O'Shane v John Fairfax Publications Ltd

[2004] NSWSC 140

Reported Decision: (2004) Aust Torts Reports 81-733

Supreme Court

CITATION:	O'Shane v John Fairfax Publications Ltd [2004] NSWSC 140
HEARING DATE(S):	16, 17, 18, 19, 23, 24 June 2003
JUDGMENT DATE:	16 March 2004
JURISDICTION:	Common Law Defamation List
JUDGMENT OF:	Smart AJ at 1
DECISION:	See paras 245-246
CATCHWORDS:	Was material complained of Fact or Comment - Serious imputations found - Defence of Comment - whether article based on proper material for comment - whether author of article was agent of defendant or a stranger - Availability of defence of qualified privilege at common law as extended by Lange and by statute - publication of material complained of not reasonable - factors underlying assessment of damages - aggravated damages - no malice.
LEGISLATION CITED:	Crimes Act 1900 s 29, s 33A Defamation Act 1974
CASES CITED:	Australian Capital Television Broome v Cassels & Co Ltd [1972] AC 1027 at 1071 Carleton v Australian Broadcasting Corporation [2002] ACT 127. Clarke v Norton [1910] VLR 494 at 499 Crampton v Nugawela (1996) 41 NSWLR 176 at 193 Cunliffe v The Commonwealth (1993-94) 182 CLR Toohey J at 379 Derbyshire County Council v Times Newspapers Ltd [1993] AC at 547?8 Hunt v Star Newspaper [1908] 2 KB 309 at 319-320 John Fairfax Publications Pty Ltd v Attorney-General (2000) 181 ALR 694 Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511 and (1991) 23 NSWLR 374 Nationwide News Pty Ltd v Wills (1992) 177 CLR at 74 Popovic v Herald & Weekly Times [2002] VSC 174 R v Nicholls (1911) 12 CLR 280 at 285 and 282-3 Sims v Wran, 1984 1 NSWLR 317 at 322 Smith v Harris [1995] A Def R [52055] at 43,870 Stephens v West Australian Newspapers Ltd (1992) 177 CLR 1 Telnikoff v Matusevitch [1992] 2 AC 343 at 352. Theopanous v Herald & Weekly Times Ltd (1993-94) 182 CLR at 124 Williams v John Fairfax & Sons Ltd (1994) A Def R 52,010
PARTIES :	Patricia June O'Shane v John Fairfax Publications Pty Limited
FILE NUMBER(S):	SC 20527/00
COUNSEL:	(P) B McClintock SC & R Weaver (D) B Walker SC & R Glasson
SOLICITORS:	(A) Aitken McLachlan Thorpe (D) Freehills

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

Tuesday, 16 March 2004

SMART AJ:

JUDGMENT

1. Patricia June O'Shane sues John Fairfax Publications Pty Limited for damages for defamation arising out of the publication of an article written by Janet Albrechsten in the Sydney Morning Herald on Thursday 16 December 1999 in the following terms, the paragraphs having been numbered for convenience of reference,:

EXTREME VIEWS FROM THE BENCH


1. The decision by the NSW Director of Public Prosecutions to overrule a recent decision by Magistrate Pat O'Shane suggests that it may be time to reflect, more generally, on some of the controversy surrounding O'Shane

2. As a magistrate, O'Shane is often angry at what she perceives as injustices in our society. And when she unleashes her anger from the raised platform of the judicial bench, she ignites a highly charged debate within the legal and wider community.

3. Her latest decision, in which she lashed out at police culture and police harassment of youth, again raises the question of whether the justice system is best served by O'Shane's rancorous attitudes towards certain sections of society.

4. Two weeks ago she dismissed charges against Michael Kanaan who was involved in a shoot-out with police in the early hours of December 23 last year. Kanaan was charged with shooting a firearm with intent to murder. O'Shane dismissed those charges on the basis that there were discrepancies in the evidence such that a jury could not reasonably convict.

5. Yesterday the DPP, Nicholas Cowdery, QC, ordered that Kanaan be tried on the basis of an ex-officio indictment. The question of the defendant's guilt or innocence will now be determined in a new trial.

6. Putting aside the question of the defendant's guilt or innocence, what is so surprising about O'Shane's decision is that she launched a vitriolic attack on what she perceived as police harassment of Kanaan and the other three men involved in the shoot-out. She angrily described the action of the police officers who gave chase to the men as they fled their car as 'stupid, reckless, foolhardy'.

7. O'Shane has been angry many times. In 1989 when she sat in the Brewarrina Local Court, she dismissed 116 charges against Aborigines in one day, many for offensive language, believing that the offensive language arrests were a habitual form of police harassment of Aborigines.

8. Two years later, in Lismore, she dismissed a charge against a man who called police 'f---ing poofters'. The then Premier, Nick Greiner, was appalled at the decision and the Director of Public Prosecutions appealed. O'Shane was ordered by the Supreme Court to rehear the case. She did so, finding the case proven, but once again dismissed the case, using her judicial discretion under the Crimes Act.

9. And few could forget the consequences of her anger when directed at the now infamous 'Berlei bra' billboard in 1993. In that case she dismissed charges against four women who pleaded guilty to defacing a billboard advertising Berlei bras.

10 The billboard depicted a woman wearing Berlei underwear being sawn in half by a magician with the caption, 'You'll always feel good in a Berlei'. The four women had added the words: 'Even if you're mutilated'.

11. In a highly emotional speech to the courtroom, O'Shane found that the real perpetrators of the crime were those responsible for the advertisement. She refused to award damages or costs to the advertisers.

12. In an interview with Margaret Throsby for the Independent Monthly shortly after the Berlei bra decision, O'Shane commented: 'I was very angry … acquitting the women simply wasn't enough.'.

13. It may not have been enough for O’Shane, but many within the legal fraternity felt she had gone too far. O’Shane is a magistrate whose decisions impact directly and on a daily basis upon individuals and society as a whole. It is not at all clear that her decisions do anything other than undermine the judicial system as a whole.

14. O’Shane defended herself to Throsby on the grounds that, as a magistrate, she applies a litmus test of ‘human values’ to bring about the right result. The flaws in this argument are twofold. First, she appears to see herself as the sole arbiter of ‘human values’. As any first-year law student would know, equity is as long as the Lord Chancellor’s foot.

15. The second problem is that some of her decisions amount to serious misapplications of her ‘human values’ test. Few would disagree with the proposition that women have the right to protect their bodies from violation. Yet it was by no means clear that the Berlei bra billboard incited violence towards women or violated women’s bodies.

16. Similarly, few would argue with the proposition that genuine police harassment is unacceptable. But the facts of the Kanaan case do not suggest a clear-cut case of harassment. In fact, many would suggest that the Kanaan case was precisely the sort of scenario when police have not merely the right, but the obligation, to pursue suspicious assailants absconding from them.

17. While O’Shane attracts some vocal supporters, their arguments are invariably disingenuous. Some years ago following the Berlei bra fracas, a prominent supporter of O’Shane admired her for having the courage of her convictions. Yet in the same breath, Professor Mark Findlay, then director of the Institute of Criminology in NSW, revealed a rich, and no doubt unintended, irony when he criticised other members of the judiciary for reflecting ‘extreme views of their own’.

18. This is a common failing among O’Shane and her supporters. They support the injection of convictions into the courts by activist judges provided they are in line with their own. They were the first to chastise Justice Derek Bollen who made comments in a rape in marriage case which some suggested gave the impression that he condoned ‘rougher than usual handling’ by husbands to persuade wives to have sex. He was similarly castigated for telling a jury that a wife who had killed her husband had not been 'sufficiently battered’ to claim self-defence.

19. Yet O'Shane and her staunch supporters should remember that a society which accepts a Pat O'Shane should also accept a Derek Bollen."

2. The article appeared on page 19 of the Herald on what is called the “Opinion” page. It was on the page opposite that containing the Editorial articles. Page 19 is headed “Pat O’Shane is a magistrate who makes headlines: here are two opposing views on the latest controversy.” Underneath that heading is a graphic black and white illustration showing a person with a foot and leg in each of the scales apparently endeavouring to keep them in balance and perhaps running. Underneath the illustration are two articles, one by David Dixon headed “Means, ends and the rule of Law”, the other being the article complained of.

3. A jury has determined that the article bore these imputations and that each of them was defamatory of the plaintiff, namely:

(a) The Plaintiff, when acting as a magistrate, is biased.

(b) The Plaintiff is biased against police.

(c) The Plaintiff, when acting as a magistrate, allowed an attitude of anger and bitterness to affect her judgment.

(d) The Plaintiff, in breach of her duty as a magistrate to consider criminal charges in accordance with the law, knowingly dismissed charges against four women who pleaded guilty to defacing a billboard when she should have found them guilty and awarded costs and damages against them.

(e) The Plaintiff, in breach of her duty as a magistrate to consider criminal charges in accordance with the law, knowingly dismissed offensive language charges against Aborigines because she believes the charges were a habitual form of police harassment,

(f) The Plaintiff, as a magistrate, is incompetent.

(g) The Plaintiff, as a magistrate, undermines the judicial system.

(h) The Plaintiff is unfit for her office as a magistrate because she allows her extreme views to affect her judgment.

4. In her evidence Ms Albrechsten conceded that she intended each of those imputations. She was critical of the plaintiff’s conduct as a magistrate. She held the opinion that Ms O’Shane allowed her personal views to intrude upon the discharge of her judicial duties. There was a major contest whether the imputations were statements of fact, as the plaintiff contended, or comment, as the defendant contended.

5. The defendant, after denying the imputations alleged and that they were defamatory, pleaded:

“(a) the matter complained of amounted to comment relating to a matter of public interest and which:

(1) (A) was based on proper material for comment; or

(B) was based on material which is to some extent proper material for comment and represented an opinion which might reasonably be based on that material to the extent to which it was proper material for comment;
(2) (A) was not, and in its context and in the circumstances of the publication complained of did not purport to be, the comment of the defendant or of any servant or agent of the defendant; or

(B) further or in the alternative to (A), was the comment of a servant or agent of the defendant.


(b) the matter complained of was published under qualified privilege;

(1) at common law;

(2) pursuant to section 22 of the New South Wales Defamation Act 1974.”

6. Extensive particulars were supplied of the basis for comment, of the public interest and qualified privilege.

7. The Background

The article was precipitated by the plaintiff, on 29 November 1999, discharging Michael Kanaan on two allied charges, namely, shooting a firearm at a person with intent to murder (s.29 Crimes Act 1900) and maliciously discharging a loaded firearm with intent to do grievous bodily harm (s.33A Crimes Act 1900) and by what she said on that occasion.

8. The author of the article relied on what the plaintiff said and did as to the Kanaan charges, her dismissal of various charges against sundry Aborigines in Brewarrina Local Court in 1989, her dismissal of an offensive language charge against Geoffrey Alan Langham in Lismore Local Court on 19 February 1991, not convicting four ladies who defaced a Berlei Bra billboard in 1993 and not ordering them to pay compensation and especially some comments which Ms O'Shane made in giving her decision. Ms Albrechsten also had before her when she wrote her article a copy of Ms O'Shane's judgment of 29 November 1999 and many articles in newspapers and periodicals.

9. The article consists of some generalities and four different instances of matters handled by Ms O'Shane in her duties as a magistrate. She correctly conceded that the manner in which she handled the cases which came before her was a matter of public interest. I will take the four cases referred to in the article as the article deals with them.

