- and -
The Queen ( ex parte the Attorney General for the State of Victoria)
Respondent
APPLICANT'S SUMMARY OF
ARGUMENT
The applicant/s may seek to alter and amend this document prior to
the hearing date, noting that a serious miscarriage of justice has occurred,
that the applicants are not legally represented at the time this document
was prepared and the public importance of the issues in this case.
Part I:
Special leave questions that arise
1/ The judgement in the court of appeal with few qualifications reflects
that of the original trial judge (herein referred to as "Eames" and without
disrespect implied) and is replete with numerous very serious errors of
fact and law, the important ones of which would be raised at a High Court
hearing. An obvious question in terms of law is thus: is it possible
or lawful for a person/company to be convicted on the basis of impossible
findings of "fact" and dubious legal interpretations, double standards
and the like.
2/ The appeal court judges (herein referred to as "Batt et.
al." without disrespect) in finding against the applicant/s for contempt
on a second count decided that no penalty would be imposed due to the time
delay in the matter being finalized in terms of the allegedly contemptuous
books being published, namely four years earlier. That being so,
why was a penalty imposed for a similar (alleged) contempt that was prosecuted
two years after the said publications were published and long after any
alleged damage would have manifested (that didn't). Put another way,
surely the same should apply for the alleged contempt and penalty being
appealed, in that if a finding of contempt was made (as in what is at best
a technical contempt), then no penalty should have been applied.
3/ Australia has signed UN Treaties, including the United
Nations Declaration of Human Rights. The charge of contempt in the
context of this case, namely being against two large detailed books on
police and government corruption, is in violation of these treaties and
therefore is illegal. The High Court should rule on this in terms
of these books and decide whether or not state law takes precedence over
international treaties.
4/ The appeal court judges said at:"25" that '"contempt doesn't
impinge on free speech". However any contempt charge against the
appellants must have done this. Furthermore in stating the need for
general deterrence in penalising the applicants (herein sometimes merely
referred to as "Hoser", as he is the sole director of the company Kotabi
Pty Ltd), via the massive and out of proportion costs orders, the judges
have also curtailed the freedom of speech of others who may wish to disclose
misconduct by judicial officers or others in government and/or even robust
and constructive criticism of the courts, their officers and other persons
in power. The High Court should intervene and stop this.
5/ The appeal court judges said ""There is in any event a
real question whether the publication of matters about judges and magistrates
is a communication concerning "political or government matters"[27] within
the principle in Lange." However they chose to overlook compelling
arguments that says it is, especially in terms of the context of the books
and specific chapters in "Victoria Police Corruption - 2".
Politicians including the
one who charged the appellants (Rob Hulls) have made much mileage over
whom they have appointed to judicial positions (see for example see news
story: "Trailblazing lawyer named chief justice"
In The Age on 26
November 2003, also online at: http://www.theage.com.au/articles/2003/11/25/1069522605729.html)
and also been attacked over their appointments (mainly women) by eminent
people in the tabloid media. High Court appointments have also been
similarly politicized and these issues were dealt with at length in the
appellant's books, including for example the appointment of Judge Callinan.
Not only that but these points were raised at the appeal trial by the appellants
and ignored by the judges.
6/ One of the three judges hearing against the applicants
(Vincent), had made public statements in relation to the matter being heard,
which were adverse to the applicant's prospects of success and had already
found a contempt charge against a lawyer who had acted for him previously,
namely David Perkins, who acted for Hoser in the Eames contempt matter
(when the lawyer called a judicial officer a bigot) and hence Vincent was
not suitable to hear the case. He refused to disqualify himself in
spite of prolonged submissions and hence the perception (reality in the
view of myself and other independent observers) of bias ensued and manifested
in a defective judgement against the applicants. Similar applied
in terms of the other two appeal court judges, all of whom were close colleagues
of the judge (Eames) who heard the original contempt case (since elevated
to the same appeal court), hence would now sit regularly with the three,
and whom in turn was a close personal friend of the man (Rob Hulls) who
charged the applicants. In other words it was an in house hatchet
job. The High Court should address the questions of when a judge should
disqualify himself from such cases and conflict of interest matters.
7/ Why is it such that if an author or journalist makes one
or two minor errors in a major manuscript totaling over 600,000 words,
it is automatically deemed by judges as malice, but their own numerous
mistakes can never also be attributed to malice? The High Court should
rule on what circumstances are allowable in terms of when a member of the
public can make an adverse comment on a judicial officer and/or if such
double standards are in fact "law".
8/ In one criminal trial subject to this case a judge (Tom
Neesham) stated that truth is not relevant to a criminal trial (or words
to that effect) and a similar line was echoed by High Court Judge Michael
Kirby who was quoted saying this in the tabloids. However Judge Eames
has asserted that a criminal trial IS a search for the truth, even though
in his case, with this matter he then chose not to search for it.
The High Court should rule on whether or not criminal trials or even contempt
trials need to be a search for the truth.
9/ In terms of the alleged contempt's, the judges made a number
of bizarre findings, including that there was no evidence of bias as alleged
by the applicants in terms of three judicial officers. This is patently
absurd as in one of these matters over ten independent witnesses, including
a respected University Professor, Kim Sawyer made similar accusations against
the trial judge (Tom Neesham). In the original contempt trial, the
crown lawyer asserted that Sawyer and the others did not exist and that
Hoser had invented these people and their statements (in spite of their
own written statements and the people's photos being in the allegedly contemptuous
book). This weird claim was accepted by the original and appeal court
judges who in turn found no evidence of bias by Neesham. Obviously
there was no search for the truth here as Sawyer himself actually sat in
that very court on a hearing day (the Eames contempt matter), and was literally
gobsmacked when he heard John Langmead (prosecutor) said he didn't exist.
