Offensive Language Caught on Camera on Sydney Train

Criminal Law

Two alleged victims of a racist taunt on public transport have made a police complaint, and want the other person charged with offensive language.

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Khalida Hafeez and Hafeez Ahmed Bhatti were travelling on a train to Sydney Airport on Thursday when an elderly woman opposite starting slanging racial epithets at them. The incident was recorded on mobile phone by stander-by Stacey Clark.

Ms Clark said the woman said words to the effect of “all the people that are dying are because of the Muslims in the world and look what’s happening overseas … Read the newspapers, why are you following this religion for, why do you wear things like that so you can marry a man who’s going to marry a six year old?” The video shows the older woman muttering about beheadings, the Sydney siege and that Ms Hafeez is an “ISIS supporter”.

The video shows that Ms Clark intervened to tell the older woman off, defending Ms Hafeez.

Was this criminal conduct?

Offensive behaviour has been defined at common law to mean: “…such as is calculated to wound the feelings, arouse anger or resentment or disgust in the mind of a reasonable person…”: Worcester v Smith [1951] VLR 316 at 318, per Justice O’Bryan. Some cases have suggested that “calculated” means that the person must have intended to cause offence. In Ball v McIntyre (1966) 9 FLR 237, Justice Kerr held: “Conduct which offends against the standards of good taste or good manners, which is a breach of the rules of courtesy or runs contrary to commonly accepted social rules, may well be ill advised, hurtful, not proper conduct.” Therefore, conduct must be sufficiently severe to really offend a person before it can be considered illegal. It does not appear that proof of the charge relies on proving that an actual person was actually offended.

Offensive language is codified under s 4A(1) of the Summary Offences Act 1988. It provides that a person must not use offensive language in or near, or within hearing from, a public place or a school. The maximum penalty is $660. There is a defence under subs(2) of reasonable excuse.

In this case, the public place element would easily be made out by reference to the fact that the behaviour occurred on a train. The central issue would be whether the older woman’s conduct could be considered legally offensive, which would be a matter of fact for the Magistrate to determine. It is likely that it would. The practical hurdle of course would be the apprehension of the alleged offender – while she is on the video, she has not been identified, and absent the woman herself or someone who knows her coming forward, the police might have a hard time identifying her.

Read more: http://www.abc.net.au/news/2015-04-17/muslim-couple-want-racist-to-be-charged-sydney-islam/6401248

Image credit: ABC News

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