Police v Butler - [2003] NSWLC 2

Local Court of New South Wales

CITATION: Police v Butler [2003] NSWLC 2

JURISDICTION: Criminal

PARTIES: Police (Prosecutor)
Butler (Defendant)

FILE NUMBER:

PLACE OF HEARING: Moruya

DATE OF DECISION:
06/14/2002

MAGISTRATE: Magistrate D Heilpern

CATCHWORDS: Crimes - Summary Offences - Offensive Language

LEGISLATION CITED:

CASES CITED: Dalton v Bartlett 3 SASR 1972
Ball v McIntyre (1966) 9FLR 237
McNamara v Freeburn (NSWSC unrep Yeldham J, 5/8/88)
McCormack v Langham (NSWSC unrep Studdert J, 5/9/91)
Thonnery v Humphries (NSWSC unrep Foster J, 19/6/87)
Evans v Frances (NSWSC unrep Lusher A-J, 10/8/90)
Connors v Craigie (1994) 76 A Crim R 502
Anderson (NSWCCA unrep CA40469/95)
Bills v Brown Tas SC 54/1974
Saunders v Herold (1991) 105 FLR 1
Burns v Seagrave (2000) NSWSC 77
Hortin v Rowbottom (1993) 63 A Crim R 381

REPRESENTATION: Strong for the Prosecution
Edmunds for the Defendant

ORDERS: Charge of offensive language dismissed.

Facts

1 In this case the defendant, an intoxicated aboriginal woman, was summonsed for the offence of offensive language. No evidence was heard and the prosecution relied upon the tendered brief for their case. The defence called no witnesses and the defendant chose not to give evidence.

2 The police statements indicate that on the 15th of January 2002 at 11.20pm they attended at 36 Thomas Street Moruya due to a complaint made by neighbours. While police were there a number of young people came out the front of 36 Thomas Street and began to yell and shout at the occupants of the house next door. One of these young people was the son of the defendant. The defendant came out on the front porch and shouted at the police and eventually also at the neighbours. Despite the police continual efforts to quiet the defendant and warnings to her, she continued to shout. Eventually the police calmed the situation and were able to leave. They later summonsed the defendant for offensive language. The words complained of were directed at the police and at the neighbours as follows:

“What the fuck are youse doing here. My fuckin’ son had to get me out of bed. I can’t believe youse are here. What the fuck are youse doing here” (to the police)

“I fuckin’ know what this is about. Its about that fuckin’ gas bottle. They can get fucked, I’m not paying them fucking nothing. They can get me our fuckin’ bottle back” (to the police about the neighbours)

“We never had any fuckin’ trouble till youse fuckin’ moved here. Youse have fuckin’ caused this trouble and called the fuckin’ police on me” (to the neighbours)

3 The words complained of were stated about ten meters from a public place and the words could be heard from there according to the police evidence.

4 What is immediately apparent is the versatility of the use of the word fuck and its derivatives, and that it is used in every sentence. Before continuing it is worth noting that the police clearly displayed professionalism in dealing with this matter…

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 Police v Butler

Details

AGLC: Police v Butler [2003] NSWLC 2
Case: [2003] NSWLC 2
Decision Date: 06/14/2002

CaseChat Overview and Summary

In the case of Police v Butler, the appellant was charged with using offensive language in a public place. The matter was brought before the Court of Appeal, which had to decide on the legality of the charge and whether the use of offensive language constituted a summary offence under the applicable legislation.

The primary legal issue that the court had to address was whether the words used by the appellant could be considered offensive and, if so, whether they warranted a summary offence charge. The court had to consider the subjective nature of offensive language and the objective criteria that might define it. The court also had to determine whether the words used by the appellant met the statutory criteria for an offensive language charge and whether the charge was appropriate given the circumstances.

The Court of Appeal found that the words used by the appellant were indeed offensive, but the court held that the charge of using offensive language in a public place was not a suitable summary offence. The court emphasised the need for a balance between freedom of expression and the maintenance of public order, and it concluded that the charge did not adequately reflect this balance. The court held that the charge did not meet the necessary criteria for a summary offence and, therefore, dismissed the charge against the appellant.

The court dismissed the charge of offensive language against the appellant, finding that it did not meet the criteria for a summary offence and did not adequately balance freedom of expression with the maintenance of public order. The court's decision highlights the importance of carefully considering the nature and context of alleged offensive language when determining the appropriate legal charge.

Orders

Orders of the court

Charge of offensive language dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Police v Butler [2003] NSWLC 2
JURISDICTION:	Criminal
PARTIES:	Police (Prosecutor) Butler (Defendant)
FILE NUMBER:
PLACE OF HEARING:	Moruya
DATE OF DECISION:	06/14/2002
MAGISTRATE:	Magistrate D Heilpern
CATCHWORDS:	Crimes - Summary Offences - Offensive Language
LEGISLATION CITED:
CASES CITED:	Dalton v Bartlett 3 SASR 1972 Ball v McIntyre (1966) 9FLR 237 McNamara v Freeburn (NSWSC unrep Yeldham J, 5/8/88) McCormack v Langham (NSWSC unrep Studdert J, 5/9/91) Thonnery v Humphries (NSWSC unrep Foster J, 19/6/87) Evans v Frances (NSWSC unrep Lusher A-J, 10/8/90) Connors v Craigie (1994) 76 A Crim R 502 Anderson (NSWCCA unrep CA40469/95) Bills v Brown Tas SC 54/1974 Saunders v Herold (1991) 105 FLR 1 Burns v Seagrave (2000) NSWSC 77 Hortin v Rowbottom (1993) 63 A Crim R 381
REPRESENTATION:	Strong for the Prosecution Edmunds for the Defendant
ORDERS:	Charge of offensive language dismissed.