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: 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) CASES CITED: 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.

Reasons for Decision 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 by summons and not by arrest and in accordance with comments made in recent cases in the Supreme and Magistrates courts. Authorities - Offensive Language 5 In the course of submissions my previous decision in the matter of Lance Carr was handed up by the prosecutor and the balance of this judgement is substantially based on that decision. It was clear that both the defence and prosecution had read the decision and that there was some limited discussion about the status of the word "fuck" given current community standards. Both prosecution and defence had the opportunity of making submissions on the judgement. 6 The first point to note is that those words that would be legally offensive language change over time. Thus, in a widely reported decision of Phelan J, the word shit was found no longer to be prima facie offensive in the early 1990's. The court was dealing with a man who had yelled out at a bridge opening "the roads are shit man". Judge Phelan said that the word shit was used in every play ground and in many households in the country, and that "the District Court is not here to protect those who have not yet travelled through their anal sensitivities". Thus prior authorities are only as binding as the times in which they were decided. Bray CJ in Dalton v Bartlett 3 SASR 1972 at 555, describes this as the "application of an evolutionary standard". 7 In Ball v McIntire (1966) 9 FLR 237 per Kerr J the following propositions were laid down; "Behaviour to be offensive within the meaning of the section must in my opinion be such as is calculated to wound the feeling, arouse anger or resentment or disgust or outrage in the mind of the reasonable person". (at 237) "Conduct which offends against the standards of good taste or good manners which is a breach of the rules of courtesy or runs contrary to accepted social rules may be ill advised, hurtful, not proper conduct. People may be offended by such conduct, but it may well not be offensive within the meaning of the section…..This charge is not available to ensure punishment of those who differ from the majority. What has to be done in each case is to see whether the conduct is in truth offensive".(at 241) "I believe that a so-called reasonable man is reasonably tolerant and understanding and reasonably contemporary in his reactions". (at 245) 8 In this case the authorities are, at best, conflicting and the latest Supreme Court decision on the word "fuck" alone was in 1991. 9 The first case to consider is the decision of McNamara v Freeburn, per Yeldham J, 5 August 1988. In that case the defendant was charged under Section 5 of the now repealed Public Places Act 1979 although the differences with the current Section 4A are not relevant. The defendant was involved in a street brawl, and when police took hold of him and told him to leave he said "Get fucked, you cunts, I'm just trying to help my mates". He continued fighting and said "Get fucked, leave me alone, I'm trying to help my mate". The Magistrate found that there was no prima facie case on the following basis: "I determined by a consideration as best I could of community standards today and decisions on this kind of legislation over the last twenty years, that the words were not intrinsically "offensive" in the requisite legal sense of that word" 10 Justice Yeldham found that the local court had not erred in law. It is important to note that the words complained of included the words "Get fucked" and "cunt", and yet the Supreme Court declined to find that the Magistrate had erred in law. 11 This case needs to be contrasted with the decision of McCormack v Langham per Studdert J, September 5 1991. In that case, in a hot food bar in Lismore, the defendant said in a loud voice "Watch these two fucking poofters persecute me". The Magistrate found that there was no case to answer as the words were "language of common usage these days and not such as would offend a reasonable man" 12 Studdert J stated that in considering whether the language used was offensive the circumstances in which the language was used have to be considered. He found it relevant that the words were spoken in a loud voice in the presence of thirty people including children. Relying on Thonnery v Humphries (Unrep 19 June 1987 per Foster J) and Evans v Frances ( Unrep 10 August 1990 per Lusher A-J) the court decided that the Magistrate did err in finding that there was no case to answer. However, in both of the cases relied upon, the word "fuck" was used in conjunction with "cunt". In Thonnery the words were "You fucking moll you, you fucking moll…..cunts, cunts". In Evans the words were "You pricks I want my fucking keys….those cunts wont let me in….you fucking useless cunts". 