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CHRISTINE FEERICK[*]
Offensive language is punishable without needing to constitute a breach of the peace.[1] Typical offenders include Indigenous Australians who are heavily over represented for the offence, and the victim is usually a police officer.[2] A majority of offenders are arrested for the offence of offensive language. This is despite the maximum penalty being only a fine, and courts not being empowered to deprive an offender of their liberty.[3]
Each year in New South Wales an increasing number of people are arrested for minor offences such as offensive language. Despite the fact that society seemingly uses the word 'fuck' as just another noun, verb or adjective,[4] police continue to arrest people who use such language at the wrong time, in the wrong place, or towards the wrong person. As I explore below, statistics show that Indigenous Australians are over-represented for this offence.[5] This is not necessarily because they commit the offence more often, but rather because policing methods combined with the underlying police culture unfairly or improperly target Indigenous Australians, especially youth. This article explores the factors contributing to the over-representation of Indigenous Australians for the offence of offensive language, and analyses whether this situation is set to change in the wake of DPP v Carr ('Carr'),[6] a recent New South Wales Supreme Court (NSWSC) decision.
Lance Carr (L), a young Indigenous Australian man, was arrested for offensive language. The victim of this offensive language, a police constable (P), had approached L in pursuit of some information about rocks being thrown at a passing police car. L was not a suspect for this incident The conversation soon turned into an argument between L and P, with L telling P: 'Fuck you. I didn't fuckin do it You can get fucked.' It was at this point that P placed L under arrest for offensive language. By the time L was in police custody, two more charges - resist arrest and assault police - had been laid. L's behaviour in the dock at the police station was used to substantiate a further charge of intimidating police. L was charged with four offences, all stemming from the fact that he was uncooperative towards P.[7]
The substantive issue before the magistrate was the validity and necessity of P's arrest of L-the additional charges would not have occurred had L not been placed under arrest. The magistrate held 'that the evidence relating to resisting police, assault police and intimidate police was obtained in consequence of an improper act, namely, the arrest of [L] for an offensive language charge',[8] and thus could not be admitted. The magistrate also declined to exercise his discretion and admit the evidence under s 138 of the Evidence Act 1995. Both these findings were challenged on appeal.
On appeal, Smart AJ of the NSWSC dismissed seven of the eight grounds of appeal submitted by the DPP. The DPP only succeeded on a procedural ground, because the magistrate had relied on material that was not tendered in evidence when reaching his decision. As Smart AJ, who largely agreed with the magistrate at first instance put it:
This court has been emphasising for many years that it is inappropriate for powers of arrest to be used for minor offences where the defendant's name and address are known, there is no risk of h1m depart1ng and there is no reason to believe that a summons will not be effective...The consequences of the employment of the power of arrest unnecessarily and inappropriately and Instead of issuing a summons are often anger on the part of the person arrested and an escalation of the situation leading to the person res1sting arrest and assau/t1ng the police. The pattern in this case is all too familiar.[9]
This pattern, where an offender is charged with three or four offences arising from the same set of circumstances, is commonly referred to as the 'trifecta' or 'quadrella' respectively.
