| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 04498
| KATHLEEN CLUBB | Appellant |
| v | |
| SENIOR CONSTABLE ALYCE EDWARDS and ATTORNEY-GENERAL FOR VICTORIA | First Respondent Second Respondent |
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JUDGE: | Kennedy J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 4 February 2020 |
DATE OF JUDGMENT: | 19 February 2020 |
CASE MAY BE CITED AS: | Clubb v Edwards |
MEDIUM NEUTRAL CITATION: | [2020] VSC 49 |
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JUDICIAL REVIEW AND APPEALS – Appeal from Magistrates’ Court pursuant to s 272(1) of Criminal Procedure Act 2009 (Vic) – Prohibition on communication in relation to abortions within a safe access zone - Circumstantial case - Whether it was open for the Magistrate to find that the appellant was guilty beyond reasonable doubt – Whether open to find there was a communication ‘in relation to abortions’ – Alleged failure of Magistrate to make a finding as to actus reus not established – Whether wrong test was applied re distress or anxiety – Where error clearly did not affect the result – Appeal Dismissed - Public Health and Wellbeing Act2008 ss 185A, 185B, 185C, 185D - Clubb v Edwards; Preston v Avery [2019] HCA 11; 366 ALR 1 applied – DPP v Mariona [2019] VSCA 107 considered – Engebretson v Bartlett (2007) 16 VR 417 applied.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr B Walmsley QC with Mr C Brohier | Khor & Burr Lawyers |
| For the First Respondent | Mr T Goodwin | Ms A Hogan, Acting Solicitor for Public Prosecutions |
| For the Second Respondent | No Appearance | - |
HER HONOUR:
The appellant appeals to the Court under s 272(1) of the Criminal Procedure Act 2009 (Vic) on a question of law against final orders made on 11 October 2017 by a Magistrate whereby her Honour convicted the appellant for an offence contrary to s 185D of the Public Health and Wellbeing Act 2008 (Vic) (‘the Act’).
By a charge of 4 August 2016 (amended on 2 August 2017) the appellant was charged with the offence that ‘the accused at East Melbourne on the 4/8/16 did engage in prohibited behaviour namely communicating about abortions with persons accessing premises at which abortions are provided while within a safe access zone in a way that is reasonably likely to cause anxiety or distress.’
After the prosecution called evidence on 6 October 2017, the appellant made a no-case submission, which was refused. Following further submissions, on 11 October 2017 the appellant was convicted of the offence and released on an undertaking to be of good behaviour. The appellant did not call any evidence.
By Notice of Appeal dated 8 November 2017, the appellant appealed against her conviction on three grounds.
The first two grounds were removed to the High Court of Australia pursuant to s 40 of the Judiciary Act 1903 (Cth). Thus, the appellant (together with another individual, Mr Preston) challenged the constitutional validity of s 185D of the Act. She submitted that the impugned provision impermissibly burdened the implied…
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- AGLC
- Clubb v Edwards [2020] VSC 49
- Case
- [2020] VSC 49
- Decision Date
CaseChat Overview and Summary
The Court of Appeal considered whether it was open to the Magistrate to find the appellant guilty based on the evidence presented. The court examined whether there was a failure to establish actus reus, which required a communication 'in relation to abortions' to have taken place. The court also assessed whether the Magistrate had applied the correct legal test in determining whether the communication caused distress or anxiety to individuals within the safe access zone. Ultimately, the court concluded that any errors in the application of the legal test did not affect the outcome of the case, given the overwhelming evidence against the appellant.
In reaching its decision, the court referred to previous cases such as Clubb v Edwards and Preston v Avery, which provided guidance on the elements necessary for a conviction under the relevant statutes. The court found that the Magistrate had properly considered the evidence and applied the correct legal principles, despite any minor errors in the articulation of the legal test. Consequently, the appeal was dismissed, and the original conviction was upheld.
The final orders of the court were that the appeal was dismissed and the conviction and sentence imposed by the Magistrates’ Court were affirmed. The appellant was to remain subject to the terms of his conviction as determined by the lower court.
Orders
Orders of the court
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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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