Pat's wobbly evidence in defamation case

Remembering the great Pat O'Shane's defamation case against culture warrior Janet (The Planet) Albrechtsen ... Pat comes home at the trial and most of the damages on appeal ... When Fairfax defended Albrechtsen ... From Justinian's Archive, April 15, 2004

O'Shane: allaged breach of duty

Controversial NSW magistrate Pat O'Shane was successful in her defamation action against The Sydney Morning Herald. She sued over an item in the paper's comment pages by right-wing columnist Janet Albrechtsen. 

Acting Justice Rex Smart rejected the defences of comment and qualified privilege and awarded the aggrieved plaintiff $220,000 in damages. 

She pleaded defamatory imputations that she is biased; biased against the police; in breach of her duty as a magistrate in dismissing charges against four women who pleaded guilty to defacing a billboard when she should have found them guilty; dismissed charges against Aborigines because she believed the charges were an habitual form of police harassment. 

It was an odd case in many respects, not least because Rex didn't accept aspects of Pat the Rat's evidence. 

Much of the difficulty arose because Albrechtsen regurgitated a claim from an earlier Sydney Morning Herald interview with O'Shane conducted by journalist Adrian McGregor. 

He reported that O'Shane in one day dismissed 116 charges against Aboriginal defendants at Brewarrina Local Court. "Almost without exception" the charges were for offensive language which, he said, O'Shane believed were a form of "habitual police harassment of Aborigines". 

The claim was wrong, but O'Shane didn't correct McGregor. However, when Albrechtsen repeated it, the paper was sued and it was translated into one of the defamatory imputations that arose from the article. 

The plaintiff accepted the figure of 116 charges being dismissed when answering interrogatories. 

However, in evidence at the trial she denied she had dismissed 116 charges against Aboriginal defendants in a single day in 1989. She also denied that she had told McGregor that these charges were a form of habitual police harassment. 

Smart said the answer from the plaintiff was incorrect, whereas McGregor's evidence "impressed me as being correct". It's not often that a judge will accept the word of a reptile over that of a judicial officer. Something's amiss. 

The judge went on to criticise O'Shane evidence in relation to the resolution of complaints about her conduct as a magistrate lodged with the Judicial Commission. 

"She could not remember whether there were any such complaints outstanding as at December 16, 1989. I thought that evidence was incorrect." 

Albrechtsen with a fan 

Nor could the plaintiff recall prior to December 16, 1999 whether her decisions in the Kanaan police shooting case had attracted considerable criticism. Again, that evidence was not considered to be correct. 

On the other hand Albrechtsen, the author of this beastly attack, was found to be a truthful witness, honestly believed in the truthfulness of the imputations and was not motivated by malice. 

No matter, Pat won the round. Fairfax appealed and Giles, Ipp and Young shaved $45,000 off Pat's damages of $220,000.

She lost 50 percent of her imputations on appeal, yet the reassessed damages were only reduced by 20 percent. 

The costs order was that Fairfax pay the plaintiffs costs for the trial and 25 percent of the the newspaper's costs for the appeal. A special leave application by the publisher went nowhere. 

It was a hard fought battle with Bret Walker SC for Fairfax (Albrechtsen) and Bruce McClintock SC for the magistrate.