- and -
The Queen ( ex parte the Attorney General for the State of Victoria)
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.
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" 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?
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.
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:
"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 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 journalistís 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.
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 (Cíth) 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 Honourís 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.
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.
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.
LIST OF LEGAL AUTHORITIES RELIED UPON (MOST IMPORTANT ONES)
Attorney General for the State of NSW v John Fairfax Publications  NSWSC 318 (9 April 1999)
Colina v Torney (Family Court, Ellis J, 2 March 2000)
R. v. Hoser  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  VSC 95 (30 March 1999)
O'Shane v Fairfax Publications Pty Ltd  NSWSC 807 (11 September 2002)
Phung v Cornall & Ors  VSC 320 (7 September 1999)
Popovic v Herald & Weekly Times Ltd and Anor  VSC 174 (21 May 2002)
Price v Crikey Media Pty Ltd & Anor  VSC 392 (4 October 2001)
United Nations Declaration of Human Rights as ratified by Australia
Zoccoli v Hoser & Anor  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  AC 322
Anissa Pty Ltd v Parsons (on application of the Prothonotary of the Supreme Court of Victoria)  VSC 430 (8 November 1999)
Attorney-General New South Wales v Mundey  2 NSWLR 887
Attorney-General v Times Newspapers Limited  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)  VSCA 197 (6 December 2002).
Button V The Queen  WASCA 35 (25 February 2002).
Davis v Baillie  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  2 AC 294;  2 WLR 1305
Gilfillan v County Court of Victoria and anor  VSC 360 (13 September 2001)
Hammersley Iron Pty Ltd and Ors v Avon Francis Lovell and Ors  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)  NSWCA 198
John Fairfax Publications Pty Ltd v Doe (1995) 37 NSWLR 81
Katsuno v The Queen  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  VSCA 198
Maslen v The Official Receiver (1947) 74 CLR 602
McCabe v British American Tobacco Australia Services Limited  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  WASCA 163 (15 June 2000)
Mickelberg v The Queen  WASCA 219 (18 August 2000)
Mickelberg v The Queen  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  HCA 57 (10 September 1998)
Pennekamp v State of Florida (1946) 328 US 331
Peter Mickelberg V The Queen and Ors  WASCA 1003 (12 February 1999)
Re Perkins; Mesto v Galpin & Ors  VICSC 41 (3 April 1998)
R v Anton Hofschuster No. 23 of 1992  70 A Crim R 260;  NTSC 89 (1 November 1993)
R v Brett  VLR 226
R v Crockett  VSCA 95
R v Dunbabin (1935) 53 CLR 434
R v Fletcher; ex parte Kische (1935) 52 CLR 248
R v Gray  2 QB 36
Kopyto v. Clarfield, (1999-03-03) ONCA C29191
R v Hoser and Kotabi Pty Ltd  VSC 443 (29 November 2001)
R v Hoser and Kotabi Pty Ltd  VSC 480 (6 December 2001)
R v McNamara  1 VR 263 at 270-272
R v Nicholls (1911) 12 CLR 280
Rann v Olsen  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  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  WASCA 42 (27 February 1998)
Raymond John Mickelberg and Ors v The Queen and Anor  WASCA 55 (12 Feb 1998)
Re Borowski (1971) 19 DLR (No.3d) 537
Re Colina & Anor; Ex Parte Torney  200 CLR 386
Re Perkins; Mesto v Galpin & Ors  VICSC 41 (3 April 1998)
Re: Special Reference from Bahaman Islands  AC 138
Registrar of the Court of appeal v Willesee  2 NSWLR 378
Saltalamacchia v Parsons  VSCA 83 (15 May 2000)
Skrijel v Mengler & Ors  VSC 71 (5 October 1998)
Solicitor General v Radio Avon Ltd  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
The applicant seeks to supplement this summary with oral argument.
Dated the Fourth Day of February 2004.
Raymond Hoser Ė Applicant