Bluett v Popplewell

Case [2018] ACTMC 2


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

  1. 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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Details
AGLC
Bluett v Popplewell [2018] ACTMC 2
Case
[2018] ACTMC 2
Decision Date

CaseChat Overview and Summary

Bluett and Popplewell were defendants in a case brought by the Director of Public Prosecutions for allegedly breaching s 9(1) of the Public Order and Safety Preservation Act 2016. The alleged offence was protesting by any means in a protected area, which was defined in the Act as a place where people would be attending a meeting for public safety reasons. The defendants had silently prayed in a protected area, which was in contravention of the Act. The defendants argued that their silent prayer was not a form of protest, and that the charges against them were not sufficient in law. They also argued that the Act was invalid as it breached the implied freedom of political communication guaranteed by the Constitution. The court had to decide whether the defendants' silent prayer was a form of protest, and whether the charges against them were sufficient in law. The court also had to decide whether the Act was invalid for breaching the implied freedom of political communication.

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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