474.17 CRIMINAL Code

DISTRICT COURT OF QUEENSLAND

CITATION:

Starkey v Commonwealth Director of Public Prosecutions

[2013] QDC

124

PARTIES:

BRETT DAVID STARKEY

(Appellant)

And

COMMONWEALTH DIRECTOR OF PUBLIC

PROSECUTIONS

(Respondent)

FILE NO/S:

BD 240/13

DIVISION:

Appellate

PROCEEDING:

Appeal

ORIGINATING

COURT:

Magistrates Court, Brisbane

DELIVERED ON:

31

May 2013

DELIVERED AT:

Brisbane

HEARING DATE:

10 May 2013

JUDGE:

Dorney QC, DCJ

ORDER

S

:

1.

The appeal is allowed and the se

ntence and conviction

ordered

at first instanc

e

are

set aside.

2.

The complaint is

dismissed.

3.

Both parties have leave to file, and serve, submissions

(if any) on costs by 4pm 7 June 2013.

CATCHWORDS:

Appeal

–

Federal offence

–

use of carriage service (broadcast

emails)

–

whether menacing, harassing or

offensive

–

whether, on narrow test, significantly serious

reactions/responses objectively established

Crowther v Sala

[2008] 1 Qd R 127

Monis v The Queen

[2013] HCA 4

R v Ogawa

[2011] 2 Qd R 3

50

COUNSEL:

Mr B Starkey (Self

-

represented)

Mr W R Ness (Sol

icitor)

for the respondent

SOLICITORS:

(Appellant self

-

represented)

Commonwealth Director of Public Prosecutions for the

respondent

2

Introduction

[1]

In his

Notice of Appeal filed 21 January 2013

,

t

he appellant appealed against both

his conviction and sentenc

e for an offence under s 474.17(1) of the

Criminal Code

1995

(Commonwealth)

(the

“Code”

)

concerning the use of a carriage service

between 15 February 20

12 and 11 April 2012 in such a

way that reasonable persons

would regard that use as being men

acing, hara

ssing or offensive. No point was

taken that the sting of

the charge was expressed in those

several alternatives.

[2]

The appellant was convicted and sentenced on 21 December 2012. At that time the

High Court had not handed down its decision in

Monis v The Quee

n

1

(which was on

27 February 2013). Accordingly, the learned Magistrate did not have the advantage

of the

proper

interpretation

of

a somewhat substantially similar provision

by the

joint judgment of

Crennan, Kiefel

and Bell JJ.

[3]

Although the learned Magis

trate referred to the words of the relevant section, there

was no discussion of any kind about the

precise

nature

(i.e. according to a wide or

narrow interpretation)

of the use

alleged to be

“menacing, harassing or offensive”.

Given the narrow nature of th

e interpretation approved of by the joint judgment in

the High Court, the learned Magistrate erred in his approach

in not considering the

seriousness of the use.

Furthermore

,

contrary

to

Crowther v S

ala

,

2

he relied upon

“subjective” evidence

–

finding that

a

particular

recipient‟s concerns were

“genuine”

-

when

what was required was proof

of

such

use

that “reasonable

pe

rsons” would regard the conduct

as being, in all the circumstances,

of

the relevant

type and that that required an “objective assessment of

the likely impact of (the)

conduct”

:

per McMurdo

J

, w

ith whom Mui

r J (as he then was) agreed

,

at 135 [42].

It is recognised that

the Queensland

appeal

decision was primarily concerned

with

the “fault element”

(meaning that,

following that objective assessm

ent, it must also

be proved that the defendant “either intended that it be so or was reckless as to that

fact”

)

: at 136 [47].

[4]

Thus, bearing in mind relevant authority, it is necessary that I view all of the

evidence

,

paying

,

where necessary

,

due deferenc

e to the learned Magistrate‟s

findings

of fact

and

“rehear

” the complaint.

