Defamation - Application to strike out defence - Adequacy of fair comment plea - Whether knowledge of facts justifying comment must be pleaded - Whether comment a permissible variation of plaintiffs' imputations - Whether comment capable of arising - Whether a reply to an attack in Crown case in criminal proceedings protected by qualified privilege - Whether an arguable Lange defence - Turns on own facts

Adam v Ward [1917] AC 309

Bristile Ltd v The Buddhist Society of Western Australia Inc & Anor [1999] WASC 259

Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365

Kemsley v Foot [1952] AC 345

Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503

McIlkenny v Chief Constable of West Midlands Police Force [1980] QB 283

Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95

The Buddhist Society of Western Australia Inc v Bristile Ltd & Anor [2000] WASCA 210

Turner v Metro-Goldwyn-Mayer Pictures Ltd [1950] 1 All ER 449

1 This is the plaintiffs' application to strike out specified paragraphs of the first defendant's amended defence. It is the plaintiffs' second attack on the first defendant's pleading. The first attack, which was heard and determined by Hasluck J, was successful: Cock & Anor v Hughes & Ors [2002] WASC 108.

2 In this application the plaintiffs challenge the first defendant's pleading of fair comment, qualified privilege based on reply to a defamatory attack and the "Lange" defence.

3 In order to understand the nature of the challenge and these reasons it is necessary to set out the words complained of on which the plaintiffs rely. They are annexed to these reasons.

4 The plaintiffs' plea of imputations said to arise from the words complained of are that:

• the first plaintiff had abused his position as the Director of Public Prosecutions by initiating and maintaining the prosecution of the defendant so as to further his political and professional career;

• the second plaintiff had abused his position as a Crown Prosecutor by maintaining and conducting the prosecution of the defendant so as to further his political and professional career;

• the second plaintiff had abused his position as a Crown Prosecutor by maintaining and conducting the prosecution of the defendant so as to further the first plaintiff's political and professional career;

• the first plaintiff had acted illegally by intending to and actually concocting and manufacturing evidence in order to attempt to secure the conviction of the defendant;

• the second plaintiff had acted illegally by intending to and actually concocting and manufacturing evidence in order to attempt to secure the conviction of the defendant.

5 In the first strike out application, Hasluck J upheld the plaintiffs' submission that the first defendant's plea of fair comment was defective because he had not provided particulars of the substance of the comment. In this regard, Hasluck J followed the decisions of Ashley J in Anderson v Nationwide News Pty Ltd [2001] VSC 335; (2001) 3 VR 619 and Bongiorno J in Anderson v Nationwide News Pty Ltd (No 2) [2002] VSC 18; (2002) 3 VR 639.

6 The plaintiffs now object to one of the particulars provided by the first defendant on the basis that it is not directed to any sting alleged by the plaintiffs or any "permissible variation thereof".

7 The first defendant's particulars of the substance of the comment are in the following terms:

"(1) The first plaintiff had abused his position as the Director of Public Prosecutions in that he had been actuated by career ambition in maintaining the prosecution of the first defendant.

(2) The second plaintiff had abused his position as a Crown prosecutor in that he had been actuated by career ambition in maintaining the prosecution of the first defendant.

(3) The first defendant had been the victim of an attempted fit up by the first plaintiff and the second plaintiff in that they had prosecuted the first defendant on a trivial charges [sic] while really intending to victimise him in order to demonstrate to the public that they were capable of prosecuting persons who were white, powerful and well known."

8 The plaintiffs say particular (3) is not a permissible variation of the plaintiffs' pleaded imputations. The genesis of the rule in the Anderson cases is the limitation imposed on the Polly Peck justification defence by the Victorian Court of Appeal in the decision of David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667. It is said that, by parity of reasoning, the substance of the comment cannot be "substantially different" from the imputations alleged by the plaintiffs. This is the test applied by the Court of Appeal in Hore-Lacy to the Polly Peck defence and followed by Ashley J and Bongiorno J in the Anderson cases.

