The Pregnant Woman Coviddo Arrest Case By Carla Wilson

     Ian Wilson who usually writes for you is in hospital recovering from prostate surgery, but he will soon be back in the saddle, a new man, who will not know himself, I hope. So, little old me, wifey, does this one. The arrest of a pregnant woman in Victoria for incitement, has generated responses, almost all negative, from around the world, as at best, the optics are bad, at worse, some say, the arrest was illegal. Here are some comments, plus a quoted summary of the main players and critics.

“Victoria police is facing criticism for its arrest of a 28-year-old pregnant woman in her Ballarat home on Wednesday over a Facebook post, with the Victorian Bar labelling it “disproportionate”. The criticism comes after the assistant police commissioner, Luke Cornelius, defended the arrest, saying officers acted “reasonably”. Cornelius admitted that the arrest of a pregnant woman made for “terrible optics”, but defended the heavy-handed approach, warning that hundreds of officers would be deployed to make arrests on the weekend. Police arrested Ballarat resident Zoe Buhler after she created a “freedom day” event on Facebook encouraging people to protest against lockdowns in the regional town on Saturday. She was arrested and charged under section 321G of the state’s Crimes Act 1958, which makes it an offence for a person to “pursue a course of conduct which will involve the commission of an offence”. The arrest comes amid claims of misconduct by Victoria police and concerns from legal experts that Victorians in several instances were being “wrongly fined”. “Many people have been issued fines when they are not breaching public health directions,” said Ariel Couchman, the chief executive of Youthlaw. “The police aren’t making proper enquiries to determine why the person is not complying.” The president of the Victorian Bar, Wendy Harris QC, said they were concerned by Buhler’s arrest. “In the case of Ms Buhler, who was arrested and handcuffed in her home in front of her partner and children, the Bar is concerned that the enforcement action of the police … appeared disproportionate to the threat she presented,” she said. “The Victorian Bar is concerned that the enforcement response to Ms Buhler’s conduct is apparently at odds with other reported and more measured responses by authorities to organisers or promoters of similar protests planned or carried out in contravention of public health directives.” In an interview with the ABC, Buhler said she did not realise she was doing anything wrong, and the police could have given a phone call rather than arresting her.

“I didn’t realise that I wasn’t allowed to,” she said. “The police could have given me a phone call and say, look, you need to take down your event or you could be charged with a crime and I would have done that. It could have been as simple as that.” Cornelius confirmed that three additional people had been arrested and charged with incitement for planning an anti-lockdown protest at the Shrine of Remembrance in Melbourne, also on Saturday. “We remain very concerned, and in fact, outraged is probably a fair word, to say there are still people in our community who think it’s a good idea at the time of this deadly pandemic that we’re all fighting, think it’s a good time to leave home and protest on our streets,” he said on Thursday. Cornelius said that protesting, which is not allowed under stage three or four restrictions, put frontline health staff and police at risk of contracting the virus, and would make easing restrictions harder in future. “I would be the first to acknowledge the optics, for want of a better description, arresting a pregnant female, it’s never going to look good. The optics of arresting someone who is pregnant is terrible.” But the commissioner said that he was “satisfied” that police had acted reasonably, and said Buhler’s handcuffs were removed once police were sure that “the premises was secure”.  “Once the handcuffs were removed and the situation was safe, she was allowed to get changed and then she was taken back to the station for questioning … I’ve seen the footage, and you know, in my assessment, the members have conducted themselves entirely reasonably.” In response to a journalist who drew comparisons between the anti-lockdown protests and a Black Lives Matter protest held in June, Cornelius said there was a clear reason for the difference. The Black Lives Matter protests were held under stage two restrictions, and the protest planned for Saturday was under stage four, he said.

“There’s a huge difference,” he said. “During the Black Lives Matter protest, we were operating under a very different set of rules. Under the Black Lives Matter protest, leaving home to protest was a permitted activity. There were restrictions on it, so the restriction was you can leave home to protest with a group up to 10 people, and in multiple groups, so long as there’s a 100m distance between each of those groups. “Now, in stage four, and also in stage three, which applies to regional Victoria, when those restrictions came in, public protest was removed as a permitted reason. That is the rule that applies now, and that applies to the individual arrested yesterday … those rules did not apply during the Black Lives Matter protest”. He added that the organisers of the Black Lives Matter rally had told protesters to abide by the restrictions at the time. “Here’s the thing – the organisers of the Black Lives Matter protest were on record saying we’re telling people who are coming to protest to comply with the [health] directions.” Cornelius told reporters that police had visited more than 80 people this week, and warned them that if they attended or organised protests, they would be arrested. “If you do take the selfish option and leave home to protest, we’ll be ready for you … We have hundreds of police ready to respond, including our general duties and specialist police, such as the public order response unit, mounted branch and the highway patrol. They’ve all been rostered and will be deployed to support this operation.”

     Now for my comments, I am not lawyer, and the following is just my opinion for what it is worth. Some on the internet argue that she did not commit the crime of incitement according to the Crimes Act 1958 Victoria section 321G:

(1)     Subject to this Act, where a person in Victoria or elsewhere incites any other person to pursue a course of conduct which will involve the commission of an offence by—
        (a)     the person incited;
        (b)     the inciter; or
        (c)     both the inciter and the person incited—
if the inciting is acted on in accordance with the inciter's intention, the inciter is guilty of the indictable offence of incitement.
    (2)     For a person to be guilty under subsection (1) of incitement the person—
        (a)     must intend that the offence the subject of the incitement be committed; and
        (b)     must intend or believe that any fact or circumstance the existence of which is an element of the offence in question will exist at the time when the conduct constituting the offence is to take place.
    (3)     A person may be guilty under subsection (1) of incitement notwithstanding the existence of facts of which the person is unaware which make commission of the offence in question by the course of conduct incited impossible.”

     Did attempting to organise a protest under level 4 lockdown constitute incitement? Perhaps, as with many alleged offences, this could be argued either way. As well, there will be argument about whether Ballarat was in level 4 lockdown, some saying it was level 3 only, and since there is the precedent of the BLM protests in a level 3 lockdown, maybe there is a defence along those lines, maybe not. She did support social distancing and mask wearing, which again goes to the BLM precedent. Really, let the rule of law decide it. There should be a fund set up, if not already, for a five-star legal defence. As well, all of those conservative academics and lawyer professors writing about how all of this violates the constitution need to mount a High Court challenge, not just sit back in the comfort of academia. Justice needs you, oh learned flat heads! At the end of the day, let the rule of law decide it. It is not much of an original insight, but even mainstream sources are admitting that Covid-19 has been used for a push for more centralised power of governments, in a drive towards totalitarianism. I cannot think of a messier way for the system to collapse.



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Sunday, 23 June 2024

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