Appellant v First Respondent Second Respondent

Ms A Hogan, Acting Solicitor for Public Prosecutions

1 The appellant appeals to the Court under s 272(1) of the Criminal Procedure Act 2009 (Vic) on a question of law against final orders made on 11 October 2017 by a Magistrate whereby her Honour convicted the appellant for an offence contrary to s 185D of the Public Health and Wellbeing Act 2008 (Vic) ('the Act').

2 By a charge of 4 August 2016 (amended on 2 August 2017) the appellant was charged with the offence that 'the accused at East Melbourne on the 4/8/16 did engage in prohibited behaviour namely communicating about abortions with persons accessing premises at which abortions are provided while within a safe access zone in a way that is reasonably likely to cause anxiety or distress.'

3 After the prosecution called evidence on 6 October 2017, the appellant made a no-case submission, which was refused. Following further submissions, on 11 October 2017 the appellant was convicted of the offence and released on an undertaking to be of good behaviour. The appellant did not call any evidence.

4 By Notice of Appeal dated 8 November 2017, the appellant appealed against her conviction on three grounds.

5 The first two grounds were removed to the High Court of Australia pursuant to s 40 of the Judiciary Act 1903 (Cth). Thus, the appellant (together with another individual, Mr Preston) challenged the constitutional validity of s 185D of the Act. She submitted that the impugned provision impermissibly burdened the implied freedom of political communication.

6 The High Court unanimously dismissed the appeal.[1] The majority, Kiefel CJ, Bell and Keane JJ, as well as Nettle J, found that the prohibition was justified by a legitimate purpose.[2]

7 The remaining ground, ground 3, was left to be decided by this Court. Following amendment on the day of the hearing ground 3 reads:[3]

The learned Magistrate erred in law in convicting the Appellant:

a. without making a finding of fact as to an essential element of the actus reus of the offence, namely that the appellant communicated in relation to abortion;

b. when no reasonable person could have done so because there was no evidence that the appellant communicated in relation to abortion;

c. by finding that an intention to communicate in relation to abortion was sufficient to find the charge proved;

d. by applying the wrong test as to what is required for communicating in relation to abortion to be "reasonably likely to cause distress or anxiety".

8 The appellant placed primary emphasis on ground b, claiming that it was not open to find, on the evidence, that the appellant 'communicated in relation to abortion.'

9 The second respondent, the Attorney-General for the State of Victoria, did not participate in the hearing.[4]

10 Part 9A of the Act provides for safe access to premises at which abortions are provided. The purpose of the Part is set out in s 185A as follows:

The purpose of this Part is -

(a) to provide for safe access zones around premises at which abortions are provided so as to protect the safety and wellbeing and respect the privacy and dignity of -

(i) people accessing the services provided at those premises; and

(ii) employees and other persons who need to access those premises in the course of their duties and responsibilities; and

(b) to prohibit publication and distribution of certain recordings.

A person must not engage in prohibited behaviour within a safe access zone.

Penalty: 120 penalty units or imprisonment for a term not exceeding 12 months

12 A 'safe access zone' is defined as 'an area within a radius of 150 metres from premises at which abortions are provided'.[5]

13 Section 185B(1) of the Act defines 'prohibited behaviour' which includes the following:

(a) in relation to a person accessing, attempting to access, or leaving premises at which abortions are provided, besetting, harassing, intimidating, interfering with, threatening, hindering, obstructing or impeding that person by any means; or

(b) subject to subsection (2), communicating by any means in relation to abortions in a manner that is able to be seen or heard by a person accessing, attempting to access, or leaving premises at which abortions are provided and is reasonably likely to cause distress or anxiety. (emphasis added)

...

14 The kind of 'prohibited behaviour' relevant to this appeal is identified in para (b).

15 'Abortion' is defined by reference to s 3 of the Abortion Law Reform Act 2008 (Vic),[6] which states that abortion means:

intentionally causing the termination of a woman's pregnancy by -

(a) using an instrument; or

(b) using a drug or a combination of drugs; or

(c) any other means.

16 Finally, certain principles apply to Part 9A as set out in s 185C of the Act as follows:

(a) the public is entitled to access health services, including abortions;

(b) the public, employees and other persons who need to access premises at which abortions are provided in the course of their duties and responsibilities should be able to enter and leave such premises without interference and in a manner which -

(i) protects the person's safety and wellbeing; and

(ii) respects the person's privacy and dignity.

17 In Clubb, Kiefel CJ, Bell and Keane JJ cited the Second Reading Speech for the Bill introducing the offence[7] wherein the Minister explained why this protective purpose was focused within the area of the safe access zone:[8]

It is unreasonable for anti-abortion groups to target women at the very time and place when they are seeking to access a health service, or to target health service staff. The impact of such actions on these women must be understood within the context of their personal circumstances. Many are already feeling distressed, anxious and fearful about an unplanned pregnancy, or a procedure that they are about to undergo. To be confronted by anti-abortion groups at this time is likely to exacerbate these feelings. It is intimidating and demeaning for women to have to run the gauntlet of anti-abortion groups outside health services.

