Starkey v Director of Public Prosecutions (Cth)
[2013] QDC 124
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- Starkey v Director of Public Prosecutions (Cth)[2013] QDC 124
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Starkey v Director of Public Prosecutions (Cth)[2013] QDC 124
Starkey v Director of Public Prosecutions (Cth)[2013] QDC 124
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 |
ORDERS: |
|
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 350 |
COUNSEL: | Mr B Starkey (Self-represented) Mr W R Ness (Solicitor) for the respondent |
SOLICITORS: | (Appellant self-represented) Commonwealth Director of Public Prosecutions for the respondent |
Introduction
- [1]In his Notice of Appeal filed 21 January 2013, the appellant appealed against both his conviction and sentence 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 2012 and 11 April 2012 in such a way that reasonable persons would regard that use as being menacing, harassing 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 Queen[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 Magistrate 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 the 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 Sala,[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 persons” 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, with whom Muir 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 assessment, 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 deference 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 Exhibit 1 at trial, noting that Tab 1 contained no emails. By the addresses at the head of each email, all recipients were informed of all other recipients. To this extent, they were not singular or private emails though, obviously, were received individually (analogous to a limited radio broadcast).
- [6]It was also not in dispute that the majority of such recipients were either federal (mainly) or state politicians and various media organisations (including the ABC, the commercial TV channels and other news gathering organisations). In addition, the Australian Electoral Commission and GetUp!, as well as other public political organisations, were recipients. It is, in the circumstances, fair to describe the recipients as politicians, political and government organisations, and prominent media groups.
- [7]The true contest, as identified on appeal, was whether the conduct, 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 proof of the fault element.
Legislation
- [9]Section 474.17(1) of the Code provided:
“A person is guilty of an offence if:
- (a)the person uses a carriage service; and
- (b)the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable 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-represented. Accordingly, his grounds of appeal and his Outline of Argument necessarily reflected a lack of precision as to the relevant grounds. Nevertheless, they are intelligible enough and I accept 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)the learned Magistrate erred in applying the “reasonable person” test;
- (b)insufficient weight was given to the fact that 106 of the 107 email recipients did not complain, or give evidence;
- (c)only one complaint was made by an individual and that individual had “an opposing ideology” and “failed to absorb all of the emailed communications”; and
- (d)the learned Magistrate only considered a small number of emails and, then, “out of context”.
Correct meaning of “menacing, harassing or offensive”
- [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 also accepted a narrow definition of the relevant wording. It must be said, from 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 relevant circumstances”: for instance, at [261]. Additionally, considering Monis in more detail, it needs to be acknowledged that the offence in question in that case that was alleged was pursuant to s 471.12 (which dealt with “a postal or similar service”, although, 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 particular material, or a particular use, of a carriage service being in all the circumstances “offensive”, such matters including “the general character of the material” and “the standards of morality, decency and propriety generally accepted by reasonable adults”. As was remarked 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 reasonable persons’ standard in s 471.12: at [263]. Finally, in this regard, the question in the High Court concerned the constitutional validity of s 471.12. Therefore, the matter of whether reasonable persons would regard the content of the communications under consideration there as relevantly “offensive” was not a matter which fell to be determined 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 relevant: 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 about “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 personally directed and deliberately 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 offences 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 apprehension, 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 addressee”: also at [310].
- [14]The above conclusions predicate that the next answer 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 category of offensive communication than would be the case if attention were directed only to the wider meaning of the word “offensive”, adding that it was unlikely that Parliament intended to prohibit all communications which happened to contain matter which may cause “some” offence, thus meaning that 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 spectrum, 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 illuminates is what guidance is available in determining 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 seriousness of the offence, 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 latter as potentially including “provocation, anxiety, fearfulness 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 she 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 the 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 emails 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 evidence 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 the offence requires all the circumstances to be considered 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 asserted by the respondent not to be relevant – was relatively moderate in tone, although it stated that “Labor and Greens Parties should be eliminated from existence” and that certain 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 contained a forwarded email containing “A History Lesson” that might be seen by some 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 threat to our species posed by the Labor and Greens Parties who are the puppets of the trillionaire, criminal, global banking families who are conspiring to World Ownership/World Government run by the United Nations”.
- [21]The 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 and 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 including child sacrifice”, it asserted that the “Australian Government, elected and staff, are riddled with Rothschild Globalist/Zionists” and that “Humanity 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 that among those 85 others there were references to “kill” and “killing”. But, for instance, looking at the email under Tab 88, dated 9 April 2012, the references of that kind on the last page are stated as: “Humanity” 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 human 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 way by the email dated 18 February 2012 (Tab 6); but the “Rockerfeller 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, the 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 is garnered from the context in which an earlier email, in Tab 51 (dated 15 March 2012), stated that “Labor and Greens should all be rounded up and jailed for Treason against Australia” and a later email, in Tab 67 (dated 25 March 2012) referable to “Queensland Labor” and “Queensland Greens”, where Malcolm Turnbull is corralled into the group as well, as a person who should be charged with treason and jailed. The wider context included that most Australians “would be in favour of bringing back the death penalty for people like Gillard and Rudd”: see Tab 11, email dated 24 February 2012.
