University Criminal Law: LAW 100 Case Analysis and Problem Question

This assignment solution provides a comprehensive analysis of the case Pregelj v Manison, covering the material facts, grounds of appeal, the court's decision, and the reasoning behind it. The analysis includes a breakdown of the case, addressing the legal issues, applying relevant laws like the Summary Offences Act and Criminal Code, and using the IRAC method to solve a hypothetical problem. The solution explores the concept of offensive conduct, mens rea, and the application of legal principles to the given scenario, offering a detailed understanding of the case and its implications. The assignment also considers how the scenario might change if a woman was involved, providing a complete and insightful exploration of the legal concepts.

Running head: CRIMINAL LAW
CRIMINAL LAW
Name of Student
Name of University
Author Note

2CRIMINAL LAW
Table of Contents
Part A...............................................................................................................................................3
1. Material Facts..........................................................................................................................3
2. Grounds of Appeal...................................................................................................................3
3. Decision of the Court...............................................................................................................3
4. Reason for Court’s Decision....................................................................................................3
Part B...............................................................................................................................................5
Issue.............................................................................................................................................5
Rule..............................................................................................................................................5
Application..................................................................................................................................6
Conclusion...................................................................................................................................7
Reference.........................................................................................................................................8

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Part A
1. Material Facts
The material facts of the case Pregelj v Manison (1987)1 is that a police constable passing from
an adjacent laneway of a building saw through a bedroom window without having any curtains
that two people, one white male and one aboriginal female, were going through the motions of
sexual intercourse. The constable was seen to be getting annoyed and reported the couple to the
authorities. The couple was seen to be charged with offensive behavior under the provisions of
section 47(a) Summary Offences Act2. It was claimed by the appellants that they did not think
that their activities could be seen from the street.
2. Grounds of Appeal
The ground for appeal for the case was that the appellants did not intend for people to be
seeing their activities from the street.
3. Decision of the Court
The Magistrate found them guilty under the provisions of section 47 (a) of the Summary
Offences Act3 and the verdict was seen to be upheld by the Northern Territory Supreme Court.
4. Reason for Court’s Decision
The reasoning of the judgment as per judge Nader was that by considering the decision of
Brennan J it can be concluded that mens rea is an essential element in every statutory offence
1 Pregelj v Manison (1987) 88 FLR 346
2 Summary Offences Act (NT), s.47(a)
3 Ibid

4CRIMINAL LAW
and every behavior that can be considered offensive unless, having regard towards the language
and the subject-matter, mens rea can be seen as excluded either expressly or by way of necessary
implications. A presumption is present that a statue would not be imposing criminal liability
without mens rea. It has been believed by the judge that he believes that if an ordinary person
had been asked whether it would be just for convicting and punishing a person for offensive
behavior, especially someone who had been unaware that his conduct could be seen by anyone in
a public place, the answer would always be in the negative. The essence of 'offensive behaviour'
is the ‘offending of another person’ and such offending is required to be intended. Since the act
of offending a person is important for the prescribed conduct of 'offensive behavior', hence by
the virtue of section 31 of the Criminal Code4, the offender should be excluded from criminal
liability unless the offending was done intentionally or had been foreseen by him as a possible
consequence of his conduct.
Rice j was of the opinion that sexual intercourse between adults is a normal behavior that
has been ordained by society to be natural and lawful. It is a right that has been recognized by the
law, therefore, the behavior of the appellant, without any intent, should be authorized and lawful.
It is not the intention of the legislature to be rendering it as an offensive behavior. Justice should
not be denied to the immodest.
4 Criminal Code 1995 (NT), s.31

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Part B
Issue
The primary issue in the case is whether Ned is guilty of offense under section 47(a) of
the Summary Offence Act5.
Another issue in the case is whether the situation would have been different if that was a
woman.
Rule
Under section 47(a) of the Summary Offences Act6 any person conducting any riotous,
disorderly or any indecent behavior, fighting, using languages that are obscene within the range
of hearing and viewing of any other person in any public place would be guilty of offensive
conduct. This was held in the case Wurramura v Haymon (1987)7.
Under section 31 of the Criminal Code8a person is excused from any criminal
responsibility of any ‘act or omission’ unless the act or omission had been done intentionally or
had been foreseen by him to be a possible consequence.
Under section 23 of the Criminal Code (NT) any person would not be considered guilty if
the act that had been done was either authorized or justified or could be excused.
Under section 26 of the Act an act or omission can be considered authorized if that was
done in exercising a right that has been recognized by the law.
5 Summary offences Act, s. 47(a)
6 Ibid
7 Wurramura v Haymon (1987) 86 FLR 52
8 Criminal Code (NT), s.31

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Application
Applying the decision of the case Wurramura v Haymon (1987) in the current scenario it
can be seen that Ned’s exposure of his penis in the public place was indecent and obscene and
hence it can be considered an offensive conduct under section 47(a) of Summary offences Act.
However applying section 31 of the Criminal Code it can be seen that the act was not
done by Ned in an intentional way. So he could be excused from his criminal liability under this
section but his act of struting around the stage thrusting out his pelvis with his penis still outside
has been done intentionally so he is liable under this section.
Applying section 23 of the Act it can be seen that Ned’s action to strut around the stage
thrusting out his pelvis with his penis still outside could not be justified or authorized. Hence he
would be guilty under this section.
Applying section 26 in the scenario it can be seen that Ned’s act was neither authorized
nor was done in exercising a right that has been recognized by the law. Hence he would be guilty
under this section.
Considering that the conduct happened with any woman, the liability would have been
the same. If it could be proved that the act was unintentional she would have been excused under
the provisions of section 23 of the Criminal Code (NT). However by strutting in the stage
exposing her breasts intentionally it would have constituted an offensive conduct under section
47(a) of the Summary offences Act.

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Conclusion
Thus it can be concluded that Ned would be guilty of offensive conduct under section
47(a) of the Summary offences Act.
It can further be concluded that the situation would not have been different if that was a
woman.

8CRIMINAL LAW
Reference
Criminal Code 1995 (NT)
Pregelj v Manison (1987) 88 FLR 346
Summary Offences Act 1987 (NT)
Wurramura v Haymon (1987) 86 FLR 52