Brokus v Brennan

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Blokland J
• Judgment Date: 18 July 2022
• Neutral Citation: [2022] NTSC 54
• Docket Number: FILE NO: LCA 1/21 (22021948)

[2022] NTSC 54

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT ALICE SPRINGS

JUDGMENT OF:

Blokland J

FILE NO: LCA 1/21 (22021948)

Between:

Franklin Brokus

Appellant

and

Alexander Brennan

Respondent

REPRESENTATION:

Counsel:

Appellant: M Wall

Respondent: S Lapinski/ J Singh

Cases Referred to:

Ball v McIntyre (1996) 9 FLR 237; Barrington v Austin [1939] SASR 130; Bird v Littman [2009] NTSC 33; Campbell v Samuels (1980) 23 SASR 389; Cintana v Burgoyne (2003) 13 NTLR 130, 138; Coleman v Power (2004) 209 ALR 192; [2004] HCA 39; Crowe v Graham (1968) 121 CLR 375; [1986] HCA 6; Densley v Martin [1943] SASR 144; E (A Child) v Staats (1994) 76 A Crim R 343; Ellis v Fingleton [1972] 3 SASR 437; Hoessinger v R (1992) 62 A Crim R 146; Lafitte v Samuels [1972] 3 SASR 1; Melser v The Police [1967] NZLR 437; R v Stanley [1965] 2 QB 327; Rice v Hudson [1940] SASR 290; Rowe v Kemper [2009] 1 Qd R 122; Pileggi v Australian Sports Drug Agency [2004] FCA 955; 138 FCR 107; Police v Butler [2003] NSWLC 2; Tyson v The Queen [2005] NTCCA 9; Walsh v Tattersall (1996) 188 CLR 77; Watson and Williams v Trenerry [1998] NTCA; 122 NTR 1.

Statutes Referred to:

Local Court (Criminal Procedure) Act 1928 (NT) ss 49, 69, 70

Police Act 1892 (WA) ss 54, 59

Police Administration Act 1953–1967 (SA) s 7

Summary Offences Act 1923 (NT), ss 47(a), 47(c), 49(d), 53(7)(a).

Dictionaries:

LexisNexis Concise Australian Legal Dictionary, 4 ^th edition, 2011

Oxford Languages, languages.oup.com

Books:

D Weisbrot, D Neil, D Farrier, D Brown, Criminal Laws, Volume 2, 1996,

The Federation Press.

Articles:

Elyse Methuen ‘Weeds of Our Own Making’: Language Ideologies, Swearing and the Criminal Law (2016) 34 (2) Law in Context, Contemporary Issues in Criminal Law 117 at 128.

Henry Hitchens, The Language Wars: A History of Proper English, John Murray, 2011, 241.

APPEAL — CRIMINAL — LAW — SUMMARY OFFENCES — disorderly behaviour — charge on complaint alleging disorderly behaviour — whether Local Court Judge in error to hold obscene language constituted the offence disorderly behaviour — first ground of appeal relied on interpretation of Local Court Judge's reasons — reasoning employed by Local Court not clearly covered by first ground of appeal.

APPEAL — CRIMINAL LAW — SUMMARY OFFENCES — STATUTORY INTERPRETATION CHARGING PRACTICE AND DUPLICITY — disorderly behaviour — whether s 47(a) Summary Offences Act 1923 (NT) creates one or multiple offences — held to create multiple offences — observations as to potential for duplicity if usual charging practices are not followed.

APPEAL — CRIMINAL LAW — SUMMARY OFFENCES — Obscene language — meaning of ‘obscene’ — whether ‘fuck off’ and ‘cunts’ constitute obscene language — whether correct to reason from a finding of obscene language to disorderly behaviour — observations about swear words and current usage as a basis for either charge.

APPEAL — CRIMINAL LAW — SUMMARY

OFFENCES — disorderly behaviour — appellant convicted on a basis not advanced by the prosecution — appellant denied procedural fairness — finding of guilt not made in accordance with Local Court (Criminal Procedure) Act — appeal allowed — finding of guilt, conviction and sentence quashed.

REASONS FOR JUDGMENT

(Delivered 18 July 2022)

1 This is an appeal against a finding of guilt and conviction imposed by the Local Court. On 19 November 2021, after hearing counsel, this Court indicated the appeal would be allowed with reasons to be provided at a future date. These are the reasons.

Proceedings in the Local Court

2 On 17 December 2020 the appellant pleaded not guilty in the Alice Springs Local Court to the charge of behaving in a disorderly manner in a public place, namely, the car park off Gregory Terrace, contrary to s 47(a) of the Summary Offences Act 1923 (NT)(‘ Summary Offences Act’).

