Court v Feng

[2013] WASC 320

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   COURT -v- FENG [2013] WASC 320

CORAM:   ALLANSON J

HEARD:   15 AUGUST 2013

DELIVERED          :   15 AUGUST 2013

FILE NO/S:   SJA 1022 of 2013

MATTER                :the Criminal Appeals Act 2004 (WA) pt 2

Prosecution Notice Number PE 39334/12, PE 39335/12 in the Magistrates Court of Western Australia at Perth

BETWEEN:   MATTHEW PATRICK COURT

Appellant

AND

BANG QUAN FENG
Respondent

ON APPEAL FROM:

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE M D WHEELER

File No  :PE 39334 of 2012, PE 39335 of 2012

Catchwords:

Criminal law - Appeal against decision of Magistrates Court - Statutory interpretation - Whether s 474.17(1) of Criminal Code Act (Cth) is limited by classes of persons named in s 474.17(2)

Legislation:

Criminal Code Act 1995 (Cth), s 3, s 473, s 474.17
Telecommunications Act 1997 (Cth)

Result:

Appeal allowed
Remitted to Magistrates Court for rehearing

Category:    B

Representation:

Counsel:

Appellant:     Ms S J Oliver

Respondent:     Ms F R Veltman

Solicitors:

Appellant:     Director of Public Prosecutions (Cth)

Respondent:     Sino Legal

Case(s) referred to in judgment(s):

Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193

1. ALLANSON J:  (These reasons were delivered orally and have been edited from the transcript).

2. In my opinion, this appeal should be allowed for these reasons.  The prosecution alleges that Mr Feng, the respondent, sent an email to a number of recipients and that the email contained images of sexual activity.

3. He is charged with two offences alleging he used a carriage service in such a way that reasonable persons would regard as being in all the circumstances offensive, in contravention of s 474.17(1) of the Criminal Code Act 1995 (Cth) (the Code). Those circumstances may, in this case, include the identity of the persons in the images.

4. Section 474.17(1) provides that 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.

5. There is a penalty of three years prescribed.

6. Subsection (2) begins with the words 'Without limiting subsection (1)', and continues:

   that subsection applies to menacing, harassing or causing offence to:

   (a)an employee of an NRS provider; or

   (b)an emergency call person; or

   (c)an employee of an emergency service organisation; or

   (d)an APS employee in the Attorney‑General's Department acting as a National Security Hotline call taker.

7. On 25 January 2013 in the Perth Magistrates Court, counsel for the respondent raised a preliminary issue for determination by the court. Counsel submitted, in effect, that when properly construed the section creates the offence of using a carriage service to menace, harass or cause offence to persons who fall within those classes listed in s 474.17(2), and to only those persons.

8. The magistrate said that he had great difficulty with the words 'without limiting subsection (1)'. He resolved that difficulty by construing s 474.17(1) as identifying 'the actions of the perpetrator', and s 474.17(2) as identifying the persons that the use of the carriage service is directed to or at. He said:

   The way I think it is to be interpreted is that it is to be one of those persons and they are not to be taken as unreasonable … I think because that's the way without limiting subsection 1, it's not to limit those people to be considered perhaps as [needing] to be tougher than others, put up with a lot on the phone, etcetera, and therefore limiting the intention to look at the reasonable person. 

9. The magistrate concluded that, for there to be an offence, the act 'has to be directed at those particular people in that list'. As Mr Feng's emails were not alleged to have been sent to any person included in the classes in s 474.17(2), his Honour dismissed the charges on this preliminary issue.

10. The prosecution appeals on two grounds and leave has already been granted on each of them.

11. Ground 1 is that the learned magistrate erred in the interpretation of s 474.17 and, in particular, erred in the interpretation of the phrase 'without limiting subsection (1)', in s 474.17(2).

12. Ground 2 is that the learned magistrate erred in law by finding that an offence against s 474.17(1) of the Code can only be committed against a person falling within one of the classes of persons listed in s 474.17(2).

13. Both grounds essentially argue the same matter.

14. The proper approach to the task of statutory construction was summarised by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 [69], [71. There are three aspects of this approach of particular relevance. First, construction requires close consideration of the text and structure of the provision, in the context of the Act as a whole, the general purpose and policy of the provision, and its consistency and fairness. Similar comments were made in Stevens v Kabushiki Kaisha Sony Computer Entertainment [2005] HCA 58; (2005) 224 CLR 193 [30].

