The trio maintained throughout court proceedings that they were not at the abortion clinic to protest but to pray.

Last week, Magistrate Glenn Theakston agreed: silent prayer is not protest.

The men, Kerry Mellor, 76, John Popplewell, 76, and Ken Clancy, 79, were charged in February last year, for protesting within the exclusion zone and issued a $750 fine, which they refused to pay. In 2016, the ACT Government introduced legislation that created a “protection area” around abortion clinics, to deter protesters and protect women entering the clinics from harassment or intimidation. The protection area was subsequently extended when protesters were still able to seen by women entering the clinics.

All three men had a history of holding prayer vigils every Friday morning outside the Mary Stopes International abortion clinic, located within the ACT Health Building. Vigils were accompanied, at times, by images of the Virgin Mary, a crucifix and a box containing a model of an unborn foetus.

But on the morning of February 3, 2017, the men said they were engaged in “silent prayer” only. The argument turned on whether such prayer could be considered “protest.”

“I accept they were each engaged in silent prayer, and that such prayer involved no component of expression, communication or message to those around them.”

The men contended they were engaged in “individual private prayer, which was not evident to others, and they therefore were not involved in a protest, by any means.”

Video surveillance footage of the trio was offered as evidence in court.

“Mr Popplewell and Mr Mellor are depicted walking among the pedestrian traffic on the footpath outside the building. They are not obviously carrying any symbols. No religious or political paraphernalia are seen in their possession. They appear to be moving innocuously among the light pedestrian traffic … the evidence was that both men were walking silently,” the Magistrate said in his decision.

“They simply do not stand out as participating in any extraordinary activity. They do not even gather … I accept they were each engaged in silent prayer, and that such prayer involved no component of expression, communication or message to those around them.”

Mr Clancy was seated on a public bench to pray. The magistrate considered that, while Mr Clancy’s head appeared bowed briefly in the video footage, “for the most part he is seated, with his head in a neutral position.” Mr Clancy could also be seen carrying rosary beads, which the Magistrate acknowledged gave him reservation.

“However, the presence of the rosary beads, without any other symbolic display or gesture, leaves me with a significant doubt about whether there was any expression, communication or message by Mr Clancy.”