'Arrest, for the great majority of people, is equivalent to an additional penalty ... and should not be employed where the issue of a summons will suffice'.[10] This has been the position of the courts in NSW since at least 1980.[11] Additionally, although police have the power to arrest, they are taught from introduction into the police service that this power should only be exercised as the last resort.[12] This guidance is consistent with recommendations from the Royal Commission into Aboriginal Deaths in Custody (RCIADIC). Recommendation 86, for instance, stated that the use of offensive language in circumstances of interventions initiated by police - such as in Carr- should not normally be occasion for arrest or charge.[13] Despite these recommendations from the courts and the RCIADIC, statistics from. the National Police Custody Survey strongly suggest that arrest is not used as a last resort option for Indigenous Australians in practice.[14]
Options have been introduced by the NSW Parliament to assist in the implementation of Recommendation 86. For example, Field Court Attendance Notices (FCANs)[15] were introduced into the NSW police system to simplify the whole procedure of getting people into the appropriate forum. FCANs give police officers the discretion to issue a Court Attendance Notice (CAN), whilst out on the beat, without needing to arrest the person and take them back to the station for the purpose of later charging or serving them with a CAN. Their introduction was supposed to 'alleviate the concern over the power of arrest being inappropriately used for those offences which are minor…’[16] Parliament had intended that the introduction of FCAN's would result in fewer offenders being taken into custody.[17]
In Carr, L was arrested for continuing to swear, and because it was 'far quicker' in the opinion of P to arrest for the purpose of issuing a FCAN than issuing process at a later time.[18] P knew L's name and address, so the difficulty in issuing process at a later time is questionable. P arrested L despite the NSW Police Service Handbook explicitly stating that arrest is a measure of last resort, and inappropriate where a summons or FCAN will suffice.[19] Unfortunately, the constable's actions in Carr were not, and possibly are not, an isolated practice.[20] It is apparent from a stream of authorities and statistics, that there is a division between the 'law in the books' and the 'law in action'.
Although improper, police continue to arrest people for minor offences where another form of procedure would be adequate. Similarly, despite strong disapproval from the courts and RCIADIC about police actions in arresting and then loading up an alleged offender with offences that would not otherwise have occurred, police continue such practices. These practices, entrenched within police culture, cannot be changed simply by judges and magistrates exhorting police to 'refrain from doing this ...' The remedy at hand is the judicial discretion to exclude evidence on grounds of impropriety.[21] But since most defendants plead guilty the impact! of exclusion as a realistic deterrent will be small. If the decision in Carr is really to make an impact on modem policing, there needs to be a shift in engrained police culture.
Charges about language just become part of an oppressive mechanism of control of Aboriginals. Too often the attempt to arrest or charge an Aboriginal for offensive language sets in train a sequence of offences by that person and others-resisting arrest, assaulting police, hindering police and soon, none of which would have occurred 1f police were not so easily 'offended'.[22]
Another strategy to deter misuse of these charges is to define offensive language so as to exclude cases where the only person hearing the offensive language is a police officer. Swearing at police should not become a form of 'contempt of cop'.
In Carr, L offended a police officer. It appears that there were no other people within earshot who would have heard the offensive language. The police officer had initiated the intervention and had then apparently been offended by the response received. This is consistent with the majority of offensive language cases where the victim of the language is a police officer.[23] This use of criminal charges for offensive language is seen by many as hypocritical, especially as it has been demonstrated that police frequently use language which, when used by an Indigenous Australian, would lead to an arrest and charge.[24]
Police culture is the term used to describe the behavioural and attitudinal problems within police organisations such as loyalty to fellow officers, an emphasis of physical toughness and preferences for action over talk.[25] Police culture has also been used to explain the racial and ethnic prejudice within the police service. '[T]he way in which particular stereotypes are passed on from generation to generation within the [police] culture, so that they are unquestioningly accepted as "knowledge" or "common sense".'[26]
A contributing factor to the over-representation of Indigenous Australians in the criminal justice system is that Indigenous Australians are deemed 'suspicious' and then noticed and approached by police officers more often than their non-indigenous counterparts. Matza argues that the main bias of police operation flows from the method of suspicion, a form of regular police practice that utilises 'essential thieves' and those resembling them as 'suspects'.[27] The essential thieves Matza speaks of are those people who are 'known', who have a record and reputation for particular offences. This method of suspicion, which appears to stem from police culture, was demonstrated in Carr where L was approached by P because he was known by police to be a troublemaker.[28] Similarly, in an earlier case of Police v Shannon Thomas Dunn, Dunn was approached by the police because he was known to the officers.[29] Dunn was then accused of stealing a bicycle, and was subsequently anrested for offensive language. It is unlikely Dunn would have been stopped or noticed had he been 'unknown' or not 'suspicious' in the minds of the police officers.[30]
Land Dunn's identity as prior offenders led to the police in1tially approaching them. Police culture appears to dictate that Indigenous Australians are crime-prone, potentially disorderly, and consequently must be watched. The level of intervention which police have had, and practised, in the lives of Indigenous Australians would not be considered permissible in relation to any other group within the community.[31] The National Inquiry into Racist Violence and the RCIADIC revealed police practices such as constant patrolling and the practice of placing spotlights on individuals or houses. These practices are both intrusive and intimidatory, yet consistent across Indigenous Australian communities all over Australia.[32] This level of intervention has been enabled by the disproportionate allocation of police resources, reflecting police culture as well as local community demands for more visible policing. If the decision in Carr to is to have any impact, the race-based stereotypes passed down within the police service need to change.
