Offensive behaviour is a complex legal issue in Victoria, encompassing a range of actions that can be considered disruptive, indecent, or threatening in public spaces. This comprehensive guide explores the legal framework surrounding offensive behaviour, its definitions, consequences, and the factors that courts consider when determining such cases. 

What is Offensive Behaviour?

Both section 17 Summary Offences Act 1966 and section 195K of the Crimes Act 1958 are relevant when it comes to defining offensive behaviour in Victoria. The Summary Offences Act 1966 deals with less serious offences, including offensive behaviour in public places, while the Crimes Act 1958 has recently been amended to include a new indictable offence targeting grossly offensive public behaviour. 

This dual approach allows the law to address a spectrum of offensive conduct, from minor infractions to more serious offences that warrant stricter penalties.

Examples of Offensive Behaviour

Examples of offensive behaviour include, but are not limited to:

• Singing an obscene song or ballad in or near a public place
• Writing, drawing, exhibiting, or displaying an indecent or obscene word, figure, or representation in public view
• Using profane, indecent, obscene, threatening, abusive, or insulting language within earshot of people in a public place
• Behaving in a riotous, indecent, offensive, or insulting manner in or near a public place
• Exposing one’s anal or genital region to any extent in public, such as mooning or streaking
• Disruptive behaviour at or near public meetings, including acting in a riotous, indecent, offensive, threatening, or insulting manner
• Using threatening, abusive, obscene, indecent, or insulting words at a public meeting
• Willfully failing to obey a ruling or direction given by the chairman at a public meeting to preserve order

Legal Consequences of Offensive Behaviour in Victoria

Apart from the risk of being removed from the premises, there are several potential legal consequences for offensive behaviour in Victoria. These penalties can vary significantly depending on the severity of the conduct and the specific Act under which charges are brought. There are two main pieces of legislation that address offensive behaviour:

1. Summary Offences Act 1966 – Section 17

Obscene, indecent, threatening language and behaviour etc. in public

Under this Act, for obscene, indecent, threatening language and behaviour in public, the penalties are:

• First offence: 10 penalty units or imprisonment for two months
• Second offence: 15 penalty units or imprisonment for three months
• Third or subsequent offence: 25 penalty units or imprisonment for six months

2. Crimes Act 1958 – Section 195K

This Act introduces a more serious offence of “Grossly offensive public conduct”. The maximum penalty under this section is:

• Level 6 imprisonment (5 years maximum)

The significant difference in penalties between these two Acts reflects the legislature’s intent to provide a range of options for prosecuting offensive behaviour, from minor infractions to more serious offences that warrant stricter penalties. The choice of which Act to apply would depend on the specific circumstances and severity of the offensive behaviour in question.

Factors Affecting How Offensive Behaviour is Determined

Several factors contribute to determining offensive behaviour, such as:

1. Nature of the conduct: The acts specify various types of offensive behaviour, including singing obscene songs, displaying indecent words or figures, using profane or threatening language, and behaving in a riotous or insulting manner
2. Location: The behaviour must occur in or near a public place, or within view or hearing of people in public places
3. Exposure: Behaviour involving exposure of a person’s anal or genital region is explicitly considered indecent, offensive, or insulting
4. Context: The circumstances of the incident, such as whether it occurred at a public meeting or corporate general meeting, may be considered
5. Repetition: The acts provide for increased penalties for second and subsequent offences, indicating that repeat behaviour is considered more serious
6. Severity: The Crimes Act 1958 introduces the concept of “grossly offensive” conduct, suggesting that the degree of offensiveness is a factor.
7. Public reaction: The impact on people present or passing by is relevant, as the behaviour must be within their view or hearing
8. Intent: While not explicitly stated, the use of words like “wilfully” in certain contexts suggests that intent may be considered

Courts would likely consider these factors, along with witness testimony and the specific merits of each case, when interpreting what constitutes offensive behaviour.

What the Prosecution Needs to Prove

To convict a person of offensive behaviour, the prosecution needs to prove:

1. Location: The person was in or near a public place, or within view or hearing of any person being or passing in a public place.
2. Nature of the conduct: The person engaged in offensive/obscene behaviour in the eyes of any reasonable person.
3. Exposure (if applicable): In the case of behaviour considered indecent, offensive or insulting, it may involve exposing (to any extent) the person’s anal or genital region.

Important Considerations

It’s crucial to note that under the Crimes Act 1958 – Section 195K, certain behaviours alone (i.e. without meeting above requirements) do not constitute grossly offensive conduct. Specifically:

• Language: The mere use of profane, indecent, or obscene language does not automatically make conduct grossly offensive.
• Intoxication: A person’s intoxicated state alone does not render their conduct grossly offensive.

These considerations highlight that the prosecution must prove that the offensive behaviour goes beyond mere profanity or intoxication to meet the threshold of grossly offending community standards of acceptable conduct.

Defences Against Offensive Behaviour Charges

Possible defences against charges of offensive behaviour include:

• Artistic expression: The accused engaged in the conduct reasonably and in good faith in the performance, exhibition, or distribution of an artistic work.
• Genuine purposes: The conduct was reasonably engaged in for legitimate political, academic, educational, artistic, religious, cultural, or scientific purposes.
• Public interest: The conduct was reasonably engaged in for a purpose that is in the public interest.
• Fair reporting: The accused was making or publishing a fair and accurate report of an event or matter of public interest.

These defences highlight that context and intent are crucial factors in determining whether behaviour is considered offensive under the law. The accused must demonstrate that their actions were reasonable and conducted in good faith for one of the specified purposes to successfully use these defences.

Jurisdiction

In Victoria, the Magistrates’ Court holds criminal jurisdiction, particularly for hearing summary matters. These are less serious charges that are typically heard and decided by a magistrate, without a jury. This applies to offensive behaviour from both the Summary Offences Act 1966 – Section 17 (Obscene, indecent, threatening language and behaviour etc. in public) and the CRIMES ACT 1958 – SECT 195K (Grossly offensive public conduct).

Don’t Face Offensive Behaviour Charges Alone: Why Expert Legal Advice is Crucial

When charged with offensive behaviour, seeking prompt legal advice from an experienced criminal lawyer is essential. A skilled lawyer can provide critical guidance to protect your rights from the outset and help you avoid common pitfalls that could harm your case. They can assist in building a strong defence strategy, potentially leading to reduced charges, dismissals, or more favourable outcomes.

Contact Dribbin & Brown Criminal Lawyers today and let us help you protect your rights and reputation.