Background

[5]

It was not in dispute on appeal that the appellant used a carriage service (namely, a

broadcast email) and that between 15 February 2012 and 11 April 2012 he

-

under a

pseudonym

(which was composed from his given name and the stuttering beginning

initial of his surname)

-

sent 88

such emails to 107 recipients

: see Exhi

bit 1 at trial,

noting that Tab

1 contained no emails. By the addresses at the head of

each

email,

all r

ecipients were informed of all othe

r recipients. To this extent, they were not

singular

or

private email

s

though, obviously, were received individually (analogous

to a limited radio broadcast).

1

[2013] HCA 4.

2

[2008] 1 Qd R 127.

3

[6]

It was

also not in

dispute that

the majority of

such recipi

en

ts were either federal

(mainly)

or state politicians and various media o

rganisations (including the ABC,

the commercial

TV channels

and other news

gathering

organisations

). In addition

,

the Austr

alian Electoral Commission and

GetUp!

,

as well as other pub

lic

political

organisations, were recipients.

It is, in the circumstances, fair to

describe

the

recipients as politicians, political and government or

ganisations

,

and prominent

media

groups.

[7]

The true contest, as identified on appeal,

wa

s

whether the condu

ct, taken in the

total

context of the 88

separate emails, could be correctly characterised

,

on the proper

interpretation

,

as “

menacing,

harassing or offensive”.

[8]

Unlike

Crowther

, there was no particular issue

raised

with respect

to pro

of of the

fault elem

ent.

Legislation

[9]

Section 474.17(1)

of the

Code

provided

:

“A person is guilty of an offence if:

(a)

t

he person uses a carriage service; and

(b)

t

he person does so in a way (whether by the method

of use or the content of a communication, or both

)

that reas

onable persons would regard as being, in all

the circumstances, menacing, harassing or offensive.”

[10]

It provided

a penalty of imprisonment for

3

years.

Appellant’s arguments

[11]

The appellant was

self

-

represent

ed. Accordingly, his grounds of

appeal and his

Out

line

of Argument necessarily reflect

ed

a lack of precision a

s

to the relevant

grounds. Nevertheless, they are intelligible enough and I ac

cept that the summary of

them was

correctly set out in paragraph 12 of the respondent‟s Outline of

Submissions. As so

summarised

,

they are that:

(a)

t

he learned Magistrate erred in applying the “reasonable person” test;

(b)

i

nsufficient weight was given to the fact that 106 of the 107 email

recipients did not complain, or give evidence;

(c)

only one compl

a

i

nt was made by an individ

ua

l and that individual

had

“

an o

pposing ideology

”

and

“

failed to absorb all of the emailed

communications

”

;

and

(d)

t

he learned Magistrate only considered a small number of emails

a

nd, then,

“

out of context

”

.

4

Correct meaning of “menacing, harassing or offens

ive”

[12]

Given the 3:3 outcome in

Monis

,

(and its consequences)

it is to the joint judgment

of

Crennan, Kiefel

and Bell JJ that recourse

is

had to determine the content of the

relevant tests.

It is acknowledged

that

each of the remaining 3 separate judgments

a

lso

accepted a narrow definition of the relevant wording.

It must be said, f

r

o

m the

outset

,

that no judgment in

Monis

held other than the relevant standard to be applied

to the alleged use

“is the view of a reasonable person taking into account all the

rel

evant circumstances”

:

for instance, at [261].

Additionally,

considering

Monis

in

more detail, it needs to be acknowledged that the offence i

n question in that case

that was alleged was

p

ursuant to

s 471.12

(

which dealt with “a postal or similar

service”, a

lthough, virtually identical wording is

otherwise

used in both provisions

)

.

Additionally, for s 474.17, unlike s 471.12, s 473.4

required

certain matters to be

taken into account in determining whether reasonable persons would regard

particula

r material, o

r a particular use, of a carriage service being in all the

circumstances “offensive”, such matters including “the general character of the

materi

al” and “the standards of morality

, decency and propriety

generally accepted

by reasonable adults”.

