Brown v Commonwealth Director of Public Prosecutions

1. [1]

   PAYNE JA: I have had the benefit of reading the judgment of R A Hulme J in this matter. I agree with his Honour's reasons and the orders he proposes.

2. [2]

   I wish only to say a little more about the jurisdictional error which was alleged. As R A Hulme J demonstrates, each of the grounds of appeal advanced by Ms Brown, and her purported constitutional issue, all had as their base the argument that the District Court had misconstrued s 474.17 of the Criminal Code (Cth) and had thus fallen into jurisdictional error.

3. [3]

   In the present case a misconstruction of s 474.17 by the District Court, thereby misconceiving the nature of the function the court was performing or the extent of its powers, may amount to jurisdictional error. So much was established by Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 at [72]; referring to Craig v South Australia (1995) 184 CLR 163 at 177-178. It is unnecessary to decide if the error asserted by the applicant here was properly characterised as jurisdictional or would have amounted to an error within jurisdiction.

4. [4]

   This is because the construction advanced by the applicant here was that s 474.17 should be understood as requiring the prosecution to prove that the person's use of a carriage service actually caused offence. The applicant submitted that this requirement flowed from the heading of s 474.17, "Using a carriage service to menace, harass or cause offence" (italics added). So, in her oral submissions the applicant said:

5. [5]

   I agree with R A Hulme J that the construction of s 471.12 of the Criminal Code set out in Monis v The Queen; Droudis v The Queen (2013) 249 CLR 92; [2013] HCA 4, including the construction of the word "offensive", is correctly to be applied to s 474.17 of the Code. It is to be noted that the heading to s 471.12 is "Using a postal or similar service to menace, harass or cause offence" (italics added).

6. [6]

   The primary judge correctly rejected the applicant's construction of s 474.17 of the Code, as she was bound to do by the decisions in Monis in the High Court of Australia affirming the decision the Court of Criminal Appeal: [2011] NSWCCA 231.

7. [7]

   Whilst it is true that the decision of the High Court in Monis involved a split 3:3 judgment, the primary judge (and this Court) was bound by the decision in that case: Re Wakim (1999) 198 CLR 511; [1999] HCA 27 at [100] (Gummow and Hayne JJ).

8. [8]

   In any event, I agree with R A Hulme J that the court in that case did not split on the present question of construction. A clear majority of the court, French CJ, Crennan, Kiefel and Bell JJ each identified the construction of the term "offensive" which was applied by the primary judge here.

9. [9]

   French CJ said at [14]:

10. [10]

    Crennan, Kiefel and Bell JJ said at [287]-[288]:

11. [11]

    Accordingly, no legal error was committed by the primary judge. As the applicant accepted that this alleged error was at the heart of each of her grounds of appeal, and the purported constitutional issue she sought to raise, the appeal must be dismissed with costs.

12. [12]

    BARRETT AJA: I have had the advantage of reading in draft the judgment to be delivered by R A Hulme J. I agree that the orders his Honour proposes should be made for the reasons he gives. In neither her oral submissions nor the large quantity of written material she filed has Ms Brown identified any aspect of the decision of Judge Syme that could conceivably be said to exhibit jurisdictional error allowing intervention by this Court consistently with s 176 of the District Court Act 1973 (NSW).

13. [13]

    R A HULME J: This is an application pursuant to s 69 of the Supreme Court Act 1970 (NSW) for judicial review of a decision of the District Court in its criminal jurisdiction on an appeal from the Local Court. The applicant, Ms Fiona Stewart Brown, seeks to invoke the supervisory jurisdiction of this Court which, by virtue of s 176 of the District Court Act 1973 (NSW), is limited to correction of jurisdictional error on the part of the District Court: Garde v Dowd [2011] NSWCA 115; 80 NSWLR 620.

14. [14]

    On 20 May 2015 her Honour Judge Syme dismissed an appeal against the convictions recorded against Ms Brown in the Local Court on 30 May 2014 in respect of seven charges of using a carriage service in a way that reasonable persons would regard as offensive, contrary to s 474.17 of the Criminal Code (Cth).

15. [15]

    Ms Brown represented herself in the proceedings in this Court as she did in the courts below. Without intending any criticism, it is apparent that the concept of judicial review for jurisdictional error was foreign to her. However, counsel for the respondent helpfully set out in written submissions the relevant principles by reference to Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 at [66]; Craig v South Australia [1995] HCA 58; 184 CLR 163; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; 204 CLR 82 at 141 [163]; Scott v Director of Public Prosecutions (NSW) [2015] NSWCA 60 at [20]-[21]; Quinn v Director of Public Prosecutions [2015] NSWCA 331 at [6]; and Mulder v Director of Public Prosecutions (Cth) [2015] NSWCA 92 at [35]. It is unnecessary to set out these principles here as they are not controversial and are readily ascertainable.

16. [16]

    Twenty-two grounds are itemised in the summons filed by Ms Brown on 13 July 2016. None of them explicitly assert jurisdictional error on the part of the District Court judge. In large part it is her case that there was error in the adoption of an incorrect construction of provisions of the Criminal Code.

The charges

1. [17]

   Each of the seven charges brought against Ms Brown alleged an offence contrary to s 474.17 of the Criminal Code which is in the following terms:

2. [18]

   The section is within "Part 10.6 - Telecommunications Services" and specifically within "Division 474 - Telecommunications offences".