9 I remain of the view I expressed in Vitale & Ors v Bednall & Anor [2001] WASC 278 and Moir v Flint & Anor [2002] WASC 48 that is, it is arguable that the test of permissible variation from the plaintiffs' imputations is too narrowly formulated by the Court of Appeal in Hore-Lacy.

10 As I said in Vitale's case and in Moir v Flint, whatever be the correct legal position, on the current state of the authorities it cannot be said that a defendant's Polly Peck plea of a less injurious meaning on the same subject matter and in relation to the same separate and distinct charge as the plaintiffs' imputations would satisfy the General Steel test of being manifestly untenable or unarguable: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125; Vitale at [42]; Moir v Flint at [28].

11 Whether an imputation or a comment relates to a separate and distinct charge is a question of fact and degree in each case: Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 at 1032 per O'Connor LJ. In my assessment, the comment in particular (3) does not relate to a separate and distinct charge. It is a less injurious imputation in relation to the same charge as the plaintiffs' imputations. Accordingly, it is arguable, applying the General Steel test, that the comment is a permissible variation of the plaintiffs' pleaded imputation.

12 In oral submissions, the plaintiffs' focus was directed to the issue of whether the comment was capable of arising as a matter of law from the words complained of. This, of course, is a frequent challenge made in defamation cases to a plaintiff's plea of the imputations and a defendant's Polly Peck imputations. The same legal principles would apply. As to which, see Smith v Littlemore (1996) 15 WAR 289 at 294; Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 446 - 447.

13 The plaintiffs say the words "fit-up" can only impute the manufacture or concoction of evidence.

14 The first defendant relies on the colloquial meaning of the word "fit". It is defined (in dictionary definitions attached to the submissions) as:

• "to bring (someone) before the law on a trivial or trumped-up charge while really intending to victimise them:"

• "Secure enough (genuine or false) evidence to convict, frame."

15 The words "fit-up" are defined in the same dictionaries as:

• "An act of concealing or placing incriminating evidence on a person."

16 I do not find it particularly helpful to focus on individual words or phrases in the words complained of and consider them as you might in construing a statute. The meaning of the words is to be judged by the reasonable reader from their context. I am not persuaded that the substance of the comment in particular (3) is manifestly untenable or unarguable.

17 The plaintiffs also submit that the plea in particular (3) is embarrassing because it merely repeats the substance of the comments in particular (1) and (2). I take this objection to be analogous, if not identical to, the requirement that distinct imputations must be pleaded. The test of distinctness is whether the evidence to justify each meaning would or could be substantially different: Taylor v Jecks (1993) 10 WAR 309 at 319. I accept that proof of the facts to support the more specific comment in particular (3) may also prove particular (1) and (2), however the reverse is not necessarily so. Comment (3) is sufficiently distinctive.

18 The plaintiffs also challenge particular (1B) of the particulars of fact upon which the comment is based. Particular (1B) refers to the Statement of Prosecution Policy Guidelines ("prosecution policy") which applies to the prosecution of State offences. The grounds of objection are that there is no plea that the prosecution policy was within the first defendant's knowledge when he uttered the words complained of and it is not sufficiently identified in the words complained of to be part of the substratum. The latter reference is taken from the judgment of McHugh J in Pervan v North Queensland Newspaper Co Ltd [1993] HCA 64; (1993) 178 CLR 309 at 340 as follows:

"To raise the defence of fair comment in this class of case, it is sufficient that either expressly or by implication the defendant has identified the subject matter of the comment. The defence is available even though the publication does not state or indicate the facts which form the basis of the comment. As long as the subject matter of the comment is identified, the defendant is entitled to the benefit of the defence of fair comment if he or she is able to prove one or more facts which will justify the comment. The difference between identifying the subject matter or substratum of the comment and the facts which justify the comment is vital. The comment must indicate the subject matter or substratum of fact of the comment, but the defence does not fail because the publication does not indicate the individual facts which are the basis of the comment. It is the 'substratum' of fact not the individual facts which must be identified."