As

was rema

rked upon in the joint judgment, it may be

observed that many of the matters raised for consideration by s 473.4 would be

taken into account in the application of the rea

sonable persons

‟

standard in s 4

7

1

.12:

at [263]. Finally, in this regard, the question

in the High Court concerned the

cons

titutional validity of s 471.12. Therefore,

the matter of whether

reasonable

persons would regard

the content of the communications under consideration

there

as relevantly “offens

ive” was not a matter which fell

to be d

etermined there: at

[255].

Even so, the context of the provision involves more than the mere causing of

the (menace, harassment or) offence “to the recipients” and, while the characterised

use can arise from the content, the method of the use is also relev

ant: at [261] and

[288]. Taking all those factors into account, it would appear that the nature of the

actual recipient, or recipients, is relevant to the objective determination.

[13]

Since the respondent on appeal

-

as

it did

at first instance

-

relied upon

all three

adjectives,

it

is

also

necessary to consider what the joint judgment said

a

bout

“menacing” and “harassing”. It was stated that, while it is true that a communication

which has the quality of being menacing or harassing could be seen to be persona

lly

directed and delibe

rately so, an

offensive communication may have those qualities

-

but it may not: at [310]. It was further said that

the

grouping of the three words and

their subjection to the same objective standard of assessment

for the purpose of

the

offenc

es suggest

that what is “offensive” will have a quality at least as serious in

effect upon a person as the other words convey; and that the words “menacing” and

“harassing” imply “a serious potential effect upon

the

addressee, one which causes

ap

prehension, if not a fear, for that person‟s safety”: also at [310]. The judgment

added that, for consistency, to be “offensive” a communication “must be likely to

have a serious effect upon the emotional well

-

being of an addresse

e

”: also at [310].

[14]

The abo

ve conclusions predicate that t

he next

a

n

swer

which

Monis

raises

is that

a

narrow reading should be given to the relevant words. The joint decision held that

there was no barrier presented to reading the provision down to apply to a narrower

categor

y of of

fensive communication tha

n would be the case if attention were

directed only to the wider meaning of the word “offensive”, adding that it was

5

unlikely that

P

arliament intended to prohibit all communications which happened to

contain matt

er which may cause

“some” offenc

e, thus meaning th

at

s 412.12 may be

taken to strike a balance between competing interests “by prohibiting

communications which are offensive to a higher degree”: at [333]. This degree of

offensiveness

was held to be

at the high end of the spe

ctrum, although not

necessarily the most extreme, with words such as “very”, “seriously” or

“significantly” offensive being

apt

to convey this: at [336]. With respect to the

application of the objective standard of the reasonable person, it was stated that

it

was a person “who may be taken to reflect contemporary societal standards,

including those relating to

robust political debate

” (emphasis added): also at [336].

[15]

The last important element that

Monis

il

luminates is what guidance

is available in

determin

ing the limits of such an offence. The joint judgment,

after

referring to

examples given in the Court of Criminal Appeal of New South Wales

of

the type of

reaction which an

“offensive”

communication might engender as being useful to

show the level of serio

usness of the offen

c

e, added that one would expect such

communication “to be likely to cause a significant emotional reaction or

psychological response”

,

with the former ranging “from shock through to anger,

hate, disgust, resentment or outrage

”

, and the l

atter as potentially including

“p

rovocation

, anxiety, fearfulnes

s and insecurity”, although an

exhaustive list is not

possible: at [338]. It was further stated that communications with such serious

effects “may be contrasted with those which may cause mere

hurt feelings”: also at

[338].

[16]

Lastly, in dealing with the fault element (referred to earlier)

,

the joint judgment

determined that the fault element that applies to the use of the “postal service” is

recklessness, with a person being reckless if he or s

he is at least unaware of a

“substantial risk” that reasonable persons would so regard the use

, where

it

is

unjustifiable to take the risk: at [341]. Additionally, it was held that intention or

knowledge would also satisfy the fault element of recklessness

: also at [341]. It was

then stated that

t

he requirement

of

proof of fault excludes from the scope of the

offence those cases where the conduct could not be said to be intentional or

reckless: also at [341].

Frequency of emails

[17]

Although there were 88 em

ails sent in a 46 day period, it was only thrice that there

were more than 3 per day. The witness, Danielle Louise Henderson, gave evidence

that the Labor Senator for whom she worked received 100 to 150 emails per day.

