Application of contemporary standards to use of the F%#*-word in public … Context is everything in coming to grips with indecent language … Justice Beach shows the way in Easter egg drama
Among this month’s crop of delights from the Supreme Court of Victoria can be found Justice David Beach’s handed decision in Gul v Creed.
Here is another tale of a feisty litigant – one determined to have her day in court.
On April 5, 2007, Ms Lyudmila Gul was observed eating part of an Easter egg in the Big W store at the Southland Shopping Centre in Cheltenham.
She was confronted by a store employee and told that what she had done was not appropriate, that it was stealing and that Ms Gul should leave the store.
The store employee claimed that Gul called her a “fucking bitch”, refused to leave, and continued using abusive language.
Gul’s account of the altercation was that she was eating a fragment of a small broken chocolate egg, which had fallen from a shelf, that she had not acted dishonestly, and that she didn’t remember whether she had said the alleged words or not.
She said she had found herself in circumstances of extreme provocation with physical violence used against her by unknown person and under emotional stress such words would be a mild reaction.
Ms Gul was charged under the Crimes Act 1958 with stealing a chocolate egg belonging to Big W and valued at $1.98, and under the Summary Offences Act 1966 with using indecent language.
In the Frankston Magistrates’ Court, his Honour Magistrate Crisp, without conviction, adjourned the case for six months and released Lyudmila upon an undertaking to appear on the adjourned date and to be of good behaviour.
She then appealed to the County Court.
During the re-hearing of the two charges Judge Elizabeth Gaynor had indicated a preparedness to dismiss the charges as trifling.
However, Gul was not prepared to accept this and so the appeal continued.
HH set aside the orders of the Magistrates’ Court, dismissed the theft charge and, without conviction, ordered the defendant to pay a $20 fine on the indecent language charge.
Ms Gul then sought judicial review in the Supreme Court.
It is not at all difficult for this correspondent to appreciate (and admire) her determination.
Without (it seems) the benefit of counsel, she had been vindicated in the County Court on the issue of her honesty.
And, given that the F-word has passed into regular usage, and can, for example, sometimes be heard on the Metro 6.15 pm to Mooroolbark, Ms Gul might be forgiven for concluding that her four letter outburst ought not to require her to defend a criminal charge.
Unlike Judge Gaynor, Justice Beach was not re-hearing the case.
He was confined to deciding whether Gul – again, as our allies across the Pacific Ocean might say, appearing pro se – had demonstrated that Judge Gaynor had erred in law.
This Ms Gul failed to do.
There is no substitute for his Honour’s clear exposition:
“The principles in relation to determining whether language is indecent are well known, and it is not necessary to set them out here.
It is sufficient to say that indecency conveys a failure to meet recognised standards of propriety. Such a failure at the lower end of the scale amounts to an indecency; and at the upper end of the scale amounts to an obscenity.
Further, in determining whether something is indecent, it is contemporary standards which must be applied. Additionally, the words complained of must be looked at in the context of the circumstances in which they were said.
It is for the trier of fact to decide for himself or herself what current standards are, and it is inevitable that a subjective element must enter into the decision.
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. However, in my view, it was open to her Honour to conclude that if Ms Gul called [the Big W employee] a fucking bitch in the circumstances described by [the Big W employee], 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’ 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.”