19 When the law was understood to be that the facts upon which the comment was based must appear in the words complained of or be of sufficient notoriety to the publisher and the relevant audience hearing or reading the words, it was implicit that the publisher must have been aware of the facts which justify the comment. Thus, although the first defendant's knowledge of the facts has never been pleaded as a material fact, it was implicit in other pleading requirements.

20 The plaintiffs submit that the requirement for knowledge at the time of publication is supported by the requirement that the comment be fair and made in good faith. However, once it is established that the words complained of pass the objective test of being recognizable as fair comment, the defence is only defeated if the plaintiff establishes malice: Telnikoff v Matusevitch [1992] UKHL 2; [1992] 2 AC 343 at 355; Gatley on Libel and Slander, 9th ed, 1998 pars 12.21 - 12.23.

21 As a result of McHugh J's judgment in Pervan, there is now some uncertainty as to whether a defendant must have knowledge at the time of the publication of the words complained of of all the facts relied on to justify the comment. In my view, if the substratum of facts are contained in the words complained of or are sufficiently notorious, it is arguable that a defendant need not establish knowledge at the time of publication of all of the facts available to justify the comments. In any event, although there is no plea that the first defendant was aware of the existence or content of the prosecution policy, it is arguably implicit in the words complained of that the first defendant was aware in general terms of the duties owed by Crown prosecutors.

22 The plaintiffs also submit that the prosecution policy is not sufficiently identified to be part of the substratum. I disagree. The subject matter or substratum of fact of the comment is the unsuccessful prosecution of the first defendant which was dismissed because of inadequacies in the prosecution evidence, including testimony provided by witnesses of dubious veracity, and of which prosecution the Magistrate was very critical. The words complained of are directed at the performance by the prosecutors of their official duties, a matter directly relevant to the prosecution policy.

23 The plaintiffs object to particular (40) of par 15 on the ground that the use of the word "indicated" is embarrassing and further that it suggests, as a matter of fact, that there was no prima facie case against the first defendant when the Magistrate's decision was overturned on appeal. This Court has found that there was in fact a prima facie case: Turner v Hughes [2000] WASCA 276.

"The matters referred to in paragraph (31) to (33) hereof and the dismissal of the case by the Magistrate indicated that in the judgment of the Magistrate the maintaining of the prosecution of the first defendant in the circumstances was inconsistent with the matters contained in the Prosecution Policy in that there was no prima facie case against the first defendant."

Similar complaints are made concerning particulars (41), (42), (43), (44), (46) and (47).

25 The first defendant says the intention in using the word "indicated" is to focus attention upon a derived fact (or inference) contended for which is alleged to arise from other identified facts. Further, it is intended that the matters are to be assessed as at the time of the publication of the words complained of and not at any later time, in particular not after the outcome of the appeal. Thus, the first defendant's position is that a person who was aware of the facts relied upon, including the publicly stated comments and opinions of the Magistrate conducting the trial, would draw the specified inferences as at the time of publication. With the benefit of the first defendant's clarification of these matters, which will now bind him, I am satisfied that there is insufficient embarrassment to the plaintiffs to warrant the paragraphs being struck out.

26 There is merit in the plaintiffs' objection to particular (45) which is pleaded in the passive voice without identifying who knew prior to the commencement of the trial of the specified matters. However, the defect can be remedied by the supply of further particulars.

27 The plaintiffs say they are also embarrassed by the use of the words "without limitation" in particular (47) which provides:

"The matters referred to in paragraphs (1A), (4) to (6), (14) and (15) hereof including without limitation that the second plaintiff prosecuted with a junior indicated that a level of resources and effort was devoted to the prosecution of the first defendant that was not usual in the circumstances."

28 It is clear to me that the words "without limitation" do not intend to widen the category of matters relied on but rather to make it clear that one such factor included the use of a junior.