She was the only person to give evide

nce on this subject.

Content of emails

[18]

The respondent provided a list

on appeal

–

which I marked as Exhibit 1

–

of

relevant emails, highlighted in a fluorescent highlighter. It is not insignificant that

38 of the 88 did not fall into the category of being

relevant.

It must be

remarked

that

relevance,

in context, is simply relevant to the identified emails as containing

specific (potentially transgressing) material.

What

must not be lost sight

of

is

that

6

the offence requires all the circumstances to be cons

idered and, where

,

as here

,

specific emails are identified within a relevant period as constituting one offence,

context must play an important role as well.

[19]

While it serves no purpose for me to recite

,

now

,

every one of the

alleged offending

emails, some

general observations

ought to

be made.

[20]

The first email

–

being one of those assert

ed by the respondent not to be

relevant

–

was relatively

moderate i

n tone, although it stated

that “Labor and Greens Parties

should be eliminated from existence” and that cer

tain conspirators “should face

charges of Treason including

Gillard, Rudd, Brown, Turnbull”: dated 16 February

2012, Tab 2.

It is not without significance that the email also conta

ined

a forwarded

email containing “A History Lesson” that might be seen by s

ome to be more

amusing than concerning.

The second email (Tab 3, dated 16 February 2012) set the

tone for later emails regarding weapons. After it stated that “We want our guns

back”, it then asserted that “Australians need to arm themselves against this t

hreat to

our species posed by the Labor and Greens Parties who are the puppets of the

t

rillionaire, criminal, global banking families who are conspiring to World

Ownership/World Government run by the United Nations”.

[21]

Th

e last of the emails

–

designated as

a

“

relevant

”

one

–

appears at Tab 89. After

referring to the “Rothschild Global Zionists” as being the people “who organised

9/11 an

d blamed it on the Muslims”

and

that “9/11 has resulted in over 1 million

human deaths” and that

“

they

”

are “fully into the

pagan rituals in

cluding child

sacrifice”

,

it

asserted that the

“Au

stralian Government

,

elected and staff, are riddled

with Rothschild G

lobalist/

Zionist

s

” and that “Hu

manity has to declare war on all of

them and deal with this treasonous filth appropriately

”.

[22]

Between those 3

emails were sent

the other 85

. There is no doubt th

at among those

85

others there we

re references to “kill” and “killing”. But, for instance

,

looking at

the email under Tab 88, date

d 9 April 2012, the references

o

f

that kind o

n the last

page are stated as

:

“H

umanity” has “only one choice”

(i.e. “kill these criminal

families

before

they take away our freedom and

kill us”

(emphasis added);

and

“Humanity must fight against this global criminal organisation

who

threatens the

future of the hu

man species, by

killing every member and all the lineage of these

above families

” (emphasis added)

–

it being noted that the “Criminal Families”

include the Rothschilds, the Schiffs, the Wahlbergs and the Oppenheimers.

They

were first identified in that wa

y by the email dated 18 February 2012 (Tab 6); but

the “Rocke

r

feller Family” was added to their ranks later (even if omitted thereafter

from time to time): see Tab 17 (email dated 27 February 2012).

[23]

Even when a particular Australian politician is named, as

in the email under Tab 60

(dated 21 March 2012)

,

it is

in the context of

such a

statement

as

, “He should not be

voted out. He should be charged with Treason, taken

out

into the bush and a bullet

put through his head for Treason against Australia

”

. Thus, t

he contention is that he

should be charged first

–

then presumably tried by some kind

of

kangaroo court.

Nevertheless, there is no specific threat that the author of

the email is to do the

killing of any specific person.

This i

s garnered from

the context

i

n which

an earlier

7

email, in Tab

51 (dated 15 March 2012), stated

that “Labor and Greens should all be

rounded up and

jail

ed for Treason against Australia”

and a later

email

,

in

Tab 67

(dated 25 March 2012) referable to “Queensland Labor” and “Queensland G

reens”,

where

Malcolm Turnbull is corralled into the group as well

,

as

a

person

who should

be charged with treason and

jail

ed.