18 Kiefel CJ, Bell and Keane JJ also stated:[9]

It is within those zones that intrusion upon the privacy, dignity and equanimity of persons already in a fraught emotional situation is apt to be most effective to deter those persons from making use of the facilities available within the safe access zones. This, after all, is the very reason for Mrs Clubb's activities.

19 Her Honour identified the evidence which was led on behalf of the prosecution.[11] She highlighted that no evidence was led from the appellant or on her behalf.

20 She summarised the prosecution case being that in 2016 Inspector Cartwright was assigned by Police Command to ensure that police would be able to discharge their duties under the Safe Access Zones legislation which came into effect on 2 May 2016. Between that date and 4 August 2016 the Inspector met with groups, including 'The Helpers of God's Precious Infants' ('The Helpers') to which the appellant belonged. Although he did not recall discussions with the appellant, Inspector Cartwright recalled her being at the meetings. Inspector Cartwright said that they discussed the 150 metre mark, how it was delineated and displayed, and he also asked them to abide by the relevant exclusions.

21 She further found that in July 2016 members of The Helpers contacted Inspector Cartwright and expressed an intent to breach the safety zone to test the legislation on 4 August 2016 (although it is not suggested that the appellant was directly involved with these discussions). The police thereby briefed some 20 officers to attend on 4 August 2016 to ensure calm.

22 Her Honour found that the appellant was first seen by police at the eastern boundary of the clinic just after 10:00am on 4 August 2016, at which time Inspector Cartwright asked her to desist from breaking the law. Within minutes, the appellant was seen by numerous police to enter the safe access zone, pamphlets in hand, and stand some 5 metres from the entrance to the Clinic. The appellant was arrested after she approached a young couple entering the Clinic, at approximately 10:30am.

Video of the event, shown to me, shows Mrs Clubb attempting to engage the couple by speaking to them and handing over a pamphlet. The male of the couple is seen to speak and obviously decline the offering of the pamphlet and move, with the young woman, away. There is no evidence of duress or violence of any kind. The engagement between the Accused and the couple is brief and appears polite. (emphasis added)

24 From the moment of her arrest, the appellant is co-operative with police. She denies any wrongdoing and tells arresting police:

"I don't intend to leave. I believe I have the right to offer my help to women".

25 Her Honour rejected a submission that there was no case to answer on the basis that there was no evidence to conclude what was actually said to the couple.

26 She also rejected a submission that there was no evidence to find that the couple were distressed or anxious as a result of their encounter with the appellant. In so saying she was satisfied 'that the engagement between the accused and the couple entering the clinic was reasonably likely to cause the couple, at the least, discomfort'.

Overall, the evidence appears to this Court to be overwhelming. Mrs Clubb is videoed breaching the safe access zone. She has engaged in discussions directly and indirectly, with Inspector Cartwright, about her intended breach of the legislation. She has been spoken to and cautioned at least twice, at the site and prior to the breach, by police, in an effort to warn her off the intended breach. She has progressed to her actions defiantly and deliberately, despite those warnings.

Although Mrs Clubb was carrying two pamphlets at the time she breached the law I am satisfied beyond any doubt that it was her intention to engage that couple in discussion relevant to abortion. I am satisfied that she has communicated with them for that sole purpose, as I have said, defiantly and deliberately.

The charge is found proven, beyond any reasonable doubt.

28 An appeal under s 272 of the Criminal Procedure Act is an appeal 'on a question of law.'

29 The Court of Appeal has highlighted four (non-exhaustive) examples of mistakes that might constitute errors of law, as follows:

(a) whether the [decision-maker] has identified the relevant legal test;

(b) whether the [decision-maker] applied the correct legal test;

(c) whether there is any evidence to support a finding of a particular fact; and

(d) whether the facts found fall within a statute properly construed.[12]

30 In analysing whether there is 'no evidence,' pursuant to (c) above, the relevant question to be asked is:

(a) whether there was 'any evidence upon which the magistrate might, as a reasonable person, come to the conclusion' reached; or

(b) whether the finding was open.[13]

31 These two formulations may be regarded as substantially equivalent.[14] However, they also need to be considered in the context of a circumstantial case in the criminal context. As is identified below, the issue in this context is whether it was open for the Magistrate to find that the appellant was guilty beyond reasonable doubt.

32 In hearing an appeal, courts are also to be concerned to respect the role of a decision-maker and not to seek out error. In particular, a court should avoid an overly pernickety or overly legalistic examination of the reasons.[15] Additionally, '[o]n appeal this Court must recognise the forensic realities of the way in which the case was put to the [decision-maker]. It is these realities to which a [decision-maker] must respond in its reasons'.[16]

Grounds concerning whether communication 'in relation to abortion'

Whether no evidence that appellant 'communicated in relation to abortion' (ground 3(b))

33 This was the primary way the case was put. Thus, the appellant submitted that a finding that the appellant 'communicated in relation to abortion' could not be made on the evidence, having regard to the three possible ways there may have been communication: verbal; written; or non-verbal.

