SD v Bapple 2025 Crim 135
SD v bapple0775 [2025] Crim 135
| Date of judgment | 1st January 2026 |
| Judge | Judge Ferris |
| Charges |
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| Verdict |
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| Sentence | 3 month ban |
| Applicable persuasive precedent |
JUDGMENT by Judge Ferris
Summary of Facts
[1] The admitted evidence shows the defendant calling the victim (Nolan ID: 936848029179326474) several profanities and a “fucker shit head nig” spread out over 2 days on a foreign polsim, GoldenFlower Republic (GFR).
[2] The defense admitted a screenshot showing the victim claiming that the defendant, among other users, is a member of a proscribed organisation known as TIDE (See SD v Pretzel 2025 Crim 80 [9]).
Procedural Notes
[3] The defense extensively argued on alleged perjury in the criminal complaint and motioned to dismiss the case in full based on this. The court found that perjury, even if proven, is not grounds to dismiss a case but rather a matter to be referred to a competent authority for prosecution and other appropriate measures.
Summary of Arguments
[4] The prosecution argues that the defendant used profanities and abusive language against the user nolan (936848029179326474) and acted recklessly with intention to cause apprehension repeatedly over an extended period of time.
[5] The prosecution brings forth the charge of hate speech on the defendant’s usage of “nig” and alleges that it is a variation of the n slur.
[6] The defense argues that the prosecution has failed to prove “nig” to be a shortened form of the n slur and there are many words which start with “nig”. Additionally, they argue that the usage of mere profanities cannot possibly meet the standard required by Article 18 §3.1 of the Constitution as well as the fact that the alleged harassment was justifiable. The court notes that this argument was mirrored and accepted in SD v Mythrows 2025 Crim 51
[7] The prosecution cites In re ROA to show that the freedom of speech protections do not apply in this case.
[8] The defense concedes that on the charge of hate speech, the word is more likely than not a slur, however it must still be proven as well as lack of intent to upset, demean or humiliate. They then argue on the charge of harassment, stating that the prosecution did not prove harm caused to the intent and hence failing to meet constitutional requirements cited in [6].
Considerations
On Harassment,
[9] The evidence clearly shows that the messages were aimed at a specific person and profanities exist with the purpose of offending someone. As the prosecution rightly points out In re ROA states that this is not a legitimate form of expression and hence not protected. So we shall ignore SD v Mythrows since it derives its doctrine from the very protection we just established does not apply.
[10] Now we turn towards the criminal code. Note that it has been amended since and the link is the version that was in effect.
[11] The prosecution attempts to satisfy the first element of harassment, “Caused a person or group of persons to feel undue or unjustifiable apprehension, alarm, or distress” by pointing to the message from the victim expressing willingness to prosecute the defendant on another server.
[12] Alarm is defined as “an anxious awareness of danger.” Distress is defined as “extreme anxiety, sorrow, or pain.” and apprehension is defined as “anxious or fearful that something bad or unpleasant will happen.”
[13] So does a person wanting to prosecute someone meet any of these ? Absolutely not. Direct evidence of apprehension, distress or alarm is required to meet this bar and inferring it from a single message simply doesn't meet the standard of beyond a reasonable doubt.
On Hate Speech
[14] While the defense provided several words starting with “nig” none of them actually make sense in that statement and are simply idiotic to believe are the expansions. The word is quite clearly a noun in that case and “fucker shit head night” makes no sense.
[15] While the defense argues that harm must be proven, [9] shows that these constitutional protections do not apply.
[16] Where even the defense has accepted that it refers to the n word (later on in the trial) the court must recognise that a slur satisfies the first element of the actual posting of hate speech under §2.1 of the criminal code.
[17] The usage clearly refers to a person’s protected characteristic and the word is demeaning in and of itself. Hence intent is satisfied
Sentencing
[18] The prosecution alleges the aggravating factors of intent and the repeated counts of messages as well as the need for public deterrence.
[19] The defense did not present any factors.
[20] The Sentencing Act grants the court discretion over what sentencing principles it may take into consideration. Given intent is a part of the crime, we shall not take it into consideration. The repeated messages of alleged harassment cannot be used as an aggravating factor for hate speech.
Verdict
[21] The defendant is found guilty on the charge of hate speech and not guilty on harassment. They shall serve a ban of 3 months