Bluett v Popplewell
[2018] ACTMC 2
•9 March 2018
MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Bluett v Popplewell & Ors |
Citation: | [2018] ACTMC 2 |
Hearing Date(s): | 6, 7 and 8 November 2017 and 16 February 2018 |
Last Submissions: | 16 February 2018 |
DecisionDate: | 9 March 2018 |
Before: | Magistrate Theakston |
Decision: | The charges against each defendant, namely CC17/2715, CC17/2721 and CC17/2722, are dismissed. |
Category: | Decision |
Catchwords: | CRIMINAL LAW – prohibited behaviour – meaning of “protest by any means” – silent prayer – protected area – whether or not silent prayer is a form of protest – elements of offence – physical and fault elements – default fault elements – charges sufficient in law CONSTITUTIONAL LAW – breach of implied freedom of political communication – offence provision invalid EVIDENCE LAW – tendency evidence – context evidence |
Legislation Cited: | Criminal Code (Cth) ss 5.6, 11.5 (2) Criminal Code 2002 (ACT) ss 22 (1) – (2) Evidence Act 2011 (ACT) s 97 Health Act 1993 (ACT) ss 85 (1) – (2), 86, 86 (2) (a) - (b), 87 (1) Health (Protected Area) Declaration 2016 (No 2) Judiciary Act 1903 (ACT) s 78 B Legislation Act 2001 (ACT) ss 43, 139, 192 (2) Magistrates Court Act 1930 (ACT) s 27 (2) Magistrates’ Court Act 1989 (Vic) s 27 (1) |
Cases Cited: | Brown v Louisiana 383 U.S. 131 (1996) Brown v Tasmania [2017] HCA 43 Burridge v Chief Magistrate of the Magistrates Court of the ACT [2016] ACTSC 332 Coleman v Power (2004) 220 CLR 1 Collinson v Travis [2017] ACTMC 20 DPP v Kypri [2011] VSCA 257 Elomar v R [2014] NSWCCA 303 HML v The Queen (2008) 235 CLR 334 Hughes v The Queen [2017] HCA 20 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 Li v The Chief of the Army [2013] HCA 49 Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 Nowak v R [2008] NSWCCA 89 Peterson; Ex Parte Brick & Pipe Industries Ltd (1994) 76 A Crim R 291 R v LK 241 CLR 177 Roach v R (2011) 242 CLR 610 Widgee Shire Council v Bonney (1907) 4 CLR 977 |
Parties: | Grant Bluett (Informant) John Joseph Popplewell (First Defendant) Kenneth Clancy (Second Defendant) Kerry Bronterre John Mellor (Third Defendant) |
Representation: | Counsel Mr J Walker (Informant) Mr J Purnell SC, Mr G Mansfield, Ms A Irving and Ms K Musgrove (First, Second and Third Defendant) |
| Solicitors Director of Public Prosecutions (Informant) O’Connor Harris & Co Barristers and Solicitors (First, Second and Third Defendant) | |
File Number(s): | CC 2715 of 2017 CC 2721 of 2017 CC 2722 of 2017 |
MAGISTRATE THEAKSTON:
Background
For many years a group of individuals has gathered on Friday mornings outside the ACT Health Building located on Moore Street Canberra City. They have done so due to their beliefs about abortion. In 2016, the Health Act 1993 (ACT) was amended to create an offence at s 87(1) of, amongst other things, protesting by any means in relation to the provision of abortions during a ‘protected period’ within a ‘protected area’. A protected area was declared around the ACT Health Building. A subsequent declaration increased the size of that protected area.
The three defendants have been charged with committing the above offence on 3 February 2017. A hearing was conducted before me in November 2017 and February 2018.
I have found each of those offences not proved. These are my reasons why.
It was not in dispute that the three defendants were within the protected area during a protected period on the morning in question. There is also no contest that the defendants held strong beliefs about the issue of abortion and were present because of those beliefs. There are, however, disputes about the following issues:
(a)What are the elements of the offence?
(b)Were the charges sufficient in law?
(c)Is the offence provision invalid because it impermissibly breaches the implied freedom of political communication?
(d)Is the declaration of the protected area invalid?
(e)Did the actions of the defendants fall within the meaning of ‘protest, by any means’?
Prior to addressing each of those issues I will first describe the uncontested facts in this matter. At the end of these reasons I will also give brief reasons for an evidentiary ruling I made during the hearing. I also adopt the principles I described in Collinson v Travis [2017] ACTMC 20 at [4] – [10].
Uncontested facts
The following were uncontested facts, and I find accordingly:
(a)For some years on most Friday mornings between 8 am and 9 am, a group of individuals conducted a prayer vigil proximate to the front entrance of the ACT Health Building located at 1 Moore Street, Canberra City. That prayer vigil was accompanied, at times, by items that included, an image of the Blessed Virgin Mary, a crucifix and a box containing a model of an unborn foetus.
(b)Each of the defendants had participated in those prayer vigils.
