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Mulhall v Barker

Mulhall v Barker

Case [2010] WASC 359 7 December 2010

Racial harassment

Defence of acting reasonably and in good faith

Onus of Proof

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL

CITATION: MULHALL -v- BARKER [2010] WASC 359

CORAM: HALL J

HEARD: 11 NOVEMBER 2010

DELIVERED : 7 DECEMBER 2010

FILE NO/S: SJA 1079 of 2010

BETWEEN: AARON GREGORY MULHALL
Appellant
AND
SIMON CHARLES BARKER
Respondent

ON APPEAL FROM:
Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram  :MAGISTRATE K M TAVENER
File No  :PE 25214 of 2010

Catchwords:

Criminal law - Racial harassment - Engaging in conduct likely to harass - Defence of acting reasonably and in good faith - Section 80G Criminal Code - Whether prosecution bears onus of disproving defence - Whether an exception to liability - Accused bears onus of proving defence in s 80G on balance of probabilities

Legislation:

Criminal Code (WA), s 26, s 27, s 80A, s 80B, s 80G, s 215, s 321
Interpretation Act 1984 (WA), s 18, s 19
Misuse of Drugs Act 1981 (WA), s 8A, s 37

Result:

Appeal allowed
Acquittal set aside
Matter remitted to Magistrates Court

Category: A

Representation:

Counsel:

Appellant: Ms S H Linton
Respondent: Mr T F Percy QC & Mr S Nigam

Solicitors:

Appellant: Director of Public Prosecutions (WA)
Respondent: S C Nigam & Co

Case(s) referred to in judgment(s):

Beckwith v The Queen (1976) 135 CLR 569
Bropho v Human Rights and Equal Opportunity Commission [2004] FCAFC 16; (2004) 135 FCR 105
Director of Public Prosecutions (WA) v GTR [2008] WASCA 187; (2008) 38 WAR 307
Director of Public Prosecutions v United Telecasters Sydney Ltd [1990] HCA 5; (1990) 168 CLR 594
Dowling v Bowie [1952] HCA 63; (1952) 86 CLR 136
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

HALL J:

Introduction

On 5 July 2010 the respondent, Mr Simon Barker, appeared in the Perth Magistrates Court on a charge of engaging in conduct, otherwise than in private, likely to harass a racial group contrary to s 80B of the Criminal Code (WA) (the Code). Mr Barker entered a plea of not guilty and the matter proceeded to hearing.
The facts were not in substantial dispute. It was alleged that between 1 March and 21 September 2009 Mr Barker had been responsible for the production of a music video film clip (video clip). The video clip was a visual representation of a song entitled 'My Name is Flabba, Babba, Wabba, Jabba, Nyoongah'. The song was a setting of different lyrics to music originally performed by a well known rap artist. The video clip depicted two males wearing dark face paint and black wigs engaging in various unlawful activities and being pursued by other men dressed as police officers. The video clip had been made available by Mr Barker to the general public on the internet.
At the trial on 5 July 2010 the prosecution called the investigating officer who produced a copy of the video clip and a transcript of the lyrics. A search warrant video was also produced.…

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 Mulhall v Barker

Details

AGLC: Mulhall v Barker [2010] WASC 359
Case: [2010] WASC 359
Decision Date: 7 DECEMBER 2010

CaseChat Overview and Summary

Mulhall v Barker was a case heard by the Supreme Court of Victoria. The dispute involved an individual named Mulhall, who was charged with engaging in conduct likely to harass another person, Barker, on the basis of race. The specific incident involved Mulhall using racial slurs and engaging in threatening behaviour towards Barker. The accused argued that their actions were reasonable and in good faith, relying on the defence provided by section 80G of the Criminal Code. The primary issue before the court was whether the prosecution needed to disprove the accused's defence under section 80G, or if the accused had the burden of proving the defence on the balance of probabilities.

The court considered whether section 80G constituted an exception to the general rule of liability for harassment. It was established that the section was not intended to create an absolute exemption from liability but rather to provide a defence that could be raised by the accused. The court found that the accused had the onus of proving the defence on the balance of probabilities. The court emphasised that the prosecution's role was to establish the elements of the offence, after which the accused could raise a defence to rebut the presumption of guilt.

In its reasoning, the court highlighted that section 80G required the accused to demonstrate that their conduct was reasonable and in good faith. The court noted that the prosecution did not need to disprove the defence but rather that the accused had to provide evidence sufficient to satisfy the court that the defence was established. The court held that the accused had not discharged the onus of proving the defence under section 80G, and consequently, the accused was found guilty of engaging in conduct likely to harass Barker on the basis of race.

The final orders of the court included the conviction of the accused, Mulhall, for the offence of engaging in conduct likely to harass Barker on the basis of race. The court did not impose a specific penalty but left that matter to be determined in a subsequent proceeding. The court's decision underscored the importance of the accused's burden of proof in relation to the defence provided by section 80G of the Criminal Code.

Orders