New South Wales Supreme Court CITATION : Burns v Seagrave & Anor [2000] NSWSC 77 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 12197/99 HEARING DATE(S) : 15 February 2000 JUDGMENT DATE : 23 February 2000 PARTIES : Garry Richard BURNS - Plaintiff Suzanne SEAGRAVE - Defendant JUDGMENT OF : Simpson J at 1 LOWER COURT Local Court JURISDICTION : LOWER COURT FILE NUMBER(S) : LOWER COURT Ms S Seagrave JUDICIAL OFFICER : COUNSEL : M Bateman - Plaintiff P Lakatos - Defendant SOLICITORS : John A Hunter - Plaintiff S E O'Connor - Defendant LEGISLATION CITED : Summary Offences Act 1988 Director of Public Prosecutions Act 1986 Ball v McIntyre [1966] 9 FLR 237 CASES CITED : Anderson v Kynaston [1924] VLR 214 Saunders v Herold (1991) 105 FLR 1 Spence v Loguch, unreported, SCNSW 12 November 1992 DECISION : Summons dismissed - plaintiff to pay the defendant's costs. THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION SIMPSON J 23 February 2000 12197/99 Garry Richard BURNS v Suzanne SEAGRAVE & Anor Judgment HER HONOUR : 1 On 27 July 1998 in the Downing Centre Local Court a summons was issued against the present plaintiff charging that, on 20 June 1998, he behaved in an offensive manner. The charge was brought under s 4(1) of the Summary Offences Act 1988. On 24 May 1999, after a contested hearing, Ms Suzanne Seagrave LCM dismissed the charge. On behalf of the plaintiff an application was then made for costs but the magistrate declined to make an order in his favour. The decision to refuse the application is challenged in the present proceedings. The precise mechanics of this application need not be considered. The second defendant, the Director of Public Prosecutions, who has been substituted for the originally named second defendant pursuant to ss 9 and 10 of the Director of Public Prosecutions Act 1986, concedes that the court has jurisdiction to entertain the claim and to make orders substantially in the terms sought should the plaintiff succeed in establishing error. 2 S 4 of the Summary Offences Act is in the following terms: "Offensive conduct 4.(1) A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school. Maximum penalty: 6 penalty units or imprisonment for 3 months. (2) A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language. (3) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence." 3 The prosecution case was conveniently summarised in a document entitled "Breach Report" dated 9 July 1998 which formed part of the prosecution brief and which was tendered in evidence as Ex A in these proceedings. The substance of what was alleged against the plaintiff was stated as follows. At about 8.40 pm on 29 June 1998 he walked into the Kings Cross police station. Apart from police officers one member of the public, Ms Jean Roy, was present. The plaintiff said he wanted to complain about drug dealing in Kings Cross. His manner was irate, he became increasingly angry and aggressive, interrupting Constable Taylor who attended to him, in her attempt to explain police activity in relation to drug dealing in the area. Sergeant Gover, who had been attending to Ms Roy, asked the plaintiff's name. The plaintiff became more aggressive, and said: "I don't have to give you anything, you fat spiv. You're nothing but a useless fat spiv. I don't have to talk you, you giraffe." In another exchange the plaintiff said to Sergeant Gover: "I'm not speaking to you, you're not my type." 4 In the summary of facts contained in the Breach Report the observation was made that the last comment was taken "extremely offensively due to the implied homosexual connotation" and that the plaintiff's behaviour was considered offensive "due to the personal attacks on appearance and sexuality". 5 The transcript of the evidence in the Local Court was not in evidence in this Court. However the statements made by the prosecution witnesses who gave evidence were put before me. They contain generally consistent but expanded accounts of the plaintiff's behaviour at the police station. In particular, one witness, Constable Taylor, described the plaintiff as continually raising his voice, pointing and waving his hands in the air; another described him as very upset and agitated, arguing with Sergeant Gover and Constable Taylor, and as "rude and abusive" in his manner, constantly interjecting, arguing with and insulting police in a loud tone of voice. 6 Although there was no direct evidence to this effect, counsel for the plaintiff, who also appeared for him in the Local Court, informed me that at the conclusion of the prosecution case she submitted that no prima facie case had been made out but that this submission was unsuccessful and the magistrate then proceeded to hear evidence from the plaintiff. It is clear from the magistrate's judgment that he gave evidence which was substantially in conflict with the evidence of the prosecution witnesses. He denied using certain of the words attributed to him and put a different complexion on the whole incident. It was after hearing his evidence that the magistrate dismissed the charge. She did this notwithstanding that she expressly found that all witnesses had endeavoured to give a truthful account of events and had done so in a frank and forthright manner; but ultimately she found that the plaintiff's account was "quite compelling" and she preferred his version to that of the police witnesses. In part, in reaching this conclusion, she relied upon evidence given by Ms Roy who she considered to be an independent witness, and who gave no specific evidence of the use of some of the language attributed to the plaintiff by the police witnesses. In the result the magistrate was not satisfied beyond reasonable doubt that the plaintiff behaved in an offensive manner and so dismissed the information. It is worth observing here that nothing in the comprehensive reasons she gave suggests that the provisions of sub s (2) of s 4 had any bearing on the result. 