Hoser v R

[2003] VSCA 194

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

- and -

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.:

1. 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.

1. 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 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 judgments 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 that follows.”

(iv)     At p.274 of [VPC-2], the following words were published:

“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 predetermined. 

(vii)     At p.329 of [VPC-2], the following words were published:

“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.”

Comments re Judge Balmford (as she then was)

(ii)At p.142 of [VPC-2], the following words were published:

“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.”

(iii)At p.144 of [VPC-2], the following words were published:

“Balmford’s bias in favor of Police and the DPP isn’t just something I’ve noted.  In fact three Supreme Court Judges have noted it as well.”

1. On 4 December his Honour received evidence and heard submissions in relation to penalty and costs and on 6 December he gave extemporary reasons for sentence and ordered that the first appellant be convicted of contempt and fined $3,000 and the second appellant convicted and fined $2,000.  He further ordered that the appellants pay the respondent’s costs taxed as between party and party and granted a stay of 3 months for payment of the fines.[2]

   [2]On 5 April 2002, the appeal and cross-appeal mentioned later having been instituted in the meantime, the Court of Appeal stayed the payment of fines and costs pending the hearing and determination of the appeal and reserved the costs of the application for that stay.

1. By notice of appeal served and filed on 20 December 2001 the appellants have appealed from the whole of the judgment given in the Trial Division on nine grounds, to which during the hearing of the appeal they were given leave to add a tenth ground, to the effect that his Honour erred in not accepting the tender of “the Bingley tape”.  

1. By notice of cross-appeal served, on one view, on 18 January 2002 and, on another, on 21 January 2002, and filed on 18 January 2002, and already held by this Court on an objection to competency to be within time, the respondent has cross-appealed against that part of his Honour’s decision which dismissed the second count of contempt.  By a notice of contention filed on 22 September 2003 the respondent has contended that the decision of the trial judge on the first count should be affirmed on an additional ground, namely, that the particular relating to Magistrate H. F. Adams has been proved against both appellants beyond reasonable doubt. 

1. The last-mentioned particular reads:

Comments re Magistrate H.F. Adams

(i)On the back inside cover of [VPC-2], the following words were published:

“The Magistrate that the cop said he paid off. 

Following the 1995 publication of Policeman Ross Bingley’s confession that he’d 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.”

The second count related to a passage referring to Mr. H.F. Adams at p.57 of [VPC],the following words were published:

“Magistrate Hugh Francis Adams. 

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 sent to jail.”

1. The respondent gave notice to the Attorneys-General of the Commonwealth, the other States and the internal Territories pursuant to s.78B of the Judiciary Act 1903 (C’th) of a constitutional matter that might arise under the Constitution or involve its interpretation, namely, whether, and to what extent, the law of contempt of court infringes the implied constitutional freedom of communication concerning political and government matters. No such Attorney-General desired to attend or make submissions.

1. The facts are set out in detail in the reasons of the trial judge.  Subject to some corrections of no great overall significance, discussed below, his Honour’s statement of the facts derived from a mass of material has not been shown to us to be incorrect.  There is no point in re-stating them here and, subject to the qualifications mentioned, reference should be made to his Honour’s reasons for the facts.  It may, however, be helpful to enumerate the legal proceedings that are of immediate relevance to the particulars that have been set out earlier.

1. In December 1988 the first appellant was tried in the Magistrates’ Court of Victoria before Magistrate Mr. H.F. Adams on one charge of theft and two charges of assault.  The informant was a policeman named Bingley.  The first appellant was convicted and fined in respect of the theft charge and sentenced to a month’s imprisonment on a charge of assault by kicking and fourteen days’ imprisonment, concurrent, on a charge of simple assault.  He was released on bail pending appeal.  The Crown did not oppose his appeal to the County Court against conviction and it was successful.

1. On 3 November 1993 the first appellant was convicted in the Magistrates’ Court of failing to comply with a traffic signal erected at an intersection in Coburg in that he drove his taxi through a red light.  He appealed from that conviction to the County Court and on 17 and 18 February 1994 his appeal was heard by her Honour Judge Balmford.  At the conclusion of evidence for the prosecution, the first appellant gave evidence on oath in the course of which he tendered a document which he said was advice which he had received in writing from VicRoads (the business name of Roads Corporation) that the traffic lights at that intersection were malfunctioning at the time of his alleged offence and were showing red in all directions.  He said that he had received the advice by fax on his home fax machine.  The prosecution sought and obtained an adjournment to make further inquiries and upon the resumption of the hearing led evidence that the document produced by the first appellant bore an internal reference number used by VicRoads to identify the intersection about which an inquiry had been made by a member of the public and to which the response related.  The reference number identified the intersection inquired about as that at King Street and Flinders Lane, Melbourne.  The first appellant’s appeal was ultimately dismissed by her Honour.

1. The first appellant was charged with perjury in relation to the document he had produced before her Honour.  He was committed for trial by Magistrate Heffey.  He was presented at the County Court at Melbourne on 4 September 1995 and tried before Judge Neesham and a jury.  The count of perjury was amended so as to allege only that he had falsely sworn that the letter which he had tendered before her Honour had been sent to him, by fax, from VicRoads.  The Crown led evidence from witnesses from VicRoads and from an expert from the State Forensic Science Laboratory to the effect that the document tendered by the first appellant 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.  The records of VicRoads disclosed no inquiry having been made by him concerning lights at the Coburg intersection.  On 4 October 1995 he was convicted of perjury and sentenced to six months’ imprisonment with two months of that sentence suspended for two years.  He applied for leave to appeal against conviction to the Court of Appeal and on 24 April 1997 the Court of Appeal dismissed that application.[3]  By leave he abandoned an application for leave to appeal against sentence.

   [3]R. v. Hoser [1998] 2 V.R. 535. Special leave to appeal was refused by the High Court on 16 February 2001. The judgment of Winneke, P. at 537 line 18 supports his Honour’s statement in para.[36] of his reasons that the document tendered by the first appellant purported to be in reply to a telephone enquiry by him, which statement Mr. Hoser in his outline mentioned later said was erroneous as the enquiry was by letter.

1. We turn now to the errors of fact that Mr. Hoser, who appeared in person and was permitted to appear for the second appellant, has persuaded us his Honour made.[4]  In paragraph [23] of his reasons the judge stated:

“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 fact, the first appellant had asked Judge Neesham to disqualify himself well before final addresses.  His Honour was therefore in error, but the error is not significant and does not invalidate his Honour’s statement that it did not appear that at the outset the first appellant objected to Judge Neesham presiding.  The first appellant claimed that that statement also was incorrect.  In support he cited a page from VPC-2 which states that he said to one McRae, apparently a clerk or Deputy Registrar in the County Court Registry, that Judge Neesham could not hear the case because of his previous adverse finding against him on an unsuccessful appeal by him to the County Court against his conviction and fine in the Magistrates’ Court for a parking infringement.  But the passage quoted from the trial judge’s reasons in the present case is clearly speaking of a complaint to the judge himself as soon as the matter was called on for hearing, and of that there is no evidence. The complaint by the first appellant that is now under consideration serves to exemplify a recurrent feature of his submissions:  whilst demonstrating a small point (here a relatively minor mistake by the judge), the first appellant alleges another mistake which is only true if the language used by the trial judge is taken in a sense quite other than that intended by him. 

