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University of New South Wales Law Journal Student Series |
KEEPING LANGUAGE COLOURFUL: CHALLENGING ‘COMMON SENSE’ AS A STANDARD OF CRIMINAL LIABILITY FOR OFFENSIVE LANGUAGE IN NEW SOUTH WALES
MUHAMMAD JARRI HAIDER SYED[1]*
This thesis addresses the enforcement of offensive language crime in New South Wales. Being broadly defined, the offence has remained an essential item in the toolkit of public order policing. It has been enforced frequently, and often in circumstances of extreme violence and ignominy for the accused. I analyse the characterisation of offensive language charges in the realm of judicial consideration, and the vagaries of police discretion. Applying the anthropological concept of ‘common sense’, I offer an explanation for the gaps in judicial reasoning in describing the precise connection between a prohibited speech-act and a relevant emotional reaction (wounding the feelings, anger, resentment, disgust). In doing so, I investigate the contradictory description of the reasonable person and the incomplete engagement with factual context in higher court judgments, proving that judges have furthered the uncertainty surrounding the legal concept of ‘offensiveness’ in public places. Further, I demonstrate how, benefitting from the lack of clear judicial instruction, and their wide discretion, police officers have deployed their own ‘common sense’ constructions of ‘offensiveness’ to intercept challenges to their authority in public places. By conducting a critical analysis of the police body-camera footage of Danny Lim’s 2019 arrest in Barangaroo, I look at how the police interpretation of ‘offensiveness’ can come into direct confrontation with contemporary community standards. Finally, in demonstrating the public outrage that can accompany a police response to offensive language charges, I have also added my voice to the growing literature which argues that the offence no longer reflects the community’s consensus on the appropriate use of language in public spaces.
On 2 November 2016, a motorist was pulled over by highway police for driving an unregistered vehicle. She insisted that she did not know this was the case, since the car did not belong to her. During the course of this conversation, she used the word ‘fuck’ several times, as part of her ‘everyday language’ to ‘express her feelings.’[1] As she closed the rear-hatch of her car, she whispered ‘cunt’ under her breath and in the next second a police officer had bashed her head into the side of her car and twisted her arm, causing it to dislocate. Following this, the motorist, who had been handcuffed and placed under arrest, pleaded with the officers to let her go since she had not taken her medication, and was about to have a panic attack. She then consequently did suffer a panic attack, with her legs shaking and her breath heavy, while the police officers told her she should not have sworn in a public place. All of these events were recorded on the police car’s ICV, culminating in a 2019 LECC investigation which ultimately found that the officers had engaged in ‘serious misconduct.’[2] Crucially, for my purposes, the investigation further concluded that the motorist should never have been accused of using offensive language in the first place since she did not intend to ‘hurt the feelings of, or to arouse anger, resentment or disgust in the mind of a reasonable person.’[3]
As much as these disturbing details reveal about the gravity of police misconduct, they also provide an insight into the immense latitude of discretion involved in the enforcement of offensive language, known as the ‘cornerstone of public order legislation.’[4] In a country where swear words are (arguably) ‘woven into the fabric of everyday life’,[5] criminal punishment for using them should seem extraordinary. Many law reform agencies have argued that such an offence is archaic and out of step with contemporary uses of language.[6] Just last year, however, offensive language crimes were recorded 3,058 times in New South Wales.[7] Further, as I will show in this thesis, arrests for offensive language in the circumstances described above, are not a rare occurrence either.[8] Of particular concern is the ‘vague and open-ended’ nature of the crime,[9] since the term ‘offensive’ is not defined in the governing legislation.[10] The determination of this ‘integral’ circumstance,[11] an aspect without which the offence could not be described as ‘truly criminal’,[12] is left in the first instance, to police officers, and in the second to the judiciary.[13] Therefore, my thesis is focused on these two avenues of enforcement. I argue that (1) in using the ‘rhetoric of common-sense’[14] to characterise the legal test for ‘offensiveness’, higher courts have furthered its ambiguous application, and (2) in deploying ‘common sense’ constructions of the ideal use of public places, police officers have used charges of ‘offensiveness’, contrary to community standards, as a method to tackle perceived challenges to their authority.
While legislative rhetoric on offensive language has asserted the protection of the ‘right to enjoy public places and public facilities without harassment or interference,’[15] Dixon has demonstrated that it has been used, less as a criminal offence, and more as a ‘method of control, a justification for removing a person from a public place.’[16] This argument is supported by the long line of scholarly works,[17] government reports,[18] and crime research data,[19] confirming that offensive language charges have been used as ‘an oppressive mechanism of control’ against Aboriginal Australians.[20]
As is evident from the case I referred to in the opening, the extent of criminalisation has only extended further from (continued) focus on specific communities to now include anyone who is perceived to challenge police authority through swearing, whether or not it is directed at them. This point was recently considered in a qualitative study of a 2016 COPS narratives data set from three Sydney Local Area Commands (Kings Cross, Surry Hills and Sydney city). Here, Trollip et al concluded that the target of swearing was a police officer in 94% of the cases involving offensive language charges.[21] It appeared, therefore, that charges provided an avenue for ‘exercising power and control over persons who had demonstrated a lack of deference’ to a police officer.[22]
A major reason for the state of affairs described above is to be found in the legislative history of offensive language. There is evidence that, ‘offensiveness’, even as a historical category, was always intended to be used a wide-ranging discretionary power, under the guise of protecting access to public spaces.
The most immediate forbear to the current provision was introduced in 1970 as a prohibition on the use of ‘unseemly words’ in public.[23] From the historical archives of the time, it appears that it was the Liberal Premier, Robert Askin’s personal distaste for the progressive movements, and specifically the Vietnam War protests of the time, which triggered the introduction of the Summary Offences Act 1970.[24] Askin had referred to the protestors as the ‘great unwashed’[25] and had publicly urged the judiciary to ‘make an example’ out of those he perceived to be his political enemies.[26] Similarly, in the parliamentary debates, courts were encouraged to impose the maximum punishment on the ‘gangs of hoodlums’[27] allegedly marauding the streets. Those opposed to the introduction of the offence, warned that the failure to define the term ‘offensive’ was deliberate in order to give ‘the widest possible latitude of discretion’ to police and magistrates.[28]
There was, however, a short-lived interlude in 1979 where the Wran Labour government attempted to reform public order policing on ‘a rational and humane basis.’[29] Legislative changes included a statutory requirement for the arresting officer ‘to cast his mind to all the surrounding circumstances’ and required proof of ‘serious affront or alarm’ as a basis of liability.[30] Responding to the perceived loss of their authority as a result of the reforms, the Police Association ran a full-fledged fear campaign against these measures. They claimed in full page print advertisements that people could ‘still walk on the streets of New South Wales’, but police could ‘no longer guarantee...safety from harassment.’[31]
These law-and-order anxieties led to electoral defeat for the Wran government, and ultimately the reintroduction of the 1970 version of the offence in the Summary Offences Act 1988 (NSW). In the second reading speech, Attorney-General Dowd argued that the term ‘offensive’ was one with which ‘members of the public are familiar.’[32] This assertion rested on the powerful assumption that the community standards separating criminally ‘offensive’ behaviour from merely improper conduct were obvious to everyone, and therefore did not require a statutory definition. I will demonstrate in this thesis, that this assumption is the source, both for the offence’s fundamental ambiguity, and the wide discretion it confers on the police.
In order to rise to the standard of criminal behaviour, language must be calculated to ‘wound the feelings, arouse anger or disgust in a reasonable mind.’[33] From the limited case law available, it is evident that in using this test, judges often come to different conclusions on the same set of facts. This is due to the difficulty of narrowing down an objective community standard to fit a particular factual context. Methven has demonstrated that judicial thinking in this area of the law is frequently guided by a set of language ideologies rooted in folk wisdom about the supposed harm caused by specific four-letter words to the amenity of public space.[34] However, she noted that research in this area was impeded by significant ‘gaps’ in judicial reasoning. She notes that judges have often ‘bypassed’ the need to explain precisely ‘why or how a person’s language’ was ‘criminally offensive in a particular context’[35] by simply stating that it breached a set of ‘unarticulated community standards.’[36]
In the first half of my thesis (parts III and IV), I use the anthropological concept of ‘common sense’ as a theoretical framework to analyse the gaps in reasoning affecting the judicial assessment of the reasonable person. According to Geertz, ‘common sense’ is a cultural system which presents its standards of judgment in ‘the maddening air of simple wisdom.’[37] By asserting the self-evidence of its normative positions, ‘common sense’ perpetuates the ‘hegemonic’ cultural influence of dominant social classes.[38] Moreover, in denying its own biases, it renders its claims almost impossible to challenge. I argue that certain assumptions about the reasonable person, as well as the ideal use of language in public spaces, have been asserted in higher court judgments so often, that some judges have simply assumed that they no longer need to explain their judicial reasoning with respect to offensiveness.
In applying this framework to the context of higher and appellate court jurisdictions, I remain fully aware that the majority of offensive language cases are charged and penalised at the lower levels of the criminal process in the form of CINs and on-the-spot fines.[39] However, being superior courts of record, it is in these jurisdictions that offensive language charges are adjudicated at the highest level of seriousness within criminal law, and it is here that binding precedents can emerge. I will demonstrate that even with this advantage, higher court judges (through their use of ‘common sense’ rhetoric) have furthered rather than clarified the ambiguity surrounding the offence.
In the second half of my thesis (part V), I focus on how ‘common sense’ constructions of the ideal use of public space are deployed as an instrument of police discretion. Using the case study of Danny Lim’s 2019 arrest in Barangaroo, I investigate how police officers use the legal ambiguity of ‘offensiveness’, and their own wide discretion as the primary decision-makers, to tackle perceived challenges to their authority in public spaces. In using and transcribing the police body-camera footage into two dialogue sections, I have attempted to make an original contribution to the literature in this area. Through the transcript I also present a rare case where the community’s ‘common sense’ perceptions of ‘offensiveness’ were in open confrontation with the police interpretation of the facts.