The manner in which Indigenous Australians have been treated in the criminal justice system has been a recurring theme in the history of debates about public order legislation in Australia.[33] Police are essentially the gatekeepers for the system. They decide who will enter and how they will enter. Police work always involves choices from several options. Public order legislation is often vague, and consequently the classification of the behaviour in question is usually left to the discretion of police. In the context of an individual offence, choices must be made whether to investigate, charge, arrest, caution, give warning, or refrain entirely from intervention. This discretion is inevitable in policing since full enforcement of the law is an impossible task and would be unduly inflexible.[34]
Police are permitted to act where behaviour in a public place is regarded as offensive, insulting, abusive or indecent .[35] The laws prohibiting offensive language and conduct in Australia are not tied to causing harm to others or property, and thus can be deployed in a broad range of situations.[36] The maximum penalty for the offence of offensive language in New South Wales is currently $660. The crime is at the lowest end of the criminal scale, but police have the power to arrest for the offence if they deem such action to be necessary.
Offensive language is a criminal offence in all Australian jurisdictions, either expressly:
• Summary Offences Act 1988 (NT)s 47
• Summary Offences Act 1953 (SA) s 7
• Police Offences Act 1935 (fas) s 12
• Summary Offences Act 1966 (Vic) s 17 or impliedly:
• Police Powers and Responsibilities Act 2000 (Qtd) ss 37, 39 and Vagrants, Gaming and Other Offences Act 1931 (Qld) s 7
• Police Act 1892 (:IVA) ss 54, 59.
For recent cases illustrating the use of these provisions in other jurisdictions, see:
• Robinett v Police [2000] SASC 405; (2000) 116 A Crim R 492
• Hill v SA Police (2002] SASC 28
• Del Vecchio v Couchy [2002] QCA 9.
The RCIADIC found that in dealing with trivial incidents, such as offensive language, there was considerable room for 'alternative courses of action by police, depending on how they interpret a situation, what aims they adopt in their policing, what judgements they make and how they exercise numerous discretions available to them.'[37] Blazejowska argues that the offence of offensive language is being used as an instrument of social control against Indigenous Australians, noting how the re-introduction of the offence came from police and white citizens in towns with significant Indigenous Australian populations.[38] Empirical studies of the operation of offensive conduct laws in Australia and England, clearly show that 'these laws impact disproportionately on minority groups, being used primarily to deal with individuals who swear at the police or otherwise demonstrate disrespect to authority'.[39]
Choices do need to be made by the police service as a whole, about whether particular offences should be policed, and the resources to allocate to particular geographical areas or certain groups.[40] Unfortunately, the way in which many Indigenous people use public space often leads to the conclusion that they are crime prone. Consequently they have become targets for repressive policing practices. NSW does not collect racially based arrest statistics. However, comparative analysis of statistical data has consistently shown that areas with high Indigenous Australian populations are allocated greater numbers of police. For instance, in 1990, the ratio of police to population for Wilcannia, a small rural township with a high Indigenous Australian population was 1:73, whereas the ratio for the state of NSW. as a whole was 1:459.[41] These findings of heavy police presence in areas with high Indigenous Australian populations have been consistent in studies and across other Australian jurisdictions.[42]
This allocation of significant police resources to small country towns with large Indigenous Australian populations inevitably leads to a focus on minor public order offences. Analysis of information from the NSW Bureau of Crime Statistics and compared with population data from the Australian Bureau of Statistics tends to show a dose correlation between local government areas (LGAs) with a high Indigenous Australian population and LGAs with the highest number of offensive language convictions per head.[43] 'Many of these offences would not occur, or would not be noticed, were it not for the adoption of particular policing policies which concentrate police numbers in certain areas, and police effort on the scrutiny of Aboriginals'.[44] Cunneen has described this unequal allocation of resources as over-policing.[45] This concept is used to describe how Indigenous Australians and Indigenous Australian communities are policed differently, and more extensively than non-Indigenous communities. It is questionable whether the decision in Carr will be able to affect or change this, without a change in police culture.
