JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATES OF HEARING:	23 August 2012
DATE OF JUDGMENT:	11 September 2012
CASE MAY BE CITED AS:	Magee v Delaney
MEDIUM NEUTRAL CITATION:	[2012] VSC 407
JUDGMENT APPEALED FROM:	Delaney v Magee (Unreported, Magistrates’ Court of Victoria, Magistrate Mealy, 14 February 2011)

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CRIMINAL LAW – Damage to property contrary to s 197(1) of the Crimes Act 1958 – Possessing materials for the purpose of damaging property contrary to s 199(a)(i) of the Crimes Act – ‘Lawful excuse’ – Crimes Act ss 196, 197, 199, 201.

HUMAN RIGHTS – Right to freedom of expression – What constitutes the imparting of information and ideas – Whether public policy considerations limit the right to freedom of expression – Whether damage to the property of others is a protected form of expression – Effect on ‘rights … of other persons’ – Protection of ‘public order’ – Whether damage to property as a means of exercising the right to freedom of expression constitutes a ‘lawful excuse’ for the purposes of ss 197(1) and 199(a)(i) of the Crimes Act – Charter of Human Rights and Responsibilities Act 2006 preamble and ss 1(2), 3(1), 5, 6(1), 15, 20.

STATUTORY INTERPRETATION – Effect of ss 7(2) and 32 of the Charter.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	S Holt with J A Anderson	Victoria Legal Aid
For the Respondent	P Kidd SC with E McKinnon	Office of Public Prosecutions
For the Attorney-General (Intervener)	O P Holdenson QC with J Davidson	Victorian Government Solicitor

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Facts....................................................................................................................................................... 2

Relevant provisions of the Crimes Act........................................................................................... 4

Relevant provisions of the Victorian Charter............................................................................... 5

Magistrate’s decision......................................................................................................................... 8

Grounds of appeal........................................................................................................................... 10

Crimes Act ss 197, 199 and 201: Lawful excuse............................................................................ 10

Victorian Charter s 15(2): Engagement of the right to freedom of expression...................... 12

Was Mr Magee’s conduct capable of imparting information or ideas?.............................. 14
Public policy limits to protected forms of expression.......................................................... 20
Conclusion on whether s 15(2) is engaged.............................................................................. 28

Victorian Charter s 15(3): General observations......................................................................... 28

Victorian Charter s 15(3)(a): ‘The rights of …. other persons’................................................. 30

Is s 15(3)(a) confined to the rights of human beings in the Victorian Charter?.................. 30
Does s 15(3)(a) cover the restrictions in ss 197(1) and 199(a)(i) of the Crimes Act?............ 35

Victorian Charter s 15(3)(b): Protection of ‘public order’.......................................................... 36

Roles and interrelationship of ss 7(2) and 32(1) of the Victorian Charter.............................. 43

Victorian Charter s 32: ‘Interpreted in a way that is compatible with human rights’.......... 46

Victorian Charter s 7(2): ‘Subject … only to such reasonable limits’...................................... 48

Section 7(2): General observations............................................................................................ 49
Section 7(2)(a): Nature of the right............................................................................................ 50
Section 7(2)(b): Importance of the purpose of the limitation................................................ 51
Section 7(2)(c): Nature and extent of the limitation................................................................ 52
Section 7(2)(d): Relationship between the…

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 Magee v Delaney

Details

AGLC: Magee v Delaney [2012] VSC 407
Case: [2012] VSC 407
Decision Date: 11 September 2012

CaseChat Overview and Summary

In the matter of Magee v Delaney, the defendant was charged with damaging property contrary to section 197(1) of the Crimes Act 1958 and possessing materials for the purpose of damaging property contrary to section 199(a)(i) of the same Act. The case was heard by the Supreme Court of Victoria. The defendant argued that the acts of property damage were a form of expression protected under the Charter of Human Rights and Responsibilities Act 2006 and therefore constituted a lawful excuse for the purposes of the Crimes Act.

The central legal issue was whether the defendant’s actions, which involved causing damage to property, could be justified as a form of expression protected by the Charter, and if so, whether such actions could constitute a lawful excuse under the Crimes Act. This required the court to determine the extent to which the right to freedom of expression could be exercised through damaging property and whether this right could override the prohibitions set out in the Crimes Act.

The court held that the right to freedom of expression under the Charter did not extend to acts of property damage. The court emphasised that while the right to freedom of expression was a fundamental human right, it was not absolute and had to be balanced against the rights of others and public order. The court found that causing damage to property did not constitute a protected form of expression and therefore could not be considered a lawful excuse under the Crimes Act. The court further reasoned that such acts could not be reconciled with the protection of public order and the rights of other persons as provided for in the Charter.

The Supreme Court of Victoria dismissed the defendant’s appeal, affirming the lower court's decision. The court upheld the conviction for damaging property and possessing materials for the purpose of damaging property, finding that these acts were not protected under the Charter and did not constitute a lawful excuse under the Crimes Act.

Orders