Ahmed v Nationwide News Pty Ltd

[2010] NSWDC 183

CITATION:	Ahmed v Nationwide News Pty Ltd [2010] NSWDC 183
HEARING DATE(S):	20 August 2010
JUDGMENT DATE:	20 August 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Subject to order 2, application to strike out imputations (a) – (f) dismissed. (2) The plaintiff is to file and serve by 4 p.m. Wednesday 25 August 2010 an amended statement of claim pleading imputations (c) and (d) as alternatives. (3) The defendant is to pay the plaintiff’s costs. (4) Defence to the amended statement of claim to be filed and served by 4 p.m. Thursday 9 September 2010. (5) These proceedings to be listed for directions for the hearing of the consolidation motion and the Court’s own motion to dispense with the jury at a time convenient to the Defamation List Judge. (6) Note that the Notice of Motion is, at the request of the parties, technically part heard before Gibson DCJ but that any consolidation argument may not be brought for some time and the parties have liberty to apply before any other judge of this court as they see fit.
CATCHWORDS:	TORT - defamation - imputations - form and capacity
LEGISLATION CITED:	Defamation Act 2005 (NSW), s 21(3)
CASES CITED:	Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 Armitage v Double Bay Newspapers Pty Ltd (Supreme Court of New South Wales, Hunt J, 26 September 1991, unreported) Bleyer v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Hunt J, 7 June 1989) Briggs v Reid [2000] NSWSC 496 Charleston v News Group Newspapers [1995] 2 AC 65 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Ezzo v Grille [2004] NSWSC 670 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 Forrest v Askew [2007] WASC 161 Gascoine v McGinty (1995) 14 WAR 542 Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 Jackson v TCN Channel Nine Pty Ltd (Levine J, 17 October 1996, unreported) John Fairfax & Sons Pty Ltd v Blake [2001] 53 NSWLR 541 John Fairfax & Sons Pty Ltd v Foord (1988) 12 NSWLR 706 Ma Ching Kwan v John Fairfax Publications (New South Wales Court of Appeal, 30 July 1998, unreported) Mahommed v Channel Seven Sydney Pty Limited [2006] NSWCA 213 Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 McCormick v John Fairfax & Sons Pty Ltd (1989) 16 NSWLR 485 Medford v Nationwide News Pty Ltd [2007] WASC 52 Morris v Newcastle Newspapers (1985) 1 NSWLR 260 Piggins v Denton [2006] NSWSC 954 Trkjula v Google Australia Pty Ltd [2010] VSC 226 Trkulja v Yahoo! Inc & Anor [2010] VSC 215
PARTIES:	Plaintiff: Rafiq Ahmed Defendant: Nationwide News Pty Ltd
FILE NUMBER(S):	99482 of 2010
COUNSEL:	Plaintiff: Mr R Rasmussen Defendant: Mr D Sibtain
SOLICITORS:	Plaintiff: Juris Australia Defendant: Blake Dawson

Judgment

[1] The plaintiff brings proceedings for defamation for publication of an article in the “Daily Telegraph” on 8 November 2009 headed “Special report NSW police officers shamed in dealings on the dark side – Rogues gallery of corrupt cops”.

[2] The portion of the matter complained of which directly refers to the plaintiff is as follows. The plaintiff is shown in a photograph which identified him by name, with a caption “fraud squad officer involved in a mortgage scam”, followed by the sentence imposed. He is also referred to by name in paragraph 28 of the matter complained of as “a second fraud matter finalized this year” and as involving “a separate home-loan scam” to that of another detective, who is facing “an extraordinary 89 charges over an alleged mortgage-fraud racket”.

[3] The application before me today is an application to strike out all of the imputations pleaded by the plaintiff for reasons of form or lack of capacity.

[4] I should briefly mention the history of these proceedings and the other applications currently before the court. The plaintiff commenced these proceedings in the District Court at Parramatta, whilst commencing other proceedings, relating to an almost identical internet publications by another company, News Digital Media Pty Ltd, in the Sydney Registry of this court. On 4 June 2010 hearing dates of 18 June (for an imputations argument) and 25 June (for a consolidation application by the defendants in these proceedings) were listed for argument. These arguments did not take place on those dates, and the defendant’s applications were either not reached or adjourned by the court on 18 June, 25 June, 9 July and 13 August, when the matter was again stood over to 20 August 2010.

