Smit & Yemini v Simon
[2022] VMC 29
•12 September 2022
2
| IN THE MAGISTRATES COURT OF VICTORIA |
AT Dandenong
Case Nos. M10077424 & M10093468
| Monica Smit (M10077424) and Avraham Yemini (M10093468) | Applicants |
| v | |
| Lansley Simon | Respondent |
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MAGISTRATE: | Connellan | |
WHERE HELD: | Dandenong | |
DATE OF HEARING: | 13 October 2021, 1 March 2022 and 22 June 2022 | |
DATE OF DECISION: | 12 September 2022 | |
CASE MAY BE CITED AS: | Smit & Yemini v Simon | |
MEDIUM NEUTRAL CITATION: | [2022] VMC 29 | |
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PERSONAL SAFETY INTERVENTION ORDERS – Personal Safety Intervention Orders Act 2010 – Sections 5, 7, 9, 10 and 61 – Engaging in political activities or discussion or communicating with respect to public affairs – Consideration of ‘Without malice’ and ‘appropriate in all the circumstances of the case to make a final order’.
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APPEARANCES: | Counsel | Solicitors |
For Applicant Smit | In person | |
| For Applicant Yemini | In person | |
| For Respondent Simon | Ms Bolton | Garde Wilson Lawyers |
HIS HONOUR:
Background
In these applications Ms Smit and Mr Yemini (together “the applicants”) make applications for final personal safety intervention orders (PSIOs) against Mr Simon pursuant to the Personal Safety Intervention Orders Act 2010 (the Act or the PSIO Act). Both Ms Smit and Mr Yemini were granted full interim PSIOs against Mr Simon. Ms Smit obtained her interim order on 12 January 2021. Mr Yemini obtained his interim order on 14 January 2021. In each case the interim orders contained the standard full order conditions 1 to 8 inclusive and additional firearms authority and weapons suspension orders.
The Application and Summons documents for Ms Smit’s application and Mr Yemini’s application refer to an online video, which became Exhibit Y5, posted by Mr Simon in which he said, referring to the applicants by their first names Avi and Monica, “I’m not going to stop until one of us is dead or in jail”. In addition to the applicants, Mr Simon includes four other people as the joint subjects of this comment. In December 2020, the applicants reported these comments to police as an alleged death threat. The evidence establishes police initially applied for PSIOs on behalf of Ms Smit and Mr Yemini but withdrew the applications at Court in early January 2021. The applicants then made their own PSIO applications at Dandenong Magistrates’ Court on the dates their respective interim orders were made.
Exhibits
In exhibit references I refer to the parties by abbreviations – AY for Avi Yemini, MS for Monica Smit, and LS for Lansley Simon. Mr Simon refers to himself as “Lucky Lance” in some of the exhibited material and I have used the abbreviation LL to refer to Lucky Lance. I have referred to Facebook with the abbreviation FB. I have referred to Mr Yemini’s organisation Rebel News as RN. I have referred to Ms Smit’s organisation Reignite Democracy Australia as RDA. Where appropriate, I have included a link to online exhibits and used keys words from an exhibit to assist identify it. Where possible I have included a transcript from the video recorded exhibits, or in the case of lengthy videos, a transcript of what appeared to be the most relevant component of the video. I have attempted to make the transcripts accurate. However, it is likely they contain some errors. Where a date for publication of an exhibit or the making of a statement was identified, I have recorded the date as part of the exhibit reference. Where a document was referred to in Ms Bolton’s spreadsheet of documents, prepared on behalf of Mr Simon to assist the court, I have noted her reference in brackets. Where a document appears in one of Ms Smit’s list of Appendix documents, I have referred to the Appendix number she used.
Ms Bolton objected, based on relevance, to the tender of many of the documents Mr Yemini and Ms Smit sought to rely upon. I have marked the exhibit reference with MFI, ‘marked for identification’. I will state whether the exhibit is admitted later in these reasons.
By agreement Mr Yemini presented his case first. He gave evidence on his application and called his partner Rhonda Yemini and his brother Haim Waks. Mr Yemini tendered the following documents on his application:
5.1Exhibit Y1 – MFI – (Exhibit A on page 2 of Ms Bolton’s Document) – Text from LS to Haim Waks:
That’s fine. People share my vids on twitter and snap chat, ect, ect, but they screen record it the tight asses lol, and I don't get the credit. Anyway I didn't even know your brother had seen my videos. I'm not at his level, I'm basically a wanna be comedian, I'm not waiting to be a activist tbh. But your brother is doing some propa shit! He's content is important mine isn't, so make sure you tell him about Zarahs offer, it's a pretty generous offer. Thanks mate
28 August 2020.
5.2Exhibit Y2 – MFI – (Exhibit B on page 1 of Ms Bolton’s Document) – Comedy sketch of LS and his children – 8 January 2020.
5.3Exhibit Y3 – MFI – Search results of LL FB profile using “avi” as the search command – no date.
5.4Exhibit Y4 – MFI – Video of LS with Garde Wilson advertising as part of back drop:
So there is a lot of questions, ah in the comments section about Avi, one of the many video’s about Avi
No date.
5.5Exhibit Y5 – “Keyboard warrior - Threat to kill” Video – (Exhibit D on page 3 of Ms Bolton’s document) – LS “I’m not going to stop until one of us is dead or in jail” The full transcript of this video is set out later in these reasons. 17 December 2020.
5.6Exhibit Y6 – LL FB post – (Exhibit E on page 4 of Ms Bolton’s document) – “Avi Yemini the (convicted) wife beater and crowdfunding scammer gets AVO rejected in Court” – 7 January 2021.
5.7Exhibit Y7 – (Exhibit J on page 11 of Ms Bolton’s document) – “Avi Yemini, nice try you scammer. No more crowd funding for you” – No date.
5.8Exhibit Y8 – (Exhibit F on page 1 of Ms Bolton’s document) – LL FB Video:
LM = Lindsay McKenna – LL = Lucky Lance
LL: Hey guys. It’s just me Lance again. I bumped into one of my fans. This is the third fan I’ve got, what’s your name?
LM: Lindsay McKenna
LL: Lindsay McKenna
LM: Make sure you get that rat Avi.
LL: I won’t give up mate. I’ll go after that cunt
LM: You better get him.
LL: I will, I will. Alright, see you guys. Say see ya guys.
LM: See ya.
LL: Say see you guys.
LM: See you guys.
LL: See you guys
9 January 2021.
5.9Exhibit Y9 – MFI – (Exhibit H on page 5 of Ms Bolton’s document) – LS:
I did have to delete fucking all my favourite videos recently. The police made me delete some, a heap of videos. I’m fucking spewing but I have kept them and when I win in court I will load them back up and I will pump thousands of dollars into page boost (indistinct) back up
14 January 2021.
5.10Exhibit Y10 – a duplication of Exhibit Y6 – (Exhibit I on page 5 of Ms Bolton’s document) – FB LL Ads – “Avi Yemini the (convicted) wife beater and crowdfunding scammer gets AVO rejects in court” – 10 January 2021.
5.11Exhibit Y11 – (Exhibit X on page 14 of Ms Bolton’s document) –LS FB Video:
It’s a good day Lucky Lance today as I swear it's good day for Lucky Lance to see that fake journalist which I've been saying for fucking a year now being trying to tell you that he's not really a journalist and you'll say today that that was confirmed that took off his stupid passing got canceled. Fake media pass. I can't go into great detail right now obviously as you know, but I will Don't worry I'm preparing some good beats as soon as I'm legally allowed to
No date.
5.12Exhibit Y12 – (Exhibit K, on page 12 of Ms Bolton’s Document) LL FB post:
Did that scammer loose his media pass? Can anyone confirm it ? I know he was abusing it and not using it for it’s intended purpose
No date.
5.13Exhibit Y13 & MS3 – MFI – (Exhibit AA on page 2 of Ms Bolton’s Document) – offers $15k video:
So tonight I'm putting my money where my mouth is. I've got a $15,000 cash payment for the brave person who wants to come forward and meet the Lucky Lance and provide evidence. Now it's not without any condition. Obviously, recordings I have heard chatter that there's some recordings, they would obviously be a godsend for Lucky Lance. Any other hard evidence you've got – receipts with a big one for money spent, outgoings, flow charts if they exist. Obviously, that would be very helpful to Lucky Lance and emails. So emails is a big one. So any correspondence that you may have screenshotted which will expose these two criminal syndicates, Reignite Democracy Australia and Rebel News Australia. So please get in contact with me on inbox either on Facebook or Instagram. Let's talk and I'm putting my money where my mouth is tonight $15,000 for anyone who can help me to expose this two criminal syndicates. Okay, thanks. So you guys"
16 May 2020.
5.14Exhibit Y14 – MFI – (Exhibit L on page 12 of Ms Bolton’s Document) – FB posts:
Ange Goutzioulis: Name them please?
LS: Ange Goutzioulis I’ve been naming them in videos for almost a year now
Ange Goutzioulis: Lance Simon do tell me or have they silenced u?
LS: Ange Goutzioulis I’ve got a lot of intervention orders against me atm, I’ll have more to say after court
No date.
5.15Exhibit Y15 – (Exhibit M on page 12 of Ms Bolton’s Document) – LL FB posts:
LL: When serene gets disbarred you guys better give me the credit. And I’m not finished dismantling all the other scams. I promise I will fight to bring all the scammers to justice.
Sue Munro: Avi has lost his media accreditation
LS: Sue Munro he never had one !
Rebecca Deluca: She went to the (image of a police officer) station today and had a melt down !
No date.
5.16Exhibit Y16 – (Exhibit N on page 13 of Ms Bolton’s Document) – Instagram post:
Luckylance_: Hi guys can you please let everyone know on my fb that I’m on a ban till next wen.
marcofernando3601: Join the club, im.on a 30 day bender
kidx: What did you do this time vavow
riseupmelbourne Thought you got arrested for avi yemini
luckylance_: @riseupmelbourne he likes to say that , but the truth is I was never charged
No date.
5.17Exhibit Y17 – (Exhibit O on page 13 of Ms Bolton’s Document) – YouTube Replies:
crew fox: Avi handed ur ass to you
LL: By lying to police?? Anyway stay tuned , plenty of court appearances coming up. Your hero will be exposed
No date.
5.18Exhibit Y18 – MFI – (Exhibit P on page 13 of Ms Bolton’s Document) – LL FB post:
Stew Leslie: I hope you apply for the court costs! What a joke, I’d love to read the narratives they spin in the apps!