[4]We omit discussion of a quite immaterial error, dealt with only briefly by Mr. Hoser, concerning the number of minutes of proceedings before Judge Balmford that were recorded. 

1. Secondly, in giving the background to and circumstances of the appellant’s trial for perjury, his Honour in paragraph [41] of his reasons stated that the appellant in his defence had called another taxi driver named Burke and added that the witness, Burke, “appears to be the same person who gave evidence for Hoser in his earlier Magistrates’ Court prosecution for assault which was heard by Magistrate Adams”.  The first appellant asserted, and counsel for the respondent accepted, that his Honour was in error in stating that Burke had given evidence in the assault proceeding in the Magistrates’ Court.  Any implication that Burke was a “rent-a-witness” is likewise not open.  But the erroneous sentence in his Honour’s reasons is really an aside and not central to the theme he was then pursuing, namely, a recitation of the history of the perjury trial.

1. Thirdly, in the course of his analysis of the first appellant’s complaint of out of hours contact between Judge Neesham and the prosecutor in the perjury trial, which was one of the factors the first appellant relied on as justification for his perception that the trial was unfair, his Honour stated that the allegation was based on the fact that when the prosecutor and judge, in open court, were referring to transcript of 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”. The expression which Judge Neesham used in two successive exchanges with the prosecutor was in fact “last night”. The denotation of the two expressions is not necessarily the same, though it may be. Mr. Hoser at p.32 of his outline of submissions noted his Honour’s misquotation. But he there sought to make much more of it, contending – and we strip his outline of its scurrility – that his Honour had put the expression “the other night” in quotation marks to imply, wrongly, that the first appellant had made the statement in VPC–2, when it had been stated as a fact by Judge Neesham and the prosecutor. This contention is quite erroneous: it is clear beyond peradventure that his Honour was purporting to quote what Judge Neesham had said, not what the first appellant had written in a book. The validity of the complaint that Judge Neesham and the prosecutor were meeting after hours about the perjury trial is, of course, to be assessed by reference to the correct version of the transcript, that is, the version recording Judge Neesham as referring to “last night”. But the complaint’s invalidity is shown by the report of Judge Neesham to the Court of Appeal hearing the perjury appeal, the relevant portion of which is quoted by the trial judge in the present case at paragraph [116]. The fact that judges and counsel frequently refer to proceedings occurring during the latter part of the previous afternoon of hearing as taking place “last night”[5], taken with the inherent unlikelihood of the out of court conduct suggested and of the judge’s mentioning it in open court if it had occurred, would in any event lead to the conclusion that the complaint was misconceived. 

   [5]Something which the first appellant at p.449 of VPC-2 recognised as possible. 

1. We add that, whilst they neither were in evidence before the trial judge here nor are “fresh evidence” and so perhaps cannot be used despite Mr. Hoser’s non-objection[6], the portions of the transcript of the perjury trial that were downloaded by counsel for the respondent from Mr. Hoser’s website and marked as exhibit “A” confirm the view we have otherwise reached that Judge Neesham by his references to “last night” was referring to discussion on the previous day of hearing.  The transcript[7] shows that Judge Neesham’s references to “last night” occurred in the afternoon of Monday 2 October 1995 during a break in his Honour’s charge when the prosecutor queried the judge’s correction of the first appellant’s statement[8] during his final address to the jury that the prosecution witness Weegberg, an officer of VicRoads, had not received any enquiry concerning the traffic lights at the Coburg intersection.  The transcript for Friday 29 September 1995, being obviously the previous day of hearing, shows that, in the absence of the jury, his Honour said[9], “I think both of you, or certainly you, Mr. Hoser, referred to the fact that Mr. Weegberg said there was no record of any complaint on the night of 8 March” and further said[10], “I cannot find any such reference in Mr. Weegberg’s evidence.  You [i.e. Mr. Hoser] may have done yourself an injustice in that respect.”  That occurred shortly before 3.24 p.m.  Thus, although his Honour’s recollection of having asked the prosecutor about the topic was not entirely accurate in that his remarks on 29 September were addressed primarily to the first appellant, it is clear that his Honour had on the afternoon of the previous day of hearing asked questions about the topic in open court.

   [6]The marking of the portions of the transcript as an exhibit may, however, be justifiable under R.64.22(3) of Ch.I of the Rules of Court as the material is not contentious:  Attorney General (Cth) v. Foster (1999) 84 F.C.R. 582 at 592-3. Mr. Hoser in correspondence with the Registry invited the Court to visit his website and indeed at p.3 of his outline mentioned later impliedly invited the Court to do so for the purpose of accessing the transcript of the trial before Judge Neesham. It may also be that, where contempt in the form of scandalising the court is concerned, this Court is entitled to have the matter fully explored. Compare Meek v. Fleming [1961] 2 Q.B. 366 at 378-9, 381 and 383, where further evidence was admitted to prevent a miscarriage of justice. But we shall treat the material as strictly not in evidence.

   [7]At T1675.

   [8]To be found at T1530.

   [9]At T1543.

   [10]At T1544.

1. As with the facts, so his Honour’s exposition of the law may be accepted and need not be set out again, especially because the respondent accepted for the purposes of the appeal and cross-appeal his Honour’s conclusions, favourable to the appellants, that truth and fair comment are available as “defences” to a charge of contempt.  We merely add the non-definitive description by Mason, C.J. in Nationwide News Pty. Ltd. v. Wills[11] of scandalising the court as consisting of “any act done or writing published which is calculated to bring a court or a judge of the court into contempt or to lower his or her authority”.

   [11](1992) 177 C.L.R. 1 at 31-32.

1. Mr. Hoser filed an outline of submissions of 67 closely typed pages and after the luncheon adjournment on the second day of the hearing of the appeal handed up 22 more pages of closely typed further submissions.  In addition, he addressed the Court on the appeal and cross-appeal proper[12] for almost an hour more than a full day, exclusive of his address in reply. 

   [12]The time from the commencement of the hearing at 2.15 p.m. until 12.30 p.m. on the following day, including some extra sitting time, was spent on numerous applications of a preliminary nature by the appellants, which were ruled upon at the time.  

