The Commonwealth Criminal Code Act 1995, section 474, creates a number of offences connected with the illegal use of phones and computers. This can range from attempting to defraud someone using a phone or computer, to intercepting phones (wiretaps), to tampering with phone identifiers, to name some.
What this article is specifically concerned with is the most prosecuted offence under the section:
Using a carriage service to menace, harass or cause offence.
Elements of the offence
The text of the offence is:
(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.
The burden of proof is always with the police and prosecutors. What they must prove for this offence is:
A person used a carriage service
And
A ‘reasonable person’ would regard it as being menacing, harassing, or offensive
And
The person (using the carriage service) was at least aware of a substantial risk that a reasonable person would regard her conduct as menacing, harassing or offensive.
A ‘carriage service’ is defined as ‘… a service for carrying communications by means of guided and/or unguided electromagnetic energy.’ In other words, mobile communication devices or computers. Additionally, the following acts constitute a use of a carriage service: “making a telephone call, sending a message by facsimile, sending an SMS message, or sending a message by email or some other means using the Internet.”
The word ‘uses’ should be attributed its ordinary meaning. If data was transferred from a defendant to another person, we can assume the defendant was ‘using’ a mobile phone or computer to enable that transmission.
A ‘reasonable person’ is a hypothetical person, but in reality, it requires a magistrate to assess what such a person who consider to be menacing, harassing, or offensive. One judge stated this to be “the need to view the circumstances of allegedly offensive conduct through objective eyes and to put to one side subjective reactions which may be related to specific individual attitudes or sensitivities.”
So far as the meaning of the words ‘menace’, ‘harass’ or ‘offence’, legally, “[t]he words ‘menacing’ and ‘harassing’ imply a serious potential effect upon a [recipient], one which causes apprehension, if not a fear, for that person's safety.”
Putting the above in layman’s terms, this offence is concerned with a person using a mobile phone or computer to transmit information that a reasonable person would find menacing, harassing or offensive. The information transmitted can be spoken words, as in a phone call, written words, as in a text message, or the sending of a static or moving image, as in photos or videos.
There is, additionally, an ‘aggravated’ version of the offence, which incorporates what is written above, but with the addition of ‘private sexual material’. For example, a woman using per phone to transmit ‘nudes’ of her ex-boyfriend to the internet without his consent.
Penalties
The offence in its ‘simpliciter’ form has a maximum penalty of 5 years imprisonment.
The offence when it is ‘aggravated’ has a maximum penalty of 6 years.
In practise, these offences, save for those that are exceptionally serious, are penalised by way of a fine or the equivalent of a probation order.
Some examples of Menacing, Harassing or Offensive
In one case, a defendant phoned the employee of a TAFE and said she was going to attend the TAFE with a shotgun and start shooting, and would ‘shove the shotgun up [his] arse’ and pull the trigger. This was deemed to be menacing by a magistrate.
In a different case, after a woman lost a case in the federal court, she proceeded to repeatedly call staff of judges of that court 189 times in an 18-hour window. This was deemed to be harassing.
Another defendant sent emails and Facebook messages to his former solicitor, threatening to sue him, and personally confront him, as said he would ‘hunt you down’. This was after the solicitor [unsurprisingly] found it impossible to work with the defendant, and withdrew from acting for him.
Defences
One defence is the police were simply mistaken about who transmitted menacing, harassing or offensive data. That is, they charged the wrong person.
Another is the prosecution cannot prove that the defendant sincerely did not intend for the communications to be harassing, menacing or offensive.
Conclusion
That is an overview for this offence. As can be seen, this offence can be a little technical, and we recommend seeking expert legal advice if you are charged with such an offence.
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