O'Shane v John Fairfax Publications Ltd

Supreme Court of NSW|2003-06-24|Before: Smart AJ, Toohey J

Reported Decision : (2004) Aust Torts Reports 81-733

CITATION : O'Shane v John Fairfax Publications Ltd [2004] NSWSC 140 HEARING DATE(S) : 16, 17, 18, 19, 23, 24 June 2003 JUDGMENT DATE : 16 March 2004 JURISDICTION: Common Law Defamation List JUDGMENT OF : Smart AJ at 1 DECISION : See paras 245-246

CATCHWORDS : Was material complained of Fact or Comment - Serious imputations found - Defence of Comment - whether article based on proper material for comment - whether author of article was agent of defendant or a stranger - Availability of defence of qualified privilege at common law as extended by Lange and by statute - publication of material complained of not reasonable - factors underlying assessment of damages - aggravated damages - no malice. LEGISLATION CITED : Crimes Act 1900 s 29, s 33A Defamation Act 1974 Australian Capital Television Broome v Cassels & Co Ltd [1972] AC 1027 at 1071 Carleton v Australian Broadcasting Corporation [2002] ACT 127. Clarke v Norton [1910] VLR 494 at 499 Crampton v Nugawela (1996) 41 NSWLR 176 at 193 Cunliffe v The Commonwealth (1993-94) 182 CLR Toohey J at 379 Derbyshire County Council v Times Newspapers Ltd [1993] AC at 547?8 Hunt v Star Newspaper [1908] 2 KB 309 at 319-320 John Fairfax Publications Pty Ltd v Attorney-General CASES CITED : (2000) 181 ALR 694 Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511 and (1991) 23 NSWLR 374 Nationwide News Pty Ltd v Wills (1992) 177 CLR at 74 Popovic v Herald & Weekly Times [2002] VSC 174 R v Nicholls (1911) 12 CLR 280 at 285 and 282-3 Sims v Wran, 1984 1 NSWLR 317 at 322 Smith v Harris [1995] A Def R [52055] at 43,870 Stephens v West Australian Newspapers Ltd (1992) 177 CLR 1 Telnikoff v Matusevitch [1992] 2 AC 343 at 352. Theopanous v Herald & Weekly Times Ltd (1993-94) 182 CLR at 124 Williams v John Fairfax & Sons Ltd (1994) A Def R 52,010 PARTIES : Patricia June O'Shane v John Fairfax Publications Pty Limited FILE NUMBER(S) : SC 20527/00 COUNSEL : (P) B McClintock SC & R Weaver (D) B Walker SC & R Glasson SOLICITORS : (A) Aitken McLachlan Thorpe (D) Freehills

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

20527/00: Patricia June O'SHANE v JOHN FAIRFAX PUBLICATIONS PTY LIMITED JUDGMENT

Patricia June O'Shane sues John Fairfax Publications Pty Limited for damages for defamation arising out of the publication of an article written by Janet Albrechsten in the Sydney Morning Herald on Thursday 16 December 1999 in the following terms, the paragraphs having been numbered for convenience of reference,: EXTREME VIEWS FROM THE BENCH 1. The decision by the NSW Director of Public Prosecutions to overrule a recent decision by Magistrate Pat O'Shane suggests that it may be time to reflect, more generally, on some of the controversy surrounding O'Shane

As a magistrate, O'Shane is often angry at what she perceives as injustices in our society. And when she unleashes her anger from the raised platform of the judicial bench, she ignites a highly charged debate within the legal and wider community.

Her latest decision, in which she lashed out at police culture and police harassment of youth, again raises the question of whether the justice system is best served by O'Shane's rancorous attitudes towards certain sections of society.

Two weeks ago she dismissed charges against Michael Kanaan who was involved in a shoot-out with police in the early hours of December 23 last year. Kanaan was charged with shooting a firearm with intent to murder. O'Shane dismissed those charges on the basis that there were discrepancies in the evidence such that a jury could not reasonably convict.

Yesterday the DPP, Nicholas Cowdery, QC, ordered that Kanaan be tried on the basis of an ex-officio indictment. The question of the defendant's guilt or innocence will now be determined in a new trial.

Putting aside the question of the defendant's guilt or innocence, what is so surprising about O'Shane's decision is that she launched a vitriolic attack on what she perceived as police harassment of Kanaan and the other three men involved in the shoot-out. She angrily described the action of the police officers who gave chase to the men as they fled their car as 'stupid, reckless, foolhardy'.

O'Shane has been angry many times. In 1989 when she sat in the Brewarrina Local Court, she dismissed 116 charges against Aborigines in one day, many for offensive language, believing that the offensive language arrests were a habitual form of police harassment of Aborigines.

Two years later, in Lismore, she dismissed a charge against a man who called police 'f---ing poofters'. The then Premier, Nick Greiner, was appalled at the decision and the Director of Public Prosecutions appealed. O'Shane was ordered by the Supreme Court to rehear the case. She did so, finding the case proven, but once again dismissed the case, using her judicial discretion under the Crimes Act.

And few could forget the consequences of her anger when directed at the now infamous 'Berlei bra' billboard in 1993. In that case she dismissed charges against four women who pleaded guilty to defacing a billboard advertising Berlei bras.

10 The billboard depicted a woman wearing Berlei underwear being sawn in half by a magician with the caption, 'You'll always feel good in a Berlei'. The four women had added the words: 'Even if you're mutilated'.

In a highly emotional speech to the courtroom, O'Shane found that the real perpetrators of the crime were those responsible for the advertisement. She refused to award damages or costs to the advertisers.

In an interview with Margaret Throsby for the Independent Monthly shortly after the Berlei bra decision, O'Shane commented: 'I was very angry … acquitting the women simply wasn't enough.'.

It may not have been enough for O'Shane, but many within the legal fraternity felt she had gone too far. O'Shane is a magistrate whose decisions impact directly and on a daily basis upon individuals and society as a whole. It is not at all clear that her decisions do anything other than undermine the judicial system as a whole.

O'Shane defended herself to Throsby on the grounds that, as a magistrate, she applies a litmus test of 'human values' to bring about the right result. The flaws in this argument are twofold. First, she appears to see herself as the sole arbiter of 'human values'. As any first-year law student would know, equity is as long as the Lord Chancellor's foot.

The second problem is that some of her decisions amount to serious misapplications of her 'human values' test. Few would disagree with the proposition that women have the right to protect their bodies from violation. Yet it was by no means clear that the Berlei bra billboard incited violence towards women or violated women's bodies.

Similarly, few would argue with the proposition that genuine police harassment is unacceptable. But the facts of the Kanaan case do not suggest a clear-cut case of harassment. In fact, many would suggest that the Kanaan case was precisely the sort of scenario when police have not merely the right, but the obligation, to pursue suspicious assailants absconding from them.

While O'Shane attracts some vocal supporters, their arguments are invariably disingenuous. Some years ago following the Berlei bra fracas, a prominent supporter of O'Shane admired her for having the courage of her convictions. Yet in the same breath, Professor Mark Findlay, then director of the Institute of Criminology in NSW, revealed a rich, and no doubt unintended, irony when he criticised other members of the judiciary for reflecting 'extreme views of their own'.

This is a common failing among O'Shane and her supporters. They support the injection of convictions into the courts by activist judges provided they are in line with their own. They were the first to chastise Justice Derek Bollen who made comments in a rape in marriage case which some suggested gave the impression that he condoned 'rougher than usual handling' by husbands to persuade wives to have sex. He was similarly castigated for telling a jury that a wife who had killed her husband had not been 'sufficiently battered' to claim self-defence.

Yet O'Shane and her staunch supporters should remember that a society which accepts a Pat O'Shane should also accept a Derek Bollen."
The article appeared on page 19 of the Herald on what is called the "Opinion" page. It was on the page opposite that containing the Editorial articles. Page 19 is headed "Pat O'Shane is a magistrate who makes headlines: here are two opposing views on the latest controversy." Underneath that heading is a graphic black and white illustration showing a person with a foot and leg in each of the scales apparently endeavouring to keep them in balance and perhaps running. Underneath the illustration are two articles, one by David Dixon headed "Means, ends and the rule of Law", the other being the article complained of.

A jury has determined that the article bore these imputations and that each of them was defamatory of the plaintiff, namely:

(a) The Plaintiff, when acting as a magistrate, is biased.

(d) The Plaintiff, in breach of her duty as a magistrate to consider criminal charges in accordance with the law, knowingly dismissed charges against four women who pleaded guilty to defacing a billboard when she should have found them guilty and awarded costs and damages against them.

(f) The Plaintiff, as a magistrate, is incompetent.

(g) The Plaintiff, as a magistrate, undermines the judicial system.

