Lyons, Greg --- "Williams v Pinnuck (Criminal law - disturbing the public peace - appeal against conviction under s.47(b) Summary Offences Act - no evidence of disturbance of public order - conviction set aside)" [1983] AboriginalLawB 22; (1983) 1(8) Aboriginal Law Bulletin 9

• Williams V Pinnuck
• Criminal Law-Disturbing The Public Peace-Appeal Against Conviction Under S.47(b) Summary Offences Act-No Evidence Of Disturbance Of Public Order-Conviction Set Aside.

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Williams v Pinnuck

Criminal law - disturbing the public peace - appeal against conviction under s.47(b) Summary Offences Act - no evidence of disturbance of public order - conviction set aside.

Williams v Pinnuck

Supreme Court of the Northern Territory of Australia at Alice Springs

(Muirhead ACJ)

8th March 1983

No.A/S 89 of 1982.

Casenote by Greg Lyons

Ivy Williams was arrested and charged with 'disturbing the public peace' contrary to s.47(b) Summary Offences Act which provides that 'every person who is guilty of disturbing the public peace ... shall be guilty of an offence'. Through her counsel, she argued before the Stipendiary Magistrate that as a matter of law, her behaviour did not constitute the offence charged. Nevertheless Ivy Williams was convicted. She subseqently appealed on the ground that there was no evidence to support the conviction. Muirhead ACJ stated:

This appeal concerns our right to be noisy. In the early hours of the morning on 31 August last police officers who were on mobile patrol at Tennant Creek heard a very loud noise apparently emanating in scrub adjacent to a caravan park. They traced the source of the noise and found Ivy Williams, an Aboriginal woman. In a nearby Aboriginal camp she was loudly haranguing four other women who were sitting around a camp fire. Her shouts were accompanied by much waving of her arms' On the evidence the scene was otherwise peaceful. The depositions do not speak of bystanders being aroused. There was no melee, there was no evidence of substantial annoyance to others, and perhaps as the police could not comprehend what Ivy Williams was saying, there was no evidence of indecent or obscene language. We do not know what she was saying - she may have been making a political speech, conducting a revivalist prayer meeting or heaping abuse upon those near her. The particulars of the complaint which was eventually laid alleged that her shouting was due to the difficulties she encountered in obtaining beer from the ladies she was addressing. This may indeed be true as the police officers said she was drunk. There was however no evidence that this was the cause of her apparent annoyance or frustration or the subject of her shouts. Ivy Williams rejected police suggestions that she should settle down and retire to her own camp - in fact she advised the police in her own words that they had neither the power to enforce that suggestion nor to arrest her. She emphasised "this is a Mulga camp". Perhaps she considered she was not in a public place - which as matters turned out was not a relevant feature of the charge later laid against her...

Almost one hundred years ago, in a very different age and in a very different environment - in days when Ivy's people roamed freely, unimpeded by the white man or his law, and before members of the Salvation Army were regarded with the affection and trust which surrounds them today, one Smith (a major in the Salvation Army), was found by Justices sitting in Hastings, England, to have 'blown a cornet loudly and in a discordant manner', fellow members 'marching with him, giving out and singing Salvation Army hymns or songs, beating time and shouting loudly "Alleluia" and other expressions'. He was charged under legislation designed to regulate and improve the town and port of Hastings, one section of the Act providing as follows:

If any person shall make, excite, or join in any brawl, or otherwise disturb the public peace, or use any obscene, profane or abusive language in any of the said streets or places, or commit any public nuisance or annoyance whatsoever within the said town and port; every person so offending shall for every such offence forfeit and pay any sum not exceeding forty shillings.

A question of law was stated for the opinion of Lord Coleridge CJ and Cave J sitting in the Queens Bench Division as to whether, on those facts which were not in dispute, Major Smith (and others) should be convicted of disturbing the public peace. The court accepted the submission that the mere making of a noise in a public place, even though some interference with the comfort of others is caused was 'no evidence of any disturbance of the public peace' within the meaning of the Statute. (Beaty and Others v Glenister 51 LT (NS) 304). And so this effort to nip the Salvation Army in the bud failed. That pronunciation of our right to freedom of expression, albeit in a noisy manner, has withstood the test of time. To interpret the section broadly and literally, by classifying loudness of expression within the earshot of others as an offence per se on the basis that it disturbs or is likely to disturb prevailing peace and tranquility would be a considerable erosion of liberty. If this was so our right to be lusty and vehement in our expressions to others - our right to let off steam - could be quickly suppressed.

The issues were later clearly spelled out by Burbury CJ in Neave v Ryan [1958] TASStRp 13; (1958) Tas SR 58, a case involving the 'very excited - almost raving' expressions of a gentleman in Hobart following a public meeting of the then Democratic Labour Party. The appellant was charged with obstructing the police (of which he was acquitted) and also of disturbing the peace. The Chief Justice's words related to the latter charge:

The appellant was not charged under s.12 of the Police Offences Act 1935 with using threatening, abusive or insulting words or behaviour with intent to or calculated to provoke a breach of the peace. Under some circumstances a protest to a crowd against an arrest being made by the police might constitute the offence of obstructing a police officer in the execution of his duty or might constitute behaviour calculated to provoke a breach of the peace. But the appellant was acquitted of the charge of obstructing the police and there remains only the conviction of disturbing the public peace "by shouting out in a loud tone of voice".

It is unnecessary to determine whether the offence of "disturbing the public peace" is synonymous with "committing a breach of the peace". I think this much is clear - that any act which would constitute a breach of the peace at common law would constitute the offence of disturbing the public peace under s.13(1) II. For example, batteries and assaults in public places or fighting in public places are the traditional breaches of the peace. (Reg. v Coney [1882] UKLawRpKQB 30; (1882) 8 QBD 534); Glanville Williams on Criminal Law, Part 1, Section 170.) Such conduct would also constitute the statutory offence of disturbing the public peace. The statutory offence may be wider in its ambit. But at least there must be conduct which creates a disturbance of public order. Shouting loudly in a public place or addressing a crowd in loud tones cannot possibly of itself amount to conduct creating a disturbance of the public peace. There must be some other element - use of insulting, abusing of threatening words or words inciting a breach of the peace. To hold otherwise would endanger free speech. It would bring within the ambit of the criminal law the street corner preachers, the Domain orators and the politicians on the hustings ... Noise in public places may be an annoyance to citizens and may contravene city by-laws but it does not constitute a disturbance of the public peace in the legal sense. The "public peace" is not "peace and quiet" - it is "public order".

It may be that Ivy Williams is fortunate that the evidence stopped where it did, as often conduct of this nature may fall within the scope of section 47(e) by proof that one unreasonably caused 'substantial annoyance to another person' but this was not charged and the evidence fell short of so proving. The evidence was quite insufficient to constitute the offence.

The appeal is allowed and the conviction must be set aside.

Mr. N. Andrews of the CAALAS appeared for the appellant.
Mr. Minahan appeared for the respondent.