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Summary Public Order Offences

Public order offences refer to criminal acts that cause disruption or offence to the public.

For an act to be considered a “public offence,” it must occur in a public place or in close proximity to a school. A “public place” is defined as any location that is accessible or utilised by the general public.

The majority of public order offences in NSW are included in the Summary Offences Act 1988 (NSW). The term “summary” in this context refers to crimes that are not considered to be particularly severe in nature. Summary offences can either be handled through an infringement notice or by prosecution in the Local Court. The prosecution must prove, beyond a reasonable doubt, that all elements of the crime committed and that the individual had the intention to commit the offence.

Some of the most common public order offences include offensive conduct, offensive language and failing to comply with police directions.

It is important to note that more serious public offences (indictable offences) are included in the Crimes Act 1900 (NSW) and may be dealt with in the District or Supreme Court – for example an affray.

Offensive Conduct

Offensive conduct in public places is prohibited by section 4 of the Summary Offences Act. The criteria used to determine if the conduct was offensive is whether a reasonable person would be distressed or bothered by the behaviour. Examples of offensive conduct include shouting, fighting and making unreasonable noise. The behaviour must be considered more than just upsetting or insulting to be considered a criminal act and courts will consider the specific circumstances in which the conduct occurred.

The maximum punishment for this offence is a fine of $660 or a gaol term of up to 3 months. Although imprisonment is rare for this type of offence, it can result in a criminal record, which makes it crucial to seek legal advice to properly defend the charge.

Offensive Language

Under section 4A of the Summary Offences Act, it is illegal to use words or gestures that are likely to cause offence or anger in, close to or within view/earshot of a public place. Courts will evaluate what constitutes offensive language in light of the situation.

The maximum punishment for such language is a fine of $660, and in some cases, a court-ordered community service sentence.

The charge of “offensive language” is controversial as the line between what is considered “offensive” is rather subjective. In the case of Worcester v Smith [1951], the court determined that “offensive” means” language that is likely to cause injury to the emotions, anger, resentment, or disgust in a reasonable person.”

This charge is frequently made when someone curses or verbally assaults a police officer and is often related to or precedes a more serious crime, such as “resisting arrest”. This charge is often a person’s first interaction with the criminal justice system and, without proper legal representation, it can lead to a criminal conviction.

Failure to Comply with Police Directions

It is an offence to fail to comply with a lawful direction given by a police officer. This can include failing to leave a licensed premises when directed by the police or failing to provide personal details when asked.

If a person who is directed by police to leave a public place is under the influence of alcohol and fails to comply with the direction, that person may be in breach of the Summary Offences Act. In some cases, the person may be guilty of committing a “failure to move on” offence under the Law Enforcement (Powers and Responsibilities) Act if the police officer believes on reasonable grounds that the person’s behaviour is disorderly or is likely to cause injury to another person, damage property or risk public safety. Failure to follow a move on direction is an offence, punishable by a fine of $220.

How can BSM help?

Brander Smith McKnight’s criminal lawyers are highly knowledgeable and experienced in handling summary public order offence cases. We can assist you in determining your potential liability and available options regarding a charge or infringement.

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