10. Michael Kanaan

This is dealt with in paragraphs 1, 4, 5 and 16 of the article. The defendant contended correctly that the following were statements of fact rather than comment:

(a) "The decision by the NSW Director of Public Prosecutions to overrule a recent decision by Magistrate Pat O'Shane …" (para 1)

(b) "Two weeks ago she dismissed charges against Michael Kanaan who was involved in a shoot-out with police in the early hours of December 23 last year. Kanaan was charged with shooting a firearm with intent to murder. O'Shane dismissed those charges on the basis that there were discrepancies in the evidence such that a jury could not reasonably convict." (para 4)

(c) "Yesterday the DPP, Nicholas Cowdery, QC, ordered that Kanaan be tried on an ex officio indictment. The question of the defendant's guilt or innocence will now be determined in a new trial." (para 5)

(d) "… she launched a[n]… attack on what she perceived as police harassment of Kanaan and the other three men involved in the shoot out. She … described the action of the police officers who gave chase to the men as they fled their car as 'stupid, reckless, foolhardy'." (para 6)

(The words omitted were "vitriolic" before "attack" and "angrily" before "described")

11. There are some inaccuracies in sub-paragraphs (a) and (c) but they are of no consequence.

12. In her reasons of 29 November 1999 the plaintiff said:

" – it is clear that Constable Patrech was shot in the early morning of 23 December 1998. The present defendant was also shot on that occasion. He was found having sustained a serious loss of blood on the tennis courts in Weigall Park … and nearby was found a 9 millimetre handgun which he had had in his possession and which had been fired on the night."

13. The plaintiff also mentioned that Constable Patrech said that he saw one of the two males endeavouring to escape point a black pistol at him. He heard three gunshots and felt pain in his right thigh and right forearm. A question arose as to the sufficiency and accuracy of the identification evidence of Constable Patrech. After canvassing the evidence and holding that there was no reasonable prospect of a jury convicting Kanaan of shooting a firearm with intent to do grievous bodily harm to Constable Patrech she discharged Kanaan in respect of both charges.

14. The plaintiff then said:

"Last week, when dealing with the charge of shooting with intent to resist lawful apprehension, I commented that the circumstances in which Constables Patrech and Fotopoulos became involved with the defendant Kanaan and his cohorts on the night of 22 December 1998 indicated police harassment of youth. I do not resile from those comments. Indeed, I would add, having commented that in fact as investigations later revealed, these young fellows were abroad with criminal intent on the night, that the end does not justify the means.
But further, I wish it to be noted, at the time of this incident Constable Patrech was a young and inexperienced officer. He had not long been in the Police Service. He was shot and as he said suffered very considerable pain. Not only did he suffer physically but he also suffered emotionally and it must be expected psychologically. In all, the events of 23 December last were highly traumatic for Constable Patrech. He did not deserve that and it was also unnecessary. But our concerns about the effects of what eventuated that night should not cloud our judgment of the issues which have to be dealt with in these proceedings. There is no doubt in my mind that Constable Patrech was led into what turned out to be an extremely dangerous situation on the night by his senior companion officer, Constable Fotopoulos. Fotopoulos was the driver of the police vehicle on the night and for no cause gave chase to Kanaan and his cohorts. When their vehicle came to a stop and they decamped, both officers gave chase to the men. That was stupid, reckless and foolhardy. Even had the shooting not taken place, it was foolhardy behaviour. They were going into a situation of potential danger in any case. It was dark and deserted and there were three men that they knew of. There had been no cause in the behaviour of the young men which gave rise to the foot pursuit, other than their abandoning the motor vehicle and decamping the immediate presence of the police. There is no reason why they should have stopped as demanded by the police.
At that point it seems from the evidence that the police officers behaved in an irresponsible manner and in that respect I see the behaviour of Constable Fotopoulos as being of great paramountcy or primacy. There was nothing which called for such behaviour. Had they exercised the caution that society might expect of well trained, cool-headed police officers, then they would have stopped at the abandoned vehicle and checked it out.
It is to be hoped that police training will include advice to young officers in particular about the dangers of foolhardy and reckless bravado. This case is an object lesson. Society has a right to expect a professional law enforcement service. We need to protect good officers and encourage them in their necessary duty but that responsibility starts with sound training programs."

It is arguable that once the men ran off carrying guns (especially if loaded) the police were entitled to pursue and arrest them.

15. Ms Albrechsten had a copy of the transcript of the plaintiff's reasons, a copy of an article by Stephen Gibbs in the Sydney Morning Herald of 30 November 1999, an article by Heather Gilmore in the Daily Telegraph of 30 November 1999 and an article by Charles Miranda in the same issue. The article in the Sydney Morning Herald of 30 November 1999 appeared on pages 1 and 4 of that issue under the heading "O'Shane frees gunman and lashes police." That was in large letters and bold type. The article raised questions as to the wisdom of the plaintiff's reasoning and decision. The article recorded that the plaintiff had repeated her earlier comments that Cons Patrech and Snr Cons Fotopoulos had been harassing Kanaan and three other young men when they chased them. (It seems Kanaan was aged 24). The article contains statements from the Police Association critical of the decision. It was disturbed by the plaintiff's comments as to police attitudes to young people.

16. In a major article occupying the front page of the Daily Telegraph of 30 November 1999 the heading in large bold letters "I was Doing My Job" appears. Under that heading there is a smaller heading in bold type and capitals "Shot Policeman's shock over dropped charges." Alongside the article was a photograph of Cons Chris Patrech. It rehearsed the plaintiff's comment that he had been "stupid, reckless and foolhardy" and stated that Cons Patrech had said he was sickened by and absolutely shocked and disappointed with the decision. The Constable was reported as saying that the decision would not change how he did his job and that he believed that the public expects police to do their job which was arresting criminals. Sometimes this involved situations which were dangerous and life threatening. The article contained some strongly expressed views by Sgt Patrech, the father of Cons Patrech. The article contained this paragraph:

"Yesterday after finding there was not a 'reasonable prospect' that a jury would convict Kanaan based on the evidence, Ms O'Shane added to her attack on police which began last Friday when she said Sydney police have a reputation for harassing youths."

17. The article recorded Police Association criticism of the plaintiff's remark. Page 4 of the Daily Telegraph was given over to articles about the case including a continuation of the article which began on page 1. A large part of page 4 is devoted to an account of the incident and its aftermath. The headings in large type include "Pursuit Into Peril", "How an officer was shot on duty" and "Anatomy of a Sydney Gunfight". Under the last mentioned heading there was a diagram illustrating the course of events.

18. There was a third article on page 4 under the heading, "No Stranger to controversy". That was in bold type. That article referred to her handling of the Berlei underwear billboard case, the Lismore offensive language case and to other matters not mentioned in Ms Albrechsten's article.

19. Ms Albrechsten's article draws on the material appearing in the Herald and Telegraph of 30 November 1999.

20. On 3 June 1999 the Sydney Morning Herald, page 3, published an item that in the prosecution of Michael Kanaan the plaintiff had granted his request to cross-examine Cons Fotopoulos and Patrech after noting there were "very significant discrepancies" in the officers' statements. It was also reported that some time after the shooting Cons Fotopoulos was found to have traces of THC, the mind altering component of cannabis, in his urine. The level did not suggest recent use.

21. Brewarrina Local Court Dismissals.

This is dealt with in para 7 of the article sued upon. The defendant contended correctly that the following was a statement of fact.

"In 1989 when she sat in the Brewarrina Local Court, she dismissed 116 charges against Aborigines in one day, many for offensive language, believing that the offensive language arrests were a habitual form of police harassment of Aborigines."

22. From the documents produced by Brewarrina Local Court the following appears. On 18 January 1989 9 matters listed in the Children's Court were adjourned. Of 66 matters listed in the Local Court 54 matters were adjourned, some to the following day, 12 matters were dealt with. In 5 matters (offensive manner (2), steal, assault female, offensive behaviour) there was a plea of guilty and a conviction with the plaintiff dealing with the offences under s.558 of the Crimes Act. In 3 cases (offensive manner (2) and unlawful entry) there was a plea of guilty and the information was dealt with under s.556A of the Crimes Act. In 3 cases the information was dismissed. (No evidence offered and not proved). The twelfth matter involved maintenance and the payment of arrears.

23. On 19 January 1989 there were two matters in the Children's Court . In one the defendant was not before the Court. In the other, the charge of enter with intent was dismissed. Of the 34 matters listed in the Local Court 22 were adjourned and 3 were erroneously listed. One case of assault female was adjourned for sentence after a plea of guilty and conviction. In 2 charges of assault police no evidence was offered. One charge of malicious wounding was found not to be proved and dismissed. In 5 cases (offensive language (2), assault female (2) and fail to appear) there were pleas of guilty and conviction. They were all dealt with under s.558 of the Crimes Act.

24. It was not established that the plaintiff sat at Brewarrina Local Court other than on 18 and 19 January 1989. Accordingly, the assertion that the plaintiff in the Brewarrina Local Court dismissed 116 charges against Aborigines was incorrect if reliance is placed on the Court records which were produced. Part of the material on which Ms Albrechsten relied comprised an article by Adrian McGregor, published in the Sydney Morning Herald on 20 March 1993. Mr McGregor interviewed the plaintiff and wrote a sympathetic article. This was nearly two months after the Berlei underwear case. She told Mr McGregor of a supportive letter from the partners in one legal practice not to let the bastards get her down. The article continues:

"Who are the bastards? Well, that's why she hesitated. Because not so long ago, she believes, they were elements of the NSW Police. Relations soured back in 1989 when O'Shane sat in Brewarrina Local Court and in one day dismissed 116 charges against Aborigines, almost without exception for offensive language."

"Was the police prosecutor surprised when she began dismissing the charges? 'Angry, I think is the word', says O'Shane. 'I remember of all those cases, only one was a non-Aboriginal defendant.'

"O'Shane dismissed the charges under section 556A of the Crimes Act, which gives her discretion, when deciding penalties, to take into account other factors, including the trivial nature of the offence."

"O'Shane believes those offensive language arrests were a form of habitual police harassment of Aborigines. She also doubts that police could be genuinely offended by swearing which had become almost part of the Australian vernacular."

25. It is not clear how the story developed that the plaintiff in Brewarrina Local Court had on one day dismissed 116 charges against Aborigines almost without exception for offensive language. The records of the Brewarrina Local Court produced to this Court indicate that in total 75 matters were listed before her on 18 January 1989 and 36 matters on 19 January 1989, including matters in the Children's Court, but most of the matters were adjourned. No attempt seems to have been made by anyone to refute that the plaintiff dismissed 116 charges on one day. On the materials produced by Brewarrina Local Court before this Court the plaintiff on 18 and 19 January 1989 dealt in total with four cases of offensive manner, one of offensive behaviour, and two cases of offensive language. Two of the cases were dealt with under s.556A of the Crimes Act and the remainder under s.558.

26. It does seem that in paragraph 7 of her article Ms Albrechsten was placing reliance upon what appeared in Mr McGregor's article of 20 March 1993. The plaintiff seemed to accept when speaking with Mr McGregor that she dismissed 116 charges. That statement is not contradicted or corrected and possibly reflects the true position.

27. Lismore Local Court – Offensive Language

This is dealt with in paragraph 8 of Ms Albrechsten's article. The defendant contended correctly that the following were statements of fact rather than comment:

"Two years later, in Lismore, she dismissed a charge against a man who called police 'f-ing poofters". The then Premier, Nick Greiner, was appalled by the decision and the Director of Public Prosecutions appealed. O'Shane was ordered by the Supreme Court to rehear the case. She did so, finding the case proven, but once again dismissed the case, using her judicial discretion under the Crimes Act ."

It was not suggested that the facts were inaccurately stated but exception was taken on the plaintiff's behalf to the phrase "once again".

