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 | | From: | Sylvia Else | | Subject: | Offensive Conduct | | Date: | Mon, 24 Jan 2005 10:06:54 +1100 |
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 | No, I haven't been charged with this, nor do I have any reason to think
that I've done anything that might lead to my being charged with it.
Not yet, anyway.
The NSW Summary Offenses Act makes it an offence to behave in an
offensive manner (with caveats).
"http://www.austlii.edu.au/au/legis/nsw/consol_act/soa1988189/s4.html
The meaning of "offensive" seems to have been decided by Ball v McIntyre
(1966) 9 FLR 237. I don't have a reference for this, but it is
mentioned in Coleman v Power [2004] HCA 39 at 13.
http://www.austlii.edu.au/au/cases/cth/HCA/2004/39.html
"He said that what was involved had to be behaviour that would produce,
in the reasonable person, an emotional reaction (such as anger,
resentment, disgust or outrage) beyond a reaction that was no more than
the consequence of a difference of opinion on a political issue."
It seems to be settled law that in proving this offence, it has to be
shown that a reasonable person was in fact offended. Usually, this
reasonable person is the arresting police officer.
So my question without notice is, when police prosecute this offence, do
they simply state that they were offended, or does the officer give
evidence as to the emotional impact of the alleged offensive conduct?
The issue I'm raising is whether courts have been accepting the
officer's own conclusion about whether he or she has been offended. If
they have, this seems wrong, because this is a finding of fact that
should be made by the court, not by the officer.
Sylvia.
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