LS: Stew Leslie stay tuned
Stew Leslie: Lance it’ll be months by the time they’re heard I suspect. I hope it’s soon
LS: Stew Leslie about two months away
No date.
5.19Exhibit Y19 – MFI – (Exhibit Z on page 8 of Ms Bolton’s Document) – FB video – LS:
Anyway what do you guys going to sit and watch me eat this whole pizza? Whose HS Waks? Is that Haim? You watch’n my live Hai, because if you’re who I think you are you've lagged me to the police because one of my recent IVO applications, seen a statement from a snitch Haim Waks, otherwise known as snake belly making the old statement on Lucky Lance. Well guess what? Wait till we get you on the stand? Get it you to reiterate that stuff when you’re on the stand and see how you like that. Hey Robbie Hunt, I'll show you me...
21 August 2021.
5.20Exhibit Y20 – (Exhibit DD on page 11 of Ms Bolton’s Document) – FB Live:
Who is HS Waks, who is that? Can you guys go in there, I think it might be one of my enemies there. Remind me later, I think that might be one of my eh – it better not be you Haim you little rat. And ah perjuring yourself – you should have looked up what the charge is, what the sentencing range is for perjury if that is you Waks. Ah Damian….
No date.
Exhibit Y21 – (Exhibit Q on page 13 of Ms Bolton’s Document) – –No date.
5.22Exhibit Y22 – MFI – (Exhibit U on page 14 of Ms Bolton’s Document) – Instagram comment from flytheaeroplane – “If ya see the little man avi, put some forties on the little man he might drown” – No date.
5.23Exhibit Y28 – Statutory Declaration of Rhonda Yemini dated 29 September 2021.
Mr Yemini sought to tender Exhibit Y23 – Exhibit Y27 inclusive. One of the proposed exhibits comprised comments of Mr Simon expressing his sexual love for a Tom Tanooki, and another was a YouTube post by Tom Tanooki in relation to Monica Smit’s arrest and subsequent legal proceedings. Another was a publication by RN, Mr Yemini’s publication, reporting on a Ms Garde-Wilson’s defamation action against Mr Yemini and RN. Ms Garde-Wilson is Mr Simon’s wife. Another proposed exhibit was a FB video, posted by Lucky Lance on 21 August 2021, in which he states without reference to any particular person “… your little trick today will backfire and you’ll regret it”. In another proposed exhibit Mr Simon made a live FB post at a protest at Mordialloc in which he shows members of Victoria Police gathered on the street and Mr Simon refers unfavourably to ‘anti-vaxers’ and ‘protesters’ but makes no reference to Mr Yemini or Ms Smit. The last proposed exhibit was an undated post on Mr Simon’s FB under the Lucky Lance banner in which a follower of Mr Simon states “Need to go after that Avi cunt bad he’s not a good person seems like he’s getting some followers lately”. I ruled these proposed exhibits inadmissible when Mr Yemini sought to tender them. They were not sufficiently relevant to a fact in issue to justify admission.
After the completion of Mr Yemini’s case on 1 March 2022 and, on 22 June 2022, prior to Ms Smit commencing her case, Mr Yemini sought leave to re-open his case to tender an additional document into evidence relating to events he stated had taken place after the adjournment on 1 March 2022. I determined to deal with his leave application at the end of Ms Smit’s case. Mr Yemini wanted to tender a screen shot of a private Facebook exchange between Mr Simon and a person who Mr Yemini said was a member of Mr Yemini’s security team. From Mr Yemini’s description of the exchange, Mr Simon was approached on open Facebook by Mr Yemini’s security person for a comment about Mr Yemini. Mr Simon declined to comment on open Facebook but indicated he would have a private chat on Facebook if the person contacted him in a private exchange. Mr Yemini’s security then contacted Mr Simon in the private forum and Mr Simon made some comment in relation to Mr Yemini. Initially it appeared Mr Yemini was standing beside his security person when the exchange took place with Mr Simon. Subsequently Mr Yemini said he was shown the exchange some weeks after it took place. He requested his security person to take a screen shot of the exchange on his mobile phone and provide Mr Yemini with a copy of the screenshot, which the security person did. After considering the nature of the evidence Mr Yemini wished to introduce, I refused his application for leave.
Ms Smit gave evidence on her case and called her brother Daniel Smit. She decided not to call a foreshadowed witness, her partner Morgan Jonas. As noted, Ms Smit also relied upon Exhibit Y5, the keyboard warrior alleged threat to kill video posted by Mr Simon. She also relied upon Exhibit Y13 but tendered her own copy as Exhibit MS3. Ms Smit tendered the following documents on her application:
8.1Exhibit MS1 – MFI – ‘Cash reward 2’ – (Appendix 2 ‘Cash incentives’ on page 6 of Ms Bolton’s Document) – Offers 45K Video – LS sitting in his vehicle, holds up what appears to be three wads of Australian $50 notes and says:
Hey guys, just me Lance again. I’ve got to be honest, I haven’t had any takers on my offer of $15k to provide information in regards to those two organised crime syndicates. So I have decided to up the anti, so I have upped the anti for an extra $30k for anyone that can come forward and provide information. All right see you guys. 9 March 2021.
align="left">8.2 Exhibit MS2 – ‘Pakenham girl’ – (Appendix 2 ‘Pakenham’ on page 6 of Ms Bolton’s Document) LS video, commences with LS punching a punching ball in a gym before pausing and stating:
Yo listen up you. Good logic. You can take the girl out of Pakenham, but you can never take Pakenham out of the girl. See you guys
9 March 2021.
8.3 Exhibit MS3 & Y13 – MFI – ‘Cash reward 1’ – Offers $15k video – See Exhibit Y13 for transcript of video – 16 May 2020.
8.4 Exhibit MS4 – MFI – ‘Gold Coast live post’ – LL006.mp4 – (Appendix 03 in Ms Smit’s Exhibit list) – FB Live stream – LS:
Hey guys, it’s just me Lance again. So I am here RJ, here on the Gold Coast, so I’ve come to see ya. You’ve been promising for months you wanta serve me, want to take me to court, wanta take Lucky Lance to court RJ. So I am here, you keep asking for my service address here … Oh I figured out how I can say that rats name, Moronica. I can say Moronica heh, ….. Who else is here let me go to the comments …. Hey Sam Young, Moronica, Moronica Shit heh, heh … Maybe I will get some from the UK following Lucky Lance ….. Let him know ….. fuck for about a year now he’s been promising to sue me, but he wants - he needs to serve me, so I am up here mate, RJ I’m here, lets meet up, have that little boxing match you wanted to have, give me those papers for court, let’s go. All talk. All the fuckin scammers promise to sue Lucky Lance and they never do. All they ever do is get interim intervention orders, right, just to silence me. They don’t, it’s all, it’s all empty threats when they threaten to sue Lucky Lance coz they don’t want to go to court with Lucky Lance because they don’t want to expose their scam in open court on the record, it’s all fuckin bullshit… 16 April 2021.
8.5 Exhibit MS5 – LS Sharing fake RDA page – Image of ship lying half submerged listing on its side and other images (from Appendix 4 in Ms Smit’s exhibit list) – not relied upon.
8.6 Exhibit MS6 – Mr Simon sharing “Monica Smite” on FB (from Appendix 4 in Ms Smit’s Exhibit list) – no date.
8.7 Exhibit MS7 – MFI – RDA logo LLP15 – Mr Simon sharing another person, Louise Marree Coulster’s, fake post on FB using RDA logo (from Appendix 4 in Ms Smit’s Exhibit list) (objection) – 5 August 2021.
8.8 Exhibit MS8 – MFI – “RDA member house 1 – organised crime syndicate” – LL008 – (Appendix 5, Video 2 page 16 of Ms Bolton’s Document) – Video in front of house with RDA sign:
Hey guys. Just me Lance again. Check out this sign in the window. These people are going to be in deep regret when they learn the truth about this organised crime syndicate. You heard it here first at Lucky Lance. See ya guys
16 May 2021.
align="left">8.9Exhibit MS9 – MFI – “RDA member house 2 – ban Reignite Democracy Australia” – LL098 – (Appendix 5, Video 1 on page 15 of Ms Bolton’s Document) – RDA headquarters video:
Hey, guys. It’s just me Lance again. So, I’m back down here at the Reignite Democracy Australia headquarters. Now, last time I made a video here, so they had a big sign there in the window, Reignite Democracy Australia. I pulled over and made a little video. Next minute, I had the police knocking on my door. Right? Luckily, the police didn’t, I didn’t get in trouble with the police which is really ironic because uh RDA they scream freedom of speech, freedom of speech until the shoes on the other foot and then they send the police. Have police coming all the time. But today, I’m particularly disgusted. This organized crime syndicate, Reignite Democracy in Australia, I’ve received this in my letter box. Once again Reignite Democracy Australia taking advantage of children to spread their dangerous anti-vax message. Look at that. They’ve got a picture of a child there. They’re coming for our children. Typical cult like fucking rhetoric. RDA or Reignite Democracy Australia are an organised crime syndicate. Despicable, despicable uh organization. Just look at that. Once again, uh abusing children just like John Smit, one of the leaders. John Smit who just took a donation off a young child, just took a donation off a young child who was saving to buy a pet bird and John Smit uh accepted the donation from this child for his pro bono legal fees. So anyway, I thought I’d come here and show Reignite Democracy Australia what I think of their leaflet and I’ll just leave it with them. I’ll leave it right here in their fence and they can go fuck themselves. Reignite Democracy Australia. Ban the dangerous cult regime Reignite Democracy Australia. 10 September 2021.
8.10 Exhibit MS10 – MFI – “RDA compilation video” – (Appendix 6 ‘Compilation video’ on page 16 of Ms Bolton’s Document) RDA compilation videos from LL FB:
What do you call it, Monica. You know. What the fuck is going on with Monica. When is she going to tell us about – You know just like Monica and Serena as well – I have got some notes here on Monica. You’ve probably seen this – Next up working on Monica scamming lying rat
There after the video is snippets of Mr Simon referring to RDA – compiled from FB videos posted between 6 April 2021 and 29 September 2021.
Ms Smit advised the court she did not rely on Exhibit MS5 after she identified the related dates for the FB posts. The original fake FB posting appeared to occur after the alleged reposting of the fake page by Mr Simon.