29 This is a novel plea. In essence, the first defendant pleads qualified privilege by way of response to an attack by the plaintiffs. The attack is said to be made by the second plaintiff, on behalf of and on the instructions of the first plaintiff, in an opening statement at the trial in which he alleged in substance that the first defendant was guilty as charged.

30 The plaintiffs submit that the defence is wholly misconceived because there is no proper relationship between the attack, which is made in court to the presiding judicial officer, and the response which in this case was in the mass media. However, the first defendant pleads that the allegations made in the prosecution case, which I take to include the opening, were the subject of considerable publicity.

31 A person whose character or conduct has been attacked is entitled to answer such attack, and any defamatory statements he or she may make about the person who attacked him or her will be privileged, provided they are published bona fide and are fairly relevant to the accusations made: see Gatley (supra) par 14.49 and the cases there cited. Thus, there must be a relevant nexus between the nature of the attack and the response. As stated by Dixon J in Penton v Calwell [1945] HCA 51; (1945) 70 CLR 219 at 233 - 234:

"When the privilege of the occasion arises from the making by the plaintiff of some public attack upon the reputation or conduct of the defendant or upon some interest which he is entitled to protect, the purpose of the privilege is to enable the defendant on his part freely to submit his answer, whether it be strictly defensive or be by way of counter-attack, to the public to whom the plaintiff has appealed or before whom the plaintiff has attacked the defendant. The privilege is given to him so that he may with impunity bring to the minds of those before whom the attack was made any bona fide answer or retort by way of vindication which appears fairly warranted by the occasion ...

... It may be conceded that to impugn the truth of the charges contained in the attack and even the general veracity of the attacker may be a proper exercise of the privilege, if it be commensurate with the occasion."

32 In Penton v Calwell the plaintiff's attacks were made under the protection of parliamentary privilege. The defamatory reply was published in a newspaper editorial. As the attacks were made in Parliament and were thus said to reach the widest possible audience, the use of the public press for the purposes of reply was held to be appropriate: Penton v Calwell (supra) at 243 per Latham CJ and Williams J.

33 This is consistent with the English position. Where an original defamation is published in a particular form of media the same readers or viewers will generally have a sufficient reciprocal interest to receive the refutation by the person defamed: Watts v Times Newspapers Ltd [1997] QB 650 at 661 - 662.

34 The fact that the original publication of an attack is on an occasion of absolute privilege and is republished in the media, which republication would be protected by qualified privilege, does not prevent a reply to the attack from being the subject of qualified privilege: Penton v Calwell (supra). However, it seems to me the person making the original publication would have to be shown to be liable for the republication or for the damage caused by it (as to which see Gatley (supra), par 6.30 - 6.31). No one has suggested it is not arguable on the pleaded facts that the plaintiffs would satisfy the relevant test. That being the case, the remaining issue is whether the reply was sufficiently related to the attack or went beyond what was germane and reasonably appropriate to the occasion: see Marks v Construction, Mining, Energy, Timberyards, Sawmills & Woodworkers Union (1995) 14 WAR 360.

35 There is much force in the plaintiffs' submission that the attack went beyond what was germane and reasonably appropriate to the occasion. However, the question is one of degree which will, or may depend on the facts as they are found to be. Further, there is no authority directly on point to assist in the application of the principles. In all the circumstances, I am not persuaded that the first defendant's plea is manifestly untenable or unarguable as to justify it being struck out. As a matter of discretion, this is one of a number of matters raised by the first defendant that are more appropriately determined at trial, and elsewhere if need be.

36 The plaintiffs submit that the Lange defence pleaded in par 19 is untenable and is not cured by the introduction of particular (4)(CA). The particulars in subpars (CA) and (EA) were inserted after the first strike out application. They are additional to other particulars of reasonableness.

"(4) The publication of the matter complained of in paragraph 5 of the substituted statement of claim was reasonable in the circumstances:

(CA) In the circumstances of a publication by a private citizen to a media organisation if it was necessary to offer to the first plaintiff or the second plaintiff an opportunity to respond to the matters that were referred to then that offer would ordinarily be expected to be made by the media organisation rather than the first defendant."

