Victoria is now officially an Orwellian Police State following last week’s conviction of the Bendigo Three on charges arising from the mock beheading of a dummy.
On Tuesday, September 5, in Melbourne Magistrates Court, Magistrate John Hardy found Blair Cottrell, Neil Erikson, and Chris Shortis guilty under section 25(2) of The Racial and Religious Tolerance Act, 2001 (RRTA). This is the first time that section of the law has been used in a prosecution. A conviction was recorded for each defendant, and a fine of $2000 plus a $79.50 statutory charge was imposed.
This judgment marks a turning point. Having peeled off its mask, the multiculturalist state is now showing its true authoritarian face. Magistrate Hardy’s judgment has not only set the bar for prosecution perilously low but decided it can be set anywhere the state chooses. Freedom of speech is the foundation of all other freedoms in a democratic society. Before the advent of multiculturalism in this country, the main restrictions to that implied freedom of expression were defamation, obscenity, intellectual property and incitement. While some argue that vilification laws are similar to defamation laws, the differences between the two indicate how far our freedoms have been eroded in the name of safeguarding feelings.
Firstly, defamation is civil law, whereas section 25(2) of the RRTA is criminal law. Secondly, in defamation law, the plaintiff initiates a lawsuit and seeks a legal remedy. In Ross versus Shortis, Cottrell and Erikson, there was no complainant as in a criminal case. No Muslim had ever complained they felt ridiculed, hated, or treated as an object of contempt. No Patriot has testified that the video had incited them to have these attitudes. Instead, the case was brought by the Director of Public Prosecutions with Constable Erin Ross as the informant, who both exercised the entitlement that they, unlike ordinary citizens, have not to take the witness stand. This meant that the defendants could not cross examine their accusers as there were no accusers: a fundamental breach of procedural fairness, due process, and natural justice.
All up, The Bendigo Three faced three charges (an earlier fourth charge was withdrawn). These resulted from a stunt they performed outside the Bendigo Council Offices involving a mock beheading. The video of the stunt together with extra footage of members walking and riding around Bendigo was uploaded to the United Patriots Front Facebook page as publicity for a 2015 rally held in Bendigo to protest the proposed building of a mosque.
All up, The Bendigo Three faced three charges (an earlier fourth charge was withdrawn). These resulted from a stunt they performed outside the Bendigo Council Offices involving a mock beheading.
The first of the charges was ‘defacing the footpath and wall of the garden bed’ with ‘the emission of the red substance’. The second charge was ‘willfully damaging property’. “Damage does not need to be permanent”, presiding Magistrate Hardy informed the court. He left aside the question of why any rational person would describe a temporary stain on a footpath from water soluble food dye as “damage”. It took Bendigo Council two attempts to remove the pesky stain. The first time, ordinary water pressure from a hose wasn’t enough, but success was achieved the second time with a Gerni. A few weeks of weather and rain would probably have washed it away but then no-one would have been able to pretend it was a matter criminal enough to press charges. Chris Shortis actually paid the Council over $1000, a fine which exceeds the original cleaning bill. But the State required its pound of flesh!
The first and second charges amounted to a prosecutorial fishing trip. The prosecutor, Fran Dalziel, was shamelessly up-front about this. She asked the Magistrate to hear the third charge first and only hear the other charges if the first charge was not proved. Hardy obligingly granted her request. The first two charges were only a backup. Clearly, it had been decided that the accused had to be charged with something, even if it ended up being trivial. Can anyone thereafter doubt that this trial was all along political and owed nothing to any theoretical victim?
The trial lasted two days starting on a Monday. Supporters of the three accused had to pass through airport-style security on the ground floor, which was run by a security company. After queuing on the fifth floor, they passed through further security checkpoints, this time conducted by Victoria Police. These included complete photo ID scanning and twin 3D video cameras. Inside Courtroom 19, seating was restricted to 27 bodies, and much of that room was taken up by the less than objective media scrum. The lack of seating meant many travelled to court only to miss out on public seating.