This section introduces the legal elements of the offensive language provision. In laying out the law as it currently stands, I intend to identify the aspects which I will analyse for their perpetuation of ‘common sense’ constructions of ‘offensiveness’ and public spaces.
The current version of the offensive language crime in NSW provides that it is a crime to use offensive language ‘near, or within hearing from a public place or a school.’[40] The offence carries a maximum penalty of 6 penalty units or $660.[41]
While in other Australian jurisdictions, similar legislation specifically identifies the kinds of language that are in contemplation for the offence (such as ‘obscene, abusive, or insulting language’ in the Queensland version),[42] the NSW provision’s use of the sole adjective ‘offensive’ is the broadest characterisation of prohibited language by far.[43]
Quilter and McNamara have persuasively argued that since ‘offensiveness’ is an ‘integral’ circumstance of the offensive language crime - that is, per Brennan J, a circumstance without which the relevant act could not be described as ‘truly criminal’[44]- the offence should require proof of intention.[45]
However, with the exception of some recent lower court cases which have considered the issue,[46] no higher court has conclusively addressed the requirement of mens rea for offensive language in NSW. Therefore, in practice, the determination of criminal liability proceeds on the basis of the reasonable person test (described below) regardless of whether the defendant intended to cause offence or not.
The leading statement on ‘offensiveness’ comes from the 1951 case of Worcester v Smith, where the defendant was involved in an anti-war protest, carrying a sign opposing the Korean War with the words ‘Stop Yank Intervention!.’ O’Bryan J dismissed the charges, holding that conduct or language, to be criminally offensive, must be such as ‘is calculated to wound the feelings, arouse anger or resentment or disgust or outrage in the mind of a reasonable person’.[47]
The test was later applied in the case of Ball v McIntyre, where the defendant had expressed a similar anti-war sentiment by climbing on to a statue of King George V, hanging a placard saying ‘I will not fight in Vietnam!’. Kerr J held that conduct may be ‘a breach of the rules of courtesy or run contrary to commonly accepted social rules, may well be ill-advised, hurtful, not proper conduct’ and still not be criminally ‘offensive’ under the section.[48]
While these characterisations may seem to protect political speech which runs against popular social or political beliefs, it still does not clearly delimit the exercise of judicial discretion.[49]
The question of location is an essential component of the offensive language offence. In fact, certain words fall within the purview of this offence precisely because they were said ‘near, or within hearing from’ a public place or school.
The Summary Offences Act 1988 (NSW) defines a public place as one ‘that is open to the public, or is used by the public’ - whether or not entry is restricted by ticketing, and whether or not it is ‘ordinarily’ open to the public.[50]
In the case of Stutsel v Reid, Loveday J concluded that the provision was ‘concerned with...language that might affect someone in a public place or who might contemplate using the public place.’[51] Therefore, it was not necessary for the prosecution to prove that a member of the public was actually insulted.
In my thesis, I argue that the removal of the requirement to prove actual offence to a member of the public had the effect of widening police discretion. Elsewhere I also consider how the rule in Stutsel v Reid alters the assessment of context by allowing the insertion of the hypothetical reasonable person in places where no actual member of the public was present.
A person charged with offensive language may be able to use the defence of ‘reasonable excuse.’[52] The defence has been held to have both ‘subjective and objective considerations’,[53] but in order to successfully raise it, the defendant must prove on the balance of probabilities, that these considerations were ‘related to the immediately prevailing circumstances’[54] in which the language was used. However, I argue, through my case study of Conners v Craigie, that higher court judges have constructed this element with extreme partiality as to defendants’ socio-cultural context, by replacing it with the rhetoric of ‘common sense.’
In this section, I will set up the notion of ‘common sense’ as the theoretical framework I will use to evaluate the construction of ‘offensiveness’ in this thesis. I have chosen this framework for its capacity to identify and challenge the unspoken assumptions that may conceal ‘hegemonic’[55] narratives guiding judicial reasoning and police discretion regarding offensive language crime.
I focus on how ‘common sense’ ideas about the nature of criminal acts attain the status of ‘givens’ through ‘constant repetition’ in criminal justice discourse,[56] and often have the effect of curbing the law’s engagement with ‘other, more systematic bodies of knowledge.’[57] The ultimate result is that ‘common sense’ reasoning creates a body of rules that, instead of being backed up by informed, rational inquiry, are enforced through their own authority alone.[58]
Due to the number of unverified assumptions it invokes, the offensive language provision provides an ideal opportunity to question the above state of affairs. Relevantly, the provision identifies a number of emotional reactions which it is prohibited to arouse in the mind of a reasonable person in a public space, among them anger, outrage, and disgust.[59] The underlying assumption is that these reactions are capable of objective observation and the link between the legislation and its intended effect of sanitizing public spaces from unwelcome emotional reactions should therefore be obvious.
I want to argue that a lack of objectivity infects the observance of anger, and the related reaction of outrage - an aspect of the offensive language provision which have received very little critical attention. Disgust, for instance, has already received a great amount of scholarly focus as a historical justification for legislating against particular sexual acts and identities. Nussbaum has argued, for instance, in relation to private consensual homosexual acts, that there was a ‘politics of disgust’ guiding the law’s assumption that these activities were inherently (and objectively) capable of offending the moral sensibilities of the ‘average man.’[60] I want to illustrate that the offensive language provision similarly assumes a normative position in relation to the objective observability (and therefore the desirability) of speech-acts which may provoke or arouse anger, or outrage in the mind of a reasonable person. Further, it does so without a legitimate psychological or scientific basis.
The central assumption in the offensive language provision with respect to anger, is that it is possible to narrow down a ‘discrete external cause’[61] for the expression of anger in any given circumstance. Psychological studies show that those who experience anger frequently account for it in terms of ‘what has happened to them.’[62] However, as a result of anger, this intuition is rooted in a state of mind affected by ‘loss of self-monitoring capacity and objective observability’, making it difficult to correctly identify a single cause for the emotional response.[63] How much simpler then would it be for the reasonable person in law to draw a direct causal link between words and anger, when the person actually experiencing it can not? Evidently, pending admission of expert evidence on the psychology of anger, this is not such a simple inquiry anymore - and yet, as I will demonstrate, higher court judges often deal with questions of this nature in a single sentence.
The above example illustrates an abiding aspect of the judicial treatment of offensive language charges. Despite the existence of vast bodies of knowledge which may inform an empirical assessment of the reasonable person standard, judges often rely on their own understandings of public standards and sensibilities when using this test.[64] This is assumed to be part of their role as ‘primary definers’ who set the parameters of criminal justice discourse.[65] Therefore, the determination of ‘offensiveness’ is usually guided by the doctrine of judicial notice. This is the idea that as an exception to the general rule that facts must be proven through evidence, judges can rely on ‘common knowledge’ when the issue in question is judged to be ‘reasonably’ indisputable.[66] Thus, the community standards that may be used to judge the hypothetical ‘offensiveness’ of language,[67] have been held to be a subject on which ‘evidence is neither needed nor permitted.’[68] As a result, judges have allowed themselves to ‘masquerade as linguists,’[69] theorising upon the social harm of words, and straying freely into subjects clearly beyond their expertise.[70]
In every society, says anthropologist Clifford Geertz, there appears to be a distinct system of knowledge whose ‘tenets’ are presented as ‘immediate deliverances of experience’ as opposed to ‘deliberated reflections’ upon it.[71] As an interpretation of reality, ‘common sense’ represents it in the ‘maddening air of simple wisdom.’[72] Therefore, scholars have concluded that when an idea is invoked in the language of common sense, it becomes virtually impossible to challenge.[73] Furthermore, because common sense assumes that ‘the really important facts of life lie scattered openly along its surface, not cunningly secreted in its depths,’[74] it removes the need to rely on the opinions of experts who have questioned or tested the empirical bases of these ‘facts’ and found them wanting.[75]
This rhetoric’s inherent tautology can be resisted by asking whether ‘common sense’ is truly ‘common’ to all social classes? Take for instance, during parliamentary debates, the Liberal government’s formulation of ‘the right to enjoy public places and public facilities without harassment or interference,[76] presuming an obvious (and predefined) use of public spaces, where this right can be exercised. The formulation ignores the view that spaces are not simply present as ‘stand-alone socially neutral entities,’ but are rather created through specific practises by the people who use them.[77] Further it disguises the fundamental disagreements between traditionally working-class, as opposed to a middle-class conception of, the uses of the street as a ‘multi-functional social space.’[78] From the former point of view, activities such as graffiti are a valid, creative use of public space, whereas in the latter perspective they would be viewed as an ‘interference’ with its amenity.
Is it then possible to mediate between two class-contingent versions of ‘common sense’, or does one dominate the other? This is where Gramsci’s seminal scholarship on senso communo comes into play. In his view, ‘its most fundamental characteristic’ is that, ‘common sense’, ‘even in the brain of one individual’ is ‘fragmentary, incoherent and [inconsistent], in conformity with the social and cultural position of those masses whose philosophy it is.’[79] This does not mean that genuine insight cannot emerge from adopting a common sense point of view, but that because it is so ambiguous and contradictory as a body of knowledge, it cannot be relied upon for a ‘confirmation of truth.’[80]Implicit in this analysis is the argument that totalising narratives such as common sense, often deliberately deny the influence of the structures of social inequality from which they emerge.[81] Indeed it is precisely through this denial and repetition of their own version of common sense ‘truths’ that the vantage point of the ruling classes comes to dominate the field of discourse.[82] Gramsci describes this process as hegemony: a form of social agreement where those agreeing - usually the lower orders of society - do not know the precise content of what they have agreed to,[83] but nonetheless accept ‘common sense’ social assumptions as ‘a fixed and unchangeable reality it would be futile to oppose.’[84]
Through the hegemony described above emerge judicial statements which convert the ‘common sense’ expectation of ‘protecting the sensibilities of the average member of the community’ into a positive legal duty to ensure that one’s conduct ‘does not offend or constitute a possible cause of disruption.’[85] Such statements reflect Geertz’ description of ‘common sense’ as a practise of perceiving reality through more than just using one’s ‘eyes and ears’, but using them ‘judiciously, intelligently, perceptively’[86] with respect to one’s social environment and its assumed expectations.
