R v Monis; R v Droudis - [2011] NSWDC 39

District Court

New South Wales

Medium Neutral Citation: R v MONIS; R v DROUDIS [2011] NSWDC 39
Hearing dates: 11, 12 & 13 April 2011
Decision date: 18 April 2011
Jurisdiction: Criminal
Before: Tupman DCJ
Decision:
Notices of Motion dismissed

Catchwords: CRIMINAL LAW - motion to quash indictments on grounds that charges are invalid
CONSTITUTIONAL LAW - Commonwealth offence of using a postal service in an offensive manner - s471.12 Criminal Code Act - letters sent to families of ADF members and others killed in Afghanistan or in Marriott Hotel bombing in Jakarta - comments including references to legality of wars in Iraq and Afghanistan - implied constitutional freedom of political communication - Lange test first and second limbs considered - terms "offensive" and "harassment" considered and construed - purpose of Commonwealth legislation considered
Legislation Cited: Criminal Code Act 1995 (Cth)
Judiciary Act 1903 (Cth)
Summary Offences Act 1988
Post and Telegraph Act 1901 (Cth)
Postal Services Act 1975 (Cth)
Freedom of Information Act 1982 (Cth)
Family Law Act 1975 (Cth)
Evidence Act 1995
Crimes (Domestic and Personal Violence) Act 2007
Jury Act 1977
Crimes Act 1900
Crimes Act 1914 (Cth)
Cases Cited: Lange v Australian Broadcasting Corporation (1997) 198 CLR 520
Coleman v Power (2004) 220 CLR 1
Bropho v HREOC (2004) 135 FCR 105
Spence v Loguch BC9101434 NSWSC
Malvern v Bradbury (1971) 17 FLR 345
Hogan v Hinch [2011] HCA 4
Evans v State of New South Wales [2008] FCAFC 130
Category: Interlocutory applications
Parties: Man Haron MONIS (Applicant)
Amirah DROUDIS (Applicant)
Director of Public Prosecutions (Cth) (Respondent)
Representation: Counsel:
G O'L Reynolds SC with G Rubagotti and
M Gleeson (Applicant)
D M J Bennett QC with S Grant (Applicant)
J V Agius SC with M McHugh (Respondent)
Solicitors:
Ford Criminal Lawyers (Applicant)
Sydney Defense Lawyers Pty Ltd (Applicant)
Director of Public Prosecutions (Cth) (Respondent)

File Number(s): DC 2009/00236443; DC 2010/00260817

Judgment

NOTICES OF MOTION TO QUASH INDICTMENT ON GROUNDS OF INVALIDITY

These Notices of Motion dated 13 th April, 2011 for the accused Monis, and 8 th April, 2011 for the accused Droudis, Amended on 13 th April 2011, seek to have the indictment quashed on the basis of a finding that the charges are brought pursuant to a law which is invalid, because it infringes the implied Constitutional freedom of political communication.

The two accused in this trial have been charged, in a joint indictment, with 21 offences brought pursuant to S471.12 of the Criminal Code 1995 (Cth) . That section is found within Chapter 10 of the Code, which is entitled " National Infrastructure" , within Part 10.5 of that Chapter which is entitled " Postal Services" and further is found in Division 471, Subdivision A of that Chapter which is entitled " Postal Offences - General Postal Offences".

Trial Charges

The substantive offences are brought pursuant to S471.12 of the Criminal Code 1995 (Cth) which provides the following:

A person is guilty of an offence if:

(a) the person uses a postal or…

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.

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Details

Case: [2011] NSWDC 39
Decision Date: 18 April 2011

CaseChat Overview and Summary

The matter before the court involved two defendants, Monis and Droudis, who were charged with various criminal offences, including the use of a postal service in an offensive manner. The defendants sought to have the indictments quashed on the basis that the charges were invalid. The High Court of Australia was tasked with determining whether the charges against the defendants were valid under the Commonwealth's Criminal Code Act.

The central legal issue before the court was whether the Commonwealth offence of using a postal service in an offensive manner was valid and constitutional. The court had to consider whether the terms "offensive" and "harassment" were properly construed and whether the legislation was consistent with the implied constitutional freedom of political communication. The Lange test, which involves examining whether the law is appropriate and adapted to serve a legitimate end, was applied to determine the validity of the charges.

The court found that the charges against the defendants were valid and constitutional. The court determined that the terms "offensive" and "harassment" were properly construed and that the legislation was consistent with the implied constitutional freedom of political communication. The court also found that the purpose of the legislation was to prevent the use of the postal service to cause distress or anxiety to individuals or groups, which was a legitimate end. The motion to quash the indictments was dismissed by the court.

Orders

Orders of the court

Notices of Motion dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v MONIS; R v DROUDIS [2011] NSWDC 39
Hearing dates:	11, 12 & 13 April 2011
Decision date:	18 April 2011
Jurisdiction:	Criminal
Before:	Tupman DCJ
Decision:	Notices of Motion dismissed
Catchwords:	CRIMINAL LAW - motion to quash indictments on grounds that charges are invalid CONSTITUTIONAL LAW - Commonwealth offence of using a postal service in an offensive manner - s471.12 Criminal Code Act - letters sent to families of ADF members and others killed in Afghanistan or in Marriott Hotel bombing in Jakarta - comments including references to legality of wars in Iraq and Afghanistan - implied constitutional freedom of political communication - Lange test first and second limbs considered - terms "offensive" and "harassment" considered and construed - purpose of Commonwealth legislation considered
Legislation Cited:	Criminal Code Act 1995 (Cth) Judiciary Act 1903 (Cth) Summary Offences Act 1988 Post and Telegraph Act 1901 (Cth) Postal Services Act 1975 (Cth) Freedom of Information Act 1982 (Cth) Family Law Act 1975 (Cth) Evidence Act 1995 Crimes (Domestic and Personal Violence) Act 2007 Jury Act 1977 Crimes Act 1900 Crimes Act 1914 (Cth)
Cases Cited:	Lange v Australian Broadcasting Corporation (1997) 198 CLR 520 Coleman v Power (2004) 220 CLR 1 Bropho v HREOC (2004) 135 FCR 105 Spence v Loguch BC9101434 NSWSC Malvern v Bradbury (1971) 17 FLR 345 Hogan v Hinch [2011] HCA 4 Evans v State of New South Wales [2008] FCAFC 130
Category:	Interlocutory applications
Parties:	Man Haron MONIS (Applicant) Amirah DROUDIS (Applicant) Director of Public Prosecutions (Cth) (Respondent)
Representation:	Counsel: G O'L Reynolds SC with G Rubagotti and M Gleeson (Applicant) D M J Bennett QC with S Grant (Applicant) J V Agius SC with M McHugh (Respondent) Solicitors: Ford Criminal Lawyers (Applicant) Sydney Defense Lawyers Pty Ltd (Applicant) Director of Public Prosecutions (Cth) (Respondent)
File Number(s):	DC 2009/00236443; DC 2010/00260817