R v PM

[2009] ACTSC 171

R v PM
[2009] ACTSC 171 (16 December 2009)

EX TEMPORE JUDGMENT

No. SCC 473 of 2008

Judge:              Higgins CJ
Supreme Court of the ACT

Date:               16 December 2009

IN THE SUPREME COURT OF THE       )
  )          No. SCC 473 of 2008
AUSTRALIAN CAPITAL TERRITORY    )          

THE QUEEN

v

PM

ORDER

Judge:  Higgins CJ
Date:  16 December 2009
Place:  Canberra

THE COURT ORDERS THAT:

1. A verdict of not guilty be entered.

1. In all the circumstances and particularly given the evidence of [JL] the application for a directed verdict is granted. 

1. That is particularly so in light of the clear indication of s 474.17 (Criminal Code (Cth)), that the communication must be characterised as one causing offence or carrying with it the likelihood of causing offence to the person to whom it is directed.

1. That may be different if you had a large number of people on ‑ what they call sometimes, a blog or Facebook, who have access to the information but it does seem to me that in the circumstances it is simply the wrong section to use to apply to this particular situation. 

1. To expand on that, the test is whether reasonable persons would regard particular material as being in normal circumstances offensive.  Under s 473.4, that is to be adjudged according to the standards of morality, decency and propriety generally accepted by reasonable adults.  So if one were to direct unbidden a communication of a sexually explicit nature to another person, particularly to a person who was under the age of 16, then that would be quite capable, I would have thought, of being, in all the circumstances, offensive. 

1. The material which s 474.17 is directed to, is not simply material which can be so regarded if shown of any of the circumstances in which it is communicated but rather in the circumstances of communication of that, if you like, those words, so that it becomes, when directed to a particular person or even persons, if there is more than one, menacing, harassing or offensive. Offensive means likely to cause offence to the person to whom it is directed.

1. The next question would be whether the person directing that communication intended to achieve that result or was reckless as to whether that result would follow.  In this case, that does not really arise because in the circumstances there was no doubt that [JL], a) initiated the communications, b) set the tone for the communications and c) did not regard the communications as she received them, as offensive or capable of being offensive to her.  Indeed, she said they were not.  True it is that in retrospect she might well think that it was something that she ought to have been offended by but she certainly was not. 

1. What is offensiveness?  Well, I take the judgment of Kerr J, in Ball v McIntyre (1966) 9 Federal Law Reports 237, as still being good law.

1. Offensive behaviour, in that case, means something which causes serious affront, not mere disapproval.  It is not conduct, it goes beyond conduct, which is hurtful or improper.  It goes beyond conduct, which offends against the standards of good taste or good manners or which is a breach of the rules of courtesy or runs contrary to commonly accepted social rules. 

1. Such conduct may well be ill-advised, hurtful and improper and that may offend some people but it is not thereby offensive within the meaning of the law and flouting commonly held attitudes is not necessarily offensive. 

1. The word in this case is associated with menace and harassment. It carries the idea of behaviour likely to arouse significant emotional reactions of a similar nature. A communication of the kind prescribed by s 474.17 must menace, harass or cause offence to the recipient, as the case may be, whether or not the person, to whom the communication is addressed, feels subjectively menaced, harassed or offended, as long as, by the standards of reasonable adults, it would be so regarded.

1. The question is not whether the conduct in question is reprehensible but whether it was offensive to the recipient, or at least in all the circumstances, offensive to the recipient, whether or not, of course, she felt subjectively that it was so offensive.  In those circumstances it does seem to me that the evidence is incapable of satisfying the test of s 474 and the jury must be directed accordingly.

I certify that the preceding eleven (11) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date:     4 January 2010

Counsel for the Crown:  Ms Baker-Goldsmith
Solicitor for the Crown:  Commonwealth Director of Public Prosecutions
Counsel for the defendant:  Mr J Pappas
Solicitor for the defendant:  Ben Aulich & Associates
Date of hearing:  14, 15 and 16 December 2009
Date of judgment:  16 December 2009