1. The insistent thesis and principal submission in Mr. Hoser’s written and oral argument was that he had at all times acted in good faith, so that, his comments being, it was submitted, fair, the defence of fair comment was made out and accordingly no contempt was committed by either appellant.[13]  Mr. Hoser submitted that he had taken all reasonable steps to ensure the accuracy and truth of statements in each of the passages the subject of the appeal and cross-appeal, being those set out in paragraphs [2] and [6] above.  His criticisms were based on fact, and were very reasonable and sound, he contended orally.  He relied on general statements, qualifications and cross-references to earlier books he had written at, for instance, pp.iv, xii, and 18 of VPC-2[14].  The trial judge declined to find that there was good faith on the part of the appellants in respect of any of those passages, but, rather, found a lack of good faith in each case, expressly finding malice in the case of several at least.[15]  It is sufficient for us to say that we entirely agree with his Honour’s conclusion and adopt his reasons as our own.  But, at least so far as the statements concerning Judge Neesham and Judge Balmford are concerned, additional material coming to light during the hearing of the appeal confirms beyond a shadow of doubt, in our opinion, the view as to the correctness of his Honour’s conclusion to which we have otherwise come.

   [13]In his reply Mr. Hoser said that his “overall defence” was truth, alternatively good faith.  But truth was not taken as a defence below and, apart from other difficulties, cannot be taken now, especially in reply. 

   [14]Significantly, page 17, where Mr. Hoser cited the definition of “corrupt” referred to later in these reasons, speaks of “the equally corrupt legal system” (scil., equally with the police force), which “includes Judges, Magistrates…”.

   [15]It is clear from his Honour’s reasons on penalty and costs (at F81) that he found malice in all cases where he found contempt.

1. The first additional material relates to Judge Neesham and consists of the transcript of proceedings in the perjury trial before his Honour on Friday 29 September 1995 as cited in paragraph [15] above[16].  In VPC-2 the first appellant, having quoted from the transcript of the proceedings for Monday 2 October 1995[17], wrote at pp.448-449:

“I waited in the city until 6 pm so that I could collect a copy of the transcript from the Victorian Government Reporting Service offices in nearby Queen Street.  Sure enough, they’d managed to record that part correctly.

That was step one.

Step two was checking the previous day’s transcripts to see if there had been relevant discussion about Weegberg’s evidence in line with what Perry and Neesham had just discussed.  If there was, then the ‘last night’ could simply have been a slip of the tongue to describe the previous day’s evidence.  The fact was that there was none.

Thus in their conversation Neesham and Perry had together let a cat out of the bag. They had spoken about the case in my absence overnight!”

Thus, the first appellant asserted as a fact that there was no “relevant discussion about Weegberg’s evidence” in the “previous day’s transcripts”.  In our opinion, in the transcript of 29 September there was “relevant discussion about Weegberg’s evidence”.  To be more precise, there was questioning by Judge Neesham about Weegberg’s evidence, albeit that it was directed principally to the first appellant rather than the prosecutor.  When the terms of the transcript of 29 September 1995 were drawn to his attention by the Bench, Mr. Hoser answered (as the Court noted it), “I see what’s shown.  I assume we considered [the] previous night was a Sunday.”  He was then asked why, in that case, he bothered to check the Sunday’s transcript, of which, by hypothesis, there was none.  He gave no satisfactory answer.  Clearly, “the previous day’s transcripts”, which the first appellant, in the passage quoted from VPC-2, asserted were checked, were intended to be understood as those of the previous hearing day.  In the foregoing circumstances, the statement that there was (scil. in them) none, that is, no relevant discussion about Weegberg’s evidence, not only is false but evidences a lack of good faith on the appellants’ part.  This is so, though for differing reasons, whether the transcript of 29 September was or was not checked by the first appellant.

[16]As to which, see fn.6 above.

[17]Referred to in para.[15] above.

1. To the foregoing may be added that even after the transcript of 29 September 1995 had been tendered, though before the Bench had discussed it with him, Mr. Hoser submitted that the passage quoted above from VPC-2, along with pp.519-521, showed good faith on his part.  Further, even after that discussion he maintained that two statements of Judge Neesham “wiped out any innocent explanation”.  They were his Honour’s reference to questions “last night” (the very thing to be explained) and the statement in his Honour’s report to the Court of Appeal that, “There is no truth in the allegation made [scil., of discussions in the absence of the first appellant], nor any basis for it.”  Mr. Hoser’s point about the second statement was that his Honour’s reference to questions “last night” was a basis for the allegation, so that the statement in the report was itself “baseless”.[18]  But that is to play with words, for in its context the reference to “last night” is a reference to the afternoon of the previous hearing day, the transcript of which shows as a matter of substance that the questions to which the judge was referring had been asked by him in open court. Therefore, when Judge Neesham’s words of 2 October 1995 are properly understood and their substantial accuracy confirmed, there was no basis for the allegation of out of court discussion with the prosecutor alone.  These matters at the least do not assist to show good faith in the publication of the passages about Judge Neesham. 

   [18]A contention advanced earlier in his outline at pp.32-34.

1. The second piece of further material concerns the second particular relating to Judge Balmford, especially the portion of it that states that three Supreme Court judges had noted it (that is, her Honour’s alleged bias in favour of police and the D.P.P.) as well.  The passage was dealt with in detail by the trial judge in paragraphs [148] to [156] of his reasons in terms with which we are in full agreement.  The first appellant told his Honour that he believed that he must have been told by a court journalist that reported the decision in the media that the judgments of the Court of Appeal in R. v. De Marco[19] spoke of “bias”, or else he may have read that in a newspaper report of the decision.  In view of his sworn claim to have taken all reasonable steps to ensure the accuracy and truth of the statements made in the books and of any material relied on, Mr. Hoser was pressed by the Bench to indicate the source of his statement that three Supreme Court judges had noted her Honour’s alleged bias, for no reference to bias appears in their judgments.  After a brief adjournment Mr. Hoser handed up as the source of his statement a press clipping from the Herald-Sun of 28 June 1997[20] apparently down-loaded from his extensive data base.  So far as material, it stated merely that the three judges of the Court of Appeal had ruled that her Honour “misdirected the jury about how it should treat evidence said to show a consciousness of guilt by the accused”.  As this Court indicated during the hearing, that clipping did not show a noting by the Court of Appeal of bias on her Honour’s part nor did it evidence good faith on the part of the appellants, but rather the reverse.  When asked where he could be seen to have taken all reasonable steps to ensure the accuracy of the statement referring to the Court of Appeal, Mr. Hoser answered that, to his view, it was sufficient to check with the journalist.  But the journalist’s article in no way supported the statement later published in the book.  Despite the terms of the Court of Appeal’s judgments and the terms of the newspaper article on which he said he had relied, Mr. Hoser, compounding the matter, informed the court that he did not concede that he was wrong as to the Court of Appeal’s having noted bias on her Honour’s part, though he did accept, he said, that his wording could have been better especially in the last sentence. 