Indigenous Australians account for 15 times as many offensive language offences as would be expected for their population.[46] The use of arrest in response to minor offending may elicit a defiant response from the arrestee, producing further offending which might not otherwise occur.[47] The swearing often results in attempted arrest which generally brings further charges. Consequently, the 'trifecta' that is often seen on Indigenous Australian charge sheets results: offensive language, resist arrest and assault police.[48]
An International Commission of Jurists report suggests that the number of offences charged 'far outweighs the true criminality arising from the incident' and that the 'appearance of multiple offences from one incident upon a person's criminal record may give an exaggerated impression of the true degree of criminality involved'.[49] In Carr it seems likely that L would not have been approached had he not been known or thought to be suspicious by P; and consequently no offences, as opposed to the four with which L was later charged would have ensued.
This initial arrest also creates adverse implications for the Indigenous Australian, due to a caution being less likely on the second instance because of their previous arrest. Additionally, arrest has the potential of making it more difficult for the person in question to obtain future employment, most particularly in a tight labour market where opportunities for unskilled workers are severely constrained.[50] The RCIADIC National Report concluded that the most significant factor contributing to indigenous over-representation in the criminal justice system 'is the disadvantaged and unequal position in which Aboriginal people find themselves in society socially, economically and culturally'.[51] These underlying factors demonstrate the need for arrest only to be used as a measure of last resort, further exemplifying the need for police to implement the decision in Carr.
The Court in Carr held that the use of arrest for minor offences where a summons, FCAN or another alternative means would have been sufficient would no longer be tolerated by the courts. This has been the general position for years, yet police appear not to have heeded these warnings. New recruits are inducted into the police service and are taught the correct use of the power to arrest. However, once inducted, these recruits join the police service as a whole, and are subject to the working conditions which are imposed on them. The close concentration of police in areas with high Indigenous Australian populations is a notable contributor to the fact that the LGA with the highest number of people prosecuted for offensive language each year matches the LGA with the highest Indigenous Australian population.
Arrest has been shown to set in train a sequence of events and extra charges which would more than likely not have occurred if the officer had not proceeded to exercise their powers of arrest on the offender. The language which the offender is commonly arrested for is language which police themselves constantly use,[52] and language which the general community no longer considers as particularly offensive. Arrest for the offence of offensive language has proven to be a tool for reinforcing police authority on the street rather than for preventing crime or disorder. It is a tool because it gives police the authority to arrest someone who is being un-cooperative, or is in the wrong place at the wrong time -arguably like L was -once the person uses an offensive term. It is also a tool, due to the offence often being used by police as a springboard for other offences. Consequently, the Indigenous Australian winds up with more charges added to their criminal record. This is not reflective of the true criminality of their actions. However, the fact that the person has been arrested and charged previously creates adverse implications for the individual later on.