38 The plaintiffs say that the Lange defence is untenable because it is a necessary ingredient of the condition of reasonableness that a person publishing defamatory material seek and publish any response from the person defamed: Popovic v Herald and Weekly Times Ltd [2002] VSC 174.

39 On my reading of Hasluck J's reasons in the first strike out application, that matter has already been resolved against the plaintiffs. Hasluck J concluded that the pleaded defence, which at that stage did not include a plea that the first defendant sought a response from the plaintiffs, was arguable: Cock v Hughes (supra) at [75] to [80].

40 Historically, attempts by the mass media to rely on the defence of qualified privilege have been largely unsuccessful. One exception to that has been a public reply to a public attack. Another is now the Lange defence which protects a communication made to the public on a government or political matter, including discussion of government or politics at a State or Territory or local government level: Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

41 A publisher relying on that category of qualified privilege to protect a publication that would otherwise have been held to have been made to too wide an audience must establish that its conduct in making the publication was reasonable in all the circumstances: Lange at 573. On the subject of what is reasonable the Court said (at 574):

"Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond."

42 Thus, there is no absolute and invariable requirement that a defendant contact the person defamed and seek and publish any response from that person. Whether it is a necessary ingredient will depend on all the circumstances of the case. I agree with Hasluck J that it is arguable the first defendant acted reasonably notwithstanding the absence of a plea that it sought and published any response from the plaintiffs.

43 That being the case I see no persuasive reason for denying the first defendant the opportunity to argue in the alternative that if a response should have been sought, and if provided published, it would ordinarily be expected to be attended to by the relevant media organisation who published the first defendant's remarks. Thus, I decline to strike out par 19 of the first defendant's defence.

44 For these reasons, I would dismiss the plaintiffs' application.

"5. On or about 10 May 2000 and from Broome in the State of Western Australia the First Defendant spoke and thereby published

5.1 to inter alia, Mr Liam Bartlett in Perth in the State of Western Australia; and

5.2 upon a radio programme hosted by Mr Liam Bartlett and broadcast upon the Second Defendant's radio station, ABC Radio 720AM; and

5.3 thereby to listeners within the broadcast area of the Second Defendant's ABC Radio 720AM programme hosted by Mr Liam Bartlett; and

5.4 in the circumstances described in paragraphs 8 and 9 below;

the following words of and concerning the First and Second Plaintiffs, in the context of Mr Bartlett's words described below:

'LIAM BARTLETT: But first up this morning dangerous driving charges against internationally renowned art critic Robert Hughes were thrown out of Court in Broome by a Magistrate last night. Magistrate Antoine Bloemen declared that the prosecution had failed to prove that Mr Hughes was driving on the wrong side of the road at the time of a head-on collision on a remote north-west road in May last year. The 2 day trial was effectively de-railed when the Crown's 2 star witnesses - occupants of the other vehicle - were charged with allegedly attempting to distort money from Mr Hughes in return for changing their testimony. Joining us now is Robert Hughes. Robert Hughes, good morning.

FIRST DEFENDANT: Good morning.

LIAM BARTLEYY: You must be relieved.

FIRST DEFENDANT: Relieved, I'm ecstatic, I mean this has been hanging over me for almost a year quite apart from the outcome from the err you know the injuries from the accident and err the you know the err you know and I'd be sort of wandering around the place in Sydney and in New York thinking Oh My God you know I'm going to be this wretched cripple picking mud crabs in the Broome jail you know for the rest of my life - very good Judge, very far seeking and err man and very you know I mean acutely aware of evidential procedures the thing that really surprised me was that the um these turkeys that the Director of Public Prosecutions sen [sic] up to go after me had a year to prepare that case and they did it so badly.

LIAM BARTLETT: Well the Magistrate was very critical of the Prosecution.

FIRST DEFENDANT: Yeah he really gave them curry at the end of his summing up which was indeed appropriate since one of them was an Indian gentleman.