The above scenario is most clearly demonstrated by the South Australian case of Pfeifer, in which a young man walked into a shopping mall wearing a T-shirt emblazoned with a picture (of the band members) which read ‘Dead Kennedys – Too Drunk to Fuck.’[87] The shirt was a birthday gift from his mother, and he was not aware of, or expecting any ‘adverse reaction’ to it.[88] Regardless, Doyle CJ (with Debelle and Lander JJ agreeing) in considering the requirement of mens rea for the offence, decided that it did not matter that the young man did not intend to cause offence - he was nonetheless responsible for offensive conduct because his Honour had viewed the offence as one of strict liability.
This was because, in his Honour’s opinion, the parliamentary consensus on accounting for ‘the wishes and sensibilities of society’ was taken to be as obvious as the rule for driving on the left side of the road - both being necessary for the functioning of society.[89] Notably, His Honour’s analysis ignores the fact that the consensus on acceptable standards of public behaviour is a debate which shifts its parameters much more often than the opinion on which side of the road to drive on. For instance, in a prior judgment by the same court, it had by then been accepted that ‘language, like money loses value’ which explained why the word ‘fuck’ on its own was not offensive anymore.[90]
Regardless, his Honour concluded that the defendant’s conduct constituted criminal behaviour, without ever explaining precisely how wearing a T-shirt with the word ‘fuck’ could so deeply offend ‘society’ that ‘it could not function.’[91] The implication here was that Pfiefer’s real crime was non-conformity with the class-contingent standards of behavior that His Honour assumed ‘most people in Australian society’ were expected to know.[92] Where someone in Pfeifer’s place would probably not think twice about wearing a shirt a Dead Kennedy’s shirt referencing the particular song-lyrics on the facts to, say a house party, they were now expected to be vigilant against causing ‘offence’ if they wore it in certain public places.
As such, the strategic ambiguity about the ‘wishes and sensibilities of society’ recast ‘offensiveness’ as being open to ad-hoc determination. It is precisely this fear of criminalisation in circumstances of uncertainty that lies at the heart of ‘common sense’ hegemony, encouraged and created by higher courts’ treatment of offensive language charges (explored below).
In this section, I will consider the judicial determination of criminal liability for offensive language in cases appealed to the higher courts. Specifically, I am interested in unpacking the ambiguous application of the reasonable person test, and how it fails to sufficiently inform the public of what words constitute offensive language in what circumstances. In doing so, I hope to demonstrate that underlying this ambiguity is the frequent use of ‘common sense’ rhetoric to analyse the capacity of language to endanger the amenity of public spaces.
One of the major controversies in the parliamentary debates over the Summary Offences Act 1988 (NSW) was that it did not provide a statutory definition of the term ‘offensive.’[93] This aspect, was heavily criticised for giving the state ‘the widest possible latitude of discretion’[94] with respect to offensive language. While it is well-established that ‘offensiveness’ is to be judged from the perspective of the reasonable person,[95] judges have frequently attributed contradictory characteristics to this legal fiction, often personifying them through ‘common sense’ assumptions as to their identity and worldview. I will argue that this counts as a fundamental analytical error.[96]
Furthermore, I investigate the impact of the reasonable person being used as a proxy for the physical presence of a member of the community, especially in cases where no one was present, or capable, of hearing the impugned speech act in the immediate vicinity.[97] I argue that this requirement fundamentally alters the consideration of context, including any mitigating factors that might operate in favour of the accused. More generally, I demonstrate that the lack of a legal requirement to prove actual harm operates to allow judges to ignore context, or construct it through ‘common sense’ rhetoric, thereby obscuring the complexities of the lived reality in which it occurred.
In Victorian times, words referencing bodily actions held an immense and dramatic capacity to cause offence.[98] Taking the place of oaths, and ‘adopting’ their ‘ability to signify the truth of a statement,’ these words began to be used solely for their emotive force.[99] Today, these same words - ‘fuck’ or ‘cunt’ - barely raise an eyebrow in most social circumstances.[100] However, these words are still the most frequently criminalised,[101] especially when directed to, or used in the presence of police officers.[102]
A major contributor to this reality is the fact that the reasonable person test removed the need for evidence from bystanders and observers to be factored into the conviction, even though it was admitted that it may be difficult to secure one without it.[103] In doing so, it had the effect of extending the criminalisation of ordinary speech, especially for cases involving members of the Aboriginal community, for whom the same stigma is not attached to swearing as is assumed to be the case in mainstream Western societies.[104] This is despite the fact that the test was meant, ostensibly, to work in favour of the accused - for instance by excluding the evidence of the pathologically sensitive busybody, or even a police officer who acted on a perceived insult to his authority.[105] I will argue that rather than addressing the potential misapplication of the latitude provided by the reasonable person test, higher court judges have muddled its elements.
The reasonable person, who has been variously described in law as the ‘man on the Clapham omnibus’[106] or ‘the man on the Bondi tram’[107] is intended as a proxy for the ordinary people on the street. As such, the reasonable person is often strongly associated with aspects of ‘common sense factual assumptions’ about community standards.[108] Ideally, their function is to act as ‘a site for debate over majoritarian norms,’[109] but in practice, as I will show, they are simply used as a vehicle for judicial discretion.
In visualising the ‘man on the Clapham omnibus’, one is tempted to think of them as an actual person, rather than an abstraction. This is considered to be a grave analytical mistake,[110] one which can easily lead the interlocutor to supply him with ‘characteristics’, default or otherwise. This tendency has been heavily criticised on the basis that it sets an unrealistically high standard, capable of unequal application.[111] For instance, Mayo Moran has argued, that over time, the reasonable person standard had acquired a gendered standard of objectivity, reflecting inequality in its application. In her argument, this led to a situation where, in cases involving intentional torts committed by children, boys were ‘often exonerated in situations that they knew to be dangerous on the basis that they reasonably yielded to temptation’, whereas similar claims from girls were ‘routinely rejected even when the girl’s behaviour’ was not ‘nearly as dangerous as that of her male counterpart.’[112]
This view of the reasonable person has been contested in scholarship on the grounds that it misunderstands the test. Following Baron and Nourse,[113] the legal fiction’s task is not to set any particular standard of justification, but simply a standard of justification. In this sense, they do not stand for any specific system of values, but rather are a neutral space within which a decision-maker may decide how a community standard translates to a given set of facts.
This distinction is crucial: since criminal activity is already regarded as ‘anomalous’ by nature,[114] any inquiry into the reasonable person’s disposition as an arbiter of liability risks inaccuracy due to the tendency to take the ‘law-abiding as the baseline.’[115] For instance, in parliamentary debate, the act of using words in public which may cause offence was characterised a priori as the practise of ‘hoodlums.’[116] In fact, as Cunneen has observed, the ideological practise of separating the ‘public individual’ from the ‘hoodlum’, who is by definition outside the ‘public consensus’ on community, is firmly entrenched in public order law.[117]
How then could a standard emerge from this position which could neutrally differentiate between language which was merely ‘hurtful, or improper, or blameworthy’ but not ‘offensive’ within the meaning of the provision?[118] This question is significant since the evidence relevant to a charge concerning an impugned speech-act usually reaches the court through the lens of the police who intercepted it. In this sense, a primary judgment on the words’ potential criminality has already been made.
Regrettably, in the higher courts of NSW, judges have been very inattentive to the risks described above, freely attributing certain characteristics to the reasonable person:
a. For Kerr J, the reasonable person is ‘reasonably tolerant’ and ‘reasonably contemporary’ in his reactions;[119]
b. For the trial judge in Evans v Frances, they are not so ‘thin-skinned’ as to be offended easily;[120]
c. For Lusher AJ, however, they have some ‘sensitivity to social expectations in...public places;[121]
d. For Sully J, they are ‘neither a social anarchist nor a social cynic, whose view of changes in social standards is that they are all in one direction—the direction of irresponsible self-indulgence, laxity and permissiveness.’[122]
What becomes immediately evident is that there are fundamental contradictions between these versions of the test. On one hand, there is an aspect of permissiveness and tolerance, and on the other, there is clear conservativism regarding social expectations. These are not mere flights of fancy, either, because they correspond closely to the conviction or dismissal of charges, as I will show through my analysis of Evans v Frances below. At the core of these bipolar characterisations is the use of the ‘rhetoric of common sense’ to personify the reasonable person. Consider Kerr J’s phrasing: ‘I recognise that different minds may well come to different conclusions as to the reaction of the reasonable man...but for my part, I believe that the so called reasonable man is reasonably tolerant and understanding.’[123] Or, Lusher A-J’s version: ‘The reasonable man is not... so thin-skinned. He has some sensitivity, I should have thought, to social behaviour, social expectations.’[124]
In both cases, their Honours have used the present indefinite tense to apply the test. This syntax is normally used to suggest actions which occur regularly or timelessly:[125] for example, the sun rises in the east, and sets in the west. I use this example deliberately to emphasis the certainty this sentence structure can be used to indicate. The language of ‘common sense’ shares this quality because it is also used to make statements that are their own proof.[126] In using this rhetoric to personify the reasonable person, their Honours naturalise certain instincts for them. These instincts - tolerance, sensitivity, or opposition to ‘self-indulgence’ - once identified, are not proven or investigated. Even though they are expressed through the lens of personal opinion - ‘in my belief’, ‘I should have thought’ - which would predict some form of reasoning to back them up, the language of ‘common sense’ removes the need for logic. The characteristics are consequently turned into vehicles of judicial discretion, such that the reasonable person’s views and values may freely mirror the judges’ own.
