Section 6 of the Summary Offences Act 2005 (‘the Act’) establishes the offence of public nuisance. It is a minor charge that can either be dealt with through a police infringement notice or, more commonly, through prosecution in Court.
While it is a very broad offence, it is most commonly charged for the use of swearing or other inappropriate language in public places.
What do the prosecution have to prove?
For the charge to be made out, the prosecution must prove ‘beyond a reasonable doubt’ that the defendant:
- Behaved in a way that was disorderly, offensive, threatening or violent; and
- The behaviour interfered with, or was likely to interfere with, the peaceful passage through, or enjoyment of, a public place by a member of the public.
As to the type of behaviour captured, the legislation clearly has a wide ambit. Some of the more common situations where persons are charged with public nuisance involve:
- Engaging in a consensual physical fight in a public place;
- Yelling or swearing in an inappropriate way to or in the presence of members of the public;
- Engaging in a sexual or inappropriate act within the view of member of the public.
What does a ‘public place’ mean?
The Act defines as a public place as ‘a place that is open to or used by the public, whether or not on payment of a fee.’ Under this definition, places such as a store or festival ground are plainly public places.
Less obviously, a public nuisance will also arise where the offensive conduct or words were made in a private place (such as one’s home) but could be heard or observed from a public place (such as the road).
Who is a ‘member of the public’?
This term takes its ordinary meaning and includes police officers in a public place (Atkinson v Gibson  QCA 279).
What does ‘offensive’ mean?
A question that often arises is whether it matters if the individual or individuals involved were actually offended themselves. This question and similar issues have been subject to discussions by the Courts for decades.
The current approach strongly suggests the correct approach is an objective one. In other words, it doesn’t matter if the particular words or conduct used caused offence to the particular person or persons who were present. Any evidence about whether a particular individual was personally offended by the conduct is likely to be inadmissible (Couchy v Birchley  QDC 334).
However, conduct directed at a particular class of person may objectively amount to a public nuisance, even though it might not have been offensive to another class. For example, using a racial slur towards a member of the relevant race is more likely to cause offence to a person who is not of that race.
Challenging a public nuisance charge can be very complicated due to the differing views about what amounts to offensive conduct or other types of behaviour that can constitute a public nuisance. Common lines of defence are:
- That the language used was not offensive in the circumstances and according to contemporary community standards (which of course change with time);
- That the conduct did not, or was not likely, to interfere with the peaceful passage through or enjoyment of a member of the public (in other words, the time, location and busyness are all relevant factors);
- That a person’s behaviour was protected by a constitutional guarantee such as the freedom of political communication (see, for example, Danny Lim v Regina  NSWDC 231.
When considering whether to contest a public nuisance charge, it is always appropriate to seek expert advice from a criminal lawyer.
What are the usual penalties?
In Queensland, public nuisance carries a maximum penalty of 6 months imprisonment. However, imprisonment orders are rarely imposed.
In the vast majority of cases, fines are imposed and the focus is on whether a conviction ought to be recorded against the offender. If this is a concern, advice should be obtained from a criminal lawyer.
What negotiations can be made?
One way of resolving public nuisance offences without trial is to request for the offence to be dealt with by way of a police infringement notice or ‘ticket’, rather than being prosecuted through the Courts. This will ensure the offence is not recorded under a person’s criminal history.
What Courts can the offence be heard in?
The offence of public nuisance must be heard summarily, in the Magistrates Court.