CDL v Seven West Media
[2025] WASC 53
•24 FEBRUARY 2025
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CDL -v- SEVEN WEST MEDIA [2025] WASC 53
CORAM: SOLOMON J
HEARD: 29 JANUARY 2025
DELIVERED : 29 JANUARY 2025
PUBLISHED : 24 FEBRUARY 2025
FILE NO/S: CIV 1055 of 2023
BETWEEN: CDL
Plaintiff
AND
SEVEN WEST MEDIA
First Defendant
WEST AUSTRALIAN NEWSPAPERS
Second Defendant
Catchwords:
Defamation - Admissibility of proposed evidence - Admissibility of evidence that seeks to displace prior criminal convictions in subsequent civil proceedings - Case management direction - Early ruling on proposed evidence
Legislation:
Criminal Code Act 1913 (WA, s 218, s 220), s 321A
Rules of the Supreme Court 1971 (WA), O 1 r 4(b), O 1 r 4(b)(1), O 4A r 2, O 4A r 2(2)
Result:
Application granted
Category: B
Representation:
Counsel:
| Plaintiff | : | In Person |
| First Defendant | : | Ms R Young SC & Mr P C McCarthy |
| Second Defendant | : | Ms R Young SC & Mr P C McCarthy |
Solicitors:
| Plaintiff | : | In Person |
| First Defendant | : | Steedman Stagg Lawyers |
| Second Defendant | : | Steedman Stagg Lawyers |
Cases referred to in decision:
Bennett v State of Western Australia [2012] WASCA 70
CDL v State of Western Australia [2022] WASCA 145
CDL v State of Western Australia [2022] WASCA 18
Mickelberg v Director of the Perth Mint [1986] WAR 365
Smargiassi Nominees Pty Ltd v Shire of Collie [2024] WASC 16
SOLOMON J:
(This judgment was delivered extemporaneously on 29 January 2025 and has been edited from the transcript).
This is the defendants' application for a ruling that certain aspects of intended evidence sought to be adduced by the plaintiff in respect of this matter should be the subject of the court's determination that the proposed or anticipated evidence is inadmissible.
Background
It is necessary to give a brief background in respect of this claim. The plaintiff's claim relates to an article published in the West Australian newspaper on 5 March 2022. The article is entitled 'Child abuser loses sentence appeal'.
It is a short article that is accompanied by a photo of the plaintiff and reads as follows:[1]
A paedophile lollipop man, who was jailed for more than a decade for his sexual abuse of several young girls, has had his appeal against that jail term thrown out by WA's highest court. The plaintiff, whose picture is on the right, filmed the abuse, some of which went on for years, but he refused to accept the verdict of a jury which, in 2019, found him guilty of eight charges of persistent sexual abuse of a child and producing child pornography. He was also found to have hoarded more than 26,000 independent videos and photographs depicting children as young as one. The plaintiff was a traffic warden at a Western Suburbs primary school for 14 years before his arrest. After his detention, he continued to claim nothing sexual was shown in any of the videos. In an appeal, which he ran himself, the plaintiff said that the judge accepted hearsay evidence, used opinion evidence that was not factual and ignored professional opinion.
[1] Clarke T, 'Child abuser loses sentence appeal', The West Australian (5 March 2022).
Defamatory imputations
The plaintiff issued proceedings for defamation against the defendants in December 2022. A re-amended statement of claim was filed and dated 5 April 2024. The statement of claim pleads imputations arising from the newspaper article in various ways, all of which the plaintiff contends are defamatory.
It is not necessary for me to canvass all the pleaded imputations but, by way of example, the plaintiff contends by his statement of claim that the article creates the imputation that the offence occurred because the plaintiff has a primary or exclusive sexual attraction to prepubescent children with no other alternatives conceivable; alternatively, that the article gives rise to the imputation that the defendants had knowledge that the plaintiff had been diagnosed in a professional capacity to have such a sexual attraction to prepubescent children. That is but one of the various imputations pleaded by the plaintiff.
I have not exhaustively listed the imputations and the matters that relate to or arise from those imputations but, in broad terms, they all emanate from the plaintiff's concern and complaint that the article falsely misrepresents him as a paedophile. The plaintiff's primary contention in respect of this proceeding is that the imputations which he seeks to draw from the article are not true. That is because the plaintiff maintains that he does not have a sexual attraction to prepubescent children and is not a paedophile.[2]
[2] Re-Amended Statement of Claim, 5 April 2024, 2 - 4.