Magistrate Hardy presented a curious anachronism, looking like a cross between Gandalf the Grey and Karl Marx. He informed the court that he had downloaded the RRTA and would read it out in the evening. However, by the end of the farcical proceedings, he would unquestioningly accept the prosecutor’s submission in what was so obviously a fait accompli. Before that, every pretence was made to try and lend seriousness to what was so evidently a show trial. Thus, presiding as he was over a circus, he cracked his whip on Day One of the two-day trial.
The Farce before the force
From the outset, a degree of exaggeration was necessary to contrive a sense of menace out of the stunt and convey this element of folk devilry to the court. A former official of the Greater Bendigo City Council took the stand, doing his best during testimony to convince the court this was a serious affair. After all, he had faced the extreme logistical difficulty and sheer angst posed by the mysterious red fluid it was his insurmountable duty to clean. Almost in judgement of this poppycock, a spectator’s mobile phone suddenly sounded, and the well-timed ringtone of The Benny Hill Show theme mocked the witness. He was subsequently cross-examined by each defendant in turn. Shown a more recent photograph of the ‘damage’ done by one of the defendants with the dummy’s fake blood, he sheepishly admitted that “the red spot may be a pebble”, and there was “no staining”. No graffiti artist had ever been held to such account.
Thereafter, State functionaries dominated the first day’s proceedings with inane testimony that served only to pad out the dubious basis of the charges and give the court a false impression of their gravitas. Senior Sergeant John Phillip Dalton, the detective who headed the police response to the United Patriots Front Bendigo rallies, answered questions about the aims of the UPF. The prosecution then played the video, which was the only proper evidence presented throughout the trial. Afterwards, proceedings took a turn for the silly as Fran asked, “What is on Mr Shortis’s head?” “I’d say a religious cloth of some type”, Dalton replied. Under cross-examination, focus remained on the incriminating headdress worn by Chris Shortis, until Magistrate Hardy informed the defendants that a policeman’s opinion about a headdress was not admissible evidence. They might as well have taken Victorian taxpayer dollars and burnt the lot in a waste bin.
The following witness, Officer Gary Jenkins (a Freemason), didn’t even bother showing up. An excuse was given, that he had suffered a motorcycle accident. Examining the medical certificate (provided by one of the ‘brothers’?), Magistrate Hardy asked why he couldn’t be brought to court, as the certificate only covered work, not court. It was decided not to bother with his evidence, and another thrumming moment in Australian legal history squiggled to the ceiling like a yawning Z.
If the consequences of the day’s judgment would not turn out to be so grave, one may have been tempted to laugh as Detective Senior Constable Jason Smith took the stand. He led a raid on Chris Shortis’s house on Good Friday, 2016, where he seized Chris’s T-Shirt, jeans, and a toy Pirate’s sword. Of these vital pieces of evidence, the most dangerous was the T-Shirt, which hadn’t been washed. However, he forgot to bring them to court, a ditzy oversight that caused a 15-minute delay as they were sent for.
Once they arrived, Smith beamed devilishly. He could now show the court this damning evidence which he gleefully gathered up and fumbled with in his hands like an excited Lex Luther taunting Superman with kryptonite. But this was a comedy, not drama, and given such, he managed to clumsily drop the T-Shirt, sucking out the tiny puff of air that had momentarily inflated his sails in his moment of glory. He might have got to wave the sword about in a Douglas Fairbanks Jnr impression had the object described on the Bendigo Police evidence register as “One Fake Pirate Knife/Sword” not have been issued for destruction over a year earlier.
Another day, another truckload of taxpayers’ dollars
The morning of Day Two was taken up with submissions from the prosecutor and the three defendants followed by a rebuttal from Miss Dalziel. For reasons unknown, Detective Senior Constable Smith once more attended court, possibly hoping someone had found the Pirate sword. He evidently thought the prosecutor might have it, because in-between sessions he kept whispering anxiously in her ear. A request by Chris Shortis to quote from the Holy Qur’an was denied. He had hoped to share verse 8:12, which says, “Remember thy Lord inspired the angels (with the message): ‘I am with you: give firmness to the Believers: I will instill terror into the hearts of the Unbelievers: smite ye above their necks and smite all their finger-tips off them’.”
