R v Hoser and Kotabi Pty Ltd [2001] VSC 443

Supreme Court of Victoria|2001-11-29|Before: Eames J

Contempt of Court - summary procedure - scandalising the court - statements contained in books published by second defendant and written by first defendant - thousands of copies sold - whether tendency to interfere with administration of justice - allegations of bias and corruption against judges and magistrates - defence of truth - defence of fair comment - "good faith" - onus of proof as to truth - whether "real risk" and/or "practical reality" of statements undermining authority of courts.

In this case the summary procedure for prosecuting contempt of court has been invoked by originating summons pursuant to Order 75 of the Rules of the Supreme Court. The originating motion alleges that the respondents are guilty on two counts of contempt of court by scandalising the court. The allegations relate to the publication of statements in two books written by the first defendant, Raymond Terrence Hoser (hereafter referred to as "Hoser"), and published by the second defendant, Kotabi Pty Ltd ("Kotabi"). Hoser is the sole director of Kotabi and the sole shareholder. The company was first registered in 1990 and has total paid up shares of $2.

Both books which are the subject of the charges were published in 1999. The first book was titled "Victoria Police Corruption" (hereafter called "Book One"). One passage from that book is the subject of the second count of contempt. That passage refers to then Magistrate Mr H.F Adams. Count 1 relates to the second book, titled "Victoria Police Corruption 2" (hereafter called "Book Two") and there were numerous passages identified by the Crown in the particulars of contempt on the first count of contempt. Apart from these books Hoser is the author of numerous other books and has published many papers, on topics concerning alleged corruption and in the field of zoology. One book, "The Hoser Files - The Fight Against Entrenched Official Corruption", published in 1995 by Kotabi, was referred to by Hoser in the course of his defence to the present charges. That book gives an account of court appearances by Hoser arising during his time as a taxi driver. One such appearance has direct relevance to matters discussed in Book Two.

On the first count of contempt, which relates to Book Two, 23 separate particulars were set out in the originating motion, each particular being an extract from the book. Eleven particulars related to his Honour Judge Neesham, three to his Honour Chief Judge Waldron, and three to her Honour Judge Balmford (as she then was). All of those judges were sitting in the County Court at the time of these events. Four particulars relate to passages referring to Magistrate Ms J. Heffey and one to Magistrate Mr H.F. Adams.

At the close of the case for the applicant, counsel for the respondents submitted that there was no case to answer on either count, both generally and with respect to each particular on those counts. On 30 October 2001 I ruled that a number of the particulars were incapable of constituting contempt by scandalising the court, but I held that there was a case to answer on the first count (relating to Book Two) with respect to three particulars referring to his Honour Judge Neesham, with respect to two particulars concerning comments about her Honour Judge Balmford, two particulars concerning Magistrate Heffey and one particular concerning Magistrate Adams. On the second count I held that with respect to the one particular which was alleged, there was a case to answer. Upon so ruling the case proceeded, with Hoser giving evidence as the sole witness called by the respondents.

It is now my task to rule whether I am satisfied beyond reasonable doubt that either or both counts of contempt have been proved.

Book One, "Victoria Police Corruption", has more than 720 pages of closely typed text but also includes a number of photographs. In common with the second book, it appears to be a highly professional publication. Both books have a colour cover and Book One has a banner headline on the cover announcing it to have been "Previously Censored" and "The Book that the Victoria Police don't want you to read". The cover describes it as a book which deals with "Drug trafficking, murders, rapes, assaults, thefts, court fixing, corrupt judges and magistrates, money scams, car crash rackets, rapes, frauds, political corruption, OPP/police criminal activity, media manipulation and propaganda, cover ups at the highest levels, etc". On the title page, under the author's name, he is described as "Author of the controversial best sellers, "Smuggled: the Underground Trade in Australia's Wildlife" and "Smuggled 2 - Wildlife Trafficking, Crime and Corruption in Australia".

Author's notes opposite the Contents page claim copyright in Mr Hoser and provide ISBN numbers. The Author's Notes announce, inter alia, that "Most or all manuscript from this book has been tabled in various Australian Parliaments. Some are now the subject of official enquiries and investigations", and asserts that "All reasonable steps have been taken to ensure accuracy of material in this book. Furthermore, all reasonable steps have been taken to elicit and publish appropriate responses from all adversely named persons". There then follows the following passages:

"In November and December 1996 material published by Raymond Hoser in previous books was subject to a series of three defamation claims against Raymond Hoser and Kotabi Publishing in the Sydney Supreme Court. The cases centred on attempts to ban Smuggled 2: Wild Life Trafficking, Crime and Corruption in Australia. All three cases came down in favour of author Raymond Hoser and neither that book or Smuggled was banned (temporary bans were lifted). Furthermore, in no case did any judge find a single statement in either book that was in any way false or defamatory. Two attempted defamation actions against Raymond Hoser in relation to "The Hoser files - The Fight Against Entrenched Official Corruption" failed. Both were dropped before they made it to court. Likewise for a pair of unsuccessful attempts to sue Raymond Hoser over information placed on the Internet web site. To order other corruption books by Raymond Hoser please contact the publisher at the above address."

The Author's Notes (in Book 2) opposite the Content's page identify Mr Hoser as "Australia's most frequently banned author" and specify a web site at which contact may be made and relevant links be accessed. The note asserts that all information sources used in the compilation of the books can be found at another web site, which is also given.

Book One has 40 chapters, covering a wide range of reported and/or alleged instances of police impropriety, and appear to have been taken from media reports, court records and the accounts of person claiming to have been wrongly accused by police and/or wrongly convicted of offences.

The single item which comprises the particular of contempt alleged on this count appears at page 57 of Chapter 4 of Book One, which carries the title "Sex, Graft and Sabotaged Prosecutions".

Book Two, "Victoria Police Corruption 2", runs in excess of 765 pages. The format and professional appearance is identical to the first book and the Author's Notes opposite the Content's page are identical. An Author's Note (which appears in both books) states: "Except by way of citation or peripheral reference, material/content from the books `The Hoser Files - The Fight Against Entrenched Official Corruption' or `Victoria Police Corruption' (or `Victoria Police Corruption 2') is NOT repeated here'. Reading of both books is highly recommended".

Book Two has 45 chapters. On the front cover (which is multi-coloured, as is the case in the first book) the author is again described as Australia's most frequently banned author and a sub-heading states, "Including what the media didn't tell you!" and also on the cover the following insight to the contents is given:

"Bashings, Thefts, Cover Ups, Police Use And Protection Of Criminals Including Child Molesters, Systematic Illegal Strip Searches, Set Ups, Fabricated Charges, Disruption of Evidence, Crooked Judges and Magistrates, Rent a Witness Scams, Jury Knobbling, Perjury, Taxi Directorate Frauds, Schemes Against Corruption, Whistle Blowers, Dishonest Politicians, Prisons, Media Censorship, etc."

There is a distinct change in emphasis in Book Two compared with Book One. Of the 45 chapters the great majority concern court cases in which Hoser was himself a party and represents his account of what occurred during those hearings, both in Magistrates' Courts and in the County Court, and provides his explanation as to the, mostly, adverse outcomes which he experienced.

Hoser provides a detailed chronology in Book Two which records his arguments with government officials, including the New South Wales Wildlife Authority and police, commencing in New South Wales in 1976, and his prosecution by police - in New South Wales from 1981 and subsequently by Victorian police. He also details disputes, allegations of corruption and charges involving officials of the Road Traffic Authority, dating from about 1985, when he was driving taxis. The chronology indicates that he brought charges, himself, against Road Traffic officers and police on some occasions. The majority of the book is concerned with an exhaustive discussion, with some references to transcript, of, first, the hearing in the Magistrates Court of the traffic offence, then, secondly, his appeal against his conviction on that count, which appeal was heard by Judge Balmford. The appeal before Judge Balmford is discussed in detail as is his being subsequently charged with perjury. He next details the committal proceeding before Magistrate Heffey, and then, in considerable detail, he discusses the trial on the perjury count before a jury, presided over by Judge Neesham.

In Book Two, under a heading, "About the Author", Mr Hoser is described as a person who is "Internationally regarded as an authority on Australian reptiles having published over 140 papers" and two of his books on frogs and endangered animals are said to be "regarded as definitive works in their fields". It is noted that:

"Most of the author's claims regarding corruption have since been vindicated by other independent sources. Officials named by him as being corrupt, have since been removed from their positions. Smuggled was Raymond's first corruption book. Following its release in 1993, it soon became widely accepted as the new benchmark in terms of investigative books about corruption within Australia. It was an instant best seller."

The Author's Note asserts that the book "The Hoser Files", which was first published in 1995, "is widely regarded as the precursor of a notably increased media attention to the problem of police corruption in Victoria". The book contains a foreword written by Mr Graeme Campbell, who is described as former MHR for Kalgoorlie WA.

I turn to the particulars on the first count (all of which relate to Book Two, "Victoria Police Corruption 2").

