Charged with offensive conduct or offensive language?
The Summary Offences Act 1988 (NSW) creates separate offences for offensive conduct and offensive language in or near, or within view or hearing from, a public place or school. ED Legal provides advice and court representation for these charges across NSW.
The legal test is not simply whether someone disliked or objected to the conduct or words. The circumstances, location, audience and accepted legal meaning of 'offensive' matter, and the Act provides a reasonable-excuse defence.
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How we can help you
We can review body-worn video, CCTV, witness statements and the police account and assess the words or conduct in their full context.
We can advise on whether the prosecution can prove the offence, whether a reasonable excuse is available, make representations where appropriate and prepare a defended hearing.
After police issue a charge or notice
Keep the penalty notice, Court Attendance Notice or other paperwork and obtain advice before electing to take a penalty notice to court or entering a plea.
Preserve any video, audio, messages or witness details that show the context. Body-worn video can be especially important where the police account and accused person's account differ.
Understanding the two offences
Section 4 deals with offensive conduct, while section 4A deals with offensive language. The offences are separate and the prosecution must prove the particular charge beyond reasonable doubt.
Offensive conduct
Section 4 prohibits offensive conduct in or near, or within view or hearing from, a public place or school. The maximum penalty is 6 penalty units or 3 months imprisonment. Merely using offensive language does not, by itself, constitute offensive conduct under this section.
Offensive language
Section 4A prohibits offensive language in or near, or within hearing from, a public place or school. The maximum penalty is 6 penalty units. The section also permits specified community-service alternatives in place of a fine in appropriate cases.
Reasonable excuse
Both section 4 and section 4A provide a defence where the defendant satisfies the court that there was a reasonable excuse for the conduct or language alleged. Whether an excuse is reasonable depends on the circumstances.
Defending an offensive conduct or language charge
A defence may involve disputing what was said or done, whether it occurred in the required public-place or school context, whether the conduct or language was legally offensive, or relying on reasonable excuse.
The words or conduct should be assessed in context, including what happened immediately before and after the incident and who was present.
Video or audio evidence can be particularly important because tone, volume, police conduct and surrounding events may not be fully reflected in a short written statement.
Related charges such as resist or hinder police, assault police or failure to comply with a direction have separate elements and should not be assumed to follow from an offensive-conduct allegation.
Deciding how to respond
Get advice before entering a plea or electing to have a penalty notice determined by a court. A court election can expose a person to the sentencing powers available for the offence rather than simply reproducing the original penalty notice outcome.
If you intend to plead guilty, we can explain the available sentencing options and help prepare relevant material.
Related police charges
Offensive conduct or language matters sometimes arise from a broader police interaction involving resist or hinder police, assault police or other allegations.
We can review the complete incident so that each charge is assessed on its own legal elements and the evidence is considered consistently.
Penalties and outcome
The statutory maximum for offensive conduct is 6 penalty units or 3 months imprisonment. Offensive language carries a maximum of 6 penalty units. The actual outcome depends on the circumstances, prior history and available sentencing options.
Preparing to speak with a lawyer
Tell us whether you received a penalty notice or Court Attendance Notice, the exact charge, the court and next date, and whether body-worn video or CCTV exists. Preserve any recordings and witness details.
For advice about an offensive conduct or offensive language charge, contact ED Legal for a free initial consultation. You can also review our Resist or Hinder Police and Assault Police pages.
Sources
Disclaimer: This information is general in nature and is not legal advice. It is intended as a guide only. You should obtain formal legal advice about your specific circumstances.
