R v Hoser and Kotabi Pty Ltd

8. The Crown puts its case that on the first count the charge is made out whether the particulars are taken individually or collectively, and whether or not all of the particulars are held to be capable of constituting contempt.

11. The Crown has closed its case having tendered evidence by affidavit (including exhibits), and with one deponent having been cross examined.

14. Counsel for the defendants have now submitted that there is no case to answer on either count. In the course of his submissions, Mr Maxwell QC, senior counsel for the defendants, addressed each particular and contended that each was of itself, incapable of constituting the offence, and also submitted that collectively the publications particularised in the first count were incapable of supporting that charge.

17. On a no case submission the evidence must be taken by the defendants at its highest in favour of the prosecution. The court must, on that evidentiary basis, determine whether as a matter of law, the evidence taken at its highest is capable of supporting a conviction. In taking the evidence at its highest, that includes drawing in favour of the Crown any adverse inferences which may reasonably be drawn from the evidence, even if alternative inferences which would favour the defendants, might also be open to be drawn.

20. In other words, the question which I must now decide is not whether I should be satisfied beyond reasonable doubt that either offence has been proved. The question is whether on this evidence, the defendants could be convicted, not whether they should be convicted.

23. A no case submission raises a question of law, thus the weight of the evidence is not the relevant issue. It is not appropriate therefore, for me to engage in an assessment of the weight of evidence at this stage, nor of the strength of inferences which may be drawn.

26. The propositions, which I have just stated, as to the principles governing a no case submission, were accepted by counsel on both sides to be the appropriate principles to be applied: see May v O'Sullivan[1]; Attorney-General's Reference (No. 1 of 1983)[2]. To restate the overriding principle in terms used by Kitto J in Zanetti v Hill[3], the question is whether with respect to every element of the offence, there is some evidence which, if accepted, would either prove the element or enable its existence to be inferred.

29. Both Mr Maxwell and the Solicitor-General Mr Graham QC, made comprehensive and very helpful submissions on questions of fact and law on the no case application.

32. There was substantive agreement as to the principles of law which governed the question of what constitutes the offence of contempt by comments which scandalise the court, although there were some differences both in substance and in emphasis as to the elements of the offence.

35. On area on which there was substantial disagreement related to the question whether the implied constitutional freedom, discussed in Lange v Australian Broadcasting Commission[4], had application to the present case. I have concluded that it is unnecessary that I deal with that question for the purpose of this application, but it will be appropriate at a later date that I analyse the case law in some detail, as to that and other issues. It is unnecessary that I prolong this ruling for that purpose, however.

38. The offence of contempt which scandalises the court, was described in the following terms by Rich J in R v Dunbabin; ex parte Williams[5]. When speaking of interference's with the course of Justice, His Honour said,

"...But such interference's 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 lower 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 base 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."

42. That general principle is being discussed and developed in many decided cases. In identifying the relevant question as it would apply to a no case submission, I apply the principle stated in the joint judgment of the high court in Gallagher v Durack[6]. Thus, the question now is whether the evidence taken at its highest is capable of being regarded as scandalising the court, by virtue of the statements constituting a baseless attack on the integrity or impartiality of the judges and magistrates against whom the comments are directed.

45. There are generally recognised to be two categories of publications which scandalise the court, although they tend to overlap: See Borrie and Lowe, "The Law of Contempt", third edition at 340. In the first place, there are those which impugn the impartiality of the court - that being the category primarily identified by the Crown with respect to the paragraphs in the particulars. The second category relates to scurrilous abuse.

48. As to scurrilous abuse of a judge or magistrate constituting contempt by scandalising the court: See R v Gray[7]. 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, calling the judge or magistrate a liar, would be capable of constituting scurrilous abuse, see Borrie and Lowe at 343.