Given I have made significant use of Ms Bolton’s tabulated list of Mr Yemini and Ms Smit’s documents, I have marked it as an exhibit, Exhibit LS2. Many of the documents in Exhibit LS2 were not tendered into evidence and I have had no regard to them. The ones I have had regard to are those in the exhibit lists above that I have accepted as relevant. Mr Simon called no evidence and tendered one document during Ms Bolton’s cross-examination of Mr Yemini on 1 March 2022:
10.1 Exhibit LS1 “Hidden camera: The Age chief reporter busted for fake news”; and
10.2 Exhibit LS2 Ms Bolton’s tabulated list of documents.
Extracts from the Personal Safety Intervention Orders Act 2010
I will refer to certain provisions of the PSIO Act in my analysis of the evidence and so it is useful to set out its most relevant provisions:
5 Meaning of prohibited behaviour
For the purposes of this Act, prohibited behaviour is—
(a) assault; or
(b) sexual assault; or
(c) harassment; or
(d) property damage or interference; or
(e) making a serious threat.
7 Meaning of harassment
For the purposes of this Act, harassment means a course of conduct by a person towards another person that is demeaning, derogatory or intimidating and includes such conduct that is carried on by or through a third person.
Examples
A makes derogatory taunts to B, including racial taunts or taunts about B's sexual orientation or gender identity.
A sexually harasses B.
A, a former employee of B, repeatedly telephones B at her workplace and makes insulting remarks about B to the person who answers the telephone.
A encourages another child to taunt B.
A repeatedly leaves pamphlets in B's mailbox that state that it is wrong to gender transition and that everyone's gender expression should match the sex they were assigned at birth.
9 Meaning of serious threat
For the purposes of this Act, a serious threat means—
(a) a threat to kill, within the meaning of section 20 of the Crimes Act 1958;
(b) a threat to inflict serious injury, within the meaning of section 21 of the Crimes Act 1958.
10 Meaning of stalking
(1) A person (the first person) stalks another person (the second person) if the first person engages in a course of conduct—
(a) with the intention of causing physical or mental harm to the second person, including self-harm, or of arousing apprehension or fear in the second person for his or her own safety or that of any other person; and
(b) that includes any of the following—
(i) following the second person or any other person;
(ii) contacting the second person or any other person by post, telephone, fax, text message, email or other electronic communication or by any other means whatsoever;
(iii) publishing on the Internet or by an email or other electronic communication to any person a statement or other material—
(A) relating to the second person or any other person; or
(B) purporting to relate to, or to originate from, the second person or any other person;
(iv) causing an unauthorised computer function (within the meaning of Subdivision 6 of Division 3 of Part I of the Crimes Act 1958) in a computer owned or used by the second person or any other person;
(v) tracing the second person's or any other person's use of the Internet or of email or other electronic communications;
(vi) entering or loitering outside or near the second person's or any other person's place of residence or place of business or any other place frequented by the second person or the other person;
(vii) interfering with property in the second person's or any other person's possession (whether or not the first person has an interest in the property);
(viia) making threats to the second person;
(viib)using abusive or offensive words to or in the presence of the second person;
(viic) performing abusive or offensive acts in the presence of the second person;
(viid) directing abusive or offensive acts towards the second person;
(viii) giving offensive material to the second person or any other person or leaving it where it will be found by, given to or brought to the attention of, the second person or the other person;
(ix) keeping the second person or any other person under surveillance;
(x) acting in any other way that could reasonably be expected—
(A) to cause physical or mental harm to the second person, including self-harm; or
(B) to arouse apprehension or fear in the second person for his or her own safety or that of any other person.
(2) For the purposes of this Act, the first person has the intention to cause physical or mental harm to the second person, including self-harm, or to arouse apprehension or fear in the second person for his or her own safety or that of any other person if—
(a) the first person knows that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear; or
(b) the first person in all the particular circumstances ought to have understood that engaging in a course of conduct of that kind would be likely to cause such harm or arouse such apprehension or fear and it actually did have that result.
(3) In this section—
mental harm includes—
(a) psychological harm; and
(b) suicidal thoughts.
61 Power of court to make final order
(1) The court may make a final order if the court is satisfied, on the balance of probabilities, that—
(a) the respondent has—
(i) committed prohibited behaviour against the affected person and—
(A) is likely to continue to do so or do so again; and
(B) the respondent's prohibited behaviour would cause a reasonable person to fear for his or her safety; or
(ii) stalked the affected person and is likely to continue to do so or do so again; and
(b) the respondent and the affected person are not family members; and
(c) it is appropriate in all the circumstances of the case to make a final order.
Note
See section 33, which provides that the court may take into account mediation assessment or mediation certificates and a party's lack of attendance at a mediation assessment or mediation when deciding whether to make a personal safety intervention order.
(2) Without limiting subsection (1)(c), in deciding whether it is appropriate to make a final order the court may consider—
(a) if the respondent is a child, the respondent's ability to do the following, taking into account his or her age and maturity—
(i) understand the nature and effect of a final order; and
(ii) comply with the conditions of the final order;
(b) if the court is satisfied that the respondent has a cognitive impairment, the respondent's ability to do the following, taking into account his or her cognitive impairment—
(i) understand the nature and effect of a final order; and
(ii) comply with the conditions of the final order.
(3) A final order may be made in respect of more than one affected person if—
(a) the court is satisfied in accordance with subsection (1) in respect of each affected person; or
(b) consent has been given, or the making of the order has not been opposed, in accordance with section 64 by—
(i) all the parties to the proceeding; and
(ii) if the application for the final order was brought with the consent of an affected person's parent or guardian, that parent or guardian.
(4) Despite subsection (1), the court must not make a final order if satisfied on the balance of probabilities that the respondent engaged in the prohibited behaviour or stalking without malice—
(a) in the normal course of a lawful business, trade, profession or enterprise (including that of any body or person whose business, or whose principal business, is the publication, or arranging for the publication, of news or current affairs material); or
(b) for the purpose of an industrial dispute; or
(c) for the purpose of engaging in political activities or discussion or communicating with respect to public affairs.
(5) The court may make a final order whether or not—
(a) some or all of the prohibited behaviour or stalking constituting grounds for making the order occurred outside Victoria, so long as the affected person was in Victoria at the time at which that conduct occurred;
(b) the affected person was outside Victoria at the time at which some or all of the prohibited behaviour or stalking constituting grounds for making the order occurred, so long as that conduct occurred in Victoria.
Analysis of evidence
In Mr Yemini’s case, the events of Exhibits Y1 (28 August 2020), Y5 (17 December 2020), Y6 (7 January 2021), Y8 (9 January 2020), Y10 (10 January 2021) and Y13/MS3 (16 May 2020) occur prior to the interim PSIO made on 14 January 2021. Exhibit Y9 took place on that day, and based on its content, presumably after service of the interim orders on Mr Simon. Exhibit Y19 (21 August 2021) takes place 8 months later. The other exhibits are not dated, or in case of Y3, relate to multiple unspecified dates. Exhibits Y3, Y4, Y5, Y6, Y7, Y8, Y10, Y15, Y16, Y17, Y21 and Y22 make direct reference to Mr Yemini by his family name or more commonly as ‘Avi’. The references are not always by Mr Simon. Direct references are sometimes by another person Mr Simon is communicating with. Exhibits Y11, Y12, Y14 and Y18 refer to Mr Yemini by inference. Exhibit Y1 is an email from Mr Simon with Mr Simon referring to Mr Yemini as Mr Waks’ brother. Exhibits Y19 and Y20 refer to Haim Waks, not Mr Yemini, but clearly relate to Mr Waks as a witness for Mr Yemini in these proceedings. Exhibits Y13/MS3 and MS1 refer directly and by inference to RN. Exhibits Y1 and Y2 are relied upon as context for the purpose of establishing what Mr Yemini asserts is the reason or motive for Mr Simon’s alleged serious threat to him, harassment and stalking of him, and they are admitted into evidence for that purpose. Based on the test for relevance, I am satisfied Exhibits Y3 – Y12 and Y14 – Y21 are sufficiently relevant to justify admission into evidence. I am not satisfied Exhibit Y22, a comment made under the name flythearoplane in regard to ‘avi’, is sufficiently relevant to a fact in issue to be admitted into evidence. Exhibit Y28, Rhonda Yemini’s statutory declaration, was adopted by her as part of her evidence and is also admitted into evidence. Exhibit Y13/MS3 and MS1 do not refer to Mr Yemini but refer by inference or directly to RN. Nevertheless, I am satisfied they are sufficiently relevant to the issues arising to admit into evidence.
In Ms Smit’s case, the events of Exhibit Y5 (17 December 2020) and MS3/Y13 (16 May 2020) take place prior to the interim PSIO made on 12 January 2021. Exhibit MS1 (9 March 2021), Exhibit MS2 (9 March 2021), Exhibit MS4 (16 April 2021), Exhibit MS8 (16 May 2021), and Exhibit MS9 (10 September 2021) take place after the interim order was made. Exhibits MS6 and MS7 are undated. Exhibit MS10 relates to multiple unspecified dates. Ms Smit no longer relies on Exhibit MS5. Mr Simon refers to Ms Smit by name, or an adaption of her name, in Exhibits Y5, MS4, MS6 and MS10. In Exhibit MS2 he refers to ‘the girl out of Pakenham’ which Ms Smit says must be a reference to her. In Exhibit MS9 he refers to John Smit, who I understand to be Ms Smit’s father, and RDA. Exhibits MS1, MS3/Y13, MS7, MS8 refer to RDA expressly or by inference. Based on the test for relevance, I am satisfied Exhibits MS1 – MS4, MS6 and MS8 – MS10 are sufficiently relevant to justify admission into evidence. In Exhibit MS10, Mr Simon makes direct reference to Ms Smit in the first few snippets of the compilation and thereafter he refers to RDA. Whilst MS10 is admitted in relation to comments directly referencing Ms Smit, little weight can be attached to it given it is a compilation and presents snippets without their context. Exhibit MS7 shows Mr Simon shared a post on FB using a fake RDA logo. No date is attributed to either the original post or Mr Simon’s sharing of it, and it is not sufficiently relevant to warrant admission into evidence.
Given the starting point of both applications is the alleged threat to kill video, Exhibit Y5, it is appropriate to assess that evidence before turning to other evidence. Ms Bolton submitted the Court should be guided by the reasons of Beale J in Smit v Lyons & Ors[1]. Ms Bolton submitted Beale J had considered whether the same video material, Exhibit Y5, amounted to a threat to kill. I indicated in Court, before having the chance to read Beale J’s reasons, I thought it was unlikely his reasons would be binding on this Court in this case. Beale J was dealing with an application for a pseudonym order and a challenge to an order to provide police assistance to access data on a mobile phone seized under warrant. I am dealing with applications for final PSIOs under the related Act. I indicated the video, Exhibit Y5, had to be considered in the context of this case, potentially including evidence not before Beale J. Whilst Beale J’s reasoning may be very helpful, this Court must assess for itself, as a question of fact, whether Exhibit Y5 amounted to a threat to kill or harm Mr Yemini and/or Ms Smit.
