The broad drafting of the offence and the nature of police information recording systems make it difficult to quantify accurately how frequently particular behaviours and
circumstances are associated with the enforcement of the public nuisance offence.
Our analysis of a sample of police narrative descriptions in crime reports of public nuisance suggests no major shifts in the types of behaviours or surrounding circumstances identified as public nuisance offences after the introduction of the new offence; examples of all categories of public nuisance offence behaviour were present in the 12-month periods before and after the introduction of the new offence.
Our consideration of the police narratives describing the behaviour and surrounding circumstances of public nuisance incidents also suggests that the public nuisance offence is:
• most frequently used to respond to violent or threatening behaviour (including threatening language)
• commonly used to deal with the remaining categories of public nuisance behaviour, including disorderly conduct, offensive language, and offensive/indecent behaviour (particularly public urination).
Of those narratives that appear to suggest offensive language was the only offence behaviour, about half described offensive language directed at police. In some situations described, the offensive language provided:
• the ‘trigger’ for police to take a formal law enforcement response to behaviour that might otherwise have been dealt with informally
• a means for police to prevent ‘interference’ as they went about their duties
• a means for police to take a formal law enforcement response in circumstances where the offensive language directed at them could not be said to have the potential to amount to any real ‘interference’.
The offensive language narratives we considered tended to suggest a tense and volatile relationship between police and Indigenous people.
Our consideration of police narratives from crime reports involving both public nuisance and other offences provides examples of:
• the policing of public nuisance resulting in escalating conflict with police and leading to other charges such as resisting, obstructing or assaulting police
• the public nuisance offence being used as an ‘add-on’ offence to other offences being dealt with by police, such as a breach of a domestic violence order or a drug offence.
(Chapter 11 presents statistical data regarding the frequency with which public nuisance offending is accompanied by other offending, including offences against police.)
Police statistical data support the overwhelming impression given by the police narratives that a great many of these offences — across all the categories of public nuisance
behaviour — are fuelled by the consumption of alcohol and other drugs; the vast majority of public nuisance offences were committed by offenders identified by police as under the influence of alcohol and/or other drugs. We also found that:
• the association between public nuisance offences and drug and alcohol intoxication strengthened after the introduction of the new public nuisance offence
• this association was significantly stronger for Indigenous offenders than for non-Indigenous offenders.
In conclusion we compare our findings, as presented in this chapter, with the concerns expressed to the review by some stakeholders.
As we have noted, a number of stakeholders suggested to the review that the public nuisance offence is used to deal with trivial behaviours that do not warrant criminal justice system intervention. It is arguable that some of the police narratives reproduced in this chapter describe such trivial behaviour (for example, the incident described as disorderly behaviour above at page 46 which involved offenders riding in a shopping trolley that falls over). However, it is our view that it is impossible to reach any firm conclusions on the basis of the police narratives and without a full examination of all the circumstances.
Depending on the circumstances ‘trivial’ behaviours could potentially:
• be dangerous to the defendant’s own safety or the safety of others
• cause damage to property
• be frightening or intimidating to others
• be offensive to some members of the community
• be an indication of an individual’s poor mental health
• provide an indication of a person’s level of intoxication
• be behaviours that may escalate into further aggression against persons or property
• be excusable in certain circumstances.
The question of whether some of the behaviours described in the police narratives should have been dealt with as some alternative offence rather than public nuisance is also arguable (particularly in the case of the fights and also some of the sexual behaviours described such as public masturbation). Again, however, it is impossible to conclude that police are exercising their discretion inappropriately without a further consideration of all the circumstances. Issues of proof, for example, may be a major influence on police charging practices in many cases. For example, a charge of assault may be difficult to prove when police are unable to determine who the instigator was or where there may be no obvious or willing victim to make a complaint. In such circumstances, a charge of public nuisance may provide an alternative course of action (see submission of QPS p. 1; LAQ p. 4).
CHAPTER 8: HOW OFTEN ARE PUBLIC NUISANCE OFFENCES OCCURRING? 51
8
How oFten Are pubLIC nuISAnCe oFFenCeS oCCurrIng?
How MAny pubLIC nuISAnCe oFFenCeS Are oCCurrIng In QueenSLAnd?