(c)The Mary Stopes International Clinic is located on Level 1 of the ACT Health Building, and is an approved medical facility for the carrying out of abortions.
(d)Following the introduction of the offence at s 87(1) of the Health Act and the declaration in March 2016 of a protected area around the ACT Health Building, the prayer vigil moved to the footpath outside of PJ O’Reilly’s Irish Pub. That location was diagonally opposite from the ACT Health Building, across an intersection.
(e)At about 8:30 am on 3 February 2017, a day that the clinic was open and following the declaration of a larger protected area around the building, each of the defendants were located within that protected area.
(f)The defendants each walked along the footpath immediately outside the building, with the defendant Mr Clancy also having sat down on a public bench adjacent to the building while holding a set of rosary beads. The defendants were engaged in silent prayer.
(g)Each of the defendants did what they did outside the ACT Health Building on that morning because of their opposition to the carrying out of abortions within that building.
What are the elements of the offence?
Each defendant has pleaded not guilty to a charge of contravening s 87(1) of the Health Act. That subsection provides:
(1) A person commits an offence if the person –
(a) is in a protected area; and
(b) engages in prohibited behaviour.
Maximum penalty: 25 penalty units.
The prosecution has particularised the prohibited behaviour by reference to para (c) of the definition of ‘prohibited behaviour’ at s 85(1) which reads:
a protest, by any means, in the protected period in relation to the provision of abortions in the approved medical facility.
Protected period is defined relevantly at s 85(2) as being:
The period between 7 am and 6 pm on each day the facility is open.
Applying the default fault elements, as required by s 22 of the Criminal Code 2002 (ACT), the offence would therefore have the following elements:
(a)the defendant was in a protected area, and
(i)was reckless as to that circumstance;
(b)the defendant engaged in a protest, by any means, in relation to the provision of abortions in the facility, and
(i)did so intentionally in relation to that conduct; and
(c)the defendant did so between 7:00 am and 6:00 pm on a day the facility was open, and
(i)was reckless as to that circumstance.
11. It was submitted on behalf of the defendants that the above fault elements were not applicable. This appeared to be on the basis of a particular reading of s 22 of the Criminal Code 2002 and a particular view of the physical elements. That is, s 22(1) only applies when the physical elements (plural) are ‘only of conduct’ and s 22(2) only applies when the physical element (singular) consists of a circumstance or a result. As I understand the submission, in this case the physical elements were more than just conduct and therefore s 22(1) could not apply and because the physical element of ‘protest by any means’ was not a circumstance or a result, s 22(2) could not apply.
12. I do not accept those submissions. The High Court, in Li v The Chief of the Army [2013] HCA 49 at [27] and [28], considered the default fault elements that would apply to the expression of ‘creates a disturbance’. Rather than characterise that expression as a single physical element, the court characterised it as describing the physical element of ‘creates’, which consists of conduct, and the physical element of ‘a disturbance’, which consists of a result. The court then decided that the default fault elements of intention and recklessness should apply correspondingly to those separate physical elements. The decision is authority that when considering the application of the default fault elements, as provided by s 5.6 of the Criminal Code (Cth), the physical elements are considered individually and default fault elements are applied discretely to individual physical elements. It is also authority that legislative expressions, even very short expressions, may contain more than one physical element. That principle must also apply to the similar provisions contained within the ACT’s Criminal Code 2002.
13. In the instant case, it was submitted on behalf of the prosecution that the references to ‘in the protected period’ and ‘approved medical facility’ within s 85 of the Health Act were epexegetical in nature. That is, those terms only clarify physical elements that were articulated elsewhere, and therefore did not have corresponding fault elements.
14. The term ‘epexegetical’ was used by the majority in R v LK 241 CLR 177 at [132] and [133], when characterising the additional requirements applicable to an agreement in relation to the Commonwealth offence of conspiracy. Of note, the High Court did not characterise each of the three requirements contained at s 11.5(2) of the Criminal Code in that same way. It did so only for the first two requirements because those requirements did not introduce any additional requirement consisting of conduct, circumstance or result. In contrast, the third requirement was characterised as a physical element of the offence because it introduced a factual matter stated as a condition required for guilt. That factual matter was described as a circumstance, or possibly a result. The High Court went on to apply the default fault element of recklessness to that physical element.
15. In the instant case, the legislation requires the protest to occur within the protected period. That is, between 7:00 am and 6:00 pm on a day the facility is open. That requirement is not redundant due to an equivalent requirement arising elsewhere within the legislation. I see no basis to ignore it as a factual matter stated as a condition of guilt. I also see no reason not to apply s 22(2) of the Criminal Code 2002 and to therefore include the corresponding default fault element of recklessness.
16. In relation to the expression ‘approved medical facility’, the existence of the same is a precondition for the declaration of a protected area: s 86. The expression is also used as a point of reference when defining the expression ‘protected period’ and each of the five alternative meanings for the expression ‘prohibited behaviour’. In such circumstances I accept references to those expressions do not, of themselves, create a separate matter stated as a condition of guilt and therefore a separate physical element.
