SOMETIMES JUSTICE ISN’T BLIND, JUST COCK-EYED

A new Shire law coming our way

Readers of YDCM’s November issue may have seen on page 12 a Shire of York public notice regarding a new local law, to be called the Local Government Property Amendment Local Law 2018.

The proclaimed intention of the law is ‘to restrict and prohibit’—and of course, punish—‘certain activities on local government property’.

The notice doesn’t say what activities the law will restrict and prohibit, only that it will ‘create offences for inappropriate behaviour’.

‘Inappropriate behaviour’ might refer to a multitude of aberrant acts, from thumbing your nose at the shire president, to spraying rude words on walls, or to even more serious forms of misconduct like asking pointed questions about matters that the Shire wants kept hidden from public view.

Note the predictable use of  ‘inappropriate’, a weasel word best avoided if you want to be taken seriously by people who can think for themselves.

The word conveys nothing apart from finger-wagging disapproval shored up by the risky supposition that everybody shares the attitudes and prejudices of the person using it.

Forbidden activities

As every York ratepayer knows, the local law as it currently stands enables the Shire to prohibit a wide range of activities on shire property. 

Forbidden activities include smoking, riding a bicycle, golf, archery, discharging a firearm, playing a ball game, and those ‘involving a projectile’—presumably, such as mounting a siege engine like a trebuchet, or firing off a nuclear warhead without first obtaining written permission from the CEO.

So one might expect the proposed law, in the same spirit, to declare exactly what new activities it will restrict or prohibit, and precisely what penalties it intends to impose on those who carry them out. 

The Shire’s notice invites us to comment by way of submission on the proposed law.  You can inspect the law during office hours at the administration centre aka the Kremlin in Joaquina Street or (so the notice says) on the Shire’s website.  The closing date for submissions is 18 January 2019.

Don’t try searching ‘local laws’ on the website, as the notice directs. That might get you nowhere, as it did me, because on Friday, when I ran the search, the information hadn’t been posted.

Following a hint from a friend, I looked up resolution 041018 and item SY138-1018 in the minutes of the October council meeting. 

Perhaps I’ve missed something, but there seemed to be no precise indication in the minutes of the activities the proposed law is designed to prohibit.

Perhaps the Shire is relying on us, the public, to nominate activities we think shouldn’t be tolerated on shire property and the penalties those activities should attract.

With some diffidence, I would like to nominate concealment, deception, obfuscation, creating unnecessary staff positions and forking out unconscionably large amounts of public money to expensive lawyers and consultants.   As for penalties, I’ll let readers decide.

Charges dropped

A couple of my more cynical friends have suggested—wrongly, in my opinion— that the Shire’s proposed new law is a response to events in Perth’s Central Law Courts on Friday 26 October last.

That was when a former senior executive of the Shire walked away scot-free from eight criminal charges arising from alleged misconduct on Shire property, namely the administration centre in Joaquina Street. 

Seven of those charges, taken together, alleged that the gentleman in question had committed indecent acts in public by exposing his alter ego at various times over a period of months to three of his female colleagues, who subsequently complained to the police.

The eighth charge was of common assault.  I’ve no idea what incident gave rise to that charge, or who was allegedly assaulted.

Public indecency

The offence of public indecency is covered by section 203 of the Criminal Code. This says that anyone who acts indecently in a public place, or in sight of someone who is in a public place, or in a police station or lock-up, is guilty of a crime and liable on summary conviction to 9 months in the slammer and a fine of $9000.

It’s a defence to a charge under this section that the indecent act complained of was carried out ‘for the public benefit’.   I’m still cudgelling my brains over that one—the Code doesn’t seem to define ‘public benefit’— but anyway I doubt the defence would succeed in the case of a common or garden flasher.

Nor does the section clarify what is meant by ‘indecent act’ (or simply ‘indecent’).   It’s probably fair to say that for most people, the label ‘indecent act’ signifies what used to be called ‘lewdness’, i.e. impropriety of a sexual or excretory nature. 

But at common law the word ‘indecent’ has been held to apply to a broader range of objectionable behaviours, including grave robbing, mistreating corpses and brawling in church.

However, I’m sure we can all agree that ‘flashing’ is an indecent and reprehensible act, especially if perpetrated by a senior official in the workplace.

