Posted on by Stephen Tuck

Prosecutor v Unidentified Father (2015) H&FLR 2015-9

Prosecutor v Unidentified Father (2015) H&FLR 2015-9

Turin Magistrates Court (Fifth Criminal Division)

26 January 2015

Coram: Minucci J.

Appearing for the Prosecution: Barbara Badellino (of the Italian Ministry of Justice)
Appearing for the Defendant: Not identified

Catchwords: Italy – criminal law – parent – psychological abuse – “tough love” – sport – competition – skiing – dieting

Facts: The accused was the father of two daughters and separated from their mother.  Between 2008 (at which time they were aged roughly 11 and 14 years) the girls saw him at weekends.  As they entered adolescence they gained a certain amount of weight and lost interest in skiing.  The accused compelled his daughters to follow a restricted and macrobiotic diet and forced them to train for and take part in competitive skiing.  In 2011 the accused’s daughters complained to their mother of ill-treatment by their father and the matter was referred to the Turin prosecutor’s office.  The accused was charged with mistreatment of his daughters.

The evidence (including statements from the girls’ school principal and skiing trainer) indicated that they were subjected to significant psychological pressure and repeatedly told that they were fat and had to do more sport.  It appears that identifiable psychological harm had been caused to the girls.  There was no evidence of physical abuse.

The accused’s position was that he was acting only as a concerned father, and that any verbal abuse was only to encourage them.

Held: Convicting the accused of mistreating his daughters, that a sentence of nine months imprisonment was appropriate.

Judgment

No written judgment is available.  This report has been prepared based on accounts prepared by duerighe.com, Il Secolo XIX, RAI News, La Voce and La Repubblica, all of 26 January 2015, with the aid of Google Translate

Note: the accused has announced his intention to appeal.

Comment: This case forms an interesting companion to State v Corrigan (1998) H&FLR 2014-63, in which the defendant was convicted of felony child abuse as a result of not addressing health issues caused by her daughter’s significant obesity.  Viewed as part of a bigger jurisprudential picture, it suggests that notwithstanding the serious health and economic effects of obesity (1), the ‘fat shaming’ identified by some bloggers will at some point stray from being socially inappropriate to being a legal wrong.

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(1) Jim Landers, ‘Cost of Care: The U.S. health care system is bleeding green’, Dallas Morning News, 1 February 2015.

Posted on by Stephen Tuck

Le Moullac v Daylight Foods Inc (2014) H&FLR 2015-8

Denis Le Moullac and Jessie Jewitt v Daylight Foods Inc and Gilberto Alcantar (2014) H&FLR 2015-8

San Francisco Superior Court

15 January 2015

Coram: Lam J.

Appearing for the Plaintiff: William Veen and Anthony Label (of The Veen Firm) and Micha Star Liberty  (of Liberty Law)
Appearing for the Defendant: Brent Anderson, Ronald Lenert and Kevin Taylor (of Taylor Anderson); Keith Bremer and Tyler Offenhauser (of Bremer Whyte Brown & O’Meara)

Catchwords: California – road accident – cyclist – wrongful death – damages.

Facts: At around 7am on 24 August 2013 24-year-old Amelie Le Moullac (“the deceased”) was cycling to work in a bicycle lane on Folsom Street in the South-of-Market district of San Francisco. As she approached the intersection of Folsom Street and Sixth Street she was struck and killed by a right-turning* semi-trailer belonging to Daylight Foods and driven by its employee Gilberto Alcantar. The evidence indicated that the bike lane was ‘dashed’ at the relevant point, so that the truck could cross it to enter Sixth Street, but that Alcantar failed to give way to the deceased.

The deceased was wearing a helmet. The evidence was unclear as to whether she was wearing earbuds while riding. It appears Alcantar gave a history of seeing the deceased, passing her, and then losing sight of her shortly before turning. It was unclear what speed either party was travelling.

The San Francisco District Attorney’s office elected not to charge the driver with vehicular manslaughter and the police elected not to issue a traffic infringement to the driver**. The deceased’s parents sought compensation for wrongful death from the driver and his employer.

Held: A jury of the San Francisco Superior Court found that Alcantar had driven negligently and that his employer was vicariously liable for his actions. It found no negligence on the part of the deceased. Damages of $4,000,000.00 were awarded.

