Offensive Conduct (NSW)

Offensive Conduct is a broad offence that criminalises any behaviour or conduct which is deemed offensive. It can include yelling, actions, writing or engaging in any other type of behaviour or conduct which is offensive. However, it does not include using offensive language, which is a separate offence. The conduct must be undertaken either in, near, or within view or hearing from of a public place or school. People are sometimes charged with this offence where it is difficult for police to prosecute a more specific offence such as in relation to alleged assaults, verbal abuse or even certain types of “anti-social behaviour”.

The maximum penalty is 3 months imprisonment or a fine of 6 penalty units. Police can also deal with the matter by way of an infringement notice (which can be disputed in Court upon the making of a Court election).

What is the Offence of Offensive Conduct?

The offence of Offensive Conduct is contained in section 4 of the Summary Offences Act 1988 (NSW) which states:

• A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school.

It is noted that using offensive language is a separate offence, and cannot be used to prove Offensive Conduct on its own. 

The following acts may constitute an offence of Offensive Conduct:

• Getting changed (including stripping down to your underwear) outside a school and within view of families with children;
• Having sex in a public place; or
• Engaging in a fight involving violence and threats in the mall.

What Must be Proven?

For a person to be found guilty of Offensive Conduct the Prosecution must prove each of the following matters beyond a reasonable doubt:

• You conducted yourself in a certain manner;
• The conduct was offensive; 
• You were in or near, or within view or hearing from, a public place or a school.

Which Court Will Hear the Matter?

This offence is a Summary Offence, which means the matter will be finalised in the Local Court. 

Possible Defences to Offensive Conduct

The following defences may be available for an Offensive Conduct charge:

• That you were not the person engaging in the conduct;
• That the conduct was not offensive;
• That the conduct involved offensive language and no other offensive conduct; 
• That you were not in or near, or within view or hearing from, a public place or a school;
• You had a reasonable excuse for your conduct; or
• To argue self defence, necessity or duress.

Common Questions

Will I receive a criminal conviction?

Not necessarily. Because of the relatively low maximum penalty, a non-conviction is a viable outcome – particularly if the person has no or limited criminal history. However, convictions are nevertheless regularly recorded. If a person was to plead not guilty and was acquitted, they would not receive a conviction. 

In NSW, a Court can impose any of the following penalties for this charge:

• Conditional Release Order with conviction (CRO)
• Fine
• Conditional Release Order without conviction (CRO)
• S10A
• Section 10 

The consequences of a conviction can be serious depending upon what a person does for a living and any need to travel. It is important to get legal advice if you think an offence like this would impact your future. 

Will I go to Gaol for Offensive Conduct?

It’s possible, but unlikely. Given the low maximum penalty and the general type of behaviour that results in an offence of this kind, Gaol is unlikely. What sentence a person will receive depends on many factors including whether they plead or are found guilty, the circumstances of the offence itself, any prior criminal history and the person’s own circumstances. 

Can I be charged with Offensive Conduct and other charges for the same conduct?

Yes. The police sometimes will charge people not only with Offensive Conduct, but other charges for each specific act. For example, a person who is yelling offensive things to passersby, becomes verbally abusive to members of the public on a street before smashing a window and assaulting someone may be charged with Assault, Destroy/Damage Property, Intimidation and Offensive Conduct.  

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.