(h) The Plaintiff is unfit for her office as a magistrate because she allows her extreme views to affect her judgment. 4. In her evidence Ms Albrechsten conceded that she intended each of those imputations. She was critical of the plaintiff's conduct as a magistrate. She held the opinion that Ms O'Shane allowed her personal views to intrude upon the discharge of her judicial duties. There was a major contest whether the imputations were statements of fact, as the plaintiff contended, or comment, as the defendant contended.

The defendant, after denying the imputations alleged and that they were defamatory, pleaded: "(a) the matter complained of amounted to comment relating to a matter of public interest and which:

(1) (A) was based on proper material for comment; or (B) was based on material which is to some extent proper material for comment and represented an opinion which might reasonably be based on that material to the extent to which it was proper material for comment; (2) (A) was not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant; or

(B) further or in the alternative to (A), was the comment of a servant or agent of the defendant. (b) the matter complained of was published under qualified privilege;

(2) pursuant to section 22 of the New South Wales Defamation Act 1974." 6. Extensive particulars were supplied of the basis for comment, of the public interest and qualified privilege.

The article was precipitated by the plaintiff, on 29 November 1999, discharging Michael Kanaan on two allied charges, namely, shooting a firearm at a person with intent to murder (s.29 Crimes Act 1900) and maliciously discharging a loaded firearm with intent to do grievous bodily harm (s.33A Crimes Act 1900) and by what she said on that occasion.

The author of the article relied on what the plaintiff said and did as to the Kanaan charges, her dismissal of various charges against sundry Aborigines in Brewarrina Local Court in 1989, her dismissal of an offensive language charge against Geoffrey Alan Langham in Lismore Local Court on 19 February 1991, not convicting four ladies who defaced a Berlei Bra billboard in 1993 and not ordering them to pay compensation and especially some comments which Ms O'Shane made in giving her decision. Ms Albrechsten also had before her when she wrote her article a copy of Ms O'Shane's judgment of 29 November 1999 and many articles in newspapers and periodicals.

The article consists of some generalities and four different instances of matters handled by Ms O'Shane in her duties as a magistrate. She correctly conceded that the manner in which she handled the cases which came before her was a matter of public interest. I will take the four cases referred to in the article as the article deals with them.

This is dealt with in paragraphs 1, 4, 5 and 16 of the article. The defendant contended correctly that the following were statements of fact rather than comment: (a) "The decision by the NSW Director of Public Prosecutions to overrule a recent decision by Magistrate Pat O'Shane …" (para 1) (b) "Two weeks ago she dismissed charges against Michael Kanaan who was involved in a shoot-out with police in the early hours of December 23 last year. Kanaan was charged with shooting a firearm with intent to murder. O'Shane dismissed those charges on the basis that there were discrepancies in the evidence such that a jury could not reasonably convict." (para 4)

(c) "Yesterday the DPP, Nicholas Cowdery, QC, ordered that Kanaan be tried on an ex officio indictment. The question of the defendant's guilt or innocence will now be determined in a new trial." (para 5)

(d) "… she launched a[n]… attack on what she perceived as police harassment of Kanaan and the other three men involved in the shoot out. She … described the action of the police officers who gave chase to the men as they fled their car as 'stupid, reckless, foolhardy'." (para 6)

(The words omitted were "vitriolic" before "attack" and "angrily" before "described") 11. There are some inaccuracies in sub-paragraphs (a) and (c) but they are of no consequence.

In her reasons of 29 November 1999 the plaintiff said: " - it is clear that Constable Patrech was shot in the early morning of 23 December 1998. The present defendant was also shot on that occasion. He was found having sustained a serious loss of blood on the tennis courts in Weigall Park … and nearby was found a 9 millimetre handgun which he had had in his possession and which had been fired on the night."
The plaintiff also mentioned that Constable Patrech said that he saw one of the two males endeavouring to escape point a black pistol at him. He heard three gunshots and felt pain in his right thigh and right forearm. A question arose as to the sufficiency and accuracy of the identification evidence of Constable Patrech. After canvassing the evidence and holding that there was no reasonable prospect of a jury convicting Kanaan of shooting a firearm with intent to do grievous bodily harm to Constable Patrech she discharged Kanaan in respect of both charges.

The plaintiff then said: "Last week, when dealing with the charge of shooting with intent to resist lawful apprehension, I commented that the circumstances in which Constables Patrech and Fotopoulos became involved with the defendant Kanaan and his cohorts on the night of 22 December 1998 indicated police harassment of youth. I do not resile from those comments. Indeed, I would add, having commented that in fact as investigations later revealed, these young fellows were abroad with criminal intent on the night, that the end does not justify the means. But further, I wish it to be noted, at the time of this incident Constable Patrech was a young and inexperienced officer. He had not long been in the Police Service. He was shot and as he said suffered very considerable pain. Not only did he suffer physically but he also suffered emotionally and it must be expected psychologically. In all, the events of 23 December last were highly traumatic for Constable Patrech. He did not deserve that and it was also unnecessary. But our concerns about the effects of what eventuated that night should not cloud our judgment of the issues which have to be dealt with in these proceedings. There is no doubt in my mind that Constable Patrech was led into what turned out to be an extremely dangerous situation on the night by his senior companion officer, Constable Fotopoulos. Fotopoulos was the driver of the police vehicle on the night and for no cause gave chase to Kanaan and his cohorts. When their vehicle came to a stop and they decamped, both officers gave chase to the men. That was stupid, reckless and foolhardy. Even had the shooting not taken place, it was foolhardy behaviour. They were going into a situation of potential danger in any case. It was dark and deserted and there were three men that they knew of. There had been no cause in the behaviour of the young men which gave rise to the foot pursuit, other than their abandoning the motor vehicle and decamping the immediate presence of the police. There is no reason why they should have stopped as demanded by the police. At that point it seems from the evidence that the police officers behaved in an irresponsible manner and in that respect I see the behaviour of Constable Fotopoulos as being of great paramountcy or primacy. There was nothing which called for such behaviour. Had they exercised the caution that society might expect of well trained, cool-headed police officers, then they would have stopped at the abandoned vehicle and checked it out. It is to be hoped that police training will include advice to young officers in particular about the dangers of foolhardy and reckless bravado. This case is an object lesson. Society has a right to expect a professional law enforcement service. We need to protect good officers and encourage them in their necessary duty but that responsibility starts with sound training programs." It is arguable that once the men ran off carrying guns (especially if loaded) the police were entitled to pursue and arrest them.

Ms Albrechsten had a copy of the transcript of the plaintiff's reasons, a copy of an article by Stephen Gibbs in the Sydney Morning Herald of 30 November 1999, an article by Heather Gilmore in the Daily Telegraph of 30 November 1999 and an article by Charles Miranda in the same issue. The article in the Sydney Morning Herald of 30 November 1999 appeared on pages 1 and 4 of that issue under the heading "O'Shane frees gunman and lashes police." That was in large letters and bold type. The article raised questions as to the wisdom of the plaintiff's reasoning and decision. The article recorded that the plaintiff had repeated her earlier comments that Cons Patrech and Snr Cons Fotopoulos had been harassing Kanaan and three other young men when they chased them. (It seems Kanaan was aged 24). The article contains statements from the Police Association critical of the decision. It was disturbed by the plaintiff's comments as to police attitudes to young people.

In a major article occupying the front page of the Daily Telegraph of 30 November 1999 the heading in large bold letters "I was Doing My Job" appears. Under that heading there is a smaller heading in bold type and capitals "Shot Policeman's shock over dropped charges." Alongside the article was a photograph of Cons Chris Patrech. It rehearsed the plaintiff's comment that he had been "stupid, reckless and foolhardy" and stated that Cons Patrech had said he was sickened by and absolutely shocked and disappointed with the decision. The Constable was reported as saying that the decision would not change how he did his job and that he believed that the public expects police to do their job which was arresting criminals. Sometimes this involved situations which were dangerous and life threatening. The article contained some strongly expressed views by Sgt Patrech, the father of Cons Patrech. The article contained this paragraph: "Yesterday after finding there was not a 'reasonable prospect' that a jury would convict Kanaan based on the evidence, Ms O'Shane added to her attack on police which began last Friday when she said Sydney police have a reputation for harassing youths."

The article recorded Police Association criticism of the plaintiff's remark. Page 4 of the Daily Telegraph was given over to articles about the case including a continuation of the article which began on page 1. A large part of page 4 is devoted to an account of the incident and its aftermath. The headings in large type include "Pursuit Into Peril", "How an officer was shot on duty" and "Anatomy of a Sydney Gunfight". Under the last mentioned heading there was a diagram illustrating the course of events.

There was a third article on page 4 under the heading, "No Stranger to controversy". That was in bold type. That article referred to her handling of the Berlei underwear billboard case, the Lismore offensive language case and to other matters not mentioned in Ms Albrechsten's article.

Ms Albrechsten's article draws on the material appearing in the Herald and Telegraph of 30 November 1999.

