Public Nuisance

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What is Public Nuisance?

The term ‘nuisance’ is often referred to in the law as a tort or civil wrong whereby a person’s conduct causes an interference or disturbance with the interests of others. In Victoria, there are two categories of nuisance referred to as public nuisance and private nuisance.

Public nuisance is when a person’s conduct has caused something to happen which is a nuisance to the general public (for example an unreasonable obstruction of a highway or footpath in a public place or an individual acting in an offensive way which causes discomfort to members of the public).

Private nuisance is when a person’s conduct interferes with private property (for example a neighbour making excessive noise/ blocking entry to a property with trees or rubbish).

In summary, public nuisance can be either a civil wrong or a criminal offence charged under Victorian law. Private nuisance on the other hand is a civil wrong which is often resolved in the civil jurisdiction by way of mediation or court remedies such as an injunction or compensation orders.

Have you been charged with Public Nuisance?

If you have been charged with public nuisance, you may need the services of a specialist criminal lawyer. There are many questions you and your lawyer need to carefully consider before you come before a Court, including:

Can the Prosecution make out their case?
Did your actions endanger other people?
Did your actions prevent other people exercising their legal rights?
Did you act alone, or are you being charged as a co-accused?

Elements of public nuisance

In Victoria, public nuisance is a common law offence and the law is found in case law as opposed to legislation.

For the common law offence of public nuisance, the prosecution must prove:

The defendant committed an act not authorised by law or failed to discharge a legal duty; and
Endangered the life, health, property, morals, or comfort of the public; or
Obstructed the public in the exercise of legal rights.

There are several defences to this charge including mental impairment, duress, honest and reasonable mistake of fact, identification or lack of intent.

You can also be charged under s 61 the Public Health and Wellbeing Act 2008.

For this offence, the prosecution must prove that a person:

Caused a nuisance; or
Knowingly allowed or suffered a nuisance to exist on, or emanate from, any land occupied by that person.

It is a defence to this charge if a person had a lawful excuse for knowingly allowing or suffering a nuisance to exist on, or emanate from, any land owned or occupied by that person.

The penalties for public nuisance

Level 6 imprisonment (prison) being a maximum of 5 years is the maximum penalty for a common law offence.

For offences under the Public Health and Wellbeing Act 2008 the maximum penalty for a natural person is 120 penalty units and 600 penalty units in the case of a body corporate.

However the reality is that if it is your first offence, and you are not pleading guilty to more serious charges along with a public nuisance charge, then you should be asking your lawyers to get a diversion on your behalf. This might also result in a fine without a record. For more information you should discuss your case with an experienced criminal defence lawyer.

Where will my case be heard?

Public nuisance cases will usually only be heard in the Magistrates’ Court of Victoria, although they are indictable charges and sometimes are heard with more serious matters in the County and Supreme Courts. The charge of public nuisance is an indictable offence.