The crime of common assault is covered by section 313 of the Code.  The prescribed penalty is 18 months and a fine of $18,000 (doubled if the crime occurs in ‘circumstances of aggravation’, for example taking a swipe at a person aged 65 or over).

Innocence

At this point, I remind readers that the alleged perpetrator is fully entitled to the presumption of innocence.

He hasn’t been convicted of the charges brought against him.   

By the same token, the women who complained are in my opinion no less entitled to the presumption of honest report.

We all assumed the alleged perpetrator would either plead not guilty and stand trial or plead guilty and take his lumps.  That’s what usually happens in criminal cases.

Instead, the prosecution dropped all charges and the gentleman left court with an unblemished character to pursue his lucrative career in local government.

‘Public place’

So, why were the charges dropped?

From what I’ve been told recently, it seems the answer turns on the legal definition of  ‘a public place’.

Section 1 of the Code defines ‘a public place’ primarily as ‘a place to which the public, or any section of the public, has or is permitted to have access, whether on payment or otherwise’.

I think it would seem to most people that the location where the offences allegedly took place, the Shire of York administration centre, is according to that definition a public place.

It’s where members of the public go to pay their rates, license pet dogs and cats, pay parking fines, plead for mercy with Shire officials and borrow books from the public library.

It might be argued that while the reception area and the library are certainly public places, the offices where Shire staff work are not.

That would be true if the public is expressly forbidden by law to access them, as may indeed be the case.

My impression, though, is that members of the public are from time to time permitted to enter office areas in the administration centre.

If so, wouldn’t that make the centre, including those areas, a public place as defined in the Criminal Code?

An interesting question that, not being a lawyer, I won’t attempt to answer, especially as my tame legal eagle says I’m wrong.

Getting off

It’s my understanding that the police prosecutor, on legal advice, dropped the ‘flashing’ charges because the place where the offences were alleged to have occurred is not considered to be a public place within the meaning of the Code.

I think that’s the kind of thing usually referred to as ‘getting off on a technicality’—or would be, if the alleged perpetrator did in fact misbehave as alleged towards the female complainants, a proposition that hasn’t been tested in a criminal court and most likely never will be.

The prosecution’s decision to drop the charges seems to have come at a rather odd time, many months after they were laid.  Are we to believe that nobody in the prosecutor’s office had spotted the problem until then?   

To my mind, that decision,  justified or not, was not a good outcome either for the alleged perpetrator—who has been denied his chance to contest the charges and clear his name—or for the witnesses, who waited for the best part of a year to give their evidence only to see that opportunity snatched away.

I’m surprised that the common assault charge was dropped along with the others.  So far as I know, if you assault someone it makes no difference if you do it in a public or private place.   Either way, you’ll still be for the chop.

Now, back to the Shire’s proposed new legislation.   It strikes me that one activity on Shire premises that the local law might in future restrict, prohibit and punish is the one discussed above.

I haven’t thought this through, and I’m not sure what punishment would fit the crime (no crude comments, please)  but I think my suggestion merits serious consideration.  

An apology

Finally, I want to apologise to the complainants for rudely making light of their allegations when the matter first came to light.  That wasn’t this blog’s finest hour.  Ladies, I’m truly sorry.

POSTSCRIPT:  A couple of people have pointed out to me that the police could have laid charges under section 204 of the Criminal Code.

That section makes it a crime to do an indecent act in any place, public or private, 'with  intent to insult or offend'.

Penalty on summary conviction is 12 months in the slammer and a fine of $12,000.  If the matter goes to a higher court, the penalty is 3 years but no fine.

Obviously I don't know why the police didn't lay charges under that section, but it may be that proving such an intent might be rather difficult.

No doubt flashers flash from a variety of motives, for example in hope that viewers will be impressed enough to respond agreeably to what they see.  In other words, the intention may not be to insult or offend but to inspire interest or admiration.  (A motive reflected in the old British police euphemism, 'hawking his fruit'.) 

Of course that doesn't make flashing any less offensive and insulting to women who experience it, but section 204 gives the offender scope to deny that he had the intention to insult and offend. The prosecution would have to prove beyond reasonable doubt that he did have that intention, which might not be easy to do.

So accusing the cops of stuffing up might be a bit unfair.  It's possible I suppose to  construe intent on the basis of circumstances (and previous such misconduct,  if any) but I'm no expert on such matters so I shall forthwith shut up.