3. [19]

   Monis v The Queen; Droudis v The Queen [2013] HCA 4; 249 CLR 92 ("Monis v The Queen") was an appeal from the decision of the New South Wales Court of Criminal Appeal in Monis v R; Droudis v R [2011] NSWCCA 231; 256 FLR 28 (“Monis v R”). Those decisions were concerned with an offence within "Part 10.5 - Postal Services", specifically within "Division 471 - Postal offences". The offence in s 471.12 is the "postal or similar service" equivalent of the "carriage service" offence in s 474.17:

4. [20]

   Given the identical terms in which the respective offences are stated, the construction of s 474.17 would be the same as for s 471.12.

5. [21]

   Section 473.4 (in "Part 10.6 - Telecommunications Services") specifies a number of matters that are included in the matters to be taken into account in deciding for the purposes of Part 10.6 whether reasonable persons would regard particular material, or a particular use of a carriage service, was, in all of the circumstances, offensive.

Facts underpinning the charges

1. [22]

   The facts underpinning the charges brought against Ms Brown only need to be stated briefly. In about 2007 the financial affairs of a person came under the administration of the Insolvency and Trustee Service Australia (“ITSA”) (now the Australian Financial Security Authority). Ms Brown claimed as a creditor of the estate in bankruptcy. She became dissatisfied with the administration of the estate. She made various complaints and was dissatisfied with the response. She took related actions, such as making freedom of information applications, and became further dissatisfied.

2. [23]

   Ms Brown posted a number of "blogs" concerning her complaints. The blogs concerned her perception of the performance and professionalism of staff at the ITSA. These became publicly available via the internet. She had previously been warned by an email sent by the National Manager of the ITSA in October 2009 that communications that she had been sending up until that time by email to ITSA staff were considered offensive.

3. [24]

   The blogs that were the subject of the seven charges were posted between 16 October 2010 and 26 January 2013.

4. [25]

   The primary judge provided the following sanitised description:

The judgment

1. [26]

   The judgment of the primary judge was accurately and usefully summarised in the written submissions by counsel for the respondent as follows:

2. [27]

   It is not apparent that there was any misunderstanding by the judge of her task; any failure to take into account a necessary matter; or taking into account a matter that she was forbidden to take into account. The decision made was within the limits of her functions and power concerning which her Honour was under no misapprehension.

Ms Brown's argument

1. [28]

   The essence of the complaint that permeates the entire case Ms Brown seeks to make in this Court is that there have been errors in the construction of the relevant provisions of the Criminal Code by the New South Wales Court of Criminal Appeal in Monis v R and by the High Court of Australia in Monis v The Queen. In short, errors were made in those Courts which the District Court judge was bound to apply. For example, in the written submissions concerning Ground 1, Ms Brown stated (at [25]):

2. [29]

   In the written submissions concerning Ground 14 she said (at [95]):

3. [30]

   Complaints in similar form are expressed repeatedly throughout Ms Brown's very lengthy written submissions.

4. [31]

   A variety of ancillary issues were raised in respect of the various grounds. For example, Ground 19 alludes to an issue of procedural fairness, perhaps the closest Ms Brown came to raising something relevant to jurisdictional error, but the argument presented in her submissions concerned an asserted error on the part of the primary judge in her approach to the construction of the statutory provisions. For example, in her written submissions at [150] she stated:

5. [32]

   Ms Brown made it abundantly clear at the outset of the hearing in this Court that the multitude of complaints she sought to raise in relation to the disposition of her appeal in the District Court all flowed from her pivotal argument that the decisions of the Court of Criminal Appeal and the High Court are erroneous. These complaints extended to an attempt to raise an issue about the constitutional validity of the statutory provision. She contended in written submissions, and confirmed orally, that her point in that regard was that the statute conformed with the Constitution when correctly construed "but the profoundly atrocious statutory construction [by the High Court] exceeds it".

Error in following decisions of the Court of Criminal Appeal and the High Court?

1. [33]

   I do not accept that the judge was in error in any of the ways for which Ms Brown contends in applying the same construction to s 474.17 as was applied by the Court of Criminal Appeal and the High Court to s 471.12.

2. [34]

   The decision of the High Court in Monis v The Queen involved a 3:3 split which meant that by virtue of s 23(2)(a) of the Judiciary Act 1903 (Cth) the decision of the Court of Criminal Appeal in Monis v R was affirmed. The split came at the point of determining the second limb of Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520. What was affirmed by the 3:3 split was the decision of the Court of Criminal Appeal as to the constitutional validity of s 471.12. However, a majority (French CJ at [59]; Hayne J at [90]-[91]; Crennan, Kiefel and Bell JJ at [338]) approved the construction of "offensive" for the purposes of s 471.12 of the Criminal Code adopted by the Court of Criminal Appeal (per Bathurst CJ at [44], Allsop P agreeing at [83]) in Monis v R.

3. [35]

   Accordingly there was no error in the primary judge applying what was said concerning the construction of s 471.12 (and hence s 474.17) in the decisions of the Court of Criminal Appeal and of the High Court.

Conclusion

1. [36]

   Nothing Ms Brown has raised establishes jurisdictional error in any form in the manner in which the appeal proceedings in the District Court were heard and determined.

2. [37]

   Proceedings for judicial review of a decision must be commenced within three months of the date of the decision: r 59.10, Uniform Civil Procedure Rules 2005. In this case the decision was given on 20 May 2015 and the summons was filed on 13 July 2016. Ms Brown provided some explanation and, although it is less than complete, the respondent did not oppose an extension of time being granted.

Orders

1. [38]

   I propose the following orders: