Search
This area does not yet contain any content.
Justinian News

Reynolds can't get over it ... Former senator drops off news to her favourite hacks at The Australian ... Linda Reynolds is suing the Commonwealth and lawyers HWL Ebsworth over the Brittany Higgins settlement ... Claim that $2.4 million payment to former staffer affirmed Higgins' allegation ... Read more >> 

Politics Media Law Society


Rupert World ... Lord Moloch’s pal Doug the Diva – driving Washington spare … News UK’s model for unionism … What next for the Washington Post? … Concealed coal lobbyists running an anti-Teal campaign … More corruption busting for Stinging Nettle … The litigation industry spawned by Lehrmann ... Read on >> 

Free Newsletter
Justinian Columnists

Party time for Dicey ... Heydon's book - a pathway to rehabilitation ... The predatory man and the clever intellect - all wrapped up in the one person ... Academic tome and cancel agenda ... Despite the plaudits the record of abuse doesn't vanish ... Book launch with young associates at a safe distance ... Procrustes thinks out loud ... Read more >> 

Blow the whistle

 

News snips ...


The Lubyanka ... Bullying investigation into former Federal Court judge goes nowhere ... "Complaint unsubstantiated" ... Phew! ... Recommendations about staff education ... Nothing recommended for judicial induction ... More >> 

 

Justinian's Bloggers

Governance turmoil at Tiny Town Law Society ... Night of the long knives ... Lakeside in Canberra ... ACT Law Society upheaval over governance changes ... Bodies carted out of the council room ... Blood on the carpet ... Fraught litigation another distraction ... From Gang Gang ... Read more >> 

"We're in unchartered territory here. A Pope hasn't died before during an Australian election campaign."  

Jane Norman, National Affairs Correspondent, ABC News ... April 21, 2025 ... Read more flatulence ... 


Justinian Featurettes

Letter from Rome ... Judges on strike ... Too much "reform" ... Berlusconi legacy ... Referendum on the way ... Constitutional court inflames the Meloni regime with decision on boat people ... Insults galore ... Silvana Olivetti reports ... Read more >> 


Justinian's archive

Tea is for Tippy ... Life of a tiffstaff ... Bright, ambitious and, when it comes to the crucial things, hopeless ... Milking the glory of the gig ...  Introducing Tippy, our new blogger filing from within the concrete cage at Queens Square ... From Justinian's Archive, March 15, 2010 ...  Read more >> 


 

 

« The never ending quest | Main | Doctors v Lawyers »
Tuesday
May252010

Shop talk

Application of contemporary standards to use of the F%#*-word in public … Context is everything in coming to grips with indecent language … Justice Beach shows the way in Easter egg drama

Among this month’s crop of delights from the Supreme Court of Victoria can be found Justice David Beach’s handed decision in Gul v Creed.

Here is another tale of a feisty litigant – one determined to have her day in court.

On April 5, 2007, Ms Lyudmila Gul was observed eating part of an Easter egg in the Big W store at the Southland Shopping Centre in Cheltenham.

She was confronted by a store employee and told that what she had done was not appropriate, that it was stealing and that Ms Gul should leave the store.

The store employee claimed that Gul called her a “fucking bitch”, refused to leave, and continued using abusive language.

Gul’s account of the altercation was that she was eating a fragment of a small broken chocolate egg, which had fallen from a shelf, that she had not acted dishonestly, and that she didn’t remember whether she had said the alleged words or not.

She said she had found herself in circumstances of extreme provocation with physical violence used against her by unknown person and under emotional stress such words would be a mild reaction.

Ms Gul was charged under the Crimes Act 1958 with stealing a chocolate egg belonging to Big W and valued at $1.98, and under the Summary Offences Act 1966 with using indecent language.

In the Frankston Magistrates’ Court, his Honour Magistrate Crisp, without conviction, adjourned the case for six months and released Lyudmila upon an undertaking to appear on the adjourned date and to be of good behaviour.

She then appealed to the County Court.

During the re-hearing of the two charges Judge Elizabeth Gaynor had indicated a preparedness to dismiss the charges as trifling.

However, Gul was not prepared to accept this and so the appeal continued.

HH set aside the orders of the Magistrates’ Court, dismissed the theft charge and, without conviction, ordered the defendant to pay a $20 fine on the indecent language charge.

Ms Gul then sought judicial review in the Supreme Court.

It is not at all difficult for this correspondent to appreciate (and admire) her determination.

Without (it seems) the benefit of counsel, she had been vindicated in the County Court on the issue of her honesty.

And, given that the F-word has passed into regular usage, and can, for example, sometimes be heard on the Metro 6.15 pm to Mooroolbark, Ms Gul might be forgiven for concluding that her four letter outburst ought not to require her to defend a criminal charge.

Unlike Judge Gaynor, Justice Beach was not re-hearing the case.

He was confined to deciding whether Gul – again, as our allies across the Pacific Ocean might say, appearing pro se – had demonstrated that Judge Gaynor had erred in law.

This Ms Gul failed to do.

There is no substitute for his Honour’s clear exposition:

“The principles in relation to determining whether language is indecent are well known, and it is not necessary to set them out here.

It is sufficient to say that indecency conveys a failure to meet recognised standards of propriety. Such a failure at the lower end of the scale amounts to an indecency; and at the upper end of the scale amounts to an obscenity.

Further, in determining whether something is indecent, it is contemporary standards which must be applied. Additionally, the words complained of must be looked at in the context of the circumstances in which they were said.

It is for the trier of fact to decide for himself or herself what current standards are, and it is inevitable that a subjective element must enter into the decision.

There are undoubtedly many occasions when a person might say the words ‘fucking bitch’ in a public place or within the hearing of a person in a public place without committing any offence.

Authorities in this area abound. However, in my view, it was open to her Honour to conclude that if Ms Gul called [the Big W employee] a fucking bitch in the circumstances described by [the Big W employee], then this was a use of indecent language contrary to s.17(1)(c) of the Summary Offences Act.

More specifically, the plaintiff has not persuaded me that it was not open for her Honour to so conclude.

The fact that the words ‘fucking bitch’ might be capable of being used in a public place without those words being held to be indecent does not tell against a finding that the use of such words is indecent in particular circumstances.”

Reader Comments

There are no comments for this journal entry. To create a new comment, use the form below.
Editor Permission Required
You must have editing permission for this entry in order to post comments.