Offensive Language

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What is Offensive Language ?

It is an offence to use offensive language in or near, or within hearing from a public place or school.

Case law/Jurisdiction

The offence of offensive language is what is known as a Summary Offence, which means it is to be dealt with in the Local Court.

The nature and elements of the offence of offensive conduct were considered In Worcester v Smith [1951] VLR 316 at 318 wherein O’Bryan J held that “offensive” meant “…such as is calculated to wound the feelings, arouse anger or resentment or disgust in the mind of a reasonable person…”

The Law

Offensive Language is contained in section 4A of the Summary Offenses Act 1988 (NSW) which states:

A person must not use offensive language in or near, or within hearing from, a public place or a school.

What must the prosecution prove?

Since Offensive Language is a criminal offence, the burden of proof lies on the Prosecution.

The prosecution must prove the Accused’s guilt beyond reasonable doubt.

That is a high standard of proof that the prosecution must achieve before someone can be convicted of Offensive Language.

To establish offensive language, the prosecution must prove each of the following matters beyond reasonable doubt:

  • You were in, near, or within view of a public place
  • You used offensive language

If you are charged with the offence of OFFENSIVE LANGUAGE what are your options?

National Criminal Lawyers have been successful in defending a large number of offensive language charges where the prosecution could not establish each of the elements of offensive language. We have also achieved a number of non-convictions for offensive language charges.

NCL offer the following options for those who have been charged with offensive language:

  1. We will negotiate with prosecutors (police or DPP) (a term referred to as “plea negotiations”) to request that the charge is withdrawn, downgraded or fact sheets amended;
  2. NCL will Plead Not Guilty and go to hearing/trial and persuade the Court that prosecution has not proven its case beyond reasonable doubt;
  3. Plead guilty to the elements of the charge and then dispute the facts (at a special “disputed facts” hearing) with the view of having you sentenced less harshly; and/or
  4. Plead guilty with full acceptance of the facts as set out by the police and make strong submissions on your behalf requesting that the Court not record a criminal conviction.

Pleading Guilty

If you agree that you have committed the offence and the police are able to prove all the elements of the offence, it is best to plead guilty at an early opportunity to receive the maximum discount. Currently the maximum discount available for an early plea of guilty is 25% of the sentence.

Furthermore, the early guilty plea shows the Court that you have remorse and contrition for your actions.

Our Lawyers at National Criminal Lawyers work closely with you to ensure that we obtain all necessary paper work at increasing the chances of obtaining a non-conviction or section 10.

Maximum Penalties

Offensive Language can be punished with a fine of up to $660.

Please note that the penalties mentioned are reserved for the worse case offending and are unlikely to be the penalty you receive.

Pleading Not Guilty

If you decide to plead not guilty you will need to prepare to go to a Defended Hearing.

A defended hearing is where all the witnesses of that case are called to give evidence. The witnesses are both examined by the prosecution and tested by your defence lawyers.

National Criminal Lawyers have defended thousands of people charged with Offensive Conduct and are experts at these hearings.

Defences

Some of the possible defences available for those charged with offensive language can include:

  • Disputing that you were the person who used the words
  • Suggesting that, taking into account the context, the words were not offensive
  • Suggesting you had a “reasonable excuse”

As for reasonable excuse in Karpik v Zisis (1979) 5 Petty Sessions Review 2055, 2056 it was found that a reasonable excuse for profanity in a public place would be as part of ‘a reflex action…[such as following] a heavy implement falling on one’s foot’. This was confirmed in Conners v Craigie (1994) 76 A Crim R 502 where it was qualified by saying that the offensive behaviour must have been an immediate reaction to something, not a reaction to something which happened long ago.

Statistics

The Courts are not bound by statistics however there must be reasonable consistency in sentences. A Magistrate or Judge should have regard to what has been done in other cases. In Green [2011] HCA 45, the plurity judgement of French CJ, Kiefel and Creennan JJ stated:

“Equal Justice” embodies the norm expressed in the terms “equality before the law”. It is an aspect of the rule of law.

For Offensive Language Charges 82% of offenders a fine was the sentence.

Possible Penalty's

In NSW, a court can impose any of the following penalties for an offensive language charge.

  • Fine
  • Section 10

However, from the 24 September 2018 new penalty’s will be replacing the above. They are as follows:

  • Fine
  • New Conditional release Order (CRO)

Case Studies

Our clients friend used offensive language towards a group of males in company of the police after they insulted and harassed his girlfriend. Our client then became engaged in a verbal dispute with the police. At the end of the altercation our client was charged with offensive language. We made submissions to the police prosecution on behalf of our client, seeking to have the charges dismissed. The charges were withdrawn after we successfully argued to the police prosecutors that our client was acting with reasonable excuse.

Why National Criminal Lawyers?

There are three reasons to choose National Criminal Lawyers:

1. We get the results

We are the experts in either beating or having criminal charges withdrawn AND/OR obtaining the least restrictive penalty available. This is because no matter which option you choose within our tailored Options at Law you will be dealing with experienced criminal lawyers who can make sure the evidence is not only obtained properly but also that your case is prepared and presented to the highest best practice standards possible. This is also done without breaking your pocket.

2. We give a Senior Defence Lawyer guarantee

No matter which option at law you choose, National Criminal Lawyers can guarantee that a Senior Defence Lawyer will represent you. This means that with our over 25 years of Combined criminal law experience you will get the best result possible.

3. National Criminal Lawyers are the best defenders of your rights

At National Criminal Lawyers we know that Criminal Law is a matter of Human Rights. For this reason, we take pride and passion in representing our clients. This pride and passion to assist those charged with an alleged or actual breach of the criminal law is to us a matter of righteous necessity and in that sense, you can always rest assured that National Criminal Lawyers are the best defenders of your rights. This true not only when the police have just simply got it wrong OR if they have got it right then we can speak with you and make sure you get you the best result available.

If you have been charged with any Offensive Language offence our Team at National Criminal Lawyers are well versed and specialists in having charges either withdrawn and otherwise achieving favourable outcomes.

Please contact our office on 02 9893 1889 or visit www.nationalcriminallawyers.com.au for more information about your options.

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