28. In his article of 20 March 1993 Mr McGregor wrote:

"O'Shane believes those offensive language arrests were a form of habitual police harassment of Aborigines. [This appears to be a reference to the Brewarrina charges].

She also doubts that police could be genuinely offended by swearing which had become almost part of the Australian vernacular.

She ruled as much in Lismore in February 1991 dismissing charges against a man who described police as f-ing poofters. The Premier, Nick Greiner among others, was angered; the Director of Public Prosecutions appealed. Seven months later Justice Studdert in the Supreme Court ordered O'Shane to re-hear the case. She did, found the charge proven but dismissed the case under section 556A.

The Lismore case sparked an 18 month campaign of anonymous hate mail. According to her own police sources, and from clues in the letters, much of the mail came from police. 'They sent wheelbarrow loads of it, in the most outrageous terms,' she said. 'Every crude word they could think of'."

This was part of the material Ms Albrechsten had when she prepared her article. Paragraph 8 of the article complained of is in substance similar to that which is said in the third paragraph of Mr McGregor's article set out earlier in this paragraph.

29. Berlei Billboard Case

This is dealt with in paragraphs 9, 10, 11, 12, 13, 15 and 17. The defendant contended correctly that the following were statements of fact rather than comment:

"In that case, she dismissed charges against four women who pleaded guilty to defacing a billboard advertising Berlei bras.

The billboard depicted a woman wearing Berlei underwear being sawn in half by a magician with the caption 'You'll always feel good in a Berlei.' The four women had added the words, 'Even if you're mutilated.'

…

In a … speech to the courtroom, O'Shane found that the real perpetrators of the crime were those responsible for the advertisement. She refused to award damages or costs to the advertisers.

(The words omitted were 'highly emotional')

30. In an interview with Margaret Throsby for the Independent Monthly shortly after the Berlei Bra decision, Ms O'Shane commented:

"I was very angry … acquitting the women simply wasn't enough."

31. Ms O'Shane defended herself to Throsby on the grounds that as a magistrate, she applies a "litmus test of 'human values' to bring about the right result."

32. The transcript of the Court proceedings before the plaintiff on 19 January 1993 reveals that each of the four lady defendants pleaded guilty to a charge of malicious damage to property under s.195 of the Crimes Act 1900. The police prosecutor after handing the "breach reports" to the Court sought compensation of $5288. The legal representatives of the defendants were surprised by the compensation claim. An adjournment was granted so that they could obtain instructions. Upon resumption the police prosecutor sought a further short adjournment to obtain the antecedents of the four defendants. This was granted. When the court resumed the prosecutor told the plaintiff that each of the four defendants was not previously known on a computer name check. After the tender of two photographs and references in respect of each defendant and hearing the addresses of the legal representatives of the defendants the plaintiff said:

"I am satisfied The Offence Is Proved. Having regard To The Good Character Of Each Of The Defendants Under The Provisions of Section 556A of the Crimes Act The Informations Are Dismissed.

I decline to make any order as to payment of compensation."

The plaintiff then said:

"Let me say this. Women are subjected to violence daily if not hourly, if not by the minute. It is no accident in a society dominated by males that we get the kind of advertising that is depicted in these photographs. It is no accident that we do not see similar depictions of men being disembodied, dismembered, and it is no accident therefore, in fact it flows indeed, that we have laws framed in the terms of section 195A, to protect the property of a male dominated society. The real crime in this matter was the erection of these extremely offensive advertisements. Let nobody be under any misapprehension about it. And what redress does 51 percent of the population have? Absolutely none. Not only because of that male dominance in the fields that I have just indicated, but also because of the massive power that is exercised through huge financial resources. It is an absolute outrage. And I am enraged to find myself in a position where I have to deal with four women who have taken the action which they did take on this particular occasion, which they felt justified in taking and I don't for one moment accept that they were misguided in their actions and I don't for one moment accept that they were engaged in some kind of idealistic prank. We have a very, very sorry society indeed when these women can be brought before this court for this sort of thing in the light of the depictions which I find in the photograph of that particular advertisement.

We live in a society where at least one and possibly more judicial officers can actually state to the world that the law will condone violence towards women. What sort of a world are we creating for ourselves?

Ladies, you are excused."

The evidence suggests that the plaintiff's decision and remarks received widespread coverage.

33. An editorial article in the Sydney Morning Herald of Saturday 23 January 1993 discussed the defacing of billboards. The editorial stated, amongst other things:

"Predictably this decision has aroused strong reactions. It has been condemned by those who see it as an incitement to vandalism and a dereliction of the magistrate's duty to apply the law. It has been applauded by those who agree with the five women, as endorsed by Ms O'Shane."

There were other comments of a general nature in the editorial. There were also letters to the editor.

34. I now summarise briefly the articles in newspapers and periodicals before Ms Albrechsten.

35. In an article published in the Sunday Telegraph on 24 January 1993 written by Bruce Loudon and generally in laudatory terms he referred to her decisions in the Berlei Bra case, the Lismore case (dismissal of offensive language charge) and her character. She had never shrunk from controversy and never failed to advance the causes in which she believed. She had a gutsy attitude and determination in her fight for justice for Aboriginal rights and the breakdown of racism and sexism. She was said to have made controversial decisions.

36. In a sympathetic article by Sue Williams, published in the Telegraph-Mirror on 17 February 1993, Ms O'Shane was described as outspoken and never far from controversy. The article discussed her decision in the Berlei Bra case and the address which she gave from the Bench. In an extra curial interview the plaintiff remarked "The concepts of justice are much broader than the concepts of legality." She was critical of the views of white male radio talk-back hosts. The article referred to her fight to obtain an education and for various causes. The article also referred to Ms O'Shane's decision in the Lismore offensive language case. She said of her critics, "What's fundamental to their attitude towards me isn't a concept that I don't uphold the law, it's based on racism and sexism." She insisted that there was a campaign against her. She maintained that the system had to be attacked from within. She said, "I don't think my role in life is just to maintain the system as it is, when it is just riddled with inconsistencies, contradictions and discrimination."

37. Mr McGregor's article of 20 March 1993 in the Sydney Morning Herald seems to have been precipitated by the Berlei underwear decision. It followed a lengthy personal recorded interview with the plaintiff. His article states:

"The morning of the Berlei Bra Billboard case, magistrate Pat O'Shane angrily paced her chambers in Balmain Local Court. 'Will I or won't I' she asked herself aloud. 'Do I or don't I?' "
Photographs of the billboard, tendered in court, disturbed her …

'I was really, really angry, I knew my decision very quickly.' But should she speak her mind as well? Court staff don't enter chambers, so O'Shane felt free to argue with herself aloud. Seven years on the Bench had trained her to remain objective. Yet she felt emotional, undecided.

She hesitated because she knew from past experience she risked delivering herself into the hands of the re-actionary talk-back broadcasters, as well as an underground police culture which detests her, and government ministers, who, she believes, are watching her.

O'Shane recalled her court and delivered her judgment [quoted earlier] in a voice quivering with anger."

Later in Mr McGregor's article this paragraph appeared:

"A major criticism has been that her Berlei decision gave the green light for others to deface billboards. 'Oh my God, that's a rubbish statement' she exclaims. It's so witless, it doesn't warrant answering'."

38. In an article by Ian Higgins in the Australian of 8 May 1993 it was stated, "The controversial NSW magistrate Ms Pat O'Shane delivered a sweeping attack on the legal system yesterday, saying it discriminated against women and the underprivileged and placed legalities before justice." Her speech was made at a Women and Management Conference. Ms O'Shane asserted that the predominantly white male judiciary held antiquated values and that the views expressed by Justice Bollen exemplified what are very widely held attitudes on the part of male judicial officers and that only the actions of individuals could buck a justice system weighted against women, blacks and the poor. The article discussed the Berlei Bra case and contained these paragraphs:

"The case encapsulated what she described as a 'head on clash' between women's rights and a male dominated system that women were usually 'powerless' to fight.

…

In her speech yesterday Ms O'Shane revealed a raw nerve over the public criticism, anonymous hate mail and subtle snubs from the legal profession over her unconventional approach.

'I was enraged. I was so angry and distressed,' she said. 'A lot of people believe that if they go to court they will get some kind of justice.

'Unfortunately, in my view, in recent times there has been greater focus on the law or the legalities that are involved. But justice is not about law, in fact – one can say – the law is unjust.'

'In my view women are being violated every minute of every day by the ways in which they are portrayed in the media – in advertising in particular,' she said."

39. In an article by Sue Quinn in the Sunday Telegraph of 16 May 1993 she purports to summarise parts of a speech made by Ms O'Shane to a NSW Teachers Federation Conference. The article contains these paragraphs:

"Judges at the centre of a public outcry over controversial rape comments were yesterday described as 'women haters'by high profile magistrate, Pat O'Shane.

In an angry speech to a women's conference in Sydney Ms O'Shane said the comments were part of a worrying male backlash against the gains made by women in recent years."

Ms O'Shane advocated the appointment of more women to the bench and a change in the practice of appointing judges from the senior bar. There were many highly qualified and experienced female solicitors who would make ideal judges. Ms O'Shane remarked, 'We know anyway on a worldwide scale women are more intelligent than men. …"

40. Ms Margaret Throsby, a freelance broadcaster and writer interviewed the plaintiff and then wrote an article for The Independent Monthly published about 6 July 1993. The article is headed PROFILE. The heading is in large block letters. Immediately under it these words appear:

"It was aboriginal Magistrate Pat O'Shane who acquitted a group of women who defaced a sexist lingerie billboard ad. She was, she said, deeply angry when she made the decision. Margaret Throsby outlines the harsh past and tense present life that provokes this anger."

41. A photograph of the plaintiff follows and under that, the words "Anger on the Bench" appear in large bold type. The article records the plaintiff telling Ms Throsby, "[Australia] is a man's country, this alien land; it's always portrayed as that."

42. Ms Throsby's article states:

"O'Shane herself provokes heated debate by her statements and judgments. The now famous incident of the Berlei bra Billboard is a case in point."

43. After a brief summary of that case and quoting her remark, "The real crime in this matter was the erection of these extremely offensive advertisements" the article added "she said, in a voice shaking with anger." The article stated that the plaintiff's decision to make her speech was founded in anger. "I was very angry," she says, "Acquitting the women simply wasn't enough. I have been very angry for a very long time about many of the issues that I saw illustrated in that photograph on the billboard and I was probably still carrying a lot of anger about Justice Bollen's remarks."

44. Ms Throsby's article stated, "Pat O'Shane is an angry woman. 'She is driven by anger,' says Franca Arena. 'Her anger is positive but it scares people'." The article noted that the plaintiff expects and gets criticism from white and black Australians. The plaintiff described herself as a person whose anger often leads to depression and deals with it by "going into raves at home. I try not to do it anywhere else."

45. The article records that the plaintiff expected criticism when she asserted that women were more intelligent than men. The author of the article asked the plaintiff, "Is it possible to maintain impartiality when sitting in judgment on people, and holding such strong views? What about the times when Aboriginal people stand in the dock before her, surely she must feel differently from when she is sitting in judgment on a white person?" The plaintiff replied, "I suppose I would have to say yes because I am conscious of those issues and I keep going back to a decision of Justice Murphy … He said that when the courts are dealing with Aboriginal people they have to take into account all these different mitigating factors. …"

46. Kate Legge wrote a lengthy and detailed article about the plaintiff in the Australian Magazine of 31 July-1 August 1993. Ms Legge described some of the characteristics of the plaintiff. The article referred to the Lismore offensive language case, to her dismissing on one day in 1989 116 charges against Aborigines, mostly for offensive language, and the Berlei bra case. The plaintiff was described as having delivered an emotional speech from the Bench in the last mentioned matter. The article dealt with her views and behaviour on a variety of topics and states, amongst other things:

"O'Shane vehemently denies that she is the beneficiary of largess. Always the victim … 'The fact that I do no more and no less than my colleagues who are not subject to the same scrutiny or cries of outrage by hoons …

Her strident tone at times even surprises some Aboriginal leaders. …

O'Shane has no intention of biting her tongue. 'I value my integrity as a member of a democratic society and I'm going to have my say about it. If they don't like it they can take what action they will and I will fight them.' The brown eyes flash and the lips purse. O'Shane is full of fire."

