Obscene, Indecent, Threatening Language and Behaviour in Public

Have you been accused of Obscene, Indecent, Threatening Language and Behaviour in Public? We can help you navigate the Court process.

Police Interview

If the Police accuse you of using Obscene, Indecent, Threatening Language and Behaviour in Public , they will normally conduct a field interview where they will speak with you on the spot. It is important you understand that the Police have often already decided to charge people before the interview, and have gathered evidence that outline the allegations. It is best you contact our office to arrange and speak with one of our lawyers about your rights and options before you answer any questions.

Pleading Not Guilty

If you decided to plead not guilty to obscene, indecent, threatening language and behaviour in public, we can assist you in defending the charge. We regularly represent people charged with this offence in court at contested hearings. We know how to analyse a case against you, and build a persuasive defence. We can assist you in showing a court you are not guilty of this charge. We take a proactive approach and question:

• Are there any people who witnessed the incident who Police have not spoken to?
• Are there variations in what the Police witnesses heard which can undermine the case against you?

Pleading Guilty

We appear in the courts daily. We know how to ensure you receive the best possible sentence if you decide to plead guilty to obscene, indecent, threatening language and behaviour in public, and will support you in gathering relevant material in advance of the court date. We will support and assist you each step of the way. Our lawyers are experienced in obtaining favourable sentencing outcomes.

Sentencing

Sentencing in the higher courts of VictoriaSentencing in the Magistrates’ Courts of Victoria

Which court will the case be heard in?

This charge is heard in the Magistrates’ Court.

Examples of Obscene, Indecent, Threatening Language and Behaviour in Public

• Mooning (displaying one’s buttocks) at a public football game.
• Streaking (running naked across the playing field) during a public football game.
• Graffitiing a public wall with pornographic imagery.

What is the legal definition of Obscene, Indecent, Threatening Language and Behaviour in Public?

The legal definition for this offence is:¹

1. Any person who in or near a public place or within the view or hearing of any person being or passing therein or thereon—
   1. sings an obscene song or ballad;
   2. writes or draws exhibits or displays an indecent or obscene word figure or representation;
   3. uses profane indecent or obscene language or threatening abusive or insulting words; or
   4. behaves in a riotous indecent offensive or insulting manner—

shall be guilty of an offence.

• 1A. For the purposes of subsection (1)(d), behaviour that is indecent offensive or insulting includes behaviour that involves a person exposing (to any extent) the person’s anal or genital region.

Legislation

The relevant legislative provision for Obscene, Indecent, Threatening Language and Behaviour in Public is section 17 of Summary Offences Act 1966 (Vic) (the Act).

Elements of the offence

The police must satisfy two elements to satisfy this charge:

1. The accused person was in or near a public place or within eyeshot or earshot of another person in a public place;
2. The accused person engaged in obscene, indecent or threatening language or behaviour.

Element 1: The accused person was in or near a public place or within eyeshot or earshot of another person in a public place
To satisfy the first element of this offence the accused person must be in a public place or within eyeshot or earshot of another person who is in a public place.

‘Public place’ is defined in the Act as:²

1. any public highway road street bridge footway footpath court alley passage or thoroughfare notwithstanding that it may be formed on private property;
2. any park garden reserve or other place of public recreation or resort;
3. any railway station platform or carriage;
4. any wharf pier or jetty;
5. any passenger ship or boat plying for hire;
6. any public vehicle plying for hire;
7. any church or chapel open to the public or any other building where divine service is being publicly held;
8. any Government school or the land or premises in connection therewith;
9. any public hall theatre or room while members of the public are in attendance at, or are assembling for or departing from, a public entertainment or meeting therein;
10. any market;
11. any auction room or mart or place while a sale by auction is there proceeding;
12. any licensed premises or authorised premises within the meaning of the Liquor Control Reform Act 1998;
13. any race-course cricket ground football ground or other such place while members of the public are present or are permitted to have access thereto whether with or without payment for admission;
14. any place of public resort;
15. any open place to which the public whether upon or without payment for admittance have or are permitted to have access; or
16. any public place within the meaning of the words “public place” whether by virtue of this Act or otherwise.

Element 2: The accused person engaged in obscene, indecent or threatening language or behaviour
The second element of the offence is satisfied if the accused engaged in obscene, indecent or threatening language or behaviour. The Act lists the following language or behaviour as obscene, indecent or threatening:³

1. singing an obscene song or ballad;
2. writing or draws exhibits or displays an indecent or obscene word figure or representation;
3. using profane indecent or obscene language or threatening abusive or insulting words; or
4. behaving in a riotous indecent offensive or insulting manner.

The Act specifies that mooning, streaking or exposing the genital or anal region all fall within the ambit of obscene, indecent or threatening behaviour.⁴

“Can they prove that the language or behaviour was obscene, indecent or threatening?”

Whether particular language or behaviour is deemed ‘obscene, indecent or threatening’ will evolve with contemporary social standards. For example, certain words might have been taboo in public when the Act was first enacted and be used in everyday speech today.

Defences

Defences to this charge are often based on an element of the offence not being made out. These defences include:

• The behaviour or language was not in a public place or within eyeshot or earshot of a member of the public who were themselves in a public place.
• The behaviour or language was not obscene, indecent or threatening.

Other defences to this charge include duress, wrongful identification and mental impairment.

Questions in cases like this

• Was the language or behaviour obscene, indecent or threatening?
• Was the language or behaviour in a public place?
• Was the language or behaviour within earshot or eyeshot of someone who was in a public place?

Maximum penalty for section 17 of the Summary Offences Act 1966

The maximum penalty for Obscene, Indecent, Threatening Language and Behaviour in Public (s17 of the Summary Offences Act 1966) depends on how many times the accused person has previously been found guilty of the charge.

First offence
For a first offence, this offence carries a maximum fine of 10 penalty units (a $1611.9 fine) or a maximum of 2 months imprisonment, or both.⁵

Second offence
For a first offence, this offence carries a maximum fine of 15 penalty units (a $2417.85 fine) or a maximum of 3 months imprisonment, or both.⁶

Third or subsequent offence
For a first offence, this offence carries a maximum fine of 25 penalty units (a $4029.75 fine) or a maximum of 6 months imprisonment, or both.⁷

The Department of Treasury and Finance reviews and updates the value of a penalty unit on 1 July each year.⁸ As such, the maximum fine for this offence is liable to change.

As with any criminal offence, whether or not someone should plead guilty to this charge depends on the specific features of their case.

Case studies related to Obscene, Indecent, Threatening Language and Behaviour in Public

• Adjourned Undertaking for Behave in an Indecent Manner
• Diversion for Behave in an Offensive Manner

Other important resources

• SAC Statistics – Summary Offences Act 1966 (Vic) : s 17(1)(c) – uses indecent language in a public place
• SAC Statistics – Summary Offences Act 1966 (Vic) : s 17(1)(d) – behave in a riotous, indecent or offensive manner in a public place

_{[1] Summary Offences Act 1966 (Vic), s 17.
[2] Summary Offences Act 1966 (Vic), s 3.
[3] Summary Offences Act 1966 (Vic), ss 17(1) and 17(1A).
[4] Summary Offences Act 1966 (Vic), s 17.
[5] Summary Offences Act 1966 (Vic), s 17.
[6] Summary Offences Act 1966 (Vic), s 17.
[7] Summary Offences Act 1966 (Vic), s 17.
[8] See http://www.justice.vic.gov.au/home/justice+system/fines+and+penalties/penalties+and+values/.}