Surely truth must exist as a defence for alleged contempt and/or should
play some sort of role for the prosecution.
10/ Does criticism of a judicial officer constitute contempt
in that it is to be treated as an attack on the legal system, or should
it be treated in the same way as other political discussion in that it
is an attack on the person and their actions and actionable via defamation
proceedings if in error?
By way of example, magistrates have recently utilized defamation laws to
v indicate their actions when attacked (see authorities listed on this
document for examples). Also we have politicians attacked daily and
yet there is no general claim that their attackers are trying to attack
the democratic system of government.
Surely the same should apply to the legal system and judicial officers
and the High Court needs to rule on this.
11/ Is retrospectivity allowed in contempt charges?
At the time of publication of the allegedly contemptuous books, the then
Attorney General Jan Wade was provided with manuscripts prior to publication
and save for jurors names, didn't want anything removed and made no findings
in terms of potential contempt.
After a change of government and more than a year, the incoming (new) Attorney
General charged author and publisher with contempt for books that his predecessor
had found not to be in contempt and after he had been party to a failed
defamation action against both.
12/ Is double jeopardy allowed in contempt charges?
In April 2000 in defamation proceedings an attempt was made on behalf of
the informant (Rob Hulls) to have the books cited for contempt and author
and publisher convicted of same. Judge Bill Gillard in a judgement
of April 18 ruled against this and yet some time later (the next year in
fact) author and publisher were re-charged with contempt, this time being
placed in front of a personal friend of Hulls, namely fellow ALP Lawyer
and former Fabian socialist, Judge Geoffrey Eames.
13/ What errors of fact, if any are allowed in determining
whether or not a person is guilty of contempt?
AND How do courts decide whether or not an error of fact was made in good
faith or with malice?
Can Judges delve into the world of voodoo and mind reading to decide whether
or not a person acted "with malice", and are judges able to recall what
the mind processes were of an author when writing a few dozen scattered
words out of 600,000 words two or three years earlier?
14/ What exactly is necessary to prove or demonstrate good
faith? In this case, the author/publisher delayed publication for
several months to allow adversely named people right to correct material,
sent copies to the Attorney General, DPP, police commissioner, law courts,
etc, and then made publicly available all source material. Also disclosed
was all possible conflicts such as prior convictions and other matters
of relevance and yet the author/publisher were still deemed as being in
contempt and having a "motive" to attack the courts.
If this ridiculous state of affairs is allowed, then what else is needed
to escape the risk of contempt charges?
14A/ The High Court must decide whether or not it is allowable
for any person with any criminal conviction to be able to comment on criminal
trials, or whether they will automatically be declared to have "malice".
15/ Should there be uniformity of who faces contempt charges?
The wording used to define contempt as in "a real risk that as a matter
of practical reality those passages had a tendency to undermine the confidence
of the public in the administration of justice and lower the authority
of the courts" by the appeal court judges is vague and unspecific in that
it can be used to charge persons who make almost any statement adverse
to judicial officers and yet evidently this is not happening.
The man who charged Hoser and publisher, Rob Justin Hulls has himself made
numerous false and baseless allegations against Liberal appointed judicial
officers, most notably ex-chief magistrate Michael Adams, whom he forced
to quit prematurely and yet he wasn't charged with contempt.
The High Court should explain this double standards and/or resolve it.
16/ Trever Torney (see authorities listed in this document)
was not convicted of contempt because he was allegedly a crackpot (see
the relevant authority). Hoser was convicted because he was allegedly
credible, but yet all the judges whom he appeared in front of said they
didn't believe him. How can 1/ Hoser be momentarily credible
or then momentarily uncredible as a judge seeks to duck and weave around
the key facts? and 2/ Why is a credible sensible person subject to
different law than idiots?
17/ Does "last night" mean the previous night, as most normal people,
including Raymond Hoser would think, or does it mean three days ago, in
the afternoon as defined by a prosecution lawyer and accepted by his fellow
Appeal Court judges, with whom he also happens to be good friends with?
This should be defined by the High Court.
18/ Is it possible for a judge and prosecution lawyer to be
referring to transcript in a case from three days ago ("last night" as
defined by three appeal court judges), when by reference to page numbers
as given by them in the transcript, they are talking about some weeks earlier?
Or is it possible for a judge to be referring to "last night" as three
days ago (in 1995), when in a letter to an appeal court (written shortly
thereafter), he fails to cite the transcript of three days earlier as an
explanation for the comment, when elsewhere in the same letter he makes
liberal references to transcript to explain comments that were questioned.
19/ Does parliamentary privilege apply to reports of material tabled
in parliament? As in if a book is tabled in parliament in it's entirety
and then it is republished outside, with a notation to the effect that
it is the same document, (as happened for the Victoria Police Corruption
books) is the author immune from contempt proceedings?
Part II.
Factual background to the application
20. The applicant (Hoser) was born on 8 February 1962. In 1976
he went to "the appropriate authorities" as a whistleblower against official
corruption involving the NSW Wildlife authority and NSW Police.
21. He also got media publicity appearing on TV news programs and
the front page of the three main Sydney daily newspapers as in the Sydney
Morning Herald, Australian and Daily Telegraph.
22. Following this a campaign was launched against him by those
he'd made claims against and to cut a long story short Raymond Hoser's
life was turned upside down. He was forced out of university, (up until
which he'd always had A-grade passes at School and University), and then
out of NSW when he left in fear of his life.
23. In line with what happens to other whistleblowers, Raymond Hoser
was subjected to a barrage of a large number of falsified criminal charges
in an attempt to discredit him and send him broke.
24. A full listing of the criminal charges is in the front of the
book "Victoria Police Corruption -2" one of the allegedly contemptuous
publications (and also published elsewhere including the internet by Hoser).
