SA Police v Daniel Eamon Pfeifer No. SCGRG 96/1897 Judgment No. 5904 Number of Pages 5 Criminal Law - [1996] SASC 5904

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA BOLLEN J

CWDS
Criminal law - mens rea - statutory offences - criminal Law - mens rea in statutory offence - necessary to prove intention to offend in a charge under s7(1)(a) of the Summary Offences Act. Summary Offences Acts7(1), referred to. Horton v Rowbottom (1993) 61 SASR 313; Densley v Mertin (1943) SASR 144; Ellis v Fingleton (1972) 3 SASR 437; Daire v Stone (1991) 56 SASR 90; Stone v Ford (1993) 59 SASR 444, applied. Rowe v Manevski (1994) 62 SASR 468, not followed.

HRNG ADELAIDE, 31 October 1996 #DATE 29:11:1996

Counsel for appellant: Mr M Grant

Solicitors for appellant: Crown Solicitor (SA)

Counsel for respondent: Mr G Mead

Solicitors for respondent: Mr G Mead

ORDER
Appeal dismissed.

JUDGE1 BOLLEN J
1. This is an appeal by "the prosecution" against the dismissal of a charge by a magistrate. The charge had been laid under s7(1) of the Summary Offences Act. It is:
    Ò7(1) A person who, in a public place or a police station -
    (a) behaves in a disorderly or offensive manner; or
    (b) fights with another person; or
    (c) uses offensive language,
    is guilty of an offence.Ó

2. Section 7(3) provides that "disorderly" includes riotous; and "offensive" includes threatening, abusive or insulting.

3. The charge was that on 6th December 1995 at Elizabeth the (respondent) behaved in an offensive manner in a public place, namely the Elizabeth City Centre.

4. The respondent walked in the Elizabeth City Shopping Mall at about 11.15am on 6th December 1995. There were, as the Magistrate found, "2000 to 3000 Christmas shoppers of all ages in the vicinity. The respondent was wearing a T-shirt. The T-shirt was (in the words of the Magistrate) "emblazoned with a printed picture headed "Dead Kennedys - Too Drunk to Fuck". This T-shirt had been given to the appellant by his mother for his nineteenth birthday.

5. Before the Magistrate evidence was given. Counsel on each side made submissions. The law was debated. The Magistrate stated her conclusion or is recorded as stating her conclusion thus:-
    "I do not stay to ventilate the arguments, suffice to say that in
    my view wearing of the T-shirt amounted to ÔbehavingÕ in a
    certain manner for the purposes of the charge. However, it has
    not been proved, and the defendant denies that he intended to
    cause the offence by wearing the T-shirt in public. Since the
    elements of the offence must be proved beyond reasonable doubt,
    on the authorities, the evidence before the court and in all the
    circumstances, I cannot find proved that that manner was
    offensive.

With unreserved disgust I dismiss the Complaint."

6. I think that either the Magistrate has omitted a sentence of her thoughts or has been incorrectly recorded. The finding of behaving in a manner and that of inability to find that manner offensive are contradictory. The Magistrate clearly, in my opinion, found on the facts and law that…

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.

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Details

AGLC: SA Police v Daniel Eamon Pfeifer No. SCGRG 96/1897 Judgment No. 5904 Number of Pages 5 Criminal Law [1996] SASC 5904
Case: [1996] SASC 5904
Decision Date: 29 November 1996

CaseChat Overview and Summary

The Supreme Court of South Australia heard an appeal by the prosecution against the dismissal of a charge by a magistrate under s7(1)(a) of the Summary Offences Act. The charge alleged that the respondent behaved in an offensive manner in a public place by wearing a T-shirt with a printed picture that included the words "Dead Kennedys - Too Drunk to Fuck." The respondent denied that he intended to cause offence by wearing the T-shirt in public. The magistrate dismissed the charge, finding that while the respondent's behaviour was offensive, there was no evidence that he intended to act in an offensive manner.

The legal issue the court had to decide was whether the prosecution needed to prove the respondent's intention to offend in order to secure a conviction under s7(1)(a) of the Summary Offences Act. The court considered previous cases such as Daire v Stone, Stone v Ford, and He Kaw The v The Queen, which had established that intention is an ingredient of the offence. The court also considered the reasoning of earlier cases like Densley v Mertin and Ellis v Fingleton, which suggested that intention need not be proved. The court concluded that the modern view required the prosecution to prove the respondent's intention to offend. Since this element was not proven, the court upheld the magistrate's decision and dismissed the appeal.

The appeal was dismissed, and the decision of the magistrate was affirmed. The court found that while the respondent's behaviour was indeed offensive, the prosecution had failed to prove that the respondent intended to cause offence by wearing the T-shirt. As a result, the charge under s7(1)(a) of the Summary Offences Act was dismissed.

Orders