Commonwealth Offences - Criminal Law Defences
There are a range of commonwealth criminal offences throughout the Criminal Code (Cth)
At Houston Defence Lawyers we are experienced in navigating through the Criminal Code and provide advice and representations both in the Local Court and District Court – We can negotiate both with the Police or the Commonwealth Director of Public Prosecutions who prosecute offences under the Criminal Code.
The Criminal Code has a distinct set of fault elements, defences and sentencing principles applicable to the regime.
If you have been charged with a Criminal Code offence, contact us for a free consultation to ensure you are represented by a lawyer who is proficient in the Criminal Code statue.
A commonly charged offences is cyber in nature mostly seen in either text or social media post, such as
Section 474.17 of the Criminal Code (Cth), that apply across every State in Australia. Section 474.17 makes it an offence to use a carriage service to offend, harass or menace and carries a maximum of up to 5 years in prison.
What is considered offensive, harassing or menacing has been given some legal definition. The leading case of Monis v The Queen (2013) 249 CLR 92 stated that a communication will be offensive if a reasonable person looking at the circumstances of the messages has a strong reaction to it.
In another case in South Australia the Court found that the making of seven telephone calls to the home of an ex-employee was harassing conduct, even though nothing was said in the calls by the accused (Daly v Medwell (1985) 40 SASR 281).
In Queensland case of Starkey v Commonwealth Director of Public Prosecution [2013] QDC 124 the Court stated that a communication will be considered menacing even if no physical threat is present. It will be enough when there is a threat of some kind.
Freedom of Speech is no defence
The implied freedom of political communication was attempted to be used as a defence. Whereby, a person is expressing their political opinion on an issue thus, not offensive, harassing or menacing. This is exactly what happened in Monis v The Queen. Many will remember Mr Monis from the Lindt Café siege. However, prior to the siege Mr Monis was charged under the similar offence in 474.12. Mr Monis had been sending letters to the family of Australian soldiers killed while on active service in Afghanistan. The court was divided when determining whether Mr Monis letters were offensive, harassing or menacing. However, it was clear that the freedom of implied political communication that many associate with free speech will not be a bar to uphold a conviction under the law.
Your lack of intention or knowledge is no defence
You may want to argue that you did not intend the information to be categories as offensive, harassing or menacing and merely internet trolling or not meant to cause any harm. However, if police can prove you have been reckless it will be sufficient for police to charge you under section 474.17.
What is Recklessness
Being recklessness means that you were aware that there was substantial risk that the way in which you used the carriage service would be regarded by reasonable people as either offensive, harassing or menacing and you disregarded that risk (see Morgan v District Court of NSW [2017] NSWCA 105 at [36]).
So, it is worth noting that to be charged under this offence in section 474.17 it need not have been your intention to offend, harass or menace another person. It will suffice that you are aware that reasonable people would find it to be so.
The Defences could include:
It was not you that sent the message
You were not reckless meaning you did not consider the substantial risk that was involved
You were under Duress to send the message.
Commonwealth criminal offences are serious, if you are charged with a Commonwealth offence contact Houston Defence Lawyers. We are dedicated to protecting clients' rights and reputation. We bring years of experience and expertise to defend cases vigorously, aiming for positive outcomes such as charge withdrawal, downgrading, dismissal, or minimal penalties. With a skilled team in advocacy who provides strong support and guidance throughout the legal process. Our first consultation is free.
Learn About Your Choices At Law When Charged With a Criminal Offence.
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