25. A full history of the criminal charges (facts and circumstances
and results) is in the books "The Hoser Files" published in 1995
and "Victoria Police Corruption - 2" published in 1999 (for matters
beyond early 1995).
26. The case in front of magistrate Hugh Adams at end 1988 (charges
of assault, etc), was one of the many trumped up charges and Hoser was
lucky in that he'd earlier taped the policeman informant Ross Bingley admitting
to fabricating the charges. As a result of this and other matters,
the prosecution case was bungled.
27. In a shock decision that went against the facts (as in it was
black and white, not a case of one person's word against another as happens
in many trials), the magistrate Hugh Adams found against Hoser and sentenced
him to jail. This event alone, proved that Adams was corrupt in even the
general sense of the word. The official transcript of this case also
proves this.
28. Policeman Ross Bingley then confessed to bribing Adams and this
was covertly taped.
29. The taped confession (and transcript) has been a key part of
the contempt proceedings, which is strange as it was first published by
Bob Bottom in 1991 in his Insight Bookmagazine, and Hoser in 1995
in The Hoser Files and did not attract contempt charges then under
two different Attorney Generals of two different political colours.
30. In terms of Adams the raft of evidence of his corruption goes
way beyond that outlined in either The Hoser Files or Victoria
Police Corruption (1 and 2), and is on the public record and undeniable.
31. Bearing in mind that the Bottom statements of 1991 and Hoser's
in 1995 were not in contempt, it is strange that the same ones in 1999
were deemed to be some kind of grave threat to the legal system two years
later.
32. The Adams verdict was overturned on appeal.
33. This means Hoser was exonerated, declared not guilty and properly
declared INNOCENT.
34. That is the law!
35. Hoser didn't do the crimes falsely alleged.
36. Hoser was maliciously charged.
37. Hoser was at all times the good guy.
38. The policeman who charged Hoser, Ross Bingley was corrupt.
Simple!
39. The people who charged Hoser in the Adams matter were police
and Vicroads (taxi regulation) officers who accelerated their campaign
against Hoser in early 1989 following his complaints in relation to the
Adams case and also his privately charging two Victoads officers with assault
(via private summons).
40. One (Derry Ashton) was found guilty in court by Magistrate Maher
on 4 March 1991, while in terms of the earlier charge, proceedings were
dropped against George Olsen in 1989 after Hoser's father was illegally
raided, bashed and suffered a debilitating heart attack in the period preceding
the case in order to intimidate Hoseer to drop the charges. The tactic
worked and Hoser's father is now dead.
41. Part of this ongoing campaign against Hoser, Australia's leading
corruption whistleblower, was the perjury charge heard in front of judge
Neesham in 1995 and appeal hearing in 1997 laid by the same people who
pressed the trumped up charges heard in front of Adams and ultimately dismissed
as fabricated.
42. The detail of the case is in Victoria Police Corruption -2
and not repeated here, other than a brief notation that even a cursory
look at the facts shows: A/ Hoser was not guilty, B/ Evidence against
Hoser was fabricated (since admitted by the main informant), C/ The
trial was improper and the judge Neesham was dishonest and inconsistent
in numerous ways, D/ Full details of the trial, conviction and all other
matters of relevance is in the book Victoria Police Corruption - 2
which was of course published at the relevant time after the case.
43. The contempt charges against Hoser and publisher represent the
latest installment of the witch-hunt against Raymond Hoser who's recognized
as a foremost corruption whistleblower and leading corruption author.
44. It is also a heavy-handed attempt to stop him and other civic
minded decent law-abiding Australians from publishing books and/or otherwise
disclosing the truth about corruption in high places.
45. Because Hoser has a reputation for factual accuracy and writing
without fear or favor, including tarring friends as necessary, people on
both sides of politics regard Hoser as an enemy and "uncontrollable".
46. In 1993 Hoser published the book Smuggled:The Undergound
Trade in Australia's Wildlife, his third book and first corruption
book.
47. The NSW National Parks and Wildlife Service (NPWS) and NSW Police
unlawfully banned the book by doing armed raids on bookshops and sending
faxes all over the place demanding sales stop.
48. The ban was illegal and ten years later the NSW National Parks
and Wildlife Service paid publisher of that book Charles Pierson about
$80,000 in a court settlement over the matter.
49. The unlawful ban of Smuggled in 1993 wasn't lifted by
legal action, but rather due to intense media publicity that embarrassed
the government to lift the ban a month after release in June 1993.
50. The book then sold the entire print run due to strong public
interest in corruption. As a spin off to this, the NSW Police Royal
Commission commenced two years later, vindicating many of Hoser's claims
in Smuggled.
51. In 1993, on several occasions, the NSW Government denied
the corruption alleged within the book, that year putting out several widely
reported media releases claiming all material in the books was "baseless".
52. When "The Hoser Files" (another corruption book) was
published in 1995, this book detailing Victorian corruption, and mainly
in relation to the campaign against Hoser, the Victoria Police unlawfully
forced the distributor, Tower books at Brookvale, NSW to recall all books,
thereby stopping sales.
53. Word of mouth however sold the entire 6,000 book print run (Hoser
did this himself) and it too was reprinted.
54. In 1996, Smuggled-2 was published and it was first banned
by a defamation writ and (voluntary) injunction, but the defamation cases
were won and sales proceeded.
55. At a press conference on 29 November 1996, held at NSW Parliament
House with the Hon Richard Jones, Hoser claimed further corruption in the
NSW National Parks and Wildlife Service (NPWS) including naming several
ski lodges at Thredbo as in imminent danger due to landslide as a result
of corrupt practices in the NSW NPWS allowing for improper building near
Alpine Way. Hoser was flanked by (honest) NPWS employees corroborating
this and all earlier claims. The minister at the time (Pam Allen) put out
her own media release saying Hoser's claims were false and baseless and
her release was widely quoted in the media (including daily papers), the
following day.