34 In terms of verbal communication, she emphasised that there was no finding as to what, if anything, the appellant verbally said to the couple. The appellant also claimed that the prosecution had evidence available as to what may have been said, namely evidence of the couple entering the clinic, but chose not to call that evidence, such that a Jones v Dunkel[17] inference ought be drawn that their evidence would not have assisted the prosecution case.

35 In terms of written communication, there was no finding as to which of the two pamphlets were offered to the couple in circumstances where the second pamphlet was not a communication in relation to abortion. It followed that if that was the one shown to the couple, or if the blank side of it had been shown (consistent with the evidence of Sergeant Moran)[18] there was no communication in relation to abortion.

36 In oral submission it was highlighted that, in any event, the couple could not discern the contents of the pamphlets, consistent with the evidence of the police witnesses that they did not see the contents of the pamphlets.

37 Finally, as to non-verbal communication, the attempt to hand over one of the two pamphlets was insufficient, given something which gave content to the non-verbal communication needed to be adduced.

38 The appellant also submitted that the principles of legality require that s 185D be construed strictly, as do sections 12, 15 and 32 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) ('the Charter'). The requirement that there be a 'communication about abortion' should therefore not be elasticised to include, for example, 'communicating about pregnancy.'

39 In oral submission Senior Counsel appeared to accept that there was actually a 'communication'[19] but highlighted the brevity of the communication (of around five seconds) and suggested that an introduction would take up that period of time. He also submitted that intention was insufficient without proof of the content of the communication.

40 Senior Counsel also appeared to accept that there was in fact a communication with the couple, at one point suggesting that 'although she communicated with and approached that couple' she did not commit the offence.[20] However, he also sought to make reference to the form of the charge and submitted that there was a lack of evidence that there was a communication about abortion 'with persons' (though this was not the subject of the relevant ground).

41 He invited the court to watch the video and CCTV footage of the event, though in the result, he made little criticism of the findings of the Magistrate in this regard. The main submission was that the Reasons ought be read so that the appellant was only 'attempting' to hand over the pamphlet (ie it was not actually handed over). This was agreed to by Counsel for the first respondent and was consistent with my own viewing of the video and CCTV.

42 The first respondent highlighted that the High Court hearing was conducted on the basis that the appellant had engaged in some form of communication. She also relied on a number of pieces of evidence to suggest that the finding of the Magistrate that there was a communication in relation to abortion was supported as follows:

(a) On 2 May 2016, when the Act was implemented, members of the Helpers of God's Precious Infants (the Helpers) including the appellant were shown the outline of the safe access zone and informed of behaviour that was likely to constitute an offence, including distributing pamphlets;

(b) On 17 May 2016, the nature of the safe access zones was again explained by Victoria Police to a meeting of the Helpers, including the appellant;

(c) On 4 August 2016, the appellant attended just outside the safe access zone at the Clinic at the eastern boundary and was asked not to breach the safe access zone and engage in prohibited behaviour by Inspector Cartwright;

(d) The appellant was in possession of two pamphlets, one of which mentioned abortion in terms, the other of which referred to the options facing a woman with an unwanted pregnancy, which amounts to a communication 'in relation to abortion';

(e) She was in the safe access zone, outside a fertility clinic;

(f) She approached a couple comprised of a young man and woman who were about to enter the gate of the Clinic, and held out to them one of the pamphlets;

(g) When this occurred she was standing within metres of the gate to the Clinic;

(h) The appellant's answers to police following her approach to the couple, in particular her statements that she did not intend to change her behaviour and that this was because of her belief that she was entitled to 'offer help to women'; and

(i) Her possession of two handwritten notes at the time of arrest one of which read:

I was offering help to mothers contemplating abortion and seeking to draw attention to the issue of abortion because I believe the public and aborting mothers in particular are not being told the truth about abortion.

[the other note read: 'Would you like some information about the help we offer?']

43 The first respondent submitted that the handwritten notes constituted part of the circumstantial evidence from which the appellant's motivation and intention could be inferred. She also submitted that evidence of intention was admissible circumstantial evidence going to prove that the appellant did the relevant act, citing DPP v Mariona.[21]

44 She also highlighted that Clubb confirmed that it was not necessary to prove that the couple actually saw either or both of the pamphlets given it was only necessary that the communication was 'able' to be seen or heard.[22] In oral submission she also suggested that the framing of the charge did not overrule the requirements of the legislation.