Above, I have identified the risks of using the reasonable person in an anthropomorphised form. In this section, I note that these risks are aggravated as higher courts receive a description of the facts surrounding an offensive language charge filtered first through the lens of police discretion,[127] and secondly through the appealed findings of the trial judge. In this process, as I shall demonstrate, details can get lost in translation. Furthermore, in the limited case law available, higher court and appeal judges and magistrates have often reached disparate conclusions on the same facts.[128] I will argue that these differences of opinion often simply come down to the judicial construction of context.
From the perspective of fairness to the accused, context is crucial also because in applying a normative judgment, it ‘individualises’[129] the inquiry by taking into consideration the specific factual circumstances. These may include factors that may work in the accused’s favour: for instance, whether the time and location of the offence made the observation of impugned conduct or language a remote possibility. In doing so, where the reasonable person test ‘releases’ the majoritarian standard as to acceptable speech in public spaces, context ‘restrains’ this judgment by requiring attention to the individual circumstances of the accused’s behaviour.[130] In the higher courts of NSW, this principle is jettisoned for common sense statements, where judges often fail to draw out the context sufficiently, or sometimes fail to engage with it at all.
This case concerned an appeal where the defendant, having lost her keys in a club, had approached police officers for help. There she uttered the following words to them outside a strip club in King’s Cross:
‘(1) ‘You pricks, I want my fucking keys!’
(2) ‘I lost them in a club down the road and those cunts won’t let me in.’
(3) ‘You fucking useless cunt.’[132]
Recalling the context of these statements, the police gave evidence that the defendant ‘did not smell of liquor’ but nonetheless ‘seemed to be on something.’ The Local Court magistrate accepted these statements and ruled that this scenario ‘to some extent dilated the gravity of the words used.’[133] As vital as it was to the context in this case, this ambiguous remark was largely lost in translation when the case was appealed to the Supreme Court.
One possible construction of the remark is that the magistrate had noted the fact that the defendant was probably affected by drugs at the relevant time, and that her consequent agitation may have exaggerated the impact of the words for the police officers. In taking it as part of her particular context, the reasonable person could be expected to understand that the defendant was under the influence and would not be ‘so thin-skinned’ as to be offended by her speech as a consequence.[134]
In the Supreme Court, Lusher AJ simply expressed his confusion as to the magistrate’s finding and moved on without engaging with this aspect of the context at all. Instead, he relied on the judgment in Thonerry v Humphries which concerned similar language, also addressed to a police officer.[135] In that judgment, His Honour had concluded that ‘the words themselves are quite unacceptable in any civilised circumstance...[they] do not require any further explanation...in themselves can only be described as offensive.’[136] Note how explicitly the logic of ‘common sense’ has been exerted to exclude any possibility or need for a deeper inquiry into context. This was exactly the effect Lusher AJ accomplished as well: contrary to the trial judge, His Honour held that the reasonable person had ‘some sensitivity to social expectations.’[137] He found the defendant guilty on the self-evidence of this statement alone.
To summarise how problematic this is, consider that earlier judges had trouble distilling the precise community standard pertaining to a location such as Kings Cross. Since this was a suburb known for its night time economy, including activities such as prostitution and solicitation, Yeldham J had expressed his unease about adopting an objective standard which could possibly be out of touch with the standard of social expectations in that particular context:
Is the objective test to be supplied in determining how ‘reasonable persons’ may react that which envisages the standards of prostitutes, of dedicated church-goers, or young people or of old, or of visitors to the area or of residents of Kings Cross?[138]
Therefore, an objective assessment of ‘offensiveness’ through community standards is not an easy one, absent context. However, as we have seen, the rhetoric of ‘common sense’ makes it seem so, and by using it higher court judges have exacerbated the ambiguity surrounding the provision itself.
It is one thing to say that the reasonable person provides a way for community standards to determine the ‘offensiveness’ of conduct. It is another to say that he is intended to be a literal personification of the community, to be inserted into situations where no one apart from the prosecuting police members observed the impugned conduct or language. While the latter position is supported by case law,[140] I argue that the embodiment of the standard fundamentally alters the assessment of context.
This issue was engaged in the case of Beck.[141] This case involved an off-duty police officer who was charged with behaving in an offensive manner. The charges were later dropped, but he was demoted from his position within the police force. He therefore instituted civil proceedings for malicious prosecution where the question of ‘offensiveness’ was considered in detail. While this case does not engage offensive language directly, the same legal reasoning applies here as in its sister-provision.[142]
It was alleged that after a night of drinking with his friends, Mr. Beck had turned into a corner off Oxford Street into Pelican Street, and stepping off the footpath, with his lower body concealed from view behind a parked car, urinated into the gutter.[143] He was either in the middle of this act, or just finishing, when he was noticed by a police car. There was controversy as to whether the police officers were able to see his penis or not. However, in the Supreme Court, Adam J accepted that Mr. Beck had looked around to ensure that no one could see him, that it was dark and late into the night (3:00am) at the time, and there were no cars or people in the street except the policemen.[144]
Adams J recognised the tests from Stutsel v Reid, holding that it was not necessary to prove that a reasonable person had actually been offended, but rather sufficient that the behaviour ‘occurred in a place where the presence of members of the public might reasonably have been expected, and in circumstances where such behaviour could be seen by any member of the public...if he had been looking.’[145] In applying this test, however, he concluded that ‘there was no person at all in the vicinity who was capable of seeing what the plaintiff was doing’ and therefore concluded that the offence would not have been out had charges been maintained.
The Court of Appeal held that while his Honour had stated the test correctly, he had failed to apply it.[146] It was concluded that His Honour had ‘incorrectly focused on whether there was anyone physically present in the street at the time.’[147] Further, it was held that regardless of whether Mr. Beck had attempted to conceal his penis or not, it was the act of urination in the street itself which was the cause of offence.[148] Nothing further was said in respect of the context.
I will argue that in holding the above reasoning, the Court of Appeal ignored an alternative interpretation of the Adam J’s remarks, available only if the factual context was explored further. Adam J’s precise words were that no one was ‘present in the vicinity who was capable of seeing’ Mr. Beck’s conduct on account of darkness, and the fact that his lower torso was concealed from view by a car. The point was that even if a reasonable person was present, he would (likely) not be able to observe Mr. Beck’s act of urination. This is similar to the facts in Inglis v Fish, where the plaintiff carried out an offensive act (looking through a small hole in the wall to the women’s toilet) within the locked cubicle of a public restroom.[149] In that case, Pape J noted that the defendant’s conduct could only be seen by someone crouching under the door and looking up. Therefore, it did not matter that he was in a public place - if his conduct could not be seen, he could not be convicted.[150]
Even if the alternative interpretation described above is unconvincing to some, it is still nonetheless true that the Court of Appeal determined ‘offensiveness’, like the court in Evans v Frances, simply from the nature of the act (or language). In doing so, it eschewed the need for further analysis of context. Namely, it refused to consider whether it would change the reasonable person’s analysis of the act, if he knew the following factual detais: that Mr. Beck had attempted, arguably with some success, to conceal his conduct from public view, and that factual circumstance of darkness also affirmed his efforts in this respect.
Finally, and most crucially, even though the legal test in Stutsel v Reid may require the trial judge to insert the reasonable person’s physical embodiment in cases where no one apart from a police officer was capable of seeing the relevant conduct or hearing the language, it should not (in principle) affect the assessment of the context as it did in this case.
This case involved the question of whether a young Aboriginal person accused of swearing at police in the heavily-policed suburb of Redfern could avail himself of the defence of having a ‘reasonable excuse.’ The magistrate held that he did, and that therefore, Craigie had no case to answer for repeatedly saying to the officers: ‘Fuck off all you white cunts. We’ve had enough of you. We’d like to see you all dead.’[151] Relevantly, the defendant was intoxicated, had recently watched a documentary on the Wilcannia riots, and was consequently enraged at the state-sponsored oppression of Aboriginal people at the time. However, the magistrate’s findings were appealed. Below, I will reproduce both these and the higher court judge’s constructions of the factual context.
According to the magistrate, a reasonable person would recognise, among other factors, that the offence took place in the suburb of Redfern, which had a high Aboriginal population; that the history of Aboriginal dispossession and their ‘frequent mistreatment’ at the hands of white settlers was ‘widely-accepted’; that the defendant’s resentment of this dispossession could be assumed from his membership of the Aboriginal community; that his language was directed at ‘non-Aboriginal persons’. In view of all these factors, the trial judge concluded that the ‘reasonably tolerant’ person would take the language as being directed at the officer as ‘representatives of a class’ (non-Aboriginal people) and not them as general members of the public.[152]
In contrast, the higher court judge held that while the defence held both ‘subjective and objective considerations’, a connection was required with ‘immediately prevailing circumstances’ for factors such as defendant’s antecedents or prior experiences to be engaged.[153] In this case, His Honour held that there were no such factors. The only material circumstances where ‘three non-Aboriginal persons (including two uniformed police officers)’ conversing with each other in a place where, regardless of the area’s high Aboriginal population, they were ‘entitled to be.’[154] In this reading, the defendant’s verbal attack was entirely unprovoked and therefore deserved criminal censure under the law.
