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Criminal defence lawyers are often called upon to represent clients in cases where there is animosity between two parties but no accusation of violence, deprivation of liberty or appropriation of property – but where the conduct which forms the basis of the prosecution relates to allegations of harassment, offensive or menacing behaviour, stalking or intimidation.
These proceedings are frequently brought where there has been no physical contact between the complainant and defendant at all, and even where they are in different geographical locations.
In fact, the basis of the prosecution can relate to something most of us do every day – the sending of text messages on our mobile phones.
This article explores two potential offences that may apply where one person sends unsolicited text messages to another.
The Criminal Code Act 1995 (Cth) is a piece of legislation which applies across the nation, whereas the Crimes Act 1900 (NSW) applies in our state.
Using a carriage service to menace, harass or offend is an offence under section 474.17 of the Criminal Code Act 1995 (Cth) which carries a maximum penalty of five years’ imprisonment.
To establish the offence, the prosecution must prove beyond reasonable doubt that a person:
A ‘carriage service’ is defined as, ‘a service for carrying communications by means of guided and/or unguided electromagnetic energy’ which includes telephone calls, text messages and internet transmissions, such as emails and the use of social media sites.
The use is ‘menacing’ if it includes an express or implied threat of detrimental or unpleasant conduct which is likely to cause the other person to act unwillingly.
The use is ‘offensive’ if a reasonable person would regard it as being so.
The matters to be considered when deciding whether the use is offensive include:
The legislation does not define ‘harass’, but the courts have defined it as, ‘to disturb, bother or pester repeatedly’.
As stated, a phone service is a carriage service for the purposes of the offence.
Applying the reasonable requirement to the act of sending a large number of text messages, the factual determination will be whether a reasonable person would, in all the circumstances, view the volume of text messages as amounting to harassment.
The central term here is, of course, ‘in all the circumstances’.
If both parties send large volumes of text messages, or the messages sent are replied to and interacted with, then it would be difficult to see how the messages could be viewed as being harassing.
However, if the messages go unanswered, and it’s clear from the circumstances that they are unwanted and unwarranted, particularly in the context of the relationship between the sender and the receiver, then a serial texter could find themselves on the wrong side of the law.
The Queensland Supreme Court in Crowther v Sala [2007] QCA 133 looked at the offence of using a carriage service to menace, harass or offend in the context of a phone call which was found by a lower court to have been ‘menacing’ in the context of section 474.17.
The defendant, Ms Crowther, was in a long-running dispute with the State of Queensland concerning the effect upon her residence of polluted air coming from the Yeronga TAFE.
Ms Crowther received a letter from the Tafe Department which she believed had been hand-delivered to her house, in breach of a protocol agreed between her and the state of Queensland as to how correspondence was to be sent to her in her legal dispute with them.
As a result, she telephoned the complainant, Mr Zhouand. At the time he was employed in the Department as a legal officer. He had not met the applicant but they had spoken on the phone a few times. He had signed the letter.
According to the evidence of both Ms Crowther and Mr Zhouand, the former called the latter and strongly protested what she said was a breach of the protocol as well as the contents of the letter.
The following morning, Ms Crowther again rang Mr Zhouand and protested the hand delivery of the letter.
Zhouand told Crowther he thought the letter had been sent through the mail and she became angry.
According to Zhouand’s evidence, Crowther responded in an angry voice “I’m going to get a gun and shoot everyone at the Institute, every fucken one”, and she went on to say that “she was going to get a gun and shove it up my arse and fire it”, after which she hung up.
A few minutes later, she rang him again. He said she “was just yelling and screaming on the phone saying ‘I’m – fucken shoot everyone if I don’t get the answer’. I’ll fucken shoot everyone if I don’t get the answer”.
Zhouand made notes of the conversations and called the police.
The question in that matter was whether Ms Crowther needed to have intended to menace Mr Zhouand, in circumstances where she was really just annoyed and ‘blowing off steam’.
The court found as follows:
“What must be proved is that objectively viewed the conduct was menacing and that the defendant either intended that it be so or was reckless as to that fact. In each case both the physical and fault element must be proved. So an intention to menace would not suffice if the conduct, in all the circumstances, would not be regarded by reasonable persons as menacing.”
In other words, in order to be found guilty of an offence under section 474.17 of the, a person either has to have intended to have used a carriage service in a way that was menacing, harassing or offensive in all the circumstances, or have been ‘reckless’.
A person is reckless if they were aware there was a substantial risk the conduct would be menacing, harassing or offensive and it was unjustifiable to take that risk, but he or she went ahead regardless.
Another criminal offence that could potentially apply where a person sends excessive text messages is commonly referred to as ‘stalking or intimidation’.
This is an offence that proscribes acts as well as communications considered to be intimidatory or to amount to stalking that are intended to physically or mentally harm the recipient.
The full name of the offence is stalking or intimidation with intent to cause physical or mental harm, and it is contained in section 13 of the Crimes (Domestic and Personal Violence) Act 2007.
The maximum penalty for the offence is five years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that a person:
Conduct that has the potential to amount to ‘stalking’ includes:
‘Intimidation’ includes:
It is important to be aware that, with this offence:
The final offence we’ll look at is contravening an apprehended violence order (AVO), which comes under section 14 of the Crimes (Domestic and Personal Violence) Act 2007 and carries a maximum penalty of two years’ imprisonment.
Where there is an AVO in place which prohibits any contact between the defendant and a protected person, the former can be found guilty of the offence if he or she knowingly sent a single text message.
So, while the temptation may be high to send repeated text messages to a former partner, or someone with whom we are disgruntled, frustrated or even angry, perhaps the best advice is to refrain from doing so, lest you find yourself on the wrong side of the law.
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