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Chapter 54: Threatening, Abusive or Insulting Words or Behaviour

Table Of Contents  

[54.0] Introduction

This chapter will examine the offence of 'Using Threatening, Abusive Or Insulting Words Or Behaviour', as provided for by section 178(n) of the Penal Code (Ch. 26). 

When interpreting any section of the Penal Code (Ch. 26), section 3 must be considered. That section states: 

'This Code shall be interpreted in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.' (emphasis added) 

See: Public Order Act 1936 (UK), section 5.

[54.1] Offences 

Section 178(n) of the Penal Code (Ch. 26) states: 

'Any person who – 

(n)               in any public place uses threatening or abusive or insulting words or behaviour with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned 

is guilty of an offence […]'

[54.2] Wording Of Charges 

'[Name of Defendant] at [Place] on [Date] in a public place namely [specify the name of the public place] did use [threatening, abusive or insulting] [words or behaviour] to wit [specify the (threatening, abusive or insulting) (words or behaviour)] [with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned].'

[54.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Public Place 

E.         [i] Threatening; 

[ii] Abusive; or 

[iii] Insulting 

F.         [i] Words; or 

[ii] Behaviour 

G.        [i] With Intent To Provoke A Breach Of The Peace; or 

[ii] Whereby A Breach Of The Peace May Be Occasioned

[54.4] Objective Tests

[54.4.1] Introduction 

For the prosecution to prove an offence under section 178(n) of the Penal Code (Ch. 26) requires the satisfaction of two distinct tests 'beyond reasonable doubt'. 

The first test is whether the words or behaviour of the defendant were threatening, abusive or insulting. 

The second test is dependant on whether the prosecution is relying on either: 

·                     an intent by the defendant to provoke a breach of the peace; or 

·                     the likelihood of a breach of the peace may be occasioned.

[54.4.2] Threatening, Abusive Or Insulting Words Or Behaviour 

The terms 'Threatening', 'Abusive' and 'Insulting' are not defined in the Penal Code (Ch. 26) or the Interpretation & General Provisions Act (Ch. 85). 

In Utula Samana v Demas Waki [1984] PNGLR 8 Amet J, sitting alone, held at pages 14 – 15: 

'The test is, as Miles J said in Siwi Kurondo's case [Unrep. N258; 26 September 1980], at 4: 

"… whether the speaker as a reasonable person should in all the circumstances expect that the recipient would be insulted, and not merely hurt as to his feelings but insulted to the extent that he was deeply offended or outraged." 

Miles J then at 4 in that case cited a passage from Kerr J in Ball v McIntyre (1966) 9 FLR 237 at 241 and considered that passage helpful: 

"Conduct which offends against the standards of good taste or good manners, which is a breach of the rules of courtesy or runs contrary to the community accepted social rules, may well not be offensive conduct within the meaning of the section … different minds may well come to different conclusions as to the reaction of the reasonable man in situations involving attitudes and beliefs and values in the community, but for my part I believe that a so – called reasonable man is reasonably tolerant and understanding and reasonably contemporary in his reactions …" 

His Honour Miles J continued at the bottom of 4: 

"In this respect I think his Worship misdirected himself in law in considering that the test of whether the words were insulting was whether the person to whom they were directed was in fact insulted." 

… In the words of Miles J in Siwi Kurondo's case: 

"… the words must not be considered in isolation from the circumstances …" 

I refer also to Pratt J's judgment in Barunke Kaman's case at 2. His Honour cited the test as stated by Miles J in Siwi Kurando's case and continued: 

"… It is the duty of the courts to safeguard the fine balance between freedom of speech and a genuine breach of s. 7 of the Summary Offences Act." 

The court is not here to enforce standards of conduct or morals which fall short of criminal conduct.' (emphasis added) 

The character of words may depend on the context and manner in which they are spoken, see Tonny v Iamnan v Gerard Tondambi (Unrep. SC 716/72; Papua New Guinea). 

