Public Nuisance

Public Nuisance

In Victoria, Public Nuisance is found in section 61 of the Public Health and Wellbeing Act 2008. It is a criminal offence that is committed by a person or a body corporate that was found to have caused a nuisance; or knowingly allowed or suffered a nuisance to exist on, or come from, any land owned or occupied by that person.

Have you been accused of Public Nuisance? If so, you should call our office to have a conference with one of our experienced defence lawyers. It is worth knowing that anything you tell an investigator can affect your defence later on in Court.
 
Man Covering Ears
Police Interview
If you are asked to participate in an interview to answer questions about an allegation of Public Nuisance, you should get some legal advice from us first. An interview is not usually the time or place where you tell your side of the story and just hope that the matter will go away. The Police will not always be forthcoming with information they have and can use your answers to fill gaps in their case.

It is important to remember that Police officers are trained to ask questions in a way to gather information which helps their case against you. The interview process is not a fact finding exercise.

Pleading Not Guilty
If you are charged with the offence of Public Nuisance and deny the allegations made, our d lawyers can assist you by preparing a defence strategy for you. Obviously we can and will represent you in Court. What separates our firm from other criminal defence firms is that we have in-house barristers employed by the firm who work with our solicitors in preparing a defence when the proceedings begin. This leads to better outcomes because you can have two experienced lawyers plan and execute a strategy throughout the different stages of your case instead of briefing a barrister when a matter is listed for trial.

The brief of evidence which is served on you will not always contain every bit of evidence that exists. Police officers prepare briefs in a way to suit their narrative, not yours. There may be witnesses who Police have not spoken to who can assist your defence or there may be forensic evidence which has been overlooked. Our lawyers approach each of their matters proactively and search for evidence which can establish your innocence.

Pleading Guilty
If you are considering pleading guilty to the charge of Public Nuisance, you should speak to one of our lawyers first about the potential consequences. A Plea Hearing is the most important Court appearance for you as it determines your penalty. Therefore, it is important that you give it the priority it deserves and have one of our specialised lawyers prepare a plea strategy for you. Our lawyers will work with you by doing the following:

  • Make sure the summary accurately reflects what happened and your involvement in the offending,
  • Direct you to gather character references and check them before they are filed with the Court,
  • Prepare plea submissions on your behalf highlighting the key aspects of your life that the Court should hear about,
  • Advise you how to dress and present yourself in Court.
Our lawyers thoroughly prepare for Plea Hearings and do not leave anything to chance because they realise every little factor can make a difference to the outcome. This devotion to matters has resulted in great outcomes for our clients who pleaded guilty to Public Nuisance.
The offence of a Public Nuisance will likely be heard in the Magistrates’ Court or the County Court depending on the circumstances surrounding the allegations.
 
What is the legal definition of Public Nuisance?
  1. A person must not—
    1. cause a nuisance; or
    2. knowingly allow or suffer a nuisance to exist on, or emanate from, any land owned or occupied by that person.
    Penalty: In the case of a natural person, 120 penalty units; in the case of a body corporate, 600 penalty units.
  2. A person is not guilty of an offence under subsection (1)(b) if the person had a lawful excuse for knowingly allowing or suffering a nuisance to exist on, or emanate from, any land owned or occupied by that person.

“Have you been accused of being a nuisance?”

Examples of Public Nuisance
  • A neighbour has several cars that don’t fit in their drive way. They park their cars on the nature strip and over the foot path so the footpath is completely covered. Neighbours and their small children are forced to walk onto the road to move around the cars. The neighbours have been asked to park their cars more safely, however they have not.
  • An aspiring handyman is teaching himself all manner of building techniques in his inner-city garage. He is throwing any waste and off-cuts over the fence and into an easement he shares with 3 neighbours. The easement is a shared walkway between the houses and one house requires on the easement for access to their home from the street.
  • An aspiring inner city group of musicians set up a rehearsal space on a nature strip and play loudly throughout their weekend. gathering a crowd, making noise, and creating a dangerous situation with electrical wiring.
Legislation
Public Health and Wellbeing Act 2008 (VIC) s 61

Elements of the offence
In essence to prove this charge the Police must show that the accused did an act which was not authorised by law or failed to discharge a legal duty and that the act or failure to discharge either endangered the life, health, property, morals or comfort of the public, or obstructed the public in the exercise of their legal rights. Furthermore that the complainant was not in a position to help curtail the nuisance.
 
Defences to this could be duress, a factual dispute, honest and reasonable mistake of belief, wrongful identification, lack of intent, mental impairment or necessity.

Questions in cases like this
  • Was it an annoyance or a nuisance?
  • Were reasonable steps taken to avoid the annoyance?
You should ring us and discuss your case if you have been charged. Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.