3 Aside from the question of whether the acts alleged against the appellant had been proven, part of the hearing in the Local Court was on the question of whether the words spoken, alone or in the particular context, were capable of constituting the offence ‘disorderly behaviour’. 1

4 This is an issue which has long been the subject of cases dealing with offences of this kind. The argument was whether words uttered such as “fuck off” and/or “cunts” sufficed to prove the charge. The arguments focussed on the alleged language used and its context rather than any ancillary or additional conduct.

5 The events giving rise to the charge took place on 11 July 2020. The hearing in the Local Court took place on 17 and 24 December 2020. At the beginning of the Local Court hearing, the prosecutor particularised the charge as follows: “… [T]he defendant calls out, yells out ‘Fuck the police’. And the evidence of the police officers is that ‘fuck off’ and words to the like continue when they approach him in that Gregory Terrace car park.” 2

6 Three police officers gave evidence. No evidence was called on behalf of the appellant. The Local Court Judge made certain findings of fact, and in turn concluded he was satisfied beyond reasonable doubt that the appellant used ‘obscene language’ in a public place.

7 The Judge was not satisfied it was the appellant who said “Fuck the police”. Two police officers who were in a police car had heard those words being used. 3 The relevant findings which were held to make out the charge were as follows. When the police left their police car, the appellant swore at them, telling them to “Fuck off”, and calling them “cunts”. The appellant continued to swear when one of the police officers took a can of drink from him. At that time, the appellant was sitting next to the footpath adjacent to Gregory Terrace. His speech was slurred, he continued to berate police and used offensive language. 4 All of this took place at the same time as patrons were leaving Uncle's Tavern and were crossing Gregory Terrace to access the car park. 5

8 The Judge referred to a series of cases which defined ‘disorderly behaviour’ as “Any substantial breach of decorum which tends to disturb the peace or interfere with the comfort of people who may be in or in the vicinity of the street or place”. 6 Further he said: “It is a question of fact or degree in the circumstances”. 7

9 After his Honour discussed the relevant cases, he said “Clearly s 47(a) of the Summary Offences Act contemplates offensive behaviour involving the

use of obscene language as that is set out in the particular section.” 8 The Judge concluded “I am satisfied beyond reasonable doubt that the defendant used obscene language in a public place when he constantly swore at the two police officers in the early hours of 11 January 2020. I am further satisfied beyond reasonable doubt that this occurred in a public place within the hearing of members of the public. Accordingly I find the offence proved.” 9

10 As may be observed, the ultimate finding was that the prosecution had proven “obscene language in a public place”. 10 However, the appellant was charged with disorderly behaviour, particularised as swearing in a public place outlined by the prosecutor in the Local Court. 11

11 Without detracting from the Judge's findings, other evidence that may shed light on the context was that the appellant was intoxicated; in the view of one of the police officers he may have been showing off to the women who were sitting near him; those women told him to “leave it”, but he was probably angry because police officers took his can of alcohol and emptied it. 12 The appellant remained seated during the interaction with police. He continually told police to “fuck off” and to leave him alone numerous times. The other people in the area were within 10–15 metres of the incident and most were from a crowd at Uncle's Tavern who looked over to see what was

going on. One of the police officers referred to the appellant's swearing as “generic swearing words.” 13

12 The Certificate of Proceedings from the Local Court certified the appellant was convicted of ‘behaved in a disorderly manner in a public place’, 14 though no formal finding of guilt on that charge was made.

13 The appellant was sentenced to 14 days imprisonment which was ordered to run concurrently with another sentence, not the subject of this appeal. In practical terms, the outcome of this appeal will not affect the appellant's sentence as the period of imprisonment was served concurrently with another sentence.

Ground 1

Error in holding that obscene language, without more, was capable of constituting disorderly behaviour

14 On the first day of the appeal hearing, this ground was advanced on behalf of the appellant. Given the respondent has conceded that an additional ground filed before the later hearing on 18 and 19 November 2021 has been made out, it may not be necessary to finally determine this ground. However, a number of observations may be made about the charge and the proceedings which are relevant to the respondent's later concession and the ultimate decision.

15 Section 47 of the Summary Offences states the following:

47. Offensive, &c., conduct

Every person who is guilty:

• (a) of any riotous, offensive, disorderly or indecent behaviour, or of fighting, or using obscene language, in or within the hearing or view of any person in any road, street, thoroughfare or public place;

• (b) of disturbing the public peace;

• (c) of any riotous, offensive, disorderly or indecent behaviour in any police station;

• (d) of offensive behaviour in or about a dwelling house, dressing-room, training-shed or clubhouse;

• (e) of unreasonably causing substantial annoyance to another person; or

• (f) of unreasonably disrupting the privacy of another person,

  shall be guilty of...