LIAM BARTLETT: In what way appropriate.

FIRST DEFENDANT: Giving them curry

LIAM BARTLETT: Oh I see, I'm sorry

FIRST DEFENDANT: You know, ha ha ha.

LIAM BARTLETT: I'd say this morning that many people in the legal profession would see it as a great embarrassment for our Director of Public Prosecutions Office.

FIRST DEFENDANT: I think and I hope that it will be a substantial political set back for him because this was, in essence, a if not purely a political trial, it was certainly a trial actuated by career ambition on the part of the Director of Public Prosecutions and his off kicks. I mean err.

LIAM BARTLETT: What because of your profile?

FIRST DEFENDANT: Because of my profile you know they they didn't want to have a reputation just as people who put the powerless the young and the black in jail and in order to help them along with that they decided they'd go after somebody whom they supposed to be powerful and knew was white and who was reasonably well known. No this was this was going to be a fit up and I think it may have been overconfidence that caused them to blow it.

LIAM BARTLETT: What about comments that you made last night about the profile of the other people involved and I won't ask you to comment on the 2 people who were who are currently charged with attempting to extort money from you.

FIRST DEFENDANT: Well they're almost beneath commentary.

LIAM BARTLETT: But but what about the Perth bricklayer, Darren Bennett, who..

FIRST DEFENDANT: I feel sorry for Darren Bennett. I mean I I oh I was rude about him last night but on consideration, you know, I don't think that Darren Bennett really did anything wrong. I'm sorry that he got injured, you know, the the err because he was injured and you know I regret that you know we were both in the same smash and that you know and look you know I was very badly injured, he was not so badly injured but you know even if it was only he only went through a tenth of the pain and stuff that I went through nevertheless that's not something that you can disregard.

LIAM BARTLETT: No.

FIRST DEFENDANT: Its been very rough on him and the the I was naturally a bit intemperate last night but err..

LIAM BARTLETT: Was that because he was adamant that you were on the wrong side of the road during the crash.

FIRST DEFENDANT: Err, well you see I think he was wrong about that but I don't know. I mean look you know I cannot comment really upon the truth or otherwise of what he said because I don't remember the crash myself. I mean it ... I suffered from this condition called rather pompously post traumatic amnesia which means essentially that you know I got the memory knocked out of me. I don't remember anything about the crash at all. I wish I did. I was expecting that I was going to have all sorts of nasty flashbacks but you know the curious thing is that in the year almost a year since the crash I haven't had a dream about it, I haven't had a nightmare about it, err, it has not re-visited me from my unconscious which I I think is remarkable.

LIAM BARTLETT: Look, on the subject of making comments, perhaps some comments that people should not have made. Can I just play you some comments from Darren Bennett's mother who was in Court at the time.

FIRST DEFENDANT: Yes.

LAIM BARTLETT: She had a few things to say about your behaviour, lets hear what she has to say:

[VOICE OF DARREN

BENNETT'S MOTHER]: 'And as the Judge was not in a Courtroom at the time, um, Mr Hughes, was talking to this reporter and um the language that came out of Mr Hughes' mouth was absolutely disgusting as Mr Hughes sat right in front of me at the time not knowing who I was and I was just so upset to hear him call my son a low life when I feel that he is just a big man that wants a bit of publicity and I can't understand how anyone could bring my son's past up and he stays as squeaky clean. I just wish that he could live in my house for one week to see what we've been through since this accident has happened.

FIRST DEFENDANT: [laughter]

LIAM BARTLETT: You're laughing about that.

