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 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 Peterson; Ex Parte Brick & Pipe Industries Ltd (1994) 76 A Crim R 291 |
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…
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- AGLC
- Bluett v Popplewell [2018] ACTMC 2
- Case
- [2018] ACTMC 2
- Decision Date
CaseChat Overview and Summary
The court held that the defendants' silent prayer was not a form of protest, and therefore they had not contravened s 9(1) of the Act. The court also held that the charges against the defendants were not sufficient in law as they did not include the fault element of “intending to cause public alarm, distress or anxiety.” The court further held that the Act was invalid for breaching the implied freedom of political communication. The court held that the Act was not reasonably appropriate and adapted to serve a legitimate end, and that it imposed a burden on the freedom that was disproportionate to the end it was seeking to achieve. The court held that the implied freedom of political communication protected the right to protest, and that the Act went beyond what was necessary to protect public safety.
The charges against each defendant are dismissed. The court found that the defendants' silent prayer was not a form of protest, and that the charges against them were not sufficient in law. The court also found that the Act was invalid for breaching the implied freedom of political communication. The defendants are therefore acquitted of the charges against them.
Orders
Orders of the court
The charges against each defendant, namely CC17/2715, CC17/2721 and CC17/2722, are dismissed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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