45 In any event, she submitted that certain evidence of Sergeant Moran (who was the closest police officer to the relevant events) suggested that the relevant pamphlet was seen by the couple as follows:

...Kathleen Clubb approached the two of them and attempted to hand one of the pamphlets that she was holding, to the couple. Um, the male looked down towards the pamphlet that was being held out towards him and from where I was standing it appeared that it was very close to the top of his chest. Just underneath his chin, um and he looked down at it and paused for a moment, um and then continued on into the clinic with the female who he had his arm around.[23]

46 In relation to the submission as to Jones v Dunkel,[24] the first respondent relied on evidence of Inspector Cartwright that he was unsure of his right to inquire as to the identity of the people undergoing a medical procedure. It was submitted that this was an appropriate response and was consistent with the objects of the legislation in seeking to protect the privacy of such people.

47 In relation to the Charter, the rights in sections 12 and 15 may also be subject to reasonable limitations pursuant to s 7(2) of the Charter. Freedom of expression may be subject to lawful restrictions reasonably necessary to respect the rights and reputation of other persons or for the protection of public order or public health.[25]

48 Part 9A, and particularly s 185D, already strike the appropriate balance between various rights protected by the Charter.[26] Such rights include, in addition to those highlighted by the appellant, the right of a person not to have their privacy unlawfully or arbitrarily interfered with.[27]

49 Furthermore, freedom of movement, referred to in s 12 of the Charter, applies equally to persons accessing, attempting to access or leaving a premises at which abortions are provided.

50 In any event, s 185D must be interpreted according to the ordinary techniques of construction and s 32(1) of the Charter does not allow the court to modify the meaning of words beyond the limits of those techniques.[28] This reasoning applies with equal force to both the principle of legality and s 32(1) of the Charter.[29]

51 The phrase 'communication in relation to abortion' was considered in Clubb wherein the plurality highlighted that the prohibition is not directed exclusively at anti-abortion communication but is 'viewpoint neutral.'[30] The plurality also noted the width of para (b) stating that the 'communication prohibition' was necessary because non-violent protest that would not fall within para (a) may well be apt to shame or frighten a pregnant woman into eschewing the services of an abortion clinic. They further stated:

Silent but reproachful observance of persons accessing a clinic for the purpose of terminating a pregnancy may be as effective, as a means of deterring them from doing so, as more boisterous demonstrations.[31]

52 I also accept, consistent with the submissions of the first respondent, that evidence of intention may be admissible (as it was admitted here) to prove whether the necessary act of communication took place. It is true, as highlighted by the appellant, that the decision of Mariona[32] may be distinguished because the act itself had taken place and the issue was whether the accused committed the offence. However, as highlighted by Priest JA in that case,[33] in the decision of the High Court in Plomp v The Queen it was held that, on a charge of murder, proof of the accused's motive may be considered with all the other circumstantial evidence to be used as evidence both that the deceased was killed and that the death was occasioned by the accused.[34]

53 Finally, as acknowledged by the Magistrate, she was only entitled to convict if guilt was proved beyond reasonable doubt. The question on appeal in a circumstantial case is hence whether it was open for the Magistrate to find that the inference of guilt was the 'only reasonable inference' which could be drawn from the circumstances established by the evidence.[35] If she considered that there was any reasonable explanation of the circumstances which was consistent with innocence she needed to find the appellant not guilty.[36]

54 In considering this issue, a reasonable inference of guilt can be drawn from a combination of facts, none of which viewed alone would support the inference.[37] The magistrate was further entitled to consider the weight to be given to the 'united force' of all the circumstances put together.[38]

55 Before considering the evidence in this case it is necessary to give more attention to the pamphlets found in the possession of the appellant.

56 The first pamphlet is entitled "Pregnant? Worried?" and folds out to be 6 pages. It included lists of "Possible Physical Complications of Abortion" and "Possible Psychological Post Abortion Complications". It also contained photographs of "a tiny person" at various stages from 8 weeks. It suggested that "we" can help you now including by counselling and "alternatives to abortion" and referral from a "pro-life doctor".

57 In Clubb, Nettle J considered this pamphlet in stating that the conduct in para (b) is designed to reach conduct that may not amount to any of the criminal offences or misfeasances listed in para (a). He then says:

Examples of such conduct in evidence before the Magistrate included unsolicitedly drawing near to a woman as she accesses or attempts to access premises at which abortions are provided, forcing literature on her which recites lists of "Possible Physical Complications of Abortion" and "Possible Psychological Post Abortion Complications", and advocating alternatives to abortion and "help", thereby to dissuade her from entering the premises.[39]

58 The first pamphlet was clearly a document which was 'in relation to abortions.'

59 The second pamphlet is also entitled "Pregnant? Worried?" and is only one page (being blank on the other side). It includes the following:

If you're facing an unplanned pregnancy and don't know what to do, call us at Pregnancy Counselling Australia. All our counsellors are women. We offer you counselling that is free, compassionate, confidential and non-judgmental. (emphasis added)

60 The appellant rejected the characterisation that this pamphlet constituted a communication in relation to abortion, highlighting that not every 'unplanned pregnancy' was unwanted. However, the pamphlet does not just refer to an 'unplanned pregnancy' it suggests the reader doesn't know 'what to do' and invites the reader to consider counselling on this issue. I consider that the offer of counselling to determine 'what to do' in the context of an unplanned pregnancy raises for consideration whether the pregnancy is to be maintained or not. I therefore consider that the pamphlet seeks to communicate 'in relation to abortion.'