On 3 June 1999 the Sydney Morning Herald, page 3, published an item that in the prosecution of Michael Kanaan the plaintiff had granted his request to cross-examine Cons Fotopoulos and Patrech after noting there were "very significant discrepancies" in the officers' statements. It was also reported that some time after the shooting Cons Fotopoulos was found to have traces of THC, the mind altering component of cannabis, in his urine. The level did not suggest recent use.

Brewarrina Local Court Dismissals. This is dealt with in para 7 of the article sued upon. The defendant contended correctly that the following was a statement of fact. "In 1989 when she sat in the Brewarrina Local Court, she dismissed 116 charges against Aborigines in one day, many for offensive language, believing that the offensive language arrests were a habitual form of police harassment of Aborigines."
From the documents produced by Brewarrina Local Court the following appears. On 18 January 1989 9 matters listed in the Children's Court were adjourned. Of 66 matters listed in the Local Court 54 matters were adjourned, some to the following day, 12 matters were dealt with. In 5 matters (offensive manner (2), steal, assault female, offensive behaviour) there was a plea of guilty and a conviction with the plaintiff dealing with the offences under s.558 of the Crimes Act. In 3 cases (offensive manner (2) and unlawful entry) there was a plea of guilty and the information was dealt with under s.556A of the Crimes Act. In 3 cases the information was dismissed. (No evidence offered and not proved). The twelfth matter involved maintenance and the payment of arrears.

On 19 January 1989 there were two matters in the Children's Court . In one the defendant was not before the Court. In the other, the charge of enter with intent was dismissed. Of the 34 matters listed in the Local Court 22 were adjourned and 3 were erroneously listed. One case of assault female was adjourned for sentence after a plea of guilty and conviction. In 2 charges of assault police no evidence was offered. One charge of malicious wounding was found not to be proved and dismissed. In 5 cases (offensive language (2), assault female (2) and fail to appear) there were pleas of guilty and conviction. They were all dealt with under s.558 of the Crimes Act.

It was not established that the plaintiff sat at Brewarrina Local Court other than on 18 and 19 January 1989. Accordingly, the assertion that the plaintiff in the Brewarrina Local Court dismissed 116 charges against Aborigines was incorrect if reliance is placed on the Court records which were produced. Part of the material on which Ms Albrechsten relied comprised an article by Adrian McGregor, published in the Sydney Morning Herald on 20 March 1993. Mr McGregor interviewed the plaintiff and wrote a sympathetic article. This was nearly two months after the Berlei underwear case. She told Mr McGregor of a supportive letter from the partners in one legal practice not to let the bastards get her down. The article continues: "Who are the bastards? Well, that's why she hesitated. Because not so long ago, she believes, they were elements of the NSW Police. Relations soured back in 1989 when O'Shane sat in Brewarrina Local Court and in one day dismissed 116 charges against Aborigines, almost without exception for offensive language." "Was the police prosecutor surprised when she began dismissing the charges? 'Angry, I think is the word', says O'Shane. 'I remember of all those cases, only one was a non-Aboriginal defendant.' … "O'Shane dismissed the charges under section 556A of the Crimes Act, which gives her discretion, when deciding penalties, to take into account other factors, including the trivial nature of the offence." … "O'Shane believes those offensive language arrests were a form of habitual police harassment of Aborigines. She also doubts that police could be genuinely offended by swearing which had become almost part of the Australian vernacular."

It is not clear how the story developed that the plaintiff in Brewarrina Local Court had on one day dismissed 116 charges against Aborigines almost without exception for offensive language. The records of the Brewarrina Local Court produced to this Court indicate that in total 75 matters were listed before her on 18 January 1989 and 36 matters on 19 January 1989, including matters in the Children's Court, but most of the matters were adjourned. No attempt seems to have been made by anyone to refute that the plaintiff dismissed 116 charges on one day. On the materials produced by Brewarrina Local Court before this Court the plaintiff on 18 and 19 January 1989 dealt in total with four cases of offensive manner, one of offensive behaviour, and two cases of offensive language. Two of the cases were dealt with under s.556A of the Crimes Act and the remainder under s.558.

It does seem that in paragraph 7 of her article Ms Albrechsten was placing reliance upon what appeared in Mr McGregor's article of 20 March 1993. The plaintiff seemed to accept when speaking with Mr McGregor that she dismissed 116 charges. That statement is not contradicted or corrected and possibly reflects the true position.

This is dealt with in paragraph 8 of Ms Albrechsten's article. The defendant contended correctly that the following were statements of fact rather than comment: "Two years later, in Lismore, she dismissed a charge against a man who called police 'f-ing poofters". The then Premier, Nick Greiner, was appalled by the decision and the Director of Public Prosecutions appealed. O'Shane was ordered by the Supreme Court to rehear the case. She did so, finding the case proven, but once again dismissed the case, using her judicial discretion under the Crimes Act ." It was not suggested that the facts were inaccurately stated but exception was taken on the plaintiff's behalf to the phrase "once again".

In his article of 20 March 1993 Mr McGregor wrote: "O'Shane believes those offensive language arrests were a form of habitual police harassment of Aborigines. [This appears to be a reference to the Brewarrina charges]. She also doubts that police could be genuinely offended by swearing which had become almost part of the Australian vernacular. She ruled as much in Lismore in February 1991 dismissing charges against a man who described police as f-ing poofters. The Premier, Nick Greiner among others, was angered; the Director of Public Prosecutions appealed. Seven months later Justice Studdert in the Supreme Court ordered O'Shane to re-hear the case. She did, found the charge proven but dismissed the case under section 556A. The Lismore case sparked an 18 month campaign of anonymous hate mail. According to her own police sources, and from clues in the letters, much of the mail came from police. 'They sent wheelbarrow loads of it, in the most outrageous terms,' she said. 'Every crude word they could think of'."

This was part of the material Ms Albrechsten had when she prepared her article. Paragraph 8 of the article complained of is in substance similar to that which is said in the third paragraph of Mr McGregor's article set out earlier in this paragraph.

This is dealt with in paragraphs 9, 10, 11, 12, 13, 15 and 17. The defendant contended correctly that the following were statements of fact rather than comment: "In that case, she dismissed charges against four women who pleaded guilty to defacing a billboard advertising Berlei bras.

The billboard depicted a woman wearing Berlei underwear being sawn in half by a magician with the caption 'You'll always feel good in a Berlei.' The four women had added the words, 'Even if you're mutilated.'

In a … speech to the courtroom, O'Shane found that the real perpetrators of the crime were those responsible for the advertisement. She refused to award damages or costs to the advertisers. (The words omitted were 'highly emotional')

In an interview with Margaret Throsby for the Independent Monthly shortly after the Berlei Bra decision, Ms O'Shane commented: "I was very angry … acquitting the women simply wasn't enough."
Ms O'Shane defended herself to Throsby on the grounds that as a magistrate, she applies a "litmus test of 'human values' to bring about the right result."

The transcript of the Court proceedings before the plaintiff on 19 January 1993 reveals that each of the four lady defendants pleaded guilty to a charge of malicious damage to property under s.195 of the Crimes Act 1900. The police prosecutor after handing the "breach reports" to the Court sought compensation of $5288. The legal representatives of the defendants were surprised by the compensation claim. An adjournment was granted so that they could obtain instructions. Upon resumption the police prosecutor sought a further short adjournment to obtain the antecedents of the four defendants. This was granted. When the court resumed the prosecutor told the plaintiff that each of the four defendants was not previously known on a computer name check. After the tender of two photographs and references in respect of each defendant and hearing the addresses of the legal representatives of the defendants the plaintiff said: "I am satisfied The Offence Is Proved. Having regard To The Good Character Of Each Of The Defendants Under The Provisions of Section 556A of the Crimes Act The Informations Are Dismissed.

I decline to make any order as to payment of compensation." The plaintiff then said: "Let me say this. Women are subjected to violence daily if not hourly, if not by the minute. It is no accident in a society dominated by males that we get the kind of advertising that is depicted in these photographs. It is no accident that we do not see similar depictions of men being disembodied, dismembered, and it is no accident therefore, in fact it flows indeed, that we have laws framed in the terms of section 195A, to protect the property of a male dominated society. The real crime in this matter was the erection of these extremely offensive advertisements. Let nobody be under any misapprehension about it. And what redress does 51 percent of the population have? Absolutely none. Not only because of that male dominance in the fields that I have just indicated, but also because of the massive power that is exercised through huge financial resources. It is an absolute outrage. And I am enraged to find myself in a position where I have to deal with four women who have taken the action which they did take on this particular occasion, which they felt justified in taking and I don't for one moment accept that they were misguided in their actions and I don't for one moment accept that they were engaged in some kind of idealistic prank. We have a very, very sorry society indeed when these women can be brought before this court for this sort of thing in the light of the depictions which I find in the photograph of that particular advertisement.

We live in a society where at least one and possibly more judicial officers can actually state to the world that the law will condone violence towards women. What sort of a world are we creating for ourselves?