Judgment

The matter was finalised by a jury verdict and no written reasons were issued.  The report is prepared based on the Court’s case record, on reports KQED News on 15 January 2015, 18 December 2014, 13 May 2014 and 27 August 2013, and on a memorial website prepared by the deceased’s co-workers.

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* British and Australian readers should remember that American drivers use the right-hand side of the road, and so Mr Alcantar was turning towards the side of the intersection closest to his truck.

** The decision not to prosecute for vehicular manslaughter is perhaps understandable, if conservative: the California Penal Code §192(c) requires at least negligence on the part of a driver; however, the various gradations of negligence in law are tending to become conceptually blurry and there may have been genuine doubt as to how a criminal jury would assess the driver’s conduct: see Stephen Tuck, ‘A recent decision of the Fourth Florida District Court of Appeal’ [Winter 2014] Comm’l Transp. Litig. Cmte Newsl. 10.  The decision not to issue an infringement notice is less explicable. While the California Vehicle Code §21717 required Mr Alcantar to enter the deceased’s lane, safe driving required him to give way to any vehicle already in the lane. An almost identical Victorian case involving a collision between a truck and a pedestrian resulted in a plea of guilty for failing to give way while turning under the predecessor section to Road Safety Road Rules 2009 §72(5)(c): Police v Biagio Favala (Melbourne Magistrates Court, unknown magistrate, 23 September 2008, unreported)

Note: Grateful thanks to Lenore Shefman of Shefman Law Group (Cyclistlaw), Austin, Texas, for alerting me to this case.

Posted on by Stephen Tuck

Ind. School Dist. No. I-89, Okla. Co v Okla. Sec. School Activities Ass’n (2014) H&FLR 2015-7

Independent School District No. I-89 of Oklahoma County, Oklahoma v Oklahoma Secondary School Activities Association (2014) H&FLR 2015-7

District Court of Oklahoma County (Oklahoma)

11 December 2014

Coram: Jones J

Appearing for the Plaintiff: F. Andrew Fugitt and Anthony T. Childers
Appearing for the Defendant: Mark S. Grossman, Andre B. Caldwell and Meredith W. Wolfe (of Crowe & Dunlevy)

Catchwords: Oklahoma – high school – American football – umpiring – review of decisions – sporting associations – injunction.

Facts: A high school football team operated by the plaintiff took part in a playoff game overseen by the defendant on 28 November 2014. The plaintiff considered that its team had been disadvantaged by a particular umpiring decision and sought a replay of the game, which the defendant refused.  The plaintiff sought an injunction compelling the replaying of the last 64 seconds of the game or (alternatively) the replaying of the entire match.

Held: refusing to grant the injunction, that –

1. To obtain a temporary injunction a plaintiff must show (a) a substantial likelihood of success in the substantive issue; (b) irreparable harm to the plaintiff if the injunction is refused; (c) that the potential injury is not speculative and outweighs the harm of the temporary injunction to the respondent; and (d) that the injunction would not be contrary to the public interest.

Tulsa Order of Police Lodge No. 93 v City of Tulsa, 39 P.3d 152 (2001) and House of Realty v City of Midwest City, 109 P.3d 314 (2004), followed.

2. The necessary harm could not be shown simply by the defendant’s alleged breach of its own policies, particularly where the policies themselves and their application was a matter of the defendant’s discretion.

3. In general, courts should not intervene in matters where the parties have agreed to be bound by and submitted to the governance of activities associations.

4. The court would in any case decline to order the requested relief because there is no means of ensuring that it may be carried out fairly: it would be impossible to replicate entirely the conditions of the disputed match with regard to player fatigue, weather, field conditions, coaching and referee decisions, among other things, and an attempt to do so would invite uncertainty and error. Ultimately this would frustrate athletic pursuits themselves.

Judgment

The Court’s judgement is available here.

Posted on by Stephen Tuck

McDuffy v Interstate Distributor Co (2005) H&FLR 2015-6

 

John McDuffy v Interstate Distributor Co (2005) H&FLR 2015-6

Multnomah County Circuit Court (Oregon)

5 October 2005

Coram: Not known

Appearing for the Plaintiff: Michael Ross (of Slater Ross)
Appearing for the Defendant: Alan Lee (of Bullard Law)

Catchwords: Oregon – truck driver – obesity – discrimination – compensation – quantum.

