Using a Carriage Service to Menace, Cause Offence or Harass Offences & Defences

Poppy Morandin and Jimmy Singh.

Image credit: Fadhli Adnan

 

A man has faced court in Queensland after allegedly editing and disseminating footage of the Christchurch mosque massacre.

The footage begins with a title card stating: ‘how much more of this sh*t did you think we would take?’ before cutting to the graphic events of the massacre, with imposed video game sound effects and heavy metal music.

The video finishes with flashes of other various global terror attacks, with repeated lines of text stating ‘finish the job’.

Simon John Hickey did not react as the video was played to a jury at Brisbane District Court.

Mr Hickey has been accused of using ‘Signal’, an encrypted messaging app, to send links to the edited footage to multiple contacts in March 2019.

The court heard in evidence how he aimed to turn the event into ‘a game’.

This was just weeks after the attack in which Brenton Tarrant murdered 51 Muslim worshippers at two mosques in Christchurch.

Tarant has since been sentenced to life imprisonment without parole, after admitting to the murder of 51 people, attempted murder of another 40 people and one charge of terrorism.

Hickey has pleaded not guilty to five counts of using a carriage service to cause offence.

When sending the video to his contacts, he is alleged to have remarked how to video was ‘fun for the whole family’ and how it ‘should be on TV’.

The video, and messages, were discovered after his phone was analysed following a police search of his property in April 2019.

In one of the exchanges, a contact remarks: “Are these real people? Or a computer game?”

“Wow … I’m a bit shocked by this video. The police should not see this with you, never.” she continued.

In another, Hickey allegedly remarks: “Share this by SIGNAL or secret text only. It’s video (sic) made by me lol check it out,”

The trial of Mr Hickey continues, with the judge directing the jury to decide if a reasonable person would have regarded the content shared over Signal as offensive and if Mr Hickey was reckless to that fact.

Using a Carriage Service to Menace, Cause Offence or Harass Offences & Defences

Pursuant to section 474.17(1) of the Criminal Code 1995 (Cth), a person commits an offence if they use a carriage service in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

This offence carries up to 3-years imprisonment if the case is dealt with in the District Court.

However, the matter can be dealt with in the Local Court upon the consent of both the prosecution and the defence.

In this case, the maximum penalty applicable is one year in jail and/or a fine of $13,320 pursuant to section 4J of the Crimes Act 1914 (Cth).

A carriage service includes services for carrying out communications via ‘guided or unguided electromagnetic energy’ such as telephone and those related to the internet such as Facebook messages, IMessage and email (section 7 of the Telecommunications Act 1997 (Cth)).

In order to establish this offence, the prosecution must prove that the material was seriously or significantly offensive according to an objective standard as regarded by a reasonable person.

Offensive has also been ruled to mean: ‘calculated or likely to arouse significant anger, significant outrage, disgust or hatred in the mind of a reasonable person in all the circumstances’ (Monis v The Queen [2013] HCA 4).

Alternatively, in order to be ‘menacing’ or ‘harassing’, the prosecution must prove a serious potential effect on receiver, such as causing apprehension or fear for the person’s safety, according to an objective standard of a reasonable person.

Some defences to this charge include the following:

  • Involuntary behaviour
  • Mental illness defence of not knowing right from wrong or where your condition precluded you from appreciating the quality and nature of your behaviour.
  • You were under the age of 10 at the time.
  • Mistaken identity
  • Duress or necessity.
  • Technical argument relevant to you being an internet provider, carrier, carriage service provider or internet content host of the service.

Questions? Contact our friendly criminal lawyers Sydney branch today.

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