Fabriczy v Director of Public Prosecutions No. Scgrg-98-22 Judgment No. S6546

[1998] SASC 6546

FABRICZY V DPP (CTH)

Magistrates Appeal

Lander J

The appellant (otherwise known as Rubel) was charged with two counts of knowingly or recklessly using a postal service supplied by Australia Post in such a way as would be regarded by reasonable persons as being, in all the circumstances, offensive and thereby contrary to s85S(b) of the Crimes Act, 1914.

The case brought by the prosecution was that, on two separate occasions, 1 October 1996 and 30 October 1996 the appellant forwarded through the mail to Katalin Toth, the Honorary Consul for the Republic of Hungary, letters which contained offensive language and offensive remarks; on the first occasion of a sexual and religious nature, and on the second occasion of a religious nature.

The appellant, who was unrepresented, pleaded not guilty but was convicted on both counts.

The learned Chief Magistrate, who had been provided with two medical reports dated 11 September 1996 and 5 December 1997 from Dr Goh, a psychiatrist, invoked the powers given him under section 20BV of the Crimes Act.  That section allows that where a person is convicted of a federal offence and the court is satisfied that the person is suffering from a mental illness and the illness contributed to the commission of the offence and appropriate psychiatric treatment is available at a hospital, the court may without passing sentence on the person make an order (a psychiatric probation order) that the person reside at or attend at a specified hospital or other place for the purpose of receiving psychiatric treatment.

The order made by the learned Chief Magistrate was that the appellant attend at the North Western Adelaide Health Service, Queen Elizabeth Hospital Campus, for the purpose of receiving such psychiatric treatment, or other treatment, as may be directed by Dr W.M.H. Goh, or any other psychiatrist for the time being charged with the management of Mr Rubel’s case by the North Western Adelaide Health Service.  He further ordered that for a period of twelve months the appellant be subject to the supervision of a probation officer and obey all reasonable directions of that probation officer.  Further he ordered the appellant be of good behaviour for a period of twelve months.

A psychiatric probation order must be supported by conditions requiring supervision of a probation officer and requiring that the person will be of good behaviour for a period not exceeding five years as the Court specifies in the order [s20BV(3)].

A court is not entitled to make a psychiatric probation order unless the person consents to the proposed treatment.  In this case the appellant did so consent.

The appellant appeals against the conviction and sentence.

I set out the grounds of appeal in the language of the appellant.

“1.     I was Kangaroo Courted unrepresented.

2...... The Magistrate did not adhere to the ellementary principal of justice, what supposed to be requisital and exchange what can happen only between two partys of approximately equal power position and not any otherwise.

3...... He allowed the prosecutor to grill me about Christianity while he deed not allow me to cross-examine wittnesses about their Christianity.

4...... Cramond the Magistrate deed not take into account that only the intentional omission of what the law says is accountable and this case is based uppon intention, whether I intended to insult the Consul or ordinary people, or not.  The evidence is in the document (17 page letter) that I deed not and would not, offend the consul or ordinary people because the letter was intended to the Hungarian government and not to Toth the Consul or to ordinary people.

5...... He deed not allow me to sum up and adress him at the end of the hearing, he sayed I’ll not listen to that I quote.

6...... The 17 page document is above the judging and learned ability of the Magistrate (it’s political philosophy).

7...... For the police, prosecutor and Magistrate trampling on my ellementary Human rights of free communication and ... pordence of my free speech of the way I think I write.

8...... I greatly resent the arrogant remark that this Kangaroo Court Magistrate Cramond that I supposed to be, I quote a “very, very arrogant man” while it’s his police and law department was a criminal outrage on me and my children in the past.

9...... This case is part of 5 years of persicution and harassment by the police and this behinde them.

10.... Not taking into consideration the Psychiatrist’s report.

11.... Toth the consul, the Police and the Magistrate are in the act of theft of the intellectual property of the Hungarian Government produced by me.”

Katalin Toth is the Honorary Consul for the Republic of Hungary in South Australia.

Shortly after 1 October she received a large yellow envelope addressed to Katalin Toth “the Hungarian Consulate” through the mail.

That envelope contained a seventeen page document written in the hand of the appellant.

On the first page the document is addressed “Dear Katalin Toth”.  The author then introduces himself explaining that he was born in Budapest and claims to be “a freelance political and criminological philosopher of the topp [sic] class”.  The first page of the letter contains the further information that he is “sending to you and the Hungarian government topp [sic] class material”.  The letter says that the author hopes “you, are not a Christian Katalin”.

The letter then makes reference to the Jews who “tryed to grab world power.  It wipes out Christianity.”