The remedy in Carr, namely the judicial discretion to exclude evidence, is unlikely to act as a serious deterrent for the reasons noted above. The culture, attitudes and the use of discretion from within the police service need to change. This requires a change in the techniques used for policing Indigenous Australian communities. If Indigenous Australian communities were not over policed there is strong evidence to show that their representation within the criminal justice system for minor offences would also decrease. 'The decision [in Carr], properly applied, will see a lessening of pointless confrontation between police and citizens. Police will be more accountable for their actions before the courts, and will thus need to be more thoughtful in carrying out their duties'.[53] This hopeful statement, written shortly after the decision in Carr was handed down is yet to become reality. Cases subsequent to Carr have seen the courts themselves confine the case to its individual facts, allowing police to persist with their traditional pro-arrest stance.[54]
Nonetheless, even if Carr has not made the impact on modem policing which many thought it would, it is definitely a stepping stone along the way to much needed change. Police play an important role throughout the criminal justice system as their initial course of action exerts significant influence on subsequent outcomes. It is time for police to realise this, to heed the warnings from the courts, and to take a more active role in assisting, not oppressing, Indigenous Australians.
REFERENCES
[*] CHRISTINE FEERICK is a law student at the Australian National University.
© 2004 Christine Feerick
email: christinefeerick@yahoo.com
[1] This requirement was dropped in New South Wales in a 1908 amendment to the Vagrancy Act 1902.
[2] NSW Anti-discrimination Board, Study of Street Offences and Aborigines (1982) 48
[3] D Heilpern, 'Judgment Police v Shannon Thomas Dunn, Dubbo Local Court' (1999) 24AltLJ238, 241.
[4] See, B Walsh, 'Offensive Language: A Legal Perspective' in D Eades (ed), Language in Evidence (1995) 203, 207, D McNicoll, 'A Word to Swear By', The Australian (Sydney), 3 September 1999, 11
[5] Commonwealth Royal Commission into Aboriginal Deaths in Custody, National Report of Inquiry (1991)
[6] DPP v Carr [2002]NSWSC 194.
[7] Ibid [4]
[8] Ibid [2].
[9] Ibid [35]
[10] Lake and Gault v Dobson (Unreported, New South Wales Court of Criminal Appeal, 19 December 1980) (Samuels J)
[11] Ibid
[12] NSW Police, 'Law notes 02/13, When to refrain from arresting for minor offences' in PSW 14(13) 8 April 2002, 9.
[13] New South Wales, Victoria & Tasmania, Royal Commission into Aboriginal Deaths in Custody, Regional Report of Inquiry in New South Wales, Victoria and Tasmania (1991) Recommendation 86-7
[14] Aboriginal and Torres Strait Islander Commission, Zero Tolerance Policing Implications for Indigenous People#5 (2002) <www atstc gov.au/tssues/law_and_justice/zero_tolerance olietng/report/7ztp asp> at
5 June 2003.
[15] Justices (Amendment) Act 1993 (NSW) ss 1OOAA-AB.
[16] C York, 'Police Move to Reduce Confrontation with Field Court Attendance Notices' (1997) 33 Law Society Journal 25.
[17] Carr [2002] NSWSC 194 [43-6].
[18] Ibid [9]
[19] See above n 12
[20] See, eg, Fleet v District Court [1999] NSWCA 363, Daemar v Corporate Affairs Commission (Unreported, New South Wales Court of Appeal, 4 September 1990); Police v Shannon Thomas Dunn (Unreported, Dubbo Local Court, 27 August 1999)
[21] Evidence Act 1995 (NSW) s 138 provides that evidence that is illegally or improperly obtained should not be
admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained
[22] See above n 13, 145.
[23] 'Public Order Offences' in C Cunneen and T Libesman, Indigenous People and the Law in Australia (1995) 93
[24] See, eg, ABC Television documentary Cop It Sweet, 1991 See also above n 12.