COUNT ONE: (RE: `VICTORIA POLICE CORRUPTION 2'; BOOK TWO)

(A) PARTICULARS OF CONTEMPT REFERRING TO JUDGE NEESHAM

All of the particulars relating to Judge Neesham concerned the trial for perjury in 1995. The first particular on which I found that there was a case to answer was Particular (iii), a passage at page 260, of Book Two, in a chapter titled, "A Hot Bed of Corruption". The following passage appears:

"Perhaps most tellingly, he was one of those judges who had refused to allow me to have the case tape recorded, thereby effectively stamping him as a crook judge who wanted his activities never to be opened up to scrutiny. My initial judgements of Neesham as corrupt and dishonest were further proven during the course of the trial and its aftermath, much of which will be explained in the material which follows."

In Book Two, Hoser[1] defines the term "corrupt" as including an illegal, immoral, inconsistent, unethical or dishonest action.

Particular (iv), which I also held to constitute a case to answer, appears at page 274, in a chapter titled, "Another Can of Worms". The particular is as follows:

"As soon as the trial proper commenced, Neesham's bias against me commenced in earnest and his desired result was clearly known. His whole modus operandi was to guide the jury towards a guilty verdict. Furthermore these actions were separate to others which also appeared to have been taken to ensure the jury's verdict was pre-determined."

I pass over two particulars which I held did not constitute a case to answer, and the next particular on which I held there was a case to answer appears at page 329, in a chapter titled, "The Twenty Counts of Perjury". The particular reads as follows:

"Of course Connell had been doing effectively what Neesham had told him. It was a classic case of bent judge improperly helping a prosecution witness."

Hoser's trial for perjury commenced in September 1995 and continued for approximately a month. Prior to the trial he had applied to the Chief Judge of the County Court under s.360A of the Crimes Act 1958 for an order that the Legal Aid Commission grant him funding for legal representation, and complains that his application was rejected on a basis which was subsequently to be ruled erroneous[2]. It seems that he was offered a grant of legal aid for the trial, at some stage, but refused to accept a condition which the legal aid body imposed, namely, that a charge be placed over his property. Hoser, therefore, was unrepresented in the trial.

The trial judge, Judge Neesham, had previously sat on an appeal arising from a conviction and fine for a parking infringement at St Kilda, which occurred in July 1992 and on which Hoser was convicted by a magistrate in July 1993. On that occasion Judge Neesham refused to permit the proceedings to be taped and, after hearing the case, confirmed the conviction. It does not appear that at the outset of the perjury trial Hoser objected to Judge Neesham presiding in the case, but very late in the trial, during final addresses, such a complaint was made.

In common with Magistrates' Court proceedings, it was not the practice for County Court appeals (which were in the nature of re-hearings) to be tape recorded, or for transcripts to be produced. A recurring theme in Hoser's books is his complaint about proceedings in the Magistrates' Court, and County Court Appeals, not being transcribed or taped. It is by no means an unreasonable complaint, but Hoser contends that the decision not to tape proceedings is due not to (unacceptable) financial constraints or for any valid or lawful reason, but to a desire on the part of the judges or magistrates to hide the truth, and reflects a disregard for the fact, as he sees it, that the absence of a record allows prosecution witnesses to commit perjury.

(B) PARTICULARS OF CONTEMPT CONCERNING JUDGE BALMFORD

The first of the two particulars on which I found a case to answer appears at page 142, in a chapter titled, "Forgeries, Forgeries, Forgeries". The passage reads, as particularised:

"Like I've noted, Balmford wanted to convict me and get the whole thing over with as soon as possible. After all she'd obviously made up her mind before the case even started. Recall, she'd refused to allow the matter to be tape recorded."

The second passage appears at page 144 in the same chapter and reads as follows:

"Balmford's bias in favour of police and the DPP isn't just something I've noted. In fact three Supreme Court judges have noted it as well."

(C) PARTICULARS OF CONTEMPT CONCERNING MAGISTRATE HEFFEY

At page 208, in a chapter titled, "A Policeman's Magistrate" the following passage appears:

"In siding with the police, Heffey made her `ruling' where she goes through the motions of stating the alleged `facts' and `reasons' for her decision. She said she was going ahead because I had failed to notify the other side of my intention to seek an adjournment pending legal aid. That her statement was an obvious lie was demonstrated by the multiple letters in Hampel's files and Heffey's own court records. Then again, I suppose it was a case of not letting the truth get in the way of a pre-determined outcome."

The second passage with respect to Magistrate Heffey appears at page 212, as follows:

"Oh, and, just in case you haven't yet worked it out, my committal to stand trial had clearly been well determined before a word of evidence was given."

(D) PARTICULARS OF CONTEMPT CONCERNING MAGISTRATE ADAMS

On the inside back cover of Book Two appears a full page photograph of Magistrate Adams, with eyes cast down and with a serious expression, under a bold title, "The Magistrate". A sidebar attribution for the photograph notes that it is "Courtesy of `The Age'". Under the photograph appears the following heading: "The Magistrate that the cop said he paid off", which is then followed by the following text (which constitutes the particular of contempt):

"Following the 1995 publication of Policeman Ross Bingley's confession that he had paid off Hugh Francis Patrick Adams to fix a case, some of his other rulings that seemingly flew in the face of the truth or logic have come under renewed scrutiny. This includes the bungled inquest into the murder of Jennifer Tanner, which police falsely alleged was suicide."

On the inside front cover of the book, under a bold title, "The Policeman", appears a full page photograph of a person in a suit, again with head down, standing by a motor vehicle. Under the photograph is the caption, "Crooked Cop" and under that the following text appears:

"Ross Allen Bingley gained notoriety for several actions including falsifying charges, perjury and using police protected criminals as witnesses. After one case he confessed to fixing the result by paying off Magistrate Hugh Francis Patrick Adams (see inside back cover). Several recently retired Victorian police officers have said that `fixing' court cases by paying off judges and magistrates, knobbling juries, harassing witnesses and other unlawful means is so common as to be effectively routine. Meanwhile the government maintains that charade, that this sort of thing never happens."

There is no particular of contempt relating to the words or photograph appearing on the inside front cover but it was submitted on behalf of the respondents that it was relevant to the defence to refer to that, so as to give context to the statements which appeared on the inside back cover.

COUNT TWO: RE: `VICTORIA POLICE CORRUPTION'; BOOK ONE

PARTICULARS OF CONTEMPT CONCERNING MAGISTRATE ADAMS

In Book One, as I have said, only one passage is the subject of a particular with respect to the second count of contempt. At page 57 the same photograph of Magistrate Adams appears as was used in the second book. Once again, attribution is given to `The Age' and the caption is, "Magistrate Hugh Francis Adams". Of the words which then appear not all have been included in the particular of the offence. The words in italics are those which are not part of the particulars of contempt:

"In a controversial decision he let corrupt policeman Paul John Strang walk free from court after he pled guilty to a charge related to planting explosives on an innocent man. He then put a suppression order on the penalty. In a separate matter, a Policeman admitted to paying a bribe to Adams to have an innocent man sentenced to jail. Adams was also the magistrate who preceded over the first bungled Jennifer Tanner inquest. His finding in that matter was qashed (sic) and overturned. Adams has also come under criticism for his handling of other cases including the Wagnegg and Walsh Street matters."

Before dealing with the matters of fact and law which the plaintiff contended constituted these statements to be contempt, and the defences which were raised by the respondents, it is first necessary to provide some background to the perjury charge which was determined by the jury in the trial presided over by Judge Neesham.

A very large proportion of the chapters in the second book deal with Hoser's conviction by verdict of a jury on a count of perjury. Hoser was presented at the County Court at Melbourne on 4 September 1995 and after being convicted of perjury was sentenced by Judge Neesham to six months' imprisonment with two months of that sentence suspended for two years. The circumstances which gave rise to his prosecution for perjury commenced on 8 March 1992, when two police officers observed Hoser driving a taxi in the early hours of that day at the intersection of Sydney Road and Harding Street, Coburg. The police officers observed Hoser drive into the intersection against a red traffic light. They stopped him and issued an On the Spot Penalty Notice.

Hoser contested the charge, but in proceedings in the Magistrates' Court in November 1993 was convicted, fined and had his licence cancelled. He appealed from that conviction to the County Court and on 17 and 18 February 1994 the appeal was heard by her Honour Judge Balmford (at that time a judge of the County Court, but her Honour was later elevated to the Supreme Court). Once again, no transcript was taken of the proceedings. Hoser objected to the fact that the proceedings were not being tape recorded and upon her Honour's rejection of his contention that they should be, Hoser thereafter covertly tape recorded part of the proceedings, being the 28 minutes of his own evidence.

At the conclusion of the evidence for the prosecution on the appeal before Judge Balmford, Hoser produced a document and then gave evidence on oath and tendered the document, which he said was advice which he had received in writing from VicRoads that the traffic lights at that intersection were malfunctioning at the time of his offence, and were showing red in all directions at that time. The letter purported to be written in reply to a telephone enquiry made by Hoser on 24 January 1994 about that intersection. Hoser said he had received this response by fax, on his home fax machine which, he said, did not print out the time of receipt of the document.

