A charismatic personality known for wearing provocative sandwich boards on Sydney streets has had a conviction of offensive behaviour, laid against him in 2015 for calling then Prime Minister Tony Abbott a rude word, quashed on Tuesday.
In the New South Wales (NSW) District Court, iconic Sydney activist Danny Lim had an appeal granted by judge Andrew Scotting in what could be the most 'Aussie' court ruling in recent times, after being charged in August 2015 for standing on a busy Edgecliff road while wearing a sandwich board that read, "Peace Smile, People can Change, Tony You Can't."
The 'a' in "can't" was written upside down and shaped as, '
u', to hint at a much more provocative word.
In February last year, another magistrate ruled that, while the message was intended to be a play on words, "the reasonable person would have been offended by the sandwich board because the Impugned word was used by reference to the Prime Minister."
According to the rule of Australian law, "for behaviour to be offensive, it must be likely to provoke reactions such as anger, disgust, resentment or outrage" and also "must arouse a significant emotional reaction".
In Tuesday's hearing, Scotting disagreed with the previous magistrate's decision that Lim's conduct was offensive to the general Australian public and said that he believes "the impugned word is now more prevalent in everyday language than it has previously been."
Additionally, the judge cited the English origins of the word, its feature in Shakespeare's 'Hamlet' and the prevalence of the word in Australia when compared to other English-speaking countries as proof that anyone who witnessed the sign would not "have had a significant emotional reaction such as anger, disgust, resentment or outrage".
NSW District Court Notes regarding the conduct of Danny Lim
"As a matter of law, the impugned word is not necessarily offensive, even when used in a public place."
"The impugned word is often used as a derogatory term to describe a person of any gender. In this use, it is best described as an expletive, rather than as an intensive or it being used for its literal significance."
"The impugned word is now more prevalent in everyday language than it has previously been... The impugned word is of ancient English origin and featured in Shakespeare's 'Hamlet'. The prevalence of the impugned word in Australian language is evidence that it is considered less offensive in Australia than other English speaking countries, such as the United States.
"It was also open to read the front of the sandwich board as a play on words, comparing the similarity in the pronunciation of the word "can't" and the impugned word. This is particularly demonstrated by the inclusion of the apostrophe in the relevant position. The front of the sandwich board is capable of being construed as being clever or light hearted and thereby removing or reducing the force of the impugned word. It is also capable of being read as the word "can't".
In other words, if it's alright for Shakespeare to use the word 'c--t' and everyday Aussies use it more often than our English-speaking counterparts from countries like the United States, it's probably not that offensive -- at least according to this judge.
"Whilst the conduct was inappropriate and in poor taste, I am not satisfied beyond reasonable doubt that it was offensive, or so offensive as to be considered in the high end of the range of what would be considered to be offensive," Scotting said in his ruling.
"The appellant [Lim] did not unequivocally use the impugned word. The front of the sandwich board presented a depiction of the word "can't" that could be read as "cunt", but it was not the only logical conclusion to draw.
"The language used was clearly a play on words. If the appellant's conduct was offensive, contrary to my view, in my view it was only marginally so."
In light of being fined $500 for the offence back in 2015, a crowdfunding page organised to support the popular Sydney character raised the fee in just 56 minutes.
"We should be celebrating Danny. It's sad he got fined for expressing his freedom of speech. I don't necessarily endorse everything he says, but the general vibe is that he should be able to wear the board," James Brechney, of LGBTQ group DIY Rainbow, said at the time.
"He spreads so much happiness. All the cars beep as he goes by, he waves along the streets with positive affirmation. He's fabulous. it's such a feel-good buzz."