- [24]There is no doubt that “Humanity” is encouraged to “rise up and exterminate this clear and present threat to our happy existance on this planet” and that this “should start by killing every member and all 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 State” but “humanity declaring war on a few criminal banking families ... and all their lineage”. Even where the Australia politicians are more widely identified than single persons, such as the email in Tab 84 (dated 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 under Tabs 38 and 46 (dated, respectively, 10 March 2012 and 13 March 2012). The first stated 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 families and all their lineage”. The above aforementioned families are again recited. The second began with the statement that “Humanity is at war” and then stated that “Humanity needs to wake up and fight back”, stating that “Step 1 is for humanity to kill all members of the Trillionaire 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 servants 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 referred “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 but 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 (Labor 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 similar expression – though 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, banking families (and their “puppets”) 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 appellant 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 persons”, 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 concerning that witness’ concerns. While 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 Magistrate did err in his application of the “reasonable person” test.
Insufficient weight to non-complainants
- [31]Following upon that discussion about the objectivity of the test, it matters 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 of evidence by, the remaining 106 recipients (noting that some of the recipients were news organisations and not individuals in any event).
The one complainant’s “opposing ideology”
- [33]Again, it matters not that any individual had any political, or purely ideological, view, since the evidence from any individual complainant about the person’s subjective expression of concern is irrelevant to the task in hand.
Failure to “absorb all” communications, in context
- [34]Only a small selection of emails were referred to in detail in the learned Magistrate’s reasons. 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 emails so selected are the ones that are the most extreme. And while it is true that 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 “reasonable 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 stated 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 “context”. But whichever way rejection of the submissions is taken, it is not possible to ignore the content of the total sum of the communications chosen by the prosecution to formulate the charge that was brought. A discussion under this heading has also embraced the appellant’s ground which I have enumerated as (d) in paragraph [11].
Conclusions
- [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 require a conviction.
- [40]Accordingly, I will consider each of the matters in turn.
“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 causing 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 not 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 by the use of very general terms 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 significant 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 to 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 chosen because of positions that the respective parties took, or because of statements the respective persons made from the leadership perspective of their respective parties. For such persons it was more the “content” of the communication than the method of use which was 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 persons would regard the objectively assessed content as having the necessary seriousness, given the nature of the recipients of each such broadcast email, taking into account all the circumstances as a background to where such references were made, and in the context where there had been no physical manifestation of any kind from the sender concerning any of the recipients. This can be contrasted with a wide interpretation which might have lent itself to be of the required nature.
- [44]Hence, I conclude that the charge, insofar as it relies upon the conduct being “menacing”, has not been proved beyond a reasonable doubt.
“Harassing”
- [45]As canvassed in Monis the serious 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 chambers 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 harassment is of such severity 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 fallen within that description. But here, again taking the emails in total 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 am not satisfied beyond a reasonable doubt that reasonable persons 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 necessary 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 circumstances, offensive included the standards of morality, decency and propriety generally accepted by reasonable adults. It cannot be said, in the present circumstances, that literary, artistic or educational merit or the general character of the material (including whether it is of a medical, legal or scientific character) had 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, besides having the necessity that the use be calculated 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 recipient. Additionally, the communication must be capable of causing real emotional and 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 or psychological response, with the former ranging from shock through to anger, hate, disgust, resentment or outrage and the latter potentially including provocation, anxiety, fearfulness and insecurity. Such serious effects are to be contrasted with those that cause 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 “shot” (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 persons would regard, even taking both content and method into account, on the facts and in all the circumstances (embracing the totality of the emails which provide the overall context), the actual use of the carriage service, in the relevant criminal sense conveyed by the word, as “offensive”.
“Fault element”
- [52]Although this was not, even indirectly, raised in argument, it is clear from Monis that a further restriction on the operation 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 aware 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 also satisfy such a fault element of recklessness. Thus, in the circumstances here, the requirement 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 the cross-examination of the appellant at trial (showing 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 such a finding, be an unjustifiable risk.
Outcome
- [54]On all the conclusions that I have reached here, I cannot be satisfied beyond a reasonable doubt that, applying the narrow interpretation of the offending adjectives in question, any one or more of them applies using the objective test of what reasonable persons would regard of the way in which the carriage service was used.
- [55]Hence, the appeal must be allowed, the conviction appealed from must be set aside and the complaint must be dismissed.
- [56]As for costs, since the appellant was self-represented he clearly has incurred no professional fees or costs. I will give leave for submissions as to whether any order at all should be made.