The prosecution sought an adjournment to make further enquiries, and upon the matter resuming evidence was led that the document which had been produced by Hoser, and which had the VicRoads' letterhead, also bore a reference number which was an internal reference number used by VicRoads to identify the intersection about which an enquiry had been made by a member of the public and to which the response related. The reference number in the document tendered by Hoser was not to the intersection at which he had been charged but to the intersection at King Street and Flinders Lane, Melbourne.

The prosecution tendered a letter from VicRoads which bore the same date as the letter tendered by Hoser and which was in identical form, save for the fact that it was referring to a different intersection and a different time and date, and which letter had been produced in response to a request for information made by Hoser on the same date on which he said he had made the enquiry about the intersection of Sydney Road and Harding Street, Coburg. In response to this material Hoser claimed that he had in fact made enquiries on the same date, that is, 24 January 1994, about malfunctions at two separate intersections.

Hoser was charged with perjury for this evidence and was committed for trial by Magistrate Heffey. According to Hoser, in committing him for trial Her Worship did not hear his tape recording of his evidence before Judge Balmford, having been told that the tape (which had been seized and copied by police) had not been brought to court, and having ruled that it was not necessary to hear it to be satisfied that there was a case to answer at trial. An attempt by Hoser to tender and play a copy of the tape was successfully objected to by counsel for the DPP.

On his trial for perjury in the County Court the count was amended so as to allege that he had falsely sworn on oath that the letter which he tendered had been sent to him, by fax, from VicRoads. At the trial in the County Court the Crown led evidence from witnesses from Roads Corporation and from an expert from the State Forensic Science Laboratory to the effect that the document tendered by Hoser had been a forgery and constituted a doctored version of the document which had been sent to him by VicRoads concerning the intersection at King Street and Flinders Lane. In other words, it was the Crown case that to bolster his case Hoser had produced a manufactured forgery, and had been caught out. The records of Roads Corporation disclosed no enquiry having been made by Hoser concerning lights at the intersection of Harding Street and Sydney Road.

In his defence to the charge of perjury Hoser claimed that he had been "set up" by police officers and officers of Roads Corporation, whom he claimed had been victimising him over a long period of time. He called another taxi driver, one Burke, who gave evidence that he had travelled through the intersection on the same evening for which Hoser had been charged and that the traffic lights were then stuck on red. The witness, Burke, appears to be the same person who gave evidence for Hoser in his earlier Magistrate's Court prosecution for assault which was heard by Magistrate Adams, out of which the "confession" was made by Bingley concerning the alleged corruption of the magistrate. As Hoser acknowledges in his book, Burke's credibility was the subject of sustained attack by the prosecutor in the perjury trial.

Unlike his previous encounters in the law courts, the decision in the perjury trial was not made by a magistrate or a judge, but by a jury of 12 citizens who had the opportunity to observe Hoser and his witness, and also the prosecution witnesses. They disbelieved Hoser and his witness. A conviction for perjury was plainly a very serious setback for a person who proclaimed himself to be an authority about corruption and a person whose word should be accepted as truth.

Hoser appealed to the Court of Appeal, and was represented by Queen's Counsel, but his appeal failed. Hoser attended the hearing, and was present when, at the outset of the hearing, counsel announced that he proposed to argue only three grounds, those being three new grounds of appeal drafted by Hoser's lawyers, and that he would not argue the 26 grounds which had been drafted and lodged by Hoser. As appears in the report of the decision of the Court of Appeal (R v Hoser[3]), counsel advised the court that his instructions would not permit him to abandon those grounds, although he did not propose to argue them. Hoser complains that the abandonment of the 26 grounds of appeal was contrary to his express instructions. Although the original 26 grounds were not filed in the proceedings before me it is apparent from the terms of the report to the Court of Appeal by Judge Neesham what some of those grounds were, and the grounds are re-produced in Book Two[4].

Before examining the circumstances and context of the events referred to in each of the particulars of alleged contempt, it is convenient to discuss the relevant law applicable to a charge of contempt by scandalising the court.

WHAT CONSTITUTES CONDUCT WHICH SCANDALISES THE COURT?

The summary procedure of prosecuting instances of contempt by scandalising the court should be regarded as invoking criminal jurisdiction and, accordingly, requires that the charge be proved beyond reasonable doubt[5]. The Supreme Court has jurisdiction to deal with contempts of inferior courts[6]. The offence of scandalising the court is a well recognised form of criminal contempt and is not obsolete[7]. The offence of contempt by scandalising the court was described in the following terms by Rich J. in R v Dunbabin; ex parte Williams[8] when speaking of interferences with the course of justice:

"...But such interferences may also arise from publications which tend to detract from the authority and influence of judicial determinations, publications calculated to influence the confidence of the people in the court's judgments because the matter published aims at lowering the authority of the court as a whole or that of its judges and excites misgivings as to the integrity, propriety and impartiality brought to the exercise of the judicial office. The jurisdiction is not given for the purpose of protecting judges personally from imputations to which they may be exposed as individuals. It is not given for the purpose of restricting honest criticism based on rational grounds of the manner in which the court performs its functions. The law permits in respect of courts, as of other institutions, the fullest discussion of their doings so long as that discussion is fairly conducted and is honestly directed to some definite public purpose. The jurisdiction exists in order that the authority of the law as administered in the courts may be established and maintained."

There are generally recognised to be two categories of publications which scandalise the court, although they tend to overlap[9]. In the first place, there are those which impugn the impartiality or integrity of the court. The second category relates to scurrilous abuse. In this case the particulars on which I held there was a case to answer fell into the former category, although in some instances language was employed which was capable of constituting scurrilous abuse, also. Abuse or attacks on the personal character of a judge or magistrate which reflect upon the capacity of the person to act as a judge or magistrate - for example, by calling the judge or magistrate a liar[10] - would be capable of constituting scurrilous abuse[11].

In the leading case concerning scurrilous abuse, R v Gray[12], Lord Russell of Killowen CJ drew a distinction between criticism, on the one hand, and personal, scurrilous, abuse of a judge, as a judge. Lord Russell characterised contempt by scandalising a court or judge as being conduct where an act done or a writing published was calculated to bring a court or judge of the court into contempt, or to lower his authority. His Lordship qualified that statement by holding:

"Judges and courts are alike open to criticism, and if reasonable argument or expostulation is offered against any judicial act as contrary to law or the public good, no Court could or would treat that as contempt of court."

In The King v Nicholls[13] Griffiths CJ observed:

"In one sense, no doubt, every defamatory publication concerning a judge may be said to bring him into contempt as that term was used in the law of libel, but it does not follow that everything said of a judge calculated to bring him into contempt in that sense amounts to contempt of court."

In Attorney-General (NSW) v Mundey[14] Hope JA held that it may, and generally will, constitute contempt to make unjustified allegations that a judge has been affected by some personal bias against a party, or has acted mala fide, or has failed to act with the impartiality required of the judicial office, but in Ahnee & Ors v Director of Public Prosecutions[15] Lord Steyne, delivering the judgment of the Judicial Committee of the Privy Council, held that the imputation of improper motives to a judge could not be regarded as always, and absolutely, constituting contempt, and gave as an example of a possible exception an instance where a judge engaged in patently biased conduct in a criminal trial.[16] As I will later discuss, it is my view that none of the particulars with which I am concerned would constitute such an exception, i.e., by virtue of being criticism of what was patently biased conduct.

In stressing the importance of freedom of speech and the right of members of the public to criticise decisions of the courts, Lord Denning M.R. in R v Metropolitan Police Commissioner; Ex parte Blackburn (No 2)[17] said that every person had the right:

"to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not."

Lord Denning then followed that statement with this important qualification:

"All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication."

In citing the judgment of Lord Denning, with approval, Hope JA in Attorney-General (NSW) v Mundey[18], observed:

"But criticism does not become contempt because it is `wrong headed, or based on the mistaken view of the facts or of the law. Nor, in my opinion, need it be respectfully courteous or coolly unemotional. There is no more reason why the acts of courts should not be trenchantly criticised than the acts of other public institutions, including parliament. The truth is of course that public institutions in a free society must stand upon their own merit; they cannot be propped up if their conduct does not command respect and confidence; if their conduct justifies the respect and confidence of the community, they do not need the protection of special rules to shield them from criticism. Indeed informed criticism, whether from a legal or social or any other relevant point of view, would be of the greatest assistance to them in the performance of their function. However, the law has undoubtedly imposed qualifications on the right of criticism, and they are qualifications that relate to the effective performance by courts and judges of their role in the administration of justice. Unfortunately these qualifications are ones the boundaries of which are difficult to define with precision, and indeed in respect of which courts have from time to time had different attitudes."

The prosecutor is not obliged to prove that the comments actually did undermine the standing of the court or its officers. It is sufficient if the court is satisfied, objectively, that they had the tendency to do so[19]. In determining whether the material has that tendency, it is to be judged by reference to its impact upon the ordinary reader[20], or a reasonable person[21].

The first defendant denied that he had made the statements with any intention of interfering with the administration of justice or the standing of the judges. Indeed, he claimed that his intention was to enhance the reputation of the judicial system by exposing those instances where judges or magistrates had behaved improperly. His intention, assuming I accepted his assertion in that respect, can not be decisive on the question whether he has committed contempt.