The first major difference between both constructions is that the second one consciously de-emphasizes the racial tensions within the context. For instance, even as it insists that ‘immediately prevailing circumstances’ must be taken into account, it erases the event that triggered the defendant’s conduct in the first place: the fact that he had seen a documentary on black deaths in custody. The Royal Commission into Aboriginal Deaths in Custody had only recently concluded that the number of avoidable deaths in police custody was closely related to the ‘many’ glaring failures of the state to exercise ‘proper care.’[155] Jenny Brockie’s documentary of the same year as the offence (Cop it Sweet!) had revealed the heavy, widespread, and selective policing of Aboriginal people, especially in Redfern.[156] Only later that year, Prime Minister Paul Keating was to ‘recognise’ in the very same suburb, that ‘it was we [non-Aboriginal people] who did the dispossessing...practised discrimination and exclusion.’[157]
However, from the higher court’s construction of context, all of these vital aspects pertaining to historical and immediate context were removed from consideration. Instead, Dunford J emphasised the ‘right’ of the non-Aboriginal ‘victims’ to occupy space in the suburb - a right that was frequently denied to the local Aboriginal population through discriminatory police practises.[158] In the next section, I explore some of the ways in which the exercise of police discretion has instrumentalised the use of offensive language charges as a ‘street-sweeping’ police power to remove ‘undesirable’ individuals from public places.
In this section I consider the enforcement of offensive language in its most frequent form: as a challenge to police authority. Using Danny Lim’s 2019 arrest as a case study, I will reveal how police officers implicitly deploy their own ‘common sense’ constructions of protecting the amenity of public spaces in the form of a ‘street-sweeping’ police power.[159]
I will demonstrate the ways in which police utilise (1) the ambiguity of ‘offensiveness’ as a legal category, and (2) their own wide discretion as the primary decision-makers in this respect, to impose a hegemony anchored in their authority as agents of the state. I also hope to investigate the rare occasion, presented by the case study, where the community’s ‘common sense’ perceptions of ‘offensiveness’ clashed directly with the police interpretation of the facts, thereby de-stabilising said hegemony.
In analysing Lim’s experience, I remain fully aware that he was charged not with offensive language, but rather offensive conduct. The latter provision excludes the ‘mere’ use of ‘offensive language’ as a basis of liability under it.[160] However, Lim’s ‘unnecessary’[161] and ‘heavy handed’[162] arrest for using the word ‘cunt’ on a sign remains crucial to the prohibition of swear words in public places. I have used the body-worn camera footage, available in the public domain, and transcribed the relevant parts of the footage into two dialogue sections.
Finally, I will consider the fact that Lim was later cleared of all charges in Local Court, where the magistrate concluded that his sign was not offensive.’[163] I discuss this ruling with reference to the fundamental unfairness with which Lim was treated, despite not being guilty of an offence.
In my thesis, I have spoken about the hegemonic influence of ‘common sense’ narratives on the field of criminal justice discourse. I have demonstrated that certain assumptions about the ideal use of public space are uncritically repeated by ‘primary definers’[164]: that certain words (such as ‘cunt’) are ‘unacceptable in any civilised circumstance’,[165] or that certain acts (such as urination) are offensive, regardless of the context in which they occur.[166] Through these assumptions, the state arrogates the right to assert a system of ‘absolute morality’,[167] on behalf of the body-politic.
In this case study, I will explore how police officers instrumentalise this moral order by symbolically presenting as its primary defenders.[168] This often entails the use of ‘common sense’ rhetoric to cast swearing (or any other perceived verbal challenge) to police officers in a public place, as an actionable and egregious form of ‘offensiveness.’ In doing so, police officers often implicitly reframe threats to their authority, as threats to the social order itself.
This brings me to my main motivation for focusing on Danny Lim. Here was a public figure whose arrest generated an intense public reaction, not just from those at the scene, but also in print, television, and online media.[169] Most arrests for offensive language do not ever get this kind of attention, but this rare occurrence rendered a largely obscure process - that of police discretion - highly visible. The root of the ensuing public outrage, as I explore in the case study, is the clear contradiction between the police officers’ implicit construction of ‘offensiveness’, and the community’s perception of actually offensive conduct.
Analysing the police’s perspective requires an understanding of their ‘vast and largely unscrutinised discretion.’[170] Premised on a wider view of police powers than that defined in LEPRA,[171] discretion is the exercise of choice as to whether, and against whom, police will implement the law, and through what means: verbal cautions, on-the-spot fines, or even arrest. Police are not obligated to take any of the above steps, but they may.[172] Described as the ‘common sense theory of policing’, this is where all decisions taken by patrol officers i.e those working on the ground, are ‘situationally justified’[173] as opposed to being guided by a legal or policy handbook.
Therefore, when a police decision is made as to an act or a word’s ‘offensiveness’, it is assumed that the officer’s knowing eye is capable of determining the suspect’s actual guilt, notwithstanding the legal standards that must be satisfied to prove it.[174] This determination, therefore, need not be framed in terms of the ‘reasonable’ person’s perspective - it may simply be a perceived slight against police authority. Absent litigation, the distinction may never come to the fore as it did in Lim’s case: he was arrested for using a play on words (‘CVN’T’) two years after the District Court had already exonerated him on charges relating to the same, if not similar, facts. In view of the above analysis, I will attempt to illuminate, the public adjudication and challenging of the ‘common sense’ public order policing.
Danny Lim is a 75-year old social activist, known for his cheeky sandwich-board signs. Along with his trusty side-kick, a pomeranian named Smarty, Lim’s presence in various public spaces around the city of Sydney is well-known. In fact, he is regarded locally as an ‘icon.’[175] In 2017, Danny was standing on a busy intersection in Edgecliff, bearing a sign with the following words:
TONY YOU CVN’T
SCREW EDUCATION
HEALTH, JOBS &
THE ENVIRONMENT
CHILDREN’S CHILDREN’S
FUTURE
SMILE’[176]
For this he was charged with offensive conduct and given a $500 fine.[177] In Local Court, the Magistrate rejected his challenge to the fine, holding that ‘the reasonable person would have been offended by the sandwich board because the impugned word [‘cunt’] was used by reference to the Prime Minister.’[178]
On appeal to the District Court, Judge Scotting held that the Magistrate had fallen into error by failing to give reasons as to why the reasonable person would find the sign offensive, and ‘interpolated’ that she had decided the case solely on the basis of the impugned word itself.[179] It is important to recognise, as I have discussed in my analysis of higher court judgments, how rarely judges have considered this question.
While taking into account the word’s prevalent use in ‘everyday language’,[180] His Honour noted previous authorities determining that the word ‘cunt’ on its own was not ‘necessarily offensive.’[181] Further, His Honour concluded that it was possible to read the sign as political commentary: that such critique, even when it assumes the character of ‘personal denigration’, is nonetheless, an ‘essential and accepted part of any democracy.’[182] Finally, in noting the ‘inclusion of the apostrophe in the relevant position’, His Honour noted that it was possible to read the presentation as a play on words: can’t, instead of ‘cunt’, which reduced the sting of the impugned word. On this basis, Lim’s appeal against conviction was allowed.
Nearly two years after this judgment, on 11th January 2019, Danny was fined for offensive conduct again. This time he was outside David Jones in Barangaroo, carrying a sign which bore the words: ‘SMILE CVN’T, WHY CVN’T.’ He had been carrying this sign for a few days before (according to the police account) a complaint was received from a member of the public saying she was offended by the sign ‘as a woman.’[183] Below, I analyse the events of that day in two dialogue transcripts from the police body-worn camera footage
(A panoramic view of the location of Danny Lim’s arrest: photo by author)
At 9:21 am, Danny Lim is approached by three police officers, allegedly acting on a complaint about his sign. However, the nature of this complaint is never explicitly spelled out. The only clear instruction is in the imperative: ‘sign comes off now.’[184] Judging by his reaction, and presumably on the basis of his past experience, Lim seems to believe that the situation will simply be resolved with him receiving a ‘ticket’. He therefore complies with the direction and takes off the sign.[185] Things quickly take a turn as Lim is informed that his sign will be taken.
I argue that Lim’s real crime begins here, in his aggravated response to this police decision.[186] When he screams (repeatedly) that the police officers ‘cannot’ take his sign, it constitutes a direct, loud and very public challenge to their authority. From the police perspective, it is this response which necessitates arrest and justifies handcuffing, notwithstanding the ‘ignominy and fear’[187] these actions might entail for Lim.
In fact, the public spectacle of arrest might even be the point: for those watching, the consequences of challenging or interfering with police discretion are on full display as Lim screams with his neck in a chokehold, his arms being forced behind him from both sides, and two officers pushing him towards the ground.[188] In demonstrating the police’s ability to take such actions on the basis of apparent ‘offensiveness’, this scene affirms their role in public order without the need for enforcing such punitive measures against every individual.
Witness 2: What’s happening here?
Witness 3: What he did? (9 witnesses have gathered now)
Police 1: We’ll take care of his dog.
Witness 3: Yeah, but what he did?
Police 1: He’s been placed under arrest. What he’s done has got nothing to do with you at the moment. You can leave.
Witness 3: There’s everybody here. I wanna know what he did.
Police 1: Okay he’s been arrested for the fact that he has an offensive sign on [and] there have been complaints.
Witness 3: Offensive sign?
Witness 2: People laugh at that every day.
Police 1: (screams) I’m not here to argue, or ask for a committee vote. He’s been placed under arrest because he ... (stuttering)...resisted the police. He’s now under arrest.
Witness 3: No, that was not [an] offensive sign.
Witness 4: It’s not for his resisting arrest? Unbelievable!
Witness 2: That’s ridiculous. That’s disgusting.
Police 1: Just go away.
Witness 5: You should be ashamed, mate!
Witness 6: Can you please carry him [the dog]? He’s quite an old dog.
Witness 7: It’s not an offensive sign.