The wider context included that most

Australians “would be in favour of bringing back the death penalty for people like

Gillard a

nd Rudd”

: see T

ab 11, email dated 24 February 2012.

[24]

There is no doubt that “Humanity” is encourage

d

to “rise up and exterminate this

clear and pr

esent threat to our happy exista

nce on this planet” and

that this

“should

start by killing every member and al

l lineage of these Global Banking Criminal

Families”: see, for instance, the email in Tab 83

(dated 6 April 2012).

Earlier (in an

email dated 3 March 2012, Tab 25), “All men of the earth” were stated to “need to

„man

-

up‟, arm themselves and declare war on

the Global Banking Trillionaire

Criminals”, it not being “a State

declaring war against another S

tate” but “humanity

declaring war on a few criminal banking families

...

and all their lineage”.

Even

where

the Australia politicians are more widely identifie

d than single persons, such

as the email in Tab 84 (d

ated 7 April 2012) as including

-

besides “Brown”

-

“Gillard”

,

the terms of the communication are expressed in terms of

“these filthy

Fabian Socialist criminals ... still walking around the streets”, whom

“Australians

need to toss ... in

jail

for High Treason and

then get them before a firing squad

.

”

(emphasis added).

In an email dated 24 February 2012 (Tab 12), “Rudd” was stated

to be a “treasonous criminal” who “needs to be jailed

or

shot” (emphasis added),

although a slightly later email (dated 24 February 2012

–

Tab 13) added that he

“should be charged with Treason” and (presumably after) “taken out and shot”.

[25]

During argument on appeal, the respondent drew my attention to

2

specific emails,

being those un

der Tabs 38 and 46 (dated, respectively, 10 March 2012 and 13

March 2012). The first st

ated

that “Humanity” has “no choice” but

that “We need to

declare war on the whole Global Elite” and “We have to kill every member of these

famil

ies

and all their lineag

e”. The above aforementioned families are

again

recited.

The second beg

an

with the statement that “Humanity is at war” and then state

d that

“H

umanity needs to wake up and fight back”, stating that “Step 1 is for humanity to

kill all members of the Trillion

aire Banking Families and all their lineage” and

“Step 2 is to kill or incarcerate all the lower level members and puppets of the

enemy”. Among the organisations and “instruments of the enemy” are stated to

“include” “All left

-

wing governments, public serv

ants and NGOs including the

Australian Labor Party and the Greens Party”.

There was further a specific

identification of local “Australian helpers and puppets”

in an email dated 9 April

2012

(

Tab 88

)

.

It was contended by the respondent that the recipients,

having no

idea exactly

who the sender was or

what the sender was

capable of, except that it

was

clear that the person

was

“very angry, very aggressive”

and

referr

ed

“to people

being

–

being shot in the head”,

might reasonably conclude that the sender was

not

calling for

so much the taking up of arms

b

ut

for

exterminating “left

-

leaning

politicians and their associates”.

Insofar as context plays a role here, several emails

referred to the benefits of the “Westminster system” under which “we can eliminate

(La

bor and Greens)... at the polling booth”: see Tab 70, email dated 26 March 2012.

The respondent did concede that the

identified

recipients might be thought to be,

objectively, a “fairly robust group of people”. That, of course, has resonance with a

8

simila

r expression

–

th

ough there regarding

“political debate” generally

–

in

Monis

:

at [336].

[26]

The remaining emails

which were not (relatively)

benign

were in like terms, in that

they conveyed diatribes against political movements,

b

anking

f

amilies (and their

“p

uppets”) and, on occasions, identified politicians (particularly federal politicians,

either as puppets or criminals in their own right).

They were decidedly repetitious

and often ended in the predictable call for “humanity‟s need” to be “at war” to “kill”

the so

-

called “filth” or “evil” ones.

There was no clear escalation in the tone over

time; rather, it waned and waned insofar as references to shooting, for instance,

were made.

