The Law on Using a Carriage Service to Offend, Menace or Harass in NSW

By Sahar Adatia and Jimmy Singh.

It’s not every day that you hear of police officers engaging in misbehaviour and abusing their position of power in an improper or illegal act.

It is equally puzzling to consider what exactly enables some officers to engage in despicable behaviour when the majority of their peers conduct themselves properly.

Indeed, Australia takes police misconduct and corruption seriously, the impact of which can lead to a breakdown of justice and public confusion. All the while, for those who experience police wrongdoing, a blatant sense of unfairness, distress and sometimes even threat is all too common.

One such case that made its way into media headlines recently involved Senior Constable Sean Daniel Murphy, who last month pleaded guilty to making a threatening phone call to Australian Greens senator Sarah Hanson-Young on July 3.

The 57-year-old New South Wales police officer was charged with one count of using a carriage service to menace, harass or offend, after police searched his south-west Sydney home.

According to Senator Hanson-Young, the call was one of numerous threats she had received.

She also said it was especially worrying because the person who called referred to her daughter with threatening comments.

Defiant and Drunk: The Details of Murphy’s Phone Calls

In admitting to his offence, Murphy confessed that during the phone calls, he spoke of wanting to rape a relative of Senator Hanson-Young.

The police officer even asked a Greens campaign manager, who happened to answer the police officer’s call on one occasion, if he could “have a picture of the senator’s [relative]”.

He was refused and questioned as to why he would want such a picture, to which he aggressively responded that he wished to sexually assault the relative, according to court documents.

Meanwhile, in a recorded interview three weeks after the call was made, Murphy disclosed to the federal police that he was not sure if he made the abusive remark as he had been drunk.

He did, however, recall telling Hanson-Young that she “needed to get f**ked” and saying: “Do you know under Islam you can f**k nine-year-old girls?” leaving the Greens Senator “horrified”.

Senior Constable “Appalled” by His Own Conduct as to the Threatening Calls

While Murphy did not appear in court as he is being treated for post-traumatic stress disorder in a mental health facility, at his court hearing in the Downing Centre Local Court on 6 November, the court was told that the distinguished police officer felt “appalled” and “contrite without relief” about his misbehaviour.

“He is appalled by his conduct. He immediately admitted what he had done,” barrister John Davidson told the court.

Barrister Davidson also said that the police officer offered to apologise in person to Hanson-Young, although the proposition was declined.

Speaking of the misbehaviour, the barrister said his client had worked as a police officer for 36 years and received two awards for bravery, on one occasion during which he almost lost his life.

“He’s seen more blood and mayhem than perhaps anyone else can imagine,” he said of Murphy having worked on the streets of Sydney in “troubled areas” including Redfern and Kings Cross.

“He has been described as being a victim of ‘assault of police’ some 200 times.

“After 30 years of serving the community, saving members of the community, he’s now answerable to that community.”

Davidson said Murphy was under psychiatric treatment in hospital.

Murphy Suspended from The Force, and Bail Sustained

According to NSW Police, Murphy has been currently suspended.

While Magistrate Jennifer Atkinson agreed to Davidson’s statement that Murphy “is no threat,” she said the difficulty was the alleged offending had been “quite distressing” to those involved.

The police officer will be sentenced in February next year.

Meanwhile, bail was granted to him by Magistrate Atkinson on the condition that he reside at the mental health facility where he is undergoing treatment or his home, and that he does not contact the Greens Senator’s office or any witnesses.

Police misconduct in NSW

Police misconduct in NSW is a matter that is taken very seriously.

New South Wales Police Force (NSWPF) officers are expected to perform with utmost professionalism and with integrity.

Thus, a priority is to make sure that their authority is exercised responsibly and not abused.

According to the NSW Government, the mission of the NSWPF is to “work together with the community to establish a safer environment through the reduction of violence, crime and fear.”

In NSW, you have a right to complain if you are dissatisfied or concerned about your interactions and dealings with either a NSW police officer, a NSW Police Force administrative officer, or the NSW Police Force.

Click onto the above NSW Government link to learn how to lodge a complaint about a Police Officer in NSW.

The Law on Using a Carriage Service to Menace, Harass, or Offend in NSW

A carriage service includes a service that communicates via ‘guided or unguided electromagnetic energy’. This is reflected in section 7 of the Telecommunications Act 1997 (Cth).

Examples of a carriage service includes phone calls, text messaging, email and social media.

In NSW, the offence of using a carriage service to menace, harass, or offend is outlined in Section 474.17 of the Criminal Code Act 1995 (Cth), which carries a maximum term of 3-years imprisonment if dealt with in the District Court.

However, if dealt with in the Local Court, the maximum penalty is a term of up to 1-year and/or fine of up to $12,600.

A Magistrate or Judge only reserve the maximum penalties for the most serious offenders.

A person can only be guilty of this offence if the police can prove each of the following beyond reasonable doubt:

• The accused person used a carriage service; and
• It was used in such a way that a reasonable person would see it as offensive, menacing or harassing in the circumstances.

What Does ‘Offensive’ Mean?

‘Offensive’ is where the conduct is ‘calculated or likely to arouse significant anger, significant resentment, outrage, disgust, or hatred in the mind of a reasonable person in all the circumstances’. It is not offensive if it merely hurts or wounds the feelings of the other person (alleged victim).

The reasonable person is considered someone who is ‘reasonably tolerant and understanding, and reasonably contemporary in his/her reactions.’

This is outlined in the case of Monis v The Queen [2013] HCA 4.

For a further outline on this, see our previous blog on on ‘what is offensive conduct under the law?’

What are the Defences to a Charge of Using a Carriage Service to Harass, Threaten or Menace?

So far as defences to a charge of using a carriage service to menace, harass or offend someone, you will be not guilty to this charge if either one of the following apply:

• You were the internet provider, carrier, carriage service provider, or internet content host of the service- representing the only extent of your involvement in the alleged offence.
• Mistaken identity. Someone else used your device used to send the communication. i.e. hacking.
• You were under 10-years old at the time.
• Duress or Necessity.
• Involuntary conduct.
• Mental illness where you were not aware of the rightness or wrongness of your actions, or where your condition prohibited you from appreciating the nature and quality of your conduct.

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