13 Justice Studdert rejected the proposition that the word used in the case before him was not offensive stating "I reject the contention that community standards have slipped to such an extent that the utterances attributed to the respondent in the present case could not, as a matter of law constitute an offence". 14 Connors v Craigie (1994) 76 A Crim R 502 per Dunford J, and its related earlier case (McInerny J 5 July 1993) arise out of circumstances where an aboriginal man yelled, from a distance of three meters, a tirade of abuse such as "Fuck off you white cunts….you're all white cunts" . Justice McInerny found that the test to be applied was "what would be the attitude of a reasonably tolerant bystander be in the circumstances….in my view there is no answer other that that such an objective observer would conclude the language was offensive" 15 Since these cases there have been no binding decisions in this State, although there have been two of a highly persuasive nature. Firstly, there is the decision of Anderson (Unrep CCA CA40469/95) an appeal from a Police Tribunal hearing by Herron DCJ. A police officer used the word fuck and its many derivatives within hearing of a police foyer. Meagher JA stated: "Without coming to any conclusion on the question, the trial judge commented that the words used by the opponent are "probably not offensive". I would agree with his Honour. Undoubtedly the behaviour of the opponent was unchivalrous and unbecoming of the office he occupies. This is, however a long way from the language he allegedly used being offensive in any legal sense…..There was no evidence that persons in the public area were ever offended, nor that the public area was frequented by gentle old ladies or convent school girls. Bearing in mind that we are living in a post-Chatterly, post-Wolfenden age, taking into account all circumstances, and judging the matter from the point of view of reasonable contemporary standards I cannot believe Sergeant Andersons language was legally "offensive"". 16 Further there is an unreported decision of District Court Judge Ducker, in an appeal in the matter of Jason Hardy. The defendant had been convicted of offensive language at the local court for stating the words "Get Fucked. I'm not going anywhere. Matthew Smith is dead because of you cunts". This took place shortly after 8.45pm during a disturbance at a crowded festival. Judge Ducker found as follows on appeal: "I do not believe that the words are offensive and I uphold the appeal and quash the conviction" 17 Accordingly it is fair to say that the only authority that the word "fuck" or its derivatives is offensive is distinguishable on its facts, is inconsistent with McNamara, is now some eleven years old and is inconsistent with the obiter comments in Anderson. It is not a situation where I feel bound to follow McCormack . 18 There are three interstate cases that are of more than passing interest, because the facts are so similar to those in this case, although they should be read with caution given that the legislation is substantially different. The first of these is Bills v Brown Tas SC 54/1974 per Chambers J. In that case the defendant, when pulled over by a police car told the police officer to "get fucked" in a loud voice. The magistrate found that as a question of law the word was offensive. Justice Chambers disagreed, upholding the appeal and dismissing the charge. He stated "I am forced to the conclusion that in the case now under appeal the learned Magistrate, by shutting his mind to the surrounding circumstances and adopting the absolute test as he did, misdirected himself at law….I am left in no doubt that the words found as a fact to have been used by the applicant to the police constable were capable of constituting indecent language because, prima facie, they were addressed to the Constable with the object of insulting him. But did the learned magistrate consider judicially whether in the light of the particular circumstances and the setting in which the words were used, they did in fact amount to indecent language? I have come to the conclusion that he did not…..the four letter word at present under discussion can become such a habit with some people that they are probably unaware that they are using it. In the words of Hogarth J the word looses all meaning. In a record of interview with a detective, the accused, after stating his age as "thirty fucking seven" thereafter used the same adjective 17 times in answering only 15 questions! The appeal succeeds." 