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

---

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.

---

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Clubb v Edwards

Details

AGLC: Clubb v Edwards [2020] VSC 49
Case: [2020] VSC 49
Decision Date: 19 February 2020

CaseChat Overview and Summary

The appeal in Clubb v Edwards involved the appellant challenging the decision of the Magistrates’ Court, which found him guilty of an offence under the Public Health and Wellbeing Act 2008. The specific offence pertained to communication in relation to abortions within a safe access zone. The appellant's contention was that the Magistrate had erred in finding him guilty beyond reasonable doubt and in concluding that there was a communication 'in relation to abortions'. The core legal issues before the court were whether the Magistrate was correct in concluding that the actus reus was established and whether the correct legal test was applied regarding the distress or anxiety caused to others.

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