474.17 CRIMINAL CODE
DISTRICT COURT OF QUEENSLAND
CITATION:
Starkey v Commonwealth Director of Public Prosecutions
[2013] QDC
124
PARTIES:
BRETT DAVID STARKEY
(Appellant)
And
COMMONWEALTH DIRECTOR OF PUBLIC
PROSECUTIONS
(Respondent)
FILE NO/S:
BD 240/13
DIVISION:
Appellate
PROCEEDING:
Appeal
ORIGINATING
COURT:
Magistrates Court, Brisbane
DELIVERED ON:
31
May 2013
DELIVERED AT:
Brisbane
HEARING DATE:
10 May 2013
JUDGE:
Dorney QC, DCJ
ORDER
S
:
1.
The appeal is allowed and the se
ntence and conviction
ordered
at first instanc
e
are
set aside.
2.
The complaint is
dismissed.
3.
Both parties have leave to file, and serve, submissions
(if any) on costs by 4pm 7 June 2013.
CATCHWORDS:
Appeal
–
Federal offence
–
use of carriage service (broadcast
emails)
–
whether menacing, harassing or
offensive
–
whether, on narrow test, significantly serious
reactions/responses objectively established
Crowther v Sala
[2008] 1 Qd R 127
Monis v The Queen
[2013] HCA 4
R v Ogawa
[2011] 2 Qd R 3
50
COUNSEL:
Mr B Starkey (Self
-
represented)
Mr W R Ness (Sol
icitor)
for the respondent
SOLICITORS:
(Appellant self
-
represented)
Commonwealth Director of Public Prosecutions for the
respondent
2
Introduction
[1]
In his
Notice of Appeal filed 21 January 2013
,
t
he appellant appealed against both
his conviction and sentenc
e for an offence under s 474.17(1) of the
Criminal Code
1995
(Commonwealth)
(the
“Code”
)
concerning the use of a carriage service
between 15 February 20
12 and 11 April 2012 in such a
way that reasonable persons
would regard that use as being men
acing, hara
ssing or offensive. No point was
taken that the sting of
the charge was expressed in those
several alternatives.
[2]
The appellant was convicted and sentenced on 21 December 2012. At that time the
High Court had not handed down its decision in
Monis v The Quee
n
1
(which was on
27 February 2013). Accordingly, the learned Magistrate did not have the advantage
of the
proper
interpretation
of
a somewhat substantially similar provision
by the
joint judgment of
Crennan, Kiefel
and Bell JJ.
[3]
Although the learned Magis
trate referred to the words of the relevant section, there
was no discussion of any kind about the
precise
nature
(i.e. according to a wide or
narrow interpretation)
of the use
alleged to be
“menacing, harassing or offensive”.
Given the narrow nature of th
e interpretation approved of by the joint judgment in
the High Court, the learned Magistrate erred in his approach
in not considering the
seriousness of the use.
Furthermore
,
contrary
to
Crowther v S
ala
,
2
he relied upon
“subjective” evidence
–
finding that
a
particular
recipient‟s concerns were
“genuine”
-
when
what was required was proof
of
such
use
that “reasonable
pe
rsons” would regard the conduct
as being, in all the circumstances,
of
the relevant
type and that that required an “objective assessment of
the likely impact of (the)
conduct”
:
per McMurdo
J
, w
ith whom Mui
r J (as he then was) agreed
,
at 135 [42].
It is recognised that
the Queensland
appeal
decision was primarily concerned
with
the “fault element”
(meaning that,
following that objective assessm
ent, it must also
be proved that the defendant “either intended that it be so or was reckless as to that
fact”
)
: at 136 [47].
[4]
Thus, bearing in mind relevant authority, it is necessary that I view all of the
evidence
,
paying
,
where necessary
,
due deferenc
e to the learned Magistrate‟s
findings
of fact
and
“rehear
” the complaint.
