O’Connell appeal dismissed

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Perth man Brendan O’Connell was convicted  on six charges of  racial vilification in Perth’s District Court in January last year and received a three year prison sentence. His appeal against both the verdict and the sentence was dismissed in Perth today.

The 41-year-old  had posted an antisemitic video online after confronting two Jewish men outside a South Perth supermarket in 2009. A peaceful protest held by the Friends of Palestine group was in progress at the IGA supermarket which was selling Jaffa oranges. Not all Jaffa oranges come from Israel.

During his trial, O’Connell refused to acknowledge Judge Henry Wisbey.

In the judgement handed down today in the Supreme Court dismissing the appeal Justice Robert Anthony Mazza, Justice Wayne Stuart Martin and Justice Michael Buss decreed:

‘The appellant plainly sees himself and other like-minded people as engaged in a struggle against Jews, Judaism and Israel, a struggle in which he ‘will never surrender’…

There are many examples of the appellant’s disrespectful and insulting behaviour towards his Honour and the court during trial. The flavour of his behaviour can be gauged from the following examples:

1. He said to his Honour, ‘I wish to get your neck size so we can go straight to the gallows for treason’…

2. When referring to his Honour, the appellant often called him ‘adjudicator’. On other occasions, the appellant referred to his Honour as ‘Captain Pugwash’…, ‘De Fuhrer’ and ‘Comrade Stalin’.

3. He referred to the court as ‘a kangaroo court’… To emphasise the point, he sang the theme song to the well-known children’s television program ‘Skippy’…, and made references to Skippy, at other times during the trial.

4. He insulted his Honour, saying, at one point, ‘Shut up, you old fool’…; and at another point, ‘Were you paid or do they have something on you?’…

Throughout the trial, the appellant refused to accept or acknowledge the authority of the court. At various times in the trial, when he was addressed by his Honour he made a speech in similar terms to the following:

Just to clarify the jury – for the jury, my name is Brendon Lee – Brendon Lee of the family O’Connell. I am a sovereign subject of Queen Elizabeth II, her heirs and successors. I’m a free man. This court does not sit under Ch 3 of the Australian Constitution – if you’re that bored you can leave – sit under Ch 3 of the Australian Constitution, nor does it sit under 1903 Judiciary Act. This whole court is a farce. It’s an insult to Skippy. But I’ll continue on with this farce, this comedy. Absolute comedy. Here under duress…

The appellant used his opening address to the jury to claim that his Honour, and the District Court generally, had no jurisdiction to try the case under the Constitution. When asked by his Honour if he would state his defence, the appellant replied: I don’t have to give you a defence, adjudicator, because you can’t sit. You’re in a kangaroo court…

The appellant refused to question the first prosecution witness, Detective Senior Constable Paini. During the detective’s evidence, when his Honour asked the appellant if he had been given a particular part of the prosecution brief, the appellant replied:

I’m sorry, adjudicator, I’m still waiting for the court to sit under common law under section – chapter III of the Australian Constitution and the Judiciary Act of 1903. When that happens – – –

WISBEY DCJ: The jury – – –

THE APPELLANT: When that happens, we can talk business. Till then, I’m just staring at the ceiling…

80 Apart from Detective Senior Constable Paini, the appellant cross-examined, at some length, the witnesses called by the prosecution. The appellant was frequently argumentative with, and insulting to, witnesses. On occasions, he used cross-examination as an opportunity to make speeches and, from time to time, sought to embark upon irrelevant religious and political discourse.

The appellant disrupted the prosecutor’s closing address to the jury and his Honour’s summing up, to the point where he had to be removed from the courtroom and placed in a remote courtroom from where he could see and hear the proceedings….

It is no exaggeration to characterise the appellant’s behaviour as seriously defiant, disrespectful and, on many occasions, contemptuous.

In my opinion, none of the proposed grounds of appeal have reasonable prospects of succeeding. Leave to appeal in relation to each proposed ground is refused. Accordingly, the appeal against conviction must be dismissed.

His Honour found, with respect to the material that was published on the internet, that the appellant intended to encourage the wider community, both in Australia and internationally, to share his ‘unbridled hatred of Judaism’. His Honour further found that the appellant regarded it as his ‘right and obligation to engender ill will towards Jews’…

His Honour observed that the appellant’s behaviour during the course of the trial ‘was that of a bully, contemptuous of anyone or anything who, or that, stands in the way of that which you seek to achieve’…

His Honour said that although some aspects of the appellant’s behaviour in court constituted contempt, that was not an aggravating factor, but it was eloquent of the appellant’s complete lack of remorse and his intention to maintain his aberrant position.

His Honour expressly acknowledged that he could not impose a term of immediate imprisonment unless the seriousness of the offending demanded it. He said that he had ‘no doubt’ that terms of immediate imprisonment were ‘the necessary sentencing disposition’ in order to provide personal and general deterrence. His Honour described the behaviour engaged in by the appellant as ‘not only highly offensive to that section of the community to which it is directed, but has the potential to be catalytic of civil unrest. It must be demonstrated clearly that it will not be tolerated’…

It is clear that the appellant did not ever intend to make a bona fide plea in mitigation and that he intended to use the sentencing proceedings to voice his aberrant views. Further explanation by his Honour, given the defiant and intransigent attitude he had adopted throughout the proceedings, would not have realistically brought about a change of heart. His Honour had an obligation not to allow the court’s processes to be abused by the appellant.

The video recording of what occurred amply illustrated that the appellant went well beyond any legitimate political discourse about Israel and its relationship with Palestinians in the Gaza Strip. Rather, the appellant deliberately and persistently used highly offensive racial language and substantially abused and ridiculed Mr Keyser personally, simply because he was Jewish. Mr Keyser was visibly offended and upset by what the appellant said.

Mr Keyser’s humiliation was not over when the confrontation concluded. Having recorded the incident, the appellant uploaded it into the internet for others to view into the future. Thus, Mr Keyser’s humiliation potentially continues.

With respect to counts 2, 3, 5, 6 and 7, the jury found that the appellant’s intention was to create, promote or increase hatred of, or serious contempt towards, Jews.

In respect of counts 2 and 3, the statements made by the appellant at the Belltower contained thinly-veiled threats of harm to Jews by use of the words, ‘We’ve had enough of you … those bells toll for you. Your days are numbered.’ The references to putting those Jews who do not change their ways ‘in camps’ and his reference to ‘Holocaustianity’ are deeply insulting and offensive. The captions he used, such as ‘Time to get out there’, and ‘Time to get angry’, in context may well be interpreted as a call to violence towards Jewish people.

The offences relating to the blogs, counts 5, 6 and 7, are all aggravated by being committed on bail. They show the appellant’s deep hatred towards Judaism, Jews and the nation of Israel and are intended to imbue others, again via the internet, with that hatred. This hatred has the potential to provoke violence and promote disharmony towards Jewish people and their property in this State and elsewhere.

The videos and blogs were carefully and, in many ways, skilfully produced. The appellant sought to exploit the virtually uncontrolled environment of the internet to convey and promote to others his seriously aberrant views.

At no time has the appellant shown any regard or sensitivity to the rights of Jewish people to live a dignified and peaceful existence free from racial vilification and harassment.

The appellant is completely without remorse. His testimony at trial shows that he is proud of what he has done and regards it as his duty to speak and act out in the manner that he has. There is no indication that the appellant has any insight into his views and behaviour. His recalcitrant stance indicates that he poses a risk of further such offending in the future.

Each offence was a serious instance of its kind. Any sentence needed to send a clear message of denunciation and serve as a strong personal and general deterrent…