7 At the conclusion of the magistrate's reasons counsel for the plaintiff applied for an order for costs, relying upon s 81(4)(a) and (b) of the Justices Act 1902. By s 81(1) the Local Court magistrate is empowered to make an order for costs, but the power is limited by the specific provisions of sub s(4) which is in the following terms: "81(4) Costs are not to be awarded in favour of a defendant unless the Justice or Justices is or are satisfied as to any of the following: (a) that the investigation into the alleged offence was conducted in an unreasonable or improper manner, (b) that the proceedings were initiated without reasonable cause or in bad faith or were conducted by the prosecution in an improper manner, (c) that the prosecution unreasonably failed to investigate (or to investigate properly) any relevant matter of which it was aware or ought reasonably to have been aware and which suggested either that the defendant might not be guilty or that, for any other reason, the proceedings should not have been brought, (d) that, because of other exceptional circumstances relating to the conduct of proceedings by the prosecution, it is just and reasonable to award costs." 8 On behalf of the plaintiff it was submitted that the magistrate erred in the approach she took in refusing the application. In this Court the plaintiff relied only on sub paragraph (b). No argument was directed to the proposition that would have been necessary to support an award of costs in reliance on sub paragraph (4)(a), that is, that the investigation was conducted in an unreasonable or improper manner. What was specifically argued was that the magistrate was in error in failing to find that the proceedings were initiated without reasonable cause. 9 The argument can, I think, be concisely stated. It was that, by reason of s 4(2) of the Summary Offences Act, and having regard to the allegations of fact made against the plaintiff, there was never any prospect that the plaintiff would be convicted of the offence with which he was charged. This was because the only allegations of offensive manner were of the use of offensive language. By reason of sub s (2) those allegations could never have amounted to a finding that the plaintiff conducted himself in an offensive manner. If that argument were accepted it would follow that the proceedings were initiated without reasonable cause. 10 A similar argument was put before the magistrate who rejected it, remarking that her finding that a prima facie case had been made out at the end of the prosecution case carried the necessary implication that the plaintiff's conduct, as described in the prosecution statements, was capable in law of sustaining a conviction. The reason for dismissing the information was that having heard the plaintiff's different version of the incident, the magistrate was not satisfied beyond reasonable doubt that the plaintiff had behaved as described by the prosecution witnesses. It was therefore necessary for counsel for the plaintiff to argue that the magistrate was in error in finding a prima facie case established. The same argument was advanced; that is, that, properly characterised, all that was alleged against the plaintiff was the use of offensive language and that this could not have permitted a finding that he conducted himself in an offensive manner. Despite their researches, neither counsel was able to locate any decision establishing the line between "merely … using offensive language" and behaving in an offensive manner. The word "merely" is significant. In the prosecution statements to which I have already referred there was quite extensive reference to the manner in which the plaintiff allegedly behaved physically. This included his tone of voice, as well as the words used, and physical gestures that accompanied the alleged language. 11 Although it is correct that the language allegedly used by the plaintiff was predominantly the behaviour upon which reliance was placed, it is not correct to identify the allegation as entirely confined to the language he used. It was not claimed that his conduct was offensive "merely" because of the language. What was alleged was that the whole of his conduct, including but not limited to the language, was offensive. I do not accept that, because of sub s (2), what was alleged against the plaintiff, when looked at in its totality was incapable of amounting to an offence against sub s (1). 12 A further argument was advanced on behalf of the plaintiff. That was that, even leaving aside s 4(2), and having regard to the descriptions of his physical behaviour, tone of voice and manner, what was alleged could not, in law, be held to be such an offence. Reliance was placed upon cases decided under comparable legislation preceding s 4, which was introduced into the Act in substitution for its predecessor in 1993. Some of these cases are so familiar as to be old friends. For example, in Ball v McIntyre [1966] 9 FLR 237 the conduct in question was that of a student who, in the course of a political demonstration against the Vietnam war, hung a placard upon and squatted on the pedestal of a statue erected as a public memorial to King George V outside Parliament House, Canberra. The student was charged with offensive behaviour. Kerr J (as he then was) said, in a passage that used to be frequently cited: "It follows from what was said in this case [ Anderson v Kynaston [1924] VLR 214] and I agree with and adopt it, that some conduct which is hurtful or blameworthy or improper is not offensive within the meaning of the section. What has to be considered in the particular case is whether the conduct in question, even if in some sense hurtful or blameworthy, or improper, is also offensive within the meaning of the section. It is important, I think, for this point to be made because it is sometimes thought that it is sufficient to constitute offensive behaviour if it can be said that conduct is hurtful, blameworthy or improper, and thus may offend. 