[5] On 9 July the orders of 18 June were varied so that the question of fixing a date for argument concerning whether or not the trial of this matter should proceed with a jury could be heard after the filing of a defence. Counsel for both parties told me that this was not an application made by either party, but by the defamation list judge on 9 July 2010, of his own motion. However, as counsel for both parties also pointed out, the defence cannot be filed until the imputations argument is heard, and at the request of counsel for both parties the motion was referred to me for an urgent hearing of the imputations argument today.

[6] As the other applications before the court are dependent upon my rulings on this application, but counsel for the parties are unavailable this afternoon for me to hand down an ex tempore judgment, I have arranged with the parties to provide my judgment by email as soon as possible after receipt of Mr Sibtain’s further written submissions this afternoon. It is not possible for me to list the matter to hand down judgment next week as I am on leave.

The defendant’s objections to the imputations

[7] The defendant challenges the form and/or capacity of each of the following imputations pleaded by the plaintiff as being conveyed by the matter complained of (which is annexed as a schedule to this judgment):

(a) The plaintiff is a rogue.
(b) The plaintiff is one of the most corrupt cops in NSW.
(c) The plaintiff was convicted of a home-loan mortgage scam.
(d) The plaintiff is guilty of a home-loan mortgage scam.
(e) The plaintiff had an improper association with criminals.
(f) The plaintiff engaged in corrupt activities.

[8] The correct approach by the court to considerations of form and capacity under the new regime set up by the Defamation Act 2005 (NSW) is explained in Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6. McColl JA notes at [13] that the principles enunciated by the High Court in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 should be a guide, given the change in the status of imputations in New South Wales from the cause of action to a particular of the claim. McColl JA also notes (at [17]) that requests to strike out imputations should be approached with “great caution” and that if reasonable minds might differ, that would be a strong, indeed perhaps insuperable, reason for not exercising the discretion to strike out.

[9] I shall deal with each of the imputations in turn.

Imputation (a) and use of the word “rogue”

[10] The objection to “rogue” in imputation (a) is an objection on the basis of form. The defendant submits that “rogue” is “productive of confusion”, in that it may convey anything from a mischievous disposition to dishonesty, and the precise sting of which the plaintiff complains should be clearly stated.

[11] The NSW Court of Appeal has now made it clear that using the word selected by the publisher is permissible as long as the use of the exact words does not “lead to any obscurity” (Mahommed v Channel Seven Sydney Pty Limited [2006] NSWCA 213 at [29] per McColl JA); John Fairfax & Sons Pty Ltd v Blake [2001] 53 NSWLR 541 per Hodgson JA (at [52] – [54]). This has been the law since Hutley JA explained in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 at 688C:

“Though a defendant is entitled to know the case he has to meet, it is strange to hear the suggestion that this defendant does not understand an imputation which is precisely in the words it has used, so that it is embarrassed in justifying it. This must mean it does not know what it is alleged an ordinary reasonable hearer would make of it.”

[12] I am not prepared to strike out the imputation merely because it repeats a word in the matter complained of. However, the fact that a word occurs in the matter complained of does not mean that the imputation containing it is conveyed.

[13] This brings me to the issue of capacity. The word “rogue” has many meanings, and when determining what meaning is conveyed in this publication, it is necessary to look at the phrase in which it is used (“rogues gallery”) and the context of the publication as a whole. In particular, it is important that this word appears in the heading, and is accompanied by photographs in a particular format.

[14] When determining issues of capacity in applications such as this, the court is often given, or asked to consult, dictionary definitions. The term “rogues gallery” is defined in Wikipedia as follows:

“A rogues gallery (or rogues' gallery) is a police collection of pictures or photographs of criminals and suspects kept for identification purposes. The term is also used figuratively by extension for any group of shady characters or the line-up of 'mugshot' photographs that might be displayed in the halls of a dormitory or workplace.” [Wikipedia, accessed 20 August 2010].