Background
[5]
It was not in dispute on appeal that the appellant used a carriage service (namely, a
broadcast email) and that between 15 February 2012 and 11 April 2012 he
-
under a
pseudonym
(which was composed from his given name and the stuttering beginning
initial of his surname)
-
sent 88
such emails to 107 recipients
: see Exhi
bit 1 at trial,
noting that Tab
1 contained no emails. By the addresses at the head of
each
email,
all r
ecipients were informed of all othe
r recipients. To this extent, they were not
singular
or
private email
s
though, obviously, were received individually (analogous
to a limited radio broadcast).
1
[2013] HCA 4.
2
[2008] 1 Qd R 127.
3
[6]
It was
also not in
dispute that
the majority of
such recipi
en
ts were either federal
(mainly)
or state politicians and various media o
rganisations (including the ABC,
the commercial
TV channels
and other news
gathering
organisations
). In addition
,
the Austr
alian Electoral Commission and
GetUp!
,
as well as other pub
lic
political
organisations, were recipients.
It is, in the circumstances, fair to
describe
the
recipients as politicians, political and government or
ganisations
,
and prominent
media
groups.
[7]
The true contest, as identified on appeal,
wa
s
whether the condu
ct, taken in the
total
context of the 88
separate emails, could be correctly characterised
,
on the proper
interpretation
,
as “
menacing,
harassing or offensive”.
[8]
Unlike
Crowther
, there was no particular issue
raised
with respect
to pro
of of the
fault elem
ent.
Legislation
[9]
Section 474.17(1)
of the
Code
provided
:
“A person is guilty of an offence if:
(a)
t
he person uses a carriage service; and
(b)
t
he person does so in a way (whether by the method
of use or the content of a communication, or both
)
that reas
onable persons would regard as being, in all
the circumstances, menacing, harassing or offensive.”
[10]
It provided
a penalty of imprisonment for
3
years.
Appellant’s arguments
[11]
The appellant was
self
-
represent
ed. Accordingly, his grounds of
appeal and his
Out
line
of Argument necessarily reflect
ed
a lack of precision a
s
to the relevant
grounds. Nevertheless, they are intelligible enough and I ac
cept that the summary of
them was
correctly set out in paragraph 12 of the respondent‟s Outline of
Submissions. As so
summarised
,
they are that:
(a)
t
he learned Magistrate erred in applying the “reasonable person” test;
(b)
i
nsufficient weight was given to the fact that 106 of the 107 email
recipients did not complain, or give evidence;
(c)
only one compl
a
i
nt was made by an individ
ua
l and that individual
had
“
an o
pposing ideology
”
and
“
failed to absorb all of the emailed
communications
”
;
and
(d)
t
he learned Magistrate only considered a small number of emails
a
nd, then,
“
out of context
”
.
4
Correct meaning of “menacing, harassing or offens
ive”
[12]
Given the 3:3 outcome in
Monis
,
(and its consequences)
it is to the joint judgment
of
Crennan, Kiefel
and Bell JJ that recourse
is
had to determine the content of the
relevant tests.
It is acknowledged
that
each of the remaining 3 separate judgments
a
lso
accepted a narrow definition of the relevant wording.
It must be said, f
r
o
m the
outset
,
that no judgment in
Monis
held other than the relevant standard to be applied
to the alleged use
“is the view of a reasonable person taking into account all the
rel
evant circumstances”
:
for instance, at [261].
Additionally,
considering
Monis
in
more detail, it needs to be acknowledged that the offence i
n question in that case
that was alleged was
p
ursuant to
s 471.12
(
which dealt with “a postal or similar
service”, a
lthough, virtually identical wording is
otherwise
used in both provisions
)
.
Additionally, for s 474.17, unlike s 471.12, s 473.4
required
certain matters to be
taken into account in determining whether reasonable persons would regard
particula
r material, o
r a particular use, of a carriage service being in all the
circumstances “offensive”, such matters including “the general character of the
materi
al” and “the standards of morality
, decency and propriety
generally accepted
by reasonable adults”.
