Brown v Commonwealth Director of Public Prosecutions

Court of Appeal (NSW)|2016-11-16|Before: Payne JA, Hulme J

Solicitors: Commonwealth Director of Public Prosecutions File Number(s): 2016/212112 Decision under appeal Court or tribunal: District Court Date of Decision: 20 May 2015 Before: Syme DCJ File Number(s): 2013/202652

HEADNOTE [This headnote is not to be read as part of the judgment] The applicant was convicted in the Local Court of seven counts of using a carriage service in a way that reasonable persons would regard as offensive contrary to s 474.17 of the Criminal Code (Cth). She unsuccessfully appealed those convictions in the District Court. In dismissing the appeal, the primary judge applied the construction of "offensive" as adopted by the High Court in Monis v The Queen; Droudis v The Queen (2013) 249 CLR 92 with respect to s 471.12 of the Code, which is the "postage service" equivalent of the "carriage service" offence in s 474.17. The applicant sought judicial review of the District Court decision on the basis there was jurisdictional error. Held, dismissing the application: (1) Given the identical terms in which the offences are stated in s 471.12 and s 474.17, the same construction would be applied to both (per Payne JA at [5]; R A Hulme J at [20], Barrett AJA agreeing at [12]). (2) A majority of the High Court in Monis v The Queen approved the construction of "offensive" for the purposes of s 471.12 that was adopted by the Court of Criminal Appeal in that matter (per Payne JA at [8]; R A Hulme J at [34], Barrett AJA agreeing at [12]). (3) There was no error in the primary judge applying that construction (per Payne JA at [11]; R A Hulme J at [35], Barrett AJA agreeing at [12]).

Judgment

PAYNE JA: I have had the benefit of reading the judgment of R A Hulme J in this matter. I agree with his Honour's reasons and the orders he proposes.
I wish only to say a little more about the jurisdictional error which was alleged. As R A Hulme J demonstrates, each of the grounds of appeal advanced by Ms Brown, and her purported constitutional issue, all had as their base the argument that the District Court had misconstrued s 474.17 of the Criminal Code (Cth) and had thus fallen into jurisdictional error.
In the present case a misconstruction of s 474.17 by the District Court, thereby misconceiving the nature of the function the court was performing or the extent of its powers, may amount to jurisdictional error. So much was established by Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72]; referring to Craig v South Australia (1995) 184 CLR 163 at 177-178. It is unnecessary to decide if the error asserted by the applicant here was properly characterised as jurisdictional or would have amounted to an error within jurisdiction.
This is because the construction advanced by the applicant here was that s 474.17 should be understood as requiring the prosecution to prove that the person's use of a carriage service actually caused offence. The applicant submitted that this requirement flowed from the heading of s 474.17, "Using a carriage service to menace, harass or cause offence" (italics added). So, in her oral submissions the applicant said: APPLICANT: Okay, so the Act I've been charged under, and 474.17 creates a different offence from the offence I've been actually charged under. 474.17, "Using a carriage service to menace, harass, or cause offence." It must cause offence. The Crown is alleging that because they have dropped the first line of the statute, that it, it is only an offensive word that's in it. It must actually cause offence.
I agree with R A Hulme J that the construction of s 471.12 of the Criminal Code set out in Monis v The Queen; Droudis v The Queen (2013) 249 CLR 92; [2013] HCA 4, including the construction of the word "offensive", is correctly to be applied to s 474.17 of the Code. It is to be noted that the heading to s 471.12 is "Using a postal or similar service to menace, harass or cause offence" (italics added).
The primary judge correctly rejected the applicant's construction of s 474.17 of the Code, as she was bound to do by the decisions in Monis in the High Court of Australia affirming the decision the Court of Criminal Appeal: [2011] NSWCCA 231.
Whilst it is true that the decision of the High Court in Monis involved a split 3:3 judgment, the primary judge (and this Court) was bound by the decision in that case: Re Wakim (1999) 198 CLR 511; [1999] HCA 27 at [100] (Gummow and Hayne JJ).
In any event, I agree with R A Hulme J that the court in that case did not split on the present question of construction. A clear majority of the court, French CJ, Crennan, Kiefel and Bell JJ each identified the construction of the term "offensive" which was applied by the primary judge here.
French CJ said at [14]: [14] ... In its application to the content of communications delivered using postal or similar services, the prohibition applies to communications the content of which reasonable persons would regard as being in all the circumstances offensive, whether or not anyone was actually offended by it.
Crennan, Kiefel and Bell JJ said at [287]-[288]: [287] ... The section applies an objective standard, namely that of a reasonable person, and enquires whether that person would regard the use of the postal service in all the circumstances as offensive. [288] ... The enquiry under s 471.12 is not merely whether the recipient is offended, but whether the content of the communication or the method of sending it is offensive, judged by that objective standard. ...
Accordingly, no legal error was committed by the primary judge. As the applicant accepted that this alleged error was at the heart of each of her grounds of appeal, and the purported constitutional issue she sought to raise, the appeal must be dismissed with costs.
BARRETT AJA: I have had the advantage of reading in draft the judgment to be delivered by R A Hulme J. I agree that the orders his Honour proposes should be made for the reasons he gives. In neither her oral submissions nor the large quantity of written material she filed has Ms Brown identified any aspect of the decision of Judge Syme that could conceivably be said to exhibit jurisdictional error allowing intervention by this Court consistently with s 176 of the District Court Act 1973 (NSW).
R A HULME J: This is an application pursuant to s 69 of the Supreme Court Act 1970 (NSW) for judicial review of a decision of the District Court in its criminal jurisdiction on an appeal from the Local Court. The applicant, Ms Fiona Stewart Brown, seeks to invoke the supervisory jurisdiction of this Court which, by virtue of s 176 of the District Court Act 1973 (NSW), is limited to correction of jurisdictional error on the part of the District Court: Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620.
On 20 May 2015 her Honour Judge Syme dismissed an appeal against the convictions recorded against Ms Brown in the Local Court on 30 May 2014 in respect of seven charges of using a carriage service in a way that reasonable persons would regard as offensive, contrary to s 474.17 of the Criminal Code (Cth).
Ms Brown represented herself in the proceedings in this Court as she did in the courts below. Without intending any criticism, it is apparent that the concept of judicial review for jurisdictional error was foreign to her. However, counsel for the respondent helpfully set out in written submissions the relevant principles by reference to Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [66]; Craig v South Australia [1995] HCA 58; 184 CLR 163; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at 141 [163]; Scott v Director of Public Prosecutions (NSW) [2015] NSWCA 60 at [20]-[21]; Quinn v Director of Public Prosecutions [2015] NSWCA 331 at [6]; and Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 at [35]. It is unnecessary to set out these principles here as they are not controversial and are readily ascertainable.
Twenty-two grounds are itemised in the summons filed by Ms Brown on 13 July 2016. None of them explicitly assert jurisdictional error on the part of the District Court judge. In large part it is her case that there was error in the adoption of an incorrect construction of provisions of the Criminal Code.