17. It was also submitted on behalf of the prosecution that it did not need to prove any fault element in relation to ‘protected period’ because it was also epexegetical in nature. However, it is clear from a reading of ss 85 and 87 of the Health Act that the timing of the defendant’s conduct is a factual matter stated as a condition of guilt. It is not elsewhere required and therefore I see no basis to ignore it as a physical element or to not include the corresponding default fault element.
Were the charges sufficient in law?
The offence under s 87(1) operates in an ambulatory way as described by Nettle JA in DPP v Kypri [2011] VSCA 257. That is, the description of the acts that comprise the offences created by s 87(1) is informed from another section of the Act, namely s 85(1), where ‘prohibited behaviour’ is defined. Incidentally, because s 85(1) essentially defines five different forms of prohibited behaviour, there are possibly five different offences created by s 87(1). This structure is not uncommon within modern regulatory provisions that create duties within one part of the legislation and then provide sanctions for the breach of those duties within other parts of the same Act.
The charges were initially formulated without pleading which form of prohibited behaviour was alleged. They read:
Contravened 87(1) of the ACT Health Act 1993
That he, in the Australian Capital Territory, on 3 February 2017 engaged in prohibited behaviour in a protected area.
Before the commencement of the hearing and following an application by the prosecution, they were each amended to read:
Contravened 87(1) of the ACT Health Act 1993
That he in the Australian Capital Territory, on 3 February 2017 being in a protected area engaged in prohibited behaviour.
Unfortunately that amendment did not include a pleading as to which form of prohibited behaviour was alleged. I raised this with the parties prior to the commencement of the hearing and before the expiration of the limitation period imposed by s 192(2) of the Legislation Act 2001. The common position of the parties was that the description within the charges were fair as the prosecution had separately particularised the type of prohibited behaviour, as I have described above, and the description was otherwise sufficient in law because of the operation of s 27(2) of the Magistrates Court Act 1930 as described in Burridge v Chief Magistrate of the Magistrates Court of the ACT [2016] ACTSC 332.
Section 27(2) of the Magistrates Court Act provides:
The description of any offence in the words of the Act, ordinance, law, order, by-law, regulation, or other instrument creating the offence, or in similar words, is sufficient in law.
In Burridge, Mossop J considered two competing interpretations of the application of that provision. The first was that notwithstanding the words of the provision it was still necessary to accompany the description of the offence with particulars of the acts relied upon as constituting the offence. The second was that such a requirement was not necessary to provide the jurisdictional basis for the court to hear the charge, but additional particulars may need to be disclosed separately for the purpose of natural justice. Mossop J stated his conclusion at [76] when he said:
This means that the description of an offence in an information is sufficient in law if it adopts the words of the statute creating the offence or similar words. Any requirement for further particulars may be necessitated by the rules of procedural fairness, but the absence of those particulars from the information itself does not render the charge a defective one.
The offence in Burridge was not ambulatory in nature, and for that reason that decision may be distinguished. The offence in Kypri was ambulatory in nature, and the Victorian equivalent to s 27(2) was applicable, namely s 27(1) of the Magistrates’ Court Act 1989 (Vic). The Victorian Court of Appeal held at [15] that in the circumstance of an ambulatory offence the provision did not apply so as to negate the requirement to identify the particular obligation which is alleged to have been breached.
In Peterson; Ex Parte Brick & Pipe Industries Ltd (1994) 76 A Crim R 291 Gallop J observed at 298:
… it is now trite law that a magistrate has no jurisdiction to convict a person except for a statutory offence and it is contrary to natural justice to convict a person of a statutory offence with which he has not been charged. Hence, in order to support a conviction for an offence it is necessary either that the information and summons upon which it is based should accurately state the acts necessary to constitute all the ingredients of that offence, or else if they do not, that the accused person should have been accurately charged orally before the magistrate and should have raised no objection to the absence of information or summons. The legislation does not enable a magistrate to convict of an offence upon an information which discloses no offence …
Accordingly and on reflection, I now have reservations about whether the charges, as finally amended, disclose an offence and whether or not I have jurisdiction to record convictions against the defendants. However due to findings made elsewhere I have not made a final determination on this point. I also note that there is no suggestion that the defendants were not afforded natural justice in relation to the charge they faced.
Is the offence provision invalid because it impermissibly breaches the implied freedom of political communication?
The defendants caused notices in relation to this issue to be issued to the various Australian Attorneys-General as required under s 78B of the Judiciary Act 1903. No state or territory sought to intervene.
Legislation may be invalid if it burdens the implied freedom of political communication contrary to the system of government prescribed by the Australian Constitution. The High Court has, across a number of authorities, provided an evolving formulation of the test to be applied when considering this issue. In essence it involves a threshold question of whether the implied freedom is effectively burdened, and if so, are both the purpose and means of such burden compatible with the prescribed system of government. In short, the test requires a consideration of the ‘what’, the ‘why’ and the ‘how’ in relation to that burden.