51. The exercise of the jurisdiction to punish for statements which scandalise the court is undertaken, not to assuage the personal feelings of the judge or magistrate, but to prevent undue interference with the administration of justice by undermining the confidence in and respect held by the community for the judicial system. The learned authors, Borrie and Lowe at 343 summarise the principle as being that abuse of a judge or magistrate amounts to contempt if it reflects upon his or her capacity as a judge or magistrate, but criticism of a judge's conduct so long as no aspersions are cast on the judge's character, do not amount to scurrilous abuse.

54. In Attorney-General of NSW v Mundey[8], 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.

57. In Ahnee & Ors v Director of Public Prosecutions[9], Lord Steyne 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.

60. For the purpose of the no case application, the issue is whether there is any evidence which is capable of proving those elements of the offence which have to be proved by the Crown. It was not contended before me that there was an absence of evidence as to formal matters, such as the fact that the first defendant was the author of the two books and that the second defendant was the publisher. Mr Maxwell, senior counsel for defendants, advanced his no case submission on broader grounds, in effect that, when taken in proper context, none of the particular published statements, either alone or together, were capable of constituting contempt as it was characterised by decided authority.

63. The submissions of Mr Maxwell, helpful as they were, ranged at times beyond the question which is at issue on a no case submission, and addressed the factual and legal considerations which would be appropriate to a submission at the close of both prosecution and defence cases, and which was directed to the question whether the offences had been proved beyond reasonable doubt. The distinction is important and must be kept in mind at all times when dealing with the no case submission. I will not, therefore, in dealing with this application, be addressing all of the matters raised by Mr Maxwell. There were, however, particular factors which he submitted were essential elements of the offence of contempt and which had not been proved. It is those matters to which I turn my attention.

66. Mr Maxwell submitted that it is an element of the offence, and one on which the Crown must have adduced some evidence for there to be a case to answer, that the published material had, as a matter of practical reality, a tendency to interfere with the due administration of justice. He cited John Fairfax & Sons Pty Ltd v McRae[10], in the joint judgment of the High Court. A closely related proposition (if it is not, in fact, merely an alternative way of stating the same proposition) which counsel also identified as an element of the offence was, he submitted, that there must be a real risk of prejudice to the due administration of justice rather than a remote possibility, if contempt was to be made out. As to that latter proposition, see the opinion of Lord Steyne, giving the judgment of the Judicial Committee of the Privy Council in Ahnee & Ors. v D.P.P[11].

69. In the passage of the John Fairfax v McRae case in which the court discussed the requirement of a practical reality in the tendency to interfere with the administration of justice, a distinction is drawn between technical contempts which the court chooses not to punish and instances of contempt where punishment is appropriate. That case was not concerned with an allegation of contempt by scandalising the court, but with the newspaper publication which was held by the trial judge to constitute contempt by having a tendency to interfere with a pending proceeding in a court.

72. The tendency to interfere with justice, with which the court was concerned, related to the risk that the fair trial of the defendant in the other court proceedings would have been compromised by the offending publication. That is a significant difference from the present case and so too is the fact that the John Fairfax v McRae case, was not concerned with the submission of no case to answer, but with determining whether contempt had been proved beyond reasonable doubt.

75. The case of Ahnee did, however, involve an allegation of contempt by scandalising the court but, once again, the case did not concern a no case submission, but, instead, was concerned with the question whether the case had been proved beyond reasonable doubt. Likewise the decision of Ellis J in Colina v Torney, unreported decision of the Family Court, delivered on 2 March 2000 on which counsel for the defendant placed considerable weight, was once again not a case concerning a no case submission, but concerned the question whether the charge had been proved beyond reasonable doubt.

78. The analysis of conduct alleged to constitute contempt requires a balancing of the competing considerations of the right of free speech - and, in particular, the right to comment in good faith on matters of public importance, including the administration of justice - on the one hand, against the necessity for the purpose of maintaining public confidence in the administration of justice, of ensuring that the institutions be protected against baseless attacks on the integrity and impartiality of judges and magistrates and against scandalous disparagement of those judges and magistrates: see Gallagher v Durack[12]

"It is that balancing process which must be undertaken when considering whether to exercise the jurisdiction to punish for contempt. That is an exercise which arises after it has been held, in the first place, that there is a case to answer."

