Obscene, Indecent or Threatening Public Behaviour

It is an offence to sing an obscene song, write or draw an obscene or indecent image, use profane, indecent, insulting or threatening language or behave in a riotous, offensive or insulting manner.[1] Examples of such behaviour can include creating graffiti depicting an indecent image, mooning oncoming traffic on a road and streaking across a sporting field during a sports event. It can also include singing a rude song or using indecent language in a public place, such as a shopping centre.

Elements

To establish the offence, the Police must prove beyond reasonable doubt that you:

• Sang an obscene song or ballad; or
• Drew, painted or exhibited an indecent image or word; or
• Used language or words that was insulting, threatening or indecent; or
• Behaved in a riotous, offensive, indecent or insulting manner;[2]

AND

• You were in a public place and the time within the view or hearing of another person in a public place.[3]

A public place includes a public highway or footpath, garden or reserve, railway station, jetty, church, government premises, school, theatre, sporting ground or licenced premises.[4]

Possible Penalty for Obscene, Indecent, Threatening Language or Public Behaviour Offence

The maximum penalty for a first offence of obscene, indecent, offensive or threatening language or public behaviour is 2 months imprisonment or 10 penalty units (approx. $1,619 as at November 2018). For a second offence, the penalty increases to 3 months imprisonment or $2428.50. For third or subsequent offences, the maximum penalty is 6 months imprisonment or a fine of up to $4,047.5.[5]

Defences Available

You will have a defence to your obscene, indecent, threatening language or public behaviour offence if the Police cannot establish that your language or behaviour was in fact indecent, offensive, obscene or threatening. The test of whether your conduct meets this element is measured in line with current community standards. What the community regards as obscene, indecent or threatening may evolve over time. Thus, it is important to consider whether a general member of the community regard your conduct to be obscene, indecent or threatening? If not, the charge cannot be proven.

Further, you will have a defence if you can establish that your alleged obscene, indecent, threatening language or public behaviour was not within earshot or view of another person. This is because, it is an element of the offence that a witness be present to hear or observe the indecent, obscene or threatening conduct.

Both the witness and alleged offender must have been present in a public place. Therefore if the offence is alleged to have been committed in a private place, or the witness was within a private place, you will have a defence to your charge.

If you can establish that you were suffering from a mental impairment at the time of the alleged offence, you will have a defence to your charge. You can also argue the defence duress, mistaken identity or raise a factual dispute to your charge. However, it is essential you consult an experienced legal practitioner so that the best defence can be identified for your individual case.

[1] Summary offences Act 1966 (Vic) s 17(1).
[2] Summary offences Act 1966 (Vic) s 17(1), 17(1A).
[3] Summary offences Act 1966 (Vic) s 17(1).
[4] Summary Offences Act 1966 (Vic), s 3.
[5] Summary offences Act 1966 (Vic) s 17(1).