The Vagaries Of Construction Of The Commonwealth Criminal Law Case Analysis

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LW100 Research Essay:

In the article “The vagaries of construction of the carriage service offence in s 474.17 of the Commonwealth Criminal Code” which appears in the Criminal Law Journal, Clive Turner brings to light the lack of legislative definitions applicable to s 474.17 of the Commonwealth Criminal Code Act (CCCA). Turner dissects the structure of s 474.17 of the CCCA and then delves into addressing the definitions of the words “menacing, harassing and offensive”, with reference to previous judgements and cases. This paper will analyse some of Turner’s main viewpoints: 1) The implications of Monis v The Queen on the meaning of ‘menacing, harassing or offensive’ with contrast to prior cases, 2) the application of s 474.17(1) after the
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The reasoning behind this is due to the fact that the vast majority of alleged offenders have pleaded guilty; thus the issue at hand becomes one of sentencing, rather than analysing the application of s 474.17 to the allegation . Turner argues that “the simplicity of the section belies a more complex structure when read in conjunction with the criminal responsibilities set down in the code” .
Monis v The Queen is the primary case referred to by Turner, despite it not explicitly being based on s 474.17. Rather, it is based on s 471.12, a similar piece of legislation which concerns offences using postal or similar services in a way a reasonable person(s) would regard as ‘menacing, harassing or offensive’. Turner uses the judgements from the case to establish an understanding of the meaning behind ‘menacing, harassing or offensive’. Turner contrasts these findings to an earlier judgement within R v Ogawa and then begins to delve into the application of s 474.17 post Monis v The Queen.
The implications of Monis v The Queen (Monis) on the meaning of ‘menacing, harassing, or offensive’:
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Turner uses this decision to contrast the two definitions provided previously, as well as reinforce the magnitude of possible interpretations between R v Ogawa and Monis v The Queen.

The meaning of “harassing” in R v Ogawa:
In contrast to Monis v The Queen, Dr Ogawa was sent to court on a count of ‘harassment’ through her use of emails and a separate count of ‘harassing’ with respect to her telephone calls. The prosecution tendered a document listing the date, time, telephone numbers and duration of each call with particular registry, registrar and judges’ chambers to which the calls had been made . Zero evidence is submitted on the content of the calls. J Durward said:

The word "harass" is defined in the Australian Concise Oxford Dictionary, in the third edition in the following way: to trouble and annoy continually or repeatedly. It does not have a legal

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