Facts: The plaintiff had worked as a commercial driver since 1987 and had been employed by the defendant since April 2003. He was classed as morbidly obese, being 6 feet tall and weighing 550 pounds (250 kilograms).

In May 2004 he was assigned to a truck which was smaller than usual and in which the steering mechanism could not be adjusted.  He was unable to fit in the cab and reported the problem, after which he was suspended from duty without pay.  In late May he was assigned a larger truck, but then again suspended pending medical clearance for work.  On examination by a doctor it was found that he was able to drive a truck and had only minor other limitations on his capacity to work. Despite this his suspension was not lifted.

The plaintiff brought proceedings against his employer for discrimination.  He tendered in evidence video footage of him performing his work duties.

Held: The jury upheld the plaintiff’s claim and awarded damages of $109,000.00.

Judgment

The outcome was a jury finding and no written reasons are available.  The report prepared based on an account in the Seattle Times of 7 November 2005 and the Oregonian of 6 November 2005.

Posted on by Stephen Tuck

Sharper v New Orleans Saints (2014) H&FLR 2015-5

Darren Sharper v New Orleans Saints (2014) H&FLR 2015-5

Louisiana Court of Appeal (Fourth Circuit)

22 October 2014

Coram: Belsome, Bonin and Dysart JJ

Appearing for the Plaintiff: Frank A Bruno
Appearing for the Defendant: Christopher J Kane and Gerard J Gaudet (of Adams & Reese)

Catchwords: Louisiana – workers compensation – American Football – professional athlete – claim – payments – time limit.

Facts: The plaintiff was a professional athlete employed by the defendant between 2009 and 2011.  In the 2009-2010 football season he sustained a left knee injury in the course of play.  He underwent treatment and was re-signed by the defendant for the 2010-2011 football season.  The defendant classed him “partially unable to perform” and paid him his full salary. During that season he ultimately returned to play.  He was not resigned by the defendant following the 2010-2011 season and formally retired from professional football in November 2011.  On 14 December 2011 he submitted a claim for workers compensation.

Louisiana Revised Statute 23:1209 A (1) provides that –

In case of personal injury … all claims for payments shall be forever barred unless within one year after the accident … the parties have agreed upon the payments to be made under this Chapter, or … a formal claim has been filed.

The plaintiff’s claim was rejected by Louisiana’s Office of Workers’ Compensation on the basis that his claim was ‘prescribed’ (that is, had been lodged out of time) because it was lodged more than 12 months after the injury was sustained and the running of the time limit was not delayed by the payment of compensation payments.  The plaintiff appealed.

Held: dismissing the appeal, that although there were games in the 2010-2011 season where the plaintiff did not play, he attended practices and games and took part in meetings and rehabilitation, all of which was work he was required to perform under his contract and for which he was paid his full salary.  Accordingly the salary he was paid consisted of earned wages and not payment in lieu of compensation.

Dobler v United Fidelity & Guaranty Co, 508 So.2d 176 (La. App. 4th Cir., 1987) and Jones v New Orleans Saints, 800 So.2d 1025 (La. App. 5th Cir., 2001), considered.

Judgment

The Court’s judgement is available here.

Posted on by Stephen Tuck

Bagley v Mt Bachelor Inc (2014) H&FLR 2015-4

Myles A. Bagley and Ors v Mt Bachelor Inc and ors (2014) H&FLR 2015-4

Supreme Court of Oregon

18 December 2014

Coram: Court en banc

Appearing for the Plaintiff: Arthur C Johnson (of Johnson Johnson & Schaller) and Kathryn H. Clarke.
Appearing for the Defendant: Arthur C. Balyeat (of Balyeat & Eager)
Appearing for the Oregon Association of Defence Counsel (amicus curiae): Michael J. Estok (of Lindsay Hart)
Appearing for the Oregon Trial Lawyers Association (amicus curiae): Kristian Roggendorf (of Roggendorf Law)

Catchwords: Oregon – skiing – injuries – liability – release – waiver – public policy – unconscionability.

Facts: The plaintiff was an experienced snowboarder. On 29 September 2005 he purchased a season pass from the defendant for use at its ski area. Purchase of the pass involved signing an extensive prospective release of liability, of which he was reminded while on site by wording on his pass and by signs. On 19 February 2006 the plaintiff sustained very serious injuries while going over a snowboard jump, allegedly because it had been negligently designed, constructed and maintained by the defendant.