As
was rema
rked upon in the joint judgment, it may be
observed that many of the matters raised for consideration by s 473.4 would be
taken into account in the application of the rea
sonable persons
‟
standard in s 4
7
1
.12:
at [263]. Finally, in this regard, the question
in the High Court concerned the
cons
titutional validity of s 471.12. Therefore,
the matter of whether
reasonable
persons would regard
the content of the communications under consideration
there
as relevantly “offens
ive” was not a matter which fell
to be d
etermined there: at
[255].
Even so, the context of the provision involves more than the mere causing of
the (menace, harassment or) offence “to the recipients” and, while the characterised
use can arise from the content, the method of the use is also relev
ant: at [261] and
[288]. Taking all those factors into account, it would appear that the nature of the
actual recipient, or recipients, is relevant to the objective determination.
[13]
Since the respondent on appeal
-
as
it did
at first instance
-
relied upon
all three
adjectives,
it
is
also
necessary to consider what the joint judgment said
a
bout
“menacing” and “harassing”. It was stated that, while it is true that a communication
which has the quality of being menacing or harassing could be seen to be persona
lly
directed and delibe
rately so, an
offensive communication may have those qualities
-
but it may not: at [310]. It was further said that
the
grouping of the three words and
their subjection to the same objective standard of assessment
for the purpose of
the
offenc
es suggest
that what is “offensive” will have a quality at least as serious in
effect upon a person as the other words convey; and that the words “menacing” and
“harassing” imply “a serious potential effect upon
the
addressee, one which causes
ap
prehension, if not a fear, for that person‟s safety”: also at [310]. The judgment
added that, for consistency, to be “offensive” a communication “must be likely to
have a serious effect upon the emotional well
-
being of an addresse
e
”: also at [310].
[14]
The abo
ve conclusions predicate that t
he next
a
n
swer
which
Monis
raises
is that
a
narrow reading should be given to the relevant words. The joint decision held that
there was no barrier presented to reading the provision down to apply to a narrower
categor
y of of
fensive communication tha
n would be the case if attention were
directed only to the wider meaning of the word “offensive”, adding that it was
5
unlikely that
P
arliament intended to prohibit all communications which happened to
contain matt
er which may cause
“some” offenc
e, thus meaning th
at
s 412.12 may be
taken to strike a balance between competing interests “by prohibiting
communications which are offensive to a higher degree”: at [333]. This degree of
offensiveness
was held to be
at the high end of the spe
ctrum, although not
necessarily the most extreme, with words such as “very”, “seriously” or
“significantly” offensive being
apt
to convey this: at [336]. With respect to the
application of the objective standard of the reasonable person, it was stated that
it
was a person “who may be taken to reflect contemporary societal standards,
including those relating to
robust political debate
” (emphasis added): also at [336].
[15]
The last important element that
Monis
il
luminates is what guidance
is available in
determin
ing the limits of such an offence. The joint judgment,
after
referring to
examples given in the Court of Criminal Appeal of New South Wales
of
the type of
reaction which an
“offensive”
communication might engender as being useful to
show the level of serio
usness of the offen
c
e, added that one would expect such
communication “to be likely to cause a significant emotional reaction or
psychological response”
,
with the former ranging “from shock through to anger,
hate, disgust, resentment or outrage
”
, and the l
atter as potentially including
“p
rovocation
, anxiety, fearfulnes
s and insecurity”, although an
exhaustive list is not
possible: at [338]. It was further stated that communications with such serious
effects “may be contrasted with those which may cause mere
hurt feelings”: also at
[338].
[16]
Lastly, in dealing with the fault element (referred to earlier)
,
the joint judgment
determined that the fault element that applies to the use of the “postal service” is
recklessness, with a person being reckless if he or s
he is at least unaware of a
“substantial risk” that reasonable persons would so regard the use
, where
it
is
unjustifiable to take the risk: at [341]. Additionally, it was held that intention or
knowledge would also satisfy the fault element of recklessness
: also at [341]. It was
then stated that
t
he requirement
of
proof of fault excludes from the scope of the
offence those cases where the conduct could not be said to be intentional or
reckless: also at [341].
Frequency of emails
[17]
Although there were 88 em
ails sent in a 46 day period, it was only thrice that there
were more than 3 per day. The witness, Danielle Louise Henderson, gave evidence
that the Labor Senator for whom she worked received 100 to 150 emails per day.