47. The article refers to the differing accounts given by her father and by her as to her circumstances as a child, teenager and young adult. He does not agree that her upbringing was as troublesome as she suggests. He did not think that his children suffered serious racial abuse at school. The article records, "Pat O'Shane shakes with rage at having to account for the discrepancy" and "The sense of victimisation drives her with an intensity that is not evident in other successful aboriginal women."

48. On page 1 of the Sydney Morning Herald of 26 August 1993 there is a brief summary of a speech the plaintiff delivered to the Evatt Foundation criticising the (Federal) Government for its lack of commitment to dealing with Aboriginal and Islander problems and Aboriginal organisations (ATSIC). The attacks were wide ranging. She reportedly stated, "The high incarceration rates of Aborigines are the result of racism in the community generally but most particularly in the police forces and the judiciary."

49. In the Australian of 30 August 1993 in an article by Michelle Gunn, it was stated:

"Outspoken NSW Magistrate Ms Pat O'Shane yesterday delivered a scathing attack on conservatives who refused to acknowledge the need for a change in the Australian judiciary.

Launching the first Australian Feminist Law Journal in Melbourne, Ms O'Shane said the judiciary was riddled with gender bias but that some conservative judges, barristers, solicitors and politicians were determined to oppose attempts to change it."

50. The address was described as emotional. The article recorded that Ms O'Shane said that gender bias in the courts was one of the most formidable barriers to equality and that re-education of the judiciary would need to be supplemented by a change in its composition.

51. On page 4 of the Sydney Morning Herald of 1 January 1994 in an article reviewing what 1993 held for women Paolo Totaro wrote that the pace was set early by the plaintiff in the Berlei Bra billboard case. The author wrote:

"O'Shane's decision caused an uproar. She was criticised by all and sundry. But she also sparked an intense and healthy public debate about sexist advertising. It lasted for weeks, indeed months, and we women quietly applauded her."

52. Ms Albrechsten also possessed some other articles published between 20 July 1994 and May 1999. In the article by Malcolm Brown, published on page 6 of the Sydney Morning Herald of 20 July 1994 he recorded her criticism of the decision of the Court of Criminal Appeal that imposing non-custodial sentences on people lying to ICAC in the absence of extraordinary compelling subjective circumstances verged on irresponsibility. In an editorial article on page 12 of the Sydney Morning Herald of 22 July 1994 the writer acknowledged that the plaintiff had a point. The article deplored the Court's use of ugly sideswipes rather than reason.

53. In an article by Angela Matheson published on page 17 of the Sydney Morning Herald of 8 November 1994 there was a discussion of practices in the legal profession which disadvantaged women practitioners. This passage appears (WLA standing for Women Lawyers Association)

"'WLA tries to work subtly rather than hit people over the head with a sledgehammer,' she says.

'We believe in working in the system rather than challenging it.'

SUCH views appal the maverick magistrate Pat O'Shane.

'Once you're in it, your aim is not to advance women, or anyone else for that matter, but to advance your own power base and career,' she says, suggesting 'This is not the direction women should be going in.'

O'Shane believes it would be smart business for women to take a stand and set up their own firms.

'Male-dominated law firms are sleaze,' she says. 'Why bother'."

54. In an item by Mark Scott published on page 7 of the Sydney Morning Herald of 6 April 1995 there is recorded a brief summary of an address by the plaintiff on her installation as Chancellor of the University of New England, criticising Government Education Policies and those sections of the community who did not value education and looked at it in economic and political terms.

55. An item by Julie Delvecchio and James Woodford appeared on page 1 of the Sydney Morning Herald of 21 December 1996 about three Aboriginal boys who were to spend Christmas in a Youth detention centre for allegedly spitting on Ms P Hanson and hitting her in the face. The item contained criticism of the decision of the Ipswich Children's Court. One of the critics was the plaintiff. She is recorded as saying that the case showed "how close we are to barbarism. Isn't this in contravention of the (United Nations) Convention on the Rights of the Child?"

56. In a lengthy article published on page 5 of Spectrum, Sydney Morning Herald, 9 March 1997, Catherine Lumby discusses advertising using the female body, sexism and feminism. Amongst other things she contends that the criticisms many of the pro-censorship feminists make about images simply don't stack up. After a brief summary of the Berlei billboard case the article continued:

"In an interview following the decision [the plaintiff] said that she found it 'very, very difficult' to see the ad as doing anything other than inciting violence against women and that she would have 'serious misgivings about any person who seriously argued that it could not be seen in that light.'

The disturbing thing about O'Shane's claim that there is only one way to read this image is that it winds up sending women an incredibly disempowering message about their status and about men's attitudes to them. If lingerie ads of the kind at issue in O'Shane's court can only be read as mantras of male hatred, we are all in deep trouble.

Telling women that certain images can only ever mean one thing suggests they're helpless to change the way those images circulate in our culture. Their only option is to ban them – a notoriously hopeless strategy. By taking the ad so seriously, feminists like O'Shane are handing enormous power to images and very little to female consumers. In fact, there is plenty of evidence that contemporary women enjoy mocking and playing with media stereotypes of femininity in much the same way the gay community has adopted and parodied icons of straightness."

57. The article was an adapted extract from Bad Girls by Catharine Lumby, published the following week.

58. On page 3 of the Sydney Morning Herald of 30 April 1997 in an item by Bernard Lagan it was announced that the plaintiff was to retire from the Bench. The article stated that she was acclaimed by many lawyers for her fairness and attacked by the Prime Minister, Mr Howard for smearing the Government. The article stated that her careers, as barrister, public servant and magistrate had been marked by a willingness to speak publicly in defence of Aborigines and women.

59. On 3 July 1997 the Sydney Morning Herald, page 10, published an item that the plaintiff realised that her resignation had been a dreadful mistake and that she would return to the Bench. She had had some health problems and been much affected by the horrific burns suffered by her nephew.

60. On 19 November 1997 the Sydney Morning Herald, page 7, published a brief report of her action for defamation based on a broadcast on Radio Station 2KY allegedly imputing that she had a vendetta against the police. On 20 November 1997 the Sydney Morning Herald, page 11, published a report that Radio Station 2KY and the Police Association of NSW publicly apologised to the plaintiff yesterday for a broadcast which may have suggested she unfairly discriminates against police officers and acknowledged that she did not do so. That apology was part of the settlement; the other terms were not disclosed.

61. On the presentation of the 1997 George Munster Award for Freelance Journalism the plaintiff made a speech lamenting the "dumbing down of the media, especially the print media" since 6 March 1996 (the date of the Federal election placing the Howard Government in power). Aboriginal affairs and welfare had not been adequately covered.

62. On 14 May 1999 The Australian published an item by Michael Warby headed "Low tactics mar towering opinions (How to abuse the public debate)." This lamented that the plaintiff had indulged in personal abuse of Noel Pearson on his speaking out against the deleterious effects of welfare on indigenous Australians and that she could not separate disagreement about ideas from personal attack.

63. The article was highly critical of the approach and methods used by the plaintiff and deplored the approach that displaying good opinions was proof that you were a good person and disagreeing with such opinions was proof that you were a bad one. The article closed on this stringent note:

"Use of personal abuse and unwarranted attacks on people's intellectual integrity of the sort O'Shane has unleashed on Pearson are not contributions to debate but attempts to close them down and to buttress the moral vanity of the abusers."

64. This brief review reveals that prior to the article sued upon the plaintiff had been much in the public eye and had expressed strong opinions on Aboriginal matters, the proper and equal place and treatment of women, male dominance in society and the administration of justice. She had attributed the high incarceration rates of Aborigines to racism in the community generally, but most particularly in the police forces and the judiciary. She had stoutly resisted the suggestion that she was biased against the police, insisting that that was not the case and that she dealt with each case on its merits. Over the years her approach and actions had been supported by some and criticised by others. The soundness of what she had said and done had been the subject of public debate. Some of the material advanced her reputation while other material damaged it.

65. The defendant has provided the Court with a useful table which conveniently sets out how the information relied upon by Ms Albrechsten in the various articles in Exhibit 9 can be linked to the matter complained of. From the brief summary of the articles in the press and also from the table it can be seen where Ms Albrechsten has obtained some of the material appearing in the article complained of. Some of the generalisations and descriptive words come from what the plaintiff has reportedly said and the attitudes that the authors of the articles believed they detected. This applies to the plaintiff's alleged anger over an extended period of time and its unleashing and her attitudes to certain sections of society, for example, the police.

66 Fact or Comment

The plaintiff, in dealing with what was comment and what was fact in the published words, focussed on the imputations found by the jury. The defendant accepted that at the end of the day the Court must come to the imputations, but correctly insisted that the imputations must be taken in their context, that is, in the article published in the circumstances which prevailed. This is where the reader started. The imputation is not looked at in isolation.

67. The plaintiff advanced the following propositions:

(1) Whether the matter complained of comprises comment or fact is, in the present case, to be determined by looking exclusively at the article complained of: Telnikoff v Matusevitch [1992] 2 AC 343 at 352. There are some exceptions, for example, a review or critique of a book or a play. Perhaps, a long judgment may fall within the exception.

(2) If any imputation was conveyed as fact or partly fact, the defence of comment must fail as to that imputation, it being the cause of action. The comment defence only protects the comments not the material on which it is based.

(3) Comment is an expression of opinion or an inference or deduction based on or drawn from facts stated or sufficiently indicated.

The defendant relied on the remark of Cussen J in Clarke v Norton [1910] VLR 494 at 499 that a comment is an expression or statement of opinion about, or a deduction, inference or conclusion concerning facts – that is something which is or can reasonably be inferred to be a deduction, inference, conclusion, criticism, judgment, remark or observation.

In Sims v Wran , 1984 1 NSWLR 317 at 322 Hunt J stated:
"…a statement may be defended as comment only if the material upon which that comment was based was stated expressly or impliedly in the matter complained of or constituted a matter of contemporary history or general notoriety and thus, in one way or another was made known to the persons to whom the publication was made to enable those persons to judge for themselves whether they agree with the opinion published by the defendant and based upon that material."

(4) Just because an imputation is an implied meaning from the statement of facts does not mean that it is an expression of opinion or a comment. There are implicit meanings that are not necessarily matters of conclusion, inference, deduction or opinion. A factual inference drawn from factual material remains a fact.

(5) Comment must clearly be expressed as and seen to be comment. Where the comment is not clearly identified there is a tendency to hold the entire statement to be one of fact.
(6) Bare comment must be treated as a statement of fact.

(7) Comment in order to be justified as fair comment must appear as comment not be so mixed up with the facts that the reader cannot distinguish between what is report and what is comment: Hunt v Star Newspaper [1908] 2 KB 309 at 319-320.