“A reasonable person” test

[27]

It is inevitable

-

as I made it clear to the appe

ll

ant in oral argument on appeal

-

that

,

following

Monis

,

the test to be applied to the relevant use is objective and requires

consideration whether reasonable persons would regard the content

and

,

perhaps,

the

method

of such communications

-

and even both

-

as being relevantly menacing,

harassing or offensive.

[28]

Consequently, although the learned Magistrate made reference to “reasonable

pers

ons”, he did so in the context of

referring to the

“complaining”

witness whose

concern he described as “genuine”.

This

is expressly contrary to the Queensland

Court of Appeal decision of

R v Ogawa.

3

[29]

It is difficult, if not impossible, to read those reasons as not relying, at least in part,

upon the “credible evidence” of that witness conc

erning that witness‟ concerns.

Whil

e it may well be that the learned Magistrate, independently of such a reference,

simply had regard to the objective standard of the reasonable person, the reasons

were not

clearly

expressed in those terms.

[30]

Thus, I accept

the argument

that the learned Magis

trate did err in

his application of

the “reasonable person” test.

Insufficient weight to non

-

complainants

[31]

Fo

llowing

upon that discussion about the objectivity of the test, it matt

ers not that

only 1

of the 107 recipients either complained or gave evidence.

[32]

Hence, there is no substance in the ground that insufficient weight was given to the

absence of complaints from, or the giving o

f evidence by, the remaining

106

recipients (noting that some of the recipients were news organisations and not

individuals in

any event).

3

[2011] 2 Qd R 350: see Keane JA at 386

-

3

87 [140]

-

[145].

9

The one complainant’s “opposing ideology”

[33]

Again, it matters not that any individual had any political, or purely ideolog

ical

,

view, since the evidence from any

individual complainant

about the person‟s

subjective expression of concern is irrele

vant to the task in hand.

Failure to “absorb

all

”

communications

,

in context

[34]

O

nly a small selection of emails were referred

to

in detail

in the learned

Magistrate‟s r

easons. These Reasons have not discussed each and every email

either.

[35]

Nevertheless, it is

not

correct

to

find

that the emails

that

were

specifically referred

to

at first instance

are “representative” of the emails sent during the charge period.

This is because the email

s

so

selected are the ones that are the most extreme. And

while it is true t

hat many further emails were also extreme, many emails were

relatively mild in tone and content.

[36]

But the major concern is that the provision requires that “all the circumstances”

need to be taken into account

,

because they are the things to which those

“re

asonab

le persons” would have regard in determining the use of the carriage

service in a way of

being

potentially

menacing, harassing or offensive.

[37]

Rather than consider all the emails as providing a context for the others

,

the learned

Magistrate simply stat

ed that he had considered the defendant‟s submissions

–

which included a reference to “context”

–

and that he rejected them because they

were “not credible”.

[38]

The reference to credibility may, in its own context, be a reference to matters other

than “contex

t”. But whichever way rejection of the submissions is taken, it is not

possible to ignore the content of the total

sum of the

communication

s

chosen by the

prosecution to form

ulate

the charge

that

was brought. A discussion under this

heading has also embrac

ed the appellant‟s ground which I have enumerated as (d) in

paragraph [11].

Conclusi

ons

[39]

It is intended, in turn, to consider each of the adjectives “menacing”, “harassing”

and “offensive”. As this charge has been

presented

,

for

any characterisation of use

of the carriage service here, whether it by the method of use or the content of the

communication, or both, in a way that reasonable persons would regard such as

,

in

all the circumstances, having one of those characteristics, one

only

is sufficient to

requ

ire a conviction.

[40]

Accordingly, I will consider each of the matters in turn.

10

“

Menacing”

[41]

As

is interpreted by the joint judgment in

Monis

this adjective, together with

the

immediately

following adjective

,

imply a serious potential effect upon a recipient,

being one which causes apprehension, if not a fear, for the recipient‟s safety.

[42]

Is

the totality of the emails of such content

, and in the way that they were sent, such

as

reasonable persons would regard as

caus

ing

apprehension, if not fear, for

“safety”

?

