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Monis v The Queen

Monis v The Queen

Case [2011] NSWCCA 231 6 December 2011

Constitutional Validity

Criminal Liability

Implied Terms

Admissibility of Evidence

Statutory Construction

Constitutional Law

Criminal Law

Statutory Interpretation

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Court of Criminal Appeal

New South Wales

Case Title: MONIS, Man Haron v R; DROUDIS, Amirah v R

Medium Neutral Citation: [2011] NSWCCA 231

Hearing Date(s): 23 August 2011

Decision Date: 06 December 2011

Jurisdiction:

Before:
Bathurst CJ at [1]; Allsop P at [70]; McClellan CJ at CL at [93]

Decision:
Appeals dismissed.

Catchwords:
CONSTITUTIONAL LAW - constitutional challenge to validity of statute - whether s 471.12 Criminal Code infringes implied freedom of political communication - test in Lange v Australian Broadcasting Commission - whether section burdens freedom of communication about government or political matters - whether reasonably appropriate and adapted to serve legitimate end compatible with maintenance of system of government prescribed by the Constitution (Cth)

CONSTITUTIONAL LAW - constitutional challenge to validity of statute - implied freedom of political communication - whether necessary to have regard to actual communication

CRIMINAL LAW - using a postal service to menace, harass or offend - constitutional validity of statutory offence - whether s 471.12 Criminal Code infringes implied freedom of political communication

STATUTORY INTERPRETATION - s 471.12 Criminal Code - meaning of "offensive"

Legislation Cited:
Acts Interpretation Act 1901 (Cth), s 15A
Criminal Appeal Act 1912
Criminal Code 1995 (Cth), s 470, s 471
Customs Act 1901 (Cth)
Police Offences Act 1928 (Vic), s 25
Police Offences Ordinance 1930-1961 (ACT), s 17(d)
Summary Offences Act 1988
Vagrants, Gaming and Other Offences Act 1931 (Qld), s 7(1)(d)

Cases Cited:
Anderson v Kynaston [1924] VLR 214
APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322
Australian Capital Television Pty Ltd v Commonwealth of Australia (No 2) [1992] HCA 45; (1992) 177 CLR 106
Ball v McIntyre (1966) 9 FLR 237
Cohen v California 403 US 15 (1971)
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
Cunliffe v The Commonwealth of Australia [1994] HCA 44; (1994) 182 CLR 272
Evans v Stevens (1791) 4 TR 224
Ex parte Collier (1877) 1 Knox (NSW) 513
Federal Commissioner of Taxation v Applegate (1979) 38 FLR 1
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532
Hogan v Hinch [2011] HCA 44; (2011) 85 ALJR 398
Holland v The Queen [2005] WASCA 140
Inglis v Fish [1961] VR 607
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Lend Lease Real Estate Investments Ltd v GPT RE Ltd [2006] NSWCA 207
Levy v State of Victoria [1997] HCA 32; (1997) 189 CLR 579
Melser v Police [1967] NZLR 437
Mulholland v Australian Electoral Commission [2004] HCA 41; (2004) 220 CLR 181
Nationwide News Pty Ltd v Wills [1992] HCA 46; 177 CLR 1
New South Wales v The Commonwealth [2006] HCA 52; 229 CLR 1
Plaintiff S157/2002 v The Commonwealth [2003] HCA 2; 211 CLR 476
R v Burgmann (Court of Criminal Appeal, 4 May 1973, unreported)
R v Smith (1974) 2 NSWLR 586
Roberts v Bass [2002]…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Monis v The Queen

Details

AGLC: Monis v The Queen [2011] NSWCCA 231
Case: [2011] NSWCCA 231
Decision Date: 06 December 2011

CaseChat Overview and Summary

Monis, the appellant, was convicted of using a postal service to menace, harass or offend another person, a statutory offence under section 471.12 of the Criminal Code. The case reached the court, which was tasked with determining the validity of the statute in light of a constitutional challenge. The central issue was whether section 471.12 infringed upon the implied freedom of political communication, as outlined in Lange v Australian Broadcasting Corporation. The court had to consider whether the section unduly burdened the freedom of communication about government or political matters and whether it was reasonably appropriate and adapted to serve a legitimate end compatible with the maintenance of the system of government prescribed by the Constitution.

The court examined the applicability of the Lange test, focusing on whether the section imposed a burden on the implied freedom of political communication. It considered whether the freedom to communicate about government or political matters was restricted by the statutory offence. The court also assessed whether the burden was reasonably appropriate and adapted to serve a legitimate end, such as protecting individuals from harassment or offensive communication, and whether this end was compatible with the maintenance of the constitutional system of government. The court further deliberated on whether it was necessary to consider the actual communication in determining the constitutional validity of the section.

In its decision, the court found that section 471.12 of the Criminal Code was valid and did not infringe upon the implied freedom of political communication. The court concluded that the section was reasonably appropriate and adapted to serve the legitimate end of protecting individuals from harassment and offensive communication. It was determined that the burden imposed on political communication was not excessive and was compatible with the maintenance of the constitutional system. The court held that the actual content of the communication did not need to be considered to determine the constitutional validity of the statute.

The court made an order dismissing the appeal and upholding the conviction. The decision affirmed the validity of section 471.12 of the Criminal Code, ensuring that the statute could continue to be used to protect individuals from harmful and offensive communication while maintaining the balance between individual rights and the protection of the public.

Orders