82. Although the concept of technical contempts has been doubted to be now relevant, (see Borrie and Lowe 3rd Ed at 77-78) that debate has been conducted in the context where a publication had already been held to be capable of constituting contempt (see for example the discussion in Gallagher[13] and in John Fairfax v McRae[14]). Thus, what was under discussion as a technical contempt was a published statement which established or constituted a case to answer.

85. In Attorney General of NSW v John Fairfax & Sons & Bacon[15], McHugh JA with whom Glass JA and Samuels JA agreed, held that the distinction between punishable contempts and those which would not be punished should no longer be applied, and contempts which were not worthy of being punished should be regarded as not being contempts at all. The court held that the test is to whether a publication did constitute contempt should be that stated in John Fairfax v McRae, namely, whether as a matter of practical reality it had a tendency to interfere with the course of justice.

88. Once again I note that the decision of the NSW Court of Appeal, as was the case for the decision of the High Court in McRae, was concerned with the publication which dealt with pending court proceedings, and the issue was whether the publication had a tendency to interfere with the due conduct of those proceedings, and was not a case where the offence of scandalising the court was alleged.

91. In both cases, passages in the judgments make it clear that the fact that the contempt related to pending court proceedings was the focus for the discussion about the need to demonstrate that the interference with justice was a practical reality. Furthermore, the NSW case, once again, was not one where the question was whether a case to answer had been established.

94. I accept that in determining whether the offence has been proved beyond reasonable doubt as to any particular of contempt which is pleaded, the passage must be shown to have the real risk (whether by itself or in combination with other particulars) of interfering with the administration of justice in the way discussed, or, put in the alternative way, it must have the tendency to achieve that result as a matter of practical reality. The question, however, on a no case submission, is whether as to each of these particulars, separately or together, it is open on the evidence, taken at its highest and including all adverse inferences reasonably open to be drawn, to conclude that the particular is capable of constituting contempt. If it is open to so conclude, as a matter of practical reality, that there was a real risk, then there is a case to answer.

97. If as to any particular (even if it was taken in combination with others) it was not so open, then as to that particular the defendant would have no case to answer. Whether it should later be concluded that a particular which had been held to constitute a prima facie case of contempt was sufficient to prove contempt beyond reasonable doubt, would be the question which would fall to be answered at the conclusion of the case for the defence.

100. Mr Maxwell submitted that the Crown had failed to prove that the statements made in the publications were not true. No authority was cited to me which suggested that the Crown was obliged as part of its case to prove that the published assertions were untrue. As I have said, the essence of the offence is that the published statement has an inherent tendency to scandalise the court, and it is consistent with that principle that it is not a requirement that the Crown prove the allegations to be false. For the purpose of establishing a case to answer, the Crown need only establish a prima facie case that it is open to the tribunal of fact to conclude that the published statement does have an inherent tendency to undermine public confidence in the administration of justice.

103. Likewise, it is not an essential element for the Crown to produce evidence to prove that the public reputation or authority of the courts has been impaired by the publications. The court is required to decide for itself whether the published material has a tendency to that outcome, or as it is sometimes put, is calculated to produce that outcome: see Gallagher and Durack[16].

106. Mr Maxwell submitted that for there to be a case to answer for contempt, there must be an urgent danger of the administration of justice being undermined, and that delay in bringing these proceedings after publication of the books of which complaint is made, demonstrates that there is no such urgency. Furthermore, so counsel submitted, the statements must be regarded as being made in good faith and by an author who was aggrieved by the outcome of criminal proceedings in which he was unsuccessfully involved as an unrepresented accused. In that context there could be no urgent apprehension that the administration of justice will be, or has been undermined by publication, he submitted.

