O'Connell had posted video of a confrontation with Stanley Keyser, president of the WA branch of Australasian Union of Jewish Union. He accused Keyser of being "a racist homicidal maniac" and commented "You are anti-goy ... it is in your religion and race". O'Connell also posted video of himself describing the confrontation with Keyser and making statements that most people would consider to be expressions of antisemitism, including "We've had enough of you and those bells toll for you. Your days are numbered". At one point he threatened to put Jews "in camps", characterising them as "vampires" and describing a Jewish day school as a place "where little judaicas learn how to be racist, homicidal maniacs". O'Connell indicated that it is "Time to get out there" and "Time to get angry".
The State decided, reasonably, that it was "time" to put a stop to such hate-speech.
In response to his statements O'Connell faced several charges under the WA Criminal Code, rather than under the Racial Discrimination Act 1975 (Cth) -
(1) ... conduct, otherwise than in private, that was likely to harass Stanley Elliot Keyser as a member of a racial group namely pursuing Keyser and making a series of statements to Keyser.
(2) ... with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the internet a series of statements concerning the Jewish people.
(3) ... with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the internet a series of statements concerning the Jewish people.
(4) ... with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the internet a series of statements concerning the Jewish people.
(5) ... with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the internet a series of statements concerning the Jewish people.
6) ... with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the intemet a series of statements concerning the Jewish people.
7) ...with intent to create or promote animosity towards a racial group engaged in conduct, otherwise than in private, namely publishing on the internet a series of statements concerning the Jewish people.O'Connell was self-represented in that trial. It featured his description of the court as a "kangaroo court" ("To emphasise the point, he sang the theme song to the well-known children's television program Skippy"), reference to the judge as "Captain Pugwash", telling the judge "Shut up, you old fool", asking the judge "Were you paid or do they have something on you?" and telling the judge "I wish to get your neck size so we can go straight to the gallows for treason". Like some self-represented defendants noted elsewhere in this blog he appears to have contested the constitutionality of the WA statute and state court.
He was the first person to be convicted under ss 77 and 80B of the Code. (O'Connell received pro bono representation in his appeal.)
On appeal the Court found that O'Connell's expression has the potential to provoke violence and promote disharmony towards Jewish people and their property. The Court also found that while the sentence imposed was high, it was not unjust or unreasonable. The Court referred to the second reading speech regarding inclusion of ss 77 and 80B in the Code in 2004, noting that the then WA Premier stated -
Racial vilification is an insidious crime. It is a most serious offence that can and does cause great harm and damage - physical, psychological and emotional - to members of our diverse community and consequently, to our society as a whole. It is intended to incite, or has the effect of inciting, hatred and similar emotions by one group against another - usually the dominant against one or more minorities - and affects community relations generally. It causes or is intended to cause fear in those who are targets. ...
The desire to allow people the right to express themselves freely must be balanced with the recognition that racism can destroy people's sense of safety and wellbeing and their ability to participate in community life. This can marginalise them from the community, thereby damaging the quality of our democratic society and our ability to live together peacefully, respecting our differences. Every person has the right to a dignified and peaceful existence, free from racial vilification and harassment.