Insulting words should be not just rude or offensive, but insulting, see R v Ambrose (1973) 57 CrAppR 538 at page 540 & Brutus v Cozens (1972) 56 CrAppR 799; [1972] 3 WLR 521; [1972] 2 AllER 1297; [1973] AC 854; [1973] CrimLR 56. 

The principles relating to how a reasonable person would be expected to react in the circumstances apply equally to threatening, abusive or insulting words or behaviour. 

Therefore, the test to be applied is whether the words or behaviour could be considered either threatening, abusive or insulting so as to deeply offend or outrage a reasonable person in the circumstances of the case to thereby constitute criminal conduct within the meaning of section 178(n) of the Penal Code (Ch. 26). Considering that the test applies to a reasonable person it is objective in nature. It is immaterial whether the recipient of the words or behaviour felt either threatened, abused or insulted.

[54.4.3] Intent To Provoke A Breach Of The Peace Or Whereby A Breach Of The Peace May Be Occasioned 

In Marsh v Arscott (1982) 75 CrAppR 211 [[1982] CrimLR 827] McCullough J, with whom Donaldson LJ concurred, stated at page 216: 

'This section [, referring to section 5 of the Public Order Act 1936 (UK),] is describing breaches of the peace which are brought about, or are likely to be brought about, by other words or behaviour occurring earlier, although usually not very long before. The phrase "whereby a breach of the peace is likely to be occasioned" indicates that Parliament was concerned with cause and effect, ie., with conduct which is likely to bring about a breach of the peace and not with conduct which is itself a breach of the peace and no more. Were this the law every common assault occurring in a public place would also be an offence against this section. Many such assaults will in fact be likely to lead very quickly to a breach of the peace, and these will be within the section; but, without more it is not enough that conduct which is threatening, abusive or insulting is of itself a breach of the peace.' [words in brackets added] 

In Anthony Willie v Roger Taro (Unrep. N526(M); 19 & 20 November 1985) Amet J, sitting alone, held: 

'Mere use and proof of use of threatening, abusive, insulting words, behaviour or gestures is not sufficient, it must be objectively by proper evidence proven that one intended to provoke a breach of peace or whereby a breach of peace was likely to take place. This evidence has to be objective, that is, to others looking on, that the person speaking those words or making gestures or behaviour firstly had the immediate capacity to be able to do an overt act to effect his intention or such as was likely to lead to a breach of the peace; that he was shaping up and moving toward the person at the receiving end with clenched fists or stick or raised hands or picking up sticks or stones -- any such overt action to manifest intentions or by which it can be inferred that a breach was likely to take place. Where clearly words are just uttered in the heat of argument with nothing more and shortly thereafter the person using the words walks away -- again subjective apprehension is not necessarily sufficient -- then clearly no breach was ever likely to take place.' (emphasis added) 

In Utula Samana v Demas Waki [1984] PNGLR 8 Amet J, sitting alone, held at pages 16 – 17: 

'The commission of the offence is not dependent upon what may or could have taken place dependent upon what the reaction of the conduct complained of may have been. Whilst the likelihood of a breach of the peace is further dependent upon whatever the reaction of a recipient may be, then no offence against the section has been committed. 

It is not whether a breach of the peace could have or could very well have taken place if [the recipient of the words or behaviour] reacted this way or that way, it is whether it was in fact likely to take place at that precise point in time following the use of the words [ or behaviour], from the facts and circumstances prevailing at that point of time … 

[… I] accept the meaning of the term "breach of the peace" to be as accepted by Miles J in Siwi Kurondo's case from Carter's Criminal Law of Queensland (5th ed) at 204: 

"… a breach of the peace arise where there is an actual assault, or where public alarm and excitement are caused by a wrongful act. Mere annoyance, and disturbance or insult to a person or abusive language or great and fury without personal violence, are not generally sufficient."' (emphasis added) [words in brackets added] 