56. The following year on 30 July 1997, two of the named ski lodges
were buried under rubble during a landslide killing about 18 innocent people.
57. Hoser's (allegedly) false and baseless allegations suddenly
came true.
58. In other words, denial of a truth didn't make it go away or
cease to exist.
59. Subsequently the NSW Government held an inquest that confirmed
the original claims by Hoser and the government then paid millions of dollars
in compensation to families of victims.
60. On 2 July 1999, the two Victoria Police Corruption books
were tabled (in their entirety, all 1536 pages) in the NSW Parliament by
the Hon Richard Jones. Printing commenced the next day.
61. The same books were delivered from the printer, with a notation
including the Hansard of the Jones Tabling on one page (in each book) on
2 August 1999 and went on sale in bookshops immediately (the same day),
with over 1000 copies shipped immediately.
62. In terms of the history of the Victoria Police Corruption
books, and the contempt matter relevant here, the following are dates of
note:
8 September 1999: At
the Labor Party state election campaign launch at Ballarat, Rob Hulls was
recorded telling Hoser outside the venue to sell as many copies of Victoria
Police Corruption as he could because it would hasten the demise of
the Kennett government.
18 September 1999: Liberals
fail to win outright government. Geelong goes to Labor by 16 votes. With
several hundred books sold in the Geelong area, Hoser's books were credited
as being the final straw that saw the eventual demise of the Kennett government.
With police at the time ordered not to raid shops to seize the dreaded
Victoria Police Corruption books and both major parties locked in
a bidding war for the support of independents and electors in the now upcoming
Frankston-east by election, panic gripped sections of the police force
and there commenced the largest mass resignation of police officers in
Victoria's history.
7 December 1999: Career
criminal and police informer, Adam Anthony Zoccolli issues defamation writ
against Raymond Hoser and publisher in relation to the book Victoria
Police Corruption.
27 March 2000: With assistance's
from Victorian Ombudsman and ALP Head-kicker and Attorney General, Robert
Justin Hulls, Zoccoli issued proceedings seeking an injunction to legally
ban sales of Hoser's books.
18 April 2000: Supreme
Court Judge Bill Gillard rules against Zoccoli writ, refuses to ban books
and says that to ban Hoser's books would be a contempt of court. Gillard
also refused to charge Hoser with contempt by scandalizing as sought by
Zoccoli with the assistance's in writing from Hulls himself.
2, 13, 19 and 30 June
2000: Labor lawyer, turned Attorney General Rob Hulls instructs his lawyers,
the Victorian Government Solicitor (VGS) to write letters to all major
booksellers in Australia telling them they'd be jailed if they sold Hoser
corruption books, including head offices and individual shops of Dymocks,
Collins and Angus and Robertson/Bookworld and book distribution companies
in Victoria and elsewhere. Victoria Police Corruption (1 and 2)
were now effectively banned in contempt of the 18 April 2000 Supreme Court
Judgement.
26 July 2000: A Hulls
subordinate tried unsuccessfully to buy the books he banned from Hoser.
When the story was reported in the Murdoch-controlled Leader papers
another subordinate claimed that he was exempt from the ban because the
books were wanted for "legitimate research".
April 2001 (several dates):
Several booksellers, including Dymocks Melbourne Central, McGills, Melbourne
City and Angus and Robertson Geelong contacted Hoser and/or publisher to
complain of gun-toting armed police raiding their shops and telling them
not to sell the Victoria Police Corruption books.
24 May 2001: Rob Hulls
through the VGS issues proceedings against Hoser for "Contempt", the alleged
"Contempt of Court" being the undermining of public confidence in the legal
system of Victoria, which is spokesman asserts "must never be questioned".
This was two years after original publication in 1999.
29 May 2001: Hulls spokesman
Joel Dean is quoted by a Canberra-based journalist saying that Hulls wants
Hoser 'litigated and liquidated'. The writ documents seek, fines, seizure
of assets and imprisonment.
1 July 2001: Whistleblowers
Australia National President, Jeane Lenane brands Hulls a fraud for claiming
to be introducing whistleblower protection laws and at the same time seeking
to jail Australia's leading whistleblower. The media release was widely
reported in both print and electronic media across Australia with the notable
exceptions of the Herald-Sun and Age newspapers. There were
similar releases and reports throughout the second half of 2001 and into
2002.
23 October 2001: Contempt
hearing commences in the Victorian Supreme Court with Labor Lawyer, Geoff
Eames, since appointed judge by close friend and Labor Attorney General
Jim Kennan hearing the case.
29 November 2001: As
predicted, Eames declared Hoser and publisher guilty. The 78-page written
judgement is replete with obvious and inexcusable factual and legal errors
on which the "finding" is based.
6 December 2001: Eames
convicts and fines Hoser and publisher $5,000 plus an estimated $30,000
in costs in a "killer sentence" as what he (Eames) says is to be both specific
deterrence and general deterrence to stop Hoser or like-minded whistleblowers
from daring to expose judicial and government misconduct in the future.
Eames also calls for widespread dissemination of his judgement and posts
it on the internet.
20 December 2001: Hoser
lodges an appeal against the defective Eames judgement on "all grounds".
21 January 2002: Hulls
side cross-appeals Hoser appeal, out of time, but improperly Supreme Court
staff corruptly allowed their cross-appeal to proceed as if lodged properly,
also later upheld by Judges Batt et. al..
15 March 2002: Hulls
effectively ensures he "fixes" the result of the appeal by appointing (elevating)
Eames to the bench of the Court of Appeal, in spite of known defects in
his capacity as a judge and this appeal afoot.
11 November 2002 - Desmond
Burke applies to Supreme Court to appear to clear his name in relation
to false and defamatory statements made by Eames about him in the judgement
of November 2001 (including perjury, conspiracy to pervert justice, etc).