61 In analysing whether it was open for the Magistrate to find that the only reasonable inference was that there was a 'communication in relation to abortion', it is necessary to consider a number of factors as the first respondent suggested.

62 In so doing I have accepted that, consistent with the concessions of Senior Counsel, (and the way the matter appears to have been run in the High Court)[40] it was open to find that there was a 'communication.'

63 If it is necessary to determine (the matter not being raised as a ground), I am also satisfied that it was open to find there was a communication with 'persons' (the couple) as charged. Thus, first, as found by the Magistrate, the appellant attempted to engage with the couple 'by speaking to them' and attempting to hand over a pamphlet. This is apparent from the footage I have watched and suggests that a message was conveyed in circumstances where the appellant was very close physically. If there was any doubt, the apparent 'decline' of the pamphlet and the movement of the couple 'away' also suggests that something was conveyed which the couple did not want to hear.

64 The issue then is whether it was open to find that the (short) communication was 'in relation to abortion.' In considering this issue I consider that there are 5 critical categories of evidence.

65 First, there is the evidence about the persons involved in the communication.

66 The appellant was a member of an organisation known as 'The Helpers of God's Precious Infants' which was an anti-abortion group. According to the plurality the 'very reason' for Mrs Clubb's activities was to deter persons from making use of the facilities available within the safe access zones.[41]

67 In terms of the couple, the only thing known about them was that they were young, apparently close, and were seeking to access a clinic at which abortions were provided.[42]

68 There was no evidence of any connection between the couple and the appellant.

69 Secondly, there is the lead up to the communication. As highlighted by the first respondent, in May 2016 members of The Helpers, including the appellant, attended meetings with police during which they were shown the outline of the safe access zone and informed of behaviour that was likely to constitute an offence. On 4 August 2016 the appellant attended just outside the safe access zone and was asked not to breach the safe access zone and engage in prohibited behaviour.

70 Despite this, the appellant has chosen to enter the safe access zone - invading the personal space of an unknown couple- armed with material which related to abortion.

71 Thirdly, there is the evidence of the location of the alleged offending. This was in a 'safe access zone' within 5 metres from the entrance to premises at which abortions are provided. No reason unrelated to abortion was identified for the appellant to be located in this zone.

72 Next, there was the evidence about the communication itself. This included words said, as well as an attempt to hand over a pamphlet that related to abortion. The declining actions taken by the couple also suggested that a message of substance had been conveyed that they did not wish to hear about.

73 Finally, there was evidence of the appellant's intention to breach the law being:

• Her possession of the handwritten notes, especially the longer note;
• Her statement that she did not intend to change her behaviour and was entitled to offer 'help' to women.

74 In fact, as conceded by Senior Counsel, there was ample evidence of the appellant's attitude to abortions and her stated desire to advise women in that regard if and when the opportunity arose. He further accepted that 'the purpose for her being there' was to deter people from having abortions.[43]

75 It is true that the words could not be heard or seen from where the police were placed, and that it is not clear which part of the pamphlets were sighted. However, the legislation does not require proof of the precise contents of the communication; only that it was 'in relation to [the topic of] abortions.'

76 Having regard to the factors above, I consider that it was open for the Magistrate to find that the only reasonable inference was that the communication (by words and conduct) was in relation to abortions.

77 The appellant did not identify if any other explanation for the conduct was given to the Magistrate. However, an examination of the transcript shows that the appellant's Counsel suggested that the appellant could have been asking the couple 'the time of day.'[44] As indicated above, the other suggestion made to this court was that, given the time involved, the approach was 'introductory.'

78 However, given, in particular, the factors cited above, including the attempt to hand over the pamphlet, it was open for the Magistrate to reject any suggestion that the appellant was merely asking for the time. I also consider that it would be open to consider unreasonable the suggestion that the communication consisted of introductory remarks unrelated to abortion. There was no reason for the appellant to approach the (unknown) couple so closely at the entrance to an abortion clinic in relation to any other topic.

79 In relation to Jones v Dunkel,[45] the issue is addressed by s 43 of the Jury Directions Act 2015 which applies to summary hearings by reason of s 4A(1)(a) of that Act. Under s 43(2) the Magistrate would have been required to direct herself that the evidence of the couple would not have assisted the Crown case if satisfied that the prosecution was reasonably expected to call the witness(es) and had not satisfactorily explained why it did not do so.