In R v Howell (1981) 73 CrAppR 31 [[1982] 1 QB 416; [1981] 3 AllER 383; [1981] 3 WLR 501; [1981] CrimLR 697] Watkins LJ, delivering the judgment of the Court, considered that that definition of a 'breach of the peace' was in parts inaccurate. At page 37 His Lordship stated:

'The statement in Halsbury [, which is identical to the statement referred in Carter's Criminal Law of Queensland (5th ed) at page 204,] is in parts, we think, inaccurate because of its failure to relate all the kinds of behaviour there mentioned to violence. Furthermore, we think, the word disturbance when used in isolation cannot constitute a breach of the peace. 

We are emboldened to say that there is a breach of the peace whenever harm is actually done or is likely to be done to a person or in his presence to his property or a person is in fear of being so harmed through an assault, an affray, a riot, unlawful assembly or other disturbance.' (emphasis added) [words in brackets added] 

See also: G v Chief Superintendent of Police, Stroud (1988) 86 CrAppR 92; [1987] CrimLR 269. 

Therefore, the second objective test to be applied is whether the 'words or behaviour' of the defendant indicated that either: 

·                     he/she had an intention to provoke a breach of peace; or 

·                     a breach of the peace may be occasioned, ie., 'real' possibility of occurring. 

See also: Reid v Jones & others (1983) 77 CrAppR 246; Nicholson v Gage (1985) 80 CrAppR 40; R v Oakwell [1978] 1 AllER 1223; [1978] 1 WLR 32; (1978) 66 CrAppR 174; [1978] CrimLR 168; R v Simcock & Rhodes (1978) 66 CrAppR 192; [1977] CrimLR 751 & R v Edwards & Roberts (1978) 67 CrAppR 228; [1978] CrimLR 564. 

Intention, which is a state of mind, can never be proven as a fact, it can only be inferred from other facts which are proved, see Sinnasamy Selvanayagam v R [1951] AC 83 at page 87, if there are no admissions. 

If there are no admissions, to be found guilty of this offence, 'the only rational inference open to the Court to find in the light of the evidence' must be that the defendant / accused intended to provoke a breach of the peace, see R v Dudley Pongi (Unrep. Criminal Case No. 40 of 1999; Muria CJ; at page 22) 

The law relating to 'Circumstantial Evidence' is examined commencing on page 183. 

Intentional or unintentional intoxication may be considered for the purpose of determining whether the defendant had the necessary 'intent' at the time of the commission of the offence, see section 13(4) of the Penal Code (Ch. 26). 

The defence of 'Intoxication' is examined commencing on page 444.

[54.5] Sentencing 

The jurisdiction of the Court in respect of these offences is examined commencing on page 14. 

Section 178(n) of the Penal Code (Ch. 26) provides that upon a defendant being found guilty under that section is 'liable to a fine of ten dollars or to imprisonment for one month.' 

The law relating to 'Sentencing Generally' is examined commencing on page 918.

[54.6] Related Offences 

The following are offences which are related to the offences of 'Threatening, Abusive Or Insulting Words Or Behaviour':

·                     'Drunk & Disorderly', section 175(c) of the Penal Code (Ch. 26) which is examined commencing on page 875; and 

·                     'Riotous Or Disorderly Manner', section 175(d) of the Penal Code (Ch. 26) which is examined commencing on page 879; 

·                     'Threatening Violence', section 89 of the Penal Code (Ch. 26) which is examined commencing on page 906; 

·                     'Criminal Trespass', section 189(1) of the Penal Code (Ch. 26) which is examined commencing on page 502; 

·                     'Carry Firearm Whilst Drunk Or Disorderly', section 41 of the Firearms & Ammunition Act (Ch. 80) which is examined commencing on page 859; 

·                     'Threatening Violence With Firearm', section 42 of the Firearms & Ammunition Act (Ch. 80) which is examined commencing on page 862; and 

·                     'Affray', section 87 of the Penal Code (Ch. 26).