[1][2022] VSC 274.
My initial reaction to the content of Exhibit Y5, when it was first played to the Court on 13 October 2021, was it did not immediately strike me as a threat to kill. In the video, Mr Simon pulls up on a motorbike, turns the bike off and, speaking directly into a camera, says:
Hey, guys, it’s just me Lance again. I'm hunting around day and night, looking for all you crowd funding scammers, crowd funding on Go Fund Me for fake legal fees. Avi, Serene, even Harry from Harry's clothing store. Monica, especially Monica. RJ you crowd funding rat, fake lawyer, Peter Liddell speaking of fake lawyers. All you crowd funding rats are going down, I'm not gonna stop, until one of us is dead or in jail. See you guys.
The words used, taken in the context of the complete video, are not words that amount to a threat to kill or cause physical harm to the people named, including Mr Yemini and Ms Smit. The natural meaning of the words, in and of themselves, is a threat to keep pursuing the persons named to expose them for, what Mr Simon alleges, are crowd funding scams, including crowd funding for legal fees, by people Mr Simon alleges are ‘crowd funding scammers’, ‘crowd funding rats’ and, in relation to two of the people, he also alleges they are fake lawyers. It is a threat by Mr Simon to keep pursuing those people until he or they are dead or in jail. It is not a threat to kill or physically harm any or all those people. It is a threat to maintain a relentless campaign against their alleged crowd funding scams and, in two instances, their alleged practice as ‘fake’ lawyers.
There is other evidence available to the Court in which to assess the meaning of those words. Mr Haim Waks, Mr Yemini’s brother, gave evidence he was a long-term friend and associate of Mr Simon. He gave evidence that Mr Simon was engaged, with Mr Waks, in a lengthy lifestyle of heavy drug use and violent criminal behaviour. Mr Waks gave evidence that Mr Simon was charged with murder. Mr Waks said he was the person who took Mr Simon to the police station when Mr Simon handed himself into police in relation to the investigation that led to Mr Simon being put on trial in the Supreme Court. Mr Waks said, after being acquitted of the murder charge, Mr Simon had bragged about being acquitted and stated repeatedly to Mr Waks, and to others, words to the effect “There is a saying ‘getting away with murder’ and that’s what happened to me”. Mr Waks said he had followed Mr Simon’s FB page and concluded Mr Simon was obsessed and violently angry with Mr Waks’ brother, Mr Yemini. Mr Waks said he considered the video Exhibit Y5 as a direct threat of violence to Mr Yemini. Mr Waks said he reached that conclusion based on his lengthy friendship with Mr Simon and his knowledge of Mr Simon’s violent nature.
No criminal priors for Mr Simon were tendered into evidence. However, Ms Bolton conceded on behalf of Mr Simon that he had a significant prior criminal history including for offences of violence. She did not contest Mr Waks’ assertions of prior violent criminal offending by Mr Simon and Mr Waks. She did not contest what Mr Waks asserted regarding the circumstances surrounding Mr Simon being taken into custody and his alleged comments after his acquittal. She did put to Mr Waks, and other witnesses, that Mr Simon was acquitted of a charge of manslaughter, not murder. The witnesses accepted they could not dispute that was the case. In cross-examination Mr Waks agreed he was now living a life free from drug use and criminal offending. Ms Bolton put to him that was also the case for Mr Simon. Mr Waks said he did not know whether that was so as he no longer knew Mr Simon and they stopped being friends after a falling out in 2019.
Mr Waks now lives in Sydney. Mr Simon approached him in August 2020 with a request he ask his brother, Mr Yemini, to promote Mr Simon’s comedy video sketches of which Exhibit Y2 was an example. At the same time, Mr Simon raised an offer by his wife, Ms Zarah Garde-Wilson, to provide legal services to Mr Yemini (Exhibit Y1). Mr Waks agreed he was suspicious of the offer of legal services made by Mr Simon on behalf of Ms Garde-Wilson. It is this offer of legal services, and its subsequent refusal by Mr Yemini, that Mr Yemini asserts is the motivation for Mr Simon’s negative focus on and action towards him. Subsequently, Ms Garde-Wilson apparently sued Mr Yemini and his organisation RN for defamation. This circumstance was not relied upon as a motive for Mr Simon’s behaviour toward Mr Yemini. I did not allow Mr Yemini to admit evidence related to the defamation action. It was too remote from the issues in dispute given Mr Simon did not contest he did the things alleged by Mr Yemini as set out in the exhibits.
Other evidence before the Court establishes that Mr Simon has had a focus on the political activities of Mr Yemini and Ms Smit and organisations associated with Mr Yemini, RN, and Ms Smit, RDA. In the case of RN and RDA, it is asserted that Mr Yemini and Ms Smit are the public face of those organisations respectively. It is asserted that Mr Simon’s focus is obsessive and personal – it is personally focused on Mr Yemini and Ms Smit even where it does not directly identify them but identifies the organisation of which they are the public face. It is submitted that comments about those organisations by Mr Simon are effectively comments directed at, and are about, Mr Yemini and Ms Smit. Mr Yemini and Ms Smit take the position in this case that comments by Mr Simon about RN and RDA are comments directed at Mr Yemini and Ms Smit respectively because they are those organisations, that is they are the founders, sole spokespersons and public face of their respective organisations and so any comment about those public organisations by Mr Simon must be comments about them personally.
I accept both Mr Yemini and Ms Smit genuinely consider Mr Simon’s video comments in Exhibit Y5 were threats to kill or to cause them serious physical harm. Both Mr Yemini and Ms Smit assessed the content of the video comment based on their wider understanding of Mr Simon. In Mr Yemini’s case, that wider knowledge was based largely on his knowledge of Mr Simon through his brother Mr Wak’s lengthy history of violent and drug related crime committed by Mr Waks and Mr Simon. Based on the Application and Summons for her PSIO, Ms Smit’s knowledge of Mr Simon is based on a period of 5 months in which she knew him as an acquaintance, had some telephone contact, some messages from him which she ignored and an event they both attended in October 2020 where they said hello to each other. Apart from that contact, it would appear Ms Smit gained her understanding of Mr Simon largely from his social media postings, which she described as defaming her regularly and obsessively. Based on the evidence of Mr Yemini, Rhonda Yemini, Haim Waks, Ms Smit and her brother Daniel Smit, I have no doubt they are fearful of Mr Simon and consider he is capable of harming them.
The broader evidence from FB postings, videos and comments by Mr Simon about RDA, RN, Ms Smit or Mr Yemini are, at times, not particularly edifying. At times they are personal, crude and tend to be insulting. At other times, they involve elements of humour, theatricality, hyperbole, exaggeration, satire and sarcasm. Mr Simon is being deliberately provocative in his commentary about Mr Yemini, Ms Smit, RN and RDA. One gets the impression he wants to advance his cause, to lift himself out of the great herd of the unheard and promote himself as an entity on social media as a comedian, commentator and political activist. Although in Exhibit Y1 he denies any aspiration to be an activist. Based on the evidence presented during the hearing this is a position, less the comedic aspiration, both Mr Yemini and Ms Smit apparently already occupy. I say apparently because my knowledge of Mr Yemini, Ms Smit, Mr Simon, RN and RDA is limited to the evidence presented in this case. I was unaware of their names until the first day of this hearing. Outside the evidence, I remain unaware of their apparent celebrity or notoriety status apart from a mention of RDA in the mainstream media during the lead up to the recent federal election and from reading Beale J’s reasons in relation to Ms Smit’s Supreme Court matter. At the time RDA was mentioned in the media, I did not associate the mention of RDA with Ms Smit as she had not commenced presenting her case to the court when I heard RDA mentioned. It was only during her evidence I became aware she was the ‘face’ of RDA as she described the situation. She gave evidence that in her view ‘RDA’ and ‘Monica Smit’ were ‘interchangeable’ and that ‘RDA is synonymous with Monica Smit’. During cross-examination Ms Smit said, “I am RDA” and in re-examination “Everybody would say RDA is Monica Smit”.
Mr Simon may be pursuing a goal of achieving a social media status at the expense and discomfort of Ms Smit and Mr Yemini. At times he appears to be leveraging Ms Smit’s and Mr Yemini’s social media presence to build his own status. I am left with the impression from some exhibits, Mr Simon sees making comment about Mr Yemini, Ms Smit, RN and RDA as a means of attracting followers to his own social media sites. Mr Simon’s approach to Ms Smit and Mr Yemini is also appropriately described as pejorative – he is expressing contempt and obvious disapproval of their actions based on his view of their political views and activities. He descends into personal attacks of Ms Smit and Mr Yemini for holding those political views and engaging in related activities.
It is not easy to synthesise the content of the exhibits into simple descriptors. It is clear Mr Simon vehemently opposes some of the political positions, as he asserts them to be, taken by Mr Yemini and Ms Smit. Variously he describes them and their organisations as ‘fake journalists’, ‘crowd funding scammers’, ‘scammers’, ‘anti-vaxxers’, ‘criminal syndicates’, ‘organised crime syndicates’, ‘cult like’, ‘liars’, ‘convicted wife beater’ and ‘rats’. He offers substantial rewards for anyone who provides him with evidence to expose ‘these two criminal syndicates’ and asserts he ‘won’t give up’ and ‘will fight to bring all scammers to justice’. Taken as a whole, and considered individually, they do not however support the proposition he was making a threat to kill or seriously harm the people he identified in Exhibit Y5, including Mr Yemini and Ms Smit. Rather, they support the interpretation he was threatening to maintain a relentless campaign against people he alleges are running crowd funding scams and, in two instances, allegedly practising as ‘fake’ lawyers. They also support the conclusion, both by inference and from direct comments made by Mr Simon, he intends to resume his social media campaign against Mr Yemini, Ms Smit, RN and RDA if final PSIOs are not made against him on the applications before me.
There is no evidence before me that would enable me to consider, let alone conclude, Mr Simon’s assertions of ‘crowd funding scammers’, ‘fake’ lawyers, organised crime syndicates etc. are well founded. These cases are not about those allegations per se. I make no finding about those assertions, albeit I accept they are serious allegations, and both Mr Yemini and Ms Smit treat them seriously and find them hurtful and insulting.