   [19]Unreported, Court of Appeal (Winneke, P., Tadgell and Charles, JJ.A.), 26 June 1997.

   [20]Mr. Hoser referred to this document at p.43 of his outline of submissions, saying that it was the sole source of the De Marco information and that his text was effectively a rehash of the article – “No more, no less.”  At p.62 he asserted that the clipping had been accurately interpreted.  Despite Mr. Hoser’s own reference to the clipping we shall treat it as strictly not in evidence. 

1. On p.45 of his outline of submissions, written before he was asked as to the source of his statement, Mr. Hoser stated that there was not a factual error in relation to his account of the De Marco case.  He also said that on 23 September 2003 he had a brief look at the judgment in R. v. De Marco[21], a decision described, correctly, as given on 24 May 1999 by Phillips, C.J. and Phillips and Buchanan, JJ.A., posted on the web site.  That, however, was the decision on the unsuccessful appeal from the re-trial of the accused presided over by a male judge.  There was a ground about lies, but it failed.  Nevertheless, according to his outline Mr. Hoser managed to read it as though it were the decision on appeal from the first trial presided over by her Honour and as entitling him still to maintain that the central claim concerning the Court of Appeal’s view was correct even though the word “bias” did not appear in the judgments.  Again, that provides confirmation for our conclusion that his Honour was correct in finding an absence of good faith in the publishing of the statements about Judge Balmford.  It is true that towards the end of his oral argument on this topic Mr. Hoser said that his statement that he had since read (the relevant) R. v. de Marco was wrong:  he had read the 1999 decision.  But he did not concede that he was wrong about Judge Balmford though he conceded that that was possible. 

   [21][1999] VSCA 69.

1. We turn now to the specific grounds of appeal.  Since the outline and supplementary outline are not organised by reference to the grounds, we largely leave them for later.  During the hearing the Court gave the appellants leave to add a tenth ground.  The grounds now read:

1.The learned Judge erred in law in concluding that the appellants had not made out the defence of fair comment.

2.The learned Judge erred in concluding that the first appellant (“Hoser”) had not acted in good faith.

3.Having found that-

(a)there had been no appreciable damage to the Court system in the two years since the publication of the statements relating to Judge Neesham and Judge Balmford; and

(b)it was not possible to assess whether the attitude of individual readers towards the Court system would have been adversely affected by reading those statements,

it was not open to the Court, as a matter of law, to find that there was-

“a real risk...as a matter of practical reality”

that the statements had a tendency to undermine the confidence of the public in the administration of justice or to lower the authority of the Courts.

4.The learned Judge failed to take into account relevant considerations, namely-

(a)the importance to the community of vigorous and open discussion concerning the administration of justice and perceived deficiencies therein, including relevant free speech considerations;

(b)the public interest in the existence, and the exercise, of the right of members of the public to criticise publicly the acts of judges and magistrates in the performance of their duties as such;

(c)the unchallenged sworn evidence of Hoser that-

(i)to the best of his knowledge at the time of publication, the statements of fact contained in the relevant books were true; and

(ii)the views, opinions and beliefs expressed by him in the relevant publications were held by him at the time of publication;

(iii)it was no part of his purpose in writing the relevant books to harm the administration of justice;

(iv)his purpose in writing the relevant books was to highlight what he perceived to be wrongs in the justice system and in the conduct of police, as the first step towards rectifying those deficiencies and ultimately strengthening public faith and trust in the criminal justice system;

(v)and other matters, which showed good faith on the part of the plaintiffs and other relevant considerations.

5.The Court having identified several areas in which the publication of the relevant books had highlighted matters of legitimate concern, in particular regarding-

(a)the inappropriate conduct of the prosecutor in Hoser’s perjury trial, and the anxiety and unfairness which such conduct would be likely to create in an unrepresented person in Hoser’s position;

(b)the inherent tendency of the phrase “A criminal trial is not a search for the truth” – used by the Judge in that trial – to create the sort of misunderstanding expressed by Hoser, namely, that in determining the issues the jury are engaged in an exercise in which truth does not matter;

(c)the importance of having all proceedings tape-recorded;

(d)adverse finding by a higher court of bias against a magistrate named in the same manner in an earlier book, and

(e)the erroneous basis on which Hoser’s application for legal aid has been rejected,

it was not open to the Court, as a matter of law, to find that [Hoser] was acting maliciously and with the intention of lowering the authority of the courts.

6.The learned Judge took into account an irrelevant consideration, namely, his Honour’s own view of the likely effect on Hoser’s perjury trial of the exclusion of critical evidence favourable to Hoser, and/or other matters.

7.The learned judge made readily identifiable errors in finding of fact and inferences that were not open to him, either absolutely (i.e., demonstrably false on the evidence before him) and/or in likelihood (so unlikely as to be improbable), which either individually or cumulatively led to one or more adverse findings against the appellants.

8.The learned judge made other errors of consideration in judgment, including a potential relitigation of a prior conviction, without the evidence before him, the possibility of the trial being a defacto defamation case and/or in lieu of one and other matters.

9.The learned Judge erred in law in holding that the appellants, as defendants to a criminal prosecution–

(a)should, on conviction, pay the respondent’s costs of the proceeding; and

(b)should pay those costs in full notwithstanding that the prosecution had substantially failed, in that the Court-

(i)found that there was no case to answer with respect to 14 of the 23 passages complained of; and

(ii)dismissed the charges with respect to four of the remaining nine passages complained of.

10.His Honour erred in not accepting the tender of the Bingley tape. 

1. Grounds 1, 2, 4 and 5 relate to the judge’s conclusion that the appellants had not made out the “defence” of fair comment and in particular his conclusion that they had not acted in good faith.  The substance of the challenge to his Honour’s conclusions is contained in grounds 4 and 5.  As to ground 4, it is unnecessary to consider the relevance to his Honour’s above-mentioned conclusions of the considerations listed in the ground or the consequences that would flow from a failure to take them into account, for the reasons for judgment show that, in fact, the trial judge considered each of the matters identified.  The policy considerations identified in sub-paragraphs (a) and (b) figure prominently, as the respondent submitted, in numerous paragraphs[22] of the judge’s reasons, either as part of his consideration of the facts of the case or as the subject matter of passages quoted from previous decisions.  With regard to sub-paragraph (c) of the ground, his Honour clearly had regard to the evidence referred to.  He set out in full the relevant paragraphs of the first appellant’s affidavit in paragraph [59] of his reasons.  He expressly referred[23] to the submission made for the appellants that the absence in cross-examination of the first appellant of any direct challenge to the assertions made in those paragraphs meant that the respondent was obliged to accept the truth of what was there asserted.  His Honour rejected that submission on the basis that the respondent’s conduct of the case left no doubt that the first appellant’s assertions as to his integrity and good faith were subject to serious challenge.  The judge, then, did take into account the considerations listed in ground 4.  That he found against the appellants does not mean that he did not do so. 