What the reasonable person must consider is that the degree of menace

must be at the high end of the spectrum, although not necessarily the most extreme.

Necessarily, the reasonable person must be taking into effect contemporary societal

standards.

I am n

ot

satisfied

beyond a reasonable doubt that reasonable persons

would regard

the relevant extent of menace

as sufficient for conviction. As it

applied to

those

recipients (or other such persons)

who were

generally

encompassed

b

y the

use of

very general term

s

of

“

humanity‟s

”

threat,

bearing in mind the

“frequency” of

the emails

(

which, in context

,

lessened

their significance as

a

menace

personally directed

), it was not one causing apprehension, if not fear, for

safety.

It might even be

projected

that the sign

ificant concern was whether to

consign each to the “DELETED” folder or to the “SPAM” folder in the email

software

program.

[43]

Turning, then, to the individuals identified. Specifically with reference to

killing by

shooting (or its derivatives)

-

in contrast t

o their general “extermination” as

“puppets”

-

only

3

particular individuals

were

selected. Each

was

, at the relevant

time, in a leadership position in a significant political party. A close reading of all

the circumstances shows that

those

persons were ch

osen because of positions that

the respective parties took, or because of statements the respective persons made

from the leadership perspective of their respectiv

e parties. For such persons it wa

s

more the “content” of the communicatio

n than the method of

use which wa

s

relevant to the way in which a carriage of service

was

being used, although

separated use impacted on the method (despite such repetition suggesting a rant or

diatribe rather than intended action).

From that perspective, given the nature of

permissible robust political debate, I am not satisfied

beyond a reasonable doubt

that reasonable person

s

would regard

the objectively assessed content

as having the

necessary seriousness

,

given the nature of the recipients of each such broadcast

email, ta

king in

to account

all the circumstances

as a background to

where such

references were made

,

and in the context where there ha

d

been no physical

manifestation of any kind from the sender concerning any of the recipients

. This can

be contrasted with a wide i

nterpretation which might have lent itself to be of the

required nature.

[44]

Hence,

I conclude that the charge, in

sofar as it relies upon the conduct being

“menacing”

,

has not been proved beyond

a

reasonable doubt.

“Harassing”

11

[45]

As canvassed in

Monis

the serio

us potential effect upon a recipient is similar, if not

sometimes identical,

to what

arises from a menace (namely, one which causes

apprehension, if not a fear, for that recipient‟s safety).

[46]

Slightly different considerations apply here because it is not

only the content of the

communication but the method of use, namely the sending of 88 emails in total that

would have

potentially more significance for

this aspect of the charge.

Furthermore, it would have a

wider bite than simply menace. As discussed by

Keane JA in

Ogawa

, the quantity and frequency of the

discrete

uses could lead to a

conclusion by reasonable persons that, in the context, the “use” was relevantly

“harassing”: at 384 [129]. There, 176 phone calls were made to Federal Court

registries and c

hambers between 13 April 2006 and 19 May 2006. Though using an

arguably wide interpretation of “harassing” (i.e. “unwelcome and unwanted”),

Keane JA held that the quantity and frequency, in context, would reach the required

standard of proof: at 384 [129].

[47]

But

,

even so, because the group of recipients would be seen by a reasonable person

to be people who daily engaged in robust political debate, or reported it, or

otherwise

were

involved directly or indirectly in it, it needs to be considered

whether the h

arassment is of such severit

y or

seriousness that it caused

the relevant

apprehension or fear for safety.

[48]

Undoubtedly, on a wide interpretation of “harassing” these emails may well

have

fall

en

within that description. But here, again taking the emails in t

otal as part of all

the circumstances

(which included, at

least in one politician‟s case

-

and

inferentially most of the others as well

-

between 2% to 3% only of

the

average

daily email

receipts)

and bearing in mind societal standards, I conclude that

I a

m not

satisfied beyond a reasonable doubt that

reasonable person

s

would be satisfied that

the carriage service, being a broadcast email to 107 recipients, was done in a way

that was

so

harassing.