The evidence suggests that the plaintiff's decision and remarks received widespread coverage.

An editorial article in the Sydney Morning Herald of Saturday 23 January 1993 discussed the defacing of billboards. The editorial stated, amongst other things: "Predictably this decision has aroused strong reactions. It has been condemned by those who see it as an incitement to vandalism and a dereliction of the magistrate's duty to apply the law. It has been applauded by those who agree with the five women, as endorsed by Ms O'Shane."

There were other comments of a general nature in the editorial. There were also letters to the editor.

I now summarise briefly the articles in newspapers and periodicals before Ms Albrechsten.

In an article published in the Sunday Telegraph on 24 January 1993 written by Bruce Loudon and generally in laudatory terms he referred to her decisions in the Berlei Bra case, the Lismore case (dismissal of offensive language charge) and her character. She had never shrunk from controversy and never failed to advance the causes in which she believed. She had a gutsy attitude and determination in her fight for justice for Aboriginal rights and the breakdown of racism and sexism. She was said to have made controversial decisions.

In a sympathetic article by Sue Williams, published in the Telegraph-Mirror on 17 February 1993, Ms O'Shane was described as outspoken and never far from controversy. The article discussed her decision in the Berlei Bra case and the address which she gave from the Bench. In an extra curial interview the plaintiff remarked "The concepts of justice are much broader than the concepts of legality." She was critical of the views of white male radio talk-back hosts. The article referred to her fight to obtain an education and for various causes. The article also referred to Ms O'Shane's decision in the Lismore offensive language case. She said of her critics, "What's fundamental to their attitude towards me isn't a concept that I don't uphold the law, it's based on racism and sexism." She insisted that there was a campaign against her. She maintained that the system had to be attacked from within. She said, "I don't think my role in life is just to maintain the system as it is, when it is just riddled with inconsistencies, contradictions and discrimination."

Mr McGregor's article of 20 March 1993 in the Sydney Morning Herald seems to have been precipitated by the Berlei underwear decision. It followed a lengthy personal recorded interview with the plaintiff. His article states: "The morning of the Berlei Bra Billboard case, magistrate Pat O'Shane angrily paced her chambers in Balmain Local Court. 'Will I or won't I' she asked herself aloud. 'Do I or don't I?' " Photographs of the billboard, tendered in court, disturbed her … 'I was really, really angry, I knew my decision very quickly.' But should she speak her mind as well? Court staff don't enter chambers, so O'Shane felt free to argue with herself aloud. Seven years on the Bench had trained her to remain objective. Yet she felt emotional, undecided.

She hesitated because she knew from past experience she risked delivering herself into the hands of the re-actionary talk-back broadcasters, as well as an underground police culture which detests her, and government ministers, who, she believes, are watching her.

Then she thought: 'Damn it Bollen didn't think twice when he made his comments.' O'Shane recalled her court and delivered her judgment [quoted earlier] in a voice quivering with anger."

Later in Mr McGregor's article this paragraph appeared: "A major criticism has been that her Berlei decision gave the green light for others to deface billboards. 'Oh my God, that's a rubbish statement' she exclaims. It's so witless, it doesn't warrant answering'." 38. In an article by Ian Higgins in the Australian of 8 May 1993 it was stated, "The controversial NSW magistrate Ms Pat O'Shane delivered a sweeping attack on the legal system yesterday, saying it discriminated against women and the underprivileged and placed legalities before justice." Her speech was made at a Women and Management Conference. Ms O'Shane asserted that the predominantly white male judiciary held antiquated values and that the views expressed by Justice Bollen exemplified what are very widely held attitudes on the part of male judicial officers and that only the actions of individuals could buck a justice system weighted against women, blacks and the poor. The article discussed the Berlei Bra case and contained these paragraphs:

"The case encapsulated what she described as a 'head on clash' between women's rights and a male dominated system that women were usually 'powerless' to fight.

In her speech yesterday Ms O'Shane revealed a raw nerve over the public criticism, anonymous hate mail and subtle snubs from the legal profession over her unconventional approach.

'I am an Aboriginal female … I don't come from the right side of the tracks as far as they are concerned,' she said. … Ms O'Shane said as soon as she looked at photographs of the billboard advertisement - which reflected 'an implied invitation to violence' - she knew that she was going to free the Berlei Bra Four. 'I was enraged. I was so angry and distressed,' she said. 'A lot of people believe that if they go to court they will get some kind of justice. 'Unfortunately, in my view, in recent times there has been greater focus on the law or the legalities that are involved. But justice is not about law, in fact - one can say - the law is unjust.' 'In my view women are being violated every minute of every day by the ways in which they are portrayed in the media - in advertising in particular,' she said."

In an article by Sue Quinn in the Sunday Telegraph of 16 May 1993 she purports to summarise parts of a speech made by Ms O'Shane to a NSW Teachers Federation Conference. The article contains these paragraphs: "Judges at the centre of a public outcry over controversial rape comments were yesterday described as 'women haters'by high profile magistrate, Pat O'Shane. In an angry speech to a women's conference in Sydney Ms O'Shane said the comments were part of a worrying male backlash against the gains made by women in recent years." Ms O'Shane advocated the appointment of more women to the bench and a change in the practice of appointing judges from the senior bar. There were many highly qualified and experienced female solicitors who would make ideal judges. Ms O'Shane remarked, 'We know anyway on a worldwide scale women are more intelligent than men. …"

Ms Margaret Throsby, a freelance broadcaster and writer interviewed the plaintiff and then wrote an article for The Independent Monthly published about 6 July 1993. The article is headed PROFILE. The heading is in large block letters. Immediately under it these words appear: "It was aboriginal Magistrate Pat O'Shane who acquitted a group of women who defaced a sexist lingerie billboard ad. She was, she said, deeply angry when she made the decision. Margaret Throsby outlines the harsh past and tense present life that provokes this anger."

A photograph of the plaintiff follows and under that, the words "Anger on the Bench" appear in large bold type. The article records the plaintiff telling Ms Throsby, "[Australia] is a man's country, this alien land; it's always portrayed as that."

Ms Throsby's article states: "O'Shane herself provokes heated debate by her statements and judgments. The now famous incident of the Berlei bra Billboard is a case in point."

After a brief summary of that case and quoting her remark, "The real crime in this matter was the erection of these extremely offensive advertisements" the article added "she said, in a voice shaking with anger." The article stated that the plaintiff's decision to make her speech was founded in anger. "I was very angry," she says, "Acquitting the women simply wasn't enough. I have been very angry for a very long time about many of the issues that I saw illustrated in that photograph on the billboard and I was probably still carrying a lot of anger about Justice Bollen's remarks."

Ms Throsby's article stated, "Pat O'Shane is an angry woman. 'She is driven by anger,' says Franca Arena. 'Her anger is positive but it scares people'." The article noted that the plaintiff expects and gets criticism from white and black Australians. The plaintiff described herself as a person whose anger often leads to depression and deals with it by "going into raves at home. I try not to do it anywhere else."

The article records that the plaintiff expected criticism when she asserted that women were more intelligent than men. The author of the article asked the plaintiff, "Is it possible to maintain impartiality when sitting in judgment on people, and holding such strong views? What about the times when Aboriginal people stand in the dock before her, surely she must feel differently from when she is sitting in judgment on a white person?" The plaintiff replied, "I suppose I would have to say yes because I am conscious of those issues and I keep going back to a decision of Justice Murphy … He said that when the courts are dealing with Aboriginal people they have to take into account all these different mitigating factors. …"

Kate Legge wrote a lengthy and detailed article about the plaintiff in the Australian Magazine of 31 July-1 August 1993. Ms Legge described some of the characteristics of the plaintiff. The article referred to the Lismore offensive language case, to her dismissing on one day in 1989 116 charges against Aborigines, mostly for offensive language, and the Berlei bra case. The plaintiff was described as having delivered an emotional speech from the Bench in the last mentioned matter. The article dealt with her views and behaviour on a variety of topics and states, amongst other things: "O'Shane vehemently denies that she is the beneficiary of largess. Always the victim … 'The fact that I do no more and no less than my colleagues who are not subject to the same scrutiny or cries of outrage by hoons … … Her strident tone at times even surprises some Aboriginal leaders. … O'Shane has no intention of biting her tongue. 'I value my integrity as a member of a democratic society and I'm going to have my say about it. If they don't like it they can take what action they will and I will fight them.' The brown eyes flash and the lips purse. O'Shane is full of fire."

The article refers to the differing accounts given by her father and by her as to her circumstances as a child, teenager and young adult. He does not agree that her upbringing was as troublesome as she suggests. He did not think that his children suffered serious racial abuse at school. The article records, "Pat O'Shane shakes with rage at having to account for the discrepancy" and "The sense of victimisation drives her with an intensity that is not evident in other successful aboriginal women."

