Offensive Conduct – Danny Lim Wins His Legal Battle

Read this article to find out more about offensive language and offensive conduct

Offensive Conduct – Danny Lim Wins His Legal Battle

We often see people’s conduct by which we feel offended however, this may well not amount to offensive conduct within the meaning of the legislation.

It was reported that Sydney sandwich board activist Danny Lim has won a legal battle over a double entendre after a magistrate blasted his arrest for offensive behaviour as “heavy-handed and unwarranted.

THE STORY

Mr Lim, a well-known Sydney activist, was arrested at Barangaroo back in January 2019 over a sign that read “Smile cvn’t! Why cvn’t?” He was also issued with a $500 fine.

In his evidence, at Sydney’s Downing Centre Local Court, Mr Lim said that all he wanted was to ‘make people smile’.

The story of the Sydney sandwich board activist has now finally come to a happy end, with Mr Lim winning his legal battle. Magistrate Jacqueline Milledge was very critical of his arrest for offensive behaviour. In her opinion, Mr Lim’s sign should not have been considered offensive. “It’s provocative and cheeky, but it’s not offensive,” she explained.

At the same time Magistrate Milledge was full of criticism of the language used on the occasion by the police officers. The footage recorded by body-worn-camera shows officers referring to onlookers as “f***ing pathetic” and “social justice idiots” and accusing Mr Lim of being “full of shit”, which was described by Magistrate Milledge as being out of place.

To read our previous blog on this topic, click here.

THE LAW

The offence of ‘Offensive Conduct’ is contained in section 4 of the Summary Offenses Act 1988 , which provides that:

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 and a person does not conduct himself or herself in an offensive manner merely by using offensive language”.

WHAT MUST THE PROSECUTION PROVE TO CHARGE YOU WITH OFFENSIVE CONDUCT ?

Because the offence of Offensive Conduct is a criminal one, the burden of proof lies on the Prosecution and the prosecution must prove your guilt beyond reasonable doubt, which is a high standard of evidence.

Here is what the prosecution has to prove to be able to charge you with Offensive Conduct :

  1. That you were in, near, or within view or hearing from a public place or a school; and
  2. That you acted in an offensive manner.

According to Justice Kerr’s decision, in the 1966 ACT Supreme Court case of Ball v McIntyre (1966) FLR 237, conduct can be “hurtful or blameworthy or improper” and offend “against standards of good taste or good manners,” but may still not be offensive under the criminal law.

Conduct must be offensive according to contemporary standards.

In the case of  Pell v The Council of the National Gallery of Victoria [1997] VSC 52 involved the then Catholic Archbishop George Pell seeking an injunction preventing a photo of a crucifix immersed in urine from being shown publicly. Pell’s argument was that it breached state summary offences because it displayed “an indecent or obscene figure.”

It was said in that case that the court had to consider the values of the “multicultural, partly secular and largely tolerant if not permissive society” in order to decide whether the artwork was offensive. The injunction was refused.

TAKING INTO ACCOUNT THE CHANGING STANDARDS

These days, with words like “bloody” or “bugger” being commonplace, what might have been once considered offensive, may no longer be so. It can be said that changing contemporary standards enable one to argue that past precedents set in regard to offensive behaviour and language are no longer of much help.

WHAT ARE THE PRESCRIBED MAXIMUM PENALTIES ?

The maximum penalties for offensive conduct is a fine of $660 or 3 months imprisonment.

WHAT ARE YOUR DEFENCES IF CHARGED WITH OFFENSIVE CONDUCT ?

  1. Showing that you were expressing a political opinion.
  2. Showing that your behaviour alleged to be ‘offensive conduct’ would not normally cause a reasonable person in today’s society to be outraged, disgusted, angry etc.

(The reasonable person, as was explained in Re Marland [1963] 1 DCR 224, ‘must not be thin-skinned’)

  1. Showing that you acted in self-defence.

If you have been charged with offensive conduct contact the Criminal Lawyers that know best or to read more about offensive conduct click here.

Book your first free appointment with National Criminal lawyers now.
CONTACT US! 02 9893 1889

Book Appointment

  • Date Format: MM slash DD slash YYYY
  • :