80 However, consistent with Clubb, it would undermine the whole purpose of s 185B(1)(b) if persons affected needed to be called. As the plurality stated:

A contravention of the communication prohibition can be proved without the need to call a person protected by the legislation to give evidence. That can readily be understood as an aspect of the protection of the privacy of women seeking access to abortion services.[46]

81 The approach of Inspector Cartwright was therefore appropriate in respecting the privacy of the couple entering the clinic such that there was a satisfactory explanation for not calling them.

82 In relation to the Charter, I generally accept the submissions of the first respondent. More particularly, although statutory provisions must be interpreted in a way that is compatible with human rights, this is so far as it is possible 'consistently with their purpose.'[47] As outlined already, that purpose is elucidated by the consideration of the High Court in this particular case.

83 For reasons already given, I also do not consider that the approach outlined already 'elasticises' the provision to extend to a 'communication about pregnancy.'

84 Overall then I consider that the finding was open and no error is established.

Alleged failure to make a finding as to actus reus (grounds 3a and c)

85 The appellant submitted that the Magistrate made no finding that there was an actual communication in relation to abortion which was an essential element of the actus reus of the offence. Rather, the closest finding was that it was the appellant's intention to engage the couple in discussion relevant to abortion. However, an intention to communicate did not satisfy the actus reus.

86 The first respondent submitted that the final paragraph of her Honour's reasons relevantly contained the conclusion that the appellant made a communication in relation to abortion and it was clear that her Honour had dealt with both the actus reus and mens rea of the offence.

87 In oral submission it was also highlighted that the two findings were inter-related since evidence of intention was also admissible to prove the actus reus (citing Mariona).[48]

88 It was not identified how the failure to make a factual finding constituted an error of law (ground 3(a)). However, what appears to be suggested is that there was a failure to apply the correct test by finding that intention alone was sufficient (without the actus reus) (ground 3(c)).

89 The Magistrate did not find the charge proven solely on the basis of intention. Rather, a fair construction of the penultimate paragraph is that she has made a finding that it was 'her [the appellant's] intention' (to engage that couple in discussion relevant to abortion), and, separately, that the appellant 'has communicated with them' for the purpose of a discussion relevant to abortion.

90 The broad reference to 'purpose' can be readily explained in circumstances where her Honour was unable to determine precisely what was said. In any event, the separate findings as to intention and communication support that the finding of actus reus was made. Her Honour also used the phrase 'defiantly and deliberately' interchangeably to describe both the appellant's 'actions' and the manner she 'communicated,' confirming that a finding was made that some act actually occurred (beyond mere intention).

91 The appellant has therefore not established that there was a failure to find the necessary actus reus; nor did she demonstrate that the Magistrate found an intention to be sufficient.

Ground that applied wrong test re distress or anxiety (ground 3(d))

93 The appellant did not pursue this matter orally, but also did not formally abandon it.

94 In written submission the appellant submitted that the Magistrate made an error of law by interpreting the element of the offence that the communication 'was reasonably likely to cause distress or anxiety' as wrongly including conduct which caused 'discomfort.' She highlighted that this construction of the term had been rejected by the High Court in Clubb.[49]

95 She also submitted that guidance could be sought from the decision of Monis v The Queen,[50] which referred to 'significant emotional reaction or psychological response' and that it could not be said that the exchange in this case was likely to cause 'significant emotional reaction or psychological response.'

96 The first respondent submitted that the learned Magistrate's finding reflected the submissions made to her and did not establish that she applied the wrong test. Further, that she did not find that the appellant's communication with the couple was reasonably likely to only cause them mere discomfort. Rather, she found that it was reasonably likely that, 'at the least', discomfort was caused ie she had incorporated into her finding the fact that the behaviour might have caused something more than discomfort.

97 In any event, if the Court considered that the Magistrate did misdirect herself as to this element, the Court could nevertheless dismiss the appeal on the basis that, upon a correct application of the test, this element was clearly satisfied as the appellant's communication was reasonably likely to cause distress or anxiety on the facts as found, ie that the result would be the same.

98 The first respondent also highlighted that the finding was supported by the evidence of Dr Allanson who had worked at the clinic as a clinical psychologist for 26 years and gave evidence of the particular vulnerability of persons attending the clinic. She also gave evidence that there were instances of 'low-level' activity such as approaches and attempts to provide pamphlets which led to some patients crying and being upset and very angry.

99 As highlighted already, the Magistrate found that the engagement between the appellant and the couple was reasonably likely to cause the couple 'at the least, discomfort'.

100 It is true that discomfort is not sufficient. Thus Kiefel CJ, Bell and Keane JJ, as well as Nettle J, found that 'mere discomfort was insufficient'.[51] It thereby appears to be an error to only find the charge proven on a finding of 'discomfort' notwithstanding that the finding was made in response to the way that the case was put by the appellant.