   [22]Such as paras. [50], [51], [68], [69], [71], [78], [79] and[84].

   [23]At para.[61].

1. It may be that the concluding words of paragraph (a) of this ground, “including relevant free speech considerations”, are apt to assert that the constitutionally implied freedom of communication established in Lange v. Australian Broadcasting Corporation[24] is a relevant consideration.  There were, however, only passing references to the topic in Mr. Hoser’s outline[25] and supplementary outline[26] and in his address he dealt with it only in his commentary on the respondent’s outline.  In any case, his Honour did take the topic into consideration in paragraphs [86] to [90] of his reasons.  Not only did he do that, but he rejected the submission for the present appellants that the implied freedom of communication prevailed over the principles of the law of contempt or, to put the matter another way, rejected the view that the latter principles infringed the implied freedom of communication.  We agree with what his Honour wrote in the paragraphs last cited.  (We take his Honour to have agreed, as we do, with the Solicitor-General’s contentions summarised in paragraph [88] and to have concluded that the principles of contempt in the form of scandalising the court satisfied the two-limbed test for validity quoted in paragraph [87], assuming it to be applicable.)  There is in any event a real question whether the publication of matters about judges and magistrates is a communication concerning “political or government matters”[27] within the principle in Lange.  Reference may be made to the cases cited by the trial judge in paragraph [88] of his reasons and to Herald & Weekly Times Ltd. and Bolt v. Popovic[28].  Moreover, the constitutional immunity is defeated if the communication is actuated by ill will or malice[29], as his Honour found was the case.[30]

   [24](1997) 189 C.L.R. 520.

   [25]At pp.58 and 60.

   [26]At p.11.

   [27]Lange at 560, for example. Elsewhere the adjectives are reversed, for instance at 568 and 571.

   [28][2003] VSCA 161 at paras.[6] and [9] (cf. para.[10]) per Winneke, A.C.J. and [503] to [508] per Warren, A.J.A., though Gillard, A.J.A. expressed a contrary provisional view at paras.[247] to [253].

   [29]Lange at 574.

   [30]Especially at AB-F81.

1. Ground 5 lacks logic:  the conclusion that his Honour was precluded, as a matter of law, from finding that the first appellant was acting maliciously and with the intention of lowering the authority of the court does not follow from the premiss that his Honour had identified several matters referred to in the two publications, and especially VPC-2, which were of legitimate concern.  His Honour’s conclusion that in respect of each passage the subject of the appeal and cross-appeal the appellants acted in bad faith was amply justified.  In part that conclusion was based on a consideration of the impugned passages and the context given by VPC-2 as a whole.[31]  In part, the conclusion rested upon the views formed by the judge in observing the first appellant while giving evidence.[32]  His Honour’s conclusion, so far as it was based on his observations of the first appellant, must stand unless it can be shown that as trial judge he failed to use or palpably misused his advantage or acted on evidence which was inconsistent with facts incontrovertibly established by the evidence or which was glaringly improbable.[33]  Neither basis is capable of being established here.

   [31]As indicated in para.[93] of his Honour’s reasons.

   [32]As, for instance, in para.[150] of his reasons.

   [33]Devries v. Australian National Railways Commission (1993) 177 C.L.R. 472 and cases there cited. See also Walsh v. Law Society(N.S.W.) (1999) 198 C.L.R. 73 at 92.

1. Ground 3 contends that in light of two findings he had made, it was not open to his Honour, as a matter of law, to find, as he did,[34] that there was “a real risk ... as a matter of practical reality” that the statements relating to Judge Neesham and Judge Balmford had a tendency to undermine the confidence of the public in the administration of justice and to lower the authority of the courts.  His Honour took the requirement that that had to be found for there to be a contempt from the statement in the judgment of four justices of the High Court in John Fairfax & Sons Pty. Ltd. v. McRae[35], a case concerning a publication said to have a tendency to interfere with a pending proceeding.  Both at first instance and on appeal the parties accepted that the statement from McRae was applicable to the present matter, and it is unnecessary to consider the effect of the words “in this particular class of case” with which their Honours in McRae introduced their statement that the summary jurisdiction was to be exercised only if the requirement under discussion was satisfied.  The two “findings” relied on by the appellants appear in paragraph [215] of his Honour’s reasons.  The short answer to this ground is that, as a matter of logic, they did not preclude his Honour from concluding that the requirement from McRae had been proved beyond reasonable doubt.  For, as Marks, J. stated in R. v. David Syme & Co. Ltd.[36], the tendency of the publication must be judged at the time of publication and is not determined by the fact that for some reason no harm has resulted.  There is no separate ground complaining otherwise about his Honour’s detailed consideration in paragraphs [204] to [236] of his reasons of the requirement from McRae and we see no reason to doubt the correctness of his Honour’s reasoning and conclusion about it, despite the appellants’ written submissions to the contrary. 

   [34]At para.237.

   [35](1955) 93 C.L.R. 351 at 370. Compare Hinch v. Attorney-General (Vic.) (1987) 164 C.L.R. 15 at 27-8, 34 and 47.

   [36][1982] V.R. 173 at 177.

1. By ground 6, as we understand it, the appellants contend that the trial judge erred in considering the effect upon the first appellant’s trial for perjury of the rejection by Judge Neesham of his tender of a tape recording which, in defiance of an express order of Judge Balmford, he had secretly made of his evidence in the appeal before her.  His Honour considered that aspect and other aspects of the perjury trial because they had been identified by or on behalf of the first appellant as demonstrating that he had a basis in fact for his belief that the judge had been biased in his conduct of the trial and because those contentions were relevant, his Honour considered, correctly in our opinion, to evaluating the first appellant’s claim of good faith and fair comment.  It became clear to his Honour in evaluating the contentions that, whatever the first appellant’s own perceptions, the allegation against Judge Neesham of bias in the conduct of the trial was without substance.[37]  It was perfectly proper for his Honour to investigate the principal grievances, including the rejection of the tape recording, and his Honour might well have erred had he not done so.

   [37]All this is explained in para.[104] of his Honour’s reasons.

1. Though not directly raised by ground 6, we mention that the trial judge in this case concluded, in essence, that the first appellant had not appreciated the gist of the charge against him, which was that he had sworn that the document Exhibit 1 before Judge Balmford was a genuine one sent to him by VicRoads, by fax, in response to a query about the intersection, whereas Exhibit 1 was, as he knew, not a document sent to him by VicRoads because it was the result of forgery by alteration of another document (Exhibit 2).  It was for this reason that it seemed to his Honour highly unlikely that the playing of the tape recording could have made the slightest difference to the first appellant’s prospects of defence to the charge.  Even if that were not correct, an erroneous rejection (if it were such) by Judge Neesham of tender of the tape does not show him to have been biased.

