Link to original report: https://criminalcpd.net.au/wp-content/uploads/2023/08/2023-Dog-Arse-Cunts-Mark-Dennis-SC-2-2.pdf

Introduction

This paper, written from an Aboriginal Legal Service (ALS) defence perspective, discusses the legal interpretations of “offensive language” and “offensive manner,” with references to case law. It highlights strategic approaches to defence in these cases.

Definition of “Offensive”

The common law definition, as established in Worcester v Smith (1951) and elaborated in Ball v McIntyre (1966), describes “offensive” as conduct calculated to wound feelings or arouse anger, resentment, or disgust in a reasonable person. Not all improper or hurtful behavior qualifies as legally offensive.

Tactical Uses of the Definition

  1. Intention: Arguing “calculated” implies intent, adding a mens rea component to the prosecution’s burden of proof.
  2. “Mind the Gap”: Distinguishing conduct that is improper or hurtful from what legally qualifies as offensive.
  3. Broadening the Gap: Leveraging cases like Nelson v Mathieson (2003) to argue that contemporary standards tolerate certain behaviors.
  4. Police Cross-Examination: Challenging police testimony to align with community standards or reveal biases.

Mens Rea of “Offensive”

The inclusion of intent (“calculated”) in the definition aligns with He Kaw Teh (1985), which established that mens rea is presumed unless explicitly excluded by statute. There is inconsistency across jurisdictions regarding whether intent is required.

“Fuck” and “Cunt” as Offensive Language

Courts have not consistently ruled whether such terms are inherently offensive. Context, including use as intensifiers or expletives, and evolving contemporary standards play significant roles in determining offensiveness.

Offensive Manner

Under NSW law, offensive manner requires more than offensive language. Behavior is judged in totality, including physical actions, tone, and context, as highlighted in Burns v Seagrave (2000).

The Reasonable Person

This legal construct, as discussed in Ball v McIntyre (1966) and Monis v The Queen (2013), represents a reasonably tolerant and contemporary standard of judgment. What is deemed offensive evolves with societal norms.

Contextual Considerations

The surrounding circumstances of an alleged offence, including location and expected presence of others, significantly influence legal outcomes. Cases like Stutsel v Reid (1990) emphasize the role of context in evaluating offensiveness.

Intoxication

Intoxication typically does not affect the legal assessment of offensiveness unless it was not self-induced.

Reasonable Excuse

Defendants can argue reasonable excuse by linking their actions to immediate circumstances, such as provocation or mistake, as per cases like Conners v Craigie (1994).

The Right to Protest

Political protest is not inherently offensive. Courts have recognized implied rights to protest, as seen in Ball v McIntyre (1966) and Watson and Williams v Trenerry (1998).

Closing Remarks

The paper underscores the dynamic nature of what constitutes “offensive” conduct or language in law, shaped by evolving societal standards and judicial interpretation. It stresses that defence practitioners, particularly those working with the Aboriginal Legal Service, should adopt creative and tactical approaches when defending clients charged under these provisions.

Key takeaways include the importance of challenging the prosecution’s interpretation of “offensive” by emphasizing the nuances of intent, context, and contemporary community standards. The paper encourages advocates to focus on the inherent “gaps” within the definition of offensive, enabling effective defence strategies by differentiating between conduct that is merely improper or blameworthy and conduct that legally meets the threshold of offensiveness.

The author provides practical advice for defence lawyers, particularly regarding cross-examination of police witnesses, advocating for strategies that highlight inconsistencies or biases in police testimony. Such techniques can undermine the credibility of the prosecution’s case and strengthen the defence’s position.

The paper closes with a reminder that practitioners must remain vigilant to shifts in social attitudes and legal precedent. By doing so, they can better argue for acquittals based on outdated or overly rigid interpretations of offensive behavior. The author, Mark Dennis SC, concludes with an offer to assist fellow practitioners while humorously declining to aid in academic assignments, reinforcing a practical, no-nonsense ethos.