from might, have entertained a reasonable doubt about the accused's guilt.
4.In answering that question, the appeal court must pay full regard to the consideration that the jury was entrusted with the primary responsibility of determining guilt or innocence, and to the advantage that the jury had of seeing and hearing the witnesses.
5.A doubt experienced by an appellate court would be a doubt which a jury ought also to have experienced, unless the jury's advantage in seeing and hearing the evidence is capable of resolving that doubt.
6.If the evidence, upon the record, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the appellate court to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the appellate court must set aside the verdict.
7.The setting aside of a jury's verdict on the ground that it is unreasonable within the meaning of s 30(3)(a) of the Criminal Appeals Act 2004 (WA) is a serious step, not to be taken without regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial [63].
[66] NYL v The State of Western Australia [2022] WASCA 41.
[67] M v The Queen (1994) 181 CLR 487.
The same principles apply by analogy to a trial before a magistrate.[68]
[68] The State of Western Australia v Olive [2011] WASCA 25 [44].
In the present case, as the magistrate noted, the significant volume of footage of the appellant's conduct meant that there was little need to determine matters of credibility and reliability.[69] Both parties to this appeal accepted that was correct. As such, I am in as good a position as the magistrate to undertake the independent assessment of the evidence in order to deal with this ground.
[69] Transcript of Proceedings 8 April 2022, 113.
In my view, the verdict of guilty of behaving in a disorderly manner was open to the magistrate for the following reasons:
(1)the appellant went to the Boatshed market on a Saturday at 1.40 pm on 5 December 2020, at a time when there was a Christmas promotion and thus there would be a peak number of customers;
(2)there were children and families present, and the appellant's attendance on a Saturday afternoon guaranteed that there would be a higher proportion of children and families present at the market;
(3) the appellant was wearing a microphone, and recording her protest, indicating that she was prepared for more than a silent protest;
(4)rather than making red marks on the cow costume, the appellant deliberately left the upper half of her body exposed and graphically painted, to draw as much attention to herself as possible;
(5) when the appellant first stood in the dairy section, which was at the rear of the market and far less busy than the front, she became concerned that no one was paying attention to her costume, so she moved to a more crowded area of the market and started shouting;
(6)the appellant not only held a sign referring to rape and murder, she used particularly graphic language regarding those adult concepts, at a very high volume, as well as emphasising that babies are 'shot in the head' and murdered;
(7)when in the forecourt, the appellant stood in the middle of the forecourt while shouting loudly over the band, physically obstructing members of the public;
(8)having been moved from the forecourt, the appellant stood in the doorway to the market, again obstructing members of the public in their use of the market.
In my view, it was open to the magistrate to find that the appellant's conduct would so offend a reasonable person as to prevent or interfere with that person's lawful use and enjoyment of the place in the relevant circumstances, to such an extent as to merit criminal punishment.
The appellant places some store in the argument that the fact that she was topless should be treated no differently than if she were male. Devoid of context, that may be so in this case. The black and white body paint the appellant was wearing certainly substantially obscured the fact that her top half was naked. However, it is unnecessary for me to determine whether the mere fact that her breasts were exposed in that way was 'offensive'. This is because the red paint applied to suggest blood dripping from the appellant's nipples and neck was very confronting, which was only possible because the appellant was topless. It was designed to draw attention to what at least could be called a controversial outfit and would have drawn attention to it. That circumstance must be considered in combination with other elements of the appellant's conduct.
The appellant's language, both inside the main store and on the forecourt, was such that, in my view, any reasonable adult would seek to protect their children from such language and imagery, to the extent of taking steps to remove their child from the vicinity. While there may be a time, place and manner for a child to have such adult concepts put to them, graphic and violent slogans shouted at them in a busy Christmas marketplace is not likely to be seen by a reasonable person as one of them.
The appellant did not position herself in such a manner as to enable people to pass her by and conduct their business undisturbed. To the contrary, in order to go about their shopping, patrons of the market had no option but to subject themselves to her conduct.
Having regard to the particular goods supplied by the market, and the number of customers there, the appellant's words and conduct would have substantially interfered with the specific use and enjoyment of the market by a reasonable person. In my view, it was clearly open to the magistrate to find that the extent of that interference merited criminal punishment.
Orders
Leave to appeal is refused on ground 1.
Leave to appeal is 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
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