On page 1 of the Sydney Morning Herald of 26 August 1993 there is a brief summary of a speech the plaintiff delivered to the Evatt Foundation criticising the (Federal) Government for its lack of commitment to dealing with Aboriginal and Islander problems and Aboriginal organisations (ATSIC). The attacks were wide ranging. She reportedly stated, "The high incarceration rates of Aborigines are the result of racism in the community generally but most particularly in the police forces and the judiciary."

In the Australian of 30 August 1993 in an article by Michelle Gunn, it was stated: "Outspoken NSW Magistrate Ms Pat O'Shane yesterday delivered a scathing attack on conservatives who refused to acknowledge the need for a change in the Australian judiciary. Launching the first Australian Feminist Law Journal in Melbourne, Ms O'Shane said the judiciary was riddled with gender bias but that some conservative judges, barristers, solicitors and politicians were determined to oppose attempts to change it."

The address was described as emotional. The article recorded that Ms O'Shane said that gender bias in the courts was one of the most formidable barriers to equality and that re-education of the judiciary would need to be supplemented by a change in its composition.

On page 4 of the Sydney Morning Herald of 1 January 1994 in an article reviewing what 1993 held for women Paolo Totaro wrote that the pace was set early by the plaintiff in the Berlei Bra billboard case. The author wrote: "O'Shane's decision caused an uproar. She was criticised by all and sundry. But she also sparked an intense and healthy public debate about sexist advertising. It lasted for weeks, indeed months, and we women quietly applauded her."

Ms Albrechsten also possessed some other articles published between 20 July 1994 and May 1999. In the article by Malcolm Brown, published on page 6 of the Sydney Morning Herald of 20 July 1994 he recorded her criticism of the decision of the Court of Criminal Appeal that imposing non-custodial sentences on people lying to ICAC in the absence of extraordinary compelling subjective circumstances verged on irresponsibility. In an editorial article on page 12 of the Sydney Morning Herald of 22 July 1994 the writer acknowledged that the plaintiff had a point. The article deplored the Court's use of ugly sideswipes rather than reason.

In an article by Angela Matheson published on page 17 of the Sydney Morning Herald of 8 November 1994 there was a discussion of practices in the legal profession which disadvantaged women practitioners. This passage appears (WLA standing for Women Lawyers Association) "'WLA tries to work subtly rather than hit people over the head with a sledgehammer,' she says. 'We believe in working in the system rather than challenging it.' SUCH views appal the maverick magistrate Pat O'Shane. 'Once you're in it, your aim is not to advance women, or anyone else for that matter, but to advance your own power base and career,' she says, suggesting 'This is not the direction women should be going in.' O'Shane believes it would be smart business for women to take a stand and set up their own firms. 'Male-dominated law firms are sleaze,' she says. 'Why bother'."

In an item by Mark Scott published on page 7 of the Sydney Morning Herald of 6 April 1995 there is recorded a brief summary of an address by the plaintiff on her installation as Chancellor of the University of New England, criticising Government Education Policies and those sections of the community who did not value education and looked at it in economic and political terms.

An item by Julie Delvecchio and James Woodford appeared on page 1 of the Sydney Morning Herald of 21 December 1996 about three Aboriginal boys who were to spend Christmas in a Youth detention centre for allegedly spitting on Ms P Hanson and hitting her in the face. The item contained criticism of the decision of the Ipswich Children's Court. One of the critics was the plaintiff. She is recorded as saying that the case showed "how close we are to barbarism. Isn't this in contravention of the (United Nations) Convention on the Rights of the Child?"

In a lengthy article published on page 5 of Spectrum, Sydney Morning Herald, 9 March 1997, Catherine Lumby discusses advertising using the female body, sexism and feminism. Amongst other things she contends that the criticisms many of the pro-censorship feminists make about images simply don't stack up. After a brief summary of the Berlei billboard case the article continued: "In an interview following the decision [the plaintiff] said that she found it 'very, very difficult' to see the ad as doing anything other than inciting violence against women and that she would have 'serious misgivings about any person who seriously argued that it could not be seen in that light.' The disturbing thing about O'Shane's claim that there is only one way to read this image is that it winds up sending women an incredibly disempowering message about their status and about men's attitudes to them. If lingerie ads of the kind at issue in O'Shane's court can only be read as mantras of male hatred, we are all in deep trouble. Telling women that certain images can only ever mean one thing suggests they're helpless to change the way those images circulate in our culture. Their only option is to ban them - a notoriously hopeless strategy. By taking the ad so seriously, feminists like O'Shane are handing enormous power to images and very little to female consumers. In fact, there is plenty of evidence that contemporary women enjoy mocking and playing with media stereotypes of femininity in much the same way the gay community has adopted and parodied icons of straightness."

The article was an adapted extract from Bad Girls by Catharine Lumby, published the following week.

On page 3 of the Sydney Morning Herald of 30 April 1997 in an item by Bernard Lagan it was announced that the plaintiff was to retire from the Bench. The article stated that she was acclaimed by many lawyers for her fairness and attacked by the Prime Minister, Mr Howard for smearing the Government. The article stated that her careers, as barrister, public servant and magistrate had been marked by a willingness to speak publicly in defence of Aborigines and women.

On 3 July 1997 the Sydney Morning Herald, page 10, published an item that the plaintiff realised that her resignation had been a dreadful mistake and that she would return to the Bench. She had had some health problems and been much affected by the horrific burns suffered by her nephew.

On 19 November 1997 the Sydney Morning Herald, page 7, published a brief report of her action for defamation based on a broadcast on Radio Station 2KY allegedly imputing that she had a vendetta against the police. On 20 November 1997 the Sydney Morning Herald, page 11, published a report that Radio Station 2KY and the Police Association of NSW publicly apologised to the plaintiff yesterday for a broadcast which may have suggested she unfairly discriminates against police officers and acknowledged that she did not do so. That apology was part of the settlement; the other terms were not disclosed.

On the presentation of the 1997 George Munster Award for Freelance Journalism the plaintiff made a speech lamenting the "dumbing down of the media, especially the print media" since 6 March 1996 (the date of the Federal election placing the Howard Government in power). Aboriginal affairs and welfare had not been adequately covered.

On 14 May 1999 The Australian published an item by Michael Warby headed "Low tactics mar towering opinions (How to abuse the public debate)." This lamented that the plaintiff had indulged in personal abuse of Noel Pearson on his speaking out against the deleterious effects of welfare on indigenous Australians and that she could not separate disagreement about ideas from personal attack.

The article was highly critical of the approach and methods used by the plaintiff and deplored the approach that displaying good opinions was proof that you were a good person and disagreeing with such opinions was proof that you were a bad one. The article closed on this stringent note: "Use of personal abuse and unwarranted attacks on people's intellectual integrity of the sort O'Shane has unleashed on Pearson are not contributions to debate but attempts to close them down and to buttress the moral vanity of the abusers."

This brief review reveals that prior to the article sued upon the plaintiff had been much in the public eye and had expressed strong opinions on Aboriginal matters, the proper and equal place and treatment of women, male dominance in society and the administration of justice. She had attributed the high incarceration rates of Aborigines to racism in the community generally, but most particularly in the police forces and the judiciary. She had stoutly resisted the suggestion that she was biased against the police, insisting that that was not the case and that she dealt with each case on its merits. Over the years her approach and actions had been supported by some and criticised by others. The soundness of what she had said and done had been the subject of public debate. Some of the material advanced her reputation while other material damaged it.

The defendant has provided the Court with a useful table which conveniently sets out how the information relied upon by Ms Albrechsten in the various articles in Exhibit 9 can be linked to the matter complained of. From the brief summary of the articles in the press and also from the table it can be seen where Ms Albrechsten has obtained some of the material appearing in the article complained of. Some of the generalisations and descriptive words come from what the plaintiff has reportedly said and the attitudes that the authors of the articles believed they detected. This applies to the plaintiff's alleged anger over an extended period of time and its unleashing and her attitudes to certain sections of society, for example, the police.

The plaintiff, in dealing with what was comment and what was fact in the published words, focussed on the imputations found by the jury. The defendant accepted that at the end of the day the Court must come to the imputations, but correctly insisted that the imputations must be taken in their context, that is, in the article published in the circumstances which prevailed. This is where the reader started. The imputation is not looked at in isolation.

The plaintiff advanced the following propositions: (1) Whether the matter complained of comprises comment or fact is, in the present case, to be determined by looking exclusively at the article complained of: Telnikoff v Matusevitch [1992] 2 AC 343 at 352. There are some exceptions, for example, a review or critique of a book or a play. Perhaps, a long judgment may fall within the exception.

(2) If any imputation was conveyed as fact or partly fact, the defence of comment must fail as to that imputation, it being the cause of action. The comment defence only protects the comments not the material on which it is based.

(3) Comment is an expression of opinion or an inference or deduction based on or drawn from facts stated or sufficiently indicated.