I accept the prosecution submission that following Brown v Tasmania [2017] HCA 43, the test established in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, and as modified by Coleman v Power (2004) 220 CLR 1 can be described as follows:
(a)First question – Does the law effectively burden the freedom in its terms, operation or effect?
(b)Second question – Are the purposes of the law legitimate, in the sense that they are compatible with the maintenance of the constitutionally prescribed system of government?
(c)Third question – Is the law reasonably appropriate and adapted to advance that legitimate object?
The second and third questions are only pertinent if the first question is answered in the affirmative. In that event the second and third questions would both also need to be answered in the affirmative for the law to be valid.
Determination of the last question may be assisted by the consideration of the following assessments:
(a)Suitability – Is the law rationally connected to its purpose, by being capable of achieving that purpose?
(b)Necessity – is there not a less restrictive alternative, which is obvious and compelling, and capable of achieving the purpose as completely and effectively as the law in question?
(c)Adequate in balance – Is the law not grossly disproportionate to, or far beyond, what is reasonably necessary to achieve its legislative purpose?
The consideration of the above test involves a systemic inquiry. That is, the inquiry involves the consideration of the effect of the law systemically, and not necessarily restricted by the facts arising from the, or any, particular case. Put another way, the questions focus on the conceivable effects of the law, rather than the actual effects arising in the particular case. Of course an example of what has occurred would inform what is possible.
First question
In the instant case, the offence prohibits the protest about abortion in the vicinity of a clinic that provides services for such a procedure. Abortion is a divisive subject that often provokes the expression of strong polarised views. Those views are not infrequently voiced in the context of proposed legislative change or questions of funding by the Executive. That context clearly falls within the mandated system of representative and responsible government.
The prosecution conceded that, notwithstanding the offence creating a restriction limited by time, place and possibly manner, it is likely to be sufficient to effectively burden the implied freedom of political communication. I agree with that concession and note additionally that within Brown reference was made to the significant communicative power of ‘onsite protests’ when compared to alternative forms of protest: see [191], [193] and [240]. Accordingly, I find that the first question is answered in the affirmative.
Second question
The defendants concede that the purpose of the offence may be accepted as compatible with representative democracy. That purpose is disclosed within the Explanatory Statement, Health (Patient Privacy) Amendment Bill 2015, which reads relevantly:
The importance of the purpose of the limitation
The limitation to this right is intended to ensure that a person can access health services that the community and the Legislative Assembly have deemed both legal and necessary, free from the unjustified interference of others. It is intended to ensure that women who have made a very difficult, significant and emotional decision, and/or as a result of medical advice, are able to exercise that choice unimpeded. The decision to seek a pregnancy termination often places a woman in a vulnerable position. Harassment or intimidation by a gathering of people opposed to the procedure may influence a woman to avoid visiting the clinic, or undertaking the medical procedure which, in some cases, may even threaten her emotional or physical health. “Counter” (pro choice) protests also bring increased attention to the facility and the procedures performed within, which could similarly concern a person seeking to access them.
One of the mandatory considerations applicable to the Minister’s decision about declaring a protected area also illuminates the purpose of the restriction. Section 86(2)(b) of the Health Act requires that any area declared by the Minister be:
sufficient to ensure the privacy and unimpeded access for anyone entering, trying to enter or leaving an approved medical facility.
Those purposes, of facilitating access to medical services free of harassment, intimidation and protests, and ensuring privacy for anyone entering or leaving the facility cannot, of themselves, impede the proper functioning of representative and responsible government and all that it entails. Accordingly, I find the second question is answered in the affirmative.
Third question
The restriction on protests in the vicinity of the facility is rationally and patently capable of achieving the above described purposes. That restriction directly addresses one of the concerns giving rise to the purposes. In that way the law is suitable.
The defence have not proffered, and I am not aware of, a less restrictive alternative that is obvious and compelling and capable of achieving the above purposes as completely and as effectively. In relation to preventing the consequences of protests, namely the impact on access to the facility and the privacy for those who attend the facility, the prohibition of protests relating to abortions is necessary.
The next assessment is the balance between the public interest in facilitating appropriate access while ensuring privacy, and the restriction on the freedom to protest. Importantly, that restriction has a number of limitations. Currently, it only applies between 7 am and 6 pm on the days a facility is open. It relates to protests specifically about abortion. It only restricts protests within the protected area. The extent of that protected area is limited to an area no bigger than necessary to ensure privacy and unimpeded access for anyone entering or leaving the facility: s 86(2). It does not prohibit anyone from merely being within the protected area during the protected period.
Under the restrictions, protests are still permissible outside the protected area at any time, and within the protected area outside the protected period. In that way the restrictions limit, with appropriate precision, the impact of protests on those who may be attending the facility. In such circumstances I cannot find that the law is grossly disproportionate to, or far beyond, what is reasonably necessary to achieve the legislative purpose.