Court refuses to respond properly to Burke's letters and phone calls.
29 December 2002 - The
Sunday Age admits in it's newspaper that it has misreported stories
concerning Raymond Hoser. Both Melbourne daily tabloids do however continue
to publish rehashed material from Hoser books claiming it as "news". Not
surprisingly, Hoser is never cited as the source.
Notwithstanding this
defect, as a result of media pressure via the Hoser disclosures, by end
2003 numerous police officers first identified as corrupt in the Hoser
books have been jailed for drugs and other offences, including the former
"White Knight" Wayne Strawhorn, Kevin Hicks and others.
6-8 October 2003 - Appeal
of 'contempt' matter heard in front of Judges John Batt, Frank Vincent
and David Harper. Judges refused to disqualify themselves when asked to
at start. Result was now a fait accompli.
15 October 2003 - Hoser
was declared guilty of contempt on both original counts and original penalties
upheld.
63. The contempt
matter of 15 October 2003 is now subject to this application to the High
Court (lodged 2004).
64. The books make numerous adverse comments about judges and magistrates
and this isn't hidden. No relevant facts are. Notwithstanding this,
all comments are factually supported, including those that Judges Eames,
Batt, et. al. claim (without corroboration) are not and the judges contrary
claims are based on a failure to read or scrutinize the books and/or supporting
materials as cited in the books themselves. In short, these judges have
abused judicial processes to suppress truth. It is for that very reason
(that the facts are supported by evidence) that no judge or magistrate
has dared make the public move of suing Hoser for defamation.
65. The majority of serious errors in the original Eames judgement
were systematically rebutted by detailed cross referencing (including to
material that Eames had obviously not read) in a pair of documents tendered
at the appeal court hearing. Based on their written judgement, it is obvious
that they have either not read most of this and/or chosen to ignore it.
66. For example, as part of their own adopted judgement, the three
judges accept the Eames claim that Hoser withheld from readers a letter
that judge Neesham sent to the appeal court in for the 1997 perjury matter
appeal.
67. The reality is that the letter was printed on three pages of
the book, (namely pages 519-521) but (presumably) was not read by Eames
(I'm not allowed by law it seems to state that it seems like Eames may
have maliciously ignored the letter, which is in fact the only logical
reason based on the wording in his judgement) and likewise the appeal court
judges, hence their false accusation.
68. There are numerous other false statements of fact in the judgements,
that for space reasons are not dealt with here, but can and will be detailed
systematically via accurate cross-referencing at a High Court hearing as
needed to prove the truth of material and errors in judgement by the judges
if it is to be disputed.
69. It is ironic that instead of correcting errors in the Eames
judgement, Batt et. al. actually ignored the errors pointed out to them
and then added more errors of their own.
70. As a trend, like Eames, Batt et. al. falsely accuse Hoser of
their own sins and repeatedly misrepresent the facts. For example:
They wrote:
"21. After a brief adjournment
Mr. Hoser handed up as the source of his statement a press clipping from
the Herald-Sun of 28 June 1997[20] apparently down-loaded from his
extensive data base."
The reality is that the judges had this on a CD-rom they'd been given days earlier, but chose not to look for it.
71. The judges then wrote:
"Mr. Hoser answered that, to his view, it was sufficient to check with the journalist. But the journalist’s article in no way supported the statement later published in the book."
which misrepresents the facts as they know it. The judges failed to note that the comments about Balmford's bias in the Demarco case came from the journalist, NOT the news story. That was merely the trigger for the inquiry. But of course the judges had demanded to see the news clip in the hope that they'd be able to catch Hoser out for not having it and then to (falsely) accuse the meticulously honest Hoser of lying about it's existence or the conversation with the person who wrote it. As the Demarco judgement was never published by the Supreme Court, a fact later discovered by the appeal court judges, but played down, Hoser had no other first hand source of information on that judgement other than from the journalist that sat in on the case. In other words Hoser's inquiries into the DeMarco matter were totally legal and above board.
72. Furthermore, if
there was any mistake it was the fault of the court for not making the
judgement available to legitimate researhers such as Hoser and NOT Hoser,
which is even more ironic as even in The Hoser Files published in
1995, Hoser called for all judgements to be made publicly available to
allow for scrutiny and to protect judicial officers from false claims.
Hence another Hoser proposition had been vindicated by Batt et. al.
73. The judges Batt
et. al. misrepresented the facts in paragraphs 14-16 of the judgement re
judge Neesham and falsely implied that transcript of the case as reproduced
in the book Victoria Police Corruption -2 was inaccurate.
It was not. The only inaccurate transcript was that falsely attributed
to the book by Judge Eames!
74. In their judgements, the judges Eames and Batt, et. al. claim
that Hoser had no evidence of bias for judges Neesham, Balmford and Adams.
In terms of all three, these judges didn't read all the relevant material
in the books, including other cases of relevance as detailed and cited.
The evidence of bias was overwhelming and independently corroborated in
all three cases.
75. Denial of facts, doesn't cease to make them exist. We
saw that with the Thredbo disaster when a false denial ultimately led to
Hoser's jailing (see below) and yet the original problem identified by
the complainant Hoser (that hadn't been investigated and therefore allegedly
didn't exist), still manifested in a catastrophic way. An irony in terms
of NPWS corruption causing the Thredbo landslide was that a 1993 NPWS media
release denying the claims in Hoser's book Smuggled, was improperly
given to the jury in the perjury trial to show that Hoser is prone to making
false statements, which was used as a basis to convict him. Hoser
was in jail in 1997 as a follow-on from the events surrounding the false
denials and this perjury matter when the landslide occurred.
76. In other words the man who sounded the warning for it repeatedly
and directly in the past was sitting in jail, while the corrupt bureaucrats
sabotaging the truth continued to sit in well paid jobs on the outside!
