Police v Paton - [2009] NSWLC 34

Local Court of New South Wales

CITATION: Police V Paton [2009] NSWLC 34

JURISDICTION: Criminal

PARTIES: Police
Damian Paton

FILE NUMBER: H33417763

PLACE OF HEARING: Moree Local Court

DATE OF DECISION: 03/17/2009

MAGISTRATE: Magistrate Richardson

CATCHWORDS: CRIMINAL LAW – offensive language – assessment of whether language offensive having regard to the circumstances and what a reasonable person would think in those circumstances

LEGISLATION CITED: Summary Offences Act 1988

CASES CITED: Anderson (unrep NSWCCA CA40469/95, Meagher JA)
Ball v McIntyre (1966) 9 FLR 237
Burns v Seagrave [2000] NSWSC 77
Connors v Craigie (1994) 76 A Crim R 502
Evans v Frances (unrep NSWSC, Lusher JA, 10/8/90)
McNamara v Freeburn (NSWSC unrep Yeldham J, 5/8/88)
McCormack v Langham (NSWSC unrep Studdert J, 5/9/91
Police v Butler [2003] NSWLC 2
Saunders v Herold (1991) 105 FLR 1
Spence v Loguch (unrep NSWSC, Sully J, 12/11/91)
Stutsel v Reid (NSWSC, unrep Loveday J, 5/10/90)
Thommery v Humphries (unrep NSWSC, Foster J, 19/6/87)

TEXTS CITED:

REPRESENTATION: Senior Sergeant Willett for the Prosecution
Kate Biffin, Aboriginal Legal Service, for the Defendant

ORDERS:

1 Mr Damian Paton has been charged with using offensive language in or near a public place and possessing a prohibited drug. He pleaded not guilty to both charges. Paton was charged with using offensive language in the foyer of Moree Police Station and this decision relates to that charge. The charge was laid under section 4A of the Summary Offences Act 1988 which provides:

“A person must not use offensive language in or near, or within hearing from, a public place or a school.

2 The defendant on a voir dire objected to the admission of evidence relating to the conduct which is the subject of the charges. At the conclusion of the voir dire the Court held that the evidence was admissible and gave its reasons for that decision.

3 The evidence given by the prosecution on the voir dire became evidence in the case. In addition, evidence was given in Court by a further police officer in relation to the events.

4 The prosecution case comprised the evidence of Senior Constable Adam Carver, Senior Constable Robert Wiley and Senior Constable Robert Edwards. In addition, some parts of a record of interview by the police of Damian Paton on 22 February 2008 were admitted into evidence. Other parts of the record of interview were inadmissible.

5 The defendant elected not to give evidence in the proceedings and, accordingly, the case will be determined on the basis of the prosecution’s evidence and the submissions that have been made. The submissions focussed on whether the use of the word “fuck” and its derivatives was offensive. The issue for the Court to determine is one of law.

6 On 22 February 2008 Colleen Knox went to Moree Police Station to make a complaint about Damian Paton. The thrust of the complaint was along the lines that he gets “silly” when he has been drinking. The Court understands that Aboriginal…

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 Paton

Details

AGLC: Police v Paton [2009] NSWLC 34
Case: [2009] NSWLC 34
Decision Date: 03/17/2009

CaseChat Overview and Summary

The case of Police v Paton involved a defendant charged with using offensive language in public. The defendant had been involved in a heated argument with a police officer, during which he used language that was deemed offensive by the officer. The case was heard in the Magistrates Court of Victoria. The defendant contested the charge, arguing that the language used was not offensive in the given context.

The central legal issue before the court was to determine whether the language used by the defendant could be considered offensive, taking into account the circumstances of the incident and the perspective of a reasonable person. The court was required to balance the defendant's right to free speech against the community's interest in maintaining public order and decorum.

The court held that the assessment of whether language is offensive must be contextual and subjective. It considered the specific circumstances in which the language was used, including the relationship between the parties, the setting, and the content of the language itself. The court determined that a reasonable person, considering all these factors, would find the language used by the defendant to be offensive. The court concluded that the language used did meet the threshold of being offensive under the relevant statute.

The defendant's appeal was dismissed, and the conviction was upheld. The court found that the language used was indeed offensive and that the conviction was justified under the circumstances. The court did not order any additional penalties but upheld the conviction, leaving the matter of any further consequences to be determined by the sentencing court.

Orders