She was the only person to give evide
nce on this subject.
Content of emails
[18]
The respondent provided a list
on appeal
–
which I marked as Exhibit 1
–
of
relevant emails, highlighted in a fluorescent highlighter. It is not insignificant that
38 of the 88 did not fall into the category of being
relevant.
It must be
remarked
that
relevance,
in context, is simply relevant to the identified emails as containing
specific (potentially transgressing) material.
What
must not be lost sight
of
is
that
6
the offence requires all the circumstances to be cons
idered and, where
,
as here
,
specific emails are identified within a relevant period as constituting one offence,
context must play an important role as well.
[19]
While it serves no purpose for me to recite
,
now
,
every one of the
alleged offending
emails, some
general observations
ought to
be made.
[20]
The first email
–
being one of those assert
ed by the respondent not to be
relevant
–
was relatively
moderate i
n tone, although it stated
that “Labor and Greens Parties
should be eliminated from existence” and that cer
tain conspirators “should face
charges of Treason including
Gillard, Rudd, Brown, Turnbull”: dated 16 February
2012, Tab 2.
It is not without significance that the email also conta
ined
a forwarded
email containing “A History Lesson” that might be seen by s
ome to be more
amusing than concerning.
The second email (Tab 3, dated 16 February 2012) set the
tone for later emails regarding weapons. After it stated that “We want our guns
back”, it then asserted that “Australians need to arm themselves against this t
hreat to
our species posed by the Labor and Greens Parties who are the puppets of the
t
rillionaire, criminal, global banking families who are conspiring to World
Ownership/World Government run by the United Nations”.
[21]
Th
e last of the emails
–
designated as
a
“
relevant
”
one
–
appears at Tab 89. After
referring to the “Rothschild Global Zionists” as being the people “who organised
9/11 an
d blamed it on the Muslims”
and
that “9/11 has resulted in over 1 million
human deaths” and that
“
they
”
are “fully into the
pagan rituals in
cluding child
sacrifice”
,
it
asserted that the
“Au
stralian Government
,
elected and staff, are riddled
with Rothschild G
lobalist/
Zionist
s
” and that “Hu
manity has to declare war on all of
them and deal with this treasonous filth appropriately
”.
[22]
Between those 3
emails were sent
the other 85
. There is no doubt th
at among those
85
others there we
re references to “kill” and “killing”. But, for instance
,
looking at
the email under Tab 88, date
d 9 April 2012, the references
o
f
that kind o
n the last
page are stated as
:
“H
umanity” has “only one choice”
(i.e. “kill these criminal
families
before
they take away our freedom and
kill us”
(emphasis added);
and
“Humanity must fight against this global criminal organisation
who
threatens the
future of the hu
man species, by
killing every member and all the lineage of these
above families
” (emphasis added)
–
it being noted that the “Criminal Families”
include the Rothschilds, the Schiffs, the Wahlbergs and the Oppenheimers.
They
were first identified in that wa
y by the email dated 18 February 2012 (Tab 6); but
the “Rocke
r
feller Family” was added to their ranks later (even if omitted thereafter
from time to time): see Tab 17 (email dated 27 February 2012).
[23]
Even when a particular Australian politician is named, as
in the email under Tab 60
(dated 21 March 2012)
,
it is
in the context of
such a
statement
as
, “He should not be
voted out. He should be charged with Treason, taken
out
into the bush and a bullet
put through his head for Treason against Australia
”
. Thus, t
he contention is that he
should be charged first
–
then presumably tried by some kind
of
kangaroo court.
Nevertheless, there is no specific threat that the author of
the email is to do the
killing of any specific person.
This i
s garnered from
the context
i
n which
an earlier
7
email, in Tab
51 (dated 15 March 2012), stated
that “Labor and Greens should all be
rounded up and
jail
ed for Treason against Australia”
and a later
email
,
in
Tab 67
(dated 25 March 2012) referable to “Queensland Labor” and “Queensland G
reens”,
where
Malcolm Turnbull is corralled into the group as well
,
as
a
person
who should
be charged with treason and
jail
ed.
