Swearing at police, move-on directions and offensive conduct: the NSW charges that start from nothing

Nobody plans to be arrested for saying a word. But a very substantial number of NSW criminal matters begin exactly that way – a frustrated exchange in a street, a raised voice outside a pub, a direction to leave that seems unreasonable, and within ninety seconds a person with no record is in handcuffs facing three charges instead of none.

These offences are treated as minor, and in penalty terms they are. In consequence terms they are not, because they produce criminal records, they escalate quickly into resist and assault police charges, and they are among the most contestable charges in the entire Local Court list.

Offensive language and offensive conduct

Both sit in the Summary Offences Act 1988 (NSW)). Section 4A makes it an offence to use offensive language in or near, or within hearing from, a public place or a school. Section 4 creates the broader offence of offensive conduct in the same locations, and expressly provides that a person is not guilty if they satisfy the court they had a reasonable excuse for the conduct.

The maximum penalties are modest – a fine for offensive language, and a fine or three months imprisonment for offensive conduct. Police may also deal with either by penalty notice, which is where most matters end.

The element that decides these cases is what offensive actually means. The test is objective: whether the language or conduct is such as would wound the feelings, arouse anger, resentment, disgust or outrage in a reasonable person. That is a contemporary standard, not a Victorian one, and the authorities recognise that ordinary swearing is commonplace in Australian public life. Context does the work – who heard it, where, in what circumstances, and whether the recipient was a police officer whose professional training includes dealing with hostility.

Move-on directions

Part 14 of the Law Enforcement (Powers and Responsibilities) Act 2002 provides the power. Section 197 allows a police officer to give a direction to a person in a public place if the officer believes on reasonable grounds that the person’s presence or behaviour is obstructing another person or traffic, constitutes harassment or intimidation, is causing or likely to cause fear to a person of reasonable firmness, or is for the purpose of unlawfully supplying or soliciting a prohibited drug.

Section 198 deals with directions relating to intoxicated persons in public places. And critically, section 199 and the surrounding provisions require that the direction be reasonable in the circumstances, and that the officer provide their name, place of duty and the reason for the direction. Failing to comply with a lawful direction is an offence – but only if the direction was lawful.

That is the whole battleground. A direction given without reasonable grounds, without the required warnings, or without the officer identifying themselves and giving a reason, is not a lawful direction, and non-compliance with it is not an offence. Body-worn footage frequently shows those requirements were not met.

The escalation that does the real damage

Here is the sequence that produces the serious charges. A person is given a direction. They argue rather than leave, which is not itself an offence. The officer moves to arrest for failing to comply. The person pulls their arm away instinctively. That becomes resist officer in execution of duty. In the struggle, contact is made, and that becomes assault officer in execution of duty – an offence with a five year maximum where actual bodily harm results.

The critical legal point is that all of those charges depend on the officer acting in the execution of their duty. If the underlying direction was unlawful, or the arrest was not lawfully founded, the officer was not acting in execution of duty and the resist and assault charges fail with it. Reasonable force may lawfully be used to resist an unlawful arrest.

That is a genuine defence, and it is one of the few areas of criminal law where the whole prosecution can collapse on a single anterior question. It is also why these matters should not be pleaded to reflexively on the assumption that they are trivial.

The practical advice, which is unglamorous

Comply, then contest. Whatever you believe about the lawfulness of a direction or an arrest, the street is not the place to litigate it. Walking away and challenging the matter later leaves you with one charge at most. Standing your ground turns a fine into a criminal record and, in the worst cases, into a custodial matter.

Do not answer questions beyond your name and address. You are required to provide those where a lawful requirement is made; you are not required to explain yourself, as our article on the reality of the right to silence in NSW explains. Do not give a false name, which is a separate offence covered in our article on false information and obstruction charges.

Note everything afterwards: the officer’s name and station if given, whether a reason was provided, whether a warning was given, who was present, and the time and place. Ask any witnesses for their details. Body-worn video should be sought early through your lawyer.

Where these matters escalate further

Public order charges rarely stay isolated when a group is involved. A street confrontation involving several people can become affray, which is a very different proposition, as our article on when a fight outside a pub becomes affray or riot explains. Where the language alleged is directed at a person’s race or religion, the hate speech and public act provisions come into play, as we set out in our article on Nazi symbols, hate speech and public order offences in NSW. And where a weapon is present, the knife provisions covered in our article on carrying, using and supplying a blade in NSW apply.

Outcomes

For a first offender, a conviction-free outcome is realistic and should usually be the objective, particularly where employment or visa status is affected – the options are set out in our guide to primary sentencing outcomes in NSW. Where intoxication, mental health or cognitive impairment contributed, the diversionary provisions in our guide to section 32 and section 14 mental health applications are frequently the right path, and they are underused in exactly these matters.

Where a charge is withdrawn or dismissed, costs may be recoverable, as our guide to costs in NSW criminal cases explains – and in public order matters where the direction was unlawful, that is a real prospect rather than a theoretical one. Public order offending remains a substantial part of Local Court volume, tracked in BOCSAR’s crime trends dashboard), against a background of record custody numbers that make avoiding escalation more important than ever.

Contact Us

A charge that began with a word in a street can end with a criminal record, an assault police conviction and, for some people, consequences for employment or a visa. But these are also among the most defensible charges in the Local Court, because so much depends on whether the direction, the arrest and the officer’s conduct were lawful in the first place.

At National Criminal Lawyers, we defend offensive language, offensive conduct, fail to comply, resist and assault police charges across NSW. We obtain the body-worn footage, test the lawfulness of the direction and the arrest, and pursue outcomes that keep a record clean.

Call us at 1800 CRIM LAW for a free consultation. Help us help you understand your situation and get you the best outcome possible.