[25] A Goldsmith, M Israel and K Daly (eds), Crime and Justice An Australian Textbook in Criminology (2nd edition, 2003) 254; J Besant K Carrington and S Cook (eds), Cultures o(Crime and Violence (1995), James S (ed), Police and the Culture of Violence, 2001
[26] See above n 13, 211-2.
[27] Matza (1969) in K Bottomley and C Coleman, Understanding Crime Rates (1981) 102
[28] DPP v Carr [2002] NSWSC 194 [6-1O]
[29] Police v Shannon Thomas Dunn (Unreported, Dubbo Local Court, 27 August 1999).
[30] See, B Hunter, Factors Underlying lndigenous Arrest Rates (2001) for a national comparative study of lndigenous Australians who are arrested with those who are not
[31] H McRae, G Nettheim and L Beacroft, Indigenous Legal Issues-Commentary and Materials (3rd edition, 2003) 501.
[32] Cunneen, above n 23, 92
[33] R Jochelson, 'Aborigines and Public Order Legislation in New South Wales' (1997) 34 Crime and Justice Bulletin 1, G Gardiner, 'Indigenous men and the Victoria Police alleged offenders, rates of arrest and
over-representation in the 1990's' (2001) 5 Indigenous Law Bulletin 20
[34] 'Police culture and the use of discretion' in C Cunneen, Conflict, Politics and Crime- Abonginal Communities and the Police (2001)
[35] D Brown, D Famer, D Neal and D Weisbrot, Criminal Laws Materials and Commentary on the Criminal Law and Process of New South Wales (1990)
[36] See, eg, Crimes Act 1900 (ACT) s 392, Summary Offences Act 1988 (NSW) ss 4 and 4A
[37] See above n 13, 268.
[38] Blazejowska prepared a submission to a review of the swearing law, conducted by the NSW Attorney-General in 1995, on behalf of Redfern Legal Centre, discussed 1n R Glover, 'Why Offensive Words Should be Redefined' in Cunneen et al, above n 23, 93
[39] S Bromtt and G Williams, 'Political Freedom as an Outlaw. Republican Theory and Polit1cal Protest' [1996] AdelLawRw 10; (1996) 18(2) Adel LR 289, 312.
[40] R Sanre and J Tomaino (eds), Key Issues in Criminal Justice (2004) 49-79
[41] McRae et al, above n 31,501-3
[42] Jochelson, above n 33, Amnesty lnternational, Australia A Criminal Justice System Weighted against Aboriginal People (1993) 23.
[43] Jochelson, above n 33
[44] See above n 13, 268.
[45] From over-policing to zero tolerance' in Cunneen, above n 33
[46] Bureau of Crime, Statistics, and Research Brief, (August 1999) in C Chan and C Cunneen, Evaluation of the Implementation of NSW Police Service Aboriginal Strategic Plan,, Commissioned by the NSW Police Service and the NSW Ombudsman (June 2000)
[47] L Sherman, 'Defiance, Deterrence, and Irrelevance A Theory of the Criminal Sanction’ (1993) 30 Journal of Research in Crime and Delinquency 445-73.
[48] Chan et al, above n 46, 2.
[49] ICJ (1990) 1n Abong1nal and Torres Strait Islander Commission, Keeping Aboriginal and Torres Strait Islander People Out of Custody – The Impact of Policing <www.atsic.gov.au/issues/law_justice/rciadic/keeping_atsi_people_out_of_custody.asp>at 5 June 2003
[50] P N Grabosky, 'Zero Tolerance Policing' (1999) 102 Australian Institute of Criminology,, 3
[51] See above n 5,12 [1.7.1].
[52] See, eg, above n 24.
[53] M Dennis, 'Is this the death of the TRIFECTA' (2002) 40 Law Society Journal, 66,67
[54] The Court in DPP (NSW) v CAD [2003] NSWSC 196 and Wilson v DPP [2002] NSWSC 935 both respectively held that the relevant fact scenario could be distinguished from Carr because the accused was not known to police.
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