The defendant relied on the remark of Cussen J in Clarke v Norton [1910] VLR 494 at 499 that a comment is an expression or statement of opinion about, or a deduction, inference or conclusion concerning facts - that is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark or observation. In Sims v Wran , 1984 1 NSWLR 317 at 322 Hunt J stated: "…a statement may be defended as comment only if the material upon which that comment was based was stated expressly or impliedly in the matter complained of or constituted a matter of contemporary history or general notoriety and thus, in one way or another was made known to the persons to whom the publication was made to enable those persons to judge for themselves whether they agree with the opinion published by the defendant and based upon that material." (4) Just because an imputation is an implied meaning from the statement of facts does not mean that it is an expression of opinion or a comment. There are implicit meanings that are not necessarily matters of conclusion, inference, deduction or opinion. A factual inference drawn from factual material remains a fact. (5) Comment must clearly be expressed as and seen to be comment. Where the comment is not clearly identified there is a tendency to hold the entire statement to be one of fact. (6) Bare comment must be treated as a statement of fact. (7) Comment in order to be justified as fair comment must appear as comment not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment: Hunt v Star Newspaper [1908] 2 KB 309 at 319-320.

I accept those propositions along with my additional remarks. Likewise I accept these additional propositions advanced by the defendant: (1) Whether a publication is fact or comment is to be determined by considering whether (a) the ordinary reasonable reader would have understood the opinion to be an expression of opinion on sufficiently indicated material, and

(b) the opinion was one which an honest person might have held on the material (2) The first of these questions is to be determined by reference only to the form in which the opinion had been expressed in the context of the matter complained of and the circumstances surrounding the publication.

(3) The second of these questions is to be determined by considering the relationship between the opinion expressed and the material upon which it is based. 69. Both parties agreed that paragraphs 13-19 of the article complained of consisted of comment. The contest on this point centred on paragraphs 2-12. The plaintiff's primary submission was that all the material in paragraphs 2-12 was fact, that is, either in terms of fact or so bound up with facts the reader could not distinguish fact and comment. I bear in mind that the touchstone is whether the ordinary reasonable reader would regard what is said as fact or comment or so mixed up that it is not possible to separate fact and comment.

Set out earlier are the statements of fact particularised by the defendant. I will now deal with paragraphs 1-12.

As to paragraph 1 the words "suggests that it may be time to reflect, more generally, on some of the controversy surrounding O'Shane" are comments.

The defendant contended that paragraph 2 was comment, whereas the plaintiff contended that it was a statement of fact. It reads, "As a magistrate, O'Shane is often angry at what she perceives as injustices in our society. And when she unleashes her anger from the raised platform of the judicial bench, she ignites a highly charged debate within the legal and wider community."

The words "as a magistrate, O'Shane is often angry at what she perceives as injustices in our society" and "And when she unleashes her anger from the raised platform of the judicial bench" are statements of fact. They are positive assertions of factual situations. In other contexts they could be classed as comment.

At the time of the article the facts surrounding the Kanaan charges, the shoot out with the police and the dismissal of the charges against him had been covered extensively and prominently in the daily press. They were notorious. The article briefly reminds the reader of these. Paragraph 3, which reads "Her latest decision, in which she lashed out at police culture and police harassment of youth again raises the question of whether the justice system is best served by O'Shane's rancorous attitudes towards certain sections of society"

constitutes comment in part (lashed out at police culture and police harassment of youth) and in part what is a statement of fact (rancorous attitudes), there being insufficient material in the article to support the latter assertion.

Moving to paragraph 6 and bearing in mind the notoriety of the Kanaan matter, I think that the words "vitriolic" before attack and "angrily" before described constitute comment and would have been so understood.

In paragraph 7 I think that the statement, "O'Shane has been angry many times" is a statement of fact. The author has referred to 4 instances over a period of about 13 years when, arguably, she evinced anger from the Bench. That could not be described as "many times". The author appears to have been speaking of the plaintiff's anger from the Bench rather than her anger generally (or general state of anger). There is virtually no material in the article as to anger at other times. There is such material in some of the articles or publications which Ms Albrechsten had in her possession.

The introductory words in paragraph 9, "And few could forget the consequences of her anger, when directed at the now infamous Berlei Bra billboard in 1993" constitute comment. That was a matter of notoriety which was revisited in the daily press of 30 November 1999 (Daily Telegraph) and further mentioned in the article. This would have brought it back to current memory. Further, the author gave enough details in the article to allow readers to assess the comment.

The descriptive words "highly emotional" in paragraph 10 when referring to the plaintiff's speech to the courtroom in the "Berlei Bra" case constitute comment. That comment is supported by what the plaintiff did and said. The "Berlei Bra" matter and the plaintiff's actions and speech were matters of public notoriety in 1993 and revived as such by the references to it in the article.

I should also record that the defendant contended that the following statements in the matter complained of were protected reports: (a) "Two weeks ago she dismissed charges against Michael Kanaan, who was involved in a shoot-out with police in the early hours of December 23 last year. Kanaan was charged with shooting a firearm with intent to murder. O'Shane dismissed those charges on the basis that there were discrepancies in the evidence such that a jury could not reasonably convict."

(b) "… she launched a[n] attack on what she perceived as police harassment of Kanaan and the other three men involved in the shoot-out. She … described the action of the police officers who gave chase to the men as they fled their car as 'stupid, reckless, foolhardy'."

(c) "In 1989 when she sat in the Brewarrina Local Court, she dismissed 116 charges against Aborigines in one day, many for offensive language …"

(d) "Two years later, in Lismore, she dismissed a charge against man who called police 'f---ing poofters' . … the Director of Public Prosecutions appealed. O'Shane was ordered by the Supreme Court to rehear the case. She did so, finding the case proven, but once again dismissed the case, using her judicial discretion under the Crimes Act."

(e) In that case, she dismissed charges against four women who pleaded guilty to defacing a billboard advertising Berlei bras."

(f) "The billboard depicted a woman wearing Berlei underwear being sawn in half by a magician with the caption, 'You'll always feel good in a Berlei'. The four women had added the words: 'Even if you're mutilated'."

(g) "In a … speech to the courtroom, O'Shane found that the real perpetrators of the crime were those responsible for the advertisement. She refused to award damages or costs to the advertisers." 80. As Hunt J observed in Sims v Wran at 322 the defence of comment is now partially codified by the Defamation Act 1974 and for the defence to succeed in each of the situations envisaged in sections 32, 33 and 34 of the Act "either the comment must be based upon proper material for comment or insofar, as it is based to some extent but not completely on such material the comment must represent an opinion which might reasonably be based upon that material to the extent to which it is found to be proper material for comment." Only the situations envisaged in ss 33 and 34 are relied upon (comment of servant or agent and comment of stranger) and they are relied upon in the alternative.

For the defence of comment to succeed in either instance the comment must be based on proper material for comment, or the material on which the comment is based must be to some extent proper material for comment, and the comment must represent an opinion which might reasonably be based on that material to the extent to which it is proper material for comment. (s 30(3)).

Section 30(1) and (2) of the Act provide: "(1) For the purposes of this section, but subject to subsection (2), proper material for comment means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest.

(2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest." 83. Section 24 provides: "(1) In this section protected report means a report of proceedings specified in clause 2 of Schedule 2 as proceedings for the purposes of this definition."

Under cl 2 of Schedule 2 proceedings in public of a court fall within the definition of "proceedings".

Section 24(2) provides: "There is a defence for the publication of a fair protected report."

There was debate whether to fall within the proper material for comment the protected report had to be a fair protected report. Section 30(1) refers to a protected report within the meaning of s 24. Section 24(1) which spells out what a protected report means specifies that it is a report of enumerated proceedings. Section 24(3) and (4) differentiate between a protected report and a protected report which is not fair. Section 24(2) provides a defence for the publication of a fair protected report. As a matter of construction s 30 incorporated the meaning of a protected report as distinct from a fair protected report. A protected report falls within the meaning of proper material for comment. It does not have to be a fair protected report.

The defendant submitted that each of the facts stated in para 1 of Exhibit 3 (being earlier set out under each of the four instances mentioned) was true or substantially true so as to be proper material for comment.

The plaintiff contended that the following are factual inaccuracies or inaccurate reports in the matter complained of. I will also incorporate my findings.

Paragraph 1 - The Director of Public Prosecutions did not overrule the decision of Magistrate O'Shane

This is technically incorrect. The Director did not accept her decision and directed that an ex officio indictment be presented against Kanaan.

"Overrule" was the incorrect word but I regard the statement as substantially true. It substantially captures the effect of what the Director did.

Paragraph 2 - It was incorrect to say that "As a magistrate, O'Shane is often angry" I have held this and the statement that she unleashes her anger to be statements of fact. She has on occasions unleashed her anger from the Bench.