The plaintiff brought proceedings against the defendant in Deschutes County Circuit Court, which were summarily dismissed based on the release signed by the plaintiff: Bagley v Mt Bachelor Inc (2010) The Bulletin, 6 September 2013. The plaintiff’s appeal to the Court of Appeals was dismissed: Bagley v Mt Bachelor Inc, 258 Or. App. 390, 310 P.3d 692 (2013). The plaintiff further appealed to the Supreme Court.

Held: allowing the appeal, that –

1. (a) The Courts will not enforce contracts which are illegal. An agreement will be illegal if it is (inter alia) contrary to public policy as expressed in constitutional provisions, statute or case law, or if it is unconscionable.

Uhlmann v Kin Daw, 97 Or. 681, 193 P. 435 (1920); Delaney v Taco Time International Inc, 297 Or. 10, 681 P.2d 114 (1984), followed.

(b) Quaere whether the concepts of public policy and unconscionability are separable.

2. A contract may be unconscionable on procedural or substantive grounds.

(a) Procedural unconscionability considers whether there was oppression or surprise when the contract was formed.  Oppression will exist when there is such an inequality of bargaining power between the parties that there is no real opportunity to negotiate the terms of the contract and there is no meaningful choice.  Suprise occurs when the terms are hidden or obscured (for example, by being in fine print or ambiguously worded) from the perspective of the party claiming unconscionability

Vasquez-Lopez v Beneficial Oregon Inc, 210 Or. App. 553, 152 P.3d 940 (2007); Acorn v Household International Inc, 211 F. Supp. 2d 1160 (ND Cal., 2002), followed

(b) Substantive unconscionability considers whether the terms of the contract contravene public interest or public policy.  It will be necessary for the court to consider whether enforcing the release will cause a harsh or inequitable result, whether the party claiming the benefit of the release serves an important public function, and whether the release absolved the releasee from more than ordinary negligence.

Commerce & Industry Insurance v Orth, 254 Or. 226, 458 P.2d 926 (1969); Estey v MacKenzie Engineering Inc, 324 Or. 372, 927 P.2d 86 (1996); Real Good Food v First National Bank, 276 Or. 1057, 557 P.2d 654 (1976), followed

(c) The factors listed as relevant to unconscionability are not exclusive, and no single factor is critical.  The determination that a release breaches public policy or is unconscionable reflects the totality of the circumstances as well as any other factor (including societal expectations).

Judgment

The Court’s judgement is available here.

Posted on by Stephen Tuck

Trade & Labour Union v Local Gov’t Assoc’n (2014) H&FLR 2015-3

Trade & Labour Union v Local Government Association (2014) H&FLR 2015-3

European Court of Justice

18 December 2014

Coram: Bay Larsen P, Jürimäe, Malenovský, Safjan and Prechal JJ

Appearing for the Plaintiff: Jacob Sand (of Gorrissen Federspiel)
Appearing for the Defendant: Y. Frederiksen (instructors not known)
Appearing for the Danish Government: C. Thorning and M. Wolff (instructors not known)
Appearing for the European Commission: M. Clausen and D. Martin (instructors not known)

Catchwords: European Union – Denmark – employment law – dismissal – obesity – discrimination – disability.

Facts: Mr Karsten Kaltoft was employed from 1 November 1996 by the Municipality of Billund as a childminder, initially on a fixed term contract and subsequently on a permanent contract.  It is common ground that at all material times the plaintiff was obese within the definition promulgated by the World Health Organization.  In November 2010 the Municipality terminated Mr Kaltoft’s employment, asserting that this followed a reduction in the number of children requiring care.  Mr Kaltoft considered that his dismissal had been motivated by his obesity.  The plaintiff brought proceedings on his behalf against the defendant, which represented his employer.

The proceeding was based on Denmark’s Act Respecting Prohibition Against Discrimination on the Labour Market (No. 1349 of 2008), ¶2(1) and ¶7(1), which implements Articles 1 and 2 of European Council Directive 2000/78 prohibiting direct or indirect discrimination on grounds of “religion or belief, disability, age or sexual orientation”

The trial court stayed the proceedings and sought a preliminary ruling from the European Court of Justice as to whether (a) it was unlawful for a government employer to discriminate on the basis of obesity and (b) obesity can be deemed to be a disability and, if so, in what circumstances will that disability be protected from discrimination: Fag og Arbejde v Kommunernes Landsforening (Kolding District Court, 25 June 2013, unreported).