Accordingly, I find that the law is reasonably appropriate and adapted to advance its legitimate purpose. The third question is also answered in the affirmative.
Consequently, I find that the offence created at s 87(1) of the Health Act (involving protest by any means) and the associated foundation provisions within Part 6 of that Act, are not invalid because they impermissibly breach the implied freedom of political communication.
Is the declaration of the protected area invalid?
The defendants have mounted a collateral attack on the validity of the Health (Protected Area) Declaration 2016 (No 2), being the declaration that defined the protected area as at 3 February 2017. As the area described within that declaration is required for an element of the offence, a successful attack could provide a defence to the charges: Widgee Shire Council v Bonney (1907) 4 CLR 977. The defendants contend the declaration is invalid for three separate reasons, namely: it is bigger than necessary, it was made for an illegal purpose, and the section under which it was made is ambiguous.
The declaration was made under s 86 of the Health Act, which reads:
(1)The Minister must declare an area around an approved medical facility to be a protected area.
(2)In making the declaration, the Minister must be satisfied that the area declared is –
(a)not less than 50m at any point from the approved medical facility; and
(b)sufficient to ensure the privacy and unimpeded access for anyone entering, trying to enter or leaving an approved medical facility; but
(c)no bigger than necessary to ensure that outcome.
Bigger than necessary
The defendants claim that the area declared far exceeds any line of sight from the front entrance and goes further than necessary to protect the privacy of people entering and leaving the building. However that description is not what is required by the considerations provided within s 86. The section mandates that the Minister must declare an area that he or she is satisfied is ‘sufficient to ensure the privacy and unimpeded access’ for anyone attending the facility.
The purpose of the limitation is described within the Explanatory Statement, namely to ensure unimpeded access free of unjustified interference such as a gathering of people opposed to the procedure that may influence a woman to avoid visiting the clinic or undertaking a medical procedure. Consequently, the expression ‘unimpeded access’ must mean access free of any psychological pressure by those opposed to the procedure of abortion, in addition to any physical obstruction.
Not surprisingly there is no reference within the Act to a consideration in relation to any lines of sight from the front door of a facility. Such a requirement would be simplistic and on its own unhelpful. For example, there may be more than one entrance to a facility, and in this case the front door to the facility is on the first floor within a government building. Questions of privacy and unimpeded access are more sophisticated than simple determinations about whether or not a person could be seen at, or could see a protest from, the front door of a facility. Those questions must be informed by how relevant persons would move to and from the facility, and what areas may be visible to them as they undertake such movements.
The Health (Protected Area) Declaration 2016 (No 2) defines an area around the Mary Stopes International Clinic that includes roads, road related areas and the areas of privately and publically owned buildings. While that area is not insignificant and save for two obvious exceptions, it is difficult to see how that area could be reduced and still be sufficient to ensure the privacy and unimpeded access for those entering or leaving the facility. That is because anyone travelling to or from the building would need to travel along either Alinga Street, Moore Street or West Row immediately before entering or immediately after leaving the ACT Health Building.
The first exception is the inclusion of the road and road related areas pertaining to Rudd Street. There is no obvious reason why the area should extend that far and I note that streets of similar proximity in other directions were not included. The exclusion of the other streets creates the unavoidable conclusion that the inclusion of Rudd Street was not necessary to ensure the above outcome.
The second exception is the inclusion of areas involving buildings. Clearly, the buildings do need to be included to some degree. For example, signs displayed on the outside of nearby buildings, or inside but visible from the outside, could impede access. However activities within the buildings well out of sight of anyone moving towards or away from the ACT Health Building could not impede access or compromise privacy.
There are obvious conveniences when including such building areas within the declared area. It allows the declaration to be shorter, simpler and avoids potential uncertainty. However, in its current form the declaration describes an area bigger than necessary to ensure the privacy and unimpeded access for anyone entering or leaving the clinic. The Act requires the Minister to be satisfied that such an area is no bigger than necessary.
I note the presumption of regularity, as described by McHugh JA in Minister for Natural Resources v NSW Aboriginal Land Council (1987) 9 NSWLR 154 at 164 and that reasonable minds may differ: Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 654. However, in the circumstances I have just described and in the absence of any express reasons by the Minister addressing those circumstances, expressed within either the Explanatory Statement to the declaration or the Ministerial Brief endorsed by the Minister on 16 May 16, I am unable to comprehend how the Minister could have been satisfied that the area was no bigger than necessary. Accordingly, I find the Minister made a jurisdictional error when declaring the protected area to the extent that he did.
Section 43 of the Legislation Act 2001 provides that if a provision of a statutory instrument would, but for that section, exceed the power provided by the Act, the provision is valid to the extent to which it does not exceed the power. Accordingly, I find the declaration is valid save for where it purports to apply to the areas pertaining to Rudd Street and the inside of buildings that are well out of sight of anyone moving towards or away from the Mary Stopes International Clinic.