77. In terms of the defective judgement by Batt et. al., as another
example, the judges make much of a "DeMarco case" and fail to note another
case of bias involving the same (now allegedly unbiased) Judge Rosemary
Balmford, that was reported elsewhere in the very same book (but missed
by Eames and Batt et. al.).
That decision involving a toxic waste dump set to be built at Niddrie,
Victoria, the seat of Rob Hulls, was actually brought to Hoser's attention
by Rob Hulls himself who made the same claims of bias against Balmford's
30 March 1999 decision as Hoser had done for her 1994 decision (while Hulls
was in opposition). Then when in government, Hulls personally had his party
overturn her (biased) decision at the government level.
78. In other words it was a situation that to allege bias against
judicial officers was OK and legal until mid 2001, whereupon Rob
Hulls suddenly changed his mind and then had Hoser retrospectively charged.
79. Also of note are the numerous covering statements in the allegedly
contemptuous books to the effect that the books are not an attack on the
legal system as a whole and seek to enhance and not attack it.
80. Key terms such as corrupt are defined in the books so that there
cannot be any dispute as to what is being said and unlike most other authors,
concessions are made by Hoser in terms of the potential accuracy of the
books and potential for error. Notwithstanding this, none of the
alleged errors in the books as stated by judges Eames or Batt, et. al.
do in fact check out as errors. For all items the judges are in fact
in error.
81. For the record, in relation to the 1997 perjury conviction,
Hoser sought leave to appeal to the High Court and was refused. Among
the grounds to be argued was that Hoser was denied a fair trial in that
case because he was denied a lawyer in spite of a special application as
per the law to a County Court Judge (Glenn Waldron). A later appeal
to the High Court was upheld on the same grounds (the Phung matter).
82. In relation to another of Hoser's arguments, namely that the
DPP had inside information on jurors and their past infractions with people
in government (as seen in the Neesham matter when a juror got barred by
the crown), there was also a later appeal by another person (Katsuno) and
that too was successful.
It is perhaps strange that a corruption whistleblower is refused appeals
on grounds that are accepted by judges for other people with real criminal
histories and not ones that are fabricated. Phung and Katsuno were
both hardened criminal drug dealers, given a second chance based on "technicalities"
not allowed to Hoser.
It leads to an obvious question by law-abiding Australians as to whom their
courts seek to protect.
PART III
Brief statement of the applicant's argument
83. The applicants argument is too lengthy to be properly summarized
within the confines of this form but much of the legal argument is within
the written submissions tendered to the Appeal Court and should be read
by the High Court judges. However it includes the following legal points.
- Is contempt by scandalizing the court as defined in the terms
of this case by Eames and Batt et. al. a legally possible charge? If so,
then the applicant argues that the books are not in contempt for numerous
reasons, including the following:
- Undeniable proof of evidence of good faith (as will be properly
detailed at the High Court hearing and has so far been ignored by lower
court judges in spite of adequate proof in the books themselves and elsewhere).
- The factual basis supporting the claims alleged to be in contempt
of court.
- The right of freedom of speech as implied by the Lange and other
matters and the UN Declaration of Human Rights and other matters.
- The right of the Australian voting public to be able to freely
discuss matters of political importance, including in relation to this
case, the selection of judges and magistrates by politicians, including
criteria, sackability, law making and so on, as detailed in numerous sections
of the said books, including chapters that deal specifically with politicians
and their selection of judicial persons, including mates, adverse comments
from opposing politicians and so on.
- The definition of contempt as applied to the said books is too
vague and imprecise as to be either properly measurable or definable and
hence cannot be fairly applied against the applicants and/or if applied
to the ridiculous extreme as seen in this case could result in hundreds
of thousands of Australian being at risk of prosecution for contempt by
scandalizing the court.
- The case against the applicants relies upon assumptions that are
either ridiculous or cannot be tested and/or confuse basic terms.
- Included is "public faith in the legal system" which cannot be
defined or measured in terms of all Australians. It also fails to
define the obvious difference between public faith (in terms of believing
that the courts get things right) with public obedience in terms of people
obeying court orders.
- The charge against the applicants must fail as at no time does
the applicant advocate destruction or damage to the legal system, or even
so much as civil disobedience, but rather advocates means to improve the
system, (such as via mandatory taping), and hence the contempt charge has
no real solid basis.
- The charges against the applicants must be contrary to freedom
of speech and for that matter to the courts (as unnecessarily heavy handed)
in that it attacks an alleged threat that was never present and clearly
restricts freedom of speech by any definition.
84. Besides reading this and the other "usual" documents in terms
of deciding whether or not to grant special leave to appeal, the judge
or judges of the High Court should also read the two summary documents
as presented to the court of appeal which those judges apparently ignored
the bulk of.
85. In terms of the Court of Appeal judgement, space precludes much
comment on it, but the following points are noted. The judges wrote:
"The respondent gave notice to the Attorneys-General of the Commonwealth,
the other States and the internal Territories pursuant to s.78B of the
Judiciary Act 1903 (C’th) of a constitutional matter that might arise under
the Constitution or involve its interpretation, namely, whether, and to
what extent, the law of contempt of court infringes the implied constitutional
freedom of communication concerning political and government matters."
86. The High Court should resolve this matter and in some detail
now, so that other journalists and authors know their legal limits and
so too do the various Attorney Generals, including those who seek to "protect"
their mates in the judiciary and those (sometimes the same people) who
may seek to attack judicial officers appointed by persons of the other
side of politics.
87. The appeal court judges (wrongly) accepted the bulk of the Eames
judgement which was shown to be incorrect in my submissions. The
appeal court judges also said:
"18. It is sufficient for
us to say that we entirely agree with his Honour’s conclusion and adopt
his reasons as our own."
