SD v Sesruinen 2026 Crim 2
SD v Sesruinen [2026] Crim 2
| Date of judgment | 26th January 2026 |
| Judge | Judge Hmquestionable |
| Charges | 2 charges of Hate Speech (Article 56a of the Criminal Code) |
| Verdict | Not Guilty on both charges of Hate Speech |
| Sentence | N/A |
| Applicable persuasive precedent |
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JUDGMENT by Judge Hmquestionable
Introduction
[1] The charges in this case are for 2 counts of Hate Speech. They read as follows:
- By using the r-slur, the defendant committed hate speech under §2.1. The use of this word is hurtful and upsetting to those belonging to groups whom this word has historically been used to oppress such as neurodivergent peoples. Neurodivergence is a disabling factor and thus is a protected characteristic. The defendant used this word recklessly and without care for the effect it would have on others.
- By using the r-slur, the defendant committed hate speech under §2.1. The use of this word is hurtful and upsetting to those belonging to groups whom this word has historically been used to oppress such as neurodivergent peoples. Neurodivergence is a disabling factor and thus is a protected characteristic. The defendant used this word recklessly and without care for the effect it would have on others, explicitly restating it after being issued a ticket. The defendant had already received and rejected a ticket for Count 1 and clearly understood the weight when he said this word a second time.
[2] These charges involve Article 56a of the Criminal Code, which reads:
§1. A person commits hate speech if they: §1.1. Submit, post, or relay speech that is upsetting, demeaning, or humiliating about a person’s or a group of people’s protected characteristics, and §1.2. Had the intention to upset, demean, or humiliate, or acted carelessly or recklessly as to whether their actions would upset, demean, or humiliate. §2. For the purposes of this Article, a person shall always be considered as submitting, posting, or relaying speech that is upsetting, demeaning, or humiliating about a person’s or a group of people’s protected characteristics if they: §2.1. Use a slur, which is any derogatory or insulting term applied to a group of persons classed by a protected characteristic, or §2.2. Claim to identify as a purported gender with the purpose to upset, demean, or humiliate a person’s or group of people’s protected characteristic. §3. The fact that the upsetting, demeaning, or humiliating speech was not directed to a specific person or group of people is immaterial to establishing criminal liability under this Article. §3.1. The fact that the upsetting, demeaning, or humiliating speech did not subjectively upset, demean, or humiliate a specific person or group of persons is immaterial to establishing criminal liability under this Article.
[3] What is being contested here is whether the Accused “used” a slur, and whether the Accused “used this word recklessly and without care for the effect it would have on others.”. Whether the messages containing the word were sent is not in contest.
Did the Accused “use” a slur?
[4] The first of the Defense’s main points is that the §2.1 statutory presumption cannot be applied in the context of this case. This is because the way in which the Accused has used this slur was “quoting it for social and legal commentary.”.
[5] Exhibit 1 of the evidence shows the Accused saying that “You shouldn’t have troubles for saying the word (r slur removed)’. Exhibit 3 shows the Accused replying to a question of what the r word is with the actual slur.
[6] The Defense reasons that the use of a slur requires it to be directed towards a person, to demean, distress or insult. Hence, proving the §2.1 presumption would require both actus reus and mens rea.
[7] The Prosecution did not actually reply to this point. Instead, they simply assert that the Accused “clearly used the slur”.
[8] I do not find myself agreeing with the Defense. The §2.1 presumption is there specifically to remove the evidentiary burden the prosecution has to prove that the message was there to “upset, demean, or humiliate”, as long as the Prosecution can prove that it is a slur. Requiring proof that the message demeans, distresses or insults a person would negate the effect of the statutory presumption.
Is the R word a slur?
[9] As charged, the R slur insults the characteristic of Neurodivergence, which is not contested. The Court agrees.
[10] Hence, I find that in both cases the Accused used a slur.
Was there reckless disregard?
[11] The Prosecution alleges that the Accused “used this word recklessly and without care for the effect it would have on others.”. The Defense’s position is that the Accused did not act recklessly.
[12] For the purpose of proving reckless disregard, the Prosecution admitted evidence that shows the Accused acknowledging that it was the second time they were being arrested for using the r slur. They hence reason that since the Accused had been arrested before, the slur was being used “without respect to how their actions would upset others”.
[13] Additionally, the Prosecution attempted to draw on statements by the Defense Attorney that the Accused had acted carelessly, which the Prosecution says is the Defense admitting to reckless disregard. The Court rejects this argument. Acting carelessly is not equivalent to acting with reckless disregard with respect to how one’s actions would affect others. Reckless action is a higher degree of disregard than simple carelessness.
[14] The Defense cites SD v Panzzrr [2025] Crim 45 (which is not a real case), and argues that “recklessness must be grounded in the likely effect of the speech in its actual context, not inferred from form or subject matter in the abstract.”. SD v Panzzrr [2025] Crim 45, however, is not a real case. SD v Panzzrr [2025] Crim 54, which the Defense may have been referring to, does not have any reasoning which supports the Defense’s inference. This argument will hence not be considered by the Court. Similarly, the Defense cited SD v changebac [2025] Crim 24 and attempted to reason that it “confirms that hate-speech liability turns on communicative effect and surrounding circumstances, rather than isolated words or technical offensiveness”. However this citation appears to be erroneous as well as the case contains no reasoning to that effect.
[15] However, the Defense later argues in general that there is insufficient evidence for recklessness, since the Accused was using it to express an opinion about the slur. They then say that as the community has grown sufficiently to talk about weird or tough topics, this would have been considered by the Accused before sending the messages.
[16] In Criminal Cases, the Prosecution has the burden to prove the case beyond a reasonable doubt. In this case, they have to prove beyond reasonable doubt that the Accused had said the words with reckless disregard for the effects it would have on others. The only proof that the Prosecution has admitted is that the Accused said that they had been arrested for saying the word before.
[17] For something to have been done with reckless disregard, the Accused must disregard a substantial risk of harm which they know exists (but without knowing for certain that an action will cause harm), and do the action anyway. See, for instance, SD v g470_ [2025] Crim 113 at [25].
[18] However, the Prosecution’s own evidence shows that the Accused did not think that there was a substantial risk of harm in the way that the Accused used the r slur, despite their arrest. The Accused states that “I mean if you call someone [using the R slur] you should but in this case I’m just like acknowledging its existence”. This supports the Defense’s argument about the Accused’s frame of mind when considering whether to send the messages containing the R word, which would have been considering whether the community was able to discuss weird or tough topics. I note that the Defense does not have to prove that this was the Accused’s state of mind. Rather, the only thing the Defense has to do is to introduce reasonable doubt that the Accused had known that there was a substantial risk of harm, which the Defense has done.
Conclusion
[19] Accordingly, as the Prosecution has not proven beyond a reasonable doubt that the Accused acted with reckless disregard, both charges fail. The Accused is hence found Not Guilty of both charges of Hate Speech.
So ordered.
Judge Hmquestionable
Inferior Court