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Saturday, 15 May 2010

Gul v Creed & Anor [2010] VSC 185: indecent language is all about context

Stephen Warne is justifiably fond of this legal submission charting the usage and development of the word 'fuck' in the English language. It was prepared by a Colorado public defender to persuade a judge that use of the word by a teen to his high school principal was protected by the US First Amendment.



In Bill of Rights-less Victoria it's well-established that what constitutes indecency for the purposes of s 17 of the Summary Offences Act 1966 falls to be determined by reference to contemporary standards.



Gaynor J fined Lyudmila Gul for use of indecent language for directing the invective fucking bitch toward a staff member of a variety store. Ms Gul had been confronted over an alleged stolen easter egg. Her evidence in the contested hearings was that she couldn't recall whether she had used the words or not, but in any event she did not consider them indecent. The charge was proven in the Magistrates' Court and again on a de novo hearing in the County Court.



Ms Gul took Gaynor J's decision before the Supreme Court for judicial review. This case is Gul v Creed & Anor [2010] VSC 185. Beach J didn't rule that the epithet fucking bitch would always be indecent but found that it could be.



Beach J [at 16, citations inserted]:



16 There are undoubtedly many occasions when a person might say the words “fucking bitch” in a public place or within the hearing of a person in a public place without committing any offence. Authorities in this area abound: See for example E (a child) v Staats (1994) 13 WAR 1; 76 ACrimR 343 where it was held that the use of the word “fuck” in the circumstances of that case was not obscene. However, in my view, it was open to her Honour to conclude that if Ms Gul called Ms Vanderlijn a fucking bitch in the circumstances described by Ms Vanderlijn, then this was a use of indecent language contrary to s 17(1)(c) of the Summary Offences Act. More specifically, the plaintiff has not persuaded me that it was not open for her Honour to so conclude. The fact that the words “fucking bitch” (or the word “fuck”) might be capable of being used in a public place without those words being held to be indecent does not tell against a finding that the use of such words is indecent in particular circumstances. As was said in Hortin v Rowbottom (1993) 68 ACrimR 381 at 385: “... [I]t is equally erroneous to hold that the common four letter words are necessarily indecent in every context, and to hold that they can never be indecent in any context at all.”




The County Court's finding was upheld.

5 comments:

Anonymous said...

I thought indecent language had to be sexual like yelling "come over here and let me *&@# you" or "suck my &@$%". I can't remember where I heard this but I thought that was the difference between indecent and offensive or insulting. Is that what the law used to be before this case came out?

the sundance kid said...

I thought an indecent proposal is where you offer $1 million for a night with Demi Moore.

Jeremy Gans said...

Bill-of-rights-less Victoria?

Picasso said...

Bourke's Criminal Law has Pell v The National Gallery as the leading authority on indecency. I haven't read the case but I rembmeer seeing a crucifics in a fishtank full of urine. Not my idea of sex or sexy! (not that there's anything wrong with that).

Dr Manhattan said...

I knew that would prompt a response, Jeremy. Show me where to find the 'right to bear arms' in the Charter and I'll take the description of Victoria back (kidding).

You make a good point about Pell's case, Picasso. (Not anyone's idea of sexy, I hope.) In that case, the application for an injunction was declined for a number of reasons, among them that blasphemous material isn't necessarily indecent. Harper J described indecency as 'a failure to meet recognised standards of propriety' with obscenity at the high end of this scale and indecency at the lower end.

Beach J referred to this in Gul. He also discussed a long line of South Australian authority on the topic of indecency. These cases suggest the requirement of a sexual connotation to the impugned conduct (as you suggested, Anon).

I recall having heard something similar before, but it's not a requirement Beach J found necessary. The facts of Gul don't have any sexual context to them but the application for judicial review (arguing that the County Court had made a finding not open to it) still failed.