Hope JA in Mundey held that in the circumstances of that case the issue whether the respondents statements constituted contempt had to be determined by reference to their inherent tendency to interfere with the administration of justice and that:

"The defendant's intention, while of some relevance in this regard, is of importance mainly in relation to whether the matter should be dealt with summarily, if any of the statements did constitute contempt, and in relation to the question as to what penalty, if any, should be imposed"[22].

In John Fairfax & Sons Pty Ltd v McRae the High Court held that "the actual intention or purpose lying behind a publication in cases of this kind is never a decisive consideration. The ultimate question is as to the inherent tendency of the matter published. But intention is always regarded by the court as a relevant consideration, its importance varying according to the circumstances"[23].

The courts have long stressed that the jurisdiction to punish in a summary way for contempt by scandalising the court should be exercised "sparingly"[24] and "with great caution"[25]. There must be a real risk of the administration of justice being undermined[26].

The need to exercise caution is starkly demonstrated by the leading authority on scurrilous abuse, itself. In R v Gray[27] the judge who was the subject of the abuse was Mr Justice Darling, a judge who has been the subject of much criticism by writers since his retirement in 1923. The author, David Pannick, in his book "Judges"[28] said of the published criticism of Mr Justice Darling, which earned the journalist concerned a substantial fine (imprisonment only being avoided by virtue of a grovelling apology):

"This splendid piece of invective effectively punctured the vain pretensions of Mr Justice Darling whose injudicious behaviour on the bench was frequently a disgrace."

Similar criticisms have been made elsewhere[29].

The learned authors Borrie and Lowe[30] suggest that a defence of fair comment is available in Australia, but are more doubtful that a defence of justification (I shall employ the term "truth" to identify this defence) is available in cases of contempt. In his book, "Contempt of Court" Professor C.J. Miller[31] came to similar conclusions. Although the law can not be taken to be settled, it does now seem that both defences are available in Australia. In this case the respondents' defence to all charges was that the comments constituted fair comment, but, as I shall discuss, the defence of truth nonetheless arises.

In his affidavit Hoser made the following assertions:

"7. When undertaking research for my books I take all reasonable steps to ensure the accuracy and truth of the statements made in the books and of any material relied on. I adopted that approach in writing the relevant books. 8. I set out in the relevant books the facts and matters upon which my comments, criticisms and opinions - as expressed in the books - were based. All transcript extracts relating to the passages complained of were taken from the official court transcripts and, to the best of my knowledge at the time of publication, were accurately reproduced. 9. To the best of my knowledge at the time of publication, the statements of fact contained in the relevant books were true. Wherever in the relevant books I expressed views, opinions or beliefs, I was expressing views, opinions and beliefs which I held at the time of publication. 10. It was no part of my purpose in writing the relevant books to harm the administration of justice. As stated at p. 18 of book 2 (and elsewhere), my purpose in writing both books was to highlight what I perceived to be corruption (as defined in the books) and wrongs in the justice system and in the conduct of police. I sought to do so as the first step towards rectifying those deficiencies and ultimately strengthening public faith and trust in the criminal justice system."

In the course of his evidence to me, Hoser said: "The point is made early in both books that the vast majority of judges and magistrates and police and so forth, are doing a very difficult job very well, and I think in the context of the books, what I am worried about Your Honour is that a perception is being put across that I have some sort of bent or vendetta against all judges and magistrates which is very far from the case".

Mr Maxwell QC submitted that because, in his brief cross-examination, counsel for the Attorney-General did not challenge directly the assertions made in the above paragraphs of Hoser's affidavit, it must follow that the plaintiff was obliged to accept the truth of what was there asserted. However, whilst it is true that (somewhat surprisingly) Hoser was not cross-examined directly on those matters, there could be no doubt that the Crown was challenging every one of Hoser's assertions as to his integrity and good faith, and the contention that the offending passages from his books constituted fair comment.

In his evidence Hoser emphasised the care he took to check the facts in his books. He said that invariably publication of his books was delayed for a substantial period "so that the facts can be checked and double checked and persons adversely named can be sent relevant manuscripts so that if they believe I have got something wrong, they have the opportunity to correct the whole thing". He did not suggest, however, that any of the persons named in the particulars for the two counts of contempt were accorded that opportunity.

No defence of truth was argued. Instead, what was argued was that if it was accepted that Hoser had written in good faith what he believed to be true, and had based his statements on facts which he believed supported the statements, then the Crown carried an onus of proving that what was asserted was not true. In the written reply counsel for the respondents put the matter this way:

"The submissions for the respondents do not assert that the books themselves are evidence of the truth of the matters stated in them. Rather, it is the submission of the respondents that the books are to be taken at face value, in the absence of any basis for a suggestion that they should not be so treated"

To emphasise the point, counsel noted that Hoser had sent to the Attorney-General the transcript and tape of the "confession" which he said Bingley had made concerning the alleged corruption of magistrate Adams. Since the Crown had not taken steps to investigate whether there was truth in the allegation, then, so it was submitted, it should be presumed that it was true, unless the Crown disproved the allegation. I will later deal with that contention, in some detail. Insofar as the particulars other than those concerning Magistrate Adams allege bias, rather than corruption, then the case is put not that there was actual bias but that Hoser believed that he had been the victim of bias and that his statements constitute fair comment made in good faith and based on the facts concerning what transpired in his hearings before the magistrates and judges concerned.

I turn then to consider what are the features of the defence of fair comment.

As emerges from the decided cases, for a statement to constitute fair comment it must be honest criticism based on rational grounds, and be discussion which is fairly conducted. It must not be motivated by malice or by an intention to undermine the standing of the courts within the community. Lord Russell CJ in R v Gray saw no difficulty with criticism which constituted "reasonable argument or expostulation".

A further prerequisite for fair comment, namely, that the comment not impute improper motives, at all, to the magistrate or judge, was stated in the early decision of Ambard v Attorney-General for Trinidad and Tobago[32] where Lord Aitkin, delivering the judgment of the Judicial Committee, held:

"But whether the authority and position of an individual judge, or the due administration of justice, is concerned, no wrong is committed by any member of the public who exercises the ordinary right of criticising, in good faith, in private or public, the public act done in the seat of justice. The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune. Justice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful, even though outspoken, comments of ordinary men."

The apparent prohibition on any assertion of impropriety and the relevance of a claim of good faith were considered in Ahnee v Director of Public Prosecutions[33]. The Judicial Committee of the Privy Council was there concerned with a published allegation that the Chief Justice of Mauritius had improperly fixed the date and chosen judges to hear a case in which he had a personal interest. Their Lordships held that the offence of contempt by scandalising the court was not obsolete, but was an offence which was to be narrowly defined. Their Lordships added, at 306:

"It does not extend to comment on the conduct of a judge unrelated to his performance on the bench. It exists solely to protect the administration of justice rather than the feelings of judges. There must be a real risk of undermining public confidence in the administration of justice. The field of application of the offence is also narrowed by the need in a democratic society for public scrutiny of the conduct of judges, and for the right of citizens to comment on matters of public concern. There is available to a defendant a defence based on the `right of criticising, in good faith, in private or public, a public act done in the seat of justice': see Reg v Gray[34]; Ambard v Attorney-General for Trinidad and Tobago[35] and Badry v Director of Public Prosecutions[36]. The classic illustration of such an offence is the imputation of improper motives to a judge. But so far as Ambard's case may suggest that such conduct must invariably be an offence their Lordships consider that such an absolute statement is not nowadays acceptable."

Their Lordships said that they preferred the view of the Australian courts, that exposure and criticism of judicial misconduct would be in the public interest (citing R v Nicholls[37]). The approach of the Australian courts, as adopted in R v Nicholls and R v Fletcher; Ex parte Kisch[38], also gained support from the Court of Appeal in New Zealand in Solicitor General v Radio Avon Ltd and Anor[39]. In that case the Court discussed the notion of "fair comment" and held that the mere fact that a criticism involved the imputation of improper motives to a judge or magistrate did not, in itself, determine that contempt had been committed. Their Honours continued:

"If this were the law then nobody could publish a true account of the conduct of a judge if the matter published disclosed that the judge had in fact acted from some improper motive. Nor would it be possible, on the basis of facts truly stated, to make an honest and fair comment suggesting some improper motive, such as partiality or bias, without running the risk of being held in contempt."

The New Zealand Court of Appeal held in Solicitor General v Radio Avon that a defence based on fair comment was accepted to be available in R v Nicholls and R v Fletcher; Ex parte Kisch and was consistent with the view of the learned authors Borrie and Lowe, in The Law of Contempt, but their Honours held that comments would only avoid a finding of contempt "provided the allegation of partiality is free from the taint of scurrilous abuse and can be either justified or be properly considered as fair comment[40]".