68. I accept those propositions along with my additional remarks. Likewise I accept these additional propositions advanced by the defendant:

(1) Whether a publication is fact or comment is to be determined by considering whether


(a) the ordinary reasonable reader would have understood the opinion to be an expression of opinion on sufficiently indicated material, and

(b) the opinion was one which an honest person might have held on the material


(2) The first of these questions is to be determined by reference only to the form in which the opinion had been expressed in the context of the matter complained of and the circumstances surrounding the publication.

(3) The second of these questions is to be determined by considering the relationship between the opinion expressed and the material upon which it is based.

69. Both parties agreed that paragraphs 13-19 of the article complained of consisted of comment. The contest on this point centred on paragraphs 2-12. The plaintiff's primary submission was that all the material in paragraphs 2-12 was fact, that is, either in terms of fact or so bound up with facts the reader could not distinguish fact and comment. I bear in mind that the touchstone is whether the ordinary reasonable reader would regard what is said as fact or comment or so mixed up that it is not possible to separate fact and comment.

70. Set out earlier are the statements of fact particularised by the defendant. I will now deal with paragraphs 1-12.

71. As to paragraph 1 the words "suggests that it may be time to reflect, more generally, on some of the controversy surrounding O'Shane" are comments.

72. The defendant contended that paragraph 2 was comment, whereas the plaintiff contended that it was a statement of fact. It reads,

"As a magistrate, O'Shane is often angry at what she perceives as injustices in our society. And when she unleashes her anger from the raised platform of the judicial bench, she ignites a highly charged debate within the legal and wider community."

73. The words "as a magistrate, O'Shane is often angry at what she perceives as injustices in our society" and "And when she unleashes her anger from the raised platform of the judicial bench" are statements of fact. They are positive assertions of factual situations. In other contexts they could be classed as comment.

74. At the time of the article the facts surrounding the Kanaan charges, the shoot out with the police and the dismissal of the charges against him had been covered extensively and prominently in the daily press. They were notorious. The article briefly reminds the reader of these. Paragraph 3, which reads

"Her latest decision, in which she lashed out at police culture and police harassment of youth again raises the question of whether the justice system is best served by O'Shane's rancorous attitudes towards certain sections of society"

constitutes comment in part (lashed out at police culture and police harassment of youth) and in part what is a statement of fact (rancorous attitudes), there being insufficient material in the article to support the latter assertion.

75. Moving to paragraph 6 and bearing in mind the notoriety of the Kanaan matter, I think that the words "vitriolic" before attack and "angrily" before described constitute comment and would have been so understood.

76. In paragraph 7 I think that the statement, "O'Shane has been angry many times" is a statement of fact. The author has referred to 4 instances over a period of about 13 years when, arguably, she evinced anger from the Bench. That could not be described as "many times". The author appears to have been speaking of the plaintiff's anger from the Bench rather than her anger generally (or general state of anger). There is virtually no material in the article as to anger at other times. There is such material in some of the articles or publications which Ms Albrechsten had in her possession.

77. The introductory words in paragraph 9, "And few could forget the consequences of her anger, when directed at the now infamous Berlei Bra billboard in 1993" constitute comment. That was a matter of notoriety which was revisited in the daily press of 30 November 1999 (Daily Telegraph) and further mentioned in the article. This would have brought it back to current memory. Further, the author gave enough details in the article to allow readers to assess the comment.

78. The descriptive words "highly emotional" in paragraph 10 when referring to the plaintiff's speech to the courtroom in the "Berlei Bra" case constitute comment. That comment is supported by what the plaintiff did and said. The "Berlei Bra" matter and the plaintiff's actions and speech were matters of public notoriety in 1993 and revived as such by the references to it in the article.

79. I should also record that the defendant contended that the following statements in the matter complained of were protected reports:

(a) "Two weeks ago she dismissed charges against Michael Kanaan, who was involved in a shoot-out with police in the early hours of December 23 last year. Kanaan was charged with shooting a firearm with intent to murder. O'Shane dismissed those charges on the basis that there were discrepancies in the evidence such that a jury could not reasonably convict."

(b) "… she launched a[n] attack on what she perceived as police harassment of Kanaan and the other three men involved in the shoot-out. She … described the action of the police officers who gave chase to the men as they fled their car as 'stupid, reckless, foolhardy'."

(c) "In 1989 when she sat in the Brewarrina Local Court, she dismissed 116 charges against Aborigines in one day, many for offensive language …"

(d) "Two years later, in Lismore, she dismissed a charge against man who called police 'f---ing poofters' . … the Director of Public Prosecutions appealed. O'Shane was ordered by the Supreme Court to rehear the case. She did so, finding the case proven, but once again dismissed the case, using her judicial discretion under the Crimes Act."

(e) In that case, she dismissed charges against four women who pleaded guilty to defacing a billboard advertising Berlei bras."

(f) "The billboard depicted a woman wearing Berlei underwear being sawn in half by a magician with the caption, 'You'll always feel good in a Berlei'. The four women had added the words: 'Even if you're mutilated'."

(g) "In a … speech to the courtroom, O'Shane found that the real perpetrators of the crime were those responsible for the advertisement. She refused to award damages or costs to the advertisers."

80. As Hunt J observed in Sims v Wran at 322 the defence of comment is now partially codified by the Defamation Act 1974 and for the defence to succeed in each of the situations envisaged in sections 32, 33 and 34 of the Act "either the comment must be based upon proper material for comment or insofar, as it is based to some extent but not completely on such material the comment must represent an opinion which might reasonably be based upon that material to the extent to which it is found to be proper material for comment." Only the situations envisaged in ss 33 and 34 are relied upon (comment of servant or agent and comment of stranger) and they are relied upon in the alternative.

81. For the defence of comment to succeed in either instance the comment must be based on proper material for comment, or the material on which the comment is based must be to some extent proper material for comment, and the comment must represent an opinion which might reasonably be based on that material to the extent to which it is proper material for comment. (s 30(3)).

82. Section 30(1) and (2) of the Act provide:

"(1) For the purposes of this section, but subject to subsection (2), proper material for comment means material which, if this Division had not been enacted, would, by reason that it consists of statements of fact, or by reason that it is a protected report within the meaning of section 24, or for some other reason, be material on which comment might be based for the purposes of the defence or exclusion of liability in cases of fair comment on a matter of public interest.

(2) A statement of fact which is a matter of substantial truth is proper material for comment for the purposes of this section, whether or not the statement relates to a matter of public interest."

83. Section 24 provides:

"(1) In this section protected report means a report of proceedings specified in clause 2 of Schedule 2 as proceedings for the purposes of this definition."

Under cl 2 of Schedule 2 proceedings in public of a court fall within the definition of "proceedings".

84. Section 24(2) provides:

"There is a defence for the publication of a fair protected report."

85. There was debate whether to fall within the proper material for comment the protected report had to be a fair protected report. Section 30(1) refers to a protected report within the meaning of s 24. Section 24(1) which spells out what a protected report means specifies that it is a report of enumerated proceedings. Section 24(3) and (4) differentiate between a protected report and a protected report which is not fair. Section 24(2) provides a defence for the publication of a fair protected report. As a matter of construction s 30 incorporated the meaning of a protected report as distinct from a fair protected report. A protected report falls within the meaning of proper material for comment. It does not have to be a fair protected report.

86. The defendant submitted that each of the facts stated in para 1 of Exhibit 3 (being earlier set out under each of the four instances mentioned) was true or substantially true so as to be proper material for comment.

87. The plaintiff contended that the following are factual inaccuracies or inaccurate reports in the matter complained of. I will also incorporate my findings.

88. Paragraph 1 – The Director of Public Prosecutions did not overrule the decision of Magistrate O'Shane

This is technically incorrect. The Director did not accept her decision and directed that an ex officio indictment be presented against Kanaan.

"Overrule" was the incorrect word but I regard the statement as substantially true. It substantially captures the effect of what the Director did.

89. Paragraph 2 – It was incorrect to say that "As a magistrate, O'Shane is often angry" I have held this and the statement that she unleashes her anger to be statements of fact. She has on occasions unleashed her anger from the Bench.

The word "often" is incorrect. If the word "sometimes" had been used that would not have been incorrect. It is not incorrect to describe her as having on occasions unleashed her anger from the Bench. That occurred in the Berlei Bra and Kanaan cases. Her remarks in those cases ignited highly charged debate. Her anger was not under control when she delivered her remarks in the Berlei Bra case.

90. Paragraph 3 – The plaintiff did not lash out at "police culture" in her reasons for judgment in Kanaan. She did not mention the phrase "police culture". The reference to "lashing out" at police harassment of youth has to be seen in context. The plaintiff referred to her comments on 26 November when she came back to the matter on 29 November 1999. She reiterated her earlier comment that there had been police harassment of youth. As the plaintiff's judgment on 26 November 1999, was not in possession of the defendant or perhaps more particularly Ms Albrechsten, reliance cannot be placed on the judgment of 26 November 1999 as the basis for comment by the defendant.

91. Ms Albrechsten accepted that, using the police copy of the plaintiff's judgment which she had been faxed at her request, the plaintiff spent the first 4½ pages explaining why she did not propose to commit Kanaan for trial. Those reasons involved her in giving her review of the evidence. After stating that Kanaan was discharged against the informations Ms O'Shane proceeded to speak about the conduct of the police. What she said was unnecessary for the purposes of her decision and she expressed herself in strong and critical terms.

92. Ms Albrechsten was concerned about "the extraneous comments [made by the plaintiff] aimed at police, that is what raised the question over the decision". Ms Albrechsten claimed that she was not trying to rejudge the merits of the decision. I thought that this evidence of Ms Albrechsten was correct.

93. The additional comments of Ms O'Shane were critical of the police officers chasing three young men on foot in a situation of potential danger. She described the area as dark and deserted, mentioned that there were three men that they knew of and characterised the chase by the officers as stupid, reckless and foolhardy, stating that even if the shooting had not taken place it was foolhardy behaviour. She added that there was no reason why the three men should have stopped as demanded by the police. She said that it seemed at that point the police behaved in an irresponsible manner. She said that there was nothing which called for such behaviour and lamented the lack of caution. She expressed the hope that police training would include advice to young officers in particular about the dangers of foolhardy and reckless bravado.

94. Ms O'Shane was criticising what she believed was an over-readiness on the part of police officers, particularly young officers, to chase those suspected of committing crimes in dangerous situations without taking adequate precautions and particularly when they did not have reasonable grounds for their suspicions. I interpolate that while the police may not initially have had reasonable cause to suspect the commission of an offence the position may well have changed once the three men ran away carrying loaded firearms.

95. The "police culture" referred to in Ms Albrechsten's article was probably that over-readiness to chase and arrest although she did not so identify it.

96. As to police harassment of youth the plaintiff said:

"Last week … I commented that the circumstances in which Const Patrech and Fotopoulos became involved with … Kanaan and his cohorts … indicated police harassment of youth, I do not resile from those comments …".

97. Ms O'Shane's comments were not necessary for the decision whether there was no reasonable prospect that a jury would convict. Ms O'Shane apparently thought that she should go further and make some comments on the conduct of the police. To that extent she moved outside the ambit of matters calling for her decision.

98. Ms O'Shane, by repetition emphasised that she thought that the behaviour of the two constables was foolhardy. She used strong and critical language. When this is taken into account along with the fact that she had moved outside what it was necessary to decide to the field of general comment, the phrase "lashed out" is a description which, although strong and colourful, is just within the comment spectrum.

99. The plaintiff relied on the use of the clause "rancorous attitudes towards certain sections of society" in para 3. In evidence Ms Albrechsten stated that on a number of occasions the plaintiff had rancorous attitudes towards the police, men and male members of the judiciary. Ms Albrechsten relied on the plaintiff stating to a Teachers' Federation Conference that men were less intelligent than women and the plaintiff's comments in the Berlei Bra case as to the conflicting values between protecting women from violence and the protection of property in a male-dominated society. That suggested to Ms Albrechsten that Ms O'Shane was angry with men and that we live in what she sees as a male dominated society. Ms Albrechsten also thought that Ms O'Shane's "comments on Justice Bollen suggested that she was angry about men."