1. Ground 7 alleges readily identifiable errors on the part of the judge in findings of fact and inferences that were not open to him.  It does not, as it should in accordance with Rule 64.05(1) of Chapter I of the Rules of Court, specify those errors.  We have in paragraphs [12] to [14] identified the only factual errors which, doing the best we can with Mr. Hoser’s voluminous and somewhat intractable material, we are persuaded his Honour made, together with their consequences, if any.

1. Ground 8 appears to include a complaint that the trial judge re-tried the perjury case without having the evidence before him.  His Honour did not do that, but, as we have already stated, he was required by the grievances which the appellants ventilated, coupled with the defence of fair comment made in good faith, to consider aspects of the perjury trial.  There can be no valid criticism of that.  Ground 8 speaks of “other errors of consideration”, but, with the exception of the complaint just considered, they are not specified as they should be under Rule 64.05(1).  We are not able to comprehend the remainder of the ground.[38]  The heading to Point 28 in the appellants’ outline suggests it relates to ground 8.  Point 28 seems to include criticism of his Honour for making erroneous findings of fact and drawing improper inferences[39] in relation to the perjury trial without being fully apprised of the facts, but no point of significance appears to us to be made in it apart from reference to an error which we have considered much earlier in these reasons. 

   [38]There is an allegation at p.58 of the appellants’ outline (cf. p.21 of the supplementary outline) that his Honour treated the case as a de facto defamation case, but that is not so.

   [39]Compare Ground 7.

1. Ground 9 concerns his Honour’s order as to costs. If the appeal were to succeed, the order for costs would as of course be set aside along with the substantive order and an appropriate new order for costs below substituted. Accordingly, ground 9 is needed only if the substantive appeal fails. By R.75.14 the costs of an application for punishment for contempt are in the discretion of the Court, whether an order for committal is made or not. Since the costs were in the discretion of the Trial Division his Honour’s order as to them was, by reason of s.17A(1)(b) of the Supreme Court Act 1986, not subject to appeal except by leave.[40]  When this was drawn to Mr. Hoser’s attention, he made, without objection on behalf of the respondent, an oral application for leave.  He pointed out, correctly, that he had not disobeyed an order of the court or prejudiced the trial of a particular proceeding.  He submitted that the appellant should therefore not have to pay costs and that one reverted to what he called to the normal criminal position.  But it seems that the “normal criminal position”, whereby the Crown neither gives nor receives costs, is limited to trials on indictment or presentment and interlocutory hearings relating to such trials.[41]  Moreover the criminal jurisdiction of the court was not attracted.[42]  In any event, R.75.14, which is in the terms that were ratified, validated and approved by the Supreme Court (Rules of Procedure) Act 1986 and whose remaking in 1996 was authorised by s.25(1)(a) of the Supreme Court Act 1986, conferred a very wide discretion upon his Honour. The cases which the parties supplied to the Court after the hearing show, as one would expect, that there is no special principle or rule applicable to the costs of proceedings for contempt in the form of scandalising the court and also that, in such a case, respondents found guilty are not seldom ordered to pay costs. Ordinarily costs follow the event.[43]  Further, so far as the considerations referred to in paragraph (b) of ground 9 are concerned, a plaintiff or applicant who succeeds in some only of his or her claims will not infrequently be awarded the whole costs of the proceeding.  Finally, the matters relied on in paragraph (b) of ground 9[44] were taken into account by his Honour as the reason or main reason for awarding only party/party costs,[45] although he had stated[46] that the usual order where contempt was established was for costs on a solicitor/client basis.  It must also be borne in mind that his Honour moderated the fines he imposed by reference to the fact that he proposed to order costs against both the present appellants.

   [40]Etna v. Arif [1999] 2 V.R. 353 at para.[66].

   [41]Perkins v. County Court of Victoria (2002) 2 V.R. 246 esp. at para.[40].

   [42]Hinch v. Attorney-General (Vic.) (1987) 164 C.L.R. 15 at 89.

   [43]Hinch at 89-90.

   [44]As to these his Honour recognised at para.[164] that the appellants may have been fortunate in his “no case” rulings.

   [45]At AB-F87.

   [46]AB-F86.

1. His Honour’s order as to costs being discretionary and on a matter of practice and procedure[47] and no question of principle being raised, we are of the view that the discussion in the immediately preceding paragraph shows that the proposed appeal as to costs has insufficient prospects of success to warrant the grant of leave to appeal and accordingly the application is refused. 

   [47]Etna v. Arif at para.[67].

1. Ground 10 may bear more on the cross-appeal than the appeal.  In that character it may be treated as a ground of a notional notice of contention.  Counsel for the present appellants sought to tender at the trial the tape of the Bingley “confession” after the evidence had closed and submissions had been made.  His Honour accepted the submission[48] for the present respondent that there would be procedural unfairness to his client if the tender were accepted without the re-opening of the case, further cross-examination of the present first appellant and further submissions and that it was far too late to do that.  That was a discretionary decision by his Honour on a matter of practice and procedure.  We are clear that his Honour’s discretion did not miscarry.  Quite apart from that, however, the tape was not admissible as evidence of the truth of the statements recorded on it, for, as explained later in these reasons, Bingley’s out of court statement, even if confirmed on oath by the first appellant, was hearsay. 

   [48]At T522-523.

1. None of the grounds of appeal, therefore, succeeds.  More than one reference has already been made to the outline and supplementary outline of argument on behalf of the appellants.  The Court has read and considered these lengthy documents.  But, apart from passages already referred to and submissions in it that are covered by the grounds of appeal or oral argument considered already, the Court is of the opinion both that there is nothing of sufficient significance to warrant specific discussion in these already lengthy reasons and that the contents of the two documents do not show error on the part of the trial judge.  Some of the points raised, such as double jeopardy, parliamentary privilege and conflict of interest on the judge’s part, are outside the grounds of appeal and seem not to have been raised at the trial.  We would add that many of the contentions in the two documents display contorted reasoning, are ill-informed, fail to deal with a point of substance or assume that the three books contain nothing but indisputable facts.  Facts and events are made to fit the first appellant’s view that he was wrongly convicted, particularly of perjury, and, if that is not possible, evidence of them is treated as dishonest.  The outlines are replete with assertions of dishonesty, fabrication, hypocrisy and bias against the trial judge, thereby confirming, somewhat ironically, the concern which his Honour expressed in his reasons on penalty and costs[49] that the first appellant might continue to publish material in the sort of reckless manner that had brought him to court.  The Court is of the view, however, that in the circumstances we have explained, nothing is to be gained by descending into detail, whether by way of refutation or discussion.  In order, however, that the outline and supplementary outline may be available to any court which may hereafter require them we will direct that a sealed envelope containing a copy of both documents be placed on the court file. 