[15] I could find no prior example of a judicial determination about the word “rogue” being imprecise. In Bleyer v TCN Channel Nine Pty Ltd (Supreme Court of NSW, Hunt J, 7 June 1989) a plaintiff sought aggravated compensatory damages when counsel for the defendant called him “an unprincipled rogue” during the course of the hearing. The application was rejected, but this had nothing to do with linguistic imprecision.

[16] However, some assistance can be gained from a consideration of cases where an imputation is alleged to arise from a headline, in circumstances where the body of the text is either nonexistent (as occurred in Trkjula v Google Australia Pty Ltd [2010] VSC 226) or contradicted by the text of the publication (Charleston v News Group Newspapers [1995] 2 AC 65). It is readily apparent from this publication that the headline contents are repeated in the article, with the word “corruption” occurring a further six times, and a reference to officers being “lured to the dark side” appearing in paragraph 11. The text is a continuation of the allegations in the headline. It is the role of the text of the publication, which reinforces the headline, which gives the imputation colour: see the analysis by Kaye J of the role of the text of the article, under a headline “Melbourne Crime”, in Trkulja v Yahoo! Inc & Anor [2010] VSC 215.

[17] As to the issue of the need for precision in such circumstances, the correct approach was explained by Glass JA in Hepburn, supra, at 693C:

“I see no reason why the plaintiff should be compelled to define the sense in which the defendant employed a general expression. If the plaintiff is castigated as a criminal, criminality is predicated of him in all its amplitude. He is not faced with the need to choose between the lower end of the range which will moderate his damages and the upper end which, in the context of the publication, the jury may not accept. The defendant is expected to know what his language conveyed and that, in adopting an epithet with a spread of meanings, he will be understood as imputing them all.”

[18] This was explained by Gleeson CJ at CL in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 as follows:

“Furthermore, whilst the principles relevant to the plaintiff's obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong. The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances. If a defendant has posted in a public place a sign that simply says “X is disgusting”, the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter.”

[19] The pleader seeks to distil an imputation that the plaintiff is a rogue from a heading “rogues gallery of corrupt cops”, where the plaintiff’s photograph appears directly underneath. On the principles as set out above, this is an imputation which is both acceptable in form and capable of being conveyed, and I decline to strike out this imputation.

Imputation (b) and “Corrupt”

[20] The objection to this imputation is one of form (“corrupt”) and capacity.

[21] The word “corrupt” has been struck out of a number of imputations for the reasons explained by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 136:

“Allegations of corruption have, in recent years, provided a fruitful source of controversy in this area of defamation law and practice. As Hunt J pointed out in Whelan and elsewhere, the word “corrupt” can have significantly different shades of meaning. This does not make it unusual, but, because it is a word the use of which is apt to give rise to allegations of defamation, it seems to have come in for a high degree of forensic exegesis. Depending upon the context, for example, it can mean that a person takes bribes, or that he abuses power entrusted to him, or that he improperly obtains private benefits from a public position. The range of possible meanings of the word when used in connection with public officials in this State has been substantially expanded by the enactment of the Independent Commission Against Corruption Act 1988 which defines “corrupt conduct” in a manner that goes well beyond the ordinary meaning of that expression and is notable for its generality and vagueness.”

[22] In Drummoyne the matter complained of referred to the ICAC but otherwise did not identify the conduct asserted to be corrupt. Gleeson CJ explained that a very different example of an occasion where pleading the word corrupt would be permitted was where the word was actually used:

“A good example of the point just made is to be found in the decision of this Court in John Fairfax & Sons Ltd v Foord . Various imputations referring to particular kinds of corrupt conduct by a judge were held to have been proper imputations to leave to a jury. There was, however, also an imputation which simply asserted that the plaintiff was a corrupt judge. That imputation was said to have arisen from a newspaper billboard which read: “Govt's war on corrupt judges.” It was held that, in those circumstances, that also was a proper imputation to leave to the jury. Clarke J A, with whom Hope J A agreed, said (at 726):


“If the complaint is that the imputation as pleaded lacks clarity because the word ‘corrupt’ is ambiguous then that deficiency flows naturally from the material published. It was the defendant who used the word ‘corrupt’ and, provided that the respondent in an unqualified manner can satisfy the test on identification and there is no issue about that in these proceedings, then there can be no argument but that the poster is describing the respondent as a corrupt judge. I regard the appellant's submissions on this imputation as hopeless and it must, in my opinion, be submitted to the jury. I should say, in fairness to his Honour, that I do not understand him to be saying in his judgment that the defined meaning of the word ‘corrupt’ applies to this imputation.””