109. I am not persuaded that the question of urgency is one which constitutes a prerequisite for conduct to constitute contempt. Counsel referred to a passage in the joint judgment in Gallagher v Durack[17], but that does not, in my opinion, indicate that, as one element of the offence, the Crown must prove an urgent need for action. The court in that case was merely addressing the importance of there being an ability to take immediate action, when required, to protect the administration of justice. The court was discussing the continued relevance of there being a summary jurisdiction to punish such contempt. As their Honours made clear, they were there addressing what would be, without urgent action, a continuing risk to the reputation of the courts. They were not discussing whether the continuing contempt might cease to be such by the passage of time.

112. In the passages of the joint judgments in both Gallagher and Durack and John Fairfax v McRae, to which I have referred, it is quite clear (and the arguments of counsel in the former case were directed to the exercise of the summary power to punish) that the existence of a prima facie case of contempt was not in dispute. I accept that there could be instances where the passage of time between publication of the statements and the hearing of the charge was so great that of itself or in combination with other factors, it rendered the publication incapable of impairing public confidence in the courts. This is not such a case where the passage of time would mean that a prima facie case could not be established.

115. I accept, however, that the question of delay may be a relevant factor when considering whether the charge has been proved beyond reasonable doubt, and also when considering what, if any, punishment should be imposed for proven contempt, but those are not the questions I am now addressing.

118. I am also not persuaded that proof of good faith would mean that conduct which otherwise would have constituted contempt could not do so: see the Attorney General of NSW v John Fairfax & Sons & Bacon[18]. In any event, whilst the question of good faith is a relevant consideration in determining whether a charge of contempt had been proved beyond reasonable doubt[19] when taken at its highest the evidence relied on by the Crown would not demonstrate good faith, and, even if it did, that factor would not be decisive in determining whether the offence had been proved.

121. The question of the intention or purpose for publication is a relevant consideration in determining whether a case had been proved beyond reasonable doubt, but absence of good faith is not an essential element for the Crown to prove. The issue is whether there is an inherent tendency in the publication to interfere with public confidence in the administration of justice, not whether it was intended to do so. But even if that intention is a prerequisite, then it is open to conclude that the intention of the first defendant was, in fact, to lower public confidence in the administration of justice.

124. Insofar as I determine that there was a case to answer with respect to any publication identified in the particulars, I would then have to turn to the question whether, having regard to all of the evidence, including any evidence which might be called in the defence case, I was satisfied beyond reasonable doubt that the particular publication did constitute contempt. Either of itself or in combination with other particulars which I had ruled were capable of constituting contempt.

127. When regard is had to the difference between the legal question which is raised at the time of the no case submission and the question which is raised at the conclusion of all evidence, it may be seen that there would be nothing inconsistent with a judge or magistrate, when sitting alone, to find that there was a case to answer and yet not ultimately be satisfied beyond reasonable doubt, that the charge had been proved as to any particular, or as to some of the particulars.

130. Mr Maxwell dealt with each passage relied on by the Crown for the purpose of demonstrating that, in context, the passage constituted no more than a disappointed litigant railing against the decisions of the courts and against what he perceived to be the unfairness of decisions both procedural and substantive which went against him. He stressed that the passages related to criminal proceedings in which the defendant was unrepresented before the court and that that was not by choice. Having regard to the principles of law that I have discussed, I am persuaded that, in context, many of the passages, however insulting or offensive towards the court, are not capable being viewed as scandalising the court and of thus constituting contempt. There are, however, passages, which in my opinion, having regard to those principles of law concerning contempt, are capable of constituting contempt.

133. I turn, then, to the particulars, so as to identify those which I hold are capable of constituting the offence of contempt. Given that it will be my later task to decide whether those passages have been proved beyond reasonable doubt to constitute contempt, and that I must have regard to the evidence as it then stands and after considering further submissions, and given that I must then publish my reasons for decision, it is inappropriate that I do more now than broadly state why I am satisfied that there is a case to answer in those instances.

