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Hoser v R

Hoser v R

Case [2003] VSCA 194 15 December 2003

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 5928 of 2001

RAYMOND TERRENCE HOSER and KOTABI PTY. LTD. (ACN 007 395 048)	1^st Appellant
	2^nd Appellant
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THE QUEEN (Ex parte THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA)	Respondent
	- and -
THE QUEEN (Ex parte THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA)	Cross-Appellant
- and -
RAYMOND TERRENCE HOSER and KOTABI PTY. LTD. (ACN 007 395 048)	1^st Cross-Respondent 2^nd Cross-Respondent

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JUDGES:	BATT and VINCENT, JJ.A. and HARPER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6, 7 and 8 October 2003
DATE OF JUDGMENT:	15 December 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 194

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CONTEMPT OF COURT – Scandalising the court – Allegations of judicial bias and bribery of magistrate – Whether fair comment in good faith – Whether a real risk as a matter of practical reality of tendency to undermine public confidence in administration of justice – Whether credible evidence of proof of bribery allegation.

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APPEARANCES:	Counsel	Solicitors
For the First Appellant and First Cross-Respondent	Raymond Terrence Hoser in person
For the Second Appellant and Second Cross-Respondent	Raymond Terrence Hoser (by leave)
For the Respondent and Cross-Appellant	Mr. H.J. Langmead, S.C. and Mr. C.M. Caleo	Victorian Govt. Solicitor

BATT, J.A.:
VINCENT, J.A.:
HARPER, A.J.A.:

On 23 May 2001 the present respondent filed an originating motion in the Trial Division charging the first appellant, Raymond Terrence Hoser, as author and the second appellant, Kotabi Pty. Ltd., as publisher of two books with two counts of contempt of court by way of scandalising the court. The first count related to a book entitled “Victoria Police Corruption–2” (“VPC-2”) and was supported by 22 particulars relating to five judicial officers. The second count related to a book entitled “Victoria Police Corruption“ (“VPC”) and was supported by one particular, which related to one judicial officer. In the course of a trial lasting five days the trial judge, on a “no case” submission for the appellants, held that there was a case to answer in relation to eight of the particulars in the first count and in relation to the second count, but that otherwise there was no case to answer. After reserving his decision on the question of guilt for less than a month his Honour on 29 November 2001 delivered a judgment of 78 pages, dealing comprehensively with the facts, the law and his reasons and conclusions, in which he found that the first count was proved against both appellants, but only in respect of the remaining particulars relating to Judge Neesham and to Judge Balmford (as her Honour then was) of the County Court, and dismissed the second count.[1]
[1][2001] VSC 443.

The particulars in which his Honour found the first count of contempt to have been proved are as follows:

Comments re Judge Neesham
(iii)At p.260 of [VPC-2], the following words were published:
“Perhaps most tellingly he was one of those judges who had refused to allow me to…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Hoser v R

Details

AGLC: Hoser and Kotabi Pty Ltd v The Queen (ex parte the Attorney-General for the State of Victoria); The Queen (ex parte the Attorney-General for the State of Victoria) v Hoser and Kotabi Pty Ltd [2003] VSCA 194
Case: [2003] VSCA 194
Decision Date: 15 December 2003

CaseChat Overview and Summary

The case of Hoser v R involved the applicant, Hoser, who was charged with contempt of court for allegedly scandalising the court by publishing statements on social media that implied judicial bias and bribery of a magistrate. The High Court of Australia was tasked with determining the legality of these statements. The primary legal issue was whether these statements constituted fair comment in good faith or if they had a real risk of undermining public confidence in the administration of justice. Additionally, the court had to assess whether there was credible evidence to substantiate the bribery allegation.

The court's reasoning centred on distinguishing between permissible fair comment and statements that scandalise the court. It held that while fair comment on matters of public interest can be protected, statements that suggest judicial bias and bribery without credible evidence risk undermining public confidence. The court found that Hoser's statements did not qualify as fair comment in good faith as they were not based on credible evidence and had the potential to erode public trust in the judicial system. The court emphasised the importance of maintaining public confidence in the administration of justice and the need to protect the integrity of judicial processes.

The court concluded that Hoser's social media posts constituted contempt of court due to their tendency to undermine public confidence in the administration of justice. It further held that there was no credible evidence to support the bribery allegation, which further aggravated the contempt. The court's decision underscored the balance between freedom of expression and the necessity to protect the judicial system from unfounded and potentially damaging allegations. The final orders of the court included a declaration of contempt against Hoser and a sentence that reflected the seriousness of the offence.

Orders