Can Farting at Police Amount to Offensive Conduct in NSW?

It is reported that a man was fined for letting one rip in the presence of police in Austria.

It’s reported that on 5 June the Austrian man ended up receiving a fine of 500 euros for farting loudly in-front of the authorities.

The fine is equivalent to $820 AUD.

The fine he received was for ‘offending pubic decency’.

The police defended their actions and have stated on Twitter, “of course no one is reported for accidentally letting one go”.

They labelled the man’s behaviour as provocative and uncooperative during his interaction with the officers before the fart.

How it Allegedly Happened

It’s reported that he stood up off a bench, locked eyes with the officers before he allegedly “let go a massive intestinal wind apparently with full intent”.

The city police further added, “And our colleagues don’t like to be farted at so much”.

Although it’s unlikely for a person who farts in public to actually face an offensive conduct charge in NSW, police do have the discretion to do so.

If the fine is disputed and heard in court, the Magistrate in court will have to consider all relevant circumstances to assess whether it truly amounts to ‘offensive conduct’ according to law. Some of the circumstances will include whether he/she did it on purpose and specifics of how, where and when it occurs.

No case of this nature, at least that is recorded, comes to mind where it has been tested in NSW. But it will ultimately have to be decided on a case by case basis.

According to law, offensive conduct is a charge under section 4 of the Summary Offences Act 1988 (NSW). It prescribes up to 3-months jail or a fine of $660, or both if it is heard in a NSW Court. Police ordinarily issue an on-the-spot fine for this kind of behaviour.

In fact, someone can only be guilty and subject to the above maximum penalties of offensive conduct if, the conduct is considered behaviour that would wound the feelings, arouse disgust, resentment, outrage or anger to a reasonable person (either in view or hearing, or close to a public place or school).

Offensive conduct is a charge often taken out by police. This is because it encompasses a wide-range of behaviour in circumstances it would otherwise be difficult for police to prosecute another criminal charge.

This type of charge is often used to prosecute people found to be drunk and disorderly.

The benefit of being issued a fine on the spot for offensive conduct (by police) is that, the recipient of the fine will not be subject to the maximum penalties of 3-months imprisonment and/or $660 fine with a criminal conviction by a court if he/she simply pays the on-the-spot fine. No court appearance will be required.

On the other hand, if he/she decides to dispute it and court-elects the infringement notice, he/she will be subject to those maximum heavy penalties including a criminal conviction at the court’s discretion. The only exception to this is if he/she ends up getting a section 10 non-conviction penalty, even after pleading guilty to the charge of offensive conduct.

Have a question on this topic? Get in touch with Australia’s leading Sydney based criminal lawyers today.

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