The word "often" is incorrect. If the word "sometimes" had been used that would not have been incorrect. It is not incorrect to describe her as having on occasions unleashed her anger from the Bench. That occurred in the Berlei Bra and Kanaan cases. Her remarks in those cases ignited highly charged debate. Her anger was not under control when she delivered her remarks in the Berlei Bra case.

Paragraph 3 - The plaintiff did not lash out at "police culture" in her reasons for judgment in Kanaan. She did not mention the phrase "police culture". The reference to "lashing out" at police harassment of youth has to be seen in context. The plaintiff referred to her comments on 26 November when she came back to the matter on 29 November 1999. She reiterated her earlier comment that there had been police harassment of youth. As the plaintiff's judgment on 26 November 1999, was not in possession of the defendant or perhaps more particularly Ms Albrechsten, reliance cannot be placed on the judgment of 26 November 1999 as the basis for comment by the defendant.

Ms Albrechsten accepted that, using the police copy of the plaintiff's judgment which she had been faxed at her request, the plaintiff spent the first 4½ pages explaining why she did not propose to commit Kanaan for trial. Those reasons involved her in giving her review of the evidence. After stating that Kanaan was discharged against the informations Ms O'Shane proceeded to speak about the conduct of the police. What she said was unnecessary for the purposes of her decision and she expressed herself in strong and critical terms.

Ms Albrechsten was concerned about "the extraneous comments [made by the plaintiff] aimed at police, that is what raised the question over the decision". Ms Albrechsten claimed that she was not trying to rejudge the merits of the decision. I thought that this evidence of Ms Albrechsten was correct.

The additional comments of Ms O'Shane were critical of the police officers chasing three young men on foot in a situation of potential danger. She described the area as dark and deserted, mentioned that there were three men that they knew of and characterised the chase by the officers as stupid, reckless and foolhardy, stating that even if the shooting had not taken place it was foolhardy behaviour. She added that there was no reason why the three men should have stopped as demanded by the police. She said that it seemed at that point the police behaved in an irresponsible manner. She said that there was nothing which called for such behaviour and lamented the lack of caution. She expressed the hope that police training would include advice to young officers in particular about the dangers of foolhardy and reckless bravado.

Ms O'Shane was criticising what she believed was an over-readiness on the part of police officers, particularly young officers, to chase those suspected of committing crimes in dangerous situations without taking adequate precautions and particularly when they did not have reasonable grounds for their suspicions. I interpolate that while the police may not initially have had reasonable cause to suspect the commission of an offence the position may well have changed once the three men ran away carrying loaded firearms.

The "police culture" referred to in Ms Albrechsten's article was probably that over-readiness to chase and arrest although she did not so identify it.

As to police harassment of youth the plaintiff said: "Last week … I commented that the circumstances in which Const Patrech and Fotopoulos became involved with … Kanaan and his cohorts … indicated police harassment of youth, I do not resile from those comments …".

Ms O'Shane's comments were not necessary for the decision whether there was no reasonable prospect that a jury would convict. Ms O'Shane apparently thought that she should go further and make some comments on the conduct of the police. To that extent she moved outside the ambit of matters calling for her decision.

Ms O'Shane, by repetition emphasised that she thought that the behaviour of the two constables was foolhardy. She used strong and critical language. When this is taken into account along with the fact that she had moved outside what it was necessary to decide to the field of general comment, the phrase "lashed out" is a description which, although strong and colourful, is just within the comment spectrum.

The plaintiff relied on the use of the clause "rancorous attitudes towards certain sections of society" in para 3. In evidence Ms Albrechsten stated that on a number of occasions the plaintiff had rancorous attitudes towards the police, men and male members of the judiciary. Ms Albrechsten relied on the plaintiff stating to a Teachers' Federation Conference that men were less intelligent than women and the plaintiff's comments in the Berlei Bra case as to the conflicting values between protecting women from violence and the protection of property in a male-dominated society. That suggested to Ms Albrechsten that Ms O'Shane was angry with men and that we live in what she sees as a male dominated society. Ms Albrechsten also thought that Ms O'Shane's "comments on Justice Bollen suggested that she was angry about men."

Ms Albrechsten agreed that apart from the reference to the police in the Kanaan matter she did not refer to any other matters on which she relied. Ms Albrechsten said that perhaps her readers would have recalled from the sentence (paragraph 3) the many occasions on which Ms O'Shane had expressed very rancorous attitudes towards certain sections of society. The purpose of the sentence was to recall people's memory to all the occasions the plaintiff had done so.

There is insufficient material in the article from which the reader could conclude that the plaintiff held rancorous attitudes towards certain sections of society. As previously stated that has to be classed in the context as a statement of fact. Criticisms of certain sections of society do not necessarily involve rancorous attitudes. Some criticisms may do, depending on their extent and contents. They do not do so in the present case.

Paragraphs 4 - 6. The plaintiff contended that the article omitted facts which led to her discharging Kanaan so that the report was not an accurate one.

As to Paragraph 4 it is correct that the plaintiff discharged Kanaan on the basis that a jury could not reasonably convict him. While Ms O'Shane relied on the discrepancies in the evidence, her reasons reveal that she also relied on the absence of satisfactory identification evidence, the absence of evidence that the wounds sustained by Const Patrech were caused by shots fired by Kanaan and the absence of evidence establishing that Kanaan had the requisite intent. The effect of the omissions is not to reveal the extent and strength of the reasons on which the plaintiff relied.

Apart from some technical infelicities of expression of no practical consequences Paragraph 5 is unobjectionable.

As to Paragraph 6 - The plaintiff contended that "vitriolic" was inaccurate as were the words "What she perceived as police harassment of Kanaan and the other three men involved in the shoot out " and the word "angrily".

A vitriolic attack involves notions of caustic or severe criticism. The criticism contained in Ms O'Shane's comments of the police officers after discharging Kanaan was severe and capable of being described as a vitriolic attack. Having regard to the language the plaintiff used, the phrase "angrily described" was one description which was capable of being used. I am not persuaded that the use of either "vitriolic" or "angrily" was inaccurate, although these were strong words.

From her comments in the latter part of her judgment Ms O'Shane appeared to take the view that Kanaan and the other three men involved in the shoot out had been subjected to police harassment. What was written on this point in paragraph 6 was not inaccurate.

The plaintiff complained that the omission in the article of the section in her judgment which immediately followed the words "stupid, reckless, foolhardy" prevented what was written being an accurate report. As earlier mentioned this was the context: "When their vehicle [that of Kanaan and the other three men] came to a stop and they decamped, both officers gave chase to the men. That was stupid, reckless, foolhardy. Even had the shooting not taken place, it was foolhardy behaviour. They were going into a situation of potential danger in any case - it was dark, and deserted and there were three men that they knew of. There had been no cause in the behaviour of the young men which gave rise to the foot pursuit other than their abandoning the motor vehicle and decamping the immediate presence of the Police. There is no reason why they should have been stopped, as demanded by the Police. At that point it seems that the Police Officers behaved in an irresponsible manner. There was nothing which called for such behaviour. …"

The author of the article set out the conclusion reached by the plaintiff, but not her strongly worded reasons. It was not necessary to state the reasons. The report was not inaccurate because of the omission.

Paragraph 7 - I agree that the statement "O'Shane has been angry many times" overstates the position and is inaccurate. It is not supported by the materials.

The Court records do not support the statement that in 1989 when she sat in Brewarrina Local Court she dismissed 116 charges against Aborigines in one day, many for offensive language.

In the plaintiff's interview with Adrian McGregor in March 1993 both she and Mr McGregor proceeded on the basis that this had happened. As previously stated this was written: "Relations soured back in 1989 when O'Shane sat in Brewarrina Local Court and, in one day, dismissed 116 charges against Aborigines, almost without exception for offensive language.

Was the police prosecutor surprised when she began dismissing the charges. 'Angry I think is the word' says O'Shane. 'I remember of all those cases only one was a non-Aboriginal defendant …" 113. In the article by Kate Legge in The Australian Magazine of 31 July-1 August 1993 it is stated: "One day in 1989 she dismissed 116 charges against Aborigines mostly for offensive language."

In her answer to interrogatories of 7 May 2003 the plaintiff accepted that she had dismissed 116 charges. After records were produced by the Brewarrina Local Court the plaintiff amended her answer to read that she does not believe that on a day in 1989 she sat at Brewarrina Local Court and dismissed 116 charges brought against Aborigines.

The plaintiff cannot recollect taking any steps to correct the articles of Mr McGregor or Ms Legge.

The plaintiff denied that she dismissed 116 charges against Aborigines in one day because she believed that the offensive language arrests were an habitual form of police harassment of Aborigines.

In her evidence at T103 these passages appear: "Q. You remember, don't you, having conversations with a Mr Adrian McGregor, journalist? A. Yes.

