Bryant v Stone [1990] QDC 563

··-~ 10 20 rQ (() IN THE DISTRICT COURT HELD AT TOWNSVILLE '31j1.o APPELLATE JURISDICTION BEFORE JUDGE WYLIE Q.C. 26 OCTOBER 1990 Nof~~~~ <?.~ ... ,~~-~?.~··----·£cc a 1~ 03 Rf::\II~FC) sr;p~x:c~ !.SE3tJc:···: , Co:~:rt R0p0rt:n:~ GurE~au ~ · BETWEEN; I Dale: &5; It 1 qQ f ~-· • ...... !e ;;p ...,...._..cado),~~ (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Chief Court Reporter,Court Reporting Bureau.) JAMES DONALD BRYANT -and- LINCOLN PATRICK STONE ORDER Complainant (Respondent) Defendant (Appellant) HIS HONOUR: The appellant appeals against his 10 20 30 30 conviction in the Magistrates Court at Townsville on 28 May 1990 of the offence of using insulting words, namely, "Thanks, pigs" to the respondent who, at the relevant time, was a senior constable of police. He was fined $60. The respondent informed me through his solicitor when the appeal 40 40 was called on for hearing that he did not resist allowance ,((/) \. of the appeal. I have, nonetheless, heard submissions from counsel for the appellant and have considered the evidence given in the Magistrates Court. The appellant's council referred me to the decision of Mr. Justice Hardie Boys in so 50 Messiter v. The Police (1980) 1 New Zealand Law Reports at p. 586 with respect to the use of insulting words in a public place. The facts of this case may be stated briefly. At about 60 60 ~ovt. Printer, Qld. 1 -- 1 of 6 -- I 10 20 30 40 50 2.25 p.m on Saturday 17 March 1990 the respondent was in a vehicle which was driving along Ross River Road at Condon, a location quite remote from central Townsville and one which at that time and day is notoriously not well served by public transport. The defendant was hitchhiking or at least he appeared to the respondent to be hitchhiking. The respondent halted the police vehicle, alighted and spoke to the appellant who confirmed that he wished to travel to a friend's place and had become sick of walking. The respondent then issued the appellant with a traffic offence notice alleging the offence of hitchhiking;, although the material elements that go to make up that offence need not be set out. It does appear that the respondent may have known the appellant because he introduces his conversation with a salutation containing the appellant's first christian name and he uses that name elsewhere in the conversation. The respondent stated that the appellant was visibly agitated on being issued with the offence notice. The respondent returned to the police vehicle and as it was put in motion observed, by means of the rear vision mirror, the appellant, "Lift his right arm and his right index finger and he appeared to be mumbling something." At this point the respondent by his actions fuelled the fires of the appellant's discontent. He stopped the police vehicle, returned to the appellant and asked what was wrong. He was told, "You pigs are all the same." He told the appellant that if he continued "with this language" he would be arrested. Having poured further petrol on the fire the respbndent' s threats of arrest provoked the reply, "Thanks, 10 ( l' 30 ' ) 40 \ ) 50 ~ ~ '3ovt. Printer, Qld. 2 -- 2 of 6 -- pig." and the appellant was then arrested. In his evidence the respondent agreed that he, in the course of his police career, had been called many things, but he said that he found "pig" very offensive. He also inferred that the term "pigs" is one which the police use 10 amongst themselves to describe themselves and also that it was a term that is generally used to describe the constabulary just as the terms "copper" and "bobbie" have been used, rightly or wrongly to describe members of the police force or as they are now called, members of the police service. In setting up the offence the Vagrants Gaming and Other Offences Acts. 7(c) does not provide any guidance as to () what will be and what may be and what will not be insulting. The word carries its ordinary every-day meaning, as will be 30 well known. It is not always the word which is used that renders it insulting. It will be the intonation and other surrounding circumstances which will carry the insult or destroy any apparent insult. The gravamen of the offence, () however, is that the language is used in a public place and 40 it appears that Parliament was concerned that there should () be rather more purity of language and rather more dignity of conversation in a public place than in a private place. As so Mr. Justice Hardie Boys pointed out at p. 591 there is a distinction between the private and the public nature of particular words: "Offensive or insulting words will constitute an offence if they are spoken in a way that can be heard by other persons as well as those to whom they are addressed, or if they are addressed to an individual in circumstances that amount to an intrusion upon his rights as a user of the public place. Whether such circumstances exist will be a matter of degree 10 20 30 40 so 60 60 .ovt. Printer, Qld. 3 -- 3 of 6 -- 10 20 30 40 so 60 according to the. individual case. A whispered word to an intimate friend cannot be an offerice. A whispered word to a complete stranger may well be." In determining whether an offence has been committed one should bear in mind that in many respects the offender is being punished for his illiteracy or deficient vocabulary ·when those who possess greater skill with words can deliver a studied insult in language apparently inoffensive and in language whereby the barb does not strike home until long after the utterance. It should also be remembered that there is no catalogue of words which if uttered will be automatically insulting or offensive or indecent or obscene, whatever epithet be used and whatever offence be sought to be proven. 10 20-- ( I The word, "pigs" is, in my experience, one which over (} the last two decades or so has come to be widely used in the community and particularly within that segment of the community which does not regard Roget's Thesaurus as daily reading. The test is objective and not as the Constable would suggest in evidence subjective. In my view, in the particular circumstances of this offence it cannot be said beyon~ reas6nable doubt the appellant used insulting ·larfgti~a.ge·. There is no suggestion that what he said was heard by any member of the public other than the respondent. What he said came as a reaction to receiving an offence notice in relation to what is quite · common conduct and has been for many decades and what is conduct which can be lawfully engaged in if done in the non-proscribed location. I can appreciate the·salling nature of the action of the respondent, bearing in mind the virtual absence of public transport and the difficulty that can be · "'rinter, Qld. 4 30 40 so 60 -- 4 of 6 -- 10 20 C) 30 0 40 found in engaging taxis, particularly in such a remote location as Condon. The appellant's action in seeking to give a well-known sign of disapproval to the departing police officer is not approved by me, but I do think the police officer would have been more discreet had he simply continued driving, allowing the appellant to engage in what was, after all, a quite mild form of protest. It seems to me that the appellant, if it be the case that he and the respondent had prior knowledge of each other, was not in any way insulting when he informed the respondent that he was no different from any other police officer - in other words, he was a person who would indiscriminately issue tickets and do his friends no favours. The respondent should have been quite flattered by that declaration, but stppidly, in my view, he virtually invited the _ a:ppellant to repeat the w.ord by his threa~ to a:rrest. Many might say that b those words t:be: re§'rx:mdent manifested hi.s lineage and demonstrated that attitude_ which, over the years, has caused concern. to· reasonable Queenslandersj. I will allow the appeal. The finding of guilty and the conviction of the respondent are set aside as are all orders (~J consequential upon such conviction. In lieu, thereof, I order that a finding of not guilty be entered a:nd the complaint dismissed. I direct that not later than 2 November 1990 the 50 appellant submit to the respondent's solicitor a statement setting out particulars of the amounts incurred by the appellant by way of fees and outlays with respect to proceedings in the Magistrates Court. I direct that not later than 15 November 1990 the 60 -Govt. Printer, Old. 5 10 20 30 40 50 60 -- 5 of 6 -- respondent advise the appellant's solicitors whether it accepts all or any of the fees and outlays so notified or whether it disputes all or any of the said fees and outlays. I adjourn the further hearing of the appeal to a date to be fixed. 10 10 20 0 30 30 40 40 50 50 60 60 Govt. Printer, Qld. 6 -- 6 of 6 --