Witness 2: Can I come with him [the dog]?
Analysis:
Shortly after Lim has been removed from the scene, a crowd of witnesses gather to question the police about their decisions. Given the risk of being arrested and charged themselves for ‘hindering police in the execution of their duty’,[190] witnesses do not often usually interfere in this manner. Despite the police threatening a witness earlier on this basis in order to move them on from the scene, a crowd of witnesses persisting is a very surprising development. I argue that the inconsistency of police responses to the community members questions reveals that underlying the strategic ambivalence of their ‘common sense’ approach to Lim’s ‘offensiveness’ is their actual intention to deal with a perceived challenge to their authority.
The first response - that Lim’s actions had ‘nothing to do’ with the witnesses - seems ironic. Given that the legislative purpose is to protect the amenity of public spaces, the alleged conduct should (in principle) have everything to do with the people who ‘use or may use’[191] the space as these witnesses were. The irony is that in this factual context, the legal fiction of the reasonable person would operate to exclude the evidence of this police interaction with witnesses. This is a major weakness of the test. In principle, the reasonable person is intended to set a higher standard for criminalisation than the evidence of a pathologically sensitive complainant.[192] However, in simultaneously excluding the responses of actual members of the community at the scene of an offence, it dampens the moderating influence of public opinion while increasing the risk of police acting on subjective complaints, as they did in this case.
The witnesses, however, do not give up. Their persistence yields a second response: that Lim had to be arrested because he had an ‘offensive sign on’, a statement simply asserted, never explained. Perhaps, this is because it is assumed it needs no proof. Here, the narrative is challenged. The witnesses, who use the Barangaroo space regularly, perhaps on their way to work, or to shop, insist that the sign was not offensive because they ‘laugh’ at it ‘every day’; in fact, according to one witness, it is the police reaction which is ‘disgusting’ (an emotional response relevant to the legal test for ‘offensiveness’).[193] There is now little doubt that if Lim’s conduct did violate an expected standard of behaviour, it is certainly not the community standard in this factual context. However, since the officer’s insists that he is ‘not here to argue or ask for a committee vote’, he affirms the fact that police can decide de facto what standards of behaviour merit charges solely on the basis of their discretion.
Attempting to find a clearer justification, the officer stutters to come up with a third response: that Lim was arrested for ‘resisting the police.’ Curiously, this recontextualisation of events makes it seem as though Lim was guilty of ‘resisting the police’ all along, and that this, as opposed to the offensive sign, is the real reason he was being arrested and charged with an offence.
Police 1: We called an ambulance.
Police 2: ....
Police 1: Fucking pathetic...social justice bloody idiots! Yes, I’m saying that on the camera.
Police 3: That’s what I said.
Police 1: Nah, they all just social justice bloody idiots. (Mocking voice) ‘Oh my God, the Police are beasts!’
Police 3: Yeah yeah.
Police 1: Police brutality. It comes down to if he didn’t start carrying on the way he was carrying on he wouldn’t have been handcuffed anyway.
Analysis:
The final part of the footage illustrates one of the most abiding contradictions of offensive language and conduct enforcement. As countless authors and government organisations have revealed,[195] police officers often address the same swear words towards members of the public that they charge them for using. The last dialogue records one such instance.
(A panoramic view of the location of the last dialogue: photo by author)
As the officers wait for an ambulance to arrive for Lim, they make a number of inflammatory comments about the witnesses they have just encountered. These comments are made in the area shown above, which being a public street, is one which members of the public ‘might contemplate using.’[196] The officers refer to the witnesses as ‘social justice bloody idiots’ and mock them by attributing anti-police rhetoric to them. So deliberate are these comments that the police officer making them turns the camera up towards his face to record himself. A reasonable person passing in the street could very likely be ‘angered’ or ‘disgusted’ by these comments since they are addressed to the public by an officer of the state in uniform. They would also note that the context in which these comments were made was indignation, if not downright malice, in a situation where a higher standard of behaviour would be expected from a member of the professional police force.
There is little doubt that the police officer’s comments satisfy the legal test for offensive language. In doing so, they affirm the use of public order offences as a police power. This is the legal concept which confers exemption from criminal liability for police officers,[197] at the same time as it allows them to criminalise other’s speech or conduct. The officer’s indignation also supports my primary point in this thesis that police often instrumentalise ‘offensiveness’ as a charge to target perceived or actual challenges to their authority in public spaces.
It is a matter of great concern that after being publicly and painfully deprived of his liberty, Lim was ultimately cleared of all charges. Magistrate Milledge in the Local Court concluded that the reasonable person, as someone who ‘could ride out the crudities of life’ would find Lim’s sign ‘cheeky, but not offensive.’[198] Considering that community members on the scene had already made this point abundantly clear, the judgment appears to be too little and too late to account for the punishment Lim had already suffered. It appears from this case, that the gulf between the legal standards governing the assessment of ‘offensiveness’ (as ambiguous as they are) and the exercise of police discretion runs far too deep. If public order policing is allowed to proceed on the same basis, then significant rule of law issues, specifically concerning the uncertainty of prohibited conduct and speech in public places, will continue to arise.
In this thesis I have attempted to draw out the ambiguous nature of offensive language enforcement from the perspective of judicial examination, and the vagaries of police discretion. Applying the anthropological concept of ‘common sense’, I have offered an explanation of the judicial tendency to evade clear explanation of the causative link between a prohibited speech-act and the relevant emotional reaction (wounding the feelings, anger, resentment, disgust). In doing so, I have investigated the ‘gaps’ in judicial reasoning - the contradictory characterisation of the reasonable person, and incomplete engagement with factual context - as evidence of the fact that courts have furthered, rather than clarified, the uncertainty surrounding the legal concept of ‘offensiveness’ in public places. Further, I have shown how, benefitting from the lack of clear judicial instruction, and their own wide discretion, police officers have deployed their own ‘common sense’ constructions of ‘offensiveness’ to put down challenges to their authority in public places. Through an analysis of Danny Lim’s transcript of arrest in Barangaroo, I have demonstrated how the police enforcement of offensive language can take a violent turn, as well as how police interpretation of ‘offensive’ behaviour can come into direct confrontation with contemporary community standards. In considering the real risks of over-criminalisation from the current judicial and police approach, I have attempted to make an original contribution to the literature by focusing on recent events which have raised significant public controversy due to civil rights concerns about police brutality. Finally, in demonstrating the public outrage that can accompany a police response to (perceived challenges to their authority under the guise of) offensive language charges, I have also added my voice to the growing literature which argues that the offence no longer reflects the community’s views on public order.
BIBLIOGRAPHY
A Articles/Books/Reports
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Evans v Frances (Unreported, Supreme Court of New South Waes, 10 August 1990)
He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523
Inglis v Fish [1961] VicRp 97; [1961] VR 607
Jolly v The Queen [2009] NSWDC 212
McCormack v Langham (Unreported, Supreme Court of New South Wales, 5 September 1990)
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Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7
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Spence v Loguch (Unreported, Supreme Court of New South Wales, 12 November 1991)
State of NSW v Beck; Commissioner of NSW v Beck [2013] NSWCA 437
Stutsel v Reid (1990) 20 NSWLR 661
Tessadri v Holcombe, Wright and Rose (Unreported, Local Court of New South Wales, 25 October 2016)
Thonerry v Humphries (Unreported, Supreme Court of New South Wales, 19 June 1987)
White v Edwards (Unreported, Supreme Court of NSW, Yeldham J, 5 March 1982)
Worcester v Smith [1950] VicLawRp 62; [1951] VLR 316
C Legislation
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Evidence Act 1995 (NSW)
Law Enforcement (Powers and Responsibilities) Act 2002 (NSW)
Law Enforcement Conduct Commission Act 2016 (NSW)
Offences in Public Spaces Act 1979 (NSW)
Summary Offences Act 2005 (Qld)
Summary Offences Act 1970 (NSW)
Summary Offences Act 1988 (NSW)
D Other
Australian Associated Press, ‘RAW: Body Camera of Danny Lim’s Arrest in Sydney’, Herald Sun (Video, 30 August 2019)
Cop It Sweet! (ABC Television, 1992)
Interview with Sir Robert Askin, Premier of New South Wales (Mel Pratt, Mel Pratt Collection, 7 - 11 October 1976)
Keating, Paul, ‘Redfern Park Speech’ (Speech, Redfern, 10 December 1992)
New South Wales, Parliamentary Debates, Legislative Assembly, 17 November 1970
New South Wales, Parliamentary Debates, Legislative Assembly, 23 April 1979
New South Wales, Parliamentary Debates, Legislative Assembly, 31 May 1988
Rhodes, Nathan. T, ‘Danny Lim: The Life of Sydney Icon’ (YouTube, 2 November 2015)
Thompson, Angus, ‘Danny Lim’s ‘CVN’T’ Sign Not Offensive, Court Rules’, Sydney Morning Herald (online, 30 August 2019)
* Bachelor of Arts/Laws (Hon), UNSW. I would like to gratefully acknowledge the counsel and support of my supervisor, Professor Luke McNamara.
[1] Law Enforcement Conduct Commission (NSW), Operation Chivero (Report, 2019) 6.
[2] ‘Serious misconduct’ is defined in s 10 of the Law Enforcement Conduct Commission Act 2016 (NSW) as conduct of a police officer which ‘could result in prosecution for a serious offence or serious disciplinary action’, ‘a pattern of officer misconduct’ or ‘maladministration’ which could ‘adversely reflect on the integrity and good repute of the NSW Police Force, and ‘corrupt conduct of a police officer.’
[3] Ball v McIntyre (1966) 9 FLR 237.
[4] David Brown et al, Criminal Laws: Materials and Commentary on Criminal Law and Process of New South Wales (Federation Press, 6th ed, 2015) 518.