Held: referring the matter back to the trial court, that –

1. Neither Directive 2000/78 nor the Charter of Fundamental Rights of the European Union can be extended by analogy beyond the grounds of discrimination they identify.  Accordingly, European law does not include a general principle of non-discrimination in employment based on obesity.

Chacón Navas v Eurest Colectividades SA, EU:C:2006:456; Coleman v Law, C-303/06, EU:C:2008:415, followed
Åklagaren v Åkerberg Fransson, C-617/10, EU:C:2013:105, considered

2. ‘Disability’ in Directive 2000/78 refers to a limitation resulting from (inter alia) physical impairment which in combination with other barriers may hinder the worker’s participation in employment on an equal footing with other workers. Because obesity does not necessarily pose a limitation it is not in itself a disability (1).  However, should a worker’s obesity give rise to long-term limitations which may hinder their capacity to work on an equal footing with other workers, it will then constitute a disability pursuant to Directive 2000/78

HK Danmark v Dansk almennyttigt Boligselskab and Dansk Arbejdsgiverforening, EU:C:2013:222, Z v A Government department and Board of management of a community school, C-363/12, EU:C:2014:159; and Glatzel v Freistaat Bayern, C-356/12, EU:C:2014:350, considered.

3. It is not relevant to the scope of Directive 2000/78 whether or not a person has contributed to their own disability (2).

HK Danmark v Dansk almennyttigt Boligselskab and Dansk Arbejdsgiverforening, EU:C:2013:222, considered.

Judgment

The Court’s judgement is available here.

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(1) Cf McDuffy v Interstate Distributor Co. (Multnomah Co. Cir. Ct., 2005), Seattle Times, 7 November 2005.  In this case, a 550-pound truck driver claimed to have been wrongfully suspended from duty based on his weight.  He was awarded $109,000.00 after he successfully demonstrated to the court that, regardless of his weight, he was able to perform his duties with only minor limitations.

(2) The evidence indicates that Mr Kaltoft had been unable to sustain any significant weight loss: see ¶19. Conceivably the Court might have assessed this point differently if there were evidence that Mr Kaltoft’s weight was wholly self inflicted: Noting the discomfort which overweight children provoke in some people, it is possible that an argument that Mr Kaltoft was ‘modelling bad behaviours’ would have prompted the Court to formulate an exception on the basis that this would be in the best interests of the children (cf Sec’y of Dep’t of Health and Comm’ty Serv. v JWB and SMB 175 CLR 218 (Austl., 1992)).  Such a line of analysis would, however, present significant further legal problems as to what behaviours ought be modelled.  For example, should an obese carer be required to complete a marathon or train for an ironman competition?  This would raise intriguing questions in relation to autonomy and personal time: Cole v South Tweed Heads Rugby League Football Club Ltd, 217 CLR 469, 476-477 per Gleeson CJ (Austl.,2004); Young v Workers Compensation Appeals Board (2014) H&FLR 37.

Posted on by Stephen Tuck

R v Langford (2009) H&FLR 2015-2

The Queen v Jessica Maree Langford (2009) H&FLR 2015-2

Melbourne County Court (Victoria)

29 March 2009

Coram: Judge Howie

Appearing for the Prosecution: Anne Hassan (of the Office of Public Prosecutions)
Appearing for the Defendant: Dermott Dann (instructors not identified)

Catchwords: Victoria – criminal law – swimming – alcohol – culpable driving – death – sentence

Facts: The defendant was aged 19 years on 29 November 2008. She and her boyfriend had attended Shoreham Beach late that night where they swam naked and drank premixed bottles of vodka and soft drink as well as a bottle of neat vodka.  After swimming they dried themselves with their clothes and the defendant (still naked) began to drive them back to Frankston.  At Hastings the car was involved in an accident and the defendant’s boyfriend was killed.

The defendant’s blood alcohol reading two hours after the accident was 0.09%.  As a probationary driver she was not permitted to have a blood alcohol reading higher than 0.00% (1). The police concluded that at the time of the accident the defendant was driving at 104kph in a 90kph zone.

The defendant was charged with culpable driving causing death and dangerous driving causing death. Magistrate Wakeling committed her to stand trial in the County Court: DPP v Langford (2009), Sydney Morning Herald, 8 September 2009.

