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[2009] ACTSC 171
defendant. Application for a directed verdict granted; verdict of not guilty entered because the evidence could not establish the offensiveness element of s 474.17 (Criminal Code (Cth)) in the circumstances...
Higgins CJ held that the prosecution failed to prove that the communications were 'offensive' under s 474.17 of the Criminal Code (Cth). Offensiveness requires more than mere disapproval; it must be likely to cause serious affront by objective standards. Because the recipient had initiated and set the tone of the exchanges and did not find them offensive, no reasonable jury could find the statutory element satisfied. The judge ordered a directed verdict of not guilty.
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1,787 words · generated 22/06/2026
This is an ex tempore judgment of Higgins CJ in the Supreme Court of the Australian Capital Territory in R v PM [2009] ACTSC 171 heard 14–16 December 2009 and delivered 16 December 2009. The Crown charged PM under s 474.17 of the Criminal Code (Cth) for communications alleged to be menacing, harassing or offensive. After the Crown's evidence, the defence applied for a directed verdict. The judge examined the statutory requirements of s 474.17, particularly the meaning and necessary proof of the element 'offensive'. Relying on the evidence of the recipient, identified as JL in the judgment, the judge found JL had initiated the communications, set their tone and had not regarded them as offensive as she received them. Applying an objective test for offensiveness and adopting Kerr J's formulation in Ball v McIntyre as still good law, Higgins CJ concluded the prosecution had not established the required element. The Court directed that a verdict of not guilty be entered (paras 1, 2, 6, 11).
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Key factual points:
Disposition: Directed verdict for the defendant; verdict of not guilty ordered (para 1).
The decision turned on legal characterisation of the statutory element 'offensive' in s 474.17 and whether the Crown's evidence could meet that element. Higgins CJ articulated three interlocking propositions:
Statutory requirement: s 474.17 requires that the communication be menacing, harassing or offensive to the person to whom it is directed. The communication must be so characterised as causing offence or carrying the likelihood of causing offence to that person (para 2).
Objective standard of offensiveness: Offensiveness is judged by the standards of reasonable adults under s 473.4, not solely by the recipient's subjective reaction. The judge stated the applicable test: whether reasonable persons would regard the material as offensive in normal circumstances, adjudged according to generally accepted standards of morality, decency and propriety (para 4, para 10).
Substantive content of 'offensive': The Court adopted Kerr J's definition in Ball v McIntyre (1966) 9 FLR 237 as still good law, namely that 'offensive' denotes conduct causing serious affront, not mere disapproval or impropriety and going beyond breaches of courtesy or commonly accepted social rules (paras 7–9).
Applying those principles, the judge explained two further points. First, offensiveness must be assessed in the circumstances of communication, it is not sufficient that material could be offensive in some contexts; the circumstances and direction to a particular person matter (para 5). Second, the necessary mental element (intent or recklessness to cause the menacing/harassing/offensive effect) must be established, although in this case that issue effectively did not arise because the recipient did not take offence and had set the tone (para 6).
Given JL's evidence that she had started the communications, set their tone and did not view them as offensive, the judge concluded no reasonable jury could find the communications to be offensive under the objective standard. Consequently the prosecution had failed to establish an essential element of the offence and the judge directed a verdict of not guilty (paras 6, 11).
Before this judgment, s 474.17 already existed in the Criminal Code (Cth) and required proof that a communication was menacing, harassing or offensive to the recipient. The judgment clarifies and applies existing statutory provisions and accepted definitions rather than introducing novel law.
The decision affirms these points:
After this decision, practitioners should treat s 474.17 prosecutions as demanding careful attention to (a) objective offensiveness and (b) the communication context including who initiated or set the tone. The judgment also signals scepticism about applying s 474.17 in situations where communications are consensual or reciprocal between sender and recipient, and highlights that different factual circumstances (for instance, unsolicited mass communications via blogs or social networks) may raise distinct issues (para 3).