Applying the legislative requirements to the evidence
The issue is whether the applicants have established the necessary foundations for making a final PSIO against Mr Simon. Ms Smit and Mr Yemini base their applications for final PSIOs on assertions that Mr Simon’s conduct towards them amounts to a course of conduct that involves:
26.1 prohibited behaviour in the form of harassment and making a serious threat (ss 5, 7 and 9 of the Act); and
26.2 stalking in the form of publishing material about them on the internet and threatening them (s 10(1)(b)(iii) and (viia) of the Act).
Mr Simon does not dispute he did the acts alleged. He maintains they were legitimate acts that were:
27.1 not done with the requisite intent, or in the circumstances he ought to have understood they would cause such harm or apprehension; and
27.2 done for the legitimate purpose of engaging in political activity and discussion of public affairs (s 61(4)(c) PSIO Act).
The prohibition created by s 61(4)(c) of the PSIO Act on making a final order applies if the Court is satisfied, on the balance of probabilities, the respondent engaged in the prohibited behaviour or stalking without malice and for the relevant purposes. Mr Simon also submits that if the Court is satisfied he has committed prohibited behaviour and stalked Ms Smit and Mr Yemini and he is likely to do so again, it is not appropriate in all the circumstances of the case to make a final order (s 61(1)(c) PSIO Act). He submits the PSIO applications by Ms Smit and Mr Yemini are attempts by them to silence a critic and impinge on Mr Simon’s right to free speech.
Course of conduct
Whilst Mr Yemini and Ms Smit place significant reliance on Exhibit Y5 as part of the evidence to support their applications, they rely on a substantial body of other evidence. Mr Yemini and Ms Smit allege Mr Simon is harassing and stalking them. The definitions of harassment, s 7, and stalking, s 10, both use the phrase ‘a course of conduct’. It cannot be doubted Mr Simon has engaged in a course of conduct toward both Mr Yemini and Ms Smit as established by the exhibits admitted into evidence.
It is not necessary the course of conduct activity take place before the applications and interim PSIOs were made against him in January 2021. A course of conduct can be established by a combination of activity taking place before and after the initiation of an application for a PSIO. Presumably the Court will have considered whether the evidence points to a course of conduct when considering an interim PSIO order under s 33(1) of the Act, but the Court is not required to determine the question be satisfied when an interim order is required. The significance of activities taking place after the application or interim PSIO is often related to the requirement, in s 61(1), the Court be satisfied the prohibited behaviour or stalking is likely to continue. In the circumstances of a particular case, the absence of activity after the making of an interim order might suggest the interim order has been effective and point to a final order being required. In the circumstances of another case, the absence of activity might point to a final order not being required. The occurrence of activity after an interim order will often support the conclusion a final order is required but it will depend on the circumstances of the case. Nevertheless, evidence of events taking place after an interim order is made can be used to establish the respondent has engaged in a course of conduct towards the protected persons. On the evidence, Mr Simon has made it very clear he will continue his activities in relation to Ms Smit, Mr Yemini, RN and RDA should no final PSIO be made. Ms Smit and Mr Yemini allege Mr Simon’s activity post the interim PSIO is directed at them even when his comments are directed at RN and RDA without identifying either of them.
Prohibited behaviour – making a serious threat
As noted, I am not satisfied Exhibit Y5, the “Keyboard warrior – threat to kill” video, is, on its own or in combination with other evidence, appropriately described as a threat to kill or seriously harm either Mr Yemini or Ms Smit. Based on the definition of ‘serious threat’ in s 9 of the PSIO Act, Exhibit Y5 is not capable of founding these applications. I am not satisfied Mr Simon committed prohibitive behaviour, made a serious threat (s 5(e) PSIO Act), as required by s 61(1)(a) of the Act in relation Ms Smit and Mr Yemini.
Prohibited behaviour – harassment
To come within the meaning of harassment the course of conduct must also be conduct that is ‘demeaning, derogatory or intimidating’. Whilst not all the conduct relied upon comes within that description, some of it does. Ms Smit certainly found the offer of a reward for information about her organisation intimidating and found other descriptions and comments about her demeaning and derogatory. I conclude Mr Yemini also found Mr Simon’s course of conduct towards him to be demeaning, derogatory and intimidating.
Stalking
A person stalks another person (the second person and in these applications Ms Smit and Mr Yemini), if they engage in the course of conduct with the intention of causing physical or mental harm to the second person or apprehension or fear in that person for their safety or that of another person. Based on the evidence the specific activities relied upon by Ms Smit and Mr Yemini are:
33.1 publishing material on the internet relating to them;
33.2 making threats to them; and
33.3 acting in any other way that could reasonably be expected to cause them physical or mental harm or apprehension or fear for their own safety or that of another person.
Stalking – physical harm
There is no evidence Mr Simon caused Ms Smit or Mr Yemini any physical harm.
Stalking - mental harm
Mental harm is defined for the purposes of the PSIO Act as psychological harm and suicidal thoughts. There is no evidence Ms Smit or Mr Yemini had suicidal thoughts as a consequence of Mr Simon’s action. There is no expert psychological evidence Ms Smit or Mr Yemini suffered psychological harm. This does not preclude me from concluding they suffered psychological harm. The meaning of ‘mental harm’ in the context of the protective and preventative purposes of the PSIO Act involves something less than a diagnosed psychological condition as found in the DSM – V[2]. Mental harm for the purposes of the PSIO Act must be more than a brief temporary psychological impact but it can be something less than a diagnosable condition. A prolonged period of apprehension, anxiety or fear for the safety of oneself or another person is, in my view, more than sufficient to constitute mental harm under the PSIO Act.
[2]The Diagnostic Statistical Manual of Mental Disorders, Fifth Edition.
I am satisfied Mr Yemini found Mr Simon’s focus on him demeaning, derogatory and intimidating. I am satisfied he has suffered a prolonged sense of fear for his safety and for the safety of those close to him as a result of Mr Simon’s actions. Based on Mr Yemini’s demeanour in Court, albeit in Online Court, I got the distinct impression that at times Mr Yemini relishes the conflict to some extent. A person can suffer psychological harm but still appear to engage with vigour in a related court hearing. On balance, I am satisfied Mr Yemini suffered a relatively low level of psychological harm as a consequence of Mr Simon’s activities.
From the totality of the evidence and Ms Smit’s demeanour, also by online appearance, I got the impression she has been suffering a more significant degree of distress, apprehension and fear that comes within the meaning of psychological harm. The evidence of her brother Daniel Smit supports this conclusion. She came across as determined to appear strong and resilient. Nevertheless, she appeared genuinely anxious to the extent I conclude she suffered psychological harm, relatively low level but to a greater extent than Mr Yemini, as a consequence of Mr Simon’s conduct towards her.
Stalking – arousing apprehension or fear
Ms Smit and Mr Yemini must establish, on the balance of probabilities, that it is more likely than not, Mr Simon stalked them with the intent to cause the relevant harm, apprehension or fear. Alternatively, they must establish, in all the circumstances, Mr Simon ought to have understood engaging in the course of conduct was likely to cause such harm, apprehension or fear and, that it did actually have that outcome. Ms Smit and Mr Yemini gave and called evidence they feared for their own safety and for the safety of others in their immediate circle as a direct consequence of the activities of Mr Simon. There is no evidence to contradict that evidence. I accept the evidence they held that fear.
Stalking – publishing on the internet
As noted, Ms Smit and Mr Yemini do not limit their applications to Exhibit Y5. They also rely on the other exhibit material to establish Mr Simon had the requisite intent.
In Mr Yemini’s application, the most significant aspects of the other material include referring to Mr Yemini as a wife beater. The foundation for that statement was said to be Mr Yemini was convicted of assaulting his wife. Mr Yemini did not dispute that was the case. Mr Simon asserts Mr Yemini is a crowd funding scammer, a fake journalist, and he will never give up going after him. Mr Yemini gave evidence that Exhibit Y8 was a direct threat to Mr Yemini and that it prompted him to apply for the PSIO. Y8 is a FB video said by Mr Yemini to be dated 9 January 2021 and in Ms Bolton’s list dated 9 January 2020. I accept Mr Yemini’s date as it corresponds with his PSIO application. In Exhibit Y8 a person speaking to Mr Simon says “Make sure you get that rat Avi’ and Mr Simon responds “I won’t give up mate. I’ll go after that cunt”. Mr Yemini elicited evidence from his brother that, in Mr Wak’s and Mr Simon’s circle, ‘rat’ refers to a person who informs on people or cooperates with police and such people are sometimes violently acted against for doing so. Some support for this description as a person who ‘lags to police’ is found in the timing of Mr Simon’s response in Exhibit Y8. It occurs immediately after police withdraw their application for a PSIO on behalf of Mr Yemini. In Exhibit Y19 Mr Simon refers to Mr Waks as having ‘lagged me to police’, refers to him as ‘a snitch’ and in Exhibit Y20 as ‘you little rat’. It is concerning Mr Simon makes these references in a context in which he is expressing displeasure that Mr Waks was a witness against him in this matter. Mr Simon’s behaviour towards Mr Waks might be seen as intimidating a witness. Nevertheless, the term ‘rat’ is commonly used in relation to people without having any such implication or intended meaning. It is not uncommon to hear the term ‘rat’ used with a degree of affection or endearment. Mr Simon does not refer to Mr Yemini as a rat in Exhibit Y8, he responds positively to the person who does. Further, the tone and content of Exhibit Y8 on its own and in combination with the totality of the evidence does not support the proposition Mr Simon was threatening to go after Mr Yemini physically. It is consistent with a statement by Mr Simon he intends to continue to pursue exposing Mr Yemini for what Mr Simon alleges is fund scamming and fake journalism.
The evidence in relation to Ms Smit includes the two RDA staff members’ house videos. In the first Mr Simon says, apparently referring to the people in the house “These people are going to be in deep regret when they learn the truth about this organised crime syndicate”. In the second, he refers to the staff members’ home as RDA headquarters and, among other things, refers to Ms Smit’s father as abusing children by accepting a donation from a child for pro bono legal fees, and shortly after says “Ban the dangerous cult regime Reignite Democracy Australia”. In another video, from the RDA compilation video, he says in relation Ms Smit “I have got some notes here on Monica” and in what appears to be a snippet from another video “Next up working on Monica scamming lying rat”. In his live FB video post from the Gold Coast, he says “Oh I figured out how I can say that rat’s name, Moronica. I can say Moronica heh”. I am not satisfied either reference to Ms Smit as a ‘rat’ is Mr Simon intending to convey he is threatening to harm her.