101 However, even if an error was made, I am not satisfied that remittal is necessary.

102 Pursuant to s 272(9) of the Criminal Procedure Act, after hearing and determining an appeal, the Court 'may make any order that it thinks appropriate, including an order remitting the case for rehearing in the Magistrates' Court with or without any direction in law.'

103 Where the Court determines that a Magistrate has made an error of law, the Court may consider refusing to make an order remitting the matter where it could clearly be said that the error did not affect the result.[52]

104 In considering this issue it is significant that the test involved is an objective one[53] which is not dependent on any discretionary factors. It was also not suggested that it would be necessary for further evidence to be adduced. In those circumstances the court is in as good a position as the Magistrate to consider the correct objective classification of evidence already adduced.

105 In terms of the meaning of 'distress or anxiety', the case of Monis v The Queen,[54] referred to by the appellant arose in a very different context. Thus, the charge related to a number of insulting letters sent to relatives of soldiers killed on active duty in Afghanistan, rather than in the context of legislation dealing with health and wellbeing. The subject provision was also in different terms and relevantly prohibited communications which reasonable persons would regard as 'offensive.' It was in this context that Crennan, Kiefel and Bell JJ suggested that one would expect such a communication to be likely to cause 'a significant emotional reaction or psychological response.'[55]

106 It is however significant that in Clubb Nettle J referred to conduct that might fall within para (b) (as presented by the Castan Centre for Human Rights Law) as including protestors approaching, following or walking alongside people approaching clinic premises, and distributing pamphlets.[56]

107 It is also important that, as highlighted in Clubb, persons approached as the couple in this case would already be likely to be feeling distressed or highly vulnerable.[57]

108 Returning to the evidence in this case, then, on the facts as found by the Magistrate, there was an approach to a young couple, unknown to the appellant, raising an issue of a highly personal nature as they were making their way into an abortion clinic in circumstances where they were likely to already be feeling distressed or highly vulnerable.

109 I consider that this clearly involves a 'substantial chance'[58] of causing distress or anxiety which was more than discomfort. If necessary to find, I consider that there was a substantial chance of causing a significant emotional reaction or psychological response.

110 I am fortified in such views by the evidence of Dr Allanson. More particularly, she observed that a number of patients were crying, upset and/or very angry after being approached and offered a pamphlet.[59]

111 I am therefore of the view that any error by the Magistrate clearly did not affect the result, since the result would be the same if the correct test was applied.

[1] Clubb v Edwards; Preston v Avery [2019] HCA 11; 366 ALR 1 ('Clubb').

[2] Three of the other justices did not determine whether s 185D was invalid. Two justices (Gageler and Gordon JJ) determined to read down, pursuant to s 6(1) of the Interpretation of Legislation Act 1984 (Vic), the definition of "prohibited behaviour" in para (b) to not include political communication. Edelman J determined to partially disapply the provision.

[3] See Amended Notice of Appeal dated 4 February 2020.

[4] Correspondence from Victorian Government Solicitor's Office to Supreme Court of Victoria dated 16 October 2019 informed the Court that, based on the issues presently in dispute between the parties, the Attorney-General of Victoria did not intend to take an active role in the remainder of the proceeding save in relation to any issues arising as to costs involving the Attorney-General.

[5] Public Health and Wellbeing Act 2008 (Vic) s 185B(1).

[7] Section 185D was inserted into the Public Health Act by the Public Health and Wellbeing Amendment (Safe Access Zones) Act 2015 (Vic) ('Safe Access Zones Act').

[8] Clubb [2019] HCA 11; 366 ALR 1 [48].

[10] _Senior Constable Alyce Edwards v Kathleen Clubb, (_unreported, Magistrates' Court of Victoria, 23 December 2017) ('Reasons'). Reasons were provided subsequent to the recording of the conviction.

[11] Gerard Cartwright, Inspector, Victoria Police; Nicholas Moran, Sergeant, Victoria Police; Dr Suzie Allanson, Psychologist, and Alyce Edwards, Senior Constable, Victoria Police.

[12] Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd (2014) 45 VR 771; [2014] VSCA 353 at [48] per Warren CJ, [167] per Whelan JA (Santamaria JA agreeing); cited in Patsuris v Gippsland and Southern Rural Water Corp (2016) 218 LGERA 167; [2016] VSCA 109 at [45] per Garde AJA (Tate and Kyrou JJA agreeing).

1. [13] See Director of Public Prosecutions v Burns [2017] VSC 570 [15] and cases cited therein.

[14] Victoria v Subramanian [2008] VSC 9 [32] ('Subramanian').

[15] Higgins Nine Group Pty Ltd v Ladro Greville St Pty Ltd [2016] VSC 244 [10] citing Roncevich v Repatriation Commission [2005] HCA 40; (2005) 222 CLR 115, 136 [64]; Vegas Nominees Pty Ltd v Werribee Sports & Community Club Inc (Unreported, Supreme Court of Victoria, Ashley J, 21 December 1994) [13].