[23] In John Fairfax & Sons Pty Ltd v Foord (1988) 12 NSWLR 706, as in the present case, the word “corrupt” had been applied to the plaintiff in the headline (although in the present case, it is applied to a group of persons, of whom the plaintiff claims, by this imputation, to be one).

[24] This distinction has been noted and applied in a number of decisions concerning when the word “corrupt” is permissible; Piggins v Denton [2006] NSWSC 954 at [23] is but one example.

[25] This is clearly a case where a plaintiff is entitled to plead an imputation which contains the word “corrupt”. However, is such an imputation conveyed?

[26] The defendant submits that the description of the conduct of the other police officers is such that the conduct of the plaintiff “would be viewed as a minor infraction”, particularly since the notation under the heading records that no conviction was recorded for his involvement in a “mortgage scam”.

[27] The description of the plaintiff’s sentence in paragraph 28 of the article (which makes no reference to a conviction not having been recorded) occurs in the context of two dramatic headlines, a summary (paragraphs 3 – 6) describing these officers as “the most corrupt cops in New South Wales” and where the article complains (in paragraph 18) that despite the extraordinary number of corruption allegations, only nine people have been charged.

[28] When determining whether an imputation should go to the jury, and applying the test set out in Favell, I should exercise caution, for the reasons explained by McColl JA in Ahmed v John Fairfax Publications Pty Limited at [13]-[17].

[29] Whether the ordinary reasonable reader considers the plaintiff’s conduct as a “minor infraction” or accepts that he is one of the most corrupt police officers in NSW is a jury question, and I decline to strike out this imputation.

Imputations (c) and (d) – “convicted” and “guilty”

[30] Counsel for the plaintiff agreed with the objection that these imputations are very similar, but submitted that both imputations should remain with one as a fall-back or alternative to the other.

[31] The difficulty arises from the text under the caption, which says that the plaintiff was “sentenced in March with no conviction recorded and currently on a good behaviour bond”. In addition, there is a reference in paragraph 18 to an extraordinary number of corruption allegations, but that only five serving police officers were charged with such offences.

[32] Although fall-back or alternative imputations are more commonly found where one imputation is more serious than the other, it is also a suitable way to approach a situation such as the present, where the information given in the matter complained of is arguably giving conflicting messages – that the plaintiff had no conviction recorded for the mortgage scam, but that he was involved in a mortgage scam and given a sentence which includes a good behaviour bond. What the ordinary reasonable reader would make of a finding that the plaintiff was sentenced with “no conviction recorded”, and whether there would be a finding that he had been convicted, or that he was guilty but not convicted, is quintessentially a jury question and one which members of the jury, bringing with them their understanding of how ordinary reasonable readers who are members of our community would think, will be able to resolve at the trial.

[33] I decline to strike out these two imputations as not differing in substance, but I direct the plaintiff to amend his pleading so that imputation (d) is pleaded as an alternative to imputation (c).

Imputation (e) and “improper”

[34] The imputation that the plaintiff had “an improper association with criminals” is drawn directly from the matter complained of. The defendant’s objections are on the basis of both form and capacity.

[35] I shall deal first with the objection as to form, and to the use of the word “improper”. It is a principle of very long standing that a plaintiff may not use the word “improper” in an imputation, and counsel for the defendant referred me to some of the many decisions on this issue: Morris v Newcastle Newspapers (1985) 1 NSWLR 260; Armitage v Double Bay Newspapers Pty Ltd (Supreme Court of New South Wales, Hunt J, 26 September 1991, unreported); Jackson v TCN Channel Nine Pty Ltd (Levine J, 17 October 1996, unreported); Ma Ching Kwan v John Fairfax Publications (New South Wales Court of Appeal, 30 July 1998, unreported); Hayson v John FairfaxPublications Pty Ltd [2007] NSWSC 763. The use of the word "improper" in an imputation is objectionable unless the nature of the alleged impropriety is clear: Gascoine v McGinty (1995) 14 WAR 542; Forrest v Askew [2007] WASC 161 at [64] per Newnes J.