The balancing approach which the court must undertake when considering a charge of contempt is discussed in Gallagher v Durack[41]. In that case the appellant, having successfully appealed against a sentence for contempt, imposed by a judge of the Federal Court, reacted to the decision of the Full Court in allowing his appeal by suggesting that it had been motivated by demonstrations staged by his union members. In the joint judgment, the High Court held;

"The law endeavours to reconcile two principles, each of which is of cardinal importance, but which, in some circumstances, appear to come in conflict. One principle is that speech should be free, so that everyone has the right to comment in good faith on matters of public importance, including the administration of justice, even if the comment is outspoken, mistaken or wrong headed. The other principle is that `it is necessary for the purpose of maintaining public confidence in the administration of law that there shall be some certain and immediate method of repressing imputations upon Courts of Justice which, if continued, are likely to impair their authority': per Dixon J in R v Dunbabin; Ex parte Williams[42]. The authority of the law rests on public confidence and it is important to the stability of society that the confidence of the public should not be shaken by baseless attacks on the integrity or impartiality of courts or judges. However, in many cases the good sense of the community will be a sufficient safeguard against the scandalous disparagement of a court or a judge and the summary remedy of fine or imprisonment `is applied only where the court is satisfied that it is necessary in the interests of the ordered and fearless administration of justice and where the attacks are unwarrantable': R v Fletcher; Ex parte Kisch, per Evatt J."

As may be seen, that statement, by its reference to "baseless" and "unwarrantable" criticism was consistent with the view that a defence of truth was open.

The High Court has more recently discussed the ambit of the contempt power, and the defences of fair comment and truth/justification, in the decision of Nationwide News Pty Ltd v Wills[43]. In that case the High Court was not called on to resolve the question of the range of defences which might be available on a charge of contempt, and the statements of the judges on these issues, therefore, are obiter. Nonetheless, the Court considered the issues in some detail, and the judgments suggest that defences of truth and fair comment are available to defeat the charge of contempt by scandalising the court. The judgments also discuss the relevance of a claim of good faith and the limits which might be imposed on criticism.

In Nationwide News v Wills the Court was interpreting a statutory provision which purported to prohibit all criticism of the Industrial Relations Commission, even criticism which was "justifiable, fair and reasonable"[44], thus purporting to create a protection from criticism which was much wider than that provided to any court, at common law. In considering the words employed in the section ("calculated to bring a member of the Commission or the Commission into disrepute") Mason CJ, at 24, gave the word "calculated" its common law meaning in the law of contempt, namely, that it should be construed to mean "likely", rather than "intended".

In considering whether defences of justification and fair comment should apply, it was contended in argument that such defences were available at common law with respect to contempt. Mason CJ held, at 31-32, that at common law there would be no contempt if criticism was made in good faith by a person "genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice".

Brennan J held, at 38-39, that it would not be contempt to criticise court decisions "when the criticism is fair and not distorted by malice, and the basis of the criticism is accurately stated". His Honour held that it would be for the public benefit if comment was "fairly made" concerning conduct "that is truly disreputable (in the sense that it would impair the confidence of the public in the competence or integrity of the court)". Brennan J held that revelation of "truth" would be for the public benefit if it constituted "fair criticism based on fact", and that would be so even if the end result was that there would be less public confidence in a court or a judge. His Honour held that the laws of contempt do not suppress "justifiable or fair and reasonable criticism which exposes grounds for loss of official repute".

In their joint judgment, Deane and Toohey JJ, at 67, rejected the contention that the statute, in that case, imported defences which would be available at common law to a person charged with contempt, but in rejecting that contention their Honours accepted that, at common law, for a critical statement to constitute contempt it must have been "unwarranted"[45] or "unwarrantable"[46].

Deane and Toohey JJ, held, at 78, that, as with a court, it was important that members of the Industrial Relations Commission have the appearance as well as the substance of being fit and qualified and of acting fairly and impartially, and that the national system of conciliation and arbitration would be undermined were the public perception to be that the Commission's members were biased, unqualified, unfit, corrupt or customarily acted unfairly or improperly. Their Honours held that some control over "unfounded and illegitimate" attacks on the Commission could "in accordance with the traditional standards of our society, be justified as being in the public interest for the reason that it is necessary to enable the effective discharge of the important functions of conciliation and arbitration for the prevention and settlement of interstate industrial disputes". Their Honours held, at 79, that the protection of the Commission from unfounded attacks:

". . . does not mean that it is in the public interest that the substance of impropriety, bias or incompetence should be concealed under a false veneer of good repute. Indeed, the traditions and standards of our society dictate a conclusion that, putting to one side times of war and civil unrest, the public interest is never, on balance, served by the suppression of well-founded and relevant criticism of the legislative, executive or judicial organs of government or of the official conduct or fitness for office of those who constitute or staff them. Suppression of such criticism of government and government officials removes an important safeguard of the legitimate claims of individuals to live peacefully and with dignity in an ordered and democratic society. Indeed, if that suppression be institutionalised, it constitutes a threat to the very existence of such a society in that it reduces the possibility of peaceful change and removes an essential restraint upon excess or misuse of governmental power."

In his judgment in Nationwide News v Wills Dawson J, at 90-91, noted that the common law of contempt provided a very restricted basis on which criticism could be held to constitute contempt and cited the following passage in the judgment of Griffith CJ in R v Nicholls[47]:

"On the contrary, I think that if any judge of this court or of any other court were to make a public utterance of such character as to be likely to impair the confidence of the public, or of suitors or any class of suitors in the impartiality of the court in any matter likely to be brought before it, any public comment on such an utterance, if it were a fair comment, would so far from being a contempt of court, be for the public benefit, and would be entitled to similar protection to that which comment upon matters of public interest is entitled under the law of libel".

McHugh J, at 98, noted that many statements made about the Commission or its members might not constitute contempt of the Commission although they would constitute contempt if made about a court or a judge. His Honour held that the words of the section which the court was concerned to interpret could not be read down by reference to common law concepts relating to contempt by scandalising a court. McHugh J held, at 102, however, that a protection against justifiable as well as unjustifiable criticism went beyond the protection afforded any court of law. His Honour adopted the statement of the Privy Council in Ambard v Attorney-General of Trinidad and Tobago, that at common law no wrong is committed by persons who, in good faith, criticise courts or judges or the administration of justice, provided that they abstain from imputing improper motives and are genuinely exercising a right of criticism and not acting in malice or attempting to impair the administration of justice. His Honour noted, too, that R v Nicholls went further than that statement of the law, in stating that it was not in all cases of an imputation of want of impartiality that there would be a contempt of court (but noted that the instance which would provide the exception - i.e. which would not constitute contempt - would be where the conduct of the judge exposed himself or herself to such a charge, fairly made). Furthermore, at 102-103, his Honour held that while there were decisions of courts in other jurisdictions suggesting that truth or falsity were irrelevant to a charge of scandalising the court "this Court has said that the summary remedy of fine or imprisonment is applied only `where the attacks are unwarrantable' (referring to a passage in Gallagher v Durack, at 243, in turn citing Evatt J in R v Fletcher; Ex parte Kisch, at 257)."[48]

McHugh J held, at 104, that the common law principles relating to scandalising the court were not applicable to the Industrial Relations Commission, but that, in any event, the legislation went well beyond the protection which the law of contempt gave to courts. His Honour was not required to determine whether defences of fair comment and justification were available at common law in proceedings for contempt.

Whilst the statements in Nationwide News v Wills strongly suggest that defences of truth and fair comment now apply, the question can not be taken to be concluded. In Re Colina, Ex parte Torney[49], Gleeson CJ and Gummow J left open the question of the defences which might be available, but noted that the policy of the common law as to the ambit of contempt remained a matter of controversy, and their Honours cited Regina v Kopyto, as one of the cases which reflected the controversy.

83 Regina v Kopyto, was a decision of the Ontario Court of Appeal[50]. Cory JA, referring to the guarantee of freedom of expression to be found in s. 2(b) of the Canadian Charter of Rights and Freedoms, held:

"A democracy cannot exist without the freedom to express new ideas and to put forward opinions about the functioning of public institutions. Because of their very importance in a democratic society the courts are bound to be the subject of comment and criticism, not all of which will be sweetly reasoned."

In that case the court held that the offence of scandalising the court conflicted with the entitlement of freedom of expression guaranteed by the Charter of Rights and Freedoms. The comments made by Cory J.A[51], notwithstanding the significant difference between that case and the present, are nonetheless of relevance:

"However, change for the better is dependent upon constructive criticisms. Nor can it be expected that criticism will always be muted by restraint. Frustration with outmoded practices will often lead to vigorous and unpropitious complaints. Hyperbole and colourful, perhaps even disrespectful language, may be the necessary touchstone to fire the interest and imagination of the public to the need for reform, and to suggest the manner in which that reform may be achieved. The concept of free and uninhibited speech permeates all truly democratic societies. Caustic and biting debate is, for example, often the hallmark of election campaigns, parliamentary debates and campaigns for the establishment of new public institutions or the reform of existing practices and institutions. The exchange of ideas on important issues is often framed in colourful and vitriolic language. So long as comments made on matters of public interest are neither obscene nor contrary to the laws of criminal libel, citizens of a democratic state should not have to worry unduly about the framing of their expression of ideas."

In the case before me it was submitted that the right to free speech, which had always been acknowledged to be a relevant consideration when determining whether statements amounted to contempt, must now be regarded as being paramount, by virtue of the decision of the High Court in Lange v Australian Broadcasting Commission[52], which, so it was submitted, gave free speech the status of a constitutional right.

