Verbal disagreements are commonplace – whether it be arguing with your partner over housework, conflicting with a shopkeeper over a customer service issue, or simply witnessing someone else’s disagreement, most of us encounter conflict on a regular basis. But when does an argument cross the line into a criminal matter? The answer to this question will turn on what exactly was said, and the context in which it was said.
There is no criminal offence of “verbal abuse” in NSW, but this behaviour could give rise to a variety of different consequences.
Apprehended Violence Orders
An application for an Apprehended Violence Order (AVO) may be made by any person, or by the police on their behalf. NSW Police policy is to always apply for an AVO when there is an allegation of domestic violence. The orders range from prohibiting assault, molestation, harassment, threats, stalking and intimidation, to prohibiting direct contact between the parties, of any kind. The Court will make an AVO when it believes there is a reasonable basis for the Person in Need of Protection (PINOP) to be afraid of the defendant, in some cases even when the PINOP says they are not afraid at all.
This fear does not have to be a fear of physical violence – in cases of verbal abuse, it is often a fear of intimidation. Intimidation is any form of contact – including by text message, phone call, Facebook, or in person, that causes the PINOP to fear for their safety, or the security of their property. For more information see our page on AVOs.
Whether or not abuse is serious enough to be considered intimidation will depend on what was said, and the context in which it was said. The Court will examine not only the words used and the overall exchange, but the history of the relationship between the parties, their relative physical strength, and other relevant factors. For example, if a couple is having an argument and one says to the other “I’ll bury you”, that would appear to be intimidating language. But if the couple are in the middle of Family Court proceedings, and the statement is made with reference to paperwork, the phrase takes on a completely different meaning. In that context, those words clearly are not intimidation and would not be enough to satisfy the requirements for an AVO. If, however, the same words are used and the defendant has also said things like “I will find you”, or “I’m coming to get you”, together these comments might well meet the threshold.
It is an offence to use offensive language in, or within hearing of, a public place or school. Offensive language is one of the most commonly charged offences in NSW, however there is no clear definition or explanation of what language is offensive. Generally, it will include anything that could cause hurt, resentment, disgust or outrage in a reasonably thick-skinned person.
In the past, Courts have held that swear words are inherently offensive, although if the question came up again today the Court may have a different view, considering the frequent use of swear words in television, movies, and society generally.
The difficulty with this loose definition is that it can be hard to know when words have crossed the line, and you might end up being punished for how the words were perceived, rather than how you meant them. More information on offensive language penalties.
Intimidation and Threats
A person who intimidates, or attempts to intimidate, another person, intending to scare them is committing an offence. Unlike the offensive language charge, there is no requirement for this intimidation to take place in public. Intimidation includes harassing them, repeatedly contacting them against their wishes, threatening them, and doing anything else that makes them fear violence against themselves or anyone else, or damage to property.
When considering whether or not an action is intimidation, the Court may look at whether or not the person making the threat has a history of violent behaviour. This offence relies on the Magistrate to carefully consider the actions of the accused and their context, and decide whether or not they objectively amount to intimidation. This means it is very important for the accused person to present their side of the story in a way that will convince the Magistrate to accept their interpretation of the events. Click here for more information on intimidation.
It is so important to understand that things you say can have consequences, even if you don’t mean them. Things can cause fear, even though they were not a threat, and things can cause offence even if they are just a joke. Until we have more clarity in the definition of these offences, it is impossible to know for certain where to draw the line between the things you are allowed to say and those you are not.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.