Some of the more amusing moments in our legal system occur
when it is called upon to make judgments about community standards and
morality. These decisions often owe more to the social background of the
particular judge, magistrate or police officer and can appear quaint and
out-dated to the community at large.
In 1983, PIAC brought a case that tested the outer limits of
the criminal law of offensive behaviour.
PIAC’s client, a young woman, had been nude sunbathing at a small,
secluded beach in Sydney’s eastern suburbs, when she was apprehended by a
police officer who was attired in swimming trunks.
The young woman was charged
under the Offences in Public Places Act
with behaving ‘in a manner likely to cause reasonable persons justifiably to be
seriously alarmed or seriously affronted’. To reach her, or even see her, it was necessary for this
intrepid sleuth to clamber over large rocks. The only other people in the area
were also nude, and included children, men and women.
At the court hearing, PIAC sought to introduce a survey
conducted of 200 Sydneysiders that showed an overwhelming view that nude
sunbathing was not offensive. The magistrate rejected the survey as hearsay and
preferred to rely on his own perception that the sight of a body without
clothes would cause serious affront to the public.
A case was stated to the Supreme Court and heard by Justice
Yeldham. In a wonderfully understated judgment, his Honour said:
‘I do not believe that it was open to find that a female,
behaving in a manner which was held not to be indecent, and lying quietly naked
in the area in question, there being other naked people in the vicinity, could
cause serious alarm to others.’
The decision had significance beyond nude sunbathing in the
general treatment of the so-called ‘victimless’ crimes: where a person has
broken a standard of behaviour set down in the law but which causes no other
person any harm. Police can use such legislation as a ‘catch-all’ to prosecute
all sorts of behaviour in public places, from swearing and gestures through to
more serious acts, such as publicly performed sexual acts. The broad wording of
the Offences in Public Places Act makes
it difficult to defend prosecutions.
The Labor Opposition, led by Neville Wran, promised to
repeal many victimless crimes and specifically the Summary Offences Act. It did
so on election in 1976, but in the face of a campaign of scare mongering
mounted by the police, who claimed they would lose control of the streets, the
Government quickly reintroduced many of the old provisions of the Summary
Offences Act in the Offences in
Public Places Act.
However, the new
section, by using the test of ‘serious alarm’, had a higher threshold than its
predecessor, which referred only to offensive behaviour.
Justice Yeldham’s decision reinforced the stricter
requirements of the new offence and also held that the defendant’s views of
what is or is not offensive may be relevant to a ‘defence’ of reasonable mistake.
The police continued to wage their war against the Offences
in Public Places Act and in February 1984 the Wran
Government amended it to replace ‘serious alarm’ with ‘offensive behaviour’.
The amendment meant the legislation had almost reverted to the situation that
prevailed before Labor’s 1976 election.