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Having watched the following statement by Fredrick Toeben, I would like to make a few observations and comments:
Though there are certainly weighty historically important questions which will be judged in the case of Brendon O'Connell, his first concern should be to preserve his liberty and win his case. Any defendant should be raising legal issues in his defense and not simply hope to win because he is morally and factually correct. If convicted, a defendant may have waived those rights he did not assert prior to and during trial, and the appeals courts may refuse to consider any issues raised for the first time in post-conviction process. It is important, therefore, for any defendant to vigorously defend himself at the pretrail and trial stage of the prosecution, and throughout the process and assert all of his rights, and not get caught up in the drama and emotion which may blind him to the legal issues which can free him and which can help preserve all of our fundamental rights as human beings against the encroachments of the State.
If the information Toeben presents is correct, then the law which the State seeks to enforce against Brendon O'Connell is fatally defective on its face.
If the determination of whether or not the Jews constitute a race is made after the alleged act of vilifying the Jews occurs, then such a determination, however made, and whether made by a judge or a jury, or some other form of hearing, is made ex post facto and therefore is unenforceable against a defendant who had no prior notice of what conduct is proscribed by law.
The very act of conducting a hearing to determine whether or not Jews are a race demonstrates that the Statute failed to provide sufficient notice to the public of what conduct is proscribed by law, and therefore the Statute is unenforceable and must be struck down.
Since the Statute provides no legal definition of whether or not Jews are a race, the question is an issue of fact, not law, and therefore a defendant so charged ought to be entitled to have the issue of fact determined by a jury, if that is his choice, and not a judge or other non-jury form of hearing. I know nothing about Australian law. It might be that a defendant will have waived his right to have the issue determined by the jury at trial if he fails to assert that right pretrial and instead agrees to have the issue determined by a judge without objecting and taking exception to the violation of his fundamental due process rights. I do not know if the Australian courts honor a defendant's fundamental right to have issues of fact determined by a jury of his peers, as opposed to by a judge who in America is only entitled to determine issues of the law if that is the defendant's choice. This is a very important point to consider and one which the appeals courts may refuse to consider if it is not raised at the pretrial stage.
(1) There is a substantial argument to be made that there are no distinct human races, and therefore any accusation of racial vilification does not, and cannot state an offense and can therefore be dismissed pretrial. (2) This argument can be made in addition to the argument that the Jews are so genetically diverse that they cannot constitute any homogenous and unique biological category, much less constitute a specific race. (3) Beyond this is the argument that the Jews are followers of the Jewish religion, not an homogenous and unique racial biological category. A Jew may become a non-Jew by changing his religion without changing his genes. A non-Jew may become a Jew by conversion and belief. Though such a convert may believe that he is racially superior based on his incorporation through his beliefs into the "chosen people", science provides no evidence that his genes have changed, much less blended with those of a mythological homogenous and unique Jewish genotype which nowhere exists. These are three separate issues and should be heard separately at different hearings or by a jury.
Once again, since the law has not made any such definitions, these are questions of fact best left to the determination of a jury which is more likely to be sympathetic to the defendant's position than the State's by virtue of the fact that a judge is a member of the State. Any defendant should consider whether or not it is in his best interests to raise issues of: fact versus law, jury versus judge; and raise objections and take exceptions should the courts deny his right to have these issues of fact determined by a jury of his peers.
I once again caution O'Connell to use his head, not his heart, to defend his liberty, and his backside, and not martyr himself out of emotion and knowledge that he is in the right. He needs proper legal counsel who defend all of his rights and he needs to assert those rights and make proper and effective legal arguments as well as historical, religious and political arguments. The press, the public and the courts will take a strong interest in well stated legal arguments.
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