One of the goals of the review was to consider the frequency with which public nuisance offences are occurring in Queensland and whether the new public nuisance offence had resulted in an increased incidence of the offence. The view that the introduction of the new public nuisance offence had led to increases in the number of public nuisance offences was well publicised and highly influential prior to and during the conduct of this review (Walsh 2004b, pp. 20–1 & 36; 2005a, pp. 7 & 10; 2006a, p. 11; see also Scrutiny of Legislation Committee 2004; RIPS 2004a, p. 12; Legal Aid Queensland 2005, p. 2;
submissions by the Bar Association of Queensland, p. 1; Families and Prisoners Support, p. 2; Queensland Council for Civil Liberties, p. 2).
Statements made by Queensland politicians as a result of media and public interest generated by particular incidents of violence have also fuelled perceptions that the new public nuisance offence is linked to a marked increase in the incidence of police
apprehension of people for public nuisance behaviours. For example, although it was well after the introduction of the new public nuisance offence, the Hon. JC Spence, Minister for Police and Corrective Services, made a Ministerial Statement to Parliament on 26 October 2005 outlining the new policing strategy to ‘crack down on violence in inner-city
Brisbane’. The minister stated: ‘I expect the statistics for arrests and public disorder offences will increase over the next few months as this new proactive approach continues’
(QLA (Spence) 2005b, p. 3503). On the same day in a media statement she stated that preliminary figures for the 2004–05 financial year indicated that in inner-city Brisbane ‘…
obscene, insulting and offensive language used against police has risen by 2,600 per cent’
(Spence 2005b). (The accuracy of these statistics is discussed further on page 57).
The published research of Walsh also claims to show a ‘massive’ and ‘dramatic’ increase in the number of prosecutions for the offence ‘sparked by the change in legislation’ (2004b, pp. 20–1 & 36; 2005a, pp. 7 & 10; 2006a, p. 11). Walsh claims that her series of court-based observational studies demonstrate:
• a 200 per cent increase in the number of prosecutions proceeding when she compared prosecutions in the Brisbane Magistrates Court in February 2004 and in July 2004 after the introduction of the new offence (2004b, pp. 20–1 & 36; 2005a, pp. 7 & 10)
• three times the number of people coming before the Brisbane Magistrates Court for the offence in July 2004, after the introduction of the new public nuisance offence, compared with the number in February 2004, before the introduction of the new offence (2006a, p. 11)
• continuing increases in the number of people in Townsville and Brisbane coming before the courts after the introduction of the new offence; she states that her studies show increases in the number of prosecutions of 44 per cent in Brisbane and 38 per cent in Townsville between July 2004 and July 2005 (2006a, p. 11).
The view that the introduction of the new public nuisance offence was linked to an increased incidence of charging and prosecution of the offence was also put to our review in a number of submissions and consultations. For example:
• Legal Aid Queensland (p. 5) noted that ‘… we perceived that in some locations, including Brisbane city, there has been an increase in the number of persons charged in relation to such behaviour and language’.
• The ATSILS (South) (p. 2) submission reported that client representations for
‘disorderly/public nuisance’ matters had increased from approximately 220 in 2003–04 to approximately 380 in 2004–05 and to 550 in 2005–06.
• The Chief Magistrate (p. 2) reported: ‘The impression is that there has been an increase in the charges brought for the offence as compared to the position before 1 April 2004.’
• The submissions of the Queensland Bar Association (p. 1) and the Queensland Council for Civil Liberties (pp. 2–3) relied on the ‘official statistics’ provided by Walsh’s (2006a) research to support their view that the new public nuisance offence had led to an increase in the incidence of the offence.
• The Caxton Legal Centre (p. 2) reported that the numbers of clients with public nuisance charges had increased dramatically.
By contrast, police and some local government stakeholders were of the opinion that the frequency of public nuisance offences had remained essentially the same, or even decreased, since the introduction of the new provision. Only in relation to the Brisbane City and Fortitude Valley areas did police believe that the number of public nuisance offences detected since the introduction of the new offence had increased
(QPS (Metropolitan North) consultations, 10 October 2006).
We considered police and courts data in order to examine the number or rate of public nuisance offences after the introduction of the new offence and also long-term trends.