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Public Nuisance

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If you or someone you know has recently faced a public nuisance charge, you may be wondering what it entails—incarceration, fines and potential penalties. Not to mention possible defences to discuss with your lawyer.

In this article, we will run through the basics of the public nuisance charge. We will set out what public nuisance is in a nutshell, as well as some of the most common related examples and possible defences.

Strictly, below we describe public nuisance and several other related charges under the Summary Offences Act 2005. Each of these has the common element of being related to behaviour in a public place.

What Is Public Nuisance?

Section 6 of the summary offences act describes a public nuisance offence as being when a person behaves in a disorderly, offensive, threatening or violent way and the person’s behaviour interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.

Put another way, public nuisance is when you behave in a way that’s really going to disrupt everyone around you.

Below, we set out some of the more common public nuisance charges people are likely to come across day to day and some related offences.

Offensive Language & Behaviour

The idea of offensive language and behaviour is more part of the definition of a public nuisance rather than its own subset of the laws, like the examples below.

While as a society we have become increasingly tolerant of profane language you might still be on the receiving end of a public nuisance charge if you use offensive, obscene, indecent or abusive language.

Certain types of aggressive or threatening behaviour can also fall under this category, if they do not necessarily meet the requirements of other kinds of charge (such as common assault). Specifically, you will behave in a “threatening way” if you use “threatening” language.

Importantly, is not necessary for your behaviour to actually have the impact of bothering people or impeding them in some way, but only that it is likely for your behaviour to do so.

Public Urination

There is a pretty good chance you already know that urinating in the middle of the main road is not a good idea.

That said, there are a few fairly common behaviours that could result in a charge of public nuisance (though often do not).

Public urination charges can also be laid against people who urinate in:

  • Skips
  • Roadside locations
  • Any licensed area

So how do they prove it?

Assuming there is a witness, any liquid seen emerging from the “pelvic area” indicates enough evidence for public urination.

So this is probably worth remembering next time you’re stuck in heavy traffic on your way back home after a long weekend, or heading home after a big night out.

Begging in a Public Place

Homelessness is not a crime within itself. However, begging (a common ancillary to homelessness) is still potentially an offence.

Strictly, a person cannot ask for food or currency in a public locale.

Additionally, it is unlawful to coerce a child into begging for money or materials. Basically, adults and children may not request personal donations in public areas.

Of course, as a general rule, many police and members of society are fairly sympathetic to begging in circumstances of genuine need. However, if the activity becomes disruptive or there are complaints about an individual the police may take steps to intervene.

Of course, this law does not apply to charities or local government organizations. The legitimacy of the charity should be visible if you are attempting to raise money in a public place. The rules against begging also do not apply to someone authorised to busk in a public place.

Wilful Exposure

A person in a public place must not “wilfully expose his or her genitals” unless the person has a reasonable excuse.

Similarly, if you are so close to a public place that you may be seen from then the same rules apply. So, if you happen to live next to a public park then sunbathing in the nude in your backyard is probably out of the question.

Wilful exposure penalties increase if the situation has evidence of “aggravation”. This includes exposing oneself to “embarrass” or “offend” another person.

Public Intoxication

It is perfectly legal to have a few drinks with some mates at a bar and feel intoxicated, but it can become a public nuisance when you step outside.

Stumbling, slurring speech, yelling profanities, and carrying an open container in the street are all potential evidence of public intoxication.

The intoxication charge is common and customarily does not usually result in excessive fines or incarceration.

Public intoxication includes being adversely affected by drugs.

What Is the Penalty for Public Nuisance?

Ordinarily for a first or minor public nuisance incident, you might well just receive an infringement notice (a ticket). But for subsequent or more serious offences you may need to go to court and more significant penalties could apply.

In general terms the maximum penalty for public nuisance is 10 penalty units ($1,378) or six months imprisonment.

If, however, you are in or near a licensed premises the maximum penalty is increased to 25 penalty units (around $3,446) or six months imprisonment.

In general terms though, the actual likely penalty for public nuisance charges depends on the severity of the crime. For example, exposing oneself to a minor or unsuspecting civilian will likely receive more serious sanctions than a public intoxication charge.

Some specific maximum penalties for public nuisance are:

  • Public urination: Two penalty units ($275) if caught in an unlicensed area. Four penalty units ($551) if charged in a licensed location.
  • Begging or soliciting: Ten penalty units ($1,378) or six months imprisonment.
  • Wilful exposure: Two penalty units ($275). If aggravated, 40 penalty units ($5,514) or one year of imprisonment.
  • Public intoxication: Two penalty units ($275).

What Defences Are There to Public Nuisance?

Again, it depends on the crime. Nevertheless, almost all public nuisance charges have some form of defence.

Because many of the elements of public nuisance are subjective, involving an assessment of behaviour or language that reaches a particular standard first place to start any defence will be to assess whether you have engaged in conduct that is really in breach of the relevant law.

Specifically, because of the strict requirement that the behaviour in question “interferes, or is likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public” there always remains an argument about whether or not that threshold has been met.

The specifics of the behaviour complained about, the context in which the behaviour was engaged in, and the nature of the environment at which the behaviour took place will each need to be looked at to determine whether or not this critical element has been met.

Of course, in some cases, there will also be the potential for misidentification. That is, the police have wrongly identified you as a person who engaged in the relevant behaviour.

Final Thoughts

Public nuisance charges are not life-ruining, but they certainly aren’t ideal.

For more serious charges we recommend you engage criminal lawyers to help represent you to ensure that you get a fair outcome.

TWC Lawyers provide legal services for criminal law, traffic law, franchising law, commercial law, family law and property and conveyancing matters. We bring practical, sensible and fixed fee solutions to your legal problems. For more information on this area of the law, please get in touch on (07) 5522 5777.

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