The Crimes Act 1958 (Vic.) provides as follows regarding these offences –

[in §318(1 & 2)] – Any person who by the culpable driving of a motor vehicle causes the death of another person shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum) or a level 3 fine or both. 

… a person drives a motor vehicle culpably if he drives the motor vehicle—

(a) recklessly, that is to say, if he consciously and unjustifiably disregards a substantial risk that the death of another person or the infliction of grievous bodily harm upon another person may result from his driving; or

(b) negligently, that is to say, if he fails unjustifiably and to a gross degree to observe the standard of care which a reasonable man would have observed in all the circumstances of the case; or

(c) whilst under the influence of alcohol to such an extent as to be incapable of having proper control of the motor vehicle; …

and

[in §319(1)] – A person who, by driving a motor vehicle at a speed or in a manner that is dangerous to the public having regard to all the circumstances of the case, causes the death of another person is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).

The defendant pleaded guilty in the County Court to dangerous driving causing death. Her barrister noted that she suffered from marked pre-existing psychological problems, had a post-accident history including substance abuse, multiple suicide attempts and a diagnosis of bipolar affective disorder, and had been prescribed anti-psychotic medication. He noted that she had no criminal history.

The Crown submitted that the defendant’s mental health was irrelevant, and that her good character and prospects for rehabilitation did not alter the need for general deterrence. It was submitted that the defendant should be detained in a Youth Training Centre.

Held: Sentencing the defendant to a community based order and prohibited her from driving for 18 months, that –

1. The attitude of the deceased’s family, who forgave the defendant and openly supported her at trial, was relevant to imposing a lenient sentence.

2. It was relevant that the defendant’s psychological state was fragile and that her recovery would not be assisted by a custodial sentence.

Judgment

No written judgment is available.  This report has been prepared based on accounts in the Herald Sun (Melbourne) of 29 March 2010, the Daily Telegraph (Sydney) of 23 March 2010 and the Sydney Morning Herald of 8 September 2009 and 15 February 2010.

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(1) The limit in Victoria for the holder of a full licence is 0.05%.

Posted on by Stephen Tuck

Police v Licciardello (2007) H&FLR 2015-1

Police v Chas Licciardello (2007) H&FLR 2015-1

Sutherland Local Court (New South Wales)

c. 23 January 2007

Coram: Keogh M.

Appearing for the Prosecution: Not known
Appearing for the Defendant: Stephen Russell (instructors not identified)

Catchwords: New South Wales – criminal law – rugby – supporters – satire – offensive behaviour at stadium – reasonable person

Facts: The defendant was a television satirist.  On 14 July 2006 he attended at the Jubilee Stadium prior to a rugby match between the Canterbury Bulldogs and the St George-Illawarra Dragons. In order to parody Bulldogs supporters’ reputation for violence, he dressed in the team colours and offered to sell imitation knuckledusters and flares, a rubber knife, balaclavas and boxes labelled “Rohypnol” as “Official Bulldogs Merchandise”.  The incident was filmed with the intention of later screening it on television.  The spectators present generally took the incident in good spirit, but a number of fans became aggressive (1), prompting police to intervene and charge the defendant with offensive behaviour.

The Summary Offences Act 1988 (NSW), §4 provides that –

(1) A person must not conduct himself or herself in an offensive manner in or near, or within view or hearing from, a public place or a school.
Maximum penalty: 6 penalty units or imprisonment for 3 months.

(2) A person does not conduct himself or herself in an offensive manner as referred to in subsection (1) merely by using offensive language.

(3) It is a sufficient defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had a reasonable excuse for conducting himself or herself in the manner alleged in the information for the offence.

The video of the incident was viewed by the Court.

Held: Dismissing the charge, that –

1. The crowd’s response was relevant in considering the charge.  Her Worship observed that “I can’t ignore the fact that overwhelmingly the crowd responded to the accused’s conduct as if it were a joke, which it was – although it may not have been a joke to everyone’s liking”.

2. That one group of people did not appreciate the humour involved and were insulted did not necessarily prove that the conduct was offensive.  Most people at the incident were good natured and shared the joke, and reasonable people would not have been offended.

An application for the police to pay the defendant’s costs was refused.

Judgment

No written judgment is available.  This report has been prepared based on the account in the Herald Sun (Melbourne), 24 January 2007, at p.7.

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(1) Suggesting a failure to appreciate irony!