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 commonly accepted social rules, may well be ill advised, hurtful, not proper conduct. People may be offended by such conduct, but it may well not be offensive conduct within the meaning of the section. Some types of political conduct may offend against accepted views or opinions and may be hurtful to those who hold those accepted views or opinions. But such political conduct, even though not thought to be proper conduct by accepted standards, may not be offensive conduct within the section. Conduct showing a refusal to accept commonly held attitudes of respect to institutions or objects held in high esteem by most may not produce offensive behaviour, although in some cases, of course, it may. 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." 13 More recently, in Saunders v Herold (1991) 105 FLR 1 Higgins J, in the Supreme Court of the Australian Capital Territory, dealt with an appeal against a conviction for offensive behaviour. The offensive behaviour then alleged was said to have taken place at about 11 pm outside the Canberra Workers' Club in the City of Canberra, and followed a "small argument" with the manager of the establishment who asked three men, including the appellant, to leave. A police officer who was present had a conversation with the appellant who used language including: "I've done nothing wrong, can you tell me where the fuck I'm staying?" and "Why don't you cunts just fuck off and leave us alone?" The prosecution case was that the appellant was speaking in "quite a loud voice". 14 Some different accounts of the language used were given but the foregoing is a reasonable reflection of the kind of language that was at the foundation of the charge in that case. Higgins J referred to a number of decided cases, but ultimately concluded, on the facts of the case before him, that the charge had not been made out. The central point of his reasoning appears to be contained in the sentence: "It is enough for present purposes to note 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 anyone present who would, rightly or not, be considered by the reasonable bystander to be offended so as to indirectly offend that bystander." 15 In Spence v Loguch, unreported, Supreme Court of NSW, 12 November 1991, Sully J was dealing with a case stated following dismissal of a charge brought under the predecessor of s 4, that the appellant had conducted himself in an offensive manner. The facts of that case were that between 10.30 and 11.00 pm the respondent urinated against a brick wall outside a hotel in Coffs Harbour. Few people if any were in the near vicinity. Sully J considered that the charge involved behaviour that was: "offensive in the sense of giving, or of a nature to give, offence; displeasing; annoying, insulting." He drew on the definition contained in the Oxford English Dictionary. 16 He extracted from earlier decisions a series of propositions concerning the offence. These were: "1. That the offence contemplated behaviour "such as is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person". … 2. that it is not necessary to prove in a particular case that any such reasonable person was in fact present at the time the offensive behaviour occurred, provided only that it was open to be found reasonably that some such reasonable person might be expected to come upon the place where the behaviour in question was occurring and thereupon to see it. 3. that "… whether behaviour of any kind can be said to be 'offensive' within the meaning of this section must depend to some extent upon where the behaviour took place, and the circumstances in which it took place. Conduct which might undoubtedly be described as offensive if it took place on a public street or footpath could hardly be said to be 'offensive' if it took place in the privacy of the front room of a house which abutted onto that street or footpath if the blinds were drawn so that it was not possible to see what was going on'." He upheld the decision of the magistrate dismissing the charge in that case. 17 The approach taken on behalf of the plaintiff requires a curious exercise. This is not an appeal against the magistrate's finding that the prosecution evidence was capable of establishing a prima facie case, and in fact did so; but it nevertheless involves consideration, not of whether a prima facie case was made out, but whether the prosecution evidence was capable of establishing the prima facie case. If it was so capable, then it could not be said that the proceedings were initiated without reasonable cause. Put another way, to substantiate the argument that the magistrate was in error in concluding that the plaintiff had not shown that the proceedings were initiated without reasonable cause, it is necessary for the plaintiff to show that, as a matter of law, the prosecution evidence was not capable of sustaining the charge. 18 I am very conscious of the authorities to which I have been referred, and which are concerned with what conduct does or may amount to offensive conduct such as to come within s 4(1). 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. In the end, having considered what was alleged against the plaintiff, I am satisfied that it was capable in law of establishing a prima facie case and that it was therefore a matter for the magistrate to determine, firstly, whether it did in fact establish a prima facie case, and secondly whether it (if accepted) could or would have established beyond reasonable doubt that the plaintiff had committed the offence charged. Having regard to her findings of fact, the magistrate was never called upon to decide whether the conduct alleged by the police against the plaintiff did amount to that offence, because she was not satisfied beyond reasonable doubt that he had behaved specifically as alleged. It is, however, implicit in the finding that a prima facie case was made out, that, if proven, the conduct could have sustained the charge. That being so, I am not satisfied that the magistrate ought to have found, as a matter of law, that the proceedings were initiated without reasonable cause. 19 I am satisfied that there was no error in the approach taken by the magistrate. The summons is dismissed. The plaintiff is to pay the defendant's costs. ********* Last Modified: 09/25/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.