It was submitted by the defendants that the prosecution are bound by their particulars, and the charges were particularised to include the whole area described within the declaration. However, the charges actually pleaded ‘a protected area’ and the prosecution particularised its case precisely in relation to where the defendants were said to have committed the offence. It did so in the application to lead tendency evidence, prior to formally opening its case. Those locations fall within the areas left after the declaration has been read down. Accordingly, there is no issue with natural justice or the element of the offence that the conduct of the defendants occurred within the protected area.
Illegal purpose
The defendants submitted that the second declaration extended the protected area in an attempt to capture the conduct of the defendants that was, prior to that second declaration, legal. I understand that submission to be that such an attempt evidenced the Minister taking into account an irrelevant consideration or making the declaration for an illegal purpose.
The Ministerial Brief, described above, does reference protests occurring after the first declaration. Notwithstanding that reference, the brief invites the Minister to make a new declaration for the purpose of the considerations required by s 86 of the Act and to remove ambiguity.
The existence, location and effect of protests, to my mine, would be a relevant consideration for the Minister when considering whether the original area was sufficient for the purposes mandated under the Act. In fact the Act essentially demands the Minister to consider such issues when assessing sufficiency. Mere reference to the same does not establish the Minister took into account an irrelevant consideration or made the declaration for an illegal purpose.
The section is ambiguous
The defendants submit that the s 86 is ambiguous, in that:
(a)it is silent about any unintended consequence of including private residences;
(b)the considerations conflict with each other; and
(c)the area needs to be not less than 50m at any point from the approved medical facility.
The first submission about private residences is probably misplaced here, and in any event I have addressed it above.
In relation to the second submission, it is true that the considerations listed at s 86(2) may at times complete. However, when read as a whole and with the purpose of the Division, it is unambiguous how they work together. The first consideration sets a minimum size for the protected area, the second consideration describes the purpose of the protected area, and the third requires that area to be no larger than necessary to achieve that purpose, subject to the minimum described in the first consideration. There is no ambiguity about the interplay between those three considerations.
The third submission involves the curious language adopted at s 86(2)(a) that requires the area to be:
not less than 50m at any point from the approved medial facility
A plain reading of that provision could lead to an absurd result that a protected area could not be declared to be immediately adjacent to an approved medical facility. Instead any such area would start not less than 50m from the facility and extend as far as necessary for the purposes described above. That would in effect allow protests and other prohibited behaviour to occur immediately outside the facility but not within the protected area beyond the 50m.
An alternative interpretation is available. That is, for the purposes of s 86(2)(a), the expression ‘area declared’ includes only the outer boundary of the prohibited area. This would allow the protected area to be immediately adjacent to the facility and would yield a result that is consistent with the purpose of the Division. Section 139 of the Legislation Act 2001 requires me to prefer an interpretation consistent with the purpose of the Act when working out the meaning of a provision. The second interpretation is available, it is consistent with the purpose of the Act and I prefer the same.
Accordingly, I find there is no ambiguity within the section of any relevant consequence.
Did the actions of the defendants fall within the meaning of ‘protest, by any means’?
66. The prosecution submitted that the silent prayers engaged by each of the defendants within the protected area during the protected period amounted to ‘protest by any means’. The defendants submitted that it did not.
67. The term ‘protest’ is not defined for the purposes of the Act. The Macquarie Dictionary, Second Edition, defines the term as including:
A formal expression or declaration of objection or disapproval, often in opposition to something which one is powerless to prevent or avoid.
68. The Shorter Oxford English Dictionary, Third Edition, defines the term as including:
To give formal expression to objection, dissent, or disapproval; to make a formal … declaration against some proposal, decision, or action
69. No authority was identified by the parties that defined the term ‘protest’. However, the prosecution referred to High Court examples that, it submitted, confirmed that a protest was more than speaking or using the written word, and extended to actions. It also referred to Nowak v R [2008] NSWCCA 89 at [17] which explained the use of the expression ‘by any means’ served to demonstrate that a very great number of ways or ‘means’ could be used to achieve the subject expression.
70. The first example was Levy v Victoria [1997] HCA 31; (1997) 189 CLR 579 at 622 and 623, where McHugh J stated:
For the purpose of the Constitution, freedom of communication is not limited to verbal utterances. Signs, symbols, gestures and images are perceived by all and used by many to communicate information, ideas and opinions. Indeed, in an appropriate context any form of expressive conduct is capable of communicating a political or government message to those who witness it. Thus, in Brown v Louisiana, the United States Supreme Court held that a silent demonstration on the premises of a public library was constitutionally protected speech for the purpose of the First Amendment. (Footnote removed)
71. In that same decision, Kirby J stated at 638:
A rudimentary knowledge of human behaviour teaches that people communicate ideas and opinions by means other than words spoken or written. Lifting a flag in battle, raising a hand against advancing tanks, wearing symbols of dissent, participating in a silent vigil, public prayer and meditation, turning away from a speaker, or even boycotting a big public event clearly constitutes political communication although not a single word is uttered. The constitutionally protected freedom of communication in Australia must therefore go beyond words.