The charges

Each of the seven charges brought against Ms Brown alleged an offence contrary to s 474.17 of the Criminal Code which is in the following terms: 474.17 Using a carriage service to menace, harass or cause offence (1) A person commits an offence if: (a) the person uses a carriage service; and (b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive. Penalty: Imprisonment for 3 years.
The section is within "Part 10.6 - Telecommunications Services" and specifically within "Division 474 - Telecommunications offences".
Monis v The Queen; Droudis v The Queen [2013] HCA 4; 249 CLR 92 ("Monis v The Queen") was an appeal from the decision of the New South Wales Court of Criminal Appeal in Monis v R; Droudis v R [2011] NSWCCA 231; 256 FLR 28 ("Monis v R"). Those decisions were concerned with an offence within "Part 10.5 - Postal Services", specifically within "Division 471 - Postal offences". The offence in s 471.12 is the "postal or similar service" equivalent of the "carriage service" offence in s 474.17: 471.12 Using a postal or similar service to menace, harass or cause offence A person commits an offence if: (a) the person uses a postal or similar service; and (b) the person does so in a way (whether by the method of use or the content of a communication, or both) that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive. Penalty: Imprisonment for 2 years.
Given the identical terms in which the respective offences are stated, the construction of s 474.17 would be the same as for s 471.12.
Section 473.4 (in "Part 10.6 - Telecommunications Services") specifies a number of matters that are included in the matters to be taken into account in deciding for the purposes of Part 10.6 whether reasonable persons would regard particular material, or a particular use of a carriage service, was, in all of the circumstances, offensive.