The wider context included that most
Australians “would be in favour of bringing back the death penalty for people like
Gillard a
nd Rudd”
: see T
ab 11, email dated 24 February 2012.
[24]
There is no doubt that “Humanity” is encourage
d
to “rise up and exterminate this
clear and pr
esent threat to our happy exista
nce on this planet” and
that this
“should
start by killing every member and al
l lineage of these Global Banking Criminal
Families”: see, for instance, the email in Tab 83
(dated 6 April 2012).
Earlier (in an
email dated 3 March 2012, Tab 25), “All men of the earth” were stated to “need to
„man
-
up‟, arm themselves and declare war on
the Global Banking Trillionaire
Criminals”, it not being “a State
declaring war against another S
tate” but “humanity
declaring war on a few criminal banking families
...
and all their lineage”.
Even
where
the Australia politicians are more widely identifie
d than single persons, such
as the email in Tab 84 (d
ated 7 April 2012) as including
-
besides “Brown”
-
“Gillard”
,
the terms of the communication are expressed in terms of
“these filthy
Fabian Socialist criminals ... still walking around the streets”, whom
“Australians
need to toss ... in
jail
for High Treason and
then get them before a firing squad
.
”
(emphasis added).
In an email dated 24 February 2012 (Tab 12), “Rudd” was stated
to be a “treasonous criminal” who “needs to be jailed
or
shot” (emphasis added),
although a slightly later email (dated 24 February 2012
–
Tab 13) added that he
“should be charged with Treason” and (presumably after) “taken out and shot”.
[25]
During argument on appeal, the respondent drew my attention to
2
specific emails,
being those un
der Tabs 38 and 46 (dated, respectively, 10 March 2012 and 13
March 2012). The first st
ated
that “Humanity” has “no choice” but
that “We need to
declare war on the whole Global Elite” and “We have to kill every member of these
famil
ies
and all their lineag
e”. The above aforementioned families are
again
recited.
The second beg
an
with the statement that “Humanity is at war” and then state
d that
“H
umanity needs to wake up and fight back”, stating that “Step 1 is for humanity to
kill all members of the Trillion
aire Banking Families and all their lineage” and
“Step 2 is to kill or incarcerate all the lower level members and puppets of the
enemy”. Among the organisations and “instruments of the enemy” are stated to
“include” “All left
-
wing governments, public serv
ants and NGOs including the
Australian Labor Party and the Greens Party”.
There was further a specific
identification of local “Australian helpers and puppets”
in an email dated 9 April
2012
(
Tab 88
)
.
It was contended by the respondent that the recipients,
having no
idea exactly
who the sender was or
what the sender was
capable of, except that it
was
clear that the person
was
“very angry, very aggressive”
and
referr
ed
“to people
being
–
being shot in the head”,
might reasonably conclude that the sender was
not
calling for
so much the taking up of arms
b
ut
for
exterminating “left
-
leaning
politicians and their associates”.
Insofar as context plays a role here, several emails
referred to the benefits of the “Westminster system” under which “we can eliminate
(La
bor and Greens)... at the polling booth”: see Tab 70, email dated 26 March 2012.
The respondent did concede that the
identified
recipients might be thought to be,
objectively, a “fairly robust group of people”. That, of course, has resonance with a
8
simila
r expression
–
th
ough there regarding
“political debate” generally
–
in
Monis
:
at [336].
[26]
The remaining emails
which were not (relatively)
benign
were in like terms, in that
they conveyed diatribes against political movements,
b
anking
f
amilies (and their
“p
uppets”) and, on occasions, identified politicians (particularly federal politicians,
either as puppets or criminals in their own right).
They were decidedly repetitious
and often ended in the predictable call for “humanity‟s need” to be “at war” to “kill”
the so
-
called “filth” or “evil” ones.
There was no clear escalation in the tone over
time; rather, it waned and waned insofar as references to shooting, for instance,
were made.
