Sydney sandwich board activist Danny Lim is considering legal action against the three NSW police officers who arrested him last Friday.
The former local councillor was arrested for “offensive behaviour“, with witnesses making formal complaints over the force used to cuff the 74-year-old.
Footage of the popular man’s arrest, described by some witnesses as “brutal” and “disgusting”, quickly spread across the Internet. Over the weekend hundreds gathered outside Sydney Police Station to protest over his treatment.
The former Strathfield Council councillor was fined on Friday after three police officers arrested him at Exchange Place in Barangaroo about 9.20am.
It’s unclear what the offensive behaviour involved or who made the complaint though one woman, on Facebook, admitted she called the police because Mr Lim was “in the way” and “disturbing”.
Video of the arrest shows an officer holding a sandwich board sign that reads: “SMILE CVN’T! WHY CVN’T?
Mr Lim, wearing a large sign calling on politicians to act on chemical contamination, thanked the crowd and those who had recorded his arrest on their phones.
“I couldn’t thank them enough,” he said.
“I asked for help, help, I told them I had to pick up my dog Smarty.” Mr Lim says he has PTSD but urged people to “have a heart” and fight injustice for their children and grandchildren.
WHAT IS OFFENSIVE CONDUCT/OFFENSIVE LANGUAGE?
Offensive conduct is found in Section 4 of The Summary Offences Act 1988, which states
“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.
A person does not conduct himself or herself in an offensive manner merely by using offensive language.
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 maximum penalty that a Local Court can impose on someone who has been charged with offensive language is a fine of up to $660.00 and a sentence of up to 3 months in gaol.
Offensive language is found in Section 4(1) of the Summary Offences Act 1988, which states:
A person must not use offensive language in or near, or within hearing from, a public place or a school.
The maximum penalty that a Local Court can impose on someone who has been charged with offensive language is a fine of up to $660.00
IS SWEARING OFFENSIVE?
In order to determine whether swearing is offensive, it is prudent to look at the case law.
Catherine Rose, a same sex marriage activist chanted once on loud speakers as follows:
“When I say same sex, you say marriage. Same sex. Marriage. Same sex. Marriage. When I say bigots, you say fuck off. Bigots. Fuck off. Bigots, Fuck off’
She also made speeches where referred to politicians as “those fuckers”.
Samuel Holcome, in the same circumstances, made a speech into a microphone as follows:
“…the fact that people over there are contributing to an epidemic LGBTI you suicide, self-harm and mental illness…What’s the real damage? Me saying fuck them or … we need to stand against them and maek sure us using bad language about these fuckers is nothing compared to the epidemic of suicides these people contribute to”
Patrick Wright, another activitist says:
“There a long, long politician tradition here in Sydney about protesting Fred Nile. So Fuck Fred Nile”
A police sergeant told all Catherine, Samuel and Patrick that the he had received complaints from members of the public, and told her to stop swearing. She replied that “fuck” was part of the common vernacular. The police officer responded by saying that it was not part of children’s vernacular.
WHAT DID THE COURT SAY?
The Court held that the phrase “fuck” is a phrase addressed to the supporters of the counter protest group, rather than the other protest group.
It was also held that when the word was used in various ways by each of the three person, police officers were standing arounf them. They took on an observer role. Nevertheless, a police officer says that he told Catherine Rose that complaints had been received; and “fuck” was not part of Children’s vernacular. The word “fuck” is defined in the Macquarie Dictionary, which lists various phrases in which the word appears.
The Court held that the word has no meaning, what is meant depends on the context in which it appears. Whether it is a part of a child’s vernacular depends on the words that a child listens to from others. If the child’s caregivers, or person in close association with the child use the word, one can expect that the child will use the word, merely copying what the child has heard.
The Court also ruled that a person does not use offensive language merely by using the word “fuck”. It depends on whether the word is used in a way calculated to wound the feelings, arouse anger or resentment or disgust and outrage in the mind of a reasonable person, which will depend on the context in which the word is used.
The Court also found that poets have used the word “fuck” to express emotions.
WHY NATIONAL CRIMINAL LAWYERS?
If you have been charged with either offensive language or offensive conduct contact the Sydney Criminal Lawyers that know best.