Public nuisance charges in Queensland

What police have to prove

Section 6 requires two things, and both must be established:

1. You behaved in a way that was disorderly, offensive, threatening or violent.
2. Your behaviour interfered, or was likely to interfere, with the peaceful passage through, or enjoyment of, a public place by a member of the public.

The second element is the one that is regularly missing. Offensive behaviour at 3am in an empty street, with nobody present except police, may not interfere with any member of the public. Queensland courts have repeatedly held that police officers are not ordinary members of the public for this purpose, and that officers are expected to be more resilient to abuse than a bystander would be.

Section 6(3) provides that behaviour is offensive if it is contrary to contemporary standards of public good order, and threatening or violent if it does or is likely to cause fear. Swearing alone, in a modern Australian context, is not automatically offensive.

Where these charges come from

On the Gold Coast, the overwhelming majority of public nuisance charges arise between midnight and 5am in the Surfers Paradise safe night precinct, and in Fortitude Valley in Brisbane. The most common fact patterns are:

• Yelling at or swearing at police after being moved on.
• A scuffle outside a venue where nobody is injured and nobody makes a complaint.
• Urinating in a public place, which is charged separately under section 7 but often accompanies a section 6 charge.
• Refusing to leave an area after a direction under section 48 of the Police Powers and Responsibilities Act 2000 (Qld), which is a separate offence under section 791.

Police can also issue an infringement notice for public nuisance rather than charging you. Paying the infringement is not a conviction, but it is an admission for the purpose of the ticket. If you want to contest the allegation, you can elect to have it decided in a Magistrates Court.

How these charges are usually resolved

The realistic outcomes are a fine with no conviction recorded, a good behaviour bond, or, where the conduct was at the higher end or there is history, a fine with a conviction recorded.

Section 12 of the Penalties and Sentences Act 1992 (Qld) is the whole ballgame. For a first offence with an early plea and a genuine apology, no conviction is achievable, and it is worth spending time on. Material that helps includes a letter from an employer, evidence of a visa or licensing requirement, a reference, and any voluntary steps such as an alcohol program.

Body worn camera footage exists for almost every one of these arrests. Get it. It frequently shows an interaction that is far less dramatic than the QP9 describes, and occasionally shows a direction that was never lawfully given.

When it is worth contesting

A public nuisance charge is genuinely defensible more often than most people assume, because of the second element. Consider contesting where:

• The only people present were police officers.
• The behaviour was loud but not disorderly, offensive, threatening or violent.
• The charge arose after a move on direction that was not lawfully given under sections 44 to 48 of the Police Powers and Responsibilities Act 2000 (Qld).
• You were responding to force being used on you or a friend.
• The body worn camera does not match the version in the police brief.

Weigh that against cost and time. A contested hearing takes half a day and requires you to attend. If the prosecution will not withdraw and no conviction is available on a plea, many people reasonably choose the plea. That should be a decision, not a default.