15. Second, if conflict appears to arise from the language of the provisions, 'the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions':  Project Blue Sky [70].

16. Third, the court must strive to give meaning to every word so that 'no clause, sentence or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent':  Project Blue Sky [71]. The respondent has also referred me to the recent comments of the High Court in Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55 [39], that the task of statutory construction must begin and end with consideration of the text. The court, in a unanimous decision, said

    The statutory text must be considered in its context.  That context includes legislative history and extrinsic materials.  Understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text.  Legislative history and extrinsic materials cannot displace the meaning of the statutory text.  Nor is their examination an end in itself.

17. In this case, the construction and application of s 474.17 requires consideration of the general principles of criminal responsibility in ch 2 of the Code. The stated purpose of ch 2 is to codify the general principles of criminal responsibility under the laws of the Commonwealth. It contains all general principles of criminal responsibility that apply to any offence, irrespective of how the offence is created. It applies to all offences against the Code.

18. By s 3, in order for a person to be found guilty of committing an offence, the following must be proved:

    (a)the existence of such physical elements as are, under the law creating the offence, relevant to establishing guilt;

    (b)in respect of each such physical element for which a fault element is required, one of the fault elements for the physical element.

19. Accordingly, it is necessary to identify the physical elements of the offence under s 474.17. By s 4.1, a physical element of an offence may be conduct, or a result of conduct, or a circumstance in which conduct, or a result of conduct, occurs. By s 5.1, a fault element for a particular physical element may be intention, knowledge, recklessness or negligence.

20. Section 474.17 is found in pt 10.6 headed 'Telecommunications Services'. That part cannot be read on its own, and requires recourse to the Telecommunications Act 1997 (Cth) to understand several of the notions in it, including that of a carriage service. I do not understand that there is any dispute in this case that the use of the internet to send an email is the use of a carriage service.

21. Section 473.1 contains definitions, none of which are necessary for the purposes of the present appeal.

22. Section 473.4 may be relevant.  It sets out, although not exclusively, the matters to be taken into account in deciding whether reasonable persons would regard particular material, or a particular use of carriage service, as being, in all the circumstances, offensive.

23. Section 473.5 excludes from the use of a carriage service, conduct engaged in by a carrier, or a carriage service provider, or an internet service provider, or an internet content host, when those persons are acting solely in that capacity.

24. We then come to the offences, which are found in div 474.  There are many of them.  The offence presently relevant is found in 'Subdivision C ‑ General offences relating to use of telecommunications'.  That subdivision also contains offences of using a communications network with intention to commit a serious offence; using a carriage service to make a threat; using a carriage service for a hoax threat; improper use of an emergency call service; and the present offence which has the heading 'Using a carriage service to menace, harass or cause offence'.

25. The physical element of the offence in s 474.17 appears to be using a carriage service in a specified way. The conduct includes using the carriage service. The physical element also involves the circumstances in which the conduct or the result of the conduct occurs - in this case that the content of the communication is offensive. The magistrate apparently saw the physical element as including the person at whom the act of use is directed. I do not agree that is part of the physical elements of the offence, although it may be part of the circumstances in which the conduct occurs. It is not found in the words of the section.

26. Section 474.17(2) opens with the words 'without limiting subsection (1)'. On its natural meaning, the subsection provides that the offence of using a carriage service in a way that reasonable persons would regard as being menacing, harassing or offensive in all the circumstances applies where a person uses a carriage service to menace, harass or cause offence to that defined group or groups of persons. There is no need to construe the section in any artificial way and limit it as though the word 'only' were implied into s 474.17(2). I do not think it is necessary to reconcile the different parts of the provision at all. But if it were necessary, the legislature has made it quite clear that limiting s 474.17(1) is not the way to do so. That, in my opinion, is what the respondent asked the magistrate to do and what, as a result, he did.

27. The appellant has directed the court to the terms of the explanatory memorandum which also outlines some of the legislative history of the section. The explanatory memorandum merely confirms, in my opinion, what the text of the section provides. The alternative, which was accepted by the magistrate, does not arise out of the text of the section. It involves implying the word 'only' into s 474.17(2) when that word is not there.

28. For those reasons, I would allow the appeal.

29. The decision of the magistrate on 25 January 2013 should be set aside.  The matter should be remitted to the Magistrates Court of Western Australia for rehearing according to law.