"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." (para 2)
"Under s 473.4, that is to be adjudged according to the standards of morality, decency and propriety generally accepted by reasonable adults." (para 4)
"Offensive behaviour ... means something which causes serious affront, not mere disapproval." (para 8)
"[JL] ... initiated the communications, ... set the tone ... did not regard the communications ... as offensive." (para 6)
"A communication ... must menace, harass or cause offence to the recipient, ... whether or not ... the person ... feels subjectively ... offended, as long as, by the standards of reasonable adults, it would be so regarded." (para 10)
The judgment is most directly applicable to prosecutions under s 474.17 where:
By contrast, the Court signalled that different fact patterns may produce different legal outcomes:
Practitioners should therefore analyse:
This judgment is a single ex tempore decision by Higgins CJ and primarily applies the existing statutory framework and established authority (Ball v McIntyre) to the facts. The Court expressly followed Ball v McIntyre for the meaning of 'offensive' (para 7). The judgment does not overrule or depart from existing authority; instead it clarifies application of the objective test and the threshold of serious affront in the context of communications offences.
Because this is an interlocutory/directed-verdict ruling grounded in fact-specific findings (that JL initiated the communications and did not view them as offensive), its precedential force is strongest on similar fact patterns. Later courts assessing parallel prosecutions will likely treat this judgment as persuasive on:
Users should search subsequent decisions for confirmation, extension or qualification of these points in other contexts (mass/public communications, unsolicited content, communications to minors). This judgment itself cautions that the statutory provision "may be different" where communications are broadcast to a large number of people such as via blogs or Facebook (para 3), thereby leaving scope for different outcomes in more public settings.
Several issues remain open or fact-sensitive following this decision:
Edge of 'serious affront': The judgment adopts Ball v McIntyre's threshold but does not exhaustively define examples of conduct that do or do not meet 'serious affront'. Lower-level but persistent harassment, or communications that are intrusive without being patently obscene, require case-by-case assessment.
Application to mass/public communications: Higgins CJ observed that the provision "may be different" where communications are accessible to many (para 3). How the objective test applies when communications are posted publicly and received by a broader audience remains to be developed by later courts.
Interaction of subjective and objective elements: The Court held the recipient's subjective reaction is not determinative where the objective standard suffices (para 10). But how evidence of subjective distress should be weighed alongside objective standards where the recipient is vulnerable, young or in a particular social context invites further judicial elaboration.
Mens rea thresholds in borderline cases: The judgment notes intention or recklessness to cause the result is required (para 6). How courts will infer recklessness in complex digital communication environments (e.g. jokey commentary posted publicly) is not elaborated.
Technological and contextual factors: The judgment hints at different outcomes in contexts such as social media or group messaging (para 3), but the precise boundaries, how the size of audience, the permanence of posts, anonymity, and viral dissemination affect the s 474.17 analysis, remain to be settled.
In sum, R v PM clarifies the need for objective proof of 'offensive' communications and sets a relatively high bar for offensiveness as causing serious affront. It is highly fact-specific and leaves open important questions about public communications, borderline harassment, and how evolving communication technologies affect statutory application. Practitioners should apply the principles here to similar one-to-one communications where the recipient's participation undermines a prosecution, but remain attentive to cases with distinct factual matrices where different outcomes are plausible.
1. In all the circumstances and particularly given the evidence of [JL] the application for a directed verdict is granted.
2. 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.
3. 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.
4. 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.
5. 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.
6. 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.
7. 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.
8. 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.
9. 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.
10. 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.
11. 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.
Solicitor for the Crown: Commonwealth Director of Public Prosecutions
Solicitor for the defendant: Ben Aulich & Associates
R
PM [2009] ACTSC 171
Application for a directed verdict granted; verdict of not guilty entered because the evidence could not establish the offensiveness element of s 474.17 (Criminal Code (Cth)) in the circumstances of the communications (paras 1-2, 6, 11).