[5] Hannah Trollip, Luke McNamara, and Helen Gibbon, ‘The Factors Associated with the Policing of Offensive Language’ (2019) 31(4) Current Issues in Criminal Justice 493, 493.
[6] Australian Law Reform Commission, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples (Discussion Paper No. 84, 2017) 13; New South Wales Ombudsman, Review of the Impact of Criminal Infringement Notices on Aboriginal Communities (Report, 2009); New South Wales Law Reform Commission, Penalty Notices (Report, 2012).
[7] NSW Bureau of Crime Statistics and Research, ‘NSW Recorded Crime Statistics October 2014 - September 2019’ (Report, NSW Bureau of Crime Statistics and Research, 2019).
[8] See Part V: Danny Lim Case Study.
[9] Brown et al (above n, 4) 518.
[10] Summary Offences Act 1988 (NSW) (‘SOA’) s 4A(1).
[11] Julia Quilter and Luke McNamara, ‘Time to Define the “Cornerstone of Public Order Legislation”: the Elements of Offensive Conduct and Language under the Summary Offences Act 1988’ (NSW) [2013] UNSWLawJl 20; (2013) 36(2) University of New South Wales Law Journal 534, 557.
[12] He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523, 583 (Brennan J).
[13] Brown et al (n 4) 518.
[14] Clifford Geertz, Local Knowledge: Further Essays in Interpretive Anthropology (Basic Books, 3rd ed, 2000) 75.
[15] New South Wales, Parliamentary Debates, Legislative Assembly, 31 May 1988, 804.
[16] David Dixon, Law in Policing: Legal Regulation and Police Practices (Oxford University Press, 1997) 77-79.
[17] Rob White, ‘Indigenous Young Australians, Criminal Justice, and Offensive Language’ (2002) 5(1) Journal of Youth Studies 21, 25; Tamara Walsh, ‘Policing Disadvantage: Giving Voice to Those Affected by the Politics of Law and Order’ [2008] AltLawJl 46; (2008) 33(3) Alternative Law Journal 160; Chris Cunneen, Conflict, Politics and Crime: Aboriginal Communities and the Police (Allen and Unwin, 2001).
[18] Anti-Discrimination Board of New South Wales, Study of Street Offences by Aborigines (1982) 2; Australian Law Reform Commission, Incarceration Rates of Aboriginal and Torres Strait Islander Peoples (Discussion Paper No. 84, 2017) 13; New South Wales Ombudsman, Review of the Impact of Criminal Infringement Notices on Aboriginal Communities (Report, 2009); New South Wales Law Reform Commission, Penalty Notices (Report, 2012).
[19] Robert Jochelson, ‘Aborigines and Public Order Legislation in New South Wales’ (2007) 34 Crime and Justice Bulletin 1.
[20] New South Wales, Victoria & Tasmania, Royal Commission into Aboriginal Deaths in Custody, Regional Report of Inquiry in New South Wales, Victoria and Tasmania (1991) Recommendation 86-7 in Christine Feerick, ‘Policing Indigenous Australians: Arrest as a Means of Oppression’ [2004] AltLawJl 53; (2004) 29(4) Alternative Law Journal 188.
[21] Trollip et al (n 5) 506.
[22] Ibid, 507.
[23] Summary Offences Act 1970 (NSW) s 9.
[24] Interview with Sir Robert Askin, Premier of New South Wales (Mel Pratt, Mel Pratt Collection, 7 - 11 October 1976).
[25] Ibid.
[26] Australian Political Chronicle August - May 1970, 16(3) Australian Journal of Politics and History 390, 402.
[27] New South Wales, Parliamentary Debates, Legislative Assembly, 17 November 1970, 7865.
[28] Ibid 7911.
[29] New South Wales, Parliamentary Debates, Legislative Assembly, 23 April 1979, 4918.
[30] Ibid; Offences in Public Spaces Act 1979 (NSW) s 5.
[31] Daily Telegraph, 20 August 1979, quoted in Sandra Egger and Mark Findlay, ‘The Politics of Police Discretion’ in Mark Findlay and Russell Hogg (ed), Understanding Crime and Criminal Justice (The Law Book Company, 1988) 212.
[32] New South Wales, Parliamentary Debates, Legislative Assembly, 31 May 1988, 804.
[33] Worcester v Smith [1950] VicLawRp 62; [1951] VLR 316, 318; Ball v McIntyre (1966) 9 FLR 237.
[34] Elyse Methven, ‘Dirty Talk: A Critical Discourse Analysis of Offensive Language Crimes’ (PhD Thesis, University of Technology Sydney, 2017) 49 - 77.
[35] Ibid 296.
[36] Ibid.
[37] Geertz (n 14) 85.
[38] Kate Crehan, Gramsci’s Common Sense: Inequality and its Narratives (Duke University Press, 2016) 46.
[39] Elyse Methven, ‘A Very Expensive Lesson: Counting the Costs of Penalty Notices for Anti-social Behaviour’ (2014) 26(2) Current Issues in Criminal Justice 249.
[40] Summary Offences Act 1988 (NSW) s 4A(1).
[41] Crimes (Sentencing Procedure) Act 1999 (NSW) s 17.
[42] Summary Offences Act 2005 (Qld) s 6(3)(a).
[43] Methven (n 34) 81.
[44] He Kaw Teh [1985] HCA 43; (1985) 157 CLR 523, 583 (Brennan J).
[45] Quilter and McNamara (n 11) 534, 557.
[46] Danny Lim v Regina [2017] NSWDC 231; Tessadri v Holcombe, Wright and Rose (Unreported, Local Court of New South Wales, 25 October 2016).
[47] Worcester v Smith [1950] VicLawRp 62; [1951] VLR 316, 318.
[48] Ball v McIntyre (1966) 9 FLR 237, 241.
[49] Methven (n 34) 82.
[50] SOA s 3(1); Camp [1975] 1 NSWLR 452, 454.
[51] Stutsel v Reid (1990) 20 NSWLR 661, 662-664.
[52] SOA s 4A(3).
[53] Conners v Craigie (Unreported, Supreme Court of NSW, 5 July 1993); Jolly v The Queen [2009] NSWDC 212.
[54] Ibid.
[55] I use ‘hegemony’ in a Gramscian sense as explained in Crehan (n 38) 52.
[56] Russell Hogg and David Brown, Rethinking Law and Order (Pluto Press, 1998) 18 - 19.
[57] Ibid.
[58] Geertz (n 14) 75.
[59] Worcester v Smith [1950] VicLawRp 62; [1951] VLR 316, 318.
[60] Martha C. Nussbaum, Disgust to Humanity – Sexual Orientation and Constitutional Law (Oxford University Press, 2010).
[61] Raymond W. Novaco, ‘Anger’ in Alan E. Kazdin (ed), Encyclopedia of Psychology (Oxford University Press, 2000) 171.
[62] Ibid.
[63] Ibid.
[64] Kylie Burns, ‘Judges, ‘Common Sense’ and Judicial Cognition’ (2016) 25(3) Griffith Law Review 319, 324; Dalton v Bartlett (1972) 3 SASR 549, 561.
[65] Russell Hogg and David Brown, Rethinking Law and Order (Pluto Press, 1998) 19.
[66] Evidence Act 1995 (NSW) s 144(1). The specific authority for the use of judicial notice in offensive language cases is Dalton v Bartlett (1972) 3 SASR 549, 561.
[67] Dalton v Bartlett (1972) 3 SASR 549, 561.
[68] Crowe v Graham [1968] HCA 6; (1968) 41 ALJR 402 in Dalton v Bartlett (1972) 3 SASR 549, 561.
[69] Methven (n 34) 117 - 143.
[70] Ibid.
[71] Geertz (n 14) 75.
[72] Ibid 85.
[73] Moran (n 111) 157; Russell Hogg and David Brown, Rethinking Law and Order (Pluto Press, 1998) 19.
[74] Geertz (n 14) 89.
[75] Russell Hogg and David Brown, Rethinking The Reasonable Person (Oxford University Press, 2003) 159.
[76] New South Wales, Parliamentary Debates, Legislative Assembly, 31 May 1988, 804.
[77] R White, ‘The Making, Taking and Shaking of Public Spaces’ in Carol Jones, Elaine Barclay and Rob Mawby (eds), The Problem of Pleasure: Leisure, Tourism and Crime (Routledge, 2012) 33.
[78] Ibid.
[79] Antonio Gramsci, Selections from the Prison Notebooks of Antonio Gramsci, ed, tr Quintin Hoare and Geoffrey Nowell Smith (Lawrence and Wishart, 1971), quoted in Crehan (n 38) 46.
[80] Ibid 51.
[81] Ibid.
[82] Elyse Methven, ‘A Little Respect: Swearing, Police and Criminal Justice Discourse’ (2018) 7(3) International Journal for Crime, Justice and Social Democracy 58, 62.
[83] Crehan (n 38) 46.
[84] Ibid 52.
[85] Police v Pfeifer [1997] SASC 6172; (1997) 68 SASR 285, 289 (‘Pfeifer’).
[86] Geertz (n 14) 76.
[87] Pfeifer 287.
[88] Ibid.
[89] Ibid 292.
[90] Dalton v Bartlett (1972) 3 SASR 549, 557.
[91] Pfeifer 292.
[92] Ibid.
[93] New South Wales, Parliamentary Debates, Legislative Assembly, 31 May 1988, 804.
[94] New South Wales, Parliamentary Debates, Legislative Assembly, 17 November 1970, 7911.
[95] Ball v McIntyre (1996) 9 FLR 237.
[96] Victoria Nourse, ‘After the Reasonable Man: Getting Over the Subjectivity Objectivity Question’ (2008) 11 New Criminal Law Review 33; Marcia Baron, ‘The Standard of the Reasonable Person in the Criminal Law in R. A. Duff et al, The Structures of the Criminal Law (Oxford University Press, 2011) 11.
