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Friday, 13 March 2009

Public nuisance

Public nuisance is an offence contrary to common law. It is an indictable offence: McKell v Rider (1908) 5 CLR 480 at 485 per Griffith CJ. It may now be heard summarily: Magistrates’ Court Act 1989 s 53(1A).

The public element requires the nuisance affect the community or public to the extent that it should be the responsibility of the community to fix it: Attorney-General v PYA Quarries [1957] 2 QB 169 at 189 and 191; R v Madden (1975) 61 Cr App R 254 at 256.

Many of the cases are old, so take care before considering them today. Statutory equivalents might exist. Or, social standards might be so different that the offence no longer occurs.

There are four categories of public nuisance.

1. Interfering with comfort, enjoyment or health of the public



Examples of this category of the offence are:
  • Trespassing on school grounds after-hours and sniffing glue: Sykes v Holmes [1985] Crim LR 791
  • Making a bomb-hoax by telephone: R v Madden (1975) 61 Cr App R 254
  • A rock-concert or rave party that disturbs neighbours: R v Shorrock [1994] QB 279
A person might be liable for acts done on their land creating a nuisance — even if the acts were done by a trespasser or resulted from natural causes — if they fail to take steps to eliminate or prevent them: R v Shorrock [1994] QB 279.

A lessor may remain legally responsible for tortious acts done on the land by a tenant if at the time the lessor agreed to part with possession and control of the land, it was reasonably foreseeable the tenant was likely to commit acts constituting a public nuisance: Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1 at 12 per McPherson JA.

2. Endangering public safety



  • Keeping a ferocious dog unmuzzled
  • Keeping gunpowder or explosive in dangerous proximity to streets or houses: R v Taylor (1742) 2 Str 1167
  • Having an unfenced excevation near a highway: Hardcastle v South Yorks Ry & River Dun Co (1859) 4 H & N 67
  • Negligently blasting stone in a quarry that throws large stones and endangers people in nearby houses and streets: R v Mutters(1864) L & C 491
  • Going abroad in a public street armed without lawful occasion: R v Meade (1903) 19 TLR 540

3. Outraging public decency



Also categorised as offending public morals, decency or order.

Outrage is more than 'merely' offending or shocking reasonable people; it is concerned with minimum standards of decency: Shaw v DPP [1962] AC 220.

The public-element of this offence requires:
  1. The act is done in a place open to the public or in public view; and
  2. The act was or could have been seen by two or more people who were actually present (the two-person rule): see R v Hamilton [2008] 2 WLR 107 at [31]; Rose v DPP [2006] 1 WLR 2626; Shaw v DPP [1962] AC 220; [1961] 2 WLR 897.
Examples are:
  • Filming up women's skirts: R v Hamilton [2008] 2 WLR 107
  • Performing oral sex in a bank foyer at 1 am: Rose v DPP [2006] 1 WLR 2626
  • Publishing advertisements inviting meetings for homosexual sex could constitute a conspiracy to outrage public decency: Knuller (Publishing, Printing and Promotions) Ltd v DPP [1973] AC 435
  • A gallery-showing of Human Earrings made out of a freeze-dried foetus of three to four months’ gestation: R v Gibson; R v Sylveire [1990] 2 QB 619; [1991] 1 All ER 439


4. Unlawful treatment of dead bodies

  • Leaving a person unburied: R v Vann (1851) 2 Den 325; R v Stewart (1840) 12 A & E 773 at 778; Jenkins v Tucker (1788) 1 H Bl 90
  • Preventing the burial of a corpse, such as concealing a body and so preventing burial: R v Lynn (1788) 2 TR 733; R v Hunter [1974] QB 95

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