[16] Higgins Nine Group Pty Ltd v Ladro Greville St Pty Ltd [2016] VSC 244 [10] citing The Gombac Group Pty Ltd v Vero Insurance Ltd [2005] VSC 442 [59].

[17] [1959] HCA 8; (1959) 101 CLR 298.

[18] Transcript of Proceedings, Senior Constable Alyce Edwards v Kathleen Clubb (Magistrates Court of Victoria, Magistrate Bazzani, 6 October 2017) 71.6-12 which contains evidence of Sergeant Moran at an early point in time when he first observed the appellant and when he was standing about 12 metres from the entrance. It should be compared with his evidence of the relevant event after he had moved closer (so he was 8 metres away) at 72:12-21 cited below.

[19] Transcript of Proceedings, Clubb v Edwards (Supreme Court of Victoria, Kennedy J, 4 February 2020) eg at 26:20, 28:25.

[20] Transcript of Proceedings, Clubb v Edwards (Supreme Court of Victoria, Kennedy J, 4 February 2020) 68:24-5.

[21] [2019] VSCA 107 ('Mariona').

[22] Clubb [2019] HCA 11; 366 ALR 1 [79], [245], [287].

[23] Transcript of Proceedings, Senior Constable Alyce Edwards v Kathleen Clubb (Magistrates Court of Victoria, Magistrate Bazzani, 6 October 2017) 54.13-21.

[24] [1959] HCA 8; (1959) 101 CLR 298.

[25] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 15(3).

[26] See, generally, the Statement of Compatibilities to the Public Health and Wellbeing Amendment (Safe Access Zones) Bill 2015.

[27] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 13.

[28] Slaveski v Smith [2012] VSCA 25; 35 VR 206, [20] (Warren CJ, Nettle & Redlich JJA) ('Slaveski'); Nigro v Secretary to the Department of Justice [2013] VSCA 213; 41 VR 359, [83]-[85] (Redlich, Osborn & Priest JJA) ('Nigro').

[29] Slaveski [23]; Nigro [85].

[30] Clubb [2019] HCA 11; 366 ALR 1 [55].

[32] [2019] VSCA 107.

[34] [1963] HCA 44; (1963) 110 CLR 234 especially at [249] per Menzies J; [242] per Dixon CJ.

[35] Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 578; Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521, 599; Plomp v R [1963] HCA 44; (1963) 110 CLR 234, 252; Barca v R [1975] HCA 42; (1975) 133 CLR 82, 104.

[36] Manella v The Queen [2010] VSCA 357 [41]; Thomas v R [1960] HCA 2; (1960) 102 CLR 584, 605-606.

[37] Chamberlain v R (No 2) [1984] HCA 7; (1984) 153 CLR 521, 536; Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573, 580-581.

[38] R v Hillier [2007] HCA 13; (2007) 228 CLR 618; R v Allen [2007] VSCA 97.

[39] Clubb [2019] HCA 11; 366 ALR 1 [280].

[40] For e.g. Clubb [2019] HCA 11; 366 ALR 1 [28], [31], [346].

[41] Clubb [2019] HCA 11; 366 ALR 1 [82].

[42] Admissions of Facts dated 6 October 2017 [3].

[43] Transcript of Proceedings, Clubb v Edwards (Supreme Court of Victoria, Kennedy J, 4 February 2020) 11-12.

[44] Transcript of Proceedings, Senior Constable Alyce Edwards v Kathleen Clubb (Magistrates Court of Victoria, Magistrate Bazzani, 10 October 2017) 150.23-24.

[45] [1959] HCA 8; (1959) 101 CLR 298.

[46] Clubb [2019] HCA 11; 366 ALR 1 [92]; see also [286] per Nettle J.

[47] Charter of Human Rights and Responsibilities Act 2006 (Vic) s 32.

[48] [2019] VSCA 107.

[49] Clubb [2019] HCA 11; 366 ALR 1 [58] per Kiefel CJ, Bell and Keane JJ and at [282], [285] per Nettle J.

[50] (2013) 249 CLR 92, [338] ('Monis').

[51] Clubb [2019] HCA 11; 366 ALR 1 [58] per Kiefel CJ, Bell and Keane JJ and at [282], [285] per Nettle J.

[52] Engebretson v Bartlett [2007] VSC 163; (2007) 16 VR 417, 434 [93].

[53] [2019] HCA 11; 366 ALR 1 [95], [246].

[55] Monis v The Queen (2013) 249 CLR 92, 211 [338].

[56] Clubb [2019] HCA 11; 366 ALR 1 [281].

[57] Ibid [48], [59], per Kiefel CJ, Bell and Keane JJ; [259], [283] per Nettle J.

[59] See also Clubb [2019] HCA 11; 366 ALR 1 at [283] per Nettle J.