Tuvalu Island Courts Bench Book - Federal Court of Australia
Tuvalu Island Courts Bench Book - Federal Court of Australia Tuvalu Island Courts Bench Book - Federal Court of Australia
Threatening and abusive behaviour Section s169(n) Penal Code (Cap 8) Description Every person is guilty of an offence who uses threatening or abusive or insulting words or behaviour in a public place with intent to provoke a breach of the peace; or whereby a breach of the peace may be occasioned. Elements • The person named in the charge is the same person who is appearing in Court; • The accused used words or behaviour that were threatening, abusive or insulting; • This was done a public place; • Either: the accused intended that the words or behaviour would cause anxiety or major concern to others such that they feel that harm may be caused to them or others; or the situation was such the words or behaviour might cause anxiety or major concern to others such that they feel that harm may be caused to them or others. Commentary Sometimes quite minor incidents are brought before the Court. There needs to be a real reason for arrest and bringing to Court. The prosecution must show that there was real concern for what might happen as a result of what was said or done. Burden and standard of proof The prosecution must prove all the elements beyond reasonable doubt. If the defence establishes to your satisfaction that there is a reasonable doubt, then the prosecution has failed. Identification In Court, the prosecution should identify the person charged by clearly pointing out that person in Court. The prosecution must provide evidence to prove that it was the accused who used the words or behaviour. Tuvalu Island Courts Bench Book June 2004
Words or behaviour There must be good evidence for what was said or done, and by whom. Public place The prosecution must prove by evidence that it was a public place. Often a description of the place may be sufficient because you may know it. Otherwise it needs to be proved that the place was public in nature. See the definition of a public place in s4 Penal Code. Breach of the peace A breach of the peace means an incident that causes anxiety or major concern to one or more persons, such that they feel that harm may be caused to them or others. Intention to provoke a breach of the peace If this is the ground on which the charge is based, the prosecution must prove that the accused intended to provoke a breach of the peace by his or her words or actions. This is a subjective test – it is the accused’s intention that is important. You may have to infer this from the circumstances. Under this ground, the prosecution does not have to prove that there was or even might have been a breach of the peace. Breach of peace may be occasioned If this is the ground on which the charge is based, the prosecution must prove that the accused’s words or actions might have provoked a breach of the peace. The test is an objective one – would a reasonable person believe that the accused’s actions might have provoked a breach of the peace, in the particular circumstances? Under this ground, the prosecution does not have to prove that the accused intended to provoke a breach of the peace or that there was in fact a breach of the peace. Defences If the prosecution has proved the elements of the offence, beyond reasonable doubt, the accused may still have a legal defence. The accused will have to establish their defence to your satisfaction, on the balance of probabilities (i.e. more likely than not). Sentence 1 months imprisonment or $10 fine Tuvalu Island Courts Bench Book June 2004
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Words or behaviour<br />
There must be good evidence for what was said or done, and by<br />
whom.<br />
Public place<br />
The prosecution must prove by evidence that it was a public place.<br />
Often a description <strong>of</strong> the place may be sufficient because you may<br />
know it. Otherwise it needs to be proved that the place was public<br />
in nature. See the definition <strong>of</strong> a public place in s4 Penal Code.<br />
Breach <strong>of</strong> the peace<br />
A breach <strong>of</strong> the peace means an incident that causes anxiety or<br />
major concern to one or more persons, such that they feel that harm<br />
may be caused to them or others.<br />
Intention to provoke a breach <strong>of</strong> the peace<br />
If this is the ground on which the charge is based, the prosecution<br />
must prove that the accused intended to provoke a breach <strong>of</strong> the<br />
peace by his or her words or actions. This is a subjective test – it is<br />
the accused’s intention that is important. You may have to infer this<br />
from the circumstances. Under this ground, the prosecution does<br />
not have to prove that there was or even might have been a breach <strong>of</strong><br />
the peace.<br />
Breach <strong>of</strong> peace may be occasioned<br />
If this is the ground on which the charge is based, the prosecution<br />
must prove that the accused’s words or actions might have<br />
provoked a breach <strong>of</strong> the peace. The test is an objective one –<br />
would a reasonable person believe that the accused’s actions might<br />
have provoked a breach <strong>of</strong> the peace, in the particular<br />
circumstances?<br />
Under this ground, the prosecution does not have to prove that the<br />
accused intended to provoke a breach <strong>of</strong> the peace or that there was<br />
in fact a breach <strong>of</strong> the peace.<br />
Defences<br />
If the prosecution has proved the elements <strong>of</strong> the <strong>of</strong>fence, beyond<br />
reasonable doubt, the accused may still have a legal defence. The<br />
accused will have to establish their defence to your satisfaction, on<br />
the balance <strong>of</strong> probabilities (i.e. more likely than not).<br />
Sentence<br />
1 months imprisonment or $10 fine<br />
<strong>Tuvalu</strong> <strong>Island</strong> <strong><strong>Court</strong>s</strong> <strong>Bench</strong> <strong>Book</strong> June 2004
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