Facts underpinning the charges

The facts underpinning the charges brought against Ms Brown only need to be stated briefly. In about 2007 the financial affairs of a person came under the administration of the Insolvency and Trustee Service Australia ("ITSA") (now the Australian Financial Security Authority). Ms Brown claimed as a creditor of the estate in bankruptcy. She became dissatisfied with the administration of the estate. She made various complaints and was dissatisfied with the response. She took related actions, such as making freedom of information applications, and became further dissatisfied.
Ms Brown posted a number of "blogs" concerning her complaints. The blogs concerned her perception of the performance and professionalism of staff at the ITSA. These became publicly available via the internet. She had previously been warned by an email sent by the National Manager of the ITSA in October 2009 that communications that she had been sending up until that time by email to ITSA staff were considered offensive.
The blogs that were the subject of the seven charges were posted between 16 October 2010 and 26 January 2013.
The primary judge provided the following sanitised description: "The entries on the blog commence from about October 2010 (although [there] is one entry that appears to be dated first of November 2001 which might be an error). The blogs in general terms can be described as an angry and at times incoherent rant against various employees of ITSA, the Commonwealth Ombudsman and various member of the Attorney Generals Department. The people from ITSA, whose names appear in the particulars supplied, are referred to with particular vitriol. Her complaints are not confined to these people but in relation to these people in particular that her statements become more offensive. In general terms she complains that each of the people referred to individually and collectively acted corruptly and unprofessionally in relation to their duties for the Receiver in Bankruptcy and in relation to the other obligations they have such as investigations of her complaints. She makes general complaints about covering up conspiracies or mismanagement and of corruption between the various parties. It is in this context the complained of phrases appear. In various parts of the blog it degenerates into abusive and offensive language referring to particular body parts and sexual acts. I will refer to the statements referred to in the particulars for each charge individually, however, in each case the inclusion of the statements complained of as being offensive are included in such a way as not to explain or support the complaint she apparently otherwise wishes to make. For example, where she wishes to complain of a lack of proper investigation of a complainant, the inclusion of a statement concerning a sexual act, described in crude terms, does nothing to further the detail or substance of the complainant. The inclusion of the sexual references does nothing other than divert attention away from the complaint and toward the sexual or degrading allegation. This observation can be taken into account in two ways. First, it is evidence that the posts have no other purpose than to produce shock and disgust in the reader, therefore to support a finding of the posts being offensive in the context of the whole blogs. Secondly, the lack of any suggestion that the offensive posts had any purpose or context otherwise than to offend is evidence pointing to either the positive intention of the writer (Ms Brown) to shock and offend the reader, or at least her total lack of regard as to whether [h]er posting could or would be seen as offensive by that reader, therefore is evidence of recklessness."

The judgment

The judgment of the primary judge was accurately and usefully summarised in the written submissions by counsel for the respondent as follows: "Her Honour noted in the Reasons for Decision that all the evidence in the Local Court proceedings formed the evidence in the District Court proceedings and that the appeal proceeded by way of a rehearing-para 4, 21 and 22 of the Reasons for Decision. She noted that the District Court was in a similar position as the Local Court to assess the evidence-para 6. She summarized the background facts to the charges, i.e. the reasons why the applicant posted the offending blogs about ITSA employees; she set out the relevant law i.e. s 474.17 and s 473.4-para 15 and 16; she set out the elements of the offence which was based on the legislation and the decision of Monis v The Queen and Droudis v The Queen [2013] HCA 4-para 17-19. She set out the onus of proof on behalf of the prosecution. i.e. beyond reasonable doubt-para 20. She then considered an issue of procedural fairness ie that the applicant in the Local Court proceedings was not permitted to cross examine the makers of the Crown statement in circumstances where much of the statements were held to be irrelevant (being personal responses to the offending blogs), and where the applicant was unable to specify what topic she wanted to cross examine any witness on or a topic that was relevant-para 22-23. Her Honour held that the Magistrate was correct to deny any cross examination and that she appropriately dealt with the striking out of irrelevant Crown material-para 32, 38; she noted that the Magistrate did not admit evidence of the search warrant material as it related solely to the issue as to whether the applicant was the author of the offending blogs and there was no issue as to this point-para 27, 33-36; she looked at the evidence as to proof that the internet site was a "carriage service" and found "that the blog posts were the use of a carriage service" and noted that in any event this was not an issue in the proceedings para 40-42. Her Honour then dealt with the legal principles to be applied and noted that the main issue in the case was whether the blogs were "offensive"-para 43; she held that given the decisions in Monis (which dealt with a very similar section of the Criminal Code) and the decision of Starkey v Commonwealth DPP [2013] QDC 124 (which dealt with s 474.17 and applied Monis), the test for determining whether something was offensive was an objective one-para 43-51. She referred to the test of determining "offensive" as formulated by the High Court in Monis-para 52-56. The decision then deals with the evidence to support the elements-para 57-73. She then sets out her findings in relation to each charge-para 74-83."
It is not apparent that there was any misunderstanding by the judge of her task; any failure to take into account a necessary matter; or taking into account a matter that she was forbidden to take into account. The decision made was within the limits of her functions and power concerning which her Honour was under no misapprehension.

