The appeal trial for Australia’s most high profile patriot activist Blair Cottrell over the 2015 Bendigo mock beheading stunt has concluded today with the judgement being handed by Chief Judge of the County Court of Victoria Peter Kidd.
Cottrell has again been found guilty and convicted under Section 25(2) of the Victorian Racial and Religious Tolerance Act 2001 and fined $2000 for intent to incite serious contempt, revulsion or severe ridicule of Muslims.
The lengthy legal battle following Cottrell’s initial conviction under the Section in a trial at a Melbourne Magistrates Court in September 2017 along with Neil Erikson and Christopher Shortis where they all fined $2,000 each.
The charges against the trio, or Bendigo Three as they came to be known, related to a mock beheading stunt they filmed and performed outside Bendigo’s Council building during the United Patriots Front’s activism against the construction of a mosque in the regional Victorian city in 2015.
The mock beheading was published in a Facebook video uploaded in October 2015 to promote an upcoming UPF rally against the mosque application. The video featured other footage of UPF activism chanting with Australian flags along with a music soundtrack.
This judgment came in the wake of a four day trial at the County Court of Victoria from November 11-14 overseen by Chief Judge Peter Kidd. You can read the official 73-page judgment here on the County Court of Victoria website.
As well as appealing the conviction Blair Cottrell and his lawyer John Bolton also argued that the Act violated the Victorian Charter of Human Rights and Responsibilities and Australia’s implied Constitutional freedom to political communication.
Judge Kidd also found the Act to be constitutionally valid. The legislation during the trial included: Racial and Religious Tolerance Act 2001, ss 1, 4, 7, 8, 9, 25; Charter of Human Rights and Responsibilities 2006, ss 7, 14, 15, 18, 32; Australian Constitution.
The History of the Bendigo Mosque
The Bendigo mosque only broke ground in July this year, its construction having received a $400,000 grant of Victorian taxpayer funds from Premier Daniel Andrews. Local opposition to the mosque has remained strong with an activist group the Bendigo faithful holding a free speech and patriot rally in the city every Thursday lunchtime.
Premier Daniel Andrews stated that bigotry was not an acceptable form of protest.
The Appeal Process
Cottrell was the only member of the Bendigo three and decided to appeal his conviction and $2,000 fine and engaged the services of patriot lawyer John Bolton.
The appeal process took many twists and turns to eventually reach the appeal trial. Originally given it was a matter of constitutional law, Bolton and Cottrell were directed to lodge an appeal directly with the High Court of Australia.
In December 2018, the High Court directed Bolton and Cottrell to the County Court of Victoria to lodge their appeal, as the High Court would not hear the case until all other appeal avenues had been exhausted by either side.
The County Court proceedings began in February this year with a mention hearing. The presiding judge at the time, Lisa Hannan – after initially expressing unease about hearing a constitutional matter at a lower state court level set the appeal for a trial in August.
A further development occurred in June when the Victorian Government, through Attorney-General Jill Hennessy, joined the Director of Public Prosecutions in the appeal proceedings. This was due to its belief that defending the validity of the Racial and Religious Tolerance Act was necessary to protect all laws against hate speech and to safeguard community cohesion.
But then in July, the Victorian Government admitted that Cottrell’s conviction under the Racial Religious Tolerance Act could conflict with its own Charter of Human Rights and Responsibilities – specifically the human right to freedom of expression under section 33 of the charter and the freedom of political discourse under section 18.
Another mention was held on this development where John Bolton argued this question of state law should be held in Victoria’s highest court, the Supreme Court. The DPP and State Government disagreed and argued that the trial should take place in the County Court in August, as scheduled, in the interest of expediency.
Judge Lisa Hannan, one week later, ruled that both the state and constitutional matters of law could be decided by the County Court at the trial beginning on August 12th.
However, the trial did not take place as scheduled on August 12th. Bolton and Cottrell were informed that Judge Hannan could no longer hear the case. It was revealed in September that this was due to Lisa Hannan accepting a new appointment as Chief Magistrate of the Magistrates’ Court of Victoria.
A rescheduled trial date was then set November 11th. by the Chief Judge Peter Kidd. Kidd’s most recent high-profile case was presiding over Cardinal George Pell’s two jury trials in 2018 on child sexual abuse charges.
Judge Kidd, after the jury at the Pell retrial, reached a unanimous guilty verdict and after another trial on a separate child sexual abuse incident was dropped, Kidd sentenced Pell to six years in prison. Pell’s has now appealed to the High Court after the Victorian Court of Appeal upheld the guilty verdict and sentence.
Peter Kidd has been Chief Judge of the County Court of Victoria since his appointment in September 2015. He was appointed concurrently as a Justice of the Supreme Court of Victoria in May 2016. He has previously been an international war crimes prosecutor and a Victorian Crown Prosecutor.
As the trial began on Monday 11th November Cottrell and Bolton decided to also appeal the substantive charge, in other worlds appealing Blair’s conviction under section 25(2) on the grounds it was not his intention to incite such feelings against Muslims. As a result, the Director of Public Prosecutions reinstated the wilful property damage charge for the fake blood spilt on the footpath outside the council building.
On Monday morning the prosecution played the video evidence of the case including the footage of the mock beheading. The Australian Associated Press reporter who was only present on the Monday Georgie Moore reported clapping and laughing from Blair Cottrell’s supporters in the gallery when the mock beheading video was played as evidence. The truth was they were clapping at one of Blair’s vlogs outside of a previous mention hearing where he was stating his thoughts about the charge.
Cottrell took the witness stand on Tuesday morning, the remainder of the trial was the constitutional and charter of rights and responsibilities viability arguments.
After being scarcely present during the trial the mainstream media reporters and cameramen were present in numbers for the judgment, the courtroom was more full than it was during the trial.
As Cottrell exited the court he was interviewed by Nine News and ABC News. Cottrell expressed his surprise at them suddenly being interesting in hearing from them given he has basically been blacklisted by the mainstream media after his 2018 Sky News interview with Adam Giles.
Blair also spoke with The Unshackled in-depth where he reflected on his legal journey and what he has planned next in terms of resuming his patriot activism.