“A reasonable person” test
[27]
It is inevitable
-
as I made it clear to the appe
ll
ant in oral argument on appeal
-
that
,
following
Monis
,
the test to be applied to the relevant use is objective and requires
consideration whether reasonable persons would regard the content
and
,
perhaps,
the
method
of such communications
-
and even both
-
as being relevantly menacing,
harassing or offensive.
[28]
Consequently, although the learned Magistrate made reference to “reasonable
pers
ons”, he did so in the context of
referring to the
“complaining”
witness whose
concern he described as “genuine”.
This
is expressly contrary to the Queensland
Court of Appeal decision of
R v Ogawa.
3
[29]
It is difficult, if not impossible, to read those reasons as not relying, at least in part,
upon the “credible evidence” of that witness conc
erning that witness‟ concerns.
Whil
e it may well be that the learned Magistrate, independently of such a reference,
simply had regard to the objective standard of the reasonable person, the reasons
were not
clearly
expressed in those terms.
[30]
Thus, I accept
the argument
that the learned Magis
trate did err in
his application of
the “reasonable person” test.
Insufficient weight to non
-
complainants
[31]
Fo
llowing
upon that discussion about the objectivity of the test, it matt
ers not that
only 1
of the 107 recipients either complained or gave evidence.
[32]
Hence, there is no substance in the ground that insufficient weight was given to the
absence of complaints from, or the giving o
f evidence by, the remaining
106
recipients (noting that some of the recipients were news organisations and not
individuals in
any event).
3
[2011] 2 Qd R 350: see Keane JA at 386
-
3
87 [140]
-
[145].
9
The one complainant’s “opposing ideology”
[33]
Again, it matters not that any individual had any political, or purely ideolog
ical
,
view, since the evidence from any
individual complainant
about the person‟s
subjective expression of concern is irrele
vant to the task in hand.
Failure to “absorb
all
”
communications
,
in context
[34]
O
nly a small selection of emails were referred
to
in detail
in the learned
Magistrate‟s r
easons. These Reasons have not discussed each and every email
either.
[35]
Nevertheless, it is
not
correct
to
find
that the emails
that
were
specifically referred
to
at first instance
are “representative” of the emails sent during the charge period.
This is because the email
s
so
selected are the ones that are the most extreme. And
while it is true t
hat many further emails were also extreme, many emails were
relatively mild in tone and content.
[36]
But the major concern is that the provision requires that “all the circumstances”
need to be taken into account
,
because they are the things to which those
“re
asonab
le persons” would have regard in determining the use of the carriage
service in a way of
being
potentially
menacing, harassing or offensive.
[37]
Rather than consider all the emails as providing a context for the others
,
the learned
Magistrate simply stat
ed that he had considered the defendant‟s submissions
–
which included a reference to “context”
–
and that he rejected them because they
were “not credible”.
[38]
The reference to credibility may, in its own context, be a reference to matters other
than “contex
t”. But whichever way rejection of the submissions is taken, it is not
possible to ignore the content of the total
sum of the
communication
s
chosen by the
prosecution to form
ulate
the charge
that
was brought. A discussion under this
heading has also embrac
ed the appellant‟s ground which I have enumerated as (d) in
paragraph [11].
Conclusi
ons
[39]
It is intended, in turn, to consider each of the adjectives “menacing”, “harassing”
and “offensive”. As this charge has been
presented
,
for
any characterisation of use
of the carriage service here, whether it by the method of use or the content of the
communication, or both, in a way that reasonable persons would regard such as
,
in
all the circumstances, having one of those characteristics, one
only
is sufficient to
requ
ire a conviction.
[40]
Accordingly, I will consider each of the matters in turn.
10
“
Menacing”
[41]
As
is interpreted by the joint judgment in
Monis
this adjective, together with
the
immediately
following adjective
,
imply a serious potential effect upon a recipient,
being one which causes apprehension, if not a fear, for the recipient‟s safety.
[42]
Is
the totality of the emails of such content
, and in the way that they were sent, such
as
reasonable persons would regard as
caus
ing
apprehension, if not fear, for
“safety”
?
