In this article, we provide an overview of the offence of Behave in an Indecent Offensive or Insulting Manner and discuss the elements, defences and penalties.
Table of Contents
What the Prosecution Must Prove
The offence of Behave in an indecent or insulting manner is prosecuted under section 17 of the Summary Offences Act 1966 (Vic). As you would expect, the offence is summary as opposed to indictable and is usually heard in the Magistrates' Court jurisdiction.
The elements to the offence are set out under section 17(d) of the Summary Offences Act.
The prosecution must prove:
A person is in or near a public place
within the view or hearing of any person being in or passing therein or thereon
behaves in a riotous, indecent, offensive or insulting manner
'Public Place'
Under section 3 of the Summary Offences Act, 'public place' includes:
(a) any public highway road street bridge footway footpath court alley passage or thoroughfare notwithstanding that it may be formed on private property;
(b) any park garden reserve or other place of public recreation or resort;
(c) any railway station platform or carriage;
(d) any wharf pier or jetty;
(e) any passenger ship or boat plying for hire;
(f) any public vehicle plying for hire;
(g) any church or chapel open to the public or any other building where divine service is being publicly held;
(h) any Government school or the land or premises in connexion therewith;
(i) 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;
(j) any market;
(k) any auction room or mart or place while a sale by auction is there proceeding;
(l) any licensed premises or authorised premises within the meaning of the Liquor Control Reform Act 1998 ;
(m) 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;
(n) any place of public resort;
(o) any open place to which the public whether upon or without payment for admittance have or are permitted to have access; or
(p) any public place within the meaning of the words "public place" whether by virtue of this Act or otherwise;
What is 'Indecent' Behaviour?
Section 17(1A) provides that "behaviour that is indecent offensive or insulting includes behaviour that involves a person exposing (to any extent) the person's anal or genital region". The example provided for under the offence provision is mooning or streaking.
Whether conduct is relevantly indecent will depend upon the context in which it occurs. Indecent conduct has been defined at common law as conduct that would be considered indecent by "right-minded people" or which is "so offensive to contemporary standards of modesty or decency to be indecent (R v. Court [1989] AC 28; Curtis v. R [2011] VSCA 102).
What is 'Offensive' Behaviour?
"Offensive behaviour" has been defined as "displeasing, annoying or insulting (R v. Smith [1974] 2 NSWLR 586) or as being conduct 'calculated to wound the feelings, arouse anger or resentment, disgust or outrage (Worcester v Smith [1951] VLR 316).
Where the prosecution alleges the indecent exposure had a sexual element, the prosecution may charge an accused under the more serious summary offence of sexual exposure (section 19 of the Summary Offences Act).
What is The Penalty?
The penalty for a first offender under section 17 of the Summary Offences Act (Vic) 1966, is 10 penalty units or 2 months imprisonment; a subsequent offence: 15 penalty units or 3 months; a third offence: 25 penalty units or 6 months imprisonment.
Depending upon the circumstances the police may issue an 'on the spot' fine for behaviour that is captured by section 17.
If the offence proceeds to Court on a plea of guilty (or finding of guilty) an accused, would ordinarily receive (unless they have a criminal history) an outcome such as a modest fine, adjourned undertaking. Often these offences are also recommended for diversion.
Defences to Behave in an Indecent or Offensive Manner
A defence to an offence under section 17 may be based upon a dispute as to whether the offending behaviour actually occurred (factual dispute)
In some cases, a defence based upon an honest and reasonable belief that the conduct was not indecent or offensive may arise.
Mental impairment might also be argued depending upon the circumstances of the alleged offence.
Require Further Advice and or Representation for Behave in an Indecent Manner?
If you seek further advice about an allegation of Behaving in an indecent manner, contact us to arrange an appointment.