72. The prosecution noted that in Brown v Louisiana 383 U.S. 131 (1996) the expression under consideration was ‘Protest by silent and reproachable presence’, and involved facts where an African American had gone into a segregated public library and sat down in the company of several others who stood nearby in defiance of being requested to leave.
73. The second example is Brown v Tasmania [2017] HCA 43. In that matter there were two plaintiffs before the High Court, namely Dr Robert Brown and Ms Jessica Hoyts. The defendant claimed that each plaintiff had entered the Lapoinya Forest and remained there despite directions by police to leave. The former was speaking on camera inviting the relevant Minister to protect the forest and the latter was in the company of others. In that matter, the question of whether the plaintiff’s behaviour breached a statutorily defined expression appeared not to be in issue before the court. As summarised by Gordon J, at [301]:
The plaintiffs, Dr Robert Brown and Ms Jessica Hoyt, were each arrested and charged with offences under the Protesters Act in relation to their conduct in opposing the logging of part of a coupe in the Lapoinya Forest in North West Tasmania. While forest operations were being conducted, neither plaintiff was permitted or authorised to re-enter the coupe or the Lapoinya Forest. And it was not in dispute that, but for the Protesters Act, and to the extent permitted by other laws, the plaintiffs would go back to the Lapoinya Forest to see, and raise public awareness of, logging in that forest.
74. The prosecution referred me to a number of extracts from the decision, including where, Kiefel CJ, Bell and Keane JJ stated at [117]:
It can hardly be suggested that the provisions of the Protesters Act referred to above affect the freedom only slightly. This is so even though protests about forest operations may be communicated in other ways. Further, other methods of communication are less likely to be as effective as the communication of images of protesters pointing to what they claim to be damage to the natural environment.
75. In the same decision, Gageler J stated at [191]:
More significant to an assessment of the relevant burden imposed by the impugned provisions is the long history of political protest on Crown land in Australia. Most significant is the history of on-site political protests on Crown land in Tasmania, directed to bringing about legislative or regulatory change on environmental issues, beginning with the protest activity between 1981 and 1983 which preceded enactment of the World Heritage Properties Conservation Act 1983 (Cth). The special case reveals that, since 2006, 37 protests have taken place in Tasmania in areas that have subsequently been granted legislative or regulatory environmental protection. The communicative power of on-site protests, the special case emphasises and common experience confirms, lies in the generation of images capable of attracting the attention of the public and of politicians to the particular area of the environment which is claimed to be threatened and sought to be protected.
76. Again in the same decision, Nettle J stated at [240]:
In the experience of the first plaintiff, on-site protests against forest operations and the broadcasting of images of parts of the forest environment at risk of destruction are the primary means of bringing such issues to the attention of the public and parliamentarians. Media coverage, including social media coverage, of on-site protests enables images of the threatened environment to be broadcast and disseminated widely, and the public is more likely to take an interest in an environmental issue when it can see the environment sought to be protected.
77. I did not understand the defendants to be submitting that protest, by any means was limited to verbal or written communication. I accept that, based on common human experience and the above extracts from the High Court, that communication, objection, dissent and disapproval can, and often are, communicated without words spoken or written. Such messages may be conveyed and disseminated by an unlimited number of corporeal and other physical means, and be in the absence of language.
78. What the above dictionary definitions and High Court extracts all have in common, is the component of communication. That is expressly required by the use of the term ‘expression’ used within the dictionary definitions, and is consistently described within the extracts. Accordingly, the expression ‘protest, by any means’ requires communication, or at the very least the intent to communicate.
79. The prosecution contends that context is critical when interpreting the conduct of the defendants on the day in question. That context included:
(a)Prayer vigils were held proximate to the front door of the facility over a number of years by a group that, at times, included each of the defendants.
(b)Items were displayed during such vigils, and included an image of the Blessed Virgin Mary, a crucifix and an open box containing a model of an unborn foetus.
(c)The defendants admitted that at relevant times they were each opposed to the carrying out of abortions anywhere within the Territory.
(d)Following the introduction of the first protected area, the prayer vigils continued, but were relocated to outside of PJ O’Reilly’s Irish Pub. That location was possibly just outside of the declared area and still within sight of the front entrance to the building.
(e)Following the amendment to the protected area, the defendants attended outside of the building within the protected area and within the protected period, notwithstanding that they were free to pray at other locations and at other times.
80. The defendants contend they were simply engaged in individual private prayer, which was not evident to others, and they therefore were not involved in a protest, by any means.
81. In this matter I am assisted by video evidence depicting the conduct of each defendant on the day in question. Mr Popplewell and Mr Mellor are depicted walking among the pedestrian traffic on the footpath outside the building. They are not obviously carrying any symbols. No religious or political paraphernalia are seen in their possession. They appear to be moving innocuously among the light pedestrian traffic. In fact both men, at times, walk past uniform police, who are questioning Mr Clancy, and those police officers do not look up towards those two defendants. The evidence was that both men were walking silently.