100. Ms Albrechsten agreed that apart from the reference to the police in the Kanaan matter she did not refer to any other matters on which she relied. Ms Albrechsten said that perhaps her readers would have recalled from the sentence (paragraph 3) the many occasions on which Ms O'Shane had expressed very rancorous attitudes towards certain sections of society. The purpose of the sentence was to recall people's memory to all the occasions the plaintiff had done so.

101. There is insufficient material in the article from which the reader could conclude that the plaintiff held rancorous attitudes towards certain sections of society. As previously stated that has to be classed in the context as a statement of fact. Criticisms of certain sections of society do not necessarily involve rancorous attitudes. Some criticisms may do, depending on their extent and contents. They do not do so in the present case.

102. Paragraphs 4 – 6. The plaintiff contended that the article omitted facts which led to her discharging Kanaan so that the report was not an accurate one.

103. As to Paragraph 4 it is correct that the plaintiff discharged Kanaan on the basis that a jury could not reasonably convict him. While Ms O'Shane relied on the discrepancies in the evidence, her reasons reveal that she also relied on the absence of satisfactory identification evidence, the absence of evidence that the wounds sustained by Const Patrech were caused by shots fired by Kanaan and the absence of evidence establishing that Kanaan had the requisite intent. The effect of the omissions is not to reveal the extent and strength of the reasons on which the plaintiff relied.

104. Apart from some technical infelicities of expression of no practical consequences Paragraph 5 is unobjectionable.

105. As to Paragraph 6 – The plaintiff contended that "vitriolic" was inaccurate as were the words "What she perceived as police harassment of Kanaan and the other three men involved in the shoot out " and the word "angrily".

106. A vitriolic attack involves notions of caustic or severe criticism. The criticism contained in Ms O'Shane's comments of the police officers after discharging Kanaan was severe and capable of being described as a vitriolic attack. Having regard to the language the plaintiff used, the phrase "angrily described" was one description which was capable of being used. I am not persuaded that the use of either "vitriolic" or "angrily" was inaccurate, although these were strong words.

107. From her comments in the latter part of her judgment Ms O'Shane appeared to take the view that Kanaan and the other three men involved in the shoot out had been subjected to police harassment. What was written on this point in paragraph 6 was not inaccurate.

108. The plaintiff complained that the omission in the article of the section in her judgment which immediately followed the words "stupid, reckless, foolhardy" prevented what was written being an accurate report. As earlier mentioned this was the context:

"When their vehicle [that of Kanaan and the other three men] came to a stop and they decamped, both officers gave chase to the men. That was stupid, reckless, foolhardy. Even had the shooting not taken place, it was foolhardy behaviour. They were going into a situation of potential danger in any case – it was dark, and deserted and there were three men that they knew of. There had been no cause in the behaviour of the young men which gave rise to the foot pursuit other than their abandoning the motor vehicle and decamping the immediate presence of the Police. There is no reason why they should have been stopped, as demanded by the Police. At that point it seems that the Police Officers behaved in an irresponsible manner. There was nothing which called for such behaviour. …"

109. The author of the article set out the conclusion reached by the plaintiff, but not her strongly worded reasons. It was not necessary to state the reasons. The report was not inaccurate because of the omission.

110. Paragraph 7 – I agree that the statement "O'Shane has been angry many times" overstates the position and is inaccurate. It is not supported by the materials.

111. The Court records do not support the statement that in 1989 when she sat in Brewarrina Local Court she dismissed 116 charges against Aborigines in one day, many for offensive language.

112. In the plaintiff's interview with Adrian McGregor in March 1993 both she and Mr McGregor proceeded on the basis that this had happened. As previously stated this was written:

"Relations soured back in 1989 when O'Shane sat in Brewarrina Local Court and, in one day, dismissed 116 charges against Aborigines, almost without exception for offensive language.

Was the police prosecutor surprised when she began dismissing the charges. 'Angry I think is the word' says O'Shane. 'I remember of all those cases only one was a non-Aboriginal defendant …"

113. In the article by Kate Legge in The Australian Magazine of 31 July-1 August 1993 it is stated:

"One day in 1989 she dismissed 116 charges against Aborigines mostly for offensive language."

114. In her answer to interrogatories of 7 May 2003 the plaintiff accepted that she had dismissed 116 charges. After records were produced by the Brewarrina Local Court the plaintiff amended her answer to read that she does not believe that on a day in 1989 she sat at Brewarrina Local Court and dismissed 116 charges brought against Aborigines.

115. The plaintiff cannot recollect taking any steps to correct the articles of Mr McGregor or Ms Legge.

116. The plaintiff denied that she dismissed 116 charges against Aborigines in one day because she believed that the offensive language arrests were an habitual form of police harassment of Aborigines.

117. In her evidence at T103 these passages appear:

"Q. You remember, don't you, having conversations with a Mr Adrian McGregor, journalist?
A. Yes.

Q. In preparation for an article that was published about you, don't you?
A. I don't remember having conversations with him but I know that I did have, yes.
…
Q. It is true that you spoke to Mr McGregor, answering his questions and supplying him information, before he wrote the article, isn't it?
A. I can only say that I recollect that we did have conversations."

118. When asked (T103) that in all likelihood she told Mr McGregor that offensive language arrests were a form of habitual police harassment of Aborigines she replied, "No not necessarily". After further questions she said that she did not accept that she made such a statement to Mr McGregor. She said that she did not have any recollection of the conversation.

119. This passage follows:

"Q. Do you suggest … that it was an incorrect statement about your belief?
A. No, I don't.

Q. Was it a correct statement about your then belief?
A. I don't know, I can't remember.”

That last mentioned answer was not correct.

120. The plaintiff asserted that she had spoken many times about police harassment of Aborigines. However, she did not recollect talking about the police harassment taking the form of police arrests for the alleged offence of using offensive language. I found that lack of recollection hard to accept since that has been an instance frequently discussed. particularly in legal circles and in the wider community.

121. Mr McGregor impressed me as a careful journalist. He stated that he interviewed the plaintiff with a tape recorder and subsequently transcribed the tape of the interview himself. Mr McGregor said that the number 116 "may well have been volunteered by Dr O'Shane in the process of the interview," that the paragraph which commenced with the question, "Was the police prosecutor surprised" reflects a passage of discussion with Ms O'Shane in the interview and that the paragraph commencing with the sentence "O'Shane believes those offensive language arrests were a form of police harassment of Aborigines … were a 'form of indirect quote' from his interview with the plaintiff."

122. Mr McGregor's evidence impressed me as being correct. The plaintiff told Mr McGregor that she believed that offensive language arrests were a form of police harassment of Aborigines, that was her belief and she persisted in that belief in 1993.

123. Normally, I would regard the Court records as the most reliable record, but they were at least 14 years old. However, in 1993 when events were much fresher in everyone's mind, the plaintiff appeared to accept that she had dismissed 116 charges. It is not the kind of day (or days) which a judicial officer is likely to forget. The plaintiff did seem to recall that the police prosecutor was angry rather than surprised.

(a) it leads to the perverse result that a defence is offered to strident criticism suggesting the need for removal of judge when no such defence is available to more moderate critics who do not press for removal but nevertheless are critical of the conduct under challenge

(b) it sits at odds with the general extension of qualified privilege to fair and accurate court reports, which arises from the importance placed on public discussion of judicial conduct.

(c) it inhibits systemic criticism of an arm of government whose maladies are rarely exhibited through gross misconduct but rather through minor but insidious injustices.

188. John Fairfax Publications Pty Ltd v Attorney-General primarily dealt with the validity of legislative provisions for hearing in camera questions of law arising from or connected with contempt proceedings in which the alleged contemnor is found not to have committed contempt. Amongst other things, the Court held that the particular prohibitions were too wide. However, the Chief Justice stated that the freedom of communication protected by the Constitution is not a freedom to communicate but a freedom from laws which effectively prevent the members of the Australian community from communicating with each other about political and government matters relevant to the system of representative and responsible government provided for by the Constitution.

189. In [83] the Chief Justice pointed out that "the conduct of courts is not, of itself a manifestation of any of the provisions relating to representative government upon which the freedom [of communication] is based." The Chief Justice takes the considered view that the ordinary daily business of the courts does not fall within the protection of the freedom of communication. I am of the opinion that even if his observations are, strictly speaking, obiter dicta, I should follow them in the interests of comity. There is much to support them. I am not unappreciative of the strength of the broader view advanced by the appellant and the observations by various Justices which support that view.

190. The defendant submitted that the matter complained of even on the narrower view of "government or political matters", fell within the discussion of "government or political matters" in that

(a) the imputations go directly to her fitness for office, especially (f), (g) and (h),

(b) the plaintiff gave evidence of her concern that the article would lead to her removal from office

(c) the plaintiff involved herself in the discussion of government and political issues

191. The imputations do go directly to her fitness for office and, if established, would provide grounds for her removal. The plaintiff also involved herself in the discussion of government and political issues. She raised the question of police training and the wisdom of certain police actions. She also raised the questions of permissible advertising, the misuse and downgrading of women, violence towards women and a male dominated society. Earlier she had dealt with the misuse of offensive language charges (and arrests) and the use of crude language to police when performing their duties.

192. I do not accept that the plaintiff believed that the article would lead to her removal from office. The plaintiff was a lady of considerable resilience who was familiar with the legislation governing the removal of judicial officers from office. She would have found the article annoying and regarded it as wrong, unfair and hurtful. She did not believe that the conduct described which spread over about 13 years would justify removal. She believed that what she did was right. She was assertive and confident.

193. The defendant submitted that Lange qualified privilege should be interpreted as covering the conduct of State and Federal judicial officers for the following reasons:

(i) discussion of the operation of courts, the appointment of judges and the interpretation of federal statutes by State and Federal Courts amounts to discussion of the behaviour of State and Federal governments

(ii) the common law role of the courts is relevant to government policy on the basis that Parliament can only legislate if it has an adequate understanding of how the common law operates

(iii) the Attorneys-General of the States, and through them, the State Parliaments are answerable in political terms for the appointment, monitoring performance, conduct and dismissal of Supreme Court judges (and other judicial officers)

(iv) the protection of the Australian public is constituted by the enforcement of general law and, in particular, public and criminal law so that all citizens have an interest to discuss the merit of any judicial officer's discharge of that function.

194. These submissions cast the net of what constitutes government and political matters widely and so widely that they are not consistent with the observations of Spigelman CJ in John Fairfax Publications earlier mentioned. Further, it is not necessary in the present case to follow the course suggested by the defendant.

195. The article does raise the issue of the plaintiff's suitability to be a magistrate and the imputations raise that issue acutely. As earlier explained the plaintiff has raised government and policy matters and the imputations arise in this context.

196. In my opinion, on the narrower view of "government and policy" matters, these arise in the present case so that the principles in Lange arise for consideration.

197. The plaintiff correctly contended that the High Court in Lange in extending the defence of qualified privilege imported the concept of the reasonableness of the conduct on the part of those publishing the defamatory material. I have earlier referred to what the Court said was involved in such reasonableness. The onus of proof on the issue of reasonableness is on the defendant.

198. The issue of reasonableness also arises on the statutory defence of qualified privilege under s 22 of the Defamation Act 1984. The defendant must establish that its conduct in publishing the matter was reasonable in the circumstances.