[97] Stutsel v Reid (1990) 20 NSWLR 661, 662.
[98] Melissa Mohr, Holy Shit: A Brief History of Swearing (Oxford University Press, 2013) 175.
[99] Ibid 176.
[100] Brown et al (n 4) 522.
[101] Ibid.
[102] Trollip et al (n 5) 500.
[103] Connolly v Willis [1984] 1 NSWLR 373, 383.
[104] Methven (n 34) 12, discussing Marcia Langton, ‘Medicine Square’ in Ian Keen (ed), Being Black: Aboriginal Cultures in ‘Settled’ Australia (Aboriginal Studies Press, 1988) 201.
[105] Stutsel v Reid (1990) 20 NSWLR 661, 662 - 664.
[106] McQuire v Western Mornings News Co Ltd [1903] UKLawRpKQB 105; (1903) 2 KB 100.
[107] Papatonakis v Australian Telecommunications Commission [1985] HCA 3; (1985) 156 CLR 7, 36.
[108] Kylie Burns, ‘Judges, Common Sense and Judicial Cognition’ (2016) 25(3) Griffith Law Review 319, 324.
[109] Nourse (n 95) 33.
[110] Ibid 34.
[111] B. S. Byrd, ‘On Getting the Reasonable Person out of the Courtroom’ (2005) 2 Ohio State Journal of Criminal Law 571.
[112] Mayo Moran, Rethinking The Reasonable Person (Oxford University Press, 2003) 101, citing McHale v Watson [1966] HCA 13; (1996) 115 CLR 199.
[113] Nourse (n 95) 33; Marcia Baron, ‘The Standard of the Reasonable Person in the Criminal Law in R. A. Duff et al, The Structures of the Criminal Law (Oxford University Press, 2011) 11.
[114] Nourse (n 95) 40.
[115] Ibid 41.
[116] New South Wales, Parliamentary Debates, Legislative Assembly, 17 November 1970, 7865.
[117] Chris Cunneen, ‘The Policing of Public Order: Some Thoughts on Culture, Space and Political Economy’ in Sandra Egger and Mark Findlay, ‘The Politics of Police Discretion’ in Mark Findlay and Russell Hogg (ed), Understanding Crime and Criminal Justice (The Law Book Company, 1988) 191.
[118] Ball v McIntyre (1996) 9 FLR 237.
[119] Ibid 245.
[120] Evans v Frances (Unreported, Supreme Court of New South Wales, 10 August 1990).
[121] McCormack v Langham (Unreported, Supreme Court of New South Wales, 5 September 1990).
[122] Spence v Loguch (Unreported, Supreme Court of New South Wales, 12 November 1991).
[123] Ball v McIntyre (1996) 9 FLR 237, 245.
[124] Evans v Frances (Unreported, Supreme Court of New South Wales, 10 August 1990).
[125] The Oxford Dictionary of English Grammar (2nd ed, 2014) ‘Tense’.
[126] Geertz (n 14) 75.
[127] See Danny Lim Case Study below.
[128] Brown et al (n 4) 522.
[129] Nourse (n 95) 37.
[130] Ibid 38.
[131] Evans v Frances (Unreported, Supreme Court of New South Wales, 10 August 1990).
[132] Ibid.
[133] Ibid.
[134] Ibid.
[135] Thonerry v Humphries (Unreported, Supreme Court of New South Wales, 19 June 1987).
[136] Ibid.
[137] Evans v Frances (Unreported, Supreme Court of New South Wales, 10 August 1990).
[138] White v Edwards (Unreported, Supreme Court of NSW, Yeldham J, 5 March 1982) 5 in New South Wales, Parliamentary Debates, Legislative Assembly, 1 June 1988, 1162.
[139] State of NSW v Beck; Commissioner of NSW v Beck [2013] NSWCA 437.
[140] Ibid.
[141] Beck v State of New South Wales [2012] NSWSC 1483 (‘Beck 1’).
[142] SOA s 4.
[143] Beck 1 [4].
[144] Ibid [4] - [5].
[145] Inglis v Fish [1961] VicRp 97; [1961] VR 607, 611, cited in Beck 1 [25] - [26].
[146] State of NSW v Beck; Commissioner of NSW v Beck [2013] NSWCA 437 (‘Beck 2’).
[147] Beck 2 [170]
[148] Ibid.
[149] Inglis v Fish [1961] VicRp 97; (1961) VR 607.
[150] Ibid.
[151] Conners v Craigie (Unreported, Supreme Court of NSW, 5 July 1993).
[152] Conners v Craigie (Unreported, Supreme Court of NSW, 5 July 1993).
[153] Ibid.
[154] Ibid.
[155] Royal Commission into Aboriginal Deaths in Custody (Report, April 1991) vol 1.
[156] Cop it Sweet! (Australian Broadcasting Corporation, 1992).
[157] Paul Keating, ‘Redfern Park Speech’ (Speech, Redfern, 10 December 1992).
[158] Thalia Anthony, ‘Policing in Redfern: Histories and Continuities’ (2018) 12 UNSW Law Society Court of Conscience 46, 48.
[159] Trollip et al (n 5) 506.
[160] SOA s 4(2).
[161] Australian Associated Press, ‘“Unnecessary and Very Heavy Handed”: Judge Criticises Police over Danny Lim Sign Arrest’, The Guardian (online, 30 August 2019) <https://www.theguardian.com/australia-news/2019/aug/30/cheeky-but-not-offensive-serial-sydney-protester-danny-lim-wins-appeal-over-sign>.
[162] Ibid.
[163] Ibid.
[164] Hogg and Brown in Rethinking Law and Order (Pluto Press, 1999) 19, use the term ‘primary definers’ to refer to those sources (police, judges, attorney-generals) who provide ‘the primary account of the ‘facts of the matter’ in criminal justice discourse; who set the ‘parameters of debate.’
[165] Thonerry v Humphries (Unreported, Supreme Court of New South Wales, 19 June 1987).
[166] State of NSW v Beck; Commissioner of NSW v Beck [2013] NSWCA 437.
[167] Peter K. Manning, Police Work: The Symbolic Organization of Policing (Waveland Press, 2nd ed, 1997) 21.
[168] Ibid.
[169] Angus Thompson, ‘Danny Lim’s ‘CVN’T’ Sign Not Offensive, Court Rules’, Sydney Morning Herald (online, 30 August 2019) <https://www.smh.com.au/national/nsw/danny-lim-s-cvn-t-sign-not-offensive-court-rules-20190830-p52mgt.html>.
[170] Russell Hogg, ‘Perspectives on the Criminal Justice System’ in Mark Findlay, Sandra Egger and Jeff Sutton (eds), Issues in Criminal Justice Administration (Allen & Unwin, 1983) 6.
[171] Law Enforcement (Powers and Responsibilities) Act 2002 (NSW).
[172] Michael McConville, Andrew Sanders and Roger Leng, The Case for the Prosecution: Police Suspects and the Construction of Criminality (Routledge, 1991) 14 - 15.
[173] Manning (n 165) 132.
[174] Dixon (n 16) 9.
[175] Nathan T. Rhodes, ‘Danny Lim: The Life of Sydney Icon’ (YouTube, 2 November 2015) <https://www.youtube.com/watch?v=B7Xs1SOW1aU>.
[176] Danny Lim v Regina [2017] NSWDC 231.
[177] Ibid.
[178] Ibid [39].
[179] Ibid [39] - [40].
[180] Ibid [50].
[181] Dalton v Bartlett (1972) 3 SASR 549, 555.
[182] Danny Lim v Regina [2017] NSWDC 231. [48] - [49].
[183] Angus Thompson, ‘Danny Lim’s ‘CVN’T’ Sign Not Offensive, Court Rules’, Sydney Morning Herald (online, 30 August 2019) <https://www.smh.com.au/national/nsw/danny-lim-s-cvn-t-sign-not-offensive-court-rules-20190830-p52mgt.html>.
[184] Australian Associated Press, ‘RAW: Body Camera of Danny Lim’s Arrest in Sydney’, Herald Sun (Video, 30 August 2019) 0:32 <https://www.heraldsun.com.au/news/national/raw-body-camera-of-danny-lims-arrest-in-sydney/video/11189e7629cbe2ad0aebf45c3c484779>.
[185] Ibid 0:40.
[186] Ibid 0:42 - 0:46.
[187] DPP v Carr [2002] NSWSC 194.
[188] Australian Associated Press, ‘RAW: Body Camera of Danny Lim’s Arrest in Sydney’, Herald Sun (Video, 30 August 2019) 1:11 - 1:28.
[189] Ibid 2:04 - 3:04. Transcript provided by the author.
[190] Crimes Act 1900 (NSW) s 546C. The offence carries a maximum penalty of 12 months imprisonment, or a fine of 10 penalty units, or both.
[191] Stutsel v Reid (1990) 20 NSWLR 661, 664.
[192] Ibid.
[193] Worcester v Smith [1950] VicLawRp 62; [1951] VLR 316, 318.
[194] Australian Associated Press, ‘RAW: Body Camera of Danny Lim’s Arrest in Sydney’, Herald Sun (Video, 30 August 2019) 3:11 - 3:41. Transcript provided by the author.
[195] Methven (n 34) 273, discussing Jenny Brockie, Cop It Sweet! (ABC Television, 1992); Australian Human Rights Commission, Indigenous Deaths in Custody (Report, 1996).
[196] Stutsel v Reid (1990) 20 NSWLR 661, 664.
[197] Dixon (n 16) 64.
[198] Angus Thompson, ‘Danny Lim’s ‘CVN’T’ Sign Not Offensive, Court Rules’, Sydney Morning Herald (online, 30 August 2019).
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