19 In Saunders v Herold (1991) 105 FLR 1 in the Supreme Court of the ACT the defendant used the words "Why don't you cunts fuck off and leave us alone" to a police officer in a loud voice. Higgins J found that "in the absence of a group of school children, aged pensioners or a congregation of worshippers gathered outside the Canberra Workers Club, there was not likely to be present anyone who would, rightly or not, be considered by the reasonable bystander to be offended so as to indirectly offend that bystander" 20 This latter quote was referred to by Simpson J with approval in Burns v Seagrave [2000] NSWSC 77 (23 Feb 2000) where the court stated: "The decisions in Ball v McIntyre and Saunders v Herold are important particularly as guides to magistrates charged with the duty of determining whether particular conduct amounts to an offence. They are no doubt also important in the consideration of whether a prima facie case has been made out." 21 The third case is Hortin v Rowbottom (1993) 63 A Crim R 381 where the defendant told a police officer to "fuck off" and also said "fuck you man". Mullighan J at 389 found that the words were not unlawful in the circumstances of that case finding "It is clear that the appellant did not use the allegedly indecent words in their primary sense. He was using them as intensives or expletives and to give emphasis to the message he was seeking to convey. ….Such language is now commonly used in ordinary conversation by both men and women in its primary sense without offending contemporary standards of decency". Community Standards 22 The word fuck is extremely common place now and has lost much of its punch. One cannot walk down the streets of any of the towns in which I sit, day or night, without hearing the word or its derivatives used as a noun, verb, adjective and, indeed, a term of affection. I have stood on Sydney suburban railway stations while private school uniformed kids (girls and boys) yell "fuck off" to each other across platforms without anyone looking up from their newspaper in surprise. In court I am regularly confronted by witnesses who seem physically unable to speak without using the word in every sentence - it has become as common in their language as any other word and they use it without intent to offend, or without any knowledge that others would find it other than completely normal. I too have had the experience of having witnessed being cross-examined and responding to propositions by saying "Fuck off - it didn't happen like that". I have had witnesses who when asked their name answer "John fucking Smith". 23 Flipping through pay TV at any time of the day one would be likely to encounter it once or twice. On free-to-air TV the word "cunt" is now permitted - albeit with a warning. Of course warnings do not help those who flip from one channel to another. If your children like JJJ and listen to it in the morning, one cannot help be assailed by the word "fuck" with regularity between mouthfuls of toast. On AM and PM the ABC permits the use of the word without a warning (6 August 1999, 3 March 2000). 24 Recently, I was watching a PG movie - not M or MA or R - and the word was used - twice. Clearly, those who rate our movies do not see it as very serious any longer, as the word has slowly shrunk down the ratings ladder over the last ten years. Magistrate Bone in Grafton local court recently commented in dismissing a similar case that "now if you go to the movies and if you don't hear them say fifty fucks in the average movie then you really wonder if you are not at the children's session". 25 In 1991 the Press Council in Adjudication No. 479 (February 1991) considered a complaint brought by Mr J D Purvey over four-letter expletives published in an interview with actor Bryan Brown in the Arts Section of the Weekend Australian of 4 August 1990. The report of the determination is below: 26 "Mr Purvey, a lawyer, found the use of the word "fuck" utterly offensive and argued that the overwhelming majority of readers would also find the use of the word objectionable. He asked the paper's editor for an apology for the use of "vile obscene language". News Ltd responded at some length to Mr Purvey's objections, saying in essence that the use of expletives had gained wide acceptance and such profanities were no longer confined to the factory floor or dockside. It supported its argument with a Telegraph-Mirror article quoting a university language expert as saying that four-letter profanities were now widely used by both men and women. The Council believes, in this case, that the use of the word in full was justified". 27 It is perhaps the internet that illustrates best that community standards and technology have overtaken the law. If one searches the word on even on a conservative search engine such as Infoseek, there are in excess of 2.5 million web pages with that word indexed. Of course that is if you are looking for it. But the real difficulty is that one cannot search other words without encountering "fuck" without warning. For example searching "please" will get you to "fuckmeplease.com". Searching "birthday" will result in similar accidental finds. 28 We live in an era where Federal Ministers use the word over the telephone to constituents and are not charged. Recently the word was used by Senator Schacht in the Senate.(SMH 18 May 2002). Rupert Murdoch was heard on "PM" saying "fucking ABC" following an interview (Media Watch 20 May 2002). Since Connors we have been blessed with "Chook Fowler" on our television rattling off "fuck" as though it was the only word he could manage to say. Connors was before advanced microphones could pick up sporting heroes in football telling each other to "fuck off" with regularity. They may be sin-binned but they are never charged. Jeff Kennet used the word in his last election advertising campaign - "Jeff fucking rules". 