199. The plaintiff contended that the defendant's conduct was not reasonable in the circumstances. The defendant advanced these reasons in support of its contention that its conduct was reasonable in the circumstances:

(a) the comment was fair and based on proper material for comment and the conclusions whether statements of fact or opinion, followed logically, fairly and reasonably from the information obtained

(b) it was not unreasonable for Ms Albrechsten to have relied solely on the information she had obtained concerning the plaintiff from newspaper articles and to have based the article on that information. This was especially the case where those articles more often than not contained direct statements made by the plaintiff, for example, to Mr McGregor and Ms Throsby

(c) it was not, in the circumstances and given the nature of the article as an opinion piece and its publication next to a balancing article, unreasonable for Ms Albrechsten not to have made any enquiries of and sought a response from the plaintiff prior to publication

(d) Ms Albrechsten intended to convey each of the imputations and each imputation was relevant to the subject matter which the article was presenting to the public. Ms Albrechsten had an honest belief in the truth of each of the imputations, and

(e) Ms Albrechsten had an honest belief in the truth of the facts on which she based the article

200. The plaintiff reminded the Court of Morgan v John Fairfax & Sons Ltd (1990) 20 NSWLR 511 and (1991) 23 NSWLR 374 and that in the latter case Hunt AJA, with whom Samuels JA agreed, specified at 387-8 what a defendant needs to prove in relation to the requirement of s 23(1)(c) that the conduct of the defendant in publishing the matter was reasonable in the circumstances. These include:

(1) The conduct must have been reasonable to publish each imputation conveyed. (If any other defence, such as truth or comment, has already been established in relation to any particular imputation it is unnecessary to consider the reasonableness of the defendant in relation to that particular imputation).

(2) If the defendant intended to convey any imputation in fact conveyed it must (subject to exceptional cases) have believed in the truth of that imputation.

(3)(a) Before publishing the matter complained of, he exercised reasonable care to ensure that he got his conclusions right, (where appropriate) by making proper enquiries and checking on the accuracy of his sources

(b) his conclusions (whether statements of fact or expressions of opinion) followed logically, fairly and reasonably from the information which he had obtained);

(c) the manner and extent of the publication did not exceed what was reasonably required in the circumstances; and

(d) each imputation intended to be conveyed was relevant to the subject about which he is giving information to his readers.

201. The plaintiff contended that the imputations did not follow logically from the information which the defendant had obtained. I agree. Ms Albrechsten generalised as to the plaintiff's impartiality, approach, fidelity to the law, attitude to the police, views as to the wrongful treatment of women and, taking extraneous considerations into account, from four incidents over about 13 years and the comments she had made to various journalists. This was an insufficient base for the contents of the article.

202. It was reasonable for Ms Albrechsten to have relied solely on the various articles in newspapers and periodicals in relation to the dismissal of the charges at Brewarrina Local Court, the rulings at Lismore Local Court and the Berlei Bra case. Ms Albrechsten would not, without an order, which may well have been refused, have access to the Court papers at Brewarrina and Lismore, as she was not a party and the proceedings took place many years previously. Ms O'Shane appeared to accept in her interview with Mr McGregor that she had dismissed 116 charges at Brewarrina. Mr McGregor has discussed the Berlei Bra case fully and Ms O'Shane's views and reactions. He has also set out her speech to the Court. Ms Throsby also covered the Berlei Bra case in some detail and Ms O'Shane's comments about it.

203. As to the Kanaan charges Ms Albrechsten, as well as having the various contemporary newspaper articles also had a copy of the judgment of Ms O'Shane of 29 November 1999. It was reasonable for her to proceed on that basis although it would have been better if she had also had a copy of the judgment of Ms O'Shane of 26 November 1999.

204. It was not unreasonable for Ms Albrechsten not to have made any enquiries of or sought a response from Ms O'Shane prior to the publication. The conduct of a judicial officer, as to the court cases heard and decided, is evaluated on what that person says and does in court. That was the focus of Ms Albrechsten's article, although the article did refer to some of Ms O'Shane's out of court comments explaining (or perhaps attempting to justify) the course she had taken.

205. Ms Albrechsten intended to convey each of the imputations and honestly believed in the truth of each of the imputations and in the truth of the facts on which she based the article.

206. Some of the defamatory generalisations in the article seem to spring, not only from the four cases to which Ms Albrechsten refers, but from the newspaper articles reporting what the plaintiff has said on other occasions to which no reference is made in the article, or to which inadequate reference is made.

207. The defence of qualified privilege at common law, as extended by Lange, and under s 22 of the Defamation Act should be rejected.

208. It follows that all the defences should be rejected for the reasons earlier explained. It is unnecessary to deal with the aspect of malice in this context. The importance of malice was recently emphasised in the majority judgments in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5. It defeats the defence of qualified privilege. Malice will be considered when dealing with damages

209 Damages

The imputations are serious, alleging bias, allowing anger and bitterness to affect her judgment, knowingly acting perversely, incompetence, undermining the judicial system and being unfit for her office as a magistrate because she allowed her extreme views to affect her judgment.

210. The materials establish that the plaintiff holds strong views on a number of subjects, that on occasions she has made severe and critical comments about others which were unnecessary for the decisions which she was required to make. The comments by the plaintiff about the conduct of the injured police officers was likely to lead to others reviewing her conduct and critical comments. As Sir Frank Kitto, in his well known article "Why Write Judgments" delivered to the 1973 Supreme Court Judges Conference commented every time a judge hears a case and pronounces judgment, the judge submits himself or herself to being judged.

211. The Kanaan decision also prompted a review of some of the plaintiff's decisions, particularly as they bore upon her attitude to and treatment of the police, and when she made extraneous remarks, that is remarks which were not necessary for the decision she had to make and which had a political or government flavour..

212. In such a situation it behoved the author not to generalise too broadly on inadequate or insufficiently recounted materials.

213. Damages are at large: Broome v Cassels & Co Ltd [1972] AC 1027 at 1071. The plaintiff is entitled to compensatory damages and these comprise injury to her reputation and injury to her feelings.

214. The plaintiff submitted, correctly, that she enjoyed a high public profile. After a teaching career in Queensland she studied and graduated in law. She was admitted to the Bar and practised her profession. This was a considerable achievement. She held a number of senior Government appointments culminating in her appointment as the permanent Head of the Ministry of Aboriginal Affairs under the Wran Government. In 1986 she was appointed a Local Court Magistrate and has continued in that office.

215. She has been active in many areas of public life and held senior positions with various organisations and official bodies. She has been awarded an Honorary Doctorate of Law from three universities in New South Wales She was Chancellor of the University of New England. She has worked hard for the advancement of Aboriginal communities and the rights of women. She has been a vigorous and outspoken campaigner. She received glowing references from Ms S Ryan, a former Federal Minister for Education and now President of Superannuation Trustees, Mr E G Whitlam, a former Prime Minister and Ms J Milledge, a magistrate since 1996 and Senior Deputy State Coroner. Prior to her appointment to the Local Court Ms Milledge had served as a police officer for 24 years, sixteen of those as a police prosecutor. She commonly appeared before the plaintiff and noticed nothing untoward about the plaintiff's treatment of police nor any untoward favour towards members of the Aboriginal community.

216. As to injury to reputation the defendant pointed out that the plaintiff could not recall the names of any person who spoke to her about the article following its publication. None of the plaintiff's witnesses gave evidence that they had read the article or thought less of the plaintiff as a result of it. One would not have expected the latter. The plaintiff's witnesses gave evidence that the plaintiff had been and continues to be widely admired in the circles in which they moved. Ms Milledge did not see the article at the time it was published and did not hear it being discussed amongst the plaintiff's peers.

217. I accept that the plaintiff's reputation was and is a very important part of her life. So also were her campaigns to improve the lot of Aborigines, to fight against police harassment of Aborigines and the misuse of police powers, to stop violence against women in all its forms and to redress the balance in what she regarded as a male dominated society. She was passionate and outspoken about the causes in which she believed. The advancement and success of the causes in which she believed were just as important to her as her reputation. Her reputation was important in the advancement of those causes. I have kept in mind the remarks of Mahoney ACJ in Crampton v Nugawela (1996) 41 NSWLR 176 at 193 as to the central importance of reputation.

218. Ms Margaret Throsby, who was called by the defendant, stated that she had read the article and that it did not affect her view of the plaintiff. The article came some 16 days after the reports of the Kanaan case and was on p 19 of the Herald. The article ranged over a wider field than the reports of 30 November 1999. I have not overlooked the article on p 1 of the Herald of 16 December 1999 under the bold heading "POLICE to demand action on O'Shane" and the assertion that police were finalising a complaint to the NSW Judicial Commission. There is a summary of the complaint to be made and the circumstances which gave rise to it. At the bottom of p 1 in small, but bold, type are the words "Extreme views from the bench – Page 19." There is in the article on p 1 of the Herald of 16 December a reference to ”… the Director of Public Prosecutions overturned Ms O'Shane's decision to dismiss charges …".

219. The article on p 1 of the Herald of 16 December 1999, although confined, probably had a greater effect on Ms O'Shane's reputation than that on p 19.

220. The prominent articles which appeared on pages 1 and 4 of the Herald on 30 November 1999, and pages 1 and 4 of the Daily Telegraph of the same date, dealing with the Kanaan matter, were likely to have had an adverse effect on the plaintiff's reputation. They presented an unattractive view of what she had done and were likely to attract much attention. Nevertheless, the article complained of with its defamatory imputations would have had an effect on her reputation.

221. The plaintiff submitted that in assessing the injury to her feelings, the following matters should be taken into account:

(a) The very personal nature of the attack

(b) The falsity of the imputations known to the plaintiff

(c) The failure on the part of the defendant to apologise

(d) The calling by the defendant of the author of the article to give evidence, the author's lack of contrition and her affirmation of an unjustified attack

(e) The defendant's reliance on an offer to the plaintiff some months after the publication of the matter complained of to respond

(f) The defendant's failure to plead justification and its failure to lead evidence under s 47 of the Defamation Act that the imputation was true or a matter of substantial truth.

As to (a) while the article involved personal criticism of the plaintiff, primarily it attacked her approach to and performance of her magisterial duties and her overall philosophy. I agree with (b) and (c). As to (d) I do not agree that the calling of the author and her adherence to her views was a matter of aggravation. Her views appeared to be based not just on the material set out in the article but on all the material she had in her possession. As to (e) while I regard the offer as valueless it is not a matter of aggravation. The defendant's failure to plead justification is not a matter of aggravation. It can hardly be criticised for not pleading a defence which it did not believe would succeed. Nor can it be criticised for not leading evidence under s 47 of the Defamation Act 1974 that the imputation was true or a matter of substantial truth.

222. In support of her claim that she was hurt and distressed by the article, the plaintiff relied on her view that overall the article was unfair. She was concerned that Parliamentary officers, after reading the article, may seek her removal as a magistrate. She was sensitive to her potential removal from office as she had been subject to a lengthy, co-ordinated campaign of hate mail by, she believed, police and she suspected that the article was another episode in that campaign. A number of previous articles over a period of years about her had prompted police to make complaints of bias against her to the Judicial Commission. The plaintiff said that she believed that the publication of the article would give rise to fresh complaints by the police by reason of the description of her in the article as angry, unleashing her anger, being vitriolic and having rancorous attitudes towards certain sections of society.

223. The bold heading on p 1 of the Herald article of 30 November 1999 said she "lashes police". On p 4 of the Daily Telegraph of 30 November 1999 there is a reference to the police preparing to lodge an official complaint with the NSW Judicial Commission.