   [49]At AB-F84. 

1. In case we have not made it clear earlier we agree with the conclusion that his Honour reached[50] that the passages concerning Judge Neesham and those concerning Judge Balmford constituted scandalising the court.[51]  We have already stated that we agree with his Honour’s conclusion that there was a real risk that as a matter of practical reality those passages had a tendency to undermine the confidence of the public in the administration of justice and lower the authority of the courts[52] and with his conclusion that the “defence” of fair comment in good faith failed.[53]  Moreover, though we do not set the passages out in these reasons we agree with his Honour’s description, especially in paragraphs [96], [106], [107] and [214] of his reasons[54], of the first appellant and his mind set as revealed by the books and his evidence, and with his Honour’s characterisation of the instances of contempt as serious, baseless, malicious and self-interested in the reasons on penalty and costs.[55] 

   [50]At paras.[144] and [156].

   [51]Reference may also be made to the discussion in paras.[38] to [41] relating to the cross-appeal.

   [52]At para.[27] above.

   [53]At para.[18] above.

   [54]In para.[234] his Honour refers to hyperbole and fatuous argument by the first appellant.

   [55]At AB-F81, 82 and 83.

1. The appeal should be dismissed.

1. We now turn to the cross-appeal.  It was instituted by the respondent as cross-appellant (but to whom we shall continue to refer as "the respondent") by notice filed on 18 January 2002.  It is directed against that part of his Honour's judgment which dismissed the second count of contempt:  that is, the count which alleges that the appellants committed a contempt by asserting that a policeman (elsewhere identified as Ross Allen Bingley) admitted paying a bribe to a magistrate (Mr Hugh Adams) "to have an innocent man sentenced to jail."  There remained, however, that particular in the first count (Particular (i)) which referred to Mr Bingley by name as having confessed "that he paid off Hugh Francis Patrick Adams to fix a case".  That also having been found by his Honour not to be in contempt, the respondent on 22 September 2003 filed a notice of contention.  It asserted that his Honour "erred in finding that particular (i) of the first count of contempt, relating to allegations against Magistrate … Adams, had not been proved beyond reasonable doubt."  It then, in paragraphs 2 and 3, gave particulars of what it claimed to be errors of law.  These are an almost exact reproduction of the grounds of cross-appeal.  Save for the difference in the numbering of the paragraphs, and a presently irrelevant difference in wording, the grounds of cross-appeal and contention are as follows (we have for convenience adopted the numbering and the words of the grounds of cross-appeal):

"1.       The learned trial judge erred in law:

(a)in deciding that, in the circumstances of this case, an issue arose as to the truth of the allegation said to constitute contempt by scandalising the court referred to in the second count ('the said allegation');

(b)in deciding that there was evidence, alternatively admissible evidence, as to the truth of the said allegation;

(c)in deciding that, in the circumstances of this case, the Crown bore the onus of [proving] beyond reasonable doubt the falsity of the said allegation;

(d)in deciding that, even though the first appellant did not believe that the said allegation was true and even though the first appellant was recklessly indifferent as to whether the said allegation was true, an issue arose as to the truth of the said allegation;

(e)in acting on the basis that there was admissible evidence before him as to the contents of a tape recording of a conversation which allegedly took place between the first appellant and a police officer named Bingley in relation to Magistrate Hugh Francis Adams having received a bribe ('the said tape recording');

(f)in placing reliance upon the contents of the said tape recording;

(g)in placing reliance upon the Crown's decision not to contest the appeal of the first appellant against the decision of Magistrate Hugh Francis Adams, for the purpose of finding there to be some credible evidence as to the truth of the allegation made by the first appellant that Magistrate Hugh Francis Adams had received a bribe, in the absence of any evidence as to the reasons why the Crown did not contest that appeal;

(h)in failing to give any weight or any appropriate weight to the failure of the first appellant to tender the said tape recording;

(i)in failing to give any weight or any appropriate weight to the presumption of regularity in relation to the conduct of Magistrate Hugh Francis Adams in the circumstances in which he was alleged to have received a bribe.

2.There was no evidence or, alternatively no admissible evidence, upon which the trial judge could make a finding:

(a)that there was some credible evidence as to the truth of the allegation made by the first appellant that Magistrate Hugh Francis Adams had received a bribe;

(b)that the respondent had ever had in its possession a copy of the said tape recording;

(c)as to the contents of the said tape recording."

1. His Honour described as "profound" the slur which the appellants cast upon the magistrate.[56]  He was entirely right in doing so.  No holder of any office has a more important duty than the duty of a judicial officer to uphold the rule of law.  There can be no clearer breach of that duty than the acceptance of a bribe in return for the grant of a favour which, by virtue of the office, the judicial officer is, in the exercise of his or her authority, in a position to bestow.  Such behaviour should be exposed.  Those who indulge in it are totally unfit to sit in judgment upon others.

   [56]His Honour’s judgment, at para. [201].

1. It is vitally important, however, that due recognition be given to the obverse of this proposition.  For the very reason that the authority of the law rests on public confidence and that judicial corruption is so serious an offence, false accusations of its commission are "calculated" (that is, likely) to cause profound damage not only to the personal and professional life of the judicial officer against whom they are directed, but also, and more importantly, to the administration of justice itself.

1. By his conduct of this appeal, the first appellant appeared not to have any comprehension of this point.  He is quite wrong to suggest, as he does, that accusations of the kind he made against Mr Adams and the other relevant judicial officers are nothing more than assertions made in the ordinary exercise of the right to free speech;  and that the law should treat them as such.  On the contrary.  If an accusation of corruption in the judiciary is true, appropriate action to eradicate it  must be taken as a matter of the highest priority.  If, on the other hand, such an accusation is false, it is likewise important to deal appropriately with any who, in the absence of good faith, have made it.  Either way, the response must be very different from that to a mere assertion that a judicial officer is in error.  Intemperance is not necessarily to be encouraged;  but the appellant correctly drew our attention to the many occasions on which the courts themselves have, in powerful language, asserted the right of all to criticise, even in strong or intemperate terms, that which the critic asserts to be a mistaken exercise of judicial authority.

1. The distinction between, on the one hand, an allegation of judicial error and, on the other, an allegation of judicial corruption is therefore very important.  Critics of good faith will, and others must, bear that distinction constantly in mind.  For example, no one should do as the appellants have done, and seek to define their way out of the obligation to act with intellectual rigour by equating "inconsistency" with "corruption".[57] They are everyday words which cannot be linked in this way. The point may be demonstrated by reference to the doctrine of legal precedent. Where there is a relevant difference as between one case and another, it would be wrong to treat each in the same way. The consistent application of principle, for which the courts must always strive, will result in relevantly unlike cases being treated differently. Any apparent inconsistency in result would in those circumstances accord fully with the courts’ responsibility to administer justice according to law; and a description of the result as “inconsistent” would necessarily be inaccurate. In any event, “inconsistency” - however one defines it - is not necessarily to be equated with corruption. If, therefore, it is important that judicial officers not be falsely accused of corruption, it is also important that critics, even when seeking in good faith to speak the truth, not distort the words they use as the first appellant has distorted the very expression ("corruption") that is central to his charge against Mr Adams.