In the Gold Coast video, his response to a comment posted as he records is “Hey Sam Young, Moronica, Moronica Shit heh, heh” presumably repeating part of the posted comment. This video is attributed with the date 16 April 2021 and is therefore potentially a breach of the interim PSIO. In the same live video, he comments “All the fuckin scammers promise to sue Lucky Lance and they never do. All they ever do is get interim intervention orders, right, just to silence me”. Clearly, he is referring to Ms Smit and Mr Yemini. He refers to Ms Smit as the ‘Pakenham girl’ as set out in Exhibit MS2. Again this potentially would breach the interim order.
Stalking - making threats
I have already concluded Exhibit Y5 is not capable of being properly construed as a threat to kill or physically harm Ms Smit and Mr Yemini. However, whilst prohibited behaviour requires the threat to be a serious threat as defined by s 9, the threat required to establish stalking is merely ‘making threats’ (see s 10(1)(b)(viia)) and so is not confined by the definition of serious threat. The evidence establishes Ms Smit and Mr Yemini did fear for their own safety and for the safety of those close to them because of Mr Simon’s course of conduct towards them.
In all the circumstances of this case, the evidence is not capable of establishing Mr Simon intended to cause Ms Smit and Mr Yemini apprehension or fear for their physical safety or the safety of another person, even though I accept it did have that effect. The offers of a substantial reward for evidence to show RDA and RN are ‘criminal syndicates’ is not capable of amounting to evidence, on its own or in combination with other evidence, of an intention to cause Ms Smit and Mr Yemini apprehension or fear for their physical safety or the safety of another person. It might cause them concern for the ‘legal safety’ of their organisations. However, on the evidence there is no basis for Mr Simon’s assertions their organisations are engaged in criminal activity. The related exhibits appear to have an element of satire, albeit there is also a pejorative element. Ms Smit conceded the FB videos, Exhibits MS8 and MS9, taken outside a residential building with an RDA poster in the window on the first video, could be seen as political commentary by Mr Simon. Other evidence of derogatory and insulting comments directed at Ms Smit and Mr Yemini is not capable of amounting to evidence, on its own or in combination with other evidence, of an intention to cause Ms Smit and Mr Yemini apprehension or fear for their physical safety or the physical safety of another person.
Stalking – intention to cause physical or mental harm
As noted, I am not satisfied, on the balance of probabilities, based on all of the evidence Mr Simon intended to cause physical harm to Mr Yemini and Ms Smit.
Mr Yemini submits the activities of Mr Simon are such that, in the context of a person who acknowledges a significant violent criminal history, his protracted and obsessive behaviour towards Mr Yemini, as set out in the exhibits admitted into evidence, must, in all the objective circumstances, cause a reasonable person to fear for his or her safety. I understand Mr Yemini submits that, in those circumstances, the only conclusion available to the Court is that Mr Simon knew engaging in the conduct he engaged in would cause mental harm or arouse such apprehension or fear (s 10(2)(a) of the Act). I understand Ms Smit makes a similar submission, or at least adopts Mr Yemini’s submission on this point.
On the totality of the evidence, I am not satisfied Mr Simon knew his conduct would likely cause Mr Yemini and Ms Smit psychological harm or the requisite apprehension and fear. The alleged direct threats contained in the Keyboard Warrior – threat to kill Exhibit Y5 are not direct threats of physical harm. The subsequent threats to expose Mr Yemini and Ms Smit as crowd funding scammers, organised criminal syndicates, fake journalists and name calling such as ‘Moronica Shit’, ‘convicted wife beater or’ ‘scamming lying rat’ are certainly apt to cause a person a degree of humiliation, embarrassment and feelings of insult. In the way in which they are delivered and in the context of current social media standards, or perhaps lack of standards at times, they do not reach the level in which it is appropriate to conclude Mr Simon knew Ms Smit and Mr Yemini would likely suffer mental harm or such apprehension or fear.
The Act provides an alternative basis on which a person has the intention to cause mental harm or arouse such apprehension or fear. A person has that intention if, in all the circumstances of the case, they ought to have understood the conduct they engaged in would be likely to cause mental harm or arouse such apprehension or fear (s 10(2)(b) of the Act). I have found, as a result of Mr Simon’s actions, Ms Smit and Mr Yemini suffered mental harm and felt apprehension and fear for themselves and those close to them. The issue is whether Mr Simon ought, in all the circumstances, have understood that was likely to be the case.
The evidence establishes that Ms Smit and Mr Yemini made complaints to police alleging Mr Simon’s comments in the Keyboard Warrior – threat to kill video were a threat to kill them. Police made applications to the Court for PSIOs on their behalf. Those applications were withdrawn. Ms Smit and Mr Yemini made their own PSIO applications for orders against Mr Simon shortly after the police withdrew.
Mr Simon knows he is a person with a history of violent criminal offending. Ms Bolton conceded that was the case. Mr Simon was aware Mr Yemini was the brother of Mr Simon’s own former partner in violent crime, Mr Haim Waks, and that Mr Yemini must have been aware of that history. In his Keyboard Warrior – threat to kill video, Mr Simon connects Ms Smit with Mr Yemini and he maintains that link in his cash reward videos, so he must be taken to have understood they were colleagues in some fashion. Mr Simon must be taken to be aware his wife obtained a degree of public recognition as a lawyer acting for some of the alleged participants in the prolonged period of criminal underworld murders in Melbourne. Exhibit Y1 speaks loudly to Mr Simon’s awareness of that public recognition of Ms Garde-Wilson.
In her application to the court Ms Smit states among her reasons for why an order is required:
I was not afraid of Lance, until he made the video and as Lance has committed manslaughter before, his threats are more frightening than someone who doesn’t have a criminal record. I know his wife and friends are connected to underground operations and all of this makes me very uncomfortable and scared.
The evidence establishes Mr Simon was not convicted of manslaughter. Some other aspects of these assertions are not established by the evidence. Nevertheless, her fear and apprehension must have been known to Mr Simon once Ms Smit complained to police and subsequently the police, and then Ms Smit’s, Application and Summons and the related interim PSIOs were served on him. Even if initially, when he made the Keyboard Warrior – threat to kill video, Mr Simon was not aware of its likely impact on Ms Smit, he ought, in all the circumstances, have understood his subsequent conduct towards Ms Smit would likely cause her to suffer mental harm and feel apprehension and fear for herself and those close to her.
In his application to the Court, among his reasons for why an order is required, Mr Yemini sets out many of the matters covered by his exhibits and given in evidence by his brother Mr Waks. Mr Yemini concludes “I am in fear of the respondent due to his threats and seek an immediate interim order”.
As was the case with Ms Smit, Mr Simon ought, in all the circumstances, have understood his subsequent conduct towards Mr Yemini would likely cause him to suffer mental harm and feel apprehension and fear for himself and those close to him.
Conclusions regarding s 61(1)(a) of the Act
In summary I am satisfied on the balance of probabilities:
55.1 Mr Simon has committed prohibited behaviour towards Mr Yemini and Ms Smit in the form of harassment (s 5 and s 61(1)(a)(i) of the Act);
55.2 Mr Simon’s harassment would cause a reasonable person to fear for his or her safety (s 61(1)(a)(i)(B) of the Act);
55.3 Mr Simon has stalked Mr Yemini and Ms Smit in the form of publishing on the internet (s 10(1)(b)(iii) of the Act);
55.4 Mr Simon intended to cause mental harm and the requisite apprehension and fear to Mr Yemini and Ms Smit because, in all the circumstances, he ought to have understood his conduct towards them would likely cause such impacts on them, and it did have that result; and
55.5 Mr Simon is likely to continue to commit prohibited behaviour and stalk Mr Yemini and Ms Smit.
Political activity and public affairs
The Act prohibits the Court from making a final order in the circumstances set out in s 61(4). To come within s 61(4), Mr Simon must have acted without malice and act for the purpose of engaging in ‘political activities or discussion or communicating with respect to public affairs’.
In their submissions, Ms Smit and Mr Yemini rely on the same definition of ‘malice’ as taken from the Collins Dictionary, “Malice is behaviour that is intended to harm people or their reputations, or cause them embarrassment or upset”. This definition is appropriate for general use. In the context of s 61(4), the term ‘without malice’ is used in a way that is somewhat akin to, but not the same as, a qualified privilege. Ultimately the meaning of ‘without malice’ in s 61(4) is to be assessed within the context of the PSIO Act. The main purposes of the Act are set out in s 1. Relevantly, they are to protect the safety of victims of harassment and stalking. The means of achieving the purpose is set out in s 2 and, for present purposes, the most relevant means is to create an offence for contravention of a PSIO. Thus, the context provided by the PSIO Act involves the creation of a criminal offence potentially flowing from the imposition of an ‘injunctive’ order.
The specific context of s 61(4) is to preclude the Court making final PSIO orders where it is satisfied the respondent engaged in the prohibited behaviour or stalking for the purpose of engaging in political activities or the discussion or communicating with respect to public affairs and did so without malice. Thus, s 61(4) precludes the Court from making an injunctive order, with its potential criminal consequences, in those specific circumstances. It prevents the possible criminalisation of political activity or discussion or communication with respect to public affairs.
It is in this context the words ‘without malice’ must be given meaning. In Roberts v Bass[3] (Roberts), the High Court considered the meaning of ‘malice’ in a different context. In Roberts, the issue of malice arose in circumstances of a claim of qualified privilege during an election campaign and allegations of defamation. Discussing malice Gaudron, McHugh and Gummow JJ observed:
[3][2002] HCA 57; 212 CLR 1. I will at times refer to their Honours Gaudron, McHugh and Gummow JJ as the ‘plurality’.
An occasion of qualified privilege must not be used for a purpose or motive foreign to the duty or interest that protects the making of the statement. A purpose or motive that is foreign to the occasion and actuates the making of the statement is called express malice. The term ‘‘express malice’’ is used in contrast to presumed or implied malice that at common law arises on proof of a false and defamatory statement. Proof of express malice destroys qualified privilege. Accordingly, for the purpose of that privilege, express malice (malice) is any improper motive or purpose that induces the defendant to use the occasion of qualified privilege to defame the plaintiff. In Browne v Dunn, Lord Herschell LC said that malice ‘‘means making use of the occasion for some indirect purpose’… In Horrocks v Lowe – the leading English case on malice – Lord Diplock said
‘‘So, the motive with which the defendant on a privileged occasion made a statement defamatory of the plaintiff becomes crucial. The protection might, however, be illusory if the onus lay on him to prove that he was actuated solely by a sense of the relevant duty or a desire to protect the relevant interest. So he is entitled to be protected by the privilege unless some other dominant and improper motive on his part is proved. ‘Express malice’ is the term of art descriptive of such a motive.’’