In Lange the High Court held that the Commonwealth Constitution, by reference to several sections, gave an implied right of freedom of communication, but the court identified it as a "freedom of communication between the people concerning political or government matters which enables the people to exercise a free and informed choice as electors[53]". The Court added that the relevant sections of the Constitution "do not confer personal rights on individuals. Rather they preclude the curtailment of the protected freedom by the exercise of legislative or executive power"[54]. It is, thus, doubtful that the freedom which the Court identified would bear upon the application of contempt of court principles. In any event, the Court stated[55] that the freedom was not absolute but was limited to what is necessary for the effective operation of the system of representative and responsible government.

The High Court held that even if there was an interference with the freedom of communication "about government and political matters" a law would not be invalid if it was "reasonably appropriate and adapted to serve a legitimate end the fulfilment of which is compatible with the maintenance of the constitutionally prescribed system of representative and responsible government . . .[56]".

The Solicitor-General contended that the application of contempt laws would be an instance of an acceptable limitation of the freedom of communication which was discussed in Lange, but that, in any event, it should not be considered that the principles in Lange were intended to interfere with the common law powers of courts to deal with contempt of court, a view taken by the New South Wales Court of Appeal in John Fairfax Pty Ltd v Attorney-General (New South Wales[57]). That view had also been expressed by Deane J in an earlier decision on the question of the implied freedom (Theophanous v Herald & Weekly Times Ltd[58]) and was suggested to be so, too, by Kirby P in John Fairfax Publications Pty Ltd v Doe[59], and by the Full Court in Western Australia in Hamersley Iron Pty Ltd v Lovell[60], which also held that the contempt laws were compatible with the freedom of communication discussed in Lange.

Mr Graham also contended that the State Constitution may not give rise to the same implied freedom as was found to exist under the Commonwealth Constitution. He referred to the discussion by Kirby J in Yougarla v Western Australia[61].

I conclude that the principles in Lange do not detract from or alter any of the common law principles which I have held to apply with respect to contempt by scandalising the court, nor does the principle impose any additional restriction on the circumstances in which the court might conclude that it was appropriate to exercise the jurisdiction to punish contempt. It is my view that the constitutional freedom of communication, even if it was applied in full measure - to the extent and subject to the limitations that the High Court discussed in Lange - would add no greater emphasis to the statement of the importance of recognition of the right to free speech than had already been firmly embedded by the courts at common law[62].

As may be seen, for comment to be regarded as fair criticism it must be shown to have been made in good faith. I turn then to consider Hoser's assertion that each of his statements met that criteria.

As noted above, Hoser's claim to have acted in good faith is not merely the assertion in his evidence, but he contends that a reading of his books demonstrates that when taken at face value they are the product of good faith of the author.

Counsel on both sides accepted that the passages identified in the particulars on which there is a case to answer needed to be read in the context of the books as a whole. On behalf of the respondents it was contended that various passages in both books, and also in the earlier book, "The Hoser Files", ameliorated any impression that the selected extracts constituted contempt. I was referred to numerous passages, in many instances self-serving statements, published by Hoser, and to detailed factual arguments set out in his books, not only in support of the conclusions which are to be found in the selected extracts, but also to support his contention that he was acting in good faith. The Crown, on the other hand, referred to passages throughout the book in order to discredit Hoser's claim that he acted in good faith, and his further claim that the opinions and statements made in the book were made only after careful examination of evidence and checking of sources. It was appropriate, in my view, that the books be used for the purpose of context in this way (see The Herald and Weekly Times Ltd v Attorney-General for the State of Victoria[63]; and Re Perkins[64]).

No defence of fair comment could apply to comments made in bad faith: see Solicitor-General v Radio Avon[65]. The learned authors Borrie and Lowe[66] observe that it is clear that comments made mala fide fall outside the protective umbrella of the right to criticise. The authors comment:

"How can mala fides be proved? One way is to look at the language in the publication. It is easy, for example, to infer an intention to vilify the courts where outrageous and abusive language is used, especially where the article is one sided, containing little or no reasoning. In R v White[67] an early English decision of 1808, Grosse J decided that a censure of judge and jury in abusive terms constituted a contempt because the article: `Contained no reasoning or discussion but only declamation and invective... written not with a view to elucidate the truth but to injure the character of individuals, and to bring into hatred and contempt the administration of justice in this country.'

"Cases of `scurrilous abuse' of a judge, particularly in R v Gray, where Lord Russell CJ said that the comment went beyond criticism, clearly by their language show an intention to vilify rather than to correct; if an article is written in abusive language, the bona fides of the writer will immediately be brought into question. The actual language used in an article is not, of course, conclusive proof of intention. Such factors as the party's attitude in court can also be important."

If one is to take the books at face value, especially Book Two, then it is difficult to accept that the author is motivated by good faith, or by a desire to correct rather than to vilify. The language used throughout is often both extreme and offensive; his comments about magistrates and judges almost universally contemptuous and sarcastic. His books, themselves, demonstrate how selective he is in his use of relevant material, and how prone he is to inflate a reasonable point by inflammatory language, or by making exaggerated claims as to what the fact demonstrates. At the same time I must make allowance of the fact that in Book Two, in particular, he is largely writing as one seeking vindication, claiming to be a person who has been wrongly convicted of a serious offence. In evaluating Hoser's claim to good faith, and the extravagance of his language, I have to also make allowance for what seems to be his highly developed belief that he is the victim of multiple conspiracies.

At page 142 of Book Two he states, "It has always amazed me how an innocuous activity by myself is always deliberately misinterpreted by the prosecution as part of some major criminal plot". I asked him whether that sense of conspiracy was one which rather more applied to himself. He said he had asked himself that question many times over the years, but said that that was not a possibility, having regard to the number of cases that he had won and the reasons why he had lost those cases on which he had been unsuccessful. He said in many cases it was not a conspiracy, just the magistrates choosing to accept other peoples' word rather than his own. He attributed that to perjury by the other witnesses rather than necessarily to corruption by the magistrates.

I give just one example of an exaggerated claim based on flimsy evidence in order to illustrate the difficulty I have with Hoser's contention that his books should be taken on face value, and that they demonstrate a person acting in good faith.

In a passage in Book Two in a chapter titled "Crime - Who you are determines the penalty", and under a sub-heading "Looking After the Criminals", the following passage appears:

"Then there's (sic) the judges and magistrates who look after hardened criminals with lenient or non-existent sentences. These occur in various circumstances including when the criminal has mates in the system, but weren't able to actually prevent the charges being laid. A common scenario is when a straight cop busts a protected drug trafficker and refused to `pull' the charge. The criminal is then forced to front court, but a deal is done with one or more of the clerk, the prosecution and the person hearing the matter (judge or magistrate) to give the person an easy ride through the system. Instead of a penalty such as jail, the offender may get a suspended sentence, bond or whatever. The double standards show up when the penalty is compared to that of a non protected criminal."

Hoser then cites as examples two instances of sentencing of offenders, - the first being a person who he describes as "treasurer of a major heroin syndicate" who pleaded guilty and was given a suspended sentence, as to which he says "she walked free without any tangible penalty. The police side had not opposed the application". He contrasted that case with the case of two heroin traffickers "without the same level of protection" who, before another judge (for an entirely different incident), were sentenced to six years' imprisonment for drug trafficking of $60,000 worth of heroin. He offers not a word of evidence to support his assertion of corrupt deals being done to secure the more lenient result.

Various other cases are thereafter mentioned, apparently for the purpose of demonstrating that those who received what Hoser regarded as a lenient sentence might have their result explained by virtue of corruption, but, none of the cases mentioned provides any support for the contention of "deals" being done with magistrates and judges to give the offender an easy passage through the courts, nor could he offer any better support for the allegation when he gave evidence before me.

Although his list of earlier publications, and two earlier books, were tendered, those books were not directly relevant before me, and I have not read them. I can make no judgment on those books but I am prepared to accept that Hoser does see himself as a crusader, and that his earlier books may well have been motivated by a genuine belief that he was exposing corruption. It is, however, difficult to accept his self-serving assertion that it was no part of his purpose in Book One and, especially, Book Two, to harm the administration of justice. In my view, he had a powerful motive in Book Two to seek to discredit the judicial system, in order to overcome the embarrassing facts that a jury had deemed him to be a perjurer and that his conviction for perjury had been upheld on appeal.

In defending his client against the allegations of contempt, Hoser's counsel, Mr Maxwell QC, placed emphasis on the fact that most of the passages which are alleged to constitute contempt are the writings of a disappointed defendant, whose perceptions were coloured by that experience, and by a sense of injustice, which is aggravated by the fact that he was imprisoned for perjury. The fact that he had been unrepresented in his trial, compounded by his lack of legal training, meant that his perception of the events of his trial is a blinkered one, so it was submitted, but represents opinions honestly held. Furthermore, so it was submitted, his complaints are in many instances justifiable, or at the very least, understandable, as they are often based on fact, and the complaints contained in his original grounds of appeal to the Court of Appeal were never aired. The Crown, it was submitted, has not proved that his criticisms or allegations made against magistrates or judges were baseless or did not constitute fair comment made in good faith.