82. Mr Clancy is seen initially walking among the pedestrian traffic before sitting down on a bench adjacent to the building. He has something in his hands, consistent with rosary beads. Evidence was provided by Detective Sergeant Grant Bluett that Mr Clancy was seated with his head bowed and with rosary beads in his hands. While the video briefly depicts Mr Clancy with his head bowed, for the most part he is seated, with his head in a neutral position and looking to his front without engaging those who walk past. I find Mr Clancy sat with rosary beads in his hands, but not with his head continuously bowed.
83. Mr Mellor appears to, at two separate times, very briefly acknowledge Mr Popplewell and Mr Clancy.
84. When I consider all the evidence, and in particular the video evidence that I have described, two features stand out to me in relation to the appearance and movements of these three defendants when outside the building on the day in question. There is the presence of the normal and the absence of the abnormal. They simply do not stand out as participating in any extraordinary activity. They do not even gather. I make these observations cognisant of their previous involvement in prayer vigils and their admitted views about abortion.
85. I accept they were each engaged in silent prayer, and that such prayer involved no component of expression, communication or message to those around them. The only reservation I have in that regard, arises from the presence of the rosary beads in the hands of Mr Clancy. However, the presence of those rosary beads, without any other symbolic display or gesture, leaves me with a significant doubt about whether there was any expression, communication or message by Mr Clancy.
86. Accordingly I find that each defendant was not engaged in protest, by any means.
87. I note out of completeness that the prosecution submitted that there was much significance to the time and place where the defendants chose to pray. That may be the case, but the offence involves the conduct of protest, by any means, and not mere prayer.
Finding
88. I find the offence against each defendant not proved.
Evidentiary ruling
89. During the hearing, the prosecution proposed to call evidence from two witness in relation to events that occurred well before the day of the offences. Those witnesses were:
(a)Mr Dunne, and
(b)Mrs Goron.
90. The evidence was to be led for the purpose of context and admission by the defendants. The prosecution expressly, indicated that it did not call the evidence for a tendency purpose.
91. The defendants objected to the evidence. They had not received copies of statements foreshadowing what the evidence would be, and contended that the evidence was irrelevant, or relevant only for tendency purposes and otherwise inadmissible. The witnesses had not prepared statements.
92. Evidence-in-chief was received from both witnesses within a voir dire and the proceedings were then adjourned to allow the defendants to provide their instructions, counsel to make submissions and for me to rule on the question of admissibility. I ruled that the evidence of Mrs Goron was not admissible, and the evidence of Mr Dunne was admissible, save for the evidence not relied upon by the prosecution from page 43 line 26 of the transcript. These are the reasons for that ruling.
93. I note the nature of tendency evidence as defined at s 97 of the Evidence Act 2011 and confirmed in Elomar v R [2014] NSWCCA 303 and Hughes v The Queen [2017] HCA 20. In short it is evidence of a fact, other than a fact in issue, which provides a foundation for an inference that a defendant had a particular tendency to act in a particular way or have a certain state of mind. That inference is then of rational assistance in assessing the likelihood of a fact in issue within the proceedings.
94. I note the nature of context evidence as described in Roach v R (2011) 242 CLR 610 and HML v The Queen (2008) 235 CLR 334. Context evidence is evidence that is relevant to the proceedings because it either:
(a)assists in the evaluation of other evidence;
(b)explains a statement or event that would otherwise appear curious or unlikely;
(c)provides a context helpful, or even necessary, for an understanding of a narrative; or
(d)ensures that the circumstances in which an offence occurred are intelligible and that the offence does not seem to occur out of the blue.
95. In relation to admissions, they obviously relate to what a defendant has said, that while hearsay – falls within an exception to that rule, and can be relied upon to establish what the defendant did or thought at a particular time.
96. In the instant case I agree with the prosecution’s submissions that Mr Dunne’s evidence does provide context to what is alleged to have occurred. It provides an important historical background to the defendants’ attendances at the ACT Health Building, and the nature and format of their prayers. That context is helpful in that it assists me understand the narrative and explains the actions by the defendants that may otherwise appear peculiar.
97. Further and with some qualification, I agree that parts of Mr Dunne’s evidence, which attributes statements from the defendants, may amount to admissions. Those admissions went to the defendants’ states of mind in relation to particular fault elements. The qualification relates to the form in which that evidence was given and that would affect the weight to be given to such evidence.
98. Mrs Goron’s evidence was much more limited. Ultimately she did not provide any context evidence of any significance, but indicated she knew the defendants and normally saw the defendant’s near the ACT Health Building on Friday mornings when she was leaving.
99. She indicated she had been part of a conversation with the defendants after the legislation took effect about where they stood legally. However, when pressed for any detail she could simply not recall what was said.
Orders
I make the following order: the charges against each defendant, namely CC17/2715, 2721 and, 2722 are dismissed.
| I certify that the preceding one-hundred [100] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Magistrate Theakston. Associate: Sam Lynch Date: 9 March 2018 |
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