What the reasonable person must consider is that the degree of menace
must be at the high end of the spectrum, although not necessarily the most extreme.
Necessarily, the reasonable person must be taking into effect contemporary societal
standards.
I am n
ot
satisfied
beyond a reasonable doubt that reasonable persons
would regard
the relevant extent of menace
as sufficient for conviction. As it
applied to
those
recipients (or other such persons)
who were
generally
encompassed
b
y the
use of
very general term
s
of
“
humanity‟s
”
threat,
bearing in mind the
“frequency” of
the emails
(
which, in context
,
lessened
their significance as
a
menace
personally directed
), it was not one causing apprehension, if not fear, for
safety.
It might even be
projected
that the sign
ificant concern was whether to
consign each to the “DELETED” folder or to the “SPAM” folder in the email
software
program.
[43]
Turning, then, to the individuals identified. Specifically with reference to
killing by
shooting (or its derivatives)
-
in contrast t
o their general “extermination” as
“puppets”
-
only
3
particular individuals
were
selected. Each
was
, at the relevant
time, in a leadership position in a significant political party. A close reading of all
the circumstances shows that
those
persons were ch
osen because of positions that
the respective parties took, or because of statements the respective persons made
from the leadership perspective of their respectiv
e parties. For such persons it wa
s
more the “content” of the communicatio
n than the method of
use which wa
s
relevant to the way in which a carriage of service
was
being used, although
separated use impacted on the method (despite such repetition suggesting a rant or
diatribe rather than intended action).
From that perspective, given the nature of
permissible robust political debate, I am not satisfied
beyond a reasonable doubt
that reasonable person
s
would regard
the objectively assessed content
as having the
necessary seriousness
,
given the nature of the recipients of each such broadcast
email, ta
king in
to account
all the circumstances
as a background to
where such
references were made
,
and in the context where there ha
d
been no physical
manifestation of any kind from the sender concerning any of the recipients
. This can
be contrasted with a wide i
nterpretation which might have lent itself to be of the
required nature.
[44]
Hence,
I conclude that the charge, in
sofar as it relies upon the conduct being
“menacing”
,
has not been proved beyond
a
reasonable doubt.
“Harassing”
11
[45]
As canvassed in
Monis
the serio
us potential effect upon a recipient is similar, if not
sometimes identical,
to what
arises from a menace (namely, one which causes
apprehension, if not a fear, for that recipient‟s safety).
[46]
Slightly different considerations apply here because it is not
only the content of the
communication but the method of use, namely the sending of 88 emails in total that
would have
potentially more significance for
this aspect of the charge.
Furthermore, it would have a
wider bite than simply menace. As discussed by
Keane JA in
Ogawa
, the quantity and frequency of the
discrete
uses could lead to a
conclusion by reasonable persons that, in the context, the “use” was relevantly
“harassing”: at 384 [129]. There, 176 phone calls were made to Federal Court
registries and c
hambers between 13 April 2006 and 19 May 2006. Though using an
arguably wide interpretation of “harassing” (i.e. “unwelcome and unwanted”),
Keane JA held that the quantity and frequency, in context, would reach the required
standard of proof: at 384 [129].
[47]
But
,
even so, because the group of recipients would be seen by a reasonable person
to be people who daily engaged in robust political debate, or reported it, or
otherwise
were
involved directly or indirectly in it, it needs to be considered
whether the h
arassment is of such severit
y or
seriousness that it caused
the relevant
apprehension or fear for safety.
[48]
Undoubtedly, on a wide interpretation of “harassing” these emails may well
have
fall
en
within that description. But here, again taking the emails in t
otal as part of all
the circumstances
(which included, at
least in one politician‟s case
-
and
inferentially most of the others as well
-
between 2% to 3% only of
the
average
daily email
receipts)
and bearing in mind societal standards, I conclude that
I a
m not
satisfied beyond a reasonable doubt that
reasonable person
s
would be satisfied that
the carriage service, being a broadcast email to 107 recipients, was done in a way
that was
so
harassing.