[36] However, the vice in each of these applications was that the selection of the word “improper” was a decision of the pleader, and not a word used in the matter complained of, as is the case here. The matter complained of states at paragraph 6 that these are the most corrupt cops in New South Wales, that “their names” appear in the Police Integrity Commission’s annual report, and that in this report, the issue of “improper associations between police and criminals tops the list of complaints” to the corruption watchdog. More information about these complaints of corruption occurs in paragraph 18, which is directly under the heading “corrupt cops” and close to the photograph of the plaintiff.

[37] Words such as “improper”, or “criminal” are words of great generality, and the publisher who uses them does so at the peril that the pleader of an imputation should not, for the reasons explained by Glass JA in Hepburn at 693C, be restricted to selecting one of those meanings. That is all the more the case in a publication where the allegations of corruption relate to conduct in a way that is very generally expressed. Whether the ordinary reasonable reader accepts the version of the matter complained of contended for by the defendant (namely that the plaintiff’s conduct is a mere peccadillo) or in the manner contended for by the plaintiff (namely that the plaintiff is one of the corrupt officers who are identified as having an improper association with criminals) will be an issue for the jury to determine.

[38] No argument was put to me that the imputation should have been pleaded to allow for the fact that this is a “class” libel of the corrupt police officers, as it is unlikely that all of them had improper associations with criminals: McCormick v John Fairfax & Sons Pty Ltd (1989) 16 NSWLR 485. Without wishing to express a concluded view on such a submission, I suspect the answer might be that the ordinary reasonable reader might assume that the persons photographed were the “worst cases”.

[39] I have added these remarks because a submission along these lines would normally have been made by a defendant. Counsel for both parties told me they had prepared this matter for argument several times but the case had been either adjourned or not reached. In such circumstances, it is possible to overlook a particular submission.

[40] I decline to strike out imputation 3(e).

Imputation (f) and “engaged in corrupt activities”

[41] The objections to this imputation are:

(a) the phrase “engaged in” is imprecise;
(b) the use of the word “corrupt”;
(c) if the reference is to his involvement in the “mortgage scam”, this imputation does not differ in substance from imputation 3(d).

[42] The objection to the phrase “engaged in” is that it is “self-evidently imprecise”. I was not referred to any decision in which any other judge had struck out imputations on the basis that “engaged in” is imprecise.

[43] The phrase “engaged in” is commonly used in imputations. In Ezzo v Grille [2004] NSWSC 670 at [6] Nicholas J permitted two imputations (one of suspicion of engaging, and one of engaging) in this form to go to the jury.

[44] Where the form of an imputation containing these words has been challenged, it has been for other reasons, and not because this phrase has been used. For example, in Medford v Nationwide News Pty Ltd [2007] WASC 52 at [32] the defendant (who is the same defendant in these proceedings) was unsuccessful (as to capacity) concerning an imputation that the plaintiff engaged in unlawful conduct by causing two of his companies to raise and manage funds without having the required ASIC licences to do so. In Briggs v Reid [2000] NSWSC 496 at [17] imputations of engaging in improper conduct were struck out, but this was because of the use of the word “improper” where a wide range of dishonest conduct was imputed to the plaintiff by the matter complained of. No objection was taken in any of these cases to the words “engaged in”.

[45] The phrase “engage in” is clear and simple English and I decline to strike it out. The real problem with this imputation is whether it is conveyed and, if it is, whether it does not differ in substance from imputation 3(d); in other words, whether all that is imputed to the plaintiff is the mortgage scam and, if so, whether this can amount to “corrupt activities”. This requires a careful analysis of the matter complained of.