Improper motive in making the defamatory publication must not be confused with the defendant’s ill-will, knowledge of falsity, recklessness, lack of belief in the defamatory statement, bias, prejudice or any other motive than duty or interest for making the publication. If one of these matters is proved, it usually provides a premise for inferring that the defendant was actuated by an improper motive in making the publication… leaving aside the special case of knowledge of falsity, mere proof of the defendant’s ill-will, prejudice, bias, recklessness, lack of belief in truth or improper motive is not sufficient to establish malice. The evidence or the publication must also show some ground for concluding that the ill-will, lack of belief in the truth of the publication, recklessness, bias, prejudice or other motive existed on the privileged occasion and actuated the publication.[4]
[4]Roberts at [75] – [76].
Later in their joint judgement, Gaudron, McHugh and Gummow JJ discuss the circumstances in which malice might be established. They observe knowledge of falsity or lack of honest belief in the truth of a statement are not separate heads of malice. Rather the common law, and the law of qualified privilege, regard malice as the publishing of defamatory material with improper motive. Knowledge of the falsity of the statement is considered almost conclusive evidence of improper motive, and that the publication was actuated by that improper motive. Lack of an honest belief in the truth of the statement may, if the circumstances justify it, also lead to the conclusion the publication was actuated by improper motive. They observe:
It is the motive or purpose for which the occasion is used that is ultimately decisive, not the defendant’s belief in the truth of the matter.[5]
[5]Ibid at [79].
The plurality also discusses the reality the person who utters the statement may have an honest belief as to the meaning to be attributed to their words and the hearer, or a jury, may attribute a very different meaning to those words – words may have more than one meaning attributed to them. As noted above, Ms Smit and Mr Yemini treat the words in the Keyboard Warrior – threat to kill video, Exhibit Y5, as a threat by Mr Simon to kill them and I have found those words do not have that meaning. As already observed, the same can be said of the word ‘rat’ – it is capable of having different meanings based on the context in which it is used. Having considered words are capable of being attributed a meaning not intended by the speaker, the plurality state neither lack of honest belief nor knowledge of falsity will of themselves destroy a defence of qualified privilege, before observing:
In exceptional cases, the sheer recklessness of the defendant in making the defamatory statement, may justify a finding of malice. In other cases, recklessness in combination with other factors may persuade the court that the publication was actuated by malice. In the law of qualified privilege, as in other areas of law, the defendant’s recklessness may be so gross as to constitute wilful blindness, which the law will treat as equivalent to knowledge.[6]
[6]Roberts at [84].
Carelessness is not the same as recklessness. As the plurality observed:
Carelessness of expression or carelessness in making a defamatory statement never provides a ground for inferring malice… Even irrationality, stupidity, or refusal to face facts concerning the plaintiff is not conclusive proof of malice although in an extreme case it may be evidence of it.[7]
[7]Ibid at [103]
The plurality confirmed the onus lies with the plaintiff to show a publication was actuated by an improper motive.[8] Honesty of purpose is presumed in favour of the publisher of the statement. In most cases, a defendant who has no belief in the truth of what they publish will know or believe it is not true. In the law of qualified privilege, lack of an honest belief means a belief the matter is untrue.[9] The onus rests with the plaintiff to negate the presumed honesty of purpose. The plaintiff must prove:
…the defendant acted dishonestly by not using the occasion for its proper purpose. Unless that is kept in mind, there is a danger that reference to the honesty of a defendant will reverse the onus of proof.[10]
[8]Ibid at [90].
[9]Ibid at [96].
[10]Ibid at [97].
To establish malice the plaintiff must prove not only improper purpose or motive, but also must prove it was the dominant reason for the defendant publishing the statement. Substantial evidence is required to establish malice was the operating cause of the defendant’s publication of the offending statement.[11]
[11]Ibid at [104].
Questions of qualified privilege and defamation do not arise directly in the applications before me, but the reasons in Roberts provide valuable guidance on the meaning and application of the words ‘without malice’ in s 61(4). The protection provided by s 61(4) for the purpose of engaging in political activities and communicating with respect to public affairs shares some common purpose and rationale with the qualified privilege and the constitutional freedom of communication considered in Roberts. The section also falls within the right to freedom of expression provided by s 15 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (the Charter). The ‘without malice’ qualification in s 61(4) provides a reasonably necessary lawful restriction on the right to freedom of expression of the kind provided for in s 15(3) of the Charter.
Based on the reasoning in Roberts and the context provided by the PSIO Act, ‘malice’ in s 61(4) requires the published statement to be used or motivated for a purpose foreign to the political activity, or communication regarding public affairs, the respondent was engaged in. Malice may be established by direct evidence of a foreign purpose or motivation, or it may be established by implication from the totality of the evidence. Knowledge of the falsity of a statement will almost certainly be treated as proof of malice. Lack of belief in the truth of a statement is not equivalent to knowledge of falsity. Recklessness as to the truth or falsity of a statement will not establish malice unless it is accompanied by some other state of mind that, in combination with the recklessness, leads to the conclusion the statement was made with a foreign purpose or motive.
Ms Smit and Mr Yemini submit the onus rests with the respondent Mr Simon to show he acted without malice. It is possible to argue the use of ‘without malice’ shifts the onus from the applicant in s 61(1) to the respondent in s 61(4). I do not consider this to be right. ‘Without malice’ simply means, ‘in the absence of malice’, the prohibition on making a final PSIO created by s 61(4) applies. If a respondent points to evidence that shows one of the subparagraphs of s 61(4) is applicable, then the applicant must establish the respondent acted with malice to displace the prohibition. This is consistent with the common law as set out in Roberts and the mechanism for achieving the purposes of the PSIO Act, the creation of a criminal offence, set out in s 2(c) of the Act. Nothing in the wording of s 61(4) indicates the PSIO Act shifts the onus from the applicant in s 61(1) to the respondent in s 61(4). The onus rests with Ms Smit and Mr Yemini to establish Mr Simon published the offending material with an improper motive. As observed in Roberts, substantial evidence, not surmise or mere scintilla, is required to establish improper motive.
Both Mr Yemini and Ms Smit complain some of Mr Simon’s comments about them and their organisations, RN and RDA respectively, are defamatory. Whether his statements are defamatory or not is not an issue to be determined in these cases. As noted, the issue is whether the Ms Smit and Mr Yemini have established a final PSIO should be made on their applications.
Ms Smit conceded some of the activities of Mr Simon relied upon could come within the meaning of political activity. In particular, Ms Smit conceded the videos Mr Simon made outside the RDA members’ house, Exhibits MS8 and MS9, could be seen as political commentary by Mr Simon. She made it clear she did not consider threats and personal abuse by Mr Simon could be considered political commentary or matters related to public affairs. She submits Mr Simon’s adverse commentary about RDA is directed at her personally. In particular, Ms Smit submits Mr Simon’s use of cash incentives, Exhibits MS1 and MS3 (Y13), use of the term ‘Moronica Shit’ in MS4, combined with the alleged threats in the Keyboard Warrior – threat to kill video, Exhibit Y5, are clearly intended to harm her, her reputation and cause her embarrassment and upset. She stated she was an advocate for free speech but drew the line at threats and personal abuse.
In his submissions, Mr Yemini disputes that Mr Simon’s activities directed at him come within the meaning of political and public affairs discussion. Mr Yemini submits the political activities and public affairs qualification provided by the PSIO Act is considerably narrower than the freedom of expression right protected by s 15 of the Charter. He submits the requirement of s 61(4) of the Act is analogous to the implied freedom of political communication dealt with in Hogan v Hinch (Hinch).[12] In his submissions, Mr Yemini acknowledges the range of matters that come within the implied freedom are broad and cites a passage to that effect from French CJ in Hinch at [49].
[12][2011] HCA 4.
Mr Yemini submits none of the material before the court shows Mr Simon engaging “in any independent and/or thoughtful discussion or consideration of a topic. His public posts contain no intellectual content, nor any genuine connection to political matters or affairs.” Mr Yemini goes on to submit that it is clear Mr Simon is not genuine because “a few months prior to the respondent’s campaign (against Mr Yemini) he was posting videos in objection to Covid policies and his views on police and government overreach.” There is very little material before the Court as to Mr Simon’s postings prior to his course of conduct directed at Mr Yemini. It was Mr Yemini’s evidence, supported by Exhibit Y1, that Mr Simon was of a like mind to Mr Yemini on many issues before Mr Yemini rejected Ms Garde-Wilson’s offer of legal assistance for Mr Yemini. I understand Mr Yemini’s evidence and submissions to be that Mr Simon is hypocritical when he attacks Mr Yemini as a wife beater, crowd funding scammer, fake journalist and a person running a criminal syndicate. In effect, Mr Yemini submits Mr Simon has a criminal history for violence, previously held similar views to Mr Yemini, admired Mr Yemini’s political activism and was driven by malice arising from Mr Yemini’s rejection of a generous offer by Mr Simon’s wife of legal assistance for Mr Yemini.
Both Ms Smit and Mr Yemini adopt the position that comments by Mr Simon about or directed at their respective organisations, RDA and RN, are directed at them personally. It is clear Ms Smit and Mr Yemini consider themselves to be political activists. Ms Smit said in evidence her organisation, RDA, did more than just political activities. That does not mean it is not an organisation engaged in political activities – on her own evidence it clearly is. The names of both organisations speak to them being organisations engaged in political activity and discussion or communication in relation to public affairs. Given Mr Yemini and Ms Smit say they are synonymous with their organisations, they are their organisations, then Mr Simon’s commentary about them and their organisations must, at least at a general level, be communication or discussion with respect to public affairs and a form of political activity.
It cannot be that publishing material for the purpose of harming your political opponent, or your opponent in a debate about public affairs, is of itself malicious. The absence of reasoned argument, enunciated policy positions, intellectual content, or independent thoughtful discussion cannot rob commentary of the status of engaging in political activities or public affairs. Participants in political activities and public affairs are entitled to participate in an entirely negative or oppositional manner. There is no obligation to participate in a positive, proactive fashion even though many may argue to maximise your contribution one should do so. In the circumstances of a particular case the absence of reasoned argument or policy might be relevant to whether the person has a foreign purpose or motive but it could not of itself establish malice.