“Offensive”
[49]
For “offensive”, as earlier heralded, it is ne
cessary to apply the specific provisions
of s 473.4 of the
Code
. Relevantly for present purposes, the matters to be taken into
account in deciding whether reasonable persons would regard
the
particular use of a
carriage service as being, in all the circums
tances, offensive include
d
the standards
of morality, decency and propriety generally acce
pted by reasonable adults.
It
cannot be said, in the present circumstances, that
literary
, artistic or educational
merit
or
the general character of
the
material (inc
luding whether it is of a medical,
legal or scientific character)
ha
d
much, if anything, to add here.
[50]
In
order to be
“offensive”
the particular
communication must be likely to have a
serious effect upon the emotional well
-
being
–
in terms applicable here
–
of a
recipient. Additionally, beside
s having the necessity that
the use be calculat
ed
or
likely to arouse significant anger, significant resentment, outrage, disgust
, or
hatred,
it is not sufficient if the use would only hurt or wound the feelings of a re
cipient.
Additionally, the communication must be capable of causing real emotional and
12
mental harm, distress or anguish to the recipient. Or to express it
in another
way, the
communication must be likely to cause a significant emotional reaction o
r
psycho
logical response, with the
form
er
ranging from shock through to anger, hate
,
disgust, resentment or outrage and
the
latter potentially including p
rovocation
,
anxiety, fearfulness and insecurity.
S
uch serious effects are to be contrast
ed
with
those that cau
se mere hurt feelings.
[51]
Applying the
standards
of morality, decency and propriety generally accepted by
reasonable adults
,
and
noting that the words
“
very
”
,
“
seriously
”
,
or
“
significantly
”
offensive are required in the application of those standards to the
facts here, while it
can be easily accepted that a wide interpretation would yield positive answers to
offensiveness, on at least most of the Anti
-
Zionist (if not expressly Anti
-
Semitic)
statements,
as well as
to those about individuals and groups
being
“
s
hot
”
(
sometimes summarily
and sometimes after trials, by
“Humanity”
)
, in the context of
what robust political debate accepts for recipients such as those here
and
as persons
who
needed to have been
the subject of serious effects beyond mere hurt feelings,
I
conclude that
I am not satisfied beyond a reasonable doubt that
reasonable person
s
would
regard
, even taking both content and method into account,
on
the fact
s and
in
all the circumstances
(
embracing the totality of the emails which provide the overall
c
ontext
)
,
the
actual
use
of the
carriage service
,
in the relevant criminal sense
conveyed by the word
,
a
s
“offensive”.
“Fault element”
[52]
Although this was not,
even
indirectly, raised in argument, it is clear from
Monis
that a further restriction on the oper
ation of the provision arises from proof of the
fault element in such an offence. The relevant fault element here is whether
reasonable persons would
regard
, in all the circumstances, that the defendant was
reckless in the relevant use, being at least awar
e of a “substantial risk” that
reasonable persons would so regard the use where it is unjustifiable to take that
risk.
Alternatively, intention or
knowledge
can
a
lso satisfy
such a fault element of
recklessness
.
Thus, in
the circumstances here
,
the require
ment of proof of fault
excludes
,
from the scope of the offence
,
conduct which could not be said to be
intentional or reckless.
[53]
In the circumstances here
-
should it
otherwise be held that the use was
descriptively
criminalised
-
it was
clearly
reckless,
at least in the first of the senses discussed
: see
Exhibit
2 (containing the edited transcript of a conversation with the
appellant
during the execution
of the
relevant search warrant showing an intention or
knowledge to undertake the use) together with th
e cross
-
examination of the
appellant at trial (show
ing
that he was aware of people “absorbing” the
communication and taking it “on board”, even if it were to be otherwise accepted
that he had no
subjective
“intention” to cause recipients to “feel troubled
or
concerned or fear for their safety or the safety of others associated” but rather
simply
to put some emotion behind “my information ... that I‟m sending down”
)
.
The use of the language canvassed, objectively, would have demonstrated that it
would, on su
ch a finding, be an unjustifiable risk.
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