The defence of a charge of contempt for comments arising from court proceedings is not the opportunity for an accused person to make a collateral attack on the original proceedings, but I will address aspects of his perjury trial which he identifies as demonstrating that he had a basis in fact for his belief that the judge had been biased in his conduct of the trial. Those contentions are relevant to evaluating his claim of good faith and fair comment, and in evaluating those allegations it becomes clear that, whatever Hoser's own perceptions, the allegation of bias against the judge for the conduct of the trial is without substance.

Among the many factors which Hoser identifies as justification for his perception of the unfairness of his trial, the following are some of the most important:

* The fact that Judge Neesham had heard and rejected an appeal brought by Hoser almost two years earlier;

* The fact that the prosecutor made inappropriate attempts to ingratiate himself with the jury, giving rise to the belief held by Hoser, and some others who attended court to watch his trial, that he was communicating with the jury in the courtroom, during the trial;

* The belief that the judge and the prosecutor were meeting together outside court hours to discuss the case and to plot means to secure Hoser's conviction;

* The fact that Hoser was not permitted by Judge Neesham to tender in his trial a tape recording, which, in defiance of an express order of Judge Balmford, he had secretly made of his evidence during the appeal before Judge Balmford;

* The fact that Judge Neesham ordered the jury out of court on occasions when Hoser was seeking to cross examine a witness, but permitted the witness to remain in court when asking Hoser what the scope and relevance was of the questions which he wanted to ask;

* Rulings and directions to the jury which Hoser said favoured the prosecution and did not assist him.

Analysis of these complaints (and I stress that they are only some of the matters which Hoser discussed in his books and in his evidence) discloses that even where in some instances there is a basis of fact to justify his complaint, Hoser has often, whether deliberately or unconsciously, so inflated the circumstances as to make his reporting of events quite unreliable and to raise doubts about his claim of good faith. In no instance is an allegation of bias capable of being sustained.

Hoser is an intelligent man and there are many indications throughout his books that he is an opportunist in seizing on events, and reporting them to his readers, in a way which attributes bias and unfairness in circumstances where, even as a non-lawyer, he must have known that innocent explanations were open. His posture of crusader against corruption does not prevent him being quite manipulative in seeking the sympathy of his audience. It is, however, important to try to ascertain those events which might understandably, even if wrongly, have caused him to feel badly done by in his court proceedings.

There seems to be little doubt that the prosecutor in the perjury trial acted quite inappropriately, at times, during the trial, and attempted to ingratiate himself with the jury. Hoser's claims, however, exaggerate the situation, and, in particular, unfairly attribute improper conduct or motives to the judge. Thus, in one of the passages which I ruled did not constitute a case to answer (but which I mention simply to demonstrate the capacity for leaps from fact to fantasy in which Hoser is prone to indulge) Hoser complained that, although he had not been aware of it himself, to any extent - until a spectator told him of it - the prosecutor "had spent most of the day apparently chatting to jurors", while Hoser was cross-examining. Hoser wrote in Book Two that Judge Neesham had been "green-lighting" the conduct of the prosecutor in that respect.

As is the practice for criminal appeals, Judge Neesham filed a report concerning what were then the 26 grounds of appeal lodged by Hoser. That report was tendered before me by counsel for Hoser, as support (from the judge himself) for the allegation that the prosecutor had behaved inappropriately. What the trial judge had to say, however, also demonstrates the hollowness of the complaint that the judge "greenlighted" such conduct. His Honour reported that he was not aware of there having been any "contact or dialogue" between the prosecution and the jury, but as to the suggestion that the prosecutor in the trial communicated with the jury, Judge Neesham reported:

"Counsel for the prosecution did, at an early stage of the trial, behave in an inappropriate matter (sic) in the presence of the jury. That his behaviour was inappropriate was brought to his attention at p. 50 of the transcript, lines 4 and 9. Reference to that episode was made in the course of my charge at p. 1602. As a result of it I kept watch upon counsel for the prosecution. He did frequently look at the jury and from time to time smile at it. I did not think that further intervention by me was called for until I had occasion again to rebuke him for his facial expression at p. 808 of the transcript. He had, in the meantime, been rebuked for other inappropriate behaviour at pp. 462 and 464. I saw no winking at the jury nor facial gesture other than what I have described. I saw no attempt to distract the jury from its task. Had I done so I would have intervened immediately."

As counsel for the Attorney-General contended, far from it being the case that Judge Neesham "greenlighted" the conduct of the prosecutor, he "redlighted" that conduct.

It is apparent, however, that the prosecutor had been acting in a quite inappropriate manner which merited censure, and received censure, from the trial judge. Such conduct would at any time be inappropriate, and arguably improper, but for it to be conduct indulged in by a senior crown prosecutor in a trial when a person is unrepresented reflects appalling judgement on the part of the prosecutor and a total disregard for the importance of maintaining both the reality and the appearance of fairness in such circumstances. Such conduct can itself undermine the administration of justice. The fact that any such conduct occurred would be likely to create a sense of anxiety and unfairness in an unrepresented person in Hoser's position, and I will have regard to that fact when assessing these charges.

(B) DENIAL OF TENDERING OF THE COVERT TAPE OF EVIDENCE

Much was made on behalf of Hoser in the proceedings before me of his suggestion that he had been denied the opportunity to present his defence to the perjury charge, because Judge Neesham had refused to allow him to make use of the tape recording of the proceedings before Judge Balmford which he had covertly made (in defiance of the order of Judge Balmford) during the hearing of his appeal before her Honour. In his book Hoser constructs an elaborate defence to the perjury charge whereby the tape recording would constituted definitive disproof of the allegation of perjury. The actual basis of the perjury allegation, as is discussed in the judgment of the Court of Appeal, was such that it seems to me highly unlikely that the playing of the tape recording could have made the slightest difference to his prospects of defence to the charge. None of his 26 grounds of appeal expressly complained about denial of use of the tape, and Hoser in his lengthy discussion of the trial does not set out the transcript of his application for tendering the tape and the reasons for refusal by the trial judge. I expressly asked to be directed to any such passage in the book and the passages to which I was directed do not overcome that deficiency.

Hoser's defence was in part, that in order for him to be guilty the Crown had to prove that he swore that it was VicRoads, which sent him the fax. He contended that he had never actually said that it was sent by VicRoads, because he claimed that he was not home when the fax arrived, and, thus, he could not see who had sent it. It was plain, however, that the thrust of the charge of perjury was that he had sworn that the document was a genuine one sent to him by VicRoads, by fax, in response to his query about the intersection. It was the Crown case that it was a forgery and had never been received by Hoser in the form in which it was produced by him to the court. Thus, Hoser's contention that he had not sworn that he was actually at home when the fax arrived was beside the point. At his perjury trial Hoser seems to have accepted that it was a forgery, but suggested to police witnesses that it may have been a forgery created by his enemies at VicRoads who had sent it to him in order to trap him into relying on it for his defence.

If the jury had a reasonable doubt as to who forged the fax then it would have had a reasonable doubt on the perjury charge. It is plain that his conviction was very much the product of the jury's disbelief as to his own evidence and that of his witness, who Hoser recounts coming under strong attack by the prosecutor.

In the final analysis, however, the charge of contempt does not require an analysis of the evidence on which Hoser was convicted and the merits of the arguments he made at trial or in his book. Hoser is entitled to protest to the world that his conviction was unjustified, and to argue his case as he wishes, with whatever selectivity of references to evidence that he choses. The issue before me is whether in seeking to argue that question he has gone beyond the boundaries of legitimate criticism of his court case and entered the area of contempt of court, by making baseless allegations of bias and impropriety against the trial judge.

(C) OUT OF HOURS CONTACT BETWEEN JUDGE AND PROSECUTOR

The gulf between Hoser's perception of his trial, and reality, is starkly demonstrated by his complaint in Book Two (being, also, one of the grounds of appeal which was not argued) that the judge and prosecutor were meeting after hours to discuss the evidence in his case[68]. This allegation was based on the fact that when the prosecutor and judge, in open court, were referring to transcript as to argument which had taken place at an earlier time during the trial, the judge spoke of having queried the prosecutor on some point "the other night". Hoser wrote that thereby the judge and prosecutor: " . . had together let the cat out of the bag. They had spoken about my case in my absence overnight!". Judge Neesham reported to the Court of Appeal that the suggestion that there had been such contact was entirely false. His Honour reported:

"There is no truth in the allegations made, nor any basis for it. All contact between the prosecution and myself took place in court in the presence of the appellant."

There are some instances where Hoser's perception of unfairness was probably due simply to his lack of experience in court procedures and practices. For example, in Book Two[69], he complained about remarks made to the jury by Judge Neesham during the course of the playing of a tape recording of a police raid on his premises, which he had covertly made at the time, and which he requested be played to the jury. Hoser was charged with perjury alleged to have been committed in February 1994. On the tape recording of the police raid a police officer was heard to speak of a file titled "Allegations of perjury 1993". Judge Neesham, who had not heard the tape before, immediately interrupted the playing to say to the jury:

"Members of the jury you heard one of the members of the search party refer just a moment ago to hearing `Allegations of Perjury 1993'. You should not think anything, but, and it is agreed that those allegations relate to the very matter you are hearing, not something else."