Q. In preparation for an article that was published about you, don't you? A. I don't remember having conversations with him but I know that I did have, yes. … Q. It is true that you spoke to Mr McGregor, answering his questions and supplying him information, before he wrote the article, isn't it? A. I can only say that I recollect that we did have conversations." 118. When asked (T103) that in all likelihood she told Mr McGregor that offensive language arrests were a form of habitual police harassment of Aborigines she replied, "No not necessarily". After further questions she said that she did not accept that she made such a statement to Mr McGregor. She said that she did not have any recollection of the conversation.

This passage follows: "Q. Do you suggest … that it was an incorrect statement about your belief? A. No, I don't.

Q. Was it a correct statement about your then belief? A. I don't know, I can't remember." That last mentioned answer was not correct.

The plaintiff asserted that she had spoken many times about police harassment of Aborigines. However, she did not recollect talking about the police harassment taking the form of police arrests for the alleged offence of using offensive language. I found that lack of recollection hard to accept since that has been an instance frequently discussed. particularly in legal circles and in the wider community.

Mr McGregor impressed me as a careful journalist. He stated that he interviewed the plaintiff with a tape recorder and subsequently transcribed the tape of the interview himself. Mr McGregor said that the number 116 "may well have been volunteered by Dr O'Shane in the process of the interview," that the paragraph which commenced with the question, "Was the police prosecutor surprised" reflects a passage of discussion with Ms O'Shane in the interview and that the paragraph commencing with the sentence "O'Shane believes those offensive language arrests were a form of police harassment of Aborigines … were a 'form of indirect quote' from his interview with the plaintiff."

Mr McGregor's evidence impressed me as being correct. The plaintiff told Mr McGregor that she believed that offensive language arrests were a form of police harassment of Aborigines, that was her belief and she persisted in that belief in 1993.

Normally, I would regard the Court records as the most reliable record, but they were at least 14 years old. However, in 1993 when events were much fresher in everyone's mind, the plaintiff appeared to accept that she had dismissed 116 charges. It is not the kind of day (or days) which a judicial officer is likely to forget. The plaintiff did seem to recall that the police prosecutor was angry rather than surprised.

While I am persuaded that the statement "O'Shane has been angry many times" relates to her anger on the Bench and is inaccurate, I am not persuaded that the remainder of paragraph 7 is inaccurate with one possible exception, namely, the use of the word "habitual" if it is taken to mean "always" rather than very frequently.

The plaintiff alleged that the words "once again" in Paragraph 8 were inaccurate as they suggested that she was defying a Supreme Court judge - that is to read too much into those words. She did dismiss the charge on the second occasion, but in the exercise of her judicial discretion under s 556A of the Crimes Act, 1900. She had earlier held that the language in question was commonly used and could not be regarded as offensive.

Paragraphs 9-12 - The plaintiff complained that the report of the Berlei Bra case was inaccurate because it failed to state that she had found the offences proved but dismissed the charges in each case under s 556A of the Crimes Act 1900 because of the previous good character of each of the four ladies. It also failed to mention that the Director of Public Prosecutions had withdrawn his appeal and that the appeal had been dismissed by the District Court. It was contended on the plaintiff's behalf that the inclusion of these facts would have been accurate, fairer and helped to demonstrate to the readers of the article that the decision made by the plaintiff was correct and that she had correctly applied the law. This would have provided an antidote to the author's idea that the plaintiff had acted incorrectly and allowed herself to be influenced by extraneous considerations. Ms Albrechsten was aware of these factors. The plaintiff complained that the article attributed to her a finding that the real perpetrators of the crime were those responsible for the advertisement whereas she had said, "The real crime in this matter was the erection of these extremely offensive billboards", While there is a difference in these statements, what was written in the article was a matter of substantial truth. The plaintiff did not attribute much weight to this difference. She was concerned and hurt by the overall tenor of the article.

The plaintiff said that she was very angry when she saw the photographs of the billboard. When she retired to her chambers to consider her decision and studied the materials she became "angrier and angrier". She said that she calmed herself to go through the s 556A steps very formally (T119). She said that having become very angry after seeing the photographs she ceased to have any anger before she went back into court. (T117). She agreed that she got very angry, feeling that she had to do more than simply decline to enter a conviction.

She agreed that the remarks which she made after dismissing the charges could be described as a spontaneous and passionate outburst. She did not regard it as offensive for it to be said that she was deeply angry when she made her decision. She told everybody she was angry (T124). Her state of mind, as she made her remarks on violence against women was "righteous anger".

The plaintiff stated that the remarks made by her after her dismissal of the charges did not inform her decision.

In her remarks after dismissing the charges the plaintiff said that she was enraged. Those are the remarks of a passionate lady in a highly emotional state who was very angry. I do not accept that she was not angry when she made her remarks and that the matters referred to in her remarks did not influence her decision. The plaintiff has not correctly assessed the position. She felt that the four ladies were not misguided. She thought, and said, "We have a very, very sorry society indeed when these women can be brought before this court …".

I return to the omissions earlier mentioned. The point of the article relates to her anger, the influence of extraneous considerations and her use of the Bench to speak out for what she thought was politically, socially, ethically and morally correct. (T127). It was important that the author mention the matters omitted as they tended to point to the plaintiff having reached a decision which was correct legally despite the plaintiff's anger and the influence of extraneous considerations. In paragraph 13 the author made the comment that it was not at all clear that the plaintiff's decisions did other than undermine the judicial system as a whole. The omissions made the report incomplete and, therefore, inaccurate.

132 The Imputations The plaintiff contended that imputations (a) and (b) were statements of fact. Those imputations are repeated for convenience. (a) The plaintiff, when acting as a magistrate is biased. (b) The plaintiff is biased against police. 133. The plaintiff submitted that those imputations were matters of fact whether one looked at the material from which they were derived or their terms and the reader was given no sufficient basis for making the assessment whether they were right or wrong. Further, there are no facts sufficiently stated upon which they are based.

The article sets out three instances in which the plaintiff has found against the police and one in which she strongly criticised the police and refers to her rancorous attitudes towards certain sections of society. However, it does not set out or refer to sufficient material to show that the plaintiff is biased and biased against the police.

I hold that imputations (a) and (b) are statements of fact.

The plaintiff submitted that imputation (c) was also a statement of fact. It reads: (c) The plaintiff when acting as a magistrate allowed an attitude of anger and bitterness to affect her judgment.

The plaintiff pointed out that this purported to be a description of what she does. I have earlier held that the materials indicate that she has been angry on some occasions, for example, in Kanaan and the Berlei Bra cases and there were also the offensive language arrests which she regarded as a form of police harassment, and this angered her. The article states that the plaintiff has often been angry, that is angry on the Bench. Neither the article nor any of the other materials establish that she has "often" been angry on the Bench.

This imputation involves a statement of fact. It is not, in the circumstances, a comment.

The plaintiff submitted that imputations (d) and (e) were factual. As earlier mentioned, they read: (d) The Plaintiff, in breach of her duty as a magistrate to consider criminal charges in accordance with the law, knowingly dismissed charges against four women who pleaded guilty to defacing a billboard when she should have found them guilty and awarded costs and damages against them.

(e) The Plaintiff, in breach of her duty as a magistrate to consider criminal charges in accordance with the law, knowingly dismissed offensive language charges against Aborigines because she believes the charges were a habitual form of police harassment, 140. The sting in imputation (d) is that in breach of her duty she dismissed charges in the Berlei Bra case when she knew that she should have found the defendants guilty and awarded costs and damages against the four ladies.

The plaintiff did find the four ladies guilty in that she found the offences proved. What is meant is that the plaintiff should have convicted them. The article reveals the plaintiff's strong dislike of the advertising in question and what she believed it represented, namely violence to women. She passionately believed that the charges should be dismissed and that that was correct. There is no factual material to support the suggestion that she dismissed the charges knowing that she should not have done so. Nor is there any material to support the suggestion that she knew she should have awarded costs ands damages against the ladies.

This imputation should be treated as a statement of fact.

As to imputation (e) there are factual statements as to the dismissal of the offensive language charges against Aborigines and an assertion that the plaintiff believed that they were an habitual form of police harassment of Aborigines. This Court at first instance and on appeal has deplored the use of arrest procedures in offensive language cases when the name and address of the alleged offender is known and the police could have proceeded by summons or an attendance notice. See DPP v Carr [2002] NSWSC, unreported, 25 January 2002 per Smart AJ and cases there cited. So often arrest on offensive language charges leads to charges of resist arrest and assault police.

It does not follow that because a court is wary of offensive language charges that they will automatically dismiss them. The assertion that the plaintiff, in breach of her duty, dismissed offensive language charges when she knew she should not do so is unsupported and, in the context, a statement of fact.

The plaintiff contended that imputation (f) that the plaintiff as a magistrate is incompetent is a statement of fact and that it comes from the factual material in the article, that is from the report of her various actions. The statement is a deduction or conclusion which follows from the material in the article. On the whole I take the view that this imputation is capable of being comment and probably is.

At a glance

Court

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Before

Source

Judgment (355 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (13)

Cited By (3)