224. I thought that the plaintiff was attributing too much to the article whereas the press, police and public interest was triggered by what she did and said on 29 November 1999, the prominent and vivid reports of that on 30 November 1999, including the comments of the young police officer who had been shot.

225. The plaintiff said that there had been numerous complaints against her to the Judicial Commission but she did not have any memory of the outcomes of them. She could not remember whether there were any such complaints outstanding as at 16 December 1989. I thought that evidence was incorrect. Generally, a judicial officer would remember the thrust of the complaint against her or him and the outcome. I accept that the judicial officer may not recall all the details, especially where the complaint was summarily dismissed. It is extremely improbable that a judicial officer would forget or be unable to recollect any complaint which was upheld. The plaintiff gave me the impression that she was anxious not to be cross-examined about the complaints which had been made and their outcome.

226. The plaintiff said that she could not recall being aware prior to 16 December 1999 that her decisions in Kanaan and her reasons had attracted very considerable criticism from certain people. I do not accept that this evidence was correct. She must have been aware that her decision and what she had said, was being strongly criticised and that consideration was being given to lodging a complaint with the Judicial Commission. She accepted that she had probably seen the article of 30 November 1999 in the Herald stating, amongst other things, that the Police Association was considering making a complaint about her statement as to police attitudes to young people.

227. By reason of the material in the Herald on pages 1 and 6 of 16 December 1999 and the prior public debate, the plaintiff was aware as at 16 December 1999 that the police may well lodge a complaint against her with the Judicial Commission arising out of her decision and conduct on 29 November 1999. I do not accept that she believed the article of 16 December 1999 would give rise to fresh complaints. The plaintiff has sought to lay too much at the door of the article of 16 December 1999. I do not accept that the plaintiff's distress and hurt was generated directly by her reading Ms Albrechsten's article of 16 December 1999 and nothing else at that time. I accept that Ms Albrechsten's article added to the plaintiff's hurt and distress.

228. The plaintiff agreed that by December 1999 she had been aware for many years that the police regarded statements by her as expressing unfair criticism of them. They had been criticising her, commencing when she took her seat on the Bench in 1986,

229. In 1993 two articles were published dealing with the plaintiff. The Sunday Telegraph of 24 January 1993 contained an article summarising her career and her decision in the Berlei Bra case and its effect and recording the comment of the Premier that there could be a reference to the Judicial Commission. In an article in the Daily Telegraph of 17 February 1993 there is a reference to the Advertising Institute of Australia proposing to raise "serious matters with the Attorney General and the Judicial Commission".

230. The plaintiff claimed that prior to 16 December 1999 it was not in her mind at all that the kind of criticism she had expressed of police in Kanaan would be likely to give rise to a reaction by the police. I find that hard to accept.

231. I do not accept that the hurt and injury to the plaintiff's feelings from Ms Albrechsten's article was of the order she suggests. Her hurt was not solely due to the article of 16 December 1999.She was troubled by the reactions to her decision of 29 November 1999 and what she had said. Ms O'Shane indicated that she had developed some resilience with which to withstand criticism. Nevertheless, I am of the view that Ms Albrechsten's article did occasion the plaintiff hurt and injury to her feelings. The imputations of bias, knowingly acting contrary to law, incompetency, undermining the judicial system and allowing her extreme views to affect her judgment have a major sting.

232 Aggravated Damages

The plaintiff sought aggravated damages. It was submitted that the following should be taken into account in determining aggravated damages to which I have added my comments:

(a) intrinsic malice on the part of the author and the defendant. (I will deal with this later)

(b) the falsity of the imputations and the plaintiff's knowledge that they were untrue. (This should be taken into account)

(c) the failure of the defendant to apologise. (This should be taken into account. An apology should have been proffered)

(d) the mode and extent of publication. The article did appear on the Opinion page (p 19) and it was not short. The illustration, which occupied the upper part of the page was eye-catching. There was a reference to the article on p 1 of the Herald. (These matters should be taken into account)

(e) the failure of Ms Albrechsten to make inquiries prior to publication. (Ms Albrechsten gathered a considerable body of material in preparation for her article. It would have been inappropriate for Ms Albrechsten to have spoken to the plaintiff)

(f) the conduct of the defendant, including -

(i) no defence of truth

(ii) no defence under s 24 of the Defamation Act – it could not contend that there was an accurate report (The absence of these two defences should not be taken into account – a defendant is not liable for additional damages for not raising defences it could not establish)

(iii) the conduct of counsel in cross-examining the plaintiff and suggesting she had given false evidence, that is, that her answers were not honest answers. (I did not regard the conduct of Senior Counsel for the defendant as other than justifiable and correct. As previously indicated, some of the plaintiff's evidence could not be accepted. Some of her evidence as to the article being virtually the sole cause of her distress and hurt was incorrect and, if accepted, was likely to have the effect of increasing her damages. A defendant is not bound to accept evidence which it reasonably believes may not be correct. It may test that evidence. In Rigby v Associated Newspapers [1969] 729, Walsh JA pointed out that before a defendant's conduct of a case led to aggravated damages its conduct must not be bona fide or not justifiable. See also Triggell v Pheeney (1951) 83 CLR 497 at 514 and Coyne v Citizens' Finance Ltd (1991) 172 CLR at 211 at 237)

(g) the evidence of Ms Albrechsten in which she did not resile from the imputations found, notwithstanding the absence of a plea of justification (Ms Albrechsten believed in the truth of what she wrote, that the course taken by Ms O'Shane was contrary to law, that Ms O'Shane was allowing her personal views to intrude into her decision making and that she was treating the police (or some of them) less than fairly. Ms Albrechsten gave instances in support of her beliefs.

Malice

233. The parties accepted that malice exists where there is an improper purpose. In addition to the foregoing the plaintiff relied to establish malice on these factors to which I have added my comments:

(a) the omission from the article that the Director of Public Prosecutions had withdrawn his appeal in the Berlei Bra case and the failure to acknowledge the plaintiff had exercised her judicial discretion properly in Kanaan . There had been selective reporting. (The focus of the article was principally directed at Ms O'Shane's allegedly extraneous remarks and what they revealed. The omission and the failure were not due to malice)

(b) the omission of the actual reasons the plaintiff gave for not committing Kanaan for trial. Ms Albrechsten's evidence was that the appeal was "alive". (Appeal was not the right word, but a trial was to be had and it was better not to go into the details) Her reliance on word restrictions should not be accepted. (I agree that this was not a valid argument)

(c) as Ms Albrechsten was the agent of the defendant her malice was to be attributed to the defendant (I do not think that Ms Albrechsten was the defendant's agent)

(d) Ms Albrechsten intended each of the imputations

(e) Ms Albrechsten accepted the change by Mr Coleman, the solicitor of the defendant, to the last paragraph of the article. That change involved taking out the reference to society condemning itself by accepting a Bollen and substituting "a society which accepts Pat O'Shane should also accept a Derek Bollen".

(f) Ms Albrechsten acknowledged that the comparison with Justice Bollen would have been deeply insulting to Ms O'Shane.

(g) The Court should not accept Ms Albrechsten's evidence that she did not want to insult Ms O'Shane. Ms Albrechsten acknowledged that she knew that the last paragraph as altered would insult Ms O'Shane.

(h) Ms Albrechsten disapproved of Justice Bollen's views as reported, as she thought they condoned the use of violence by men to persuade their wives to have sex.

234. On the basis that Ms Albrechsten was not the agent of the defendant the plaintiff submitted that the plaintiff relied on the following additional factors:

(a) the defendant's failure to call Messrs Marsh and Coleman, who had edited and considered the article.

(b) the change made to the last paragraph of the article by Mr Coleman making it more insulting to Ms O'Shane, was evidence of actual malice on the part of an employee of the defendant. Mr Coleman must have appreciated what he was doing and the hurt it would cause Ms O'Shane.

235. I thought that Albrechsten was a truthful witness and I accept her evidence that she did not want to insult Ms O'Shane. Ms Albrechsten should have told Mr Coleman that the proposed amendment was unacceptable. Apparently, the proposed amendment was discussed in a telephone call. Ms Albrechsten had strong views as to the propriety of the plaintiff's approach, comments and actions in discharge of her duties in the four instances mentioned in the article and generalised to an impermissible extent; what she wrote represented an honest expression of her views. Ms Albrechsten was concerned that the law should be rightly administered. She did not accept the plaintiff's litmus test of human values, that is the plaintiff's human values.

236. While Ms O'Shane would have felt insulted by being compared or contrasted with Justice Bollen, the point being made in the last paragraph of the article, as altered was that the reported views of each, albeit very different, had to be tolerated.

237. The plaintiff relied on Roberto v Bass [2002] HCA 57, (2002) 212 CLR 1 which deals with the malice necessary to defeat qualified privilege. In my opinion, in the present case, the article was not actuated by an improper motive or purpose or any ill will to Ms O'Shane.

238. In assessing aggravated compensatory damages I do not take into account malice on the part of the defendant. However, I do take into account those aspects of aggravated damages which I have earlier upheld.

239. Section 48 of the Defamation Act 1974 provides:

" …evidence is admissible on behalf of the defendant, in mitigation of damages that the plaintiff

(a) has already recovered damages,
(b) has brought proceedings for damages, or
(c) has received or agreed to receive compensation
for defamation in respect of any other publication of matter to the same purport or effect as the matter complained of in the proceedings."

240. In about November 1997 the plaintiff received $90,000 inclusive of costs in settlement of defamation proceedings commenced by her against a radio broadcasting company, the Secretary of the Police Association and the Association, along with an apology by all, read in open court. The substance of the article and the imputations was that Magistrate O'Shane, when carrying out her duties unfairly discriminates against members of the Police Force and that her conduct as a magistrate warranted an investigation by the Attorney General and the Minister for Justice. The apology withdrew any such imputations. The publication occurred in 1994 and the settlement was reached in 1997. There was publicity concerning it in November 1997.

241. From the evidence, including the materials gathered by Ms Albrechsten, it would seem that there has been an uneasy relationship between Ms O'Shane and the police for many years, with Ms O'Shane taking the view that the police attitude towards her was unwarranted. The radio broadcast was conducted in forceful terms and left a strong impression. The settlement and the apology would have gone some way towards restoring the plaintiff's reputation. They received coverage in the Herald on 20 November 1997. On 19 November 1997 the Herald had reported her counsel's opening speech outlining what had been said and asserting that it was defamatory.

242. However, by 16 December 1999, apart from recalling the longstanding uneasy relationship between Ms O'Shane and the police which also appeared from the terms of Ms Albrechsten's article, the details of the 1997 settlement and apology and the earlier broadcast in 1994 would not have been in the memory of the ordinary reasonable reader. Of much greater importance were the reports of 30 November 1999 in the Herald and the Daily Telegraph.

243. In assessing the damages to which Ms O'Shane is entitled I have taken into account the payment of $90,000 but little weight should be given to it. The broadcast and the settlement happened too long ago. Further, the payment of $90,000 was inclusive of costs. The settlement occurred on the second day of the hearing. The plaintiff was represented by senior counsel in November 1997. Costs in defamation actions tend to be high but I do not know the extent of the costs.

244. I reject the submission that the plaintiff's failure to take up the defendant's offer to reply constituted a failure to mitigate her damage.

245. I have found the assessment of damages to be a difficult task. Taking into account the matters going to an award of compensatory damages and the matters I have found aggravated the plaintiff's damages, I assess the plaintiff's damages at $220,000. There will be a verdict and judgment for the plaintiff.

246. I stand over the question of interest and costs to a date to be fixed by arrangement to finalise these proceedings..

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Last Modified: 03/18/2004