[46] As well as the heading, the matter complained of describes the activities of the most corrupt cops in New South Wales in confusing terms, stating in paragraph 4 that they perform their duties while secretly committing dealing drugs, tipping off bikie gangs and accepting bribes, adding:

“Their names [sic], contained in the Police Integrity Commission’s annual report, provide an insight into the corruption and misconduct hidden in our police force” (paragraph 5).

[47] What is so special about their names is not explained. The reader is told, however, that almost 3,000 complaints were made in the past year (paragraph 16) and that despite the extraordinary number of corruption allegations only a small number had been charged (paragraph 18). The Professional Standards commander goes on to describe investigations into officers suspected of having fallen victim to “the temptation of corruption” (at 20) and stating that officers became susceptible to corruption and misconduct where there were “changes in their private lives” (at 24). This leads directly to the discussion of the two officers charged with a mortgage “racket” or “scam”, of which the second is the plaintiff, who is described as having been given a 12-month good behaviour bond “over a separate home-loan scam” (at 28).

[48] I have set all this out in some detail because after careful examination of these extracts, and their placement in the whole of the matter complained of, I consider it would be open to a jury to consider that the plaintiff was engaged in corrupt activities generally, and not simply in the mortgage scam. As reasonable minds may differ as to whether or not such an imputation may be conveyed (Favell v Queensland Newspapers Pty Ltd; Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254) I decline to strike out this imputation on the basis of capacity.

[49] I accordingly decline to strike out this imputation.

Other outstanding matters

[50] In the orders set out below, I have directed the plaintiff to file an amended Statement of Claim, but as the amendments are minor, there is no reason why the defendant should not be able to file its defence by 4 pm 9 September 2010.

[51] As has been indicated above, there are other outstanding applications which can now be dealt with. A form in the court file, dated 9 July 2010, directs the parties to “file and serve any evidence and submissions in response to the matters raised by the Court today in connection with the Court today in connection with the Court’s motion to consider whether the proceedings should be tried by a jury” and orders to this effect were made on 9 July 2010. I am informed by the parties that this step has been complied with. Subject to the filing of a defence, the Court’s motion in these proceedings is now able to be heard.

[52] I have placed the matter in the Defamation List on 10 September 2010 so that the judge conducting the list on that day can deal with the outstanding motions for consolidation as well as the application brought by this Court of its own motion to set aside the jury requisition pursuant to s 21(3) Defamation Act 2005 (NSW).

[53] The parties asked for liberty to restore this matter before me, and I have done so at their request, but this is a Defamation List matter, and motions should be dealt with by the Defamation List judge in that list, in accordance with Practice Note 6.

[54] Although I have not heard submissions as to costs, the plaintiff has been almost entirely successful, and is entitled to costs.

(1) Subject to order 2, application to strike out imputations (a) – (f) dismissed.
(2) The plaintiff is to file and serve by 4 p.m. Wednesday 25 August 2010 an amended statement of claim pleading imputations (c) and (d) as alternatives.
(3) The defendant is to pay the plaintiff’s costs.
(4) Defence to the amended statement of claim to be filed and served by 4 p.m. Thursday 9 September 2010.
(5) These proceedings to be listed for directions for the hearing of the consolidation motion and the Court’s own motion to dispense with the jury at a time convenient to the Defamation List Judge.
(6) Note that the Notice of Motion is, at the request of the parties, technically part heard before Gibson DCJ but that any consolidation argument may not be brought for some time and the parties have liberty to apply before any other judge of this court as they see fit.

Annexure – Matter complained of

Special report - NSW police officers shamed in dealings on the dark side

Rogues gallery of corrupt cops

· By police reporter Yoni Bashan

THEY'RE the most corrupt cops in NSW. They perform their duties while secretly dealing drugs, tipping off bikie gangs and accepting bribes.

Their names, contained in the Police Integrity Commission's annual report, provide an insight into the corruption and misconduct hidden in our police force.

The issue of improper associations between police and criminals tops the list of complaints to the PIC - the much-maligned agency regarded as the State's police corruption watchdog.

In one of the most alarming cases, a junior officer, whose identity is suppressed, leaked sensitive information to a bikie-gang member before a murder trial.

