At Chidiac & Associates, we provide experienced criminal defence representation to clients facing Offensive Language charges throughout Sydney and New South Wales. We carefully examine the circumstances in which the language was allegedly used and whether the Prosecution can establish the offence.

What is Offensive Language?

Under section 4A(1) of the Summary Offences Act 1988 (NSW), a person must not use offensive language:

• in a public place;
• near a public place;
• within hearing from a public place; or
• within hearing from a school.

The legislation does not provide an exhaustive list of words that constitute offensive language. Whether particular language is offensive must be assessed in the context in which it was used.

Importantly, section 4A is separate from the offence of offensive conduct under section 4. Section 4 expressly provides that a person does not conduct themselves in an offensive manner merely by using offensive language.

What Can Constitute Offensive Language?

An allegation may arise from language used:

• during an argument;
• towards police officers;
• in a public street or shopping area;
• outside a licensed premises;
• during a confrontation with another person;
• at or near public transport; or
• in the vicinity of a school.

The context in which the words were used can be important. Factors such as the location, people present, volume, circumstances and intended recipient may all be relevant.

Elements of Offensive Language

To establish an offence under section 4A, the Prosecution must prove the relevant elements beyond reasonable doubt.

1. The Accused Used Language

The Prosecution must establish that the accused actually used the language alleged.

This may be established through police evidence, witnesses, body-worn camera footage, CCTV or other recordings.

2. The Language Was Offensive

The Prosecution must establish that the language used was offensive in the circumstances.

Whether language is offensive is not necessarily determined simply by whether the words are rude, insulting or vulgar. The surrounding circumstances may be important in determining whether the statutory test is satisfied.

3. The Language Was Used in the Required Location

The Prosecution must establish that the language was used:

• in or near a public place; or
• within hearing from a public place or school.

This requirement is an important part of the offence.

What Are the Penalties for Offensive Language?

Under section 4A(1) of the Summary Offences Act 1988 (NSW), the maximum penalty is:

6 penalty units

There is no term of imprisonment specified as a maximum penalty for the offence under s 4A.

The court may also, in appropriate circumstances, make a community correction order involving community service work instead of imposing a fine. The legislation provides that the maximum community service work that may be imposed for an offence under s 4A is 100 hours.

Penalties at a Glance

These are maximum penalties and do not mean that a person charged with Offensive Language will necessarily receive the maximum penalty.

Reasonable Excuse

Section 4A(2) provides an important defence.

It is a sufficient defence if the defendant satisfies the court that they had a reasonable excuse for conducting themselves in the manner alleged.

Whether a reasonable excuse exists depends upon the circumstances of the individual matter.

Can I Defend an Offensive Language Charge?

Being charged with Offensive Language does not mean that you are guilty. The Prosecution bears the burden of proving the offence beyond reasonable doubt.

Depending upon the circumstances, potential issues may include:

• the accused did not use the language alleged;
• the language was not offensive in the circumstances;
• the alleged language was not used in or near a public place or school;
• the Prosecution evidence is inconsistent or unreliable;
• the words have been taken out of context;
• the accused had a reasonable excuse; or
• CCTV or body-worn camera footage contradicts the Prosecution account.

The appropriate defence will depend upon the particular circumstances and evidence.

Evidence in Offensive Language Cases

The Prosecution may rely upon:

• police statements;
• body-worn camera footage;
• CCTV;
• recordings from mobile phones;
• independent witnesses;
• police radio recordings; and
• other evidence concerning the circumstances in which the language was allegedly used.

Body-worn camera footage can be particularly important where there is a dispute about the exact words used or the context of the interaction.

Sentencing for Offensive Language

Where a person is convicted, the court may consider:

• the nature of the language;
• the circumstances in which it was used;
• the location;
• whether members of the public were present;
• whether police were involved;
• the offender's prior history;
• personal circumstances;
• remorse; and
• whether an early guilty plea was entered.

For many less serious matters, the court may impose a relatively minor penalty. However, each matter must be assessed according to its particular circumstances.

How We Can Help

At Chidiac & Associates, we provide:

• confidential advice about your Offensive Language charge;
• detailed analysis of the Prosecution evidence;
• examination of body-worn camera and CCTV footage;
• assessment of the circumstances and context of the alleged language;
• advice concerning reasonable excuse;
• representation at court;
• negotiations with prosecutors where appropriate;
• preparation for defended hearings; and
• sentencing advice and representation.

Our approach is built on thorough preparation, practical advice and strong courtroom advocacy.