Ms Brown's argument

The essence of the complaint that permeates the entire case Ms Brown seeks to make in this Court is that there have been errors in the construction of the relevant provisions of the Criminal Code by the New South Wales Court of Criminal Appeal in Monis v R and by the High Court of Australia in Monis v The Queen. In short, errors were made in those Courts which the District Court judge was bound to apply. For example, in the written submissions concerning Ground 1, Ms Brown stated (at [25]): "The Judge of the District Court applied the statute according to the atrocious errors of the High Court because the Judgment is binding in all lower Courts."
In the written submissions concerning Ground 14 she said (at [95]): "This is a result of the Judge of the District Court and the Magistrate of the Local Court applying the construction of 'offensive' according to the Chief Justice of the NSW CCA."
Complaints in similar form are expressed repeatedly throughout Ms Brown's very lengthy written submissions.
A variety of ancillary issues were raised in respect of the various grounds. For example, Ground 19 alludes to an issue of procedural fairness, perhaps the closest Ms Brown came to raising something relevant to jurisdictional error, but the argument presented in her submissions concerned an asserted error on the part of the primary judge in her approach to the construction of the statutory provisions. For example, in her written submissions at [150] she stated: "The Judge and the Magistrate were compelled to make these bias decisions because they were bound by the atrocious statutory construction of the statute in the High Court of Australia."
Ms Brown made it abundantly clear at the outset of the hearing in this Court that the multitude of complaints she sought to raise in relation to the disposition of her appeal in the District Court all flowed from her pivotal argument that the decisions of the Court of Criminal Appeal and the High Court are erroneous. These complaints extended to an attempt to raise an issue about the constitutional validity of the statutory provision. She contended in written submissions, and confirmed orally, that her point in that regard was that the statute conformed with the Constitution when correctly construed "but the profoundly atrocious statutory construction [by the High Court] exceeds it".

Error in following decisions of the Court of Criminal Appeal and the High Court?

I do not accept that the judge was in error in any of the ways for which Ms Brown contends in applying the same construction to s 474.17 as was applied by the Court of Criminal Appeal and the High Court to s 471.12.
The decision of the High Court in Monis v The Queen involved a 3:3 split which meant that by virtue of s 23(2)(a) of the Judiciary Act 1903 (Cth) the decision of the Court of Criminal Appeal in Monis v R was affirmed. The split came at the point of determining the second limb of Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520. What was affirmed by the 3:3 split was the decision of the Court of Criminal Appeal as to the constitutional validity of s 471.12. However, a majority (French CJ at [59]; Hayne J at [90]-[91]; Crennan, Kiefel and Bell JJ at [338]) approved the construction of "offensive" for the purposes of s 471.12 of the Criminal Code adopted by the Court of Criminal Appeal (per Bathurst CJ at [44], Allsop P agreeing at [83]) in Monis v R.
Accordingly there was no error in the primary judge applying what was said concerning the construction of s 471.12 (and hence s 474.17) in the decisions of the Court of Criminal Appeal and of the High Court.

Conclusion

Nothing Ms Brown has raised establishes jurisdictional error in any form in the manner in which the appeal proceedings in the District Court were heard and determined.
Proceedings for judicial review of a decision must be commenced within three months of the date of the decision: r 59.10, Uniform Civil Procedure Rules 2005. In this case the decision was given on 20 May 2015 and the summons was filed on 13 July 2016. Ms Brown provided some explanation and, although it is less than complete, the respondent did not oppose an extension of time being granted.

Orders

I propose the following orders: 1. Extend time for the filing of the summons until 13 July 2016. 2. Summons dismissed. 3. Applicant to pay the costs of the respondent.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 05 December 2016

Judiciary Act 1903(Cth)s 23(2)(a)

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