That someone has changed their position or views from those held at an earlier time cannot of itself be evidence of malice. The purpose of political activism and public debate is to cause people to change their point of view. As observed in Roberts, honesty of purpose is presumed in favour of the publisher of the statement. The presumption is an important aspect of the right to free speech, the implied freedom of political communication and the protection provided by s 61(4) to engage in political activity and public affairs. This does not mean a person engaged in political activities or debate about public affairs has ‘open slather’. As Kirby J observed in Roberts, political communication in Australia “is often robust, exaggerated, angry, mixing fact and comment and commonly appealing to prejudice, fear and self-interest.”[13] Nevertheless, the test as to malice applies.
[13]Roberts at [171].
Whilst Ms Smit concedes some aspects of the evidence of Mr Simon’s conduct towards her may be characterised as political activity, Mr Yemini makes no such concession. He submits Mr Simon’s conduct towards him cannot be characterised as political activity, debate on public affairs or even comedy.
Mr Simon’s references to Mr Yemini as a ‘fake journalist’, ‘crowd funding scammer’, ‘crowd funding rat’, ‘the holder of a fake media pass’ and a ‘scammer’ may not be true, there is no evidence before me to show they are true, but they are comments made in the context of the discussion of public affairs and in opposition to Mr Yemini’s political activities. His reference to Ms Smit as a ‘crowd funding scammer’, ‘crowd funding rat’, the ‘girl out of Pakenham’, ‘Monica scamming lying rat’, alleging her father was abusing children in his fund raising for pro bono legal fees, are comments made in the context of the discussion of public affairs and in opposition to Ms Smit’s political activities. They are not of themselves, or in combination with other evidence, capable of establishing malice. They are not capable of establishing a purpose or motive foreign to the political activity and debate on public affairs being engaged in by Mr Simon, Ms Smit and Mr Yemini.
The Keyboard Warrior – threat to kill video is not a threat to kill or physically harm Mr Yemini, or Ms Smit. The offers of reward and references to Ms Smit and Mr Yemini’s respective organisations as ‘two organised crime syndicates’ are a parody on police investigation techniques and ‘cheque book’ journalism, albeit not side-splitting comedy. The various references to Mr Yemini and Ms Smit as ‘rats’ may carry the connotation they are people who complained about Mr Simon to police but, taken in the context in which they are used in the relevant exhibits, they do not in my view carry a threat or sense of intent to harm them. Again, whilst these are not the most astute engagements in political activity and debate on public affairs, they are not capable of establishing malice on their own or in combination with other evidence. Once it is established the threat is a threat to pursue a relentless campaign against Ms Smit, Mr Yemini and their respective organisations for their political views and activity, they are not capable of establishing a purpose or motive foreign to the political activity and debate on public affairs being engaged in by Mr Simon, Ms Smit and Mr Yemini.
The adaptations of Ms Smit’s name in the references “I figured out how I can say that rats name, Moronica. I can say Moronica heh”, then “Moronica, Moronica Shit” in the Gold Coast live video and the reposting of ‘Monica Smite’ come close to suggesting a purpose or motive foreign to the political activity and debate on public affairs being engaged in by Mr Simon and Ms Smit. Not only do they potentially breach the interim PSIO Ms Smit obtained against Mr Simon but they can fairly be described as demeaning, derogatory, insulting and possibly intimidating. They suggest Mr Simon’s motive and purpose is to insult and demean Ms Smit in the context of a public debate about political issues and a matter of public affairs. I gather the political activity and issues of public affairs probably relate to vaccination requirements, the response of the Victorian government to the Covid-19 pandemic and issues of free speech. Save for his reference to ‘anti-vaxxers’, Mr Simon’s various posts don’t make clear what his views, or, for that matter, the views of Ms Smit he objects to, are. However, Ms Smit is required to show Mr Simon’s ill-will toward her motivated or actuated his publication of these demeaning references. Taking the evidence as a whole, I am not satisfied she has established Mr Simon acted with malice in the required sense when making these demeaning and insulting references.
The reference to Mr Yemini as “the (convicted) wife beater” is certainly provocative and prone to be considered demeaning and derogatory by Mr Yemini. Given Mr Simon’s own history of criminal violence it is not surprising Mr Yemini considers they show Mr Simon to be a hypocrite. On the other hand, Mr Yemini approached his case on the basis he was not disputing he was convicted of assaulting his wife. There is no specific context that would suggest the comment holds any significant relevance in Mr Simon’s apparent campaign against Mr Yemini in a public debate about political issues and matters of public affairs. Nevertheless, any political activist, politician or contributor to public affairs can expect their history of perpetrating family violence and other criminal violence will be used against them by their opponents. Mr Simon could certainly expect his own history of violent criminal offending would be used against him. It might fairly be said to come within the robust nature of Australian political life described by Kirby J in Roberts. In the context of Mr Yemini’s application and the totality of the evidence on his case I am not satisfied he has established Mr Simon acted with malice in the required sense when making this demeaning and derogatory reference.
Mr Yemini also relies upon Mr Simon’s threats directed at his brother Mr Waks in Exhibits Y19 and Y20. Those comments about Mr Waks as a witness for Mr Yemini are seriously troubling. Mr Simon asserts Mr Waks lagged him to police and accuses Mr Waks of perjury. The evidence certainly does not establish Mr Waks perjured himself. Apparently, Mr Waks chose to make a statement to police in relation to a police investigation – it is fair to say most people would consider it one of their obligations as a member of the community to assist police investigations. The community does not accept a person should be attacked or ostracised for assisting police to carry out their difficult work on behalf of the community. Nevertheless, these comments about Mr Waks do not point to an improper motive or foreign purpose in regard to Mr Simon’s attacks on Mr Yemini. They may amount to interference with a witness, intimidation of a witness, in this proceeding, but they are not about Mr Yemini as such, much less Mr Simon’s engagement in political activity and public debate in relation Mr Yemini’s political activities and engagement in public affairs.
Mr Yemini also submitted the motive for Mr Simon’s attacks on him was his refusal of an offer of legal assistance made by Mr Simon on behalf of his wife Ms Garde-Wilson. It was also suggested the defamation action Mr Simon’s wife apparently took against Mr Yemini might have motivated Mr Simon. Nothing in the evidence establishes either of these matters was what actuated Mr Simon’s conduct. As was observed in Roberts, substantial evidence is required to establish improper motive. The role of the refused offer of legal assistance and Ms Garde-Wilson’s defamation action sit at the level of surmise not evidence.
At times the exhibits convey the impression Mr Simon seeks to build his own social media presence by making comment about Mr Yemini, Ms Smit, RN and RDA. Neither Ms Smit or Mr Yemini suggested this was an improper motive or foreign purpose actuating Mr Simon. The evidence on this point sits more at the level of speculation than substance.
Appropriate to make a final order
Whilst I am not satisfied Ms Smit and Mr Yemini have established on the evidence Mr Simon was actuated by malice, others may hold a different view. My finding means s 64(4) precludes the Court making final PSIO orders on Ms Smit’s and Mr Yemini’s applications. In all the circumstances of these applications, despite my findings on s 61(4), it is appropriate to consider the requirements of s 61(1)(c). The Court must be satisfied, on the balance of probabilities, it is appropriate in all the circumstances of the case to make a final order. I have found, on the balance of probabilities, the requirements of s 61(1)(a) are established. The requirements of s 61(1)(b) are not in issue on either application, so it is satisfied. The requirement, it be appropriate in all the circumstances to make a final order, arises if s 61(1)(a) and (b) are satisfied.
Arguably s 61(4) can have little bearing on whether it is appropriate in all the circumstances to make a final order. It either precludes the making of a final order or it doesn’t. If it does not preclude the making of a final order, the applicant must have established the respondent acted with malice when engaging in political activities or communicating with respect to public affairs. As a general rule, it would be difficult to conclude it was not appropriate to make a final order given a finding the respondent acted with malice.
If this approach to s 61(1)(c) is correct, then ‘appropriate in all the circumstances of the case’ requires something beyond the fact the parties were engaging in political activity and public affairs. It requires a reason why, on the balance of probabilities, it is not appropriate to make a final order despite the harassment and stalking of Ms Smit and Mr Yemini, as I have found it to be, and my conclusion Mr Simon has given every indication he will continue his behaviour towards them. Ms Smit and Mr Yemini assert comments about their organisations must be treated as comments about them. Ms Smit seeks a final order that prevents Mr Simon from making any comment and publishing any material about her and RDA, her political organisation. Whilst Mr Yemini did not specifically make the same submission I understand from his application and his evidence he seeks a similar order covering himself and RN, his organisation.
If comments about RN and RDA must be treated as comments about Mr Yemini and Ms Smit personally then the converse is true. Comments about Mr Yemini and Ms Smit’s engagement in political activity and public affairs should be treated as comments about RN and RDA respectively. Effectively Mr Yemini and Ms Smit seek to shield themselves and their organisations from unfavourable comment by treating their organisations as extensions of themselves and themselves as extensions of their organisations. Their organisations are engaged in political activity and debate on public affairs. The PSIO Act – by its name, its purposes and by the definitions of ‘affected person’, ‘party’ and ‘protected person’ in s 4 of the Act – applies to people, not organisations. Given the nature of Mr Simon’s comments about Ms Smit and Mr Yemini and their respective organisations, it is not appropriate to make final orders where any comment about RDA and RN are treated by Ms Smit and Mr Yemini to be comments about them personally, and conversely comments about them should be considered comments about their respective organisations. In these circumstances and on the evidence before me, it is not appropriate to prevent Mr Simon engaging in political activity and debate about public affairs in relation to Ms Smit and Mr Yemini’s engagement in political activity and public debate.
Other matters
I have referred to ‘potentially’ breaching the interim orders rather than asserting breaches of the interim orders. I have done so for two reasons:
87.1 a breach of an interim order is a criminal offence and there are no criminal charges of breach before me; and
87.2 the focus of the evidence was not to establish breaches of the interim orders but to determine whether grounds exist for making final orders.
I am not in a position to determine whether those potential breaches are in fact breaches of the interim orders to the criminal standard so it is not appropriate to describe them as breaches of the interim order.
ORDERS:
The application for a final personal safety intervention order by Ms Smit is refused.
The application for a final personal safety intervention order by Mr Yemini is refused.
In the circumstances of the matters before me and the findings I have made, it is appropriate each party bear their own cost in accordance with s 111(1) of the Act.
G Connellan
Magistrate
12 September 2022
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