At a break, and in the absence of the jury, Judge Neesham complained to Hoser that he should have warned him that there was a reference on the tape to a 1993 perjury file.

In his book[70] Hoser complained that: "Neesham had probably made a deliberate mistake here because the date 1993 would indicate that I had premeditated and planned the alleged perjury in early 1994. It was part of his not so subtle and deliberate campaign to sow the seeds of doubt in the minds of the jurors".

To an observer familiar with criminal trials, however, what is quite obvious is that the incident probably arose from the judge's fear that the jury would conclude that Hoser had a prior conviction, or at least had been charged with another perjury on an earlier occasion, and his comment was his rather urgent, and possibly unwise, attempt to eliminate any risk of prejudice (and avoid the aborting of the trial) by giving an innocent explanation for the mention of a 1993 file. In fact, the file which was referred to by the police officer during the raid was one made by Hoser himself and its title reflected his assessment concerning the evidence of VicRoads officers in another case in which he had been involved.

During his evidence before me I asked Hoser whether he accepted that that was a possible explanation for the judge's intervention. He agreed it was possible, and said that: "I have always allowed the possibility that maybe there are other possibilities I have got wrong, or facts I have overlooked, or whatever, and that is why I have posted all the relevant transcripts and the list of all my sources, documents, inquest files, the whole box and dice, on the web; so that any given area of any of these books, not just the pictures, sections picked out by Mr Langmead, any section of the books, if a person thinks, "I think Hoser has got it wrong" they can then look at the whole lot and come to their own conclusion."

The difficulty with that explanation is that a non-lawyer would not be given any hint from what Hoser wrote that there may be an innocent explanation open as to what occurred. That is a fault which is constantly repeated throughout the book. In many instances it is highly likely that if more substantial extracts from transcript had been included in the book the innocent explanation would be obvious to the reader, but it is Hoser who decided how much of transcript was to appear in the books. It is highly unlikely that any reader would be minded to seek out the transcript, by using the web site, in order to check allegations for which Hoser does not suggest an alternative explanation may be open.

Hoser repeatedly asserts in Book Two[71] that Judge Neesham had no concern for the truth, and he quotes the judge, himself, saying to the jury when summing up the case that "A Criminal trial is not a search for the truth". That expression has been used by trial judges, when charging the jury, for a very long time. It is a good illustration of the dangers of the law's adherence to outmoded language.

The phrase is used by judges in a manner which is intended to be for the benefit of the accused person. Thus, the jury is told that their task is to decide only whether the Crown has proved the charge beyond reasonable doubt, and if they have such a doubt then the accused must be acquitted, even if that means that the public is left wondering what was the truth as to what happened. The phrase is also used at times to explain why a criminal trial does not seek to resolve all questions which might arise during a trial, as many issues are irrelevant to or remote from the issues which the Crown must prove. I consider that it is highly likely that the phrase that Hoser highlighted was used in the course of a longer explanation to the jury of the kind I have just suggested is the usual context for its use in a summing-up, and that would have been apparent had Hoser provided the full context of the phrase. Nonetheless, the phrase is capable of giving rise to the sort of misunderstanding that Hoser expresses, namely, the understanding that in determining the issues the jury are engaged in an exercise in which truth does not matter. The opposite is the case, and in assessing the evidence of witnesses in order to decide whether - having regard to the relevant issues of law and fact on which they have been directed - the Crown case has been proved beyond reasonable doubt, the jury is very much concerned to find the truth.

In my opinion, it may be time for the phrase to be replaced when charging a jury.

There are many examples of innocent conduct by the judge being misunderstood by Hoser, and treated as evidence of impropriety and bias. His complaint about the removal of the jury also arises from Hoser's ignorance of legal procedure.

An unrepresented accused will often ask questions in cross-examination which a barrister would know would be ruled inadmissible or irrelevant. The difficulty for the trial judge is that an inappropriate question might prove disastrous for the accused if allowed to be asked or answered, or it might simply be unfair to the prosecution to permit an irrelevant or inappropriate question to be asked. As inconvenient as it often is, it may be necessary to ask the jury to retire while the judge considers whether the proposed questions are admissible, and for that purpose the questioner will be asked to spell out what is intended to be asked. It is often preferable that the witness not be present during that process, but it is sometimes a matter of judgement as to whether it is necessary to remove the witness when considering whether to allow the question. To Hoser there was only one way to view such an incident:

"Throughout the case he gave prosecution witnesses an advantage by asking me in their presence what evidence I sought to get from them and what questions I sought to ask. From Neesham's and the prosecution's point of view this was designed to allow these witnesses time to think of the best answers they could give knowing in advance the answers I sought. When doing this, Neesham made sure that the jury was hurriedly shifted from the Courtroom so that they'd never know how he was actively aiding and abetting the prosecution witnesses".[72]

That review of the complaints, while not exhaustive, demonstrates how ready Hoser was, in his book, to attribute dishonourable motives to the judge, in circumstances where the reader would have had difficulty appreciating that there may have been deficiencies and omissions in the narrative which he was providing.

Notwithstanding his conviction, Hoser is perfectly entitled to maintain his innocence and to attempt to persuade others as to that. He is not, however, entitled to make false accusations that the trial judge corruptly engineered a miscarriage of justice in order to convict an innocent man. To an experienced criminal lawyer a mere reading of the 26 grounds of appeal is enough to indicate that there could be no possibility of them establishing an error of law. No doubt counsel for Hoser on the appeal made that assessment, and substituted grounds which were arguable. Hoser is very unhappy with the fact that his own grounds were not argued, but they were, in the main, merely particulars of the themes that he had been denied a fair trial by the trial judge and also argument about the weight which should have been attached to various items of evidence.

It is appropriate to refer to the judgment of the Court of Appeal when assessing his complaint that he had been denied a fair trial and that his books should be regarded as the writings of a man who had a justified sense of grievance. Even allowing for the fact that his own grounds of appeal were not argued the impression of unfairness can not stand against the statements of the Court of Appeal.

Counsel for Hoser sought to address a range of his complaints under three grounds of appeal, one of which was a complaint that Judge Neesham failed to maintain judicial control over the admission of evidence. The President of the Court of Appeal (with whom Brooking and Callaway JJA agreed) said this, at 541:

"This trial lasted for approximately a month. It generated nearly 2000 pages of transcript. Although I do not pretend to be familiar with the whole of that transcript, it would seem to me from such familiarity as I have gained that the learned judge was well alive to the difficulties faced by the applicant as an unrepresented person and also of the obligations which that circumstance imposed upon him to ensure that the applicant received a fair trial. On more than one occasion the learned judge referred to the difficulties which the applicant faced and reminded the jury that they needed to take account of those difficulties in assessing the evidence. It is also clear that his Honour was solicitous to ensure that where questions of law needed to be determined in the absence of the jury, the applicant was advised of that fact and that, where necessary, the questions should be determined in the absence of the jury. Where it appeared that the prosecutor was exceeding permissible limits in the questions which he asked, or their form, his Honour intervened to stifle the excesses. The fact that the only complaints made under this ground are the ones to which I have adverted tends to confirm the view which I have formed that his Honour did not fail in his obligations in the manner suggested by this ground of appeal."

EVALUATION OF THE EVIDENCE ON THE COUNTS OF CONTEMPT

Having regard to the principles of law discussed above I return to the passages which I have found establish a case to answer of contempt.

ANALYSIS OF PARTICULARS CONCERNING JUDGE NEESHAM

For the convenience of the reader I repeat the particulars:

[diamond] Particular (iii), page 260, in a Chapter titled, "A Hot Bed of Corruption":

"Perhaps most tellingly, he was one of those judges who had refused to allow me to have the case tape recorded, thereby effectively stamping him as a crook judge who wanted his activities never to be opened up to scrutiny. My initial judgements of Neesham as corrupt and dishonest were further proven during the course of the trial and its aftermath, much of which will be explained in the material which follows."

[diamond] Particular (iv), page 274, in a chapter titled, "Another Can of Worms":

"As soon as the trial proper commenced, Neesham's bias against me commenced in earnest and his desired result was clearly known. His whole modus operandi was to guide the jury towards a guilty verdict. Furthermore these actions were separate to others which also appeared to have been taken to ensure the jury's verdict was pre-determined."

[diamond] Particular (vii), page 329, in a chapter titled, "The Twenty Counts of Perjury":

"Of course Connell had been doing effectively what Neesham had told him. It was a classic case of bent judge improperly helping a prosecution witness."

Each of the passages asserts that Judge Neesham was biased in the conduct of the case, and in pursuit of a desired outcome for the prosecution, and dishonestly made rulings so as to ensure that the jury returned a false verdict of guilt in the perjury count.

In his report to the Court of Appeal Judge Neesham said that while at the outset of the trial he recollected Hoser having been before him previously on an unsuccessful appeal, he had no recollection of the details of the previous case. As to the suggestion that he might have been biased on account of that previous contact, his Honour said that possibility had not entered his mind.

At a glance

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Judgment (409 paragraphs)

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Cases Cited (23)