Forget losing his Wallaby jersey, Beale could be in real legal trouble

Kurtley Beale will face an independent code of conduct tribunal next week over ARU allegations he sent “highly inappropriate and deeply offensive text messages and images to a number of people”.

The independent tribunal will be headed up by district court judge Mark Williams SC. Lawyers for both the ARU and Beale are expected to submit written arguments by the end of this week.

Given the statements by the ARU and the fact that they’ve appointed a district court judge to chair the tribunal, they obviously consider the matter to be serious.

Rather than focus on personal views on the subject I want to look at how serious the allegations are under Australian laws. Given that the next steps in this matter will largely be decided on by a district court judge based on the legal position, this might give us a better understanding of what might happen next week.

I’ll try not to make this too legalistic so I’ll paraphrase where I can based on decisions that have been made by various courts.

There are two aspects I’ll consider here – possible criminal charges and then possible sexual harassment charges.

Possible criminal charges
Section 474.17 of the Commonwealth Criminal Code Act makes it a criminal offence punishable by up to three years in prison if a person:

• uses a telephone service to send a text, e-mail or make a phone call; and
• does so in a way that reasonable persons would regard as being, in all the circumstances, menacing, harassing or offensive.

There doesn’t seem to be any argument about the first part of that test.

The second part is more complicated but given that it’s been reported that Beale sent the texts to Di Patston by mistake and only once, it’s hard to see how his actions were menacing or harassing.

The issue would then be whether the texts were offensive. Again, personal views aren’t all that relevant here as this issue has been considered by various courts all the way to the High Court of Australia.

In 2013 the High Court heard an appeal against a decision in the New South Wales Supreme Court which considered, among other things, what ‘offensive’ means under the Criminal Code, and the High Court rejected the appeal. The reference is Monis v The Queen [2013] HCA 4 if you want to get into more detail.

Although this case concerned offensive material sent by post, the issue of what ‘offensive’ meant was covered in detail. Given the High Court is the highest court in the land, several precedents were set by this case that courts around the country must now follow.

There were two important statements in the High Court judgement on what is ‘offensive’.

The first was “For consistency, to be ‘offensive’, a communication must be likely to have a serious effect upon the emotional well-being of an addressee.”

The second was “One would expect such a communication to be likely to cause a significant emotional reaction or psychological response. The former may range from shock through to anger, hate, disgust, resentment or outrage, and the latter may include provocation, anxiety, fearfulness and insecurity. Communications with such serious effects may be contrasted with those which cause mere hurt feelings.”

In summary a message is not necessarily offensive just because it may cause feelings to be hurt.

Since the decision of the High Court last year there has been an appeal heard in the Queensland District Court regarding an allegedly offensive telephone call under the same section of the Criminal Code that I’ve referred to. There may be other cases in the system but they haven’t been reported yet.

The woman who was charged was alleged to have rung a police station and made offensive statements to the woman who answered the phone. The worst was “you f*****g fat bitch.” She was found guilty of the charge in the local court.

She then appealed that conviction and claimed among other things in her appeal that she didn’t mean to offend anyone, that there was ‘history’ between the two women, she was being victimised, the woman receiving the call had gossiped about her, and she was stressed at the time of the phone call.

The Queensland District Court followed the precedent set by the High Court and rejected the appeal, finding that the use of those words would be offensive to most reasonable people and that even if the other circumstances did exist, they didn’t justify the use of those words.

In Beale’s case, the Daily Telegraph has alleged that in one of his texts he sent a photo of an overweight, nude woman labelled “Di” and a further text with a similar photo that said: “Di who wants a go f*****g this?”.

It is claimed by many that he sent the message to Di Patson accidentally and therefore didn’t mean to offend her, as well as there being other circumstances surrounding the team at the time which should be considered in determining how serious the matter is.

Those arguments are very similar to those a court of appeal has already considered and rejected by referring to the High Court precedent.

If it were your mother, wife, sister or daughter that had been the subject of those alleged texts would you, as a reasonable person, expect them to feel shock through to anger, hate, disgust, resentment or outrage?

Possible sexual harassment charges
The second matter to consider is the Sexual Discrimination Act 1984 which defines ‘Sexual Harassment’ as when a person:

• makes an unwelcome sexual advance, or an unwelcome request for sexual favours; or
• engages in any unwelcome conduct of a sexual nature.

There has been no suggestion that Beale’s actions consisted of a sexual advance but given what he is alleged to have sent they may be considered unwelcome conduct of a sexual nature.

Under the Sexual Discrimination Act one of the tests that must be considered is also whether a reasonable person, having regard to all the circumstances, would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated.

Again, had your mother, wife, sister or daughter been the subject of those alleged texts would you, as a reasonable person, expect them to be offended or humiliated?

A person who sexually harasses someone else is primarily responsible for their behaviour. However, if Beale has committed sexual harassment in the workplace the ARU could also be sued for sexual harassment unless they can show they took steps to prevent the sexual harassment from occurring.

No doubt Judge Williams will be well aware of the law and cases relating to similar incidents so will take these other circumstances into account, but given the precedents established in the other recent cases, Beale could be facing some serious trouble.

If Judge Williams finds that Beale’s actions justify him being charged under the Criminal Code, being sacked by the ARU and facing a charge of sexual harassment could be the least of his problems.