Denied this opportunity to be enriched by the words of the Prophet, the court adjourned for lunch so that Magistrate Hardy could consider his ruling and possibly play with the Pirate sword. On returning at 2 pm, the assembled were informed that Magistrate Hardy needed a further hour’s deliberation, proving he had found the sword after all. In the wash-up, and following all the tedious testimony from the witnesses, the only evidence taken into consideration was the first 39 seconds of the UPF video. Magistrate Hardy seemed particularly taken by this portion of the video given it contained his esteemed Pirate sword.
Mr Shortis had argued that since beheading is illegal, and the RRTA only protects lawful religious activity, the video cannot be subject to the act. Magistrate Hardy rejected this argument as “teleological”. The Concise Oxford Dictionary defines teleology as “The explanation of phenomena in terms of the purpose they serve rather than of the cause by which they arise”. This seems to say more about Hardy’s convoluted reflections on the 39 seconds in the video than it does to Chris’s argument in their defence. In fact, we’re pretty sure it sounds like bullshit. Hardy might as well have yelled, “look behind you” for all the clarity of this argument. Likewise, he argued that the law was dealing with “Muslims not beheading”, which is again odd given that there were no Muslims in the video and the only thing beheaded was a sex toy.
But as sure as he invalidated all of Chris’s arguments, he ignored his contention relevant sections of the Australian Constitution imply freedom of expression and that Australia is a signatory to the United Nations Universal Declaration of Human Rights. The latter includes the right to freedom of opinion and expression as a basic principle. Hardy did not agree that there is a conflict between the RRTA and the corresponding Federal law. He did not refer to the Keating government memorandum which suggests there may be. As to the lack of a plaintiff or complainant, he simply said that section 25 does not require it, airily dismissing legal investigation. He noted that the video had chalked-up 275 likes, establishing that it had an audience, which was, to him, a solid basis for construing the malicious intent in the video he believed exists had probably gestated already in weak minds.
During his dénouement, Hardy said, “I accept Miss Dalziel’s submission that the intention of the video was to incite and that it is not necessary to prove that it would incite or that it did so. Where intent is the issue then inference must be used … The context of the video leaves me no alternative than to find that the intention was to incite serious contempt or ridicule of persons of the Muslim faith.”
During his dénouement, Hardy said, “I accept Miss Dalziel’s submission that the intention of the video was to incite and that it is not necessary to prove that it would incite or that it did so.
So, no actual incitement needs to occur, mere intention, a mental state, is enough to convict and inference is all that’s required to “prove” the mental state of the accused. Thus the burden of proof is reversed for an action merely imputed, which is abstraction upon abstraction. No real barrier remains for the prosecution of anyone the state does not like and the broadness as well as the vagueness of the offending article is pure Kafka. Thus, the presentation of opposing views to any area of the multicultural dogma is potentially a punishable offence, be it Islam, African crime, Chinese imperialism or the objection to curry odours in a unit block. If these views are presented publicly, regardless of whether criminal activity occurs as a result, it can be considered as “incitement”, demonstrable by a few clicks of the ‘like’ button on Facebook. In other words, opposing multiculturalism is a thought crime as well as a hate crime, especially if expressed on Facebook, which half of the legal justice system and Police Force seem to spend their time (and our money) gawping at.
The one glimmer of light from the Magistrate in this otherwise grotesque Stalinesque show trial came during sentencing. The prosecutor claimed that the defendants were lacking in remorse. Magistrate Hardy, for once disagreeing with Miss Dalziel, noted that remorse in issues of principle is a bit different from remorse in matters such as rape. Undeterred, Fran declared that “Opposition to Islam continues to be held by these men!”
Magistrate Hardy, salvaging an atom of credibility, reminded Miss Dalziel that “They are entitled to oppose Islam it is how that opposition is expressed that is at issue”. But this is another instance of Hardy’s dingbat logic given that opposition cannot exist WITHOUT expression and there are no terms of reference to define the acceptable expression.
In other words, two plus two now equals anything but four.
It is worth noting, too, that when the guilty verdict was delivered members of the media — some believe from the ABC — pumped the air with their fists in a show of celebration.
Following the decision, Blair Cottrell and what’s-his-name went off to file an appeal. Chris Shortis is considering his options.