29 Channel 9 has recently broadcast a show (Sex in the City) that includes the words "fuck off" and "fucking" as well as "cunt". The word was used on "The Panel" and the station only received two complaints. Recently, the Sydney Morning Herald revealed that "fuck" was used in the television program "The Sopranos" seventy-one times in one single episode (SMH April 29, 2000, 3s). Big Brother residents evidently cannot live without the word in every episode. 30 The reporting of my unappealed judgement in Dunn has included the use of the word on radio, television and in the print media. 31 One example is the Sunday Telegraph (Sept 5 1999 at page 55), where the full words are used, without warning, in a Sunday paper, where a correspondent refers to me as a "fucking idiot" in response to my judgement. Ita Buttrose in her column in the Wentworth Courier wrote "Walk down a city street and you can hear the F-word floating in the air like a bird on the breeze". The then Police Commissioner agreed that he had used the word, and that his children have too. Kerry Packer used the word to describe his near-death experience. The president of the NSW parents and citizens Association said that the word "fuck" was acceptable in her house, but "wog" was not. 32 Various "experts" were wheeled out in The Age (4 Sept 1999) to comment on the word. "A Macquarie Dictionary editor, Mr David Blair, said those complaining probably represented the views of a minority. The media was responding to a gradual public acceptance of such words. Mr Blair said taboo words used to be almost exclusively about religion, sex and bodily functions. "Now it has shifted to other things, like race relations. It's much more offensive now to call somebody a wog or a coon". A reader in English at Melbourne University, Professor Ken Gelder, said he believed only children were truly vulnerable to harsh swear words. "If they're not children, they shouldn't be offended," Professor Gelder said". 33 Of course in assessing community values one cannot pretend to ignore personal experience. I have lived in rural New South Wales all my life. I have teenage children who go to school here. I have fostered teenage children for over fifteen years. In my experience the word in all its forms is now part of everyday language and means nothing more than "piss off" or "rack off" or "bugger off" might mean. No-one would seriously suggest a charge of offensive language had the defendant used those words in a loud manner. 34 In short, one would have to live an excessively cloistered existence not to come into regular contact with the word, and not to have become somewhat immune to its suggested previously legally offensive status. It is perhaps, as feared by Studdert J, that standards have slipped. It may also be that they have simply changed. As it was eloquently put by Hogarth J in Dalton v Bartlett 3 SASR 1972 at 557, (considering, inter alia, "get fucked"), "There is a continuous process by which language, like money, loses its value; and in this usage the word has lost all meaning. It may be full of sound and fury, but it signifies nothing" Conclusions 35 To return to the case at hand the intoxicated defendant repeatedly shouted the word "fuck" and its derivatives several times in a manner that could be heard from the street in the context of a neighbourhood dispute. I am required to apply the facts to the elements of the offence and determine whether they have been proven beyond a reasonable doubt. 36 This is a classic example of conduct which offends against the standards of good taste or good manners which is a breach of the rules of courtesy and runs contrary to accepted social rules - to use the words of Justice Kerr. It was ill-advised, rude, and improper conduct. Some people may be offended by such words, but I am not satisfied beyond a reasonable doubt that it is offensive within the meaning of the section. There is doubt in my mind that a reasonably tolerant and understanding and contemporary person in his or her reactions would be wounded or angered or outraged. Such a person would be more likely to view it as a regrettable but not uncommon part of living near people who drink to excess. I have no doubt that people would have been disturbed as a result of being awoken or distracted by the yelling and carry on, whatever the language used. I ask myself this question – what difference would it make to the reasonably tolerant person if swear words were used or not. I answer that there would be little difference indeed. 37 In short, my view is that community standards have changed and that I am not satisfied beyond a reasonable doubt that the language used was offensive within the meaning of the Act in the factual circumstances of this case. I concur with the comments of Justices Meagher, Yeldham, Herron, Chambers, Higgins, Mullighan and Ducker.