   [57]At p.17 VPC–2 the appellant defines an act as "corrupt" if it is illegal, immoral, inconsistent, unethical or dishonest.

1. Having determined that the appellants did not act in good faith when they published the impugned passage about a policeman's "admission" of paying a bribe to the magistrate, his Honour considered what he referred to as the "defence" of truth.  In doing so, he noted the  first appellant's concession that he could not prove "that magistrate Adams took a bribe, nor does he seek to prove the truth of that allegation."[58]

   [58]His Honour's judgment, at para.[186].

1. In submissions put to us during the course of argument on both the appeal and cross-appeal, the first appellant sought to demonstrate his good faith while also relying upon the truth of everything contained in each of the VPC books and "The Hoser Files - The Fight Against Entrenched Official Corruption".  Having considered those submissions carefully, we remain of the view that his Honour had ample grounds upon which to base a finding that the allegations against Mr Adams had not been made in good faith. 

1. We base this conclusion principally on the matters to which his Honour referred in his judgment.[59] We note two further circumstances which support it. They have as their source a passage to be found at page 73 of "The Hoser Files". The first appellant there wrote: "What, if anything, actually transpired between Adams and Bingley is never likely to be known."  The inference is that something “transpired”, and that, whatever it was, was at best unsavoury.[60] The first appellant is here guilty of damning by innuendo while aware that he did not have evidence sufficient to make that innuendo good. Not only this, but (and this is the second of the two circumstances to which we referred above) in VPC and VPC-2 the first appellant continued to put forward what he called the Bingley "confession" as sufficient in itself to establish corrupt dealing on the part of the magistrate.  There is no other sense in which the relevant passages can be read. Yet by his own admission, made earlier in “The Hoser Files”, the first appellant did not know what “transpired” between his Worship and the policeman.

   [59]See paras [179]-[181].

   [60]In his reply on the cross-appeal, the first appellant, referring to “Hoser Files p73”, said his position was not necessarily that the magistrate had been bribed; rather, it was that he had been “nobbled” – that is, “spoken to”. This account lacks credence. It cannot be reconciled with, for example, the references in the front inside cover of VPC-2 to his Worship being “paid off” and in the back inside cover of the same publication to Bingley “paying off” Mr Adams.

1. His Honour would have been entitled at this point to conclude his analysis of the allegations concerning Magistrate Adams. Doubtless out of a concern to do full justice to the case of the appellants, however, his Honour went further. Although, as his Honour noted, the appellants had expressly disavowed “taking a defence of ‘truth’ “, he at the same time concluded that their position “nevertheless makes truth a direct issue.”[61] The appellants had, his Honour held, identified some evidence that fairly raised the question. This was (so his Honour found at paragraph [195]) the transcript of the Bingley “confessions”. The first appellant had sworn that the transcript was an accurate record of what was said. It was not disputed by the Crown that a policeman had made such statements. That being so, the onus rested on the Crown to disprove the defence.

   [61]See his Honour’s judgment, at para. [188].

1. The learned judge referred, at paragraph [197] of his judgment, to “very powerful factors which suggest that the allegation against the magistrate is complete nonsense.” This was a view to which, in our opinion, his Honour was fully entitled to come. Likewise, there is much upon which his Honour could base his belief that “the true explanation is very likely to have been that Bingley was making a stupid but false claim that he had suborned the magistrate.”[62] Notwithstanding this, his Honour was, as he said at paragraph [203] of the judgment, “not…persuaded beyond reasonable doubt that the allegation is untrue”. His Honour here demonstrated a concern – of which, as the first appellant’s conduct of this appeal amply demonstrated, he (the first appellant) was entirely oblivious - to be scrupulously fair to both the appellants.  The second count was accordingly dismissed, and Particular (i) of the first count was held to be incapable of supporting a charge of contempt.

   [62]Ibid, at para. [202].

1. These findings depend upon there being some credible evidence to support them. The only evidence to which his Honour referred in this connection was the transcript of the Bingley “confession”. Indeed, no other evidence was available. But the transcript was hearsay. The tape recording on which it was based was also hearsay. The first appellant’s account of what Bingley said to him was hearsay too. No such evidence was or is admissible as the truth of its contents: that is, as truth of the proposition that the magistrate had accepted a bribe. Indeed, of its nature it stands as an excellent illustration of the reasons for the rule against hearsay – or, rather, of the reasons why second-hand evidence of this kind should be treated with caution. Its inherent unreliability is manifest. In our opinion, it was not open to his Honour to rely upon it even to the very limited extent that he did.

1. The appellants contest the view that no other evidence points to the complicity of the magistrate in the corrupt act to which Mr Bingley is said to have confessed. They rely on everything in VPC, VPC-2 and “The Hoser Files”. Those books, however, were admitted into evidence for the limited purpose of providing the court with access to that which the first appellant had actually written and giving context to the paragraphs alleged to constitute contempt.[63] They were certainly not admitted for the purpose of proving the truth of what he wrote. This is a point which, perhaps understandably, the first appellant has not yet appreciated, although to a lawyer it would be clear.

   [63]Compare para.[93] of his Honour’s reasons.

1. For these reasons, the cross-appeal must in our opinion succeed, and a conviction be recorded on the second count. It is therefore necessary to consider the question of penalty on that count. We will - given the way in which the matter was left when we reserved our decision - hear counsel for the respondent on that issue. Our tentative view, however, is that no penalty should be imposed. Too much time has elapsed between the publication of these contempts and the conclusion of this cross-appeal. The controversy has died. On their publication, the impugned passages were, to adapt the words of Rich J in R v Dunbabin; ex parte Williams,[64] calculated to influence the confidence of the people in the courts’ judgments. There was then also  a real risk that they would detract from the authority and influence of judicial determinations. Now, however (as it presently seems to us), no informed person would give them any credence. Moreover, it might be thought unfair to subject the appellants to the so-called double jeopardy which would be realised were a further penalty to be imposed.

   [64](1935) 53 CLR 434 at 442.

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CERTIFICATE

I certify that this and the preceding 30 pages are a true copy of the reasons for judgment of Batt and Vincent, JJ.A. and Harper, A.J.A. respectively of the Court of Appeal of the Supreme Court of Victoria delivered on 15 December 2003.

DATED the  day of  2003.

Associate