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 the behaviour was offensive but that the element of "intention" had not been proved. That is how the appellant reads the reasons. In the second ground of appeal the appellant says:-"The Learned Magistrate erred in law by stating that the prosecution had to prove that the respondent (defendant) intended to act in an offensive manner."

7. The other "ground of appeal" is no ground of appeal.

8. In his Outline counsel for the appellant wrote, amongst other things:-
    "1. The legal question of the nature and extent of the mens rea
required to prove a breach of section 7 of the Summary Offences
    Act, 1953 appeared to have been settled prior to the cases of
Daire v Stone (1991) 56 SASR 90 and Stone v Ford (1993) 59 SASR
    444. The latter cases are at odds with the cases dating from
    1942 which support the assertion that no intention to offend need
    be proved in a charge of offensive behaviour. (See cases cited
    in paras 5 and 11 infra). Mitchell J remarked in Ellis v
Fingleton (1972) 3 SASR 437 at 441 that there appeared to have
    never been a decision of the Full Court in favour of either a
    subjective or objective test for the offence. Twenty four years
    on, that remains the situation. The question is one of
    considerable importance, such that this matter should be referred
    to the Full Court.

2. The learned Magistrate found that the wearing of the T shirt
    by the respondent amounted to Ôbehaving in a certain manner for
    the purposes of the chargeÕ. (at 3 of Judgement). However she
    found that it had not been proved that the respondent had
    intended to cause the offence, and dismissed the charge of
    behaving in an offensive manner in a public place."

9. That defines what the appeal is all about. Another excursion into the field of mens rea in statutory offences!

10. As Mitchell J said in Ellis v Fingleton (1972) 3 SASR 437 at 441 there is no decision of the Full Court on the question whether intention is an ingredient of the equivalent of the modern s7 of the Summary Offences Act. There is still no such decision. I was asked at the outset to refer the matter to the Full Court. I refused. Perhaps I was wrong.

11. In my opinion the Magistrate was perfectly correct in holding that the wearing of the T-shirt with the words "to fuck" on it was behaving in an offensive manner. In the circumstances it was more than bad taste or coarse conduct.

12. The decision of Mullighan J in Horton v Rowbottam (1993) 61 SASR
313 establishes that you cannot say that the use of the word "fuck" is automatically offensive. It depends on where and in what circumstances it is used. There are plenty of places where this T- shirt could have been worn without giving offence to anyone. But not in the shopping mall with many people of varying types moving about. At least a significant number of those people would have been offended by the use of the words on the clothing of the respondent. But the decision of Mullighan J does not touch the question of intention. His Honour did not need to consider that issue.

13. I was belatedly referred to Rowe v Manevski (1994) 62 SASR 468. I do not think it relevant.

14. In Densley v Mertin (1943) SASR 144 Napier CJ said of the word "offensive" that "it includes any conduct which is calculated to annoy or give offence to other people even if that result is not actually intended".

15. In Ellis v Fingleton (supra) Mitchell J appears to approve of and adopt the reasoning of Napier CJ in Densley v Mertin. Of course Napier CJ was dealing both with "behaviour" and "intention".

16. I refer, too, to the decision of Legoe J in Daire v Stone (1991) 56 SASR 90. Legoe J held that conduct or behaviour is to be tested objectively. However Legoe J said
    "this conduct must be tested objectively; see Ellis v Fingleton.
    Nevertheless the prosecution must prove beyond reasonable doubt
    that there is a conscious and deliberate course of conduct by
    the accused person which constitutes his interference with the
    comfort of other people such as to leave the tribunal of fact
    with no reasonable doubt that the conduct of the accused person
    was intentionally done to bring about such an interference".

17. In Stone v Ford (1993) 59 SASR 444 I held that in a prosecution under s7 it is incumbent on "the prosecution" to prove beyond reasonable doubt that the defendant intended to act in an offensive manner. I did so with some reluctance. I said:-
    "Mr Barrett relied, too, on the reasoning of the majority in the
    Court of Criminal Appeal of the Northern Territory in Pregelj v
Manison (1987) 31 A Crim R 383. In my opinion, despite Mr
    WainwrightÕs submissions to the contrary and despite the fact it
    was a Ôcode caseÕ, that case and the reasoning, in particular of
    the majority, does support the submission offered by Mr Barrett.
    Mr Wainwright submitted that mens rea of the type suggested by Mr
    Barrett did not apply to the offence charged. He relied on the
    cases in this Court to which I have referred, commencing with
    Densley v Mertin. As I have suggested, he offered forceful
    reasons for distinguishing Pregelj v Manison (supra) or for
    saying that it did not go as far as suggested by Mr Barrett. Mr
    Wainwright submitted, in the alternative, that if any mens rea
was attached to the offence created by s7 it was only the
    Ôreasonable belief in a state of facts which if true,ÉÕ type of
    mens rea.

I would be well content to follow Napier CJ and Mitchell J in
    holding that the complainant was not required to prove intention
    to be ÔoffensiveÕ. I repeat again a phrase in the reasons of
    Napier CJ in Densley v Mertin, ÔÉ even if that result was not
actually intendedÕ. I would like to hold that the object of s7
    and the mischief at which it is aimed makes conduct contemplated
by s7 an offence because Parliament meant that sort of conduct to
    be an offence if it was deliberately done even if there was no
    intention to be offensive. But I do not think that I can in 1993
    so hold. Not only are Daire v Stone and Pregelj v Manison each
    against it but higher authority stands in the way. That higher
    authority has brought about a change or a change in emphasis in
    considering the question of mens rea in statutory offences.
    Perhaps it is not so much a change as a clearer illumination than
    formerly existed in or into that question. It is, of course, He
Kaw The v The Queen (1985) 157 CLR 523. I will not say more
    about this well-known case. Indeed, the less a judge at first
    instance nowadays says about mens rea in statutory offences the
    better. The law, I think, is clear. Suffice it to say that He
    Kaw The (supra), fortified by the reasoning of Legoe J and that
    of the majority of the Court of Criminal Appeal in Northern
    Territory, demands, in my opinion, that I uphold the submission
    offered by Mr Barrett. Mens rea of the type which he mentioned,
the intention to be offensive in the sense contemplated by s7
    must be proved before there can be a conviction for an offence
    under that section."

18. Counsel for the appellant submitted that Daire v Stone and Stone v Ford were "on intention" wrongly decided. He referred to authority which he claimed supported that submission. I think none to be binding on me.

19. In 1996 I would still be content to follow Napier CJ and Mitchell J. I would still like to hold as submitted by counsel for the appellant. I did not think I could do that in 1993. I did not think that in 1993 that I could hold that conduct contemplated by s7 was offensive even if there was no intention to be offensive. In 1996 I still think that I cannot so hold. Perhaps an appellate court could do so. Nothing has happened to justify such judicial tergiversation in such a short time on my part. I think that the modern view of s7 must be that mens rea is an ingredient of the offences contemplated by the section. Intention to offend must, I think, be proved. It was not proved here.

20. I dismiss the appeal.