In terms of Hoser's written submissions they wrote:
"The Court is of the view, however, that in the circumstances we have explained, nothing is to be gained by descending into detail, whether by way of refutation or discussion."
That is because the judges knew that all Hoser's factual arguments were correct and so too most legal ones!
88. A full list of the many defects in the judgement by Batt et. al. in terms of numerous factual errors has been prepared and can be provided to the High Court judge/s upon request. The detail and factual rebuttal of the claims exceeds the ten pages allotted by the High Court registry for this document.
89. Eames and Batt et. al. appear to have cherry picked paragraphs out of context from various contempt judgements to form the (predetermined?) view that Hoser was in contempt. However a realistic appraisal of the relevant legal authorities as cited at the rear of this document and quoted in context shows that Hoser was not in contempt and that there are countless free speech and related arguments in favor of this obvious proposition, including the Canadian Kopyto case (apparently ignored by Batt. et. al.), and misrepresented by Eames.
90. Another point of argument is that the claims by Hoser of bias against judges is meant to be hanging offence in the eyes of Batt et. al. and Eames. However it is a fairly common human state and to try to allege that judicial officers don't have bias is so patently ridiculous that by enforcing such a view (as is being done in this case) is scandalizing the legal system far more than anything Hoser has ever written.
91. We all know that judicial officers have biases, including Rob Hulls (who charged Hoser with contempt) and for his part he's come under criticism in public from Robert Richter QC and many others for only appointing people with vaginas to judicial positions, leading Hulls to reply that he's merely making the judiciary less biased (see Stateline broadcast dated 28 November 03, also at: http://www.abc.net.au/stateline/vic/content/2003/s999740.htm). Hulls said:
"We absolutely kid ourselves as a community if we think the best and brightest are just white Anglo-Saxon males with a newly pressed, freshly pressed old school tie, that's just not the case."
92. Importantly, Judge Eames claimed Hoser had been waging a sophisticated campaign against the legal system. There was no evidence to support the claim and based on the nature of the books and their results, they provided none either. Furthermore in the 2 years between the time of publication and the malicious initiation of proceedings against Hoser, Hoser had published two other books on Taxi driving and several large scientific papers on snakes, meaning that if (as Eames had falsely asserted) there was a battle being waged, then Hoser had moved on and it was all over.
93. Hulls and by extension his appointed judges in the Victorian Supreme Court have in effect dragged Hoser into yet another unwanted confrontation with people in the legal system and are themselves bringing the legal system they are claiming to defend into even further disrepute.
94. It' Hulls and
his appointed judges who have and are undermining public confidence in
the legal system and it's officers. It is they who are waging a sophisticated
battle, and in this case it's against law abiding people.
Part IV
Reasons why leave or special leave should be granted
95. Included
are the reasons as more-or-less outlined in the arguments and/or:
The case is a matter of utmost importance as the following matters are
raised:
- Freedom of speech and limitations to this as applied via contempt
by scandalizing law.
- The witch-hunt of whistleblower Raymond Hoser and the treatment
of whistleblowers in general by the legal system is at issue.
- The need to properly define contempt in terms of scandalizing
in Australia in all likely scenarios, which has not yet been done by the
High Court, noting the extra-ordinary steps taken by author and publisher
to comply with the law prior to publication.
- To define whether or not retrospectivity is allowed in terms of
government policy to charge for alleged contempt's and/or how long such
retrospectivity is allowed.
- To define whether or not double jeopardy is allowed in terms of
contempt matters as occurred here.
- To define whether it is allowable for any mistake of fact made
in relation to a statement about a judicial officer to be defined as contempt,
while serious mistakes against litigants by judges are allowable "human
errors".
- To define whether or not contempt laws are to be applied universally
to all Australians, or merely differentially, at the whim of Attorney Generals
to suit overtly political ends and with exemptions for Head-kicking Attorney
Generals (like Hulls) and the like.
- To define the currently vague terms such as the several seen in
the part sentence that follows from the appeal court judgement.
"a real risk that as a matter of practical reality those passages (in
what context?) had a tendency to undermine the confidence of the public
in the administration of justice and lower the authority of the courts".
96. Numerous media commentators, including Terry Lane of the
ABC, Whistleblowers Australia and others have condemned the use (abuse?)
of contempt law by Rob Hulls and his mates as a means to attack whistleblower
Raymond Hoser and by precedent others. The High Court should remove
this possibility.
Part V:
If the applicant fails to get the orders he seeks, he should not have to
bear the prosecution costs for a number of reasons including:
A/ He lacks the financial means to do so. B/ He is unrepresented.
C/ Case law states that an accused should not pay the prosecutions
costs and that a person is allowed the right of appeal of criminal conviction
and/or sentence. D/ Other reasons which the applicant seeks to give
in oral argument if required to do so. E/ The applicant should not
have been charged and convicted in the first instance. F/ The public interest
of Hoser's position.
Part VI:
LIST OF LEGAL AUTHORITIES RELIED UPON (MOST IMPORTANT ONES)
Attorney General for
the State of NSW v John Fairfax Publications [1999] NSWSC 318 (9 April
1999)
Colina v Torney (Family Court, Ellis J, 2 March 2000)
R. v. Hoser [1998] 2 V.R. 535.
R v Kopyto (1987) 47 DLR (4th) 213; (1987) 62 OR (2d) 449
Moonee Valley City Council v Quadry Industries Pty Ltd [1999] VSC 95 (30 March 1999)
O'Shane v Fairfax Publications Pty Ltd [2002] NSWSC 807 (11 September 2002)
Phung v Cornall & Ors [1999] VSC 320 (7 September 1999)
Popovic v Herald & Weekly Times Ltd and Anor [2002] VSC 174 (21 May 2002)
Price v Crikey Media Pty Ltd & Anor [2001] VSC 392 (4 October 2001)
United Nations Declaration of Human Rights as ratified by Australia
Zoccoli v Hoser & Anor [2000] VSC 152 (18 April 2000) including the Affidavit by Anthony Adam Zoccoli dated 27 March 2000.