136. Lest there be any doubt, I make it clear that in deciding that there is no case to answer as to any of the following passages, I am not thereby accepting that there is any justification for, or validity in, the statements made in the passages. In most, if not all instances, the passages are arguably defamatory and constitute offensive and extravagant abuse, but they do not cross the line into the category of criminal contempt, in my opinion. But in reaching the decision as to whether there is a case to answer, far from concluding that the statements made in these passages are true, or they are complaints justified, I have proceeded on the basis that they are false and unjustified, but nonetheless they could not constitute the criminal offence of scandalising the court as it is recognised in the authorities to which I have referred.

139. As to those passages on which I rule that there is not a case to answer, I have concluded that, assuming that the readers exercise some common sense and do not abandon all critical faculties, that those passages would be incapable of impairing public confidence in the authority of the courts.

142. I will not delay this ruling by reading out the passages to which I will now refer. When I later revise my ruling for the purpose of publication, I may then insert some or all of the passages at that time.

145. Firstly, as to the particulars relating to Judge Neesham, I have concluded that as to the following passages, there is no case to answer. Particulars (i) at p.245; (ii) at 246; (v) at 280; particular (vi) at 304; (viii) at 350; particular (ix) at 353; (x) at 367; (xi) at 435.

148. The passages on which I find that there is a case to answer are particulars (iii) at 260; (iv) at 274; (vii) at 329. In those passages it is open to conclude the judge is accused of bias, corruption and of improperly seeking a conviction.

151. As to Chief Judge Waldron, in my view there is no case to answer as to any of the three particulars.

154. As to Judge Balmford, firstly as to item (i) at p.140, I find there is no case to answer. As to particulars (ii) at 142, and (iii) at 144, I find there is a case to answer. In those passages it is open to conclude that the judge is accused of deciding the case without regard to the evidence, and of bias. These are capable of constituting contempt. In the second passage, not only does it assert bias, but it states that three judges have held the judge to be biased in favour of the Director of Public Prosecution and police. It is open to conclude that that misrepresents the decision of the Court of Appeal.

157. As to Magistrate Heffey, there is no case to answer as to particulars (i) at 205 and (ii) at 207. As to particulars (iii) at 208 and (iv) at 212, there is a case to answer. The accusation that the magistrate had lied and or deliberately disregarded evidence is capable of constituting contempt. As to the second passage, the suggestion that a magistrate had decided to commit for trial without regard for any evidence called is capable of constituting contempt.

160. As to Magistrate Mr H F Adams, particular (i) (the back cover of the second book) is in my view capable of constituting contempt. One relevant factor in that conclusion is the reference to a "confession", which might be regarded as carrying an implication that there was a formal confession in some official way, or in court proceedings, which implicated the magistrate in corruption. As to count 2, which relates to book one and refers to p.57 and concerns Magistrate Adams again, the reference to a separate "matter" is capable of conveying (and, to be taken to do so deliberately) that an admission was made in the course of court proceedings whereby the magistrate was implicated in corruption. There is a case to answer on this count.

163. I conclude therefore that there is a case to answer as to both counts and as against both defendants, but only with respect to those particulars which I have just identified.

I certify that this and the 13 preceding pages are a true copy of the reasons for ruling of Eames J of the Supreme Court of Victoria delivered on 2001.

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[1] [1955] HCA 38; (1955) 92 CLR 654 at 658.

[3] [1962] HCA 62; (1962) 108 CLR 433, at 442.

[4] [1997] HCA 25; (1997) 189 CLR 520.

[5] [1935] HCA 34; (1935) 53 CLR 434 at 442.

[6] [1983] HCA 2; (1983) 152 CLR 238 at 243.

[10] [1955] HCA 12; (1955) 93 CLR 351 at 370.