FIRST DEFENDANT: Yeah, I'm laughing about that because the the although I well understand the mother's pain at her son's injuries, um, the idea that the the you know she seems to have hold of the idea that in some way I staged a catastrophic accident in order to get publicity. I mean there are a lot of ways of getting publicity if you want publicity but getting yourself nearly killed in a car accident is not one of them. You know I can very well understand that she's very upset about her son's injuries and you know, as my mother would be about mine, were she alive. But the since I'd never met her son except you know presumably, you know through mechanical means, what on earth am I supposed to do beyond express sympathy for his injury. Low lives are people also people who hang out with other low lives and in the you know in the context of that um the you know there is no question that the people that he was travelling with were low lives, they were criminals, they were extortionists, one of them is doing ten years or thereabouts in jail for armed robbery even as we speak. That's Beau, the other one is probably going to be joining him and um you know I'm sorry that Darren Bennett made such a catastrophic choice of travelling companions but I quite understand that you know he is not at all of the same order of people as the guys he was travelling with.

LIAM BARTLETT: Does this come back to your profile.

FIRST DEFENDANT: What profile?

LIAM BARTLETT: The expatriate New Yorker, sort of flying into the small rural courthouse.

FIRST DEFENDANT: Well I don't think it is a small rural courthouse and as for the expatriate reporter flying in, you know what am I supposed to do, crawl in. I mean you know I came I could have stayed in America. I came here to answer the charges against me. I am still an Australian Citizen and wish to clear my name when it is impuned [sic] in Australia. Err, there was nothing that I did about that which in any way savours of arrogance or of impropriety.

LIAM BARTLETT: Well it's certainly been cleared hasn't it?

FIRST DEFENDANT: It certainly has been cleared and I'm very glad that it was and you know, I hope that I get you know better soon and I hope that Darren Bennett does too.

LIAM BARTLETT: And Robert Hughes the BBC documentary Return to the Fatal Shore ...

FIRST DEFENDANT: Well, this is a, see this is a 6 part series that I'm working on at the moment and that I was working on when I got clobbered.

LIAM BARTLETT: Yep, will you go back to it?

FIRST DEFENDANT: Oh hell, we finished it. I mean we finished all the filming. That's what I've been doing for the last couple of months. It's going the first documentary series the BBC has ever put out with its presenter on crutches I think. (laughter), but the no we're err, we're through the filming now, now all I have to do is script it and you know finish the scripting and the recording and it will I understand go out in September though when it does go out it will you know be the only I think the only series that goes out at that time that will not anywhere mention the word Olympic.

LIAM BARTLETT: And the photographs that we've been hearing about that you've been taking about as part of this court process, will they appear in the book?

FIRST DEFENDANT: No. I gave my word to the er Judge, first of all I was unaware that there was anything wrong or improper about taking a photograph in a courtroom in which the Magistrate was not present. I just took a photograph of the 2 prosecution guys and my 2 attorneys. Um in an otherwise empty courtroom and the um you know the head prosecutor you know took tremendous technical umbridge [sic] at this but and so consequently I did quite willingly give my word to the Court that I would not err publish or in any way exploit that photograph.

LIAM BARTLETT: Right, but you will bring a book out on this won't you.

FIRST DEFENDANT: Oh you bet I will, yeah absolutely. No because to me it's a very interesting subject, you know what do you do when you're nearly killed. You know, how do you react to near death. What is this thing about you know about you know losing consciousness, nearly going down, slowly recovering consciousness, drifting in and out of it and then you know that long tedious and sometimes agonizing process of healing. I mean I've you know and then the legal ramifications that arose out of this.

LIAM BARTLETT: Well, can I ask you one final question this morning?

FIRST DEFENDANT: Yes.

LIAM BARTLETT: Have you got a message for the DPP here in Western Australia seeing as he has lost the fight against you?

FIRST DEFENDANT: I think probably my message to him would be Don't try and tangle with art critics and be very careful the next time you try and get somebody fairly high profile in order to make some political or professional capital of because you never know, you might make the same mistake twice, that's my message for you DPP.

LAIM BARTLETT: Robert...

FIRST DEFENDANT: Oh and also one other thing.

LIAM BARTLETT: Yes.

FIRST DEFENDANT: If you're doing it through a deputy make sure he does his homework.

LIAM BARTLETT: Robert Hughes, thanks for your time this morning.

FIRST DEFENDANT: Thank you.'