ALSO OF IMPORTANCE
Ambard v Attorney-General for Trinidad and Tobago [1936] AC 322
Anissa Pty Ltd v Parsons (on application of the Prothonotary of the Supreme Court of Victoria) [1999] VSC 430 (8 November 1999)
Attorney-General New South Wales v Mundey [1982] 2 NSWLR 887
Attorney-General v Times Newspapers Limited [1974] AC 273
Bell v Stewart (1920) 28 CLR 419
British American Tobacco Australia Services Limited v Cowell (as representing the estate of Rolah Ann McCabe, deceased) [2002] VSCA 197 (6 December 2002).
Button V The Queen [2002] WASCA 35 (25 February 2002).
Davis v Baillie [1946] VLR 486
Exparte Bread Manufacturers Ltd; re Truth and Sportsman Ltd (1937) 37 SR (NSW) 242
Gallagher v Durack (1983) 152 CLR 238
Gilbert Ahnee v Director of public Prosecutions [1999] 2 AC 294; [1999] 2 WLR 1305
Gilfillan v County Court of Victoria and anor [2001] VSC 360 (13 September 2001)
Hammersley Iron Pty Ltd and Ors v Avon Francis Lovell and Ors [1998] WASCA 133 (22 May 1998)
Hinch and Macquarie Broadcasting Holdings Limited v The Attorney General for The State of Victoria (1987) 164 CLR 15 F.C. 87/046.
Hoser v The Queen M50/2000 (16 February 2001)
John Fairfax and Sons v McRae (1954) 93 CLR 351
John Fairfax Publications Pty Ltd v Attorney-General (NSW) [2000] NSWCA 198
John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81
Katsuno v The Queen [1999] HCA 50 (30 September 1999
Keeley v Brooking (1979) 143 CLR 162
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Levy v The State of Victoria (1997) 189 CLR 579
Lewis v Ogden (1984) 153 CLR 682
Magistrates' Court at Heidelberg v Robinson [2000] VSCA 198
Maslen v The Official Receiver (1947) 74 CLR 602
McCabe v British American Tobacco Australia Services Limited [2002] VSC 73 (22 March 2002).
Mickelberg v The Queen (1989) 167 CLR 259 F.C. 89/028
Mickelberg v The Queen P12/1999 (16 June 2000)
Mickelberg v The Queen P13/1999 (16 June 2000) (Note different to above)
Mickelberg v The Queen [2000] WASCA 163 (15 June 2000)
Mickelberg v The Queen [2000] WASCA 219 (18 August 2000)
Mickelberg v The Queen [2000] WASCA 319 (30 October 2000)
Murphy v. Lush (1986) 60 ALJR 523 at p.524.
Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 F.C. 92/032
Pearce v The Queen [1998] HCA 57 (10 September 1998)
Pennekamp v State of Florida (1946) 328 US 331
Peter Mickelberg V The Queen and Ors [1999] WASCA 1003 (12 February 1999)
Re Perkins; Mesto v Galpin & Ors [1998] VICSC 41 (3 April 1998)
R v Anton Hofschuster No. 23 of 1992 [1993] 70 A Crim R 260; [1993] NTSC 89 (1 November 1993)
R v Brett [1950] VLR 226
R v Crockett [2001] VSCA 95
R v Dunbabin (1935) 53 CLR 434
R v Fletcher; ex parte Kische (1935) 52 CLR 248
R v Gray [1900] 2 QB 36
Kopyto v. Clarfield, (1999-03-03) ONCA C29191
R v Hoser and Kotabi Pty Ltd [2001] VSC 443 (29 November 2001)
R v Hoser and Kotabi Pty Ltd [2001] VSC 480 (6 December 2001)
R v McNamara [1995] 1 VR 263 at 270-272
R v Nicholls (1911) 12 CLR 280
Rann v Olsen [2000] SASC 83
Re: Norman Gallagher and: Hon. Peter Durack (1982) 68 FLR 210 No. V43 of 1982 Contempt of Court 3 IR 425
Re Perkins; Mesto v Galpin & Ors [1998] VICSC 41 (3 April 1998)
Re: Raymond John Mickelberg And: Australian Federal Police No. W83/138 FoI
Re: Raymond John Mickelberg And: Australian Federal Police No. W85/175 AAT No. 2774 FoI
Raymond John Mickelberg and Ors v The Queen and Ors [1998] WASCA 42 (27 February 1998)
Raymond John Mickelberg and Ors v The Queen and Anor [1998] WASCA 55 (12 Feb 1998)
Re Borowski (1971) 19 DLR (No.3d) 537
Re Colina & Anor; Ex Parte Torney [1999] 200 CLR 386
Re Perkins; Mesto v Galpin & Ors [1998] VICSC 41 (3 April 1998)
Re: Special Reference from Bahaman Islands [1893] AC 138
Registrar of the Court of appeal v Willesee [1984] 2 NSWLR 378
Saltalamacchia v Parsons [2000] VSCA 83 (15 May 2000)
Skrijel v Mengler & Ors [1998] VSC 71 (5 October 1998)
Solicitor General v Radio Avon Ltd [1978] 225
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104
Torney, Ex parte; Re Colina & Anor M85/1998 (15 June 1999)
John Allan Witham v John
William Holloway F.C. 95/035 (1995) 131 ALR 401, (1995) 69 ALJR 847
Part VII:
The applicant seeks to supplement this summary with oral argument.
Dated the
Fourth Day of February 2004.
SIGNED
Raymond Hoser – Applicant