The trial was over the murder of Ashur Audisho, a 21-year-old Sydney DJ who was allegedly gunned down by Assyrian gang members at Fairfield Heights in April, 2006.

It was feared the information was being used to threaten witnesses preparing to give evidence at the trial of Audisho's killers.

The leak sparked a full-scale investigation that began in May last year. It resulted in the officer resigning in disgrace, but no charges were laid over the breach.

The case of Nathan McCulloch, 39, shows even long-serving officers can be lured to the “dark side'”.

The report, tabled in parliament last week, says the Tamworth senior constable with at least 15 years' experience was investigated as part of a secret PIC operation code-named Operation Oklahoma.

McCulloch was under scrutiny over his links with members of an outlaw bikie gang and claims that he imported anabolic steroids and sold them to fellow officers.

He and his wife, Elisa McCulloch, 40, also a Tamworth senior constable with 20 years' experience, pleaded guilty on June 19 this year to involvement in the drug ring.

Elisa McCulloch escaped conviction but her husband, who admitted to several charges of supplying and possessing steroidal agents, paid a hefty fine.

Almost 3000 complaints have been made to the PIC in the past year concerning activities including protecting drug dealers, bribery and sexual assault.

Unauthorised disclosures of information, as in the Audisho case, were the second-biggest problem with 174 complaints lodged, according to the report.

Despite the extraordinary number of corruption allegations, only nine people - five of them serving police officers - were charged in 2008 and 2009.

Senior police say the vast majority of officers uphold their oath to the community every day. Professional Standards commander Paul Carey said overt and covert investigations were conducted into police officers suspected of having fallen victim to the temptation of corruption.

He said he was encouraged by the fact that investigations often followed complaints made by serving officers against their colleagues.

“A lot of those investigations have grown out of information from our own audits or, particularly, from information provided by police officers, their peers or their supervisors who see the wrong thing is going on,” Mr Carey said.

He pointed to the uncovering of corrupt Liverpool detectives “LP1” and Nasser Battal, who allegedly stole and extorted money from tobacconists, as examples.

Mr Carey conceded officers of all rank and experience could become susceptible to corruption and misconduct, attributing the problem to changes in their private lives.

One detective, George Kahila, is facing an extraordinary 89 charges over an alleged mortgage-fraud racket in which hundreds of thousands of dollars were scammed from civilians.

The Merrylands man is alleged to have produced false tax returns and group-certificate documents over the past seven years in a bid to extract money from the ANZ bank and other financial institutions.

Kahila's case will return to court in December for mention.

A second fraud matter finalised this year involved specialist officer Rafiq Ahmed, a fraud squad detective who was given a 12-month good-behaviour bond over a separate home-loan scam.

In another case, Barry Blanchette, a senior police officer, was charged with theft and aggravated break and enter.

His case is awaiting a fitness hearing in the District Court.

Although The Sunday Telegraph was refused access to Blanchette's court files, it is understood his case relates to the alleged theft of gold bullion and jewellery from a robbery carried out in 2002.

Blanchette is the father of Andrew Blanchette, the high-school sweetheart of Caroline Byrne and a one-time suspect in her murder. He has denied any involvement.

- [picture] Nasser Battal: Alleged by LP1 to be the brains behind the ‘drug-rip’ scheme. Currently facing criminal charges in court.

- [picture] Rafiq Ahmed: Fraud squad officer involved in a mortgage scam. Sentenced in March with no conviction recorded and currently on a good behaviour bond.

- [picture] Christopher Laycock: Former detective accused of 20 corruption charges and currently facing trial.

- [picture] Christopher Walker: Corrupt former police officer who allegedly worked with Christopher Laycock to stage fake drug-buys and extort cash from dealers.

- [picture] Mark Joseph Smith: Denied receiving money from a police informant to purchase a false passport. Accused of lying to the Police Integrity Commission.

- [picture] LP1: Liverpool detective who extorted tobacconists with fellow cop Nasser Battal. LP1 turned witness and cannot be named. Currently facing criminal charges.

- [picture] Charged with misusing public office after allegedly leaking information to a witness and disseminating findings of a confidential report to the media.

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