“Offensive”

[49]

For “offensive”, as earlier heralded, it is ne

cessary to apply the specific provisions

of s 473.4 of the

Code

. Relevantly for present purposes, the matters to be taken into

account in deciding whether reasonable persons would regard

the

particular use of a

carriage service as being, in all the circums

tances, offensive include

d

the standards

of morality, decency and propriety generally acce

pted by reasonable adults.

It

cannot be said, in the present circumstances, that

literary

, artistic or educational

merit

or

the general character of

the

material (inc

luding whether it is of a medical,

legal or scientific character)

ha

d

much, if anything, to add here.

[50]

In

order to be

“offensive”

the particular

communication must be likely to have a

serious effect upon the emotional well

-

being

–

in terms applicable here

–

of a

recipient. Additionally, beside

s having the necessity that

the use be calculat

ed

or

likely to arouse significant anger, significant resentment, outrage, disgust

, or

hatred,

it is not sufficient if the use would only hurt or wound the feelings of a re

cipient.

Additionally, the communication must be capable of causing real emotional and

12

mental harm, distress or anguish to the recipient. Or to express it

in another

way, the

communication must be likely to cause a significant emotional reaction o

r

psycho

logical response, with the

form

er

ranging from shock through to anger, hate

,

disgust, resentment or outrage and

the

latter potentially including p

rovocation

,

anxiety, fearfulness and insecurity.

S

uch serious effects are to be contrast

ed

with

those that cau

se mere hurt feelings.

[51]

Applying the

standards

of morality, decency and propriety generally accepted by

reasonable adults

,

and

noting that the words

“

very

”

,

“

seriously

”

,

or

“

significantly

”

offensive are required in the application of those standards to the

facts here, while it

can be easily accepted that a wide interpretation would yield positive answers to

offensiveness, on at least most of the Anti

-

Zionist (if not expressly Anti

-

Semitic)

statements,

as well as

to those about individuals and groups

being

“

s

hot

”

(

sometimes summarily

and sometimes after trials, by

“Humanity”

)

, in the context of

what robust political debate accepts for recipients such as those here

and

as persons

who

needed to have been

the subject of serious effects beyond mere hurt feelings,

I

conclude that

I am not satisfied beyond a reasonable doubt that

reasonable person

s

would

regard

, even taking both content and method into account,

on

the fact

s and

in

all the circumstances

(

embracing the totality of the emails which provide the overall

c

ontext

)

,

the

actual

use

of the

carriage service

,

in the relevant criminal sense

conveyed by the word

,

a

s

“offensive”.

“Fault element”

[52]

Although this was not,

even

indirectly, raised in argument, it is clear from

Monis

that a further restriction on the oper

ation of the provision arises from proof of the

fault element in such an offence. The relevant fault element here is whether

reasonable persons would

regard

, in all the circumstances, that the defendant was

reckless in the relevant use, being at least awar

e of a “substantial risk” that

reasonable persons would so regard the use where it is unjustifiable to take that

risk.

Alternatively, intention or

knowledge

can

a

lso satisfy

such a fault element of

recklessness

.

Thus, in

the circumstances here

,

the require

ment of proof of fault

excludes

,

from the scope of the offence

,

conduct which could not be said to be

intentional or reckless.

[53]

In the circumstances here

-

should it

otherwise be held that the use was

descriptively

criminalised

-

it was

clearly

reckless,

at least in the first of the senses discussed

: see

Exhibit

2 (containing the edited transcript of a conversation with the

appellant

during the execution

of the

relevant search warrant showing an intention or

knowledge to undertake the use) together with th

e cross

-

examination of the

appellant at trial (show

ing

that he was aware of people “absorbing” the

communication and taking it “on board”, even if it were to be otherwise accepted

that he had no

subjective

“intention” to cause recipients to “feel troubled

or

concerned or fear for their safety or the safety of others associated” but rather

simply

to put some emotion behind “my information ... that I‟m sending down”

)

.

The use of the language canvassed, objectively, would have demonstrated that it

would, on su

ch a finding, be an unjustifiable risk.