There is no doubt that the first and second pages of the letter are specifically directed to the recipient of the letter because the letter itself refers to “Katalin” from time to time.

In those first two pages the appellant refers to Jews and Christianity in derogatory terms.  He also uses the word “fucking” on a number of occasions in conjunction with derogatory remarks about Jews and Christianity.

The second page finishes with these words: “So Katalin this is a most important and weighty letter you ever had in your hands, in this life, send it with topp [sic] security to the Hungarian government, not to a Jew, make shure [sic] they get it.  Kisses to you little sister.”

Accompanying that letter is an apparently photostated document, which is written in the same hand.  That document also makes a series of derogatory remarks about Jews, Christianity and uses the same language and language of the same type which does not need to be incorporated in these reasons.  The letter also makes a number of references to sexual activity and sexual matters generally.  It includes diagrams of male and female genitalia.

The appellant, who was unrepresented on the appeal addressed me at length on the contents of the documents.  There is no doubt that he believes that Christianity is a major source of evil in the world.  He believes that as Jesus was a Jew that the Jews are responsible for Christianity.  He also believes that the Jews are intent upon world domination.

The appellant has been influenced by a number of philosophers and he believes that it is appropriate to express himself using basic four letter words.  He says that he does not mean thereby to offend.

However the letter and enclosure are documents which would be regarded by reasonable persons as being offensive.  That is so because of the language, the subject matter and the diagrams.  Each of these matters would be enough to allow it to be said that the documents would be regarded by reasonable persons as being offensive.  In combination with each other that is certainly so.

The learned Chief Magistrate held, and with respect I agree with him, that the letter did amount to an offensive communication which would be regarded as such by reasonable persons.

He also held that the appellant knew that the use of the postal service in the manner in which it was used would be regarded by a reasonable person as being in all the circumstances offensive and with that I also agree.

The section makes it an offence to knowingly or recklessly use the postal service in a way as would be regarded by reasonable persons as offensive.

The relevant question is whether the prosecutor has proved beyond reasonable doubt that the accused has knowingly or recklessly used the postal service in such a way as would be regarded by reasonable person as being offensive.

I agree with the learned Chief Magistrate that the prosecution proved that breach to the requisite standard.

The thrust of the appellant’s defence was that this letter was not written for the purpose of being read by Katalin Toth but for the purpose of her communicating it to the Hungarian government.  In those circumstances, it was not to be read by ordinary persons but only by the Hungarian Government.

The letter itself, however, is couched in such terms, in my opinion, that that defence, even it is a defence, is not sustainable.  The letter directed the recipient’s attention to parts of the communication itself and was clearly directed to her.  In my opinion the first count was made out.

The second letter was received shortly after the 30 October 1996 and was contained in a letter addressed again to Katalin Toth.  That letter commences “Oh Katthy [sic], It’s fucking meee [sic].”

There is no doubt, again, that the letter is in terms which would be considered by reasonable persons as being offensive.  It is addressed to Katalin Toth of the Hungarian Consulate and was not communicated to her for her to send on to the Hungarian Government.  Indeed the opening words of the letter make it clear that the communication has been written to her and for her to read.  This letter also was found to be a letter which contained offensive language and offensive remarks, a finding with which I respectfully agree.  It is a letter which reasonable persons would regard as offensive.

The learned Chief Magistrate concluded in respect of the second count that the appellant knowingly used the postal service in such a way as would be regarded by reasonable persons as being offensive.  The communication received by the Consul could only have been written in the terms that it was for the purpose of shocking the recipient.  The learned Chief Magistrate found, and I agree, that the appellant did knowingly use the postal service in such a way as would be regarded by reasonable persons as offensive.

In my opinion, both letters are of a kind that satisfy the section and in respect of both letters the appellant knew that the use of the postal service in such a way would be regarded by reasonable persons as being offensive.

In my opinion the appellant’s appeal against conviction should be dismissed.

The appellant’s notice of appeal also complains about the sentence although the grounds of appeal do not precisely identify his complaint.

The learned Chief Magistrate had the reports of the psychiatrist, Dr Goh.  His provisional diagnosis was that the appellant was suffering from delusional disorder immediately before these letters were sent.  He later said that in his opinion the appellant had suffered from a delusional disorder over many years.  Whilst the learned Chief Magistrate was satisfied that the appellant was fit to be tried he was also satisfied that the appellant’s mental illness contributed to the commission of the offence.  He therefore invoked the provisions of s20BV.

It seems to me, that the appellant’s personal circumstances required an order which compelled treatment and provided supervision.  I agree with the approach taken by the learned Chief Magistrate.

I would dismiss the appeal against sentence.