Academic journal article Melbourne University Law Review

The Impact of Coleman V. Power on the Policing, Defence and Sentencing of Public Nuisance Cases in Queensland

Academic journal article Melbourne University Law Review

The Impact of Coleman V. Power on the Policing, Defence and Sentencing of Public Nuisance Cases in Queensland

Article excerpt

[The High Court's decision in Coleman v Power promised to provide the many defendants charged with offensive language, offensive behaviour and public nuisance with a means of contesting their charge. The majority of the Court stated that the purpose of such offences was to maintain public order and to protect the public from harm, and they interpreted the scope of such offences relatively narrowly. Therefore, it was expected that the policing, defence and sentencing of 'offensive' defendants would have changed since Coleman v Power was handed down. To test this assumption, the outcomes of public nuisance cases in Brisbane and Townsville in July 2005 (10 months after Coleman v Power) were compared with those from July 2004 (two months before Coleman v Power). It was found that while more public nuisance defendants were contesting their charge(s), more people were being charged with the offence, that situations leading to a charge did not accord with the standard of seriousness established in Coleman v Power, and that sentencing outcomes were no different. Thus, it appears that Coleman v Power is not being followed at the 'ground level' of policing, defending and sentencing public nuisance cases in Queensland.]

CONTENTS

  I Introduction
 II The Decision of the Court in Coleman
       A Overview
       B The Purpose of the Offence
       C The Scope of the Offence
       D Police and Public Order Offences
III Empirical Study
       A Rationale, Methodology and Hypotheses
       B Findings regarding the Policing of Public Nuisance
            1 The Number of Public Nuisance Charges
            2 The Basis for Public Nuisance Charges
            3 Offensive Conduct Directed at Police Officers
       C Findings regarding the Defence of Public Nuisance Charges
       D Findings Related to the Outcomes of Public Nuisance
         Prosecutions
 IV Conclusion

I INTRODUCTION

In September 2004, the High Court handed down its decision in Coleman v Power, (1) a case that examined the relationship between insulting language and the implied constitutional freedom of political communication. (2) While it has been argued that the decision is of limited relevance to the constitutional interpretation of the implied freedom, (3) the Court's comments on the scope of 'offensive conduct' promised to provide a ray of hope to community lawyers who are routinely faced with the task of defending 'vulnerable' (4) clients against such charges.

A study conducted by the author in February 2004 and a further study in July 2004 (5) revealed a high number of vulnerable people being charged with offensive language, offensive behaviour and 'public nuisance' in Queensland. (6) Additionally, it was found that many people were being charged with these offences for unavoidable behaviour such as vomiting, trivial behaviour such as arm waving, and conduct commonly considered to fall outside the scope of public nuisance, such as engaging in domestic disputes. (7) Further, around one-third of such charges were for conduct directed at a police officer. (8)

Coleman promised to put an end to this pattern for three reasons, each of which will be further explored in this article. First, a majority of the High Court agreed that the legitimate end which public order offences are intended to achieve is the protection of the public from harms including disorder, violence, intimidation and serious affront. (9) This provides police and magistrates with some guidance on how public order offences should be enforced. Second, a majority of the Court construed the offence of 'insulting words' narrowly. (10) The majority's comments imply that a certain level of seriousness is required before 'offensive' conduct will amount to a criminal offence. Third, several of the judges agreed that public order offences should be applied by the police for the protection of the public rather than as a means of defending themselves against dissention. …

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