Pursuant to the court's orders, the plaintiff filed on 15 October 2024 an outline of evidence proposed to be given, or anticipated to be given, by witnesses that he seeks to call on his behalf in the prosecution of this proceeding. Those witness outlines of proposed evidence are in the form of attachments A to J of that document. I return to the content of those witness statements at [28] - [37] of these reasons.
Criminal proceedings
In the meantime, it is necessary to say something about the criminal conviction. The plaintiff was charged on indictment in the District Court with three counts of persistently engaging in sexual conduct with a child under the age of 16 years contrary to s 321A of the Criminal Code Act 1913 (WA) (Criminal Code), five counts of producing child exploitation material contrary to s 218 of the Criminal Code and one count of possession of child exploitation material contrary to s 220 of the Criminal Code.
The plaintiff was tried before a judge and jury of the District Court. The plaintiff pleaded guilty in respect of count 9 and not guilty in respect of counts 1 to 8. Following the trial, on 16 April 2019, the jury found the plaintiff guilty of counts 1 to 6 and count 8, and not guilty of count 7.[3]
[3] transcript, CDL v State of Western Australia, District Court of Western Australia, 9 July 2018 to 2 August 2019, 144; 146 - 147.
The offending in respect of count 1 took place between October 2011 and April 2013 and related to the plaintiff persistently engaging in sexual conduct with E, a child under the age of 16 years. E was born in 2002.[4]
[4] ts 146.
Count 2 concerns the same charge in respect of C, who was the same age as E. The conduct was also said to have occurred between October 2011 and April 2013.[5]
[5] ts 146.
In respect of count 3, the plaintiff was found guilty of persistently engaging in sexual conduct against B, also a child under the age of 16 years, and that conduct occurred between April 2013 and April 2016. The child, B, was born in 2012 and therefore was between 1 and 4 years old at the time of the offending.[6]
[6] ts 147.
Counts 4, 5 and 6 are essentially charges which relate to video footage depicting the offences in counts 1, 2, and 3. These videos were found to constitute child exploitation material.[7]
[7] ts 147.
Count 7 is a further charge for the production of child exploitation material in relation to Z, occurring between 8 December 2011 and 7 January 2012. The child, Z, was the same age as both C and E (born in 2002). The jury acquitted the plaintiff of this offence.[8]
[8] ts 147
Count 8 relates to the production of child exploitation material between 2 December 2012 and 13 December 2013 in relation to M, who was aged 11 or 12 at the time of offending.[9]
[9] ts 147.
Count 9 is the offence of possession of child exploitation material. The plaintiff entered a plea of guilty to this offence.[10]
[10] ts 147.
The plaintiff was sentenced with a total effective sentence of 12 years and six months imprisonment. The prison sentence was backdated to commence on 14 April 2016, which was the date the plaintiff was taken into custody. The plaintiff remains in custody at the date of this application.[11]
[11] Transcript of Sentencing Remarks, CDL v Western Australia, District Court of Western Australia, 2 August 2019, 21 (Sentencing Remarks).
I have reviewed the transcript of the District Court proceedings, which included a direction from the trial judge in respect of the definition of sexual conduct in the course of the trial, and the directions given to the jury in advance of their retirement to consider their verdict.[12]
[12] ts 221 - 222.
It is plain from the transcript of the trial judge's remarks and the directions to the jury that the issue that was left to the jury to decide was the issue of whether the plaintiff's conduct in respect of the children was sexual and therefore indecent. That question arose because the defence advanced by the plaintiff at his criminal trial was that at least two of the children suffered from a particular health condition to which he was attending, and his conduct in relation to the third child was also for sanitary reasons or health reasons.[13] Therefore, in the plaintiff's submission, his conduct was not sexual and therefore not indecent and therefore not a crime. That was the very issue left to the jury.
[13] ts 222.
As I have said, the jury found the plaintiff guilty of 7 of the 8 counts in respect of which he pleaded not guilty. In the learned trial judge's sentencing remarks, she made reference to and indeed made findings beyond reasonable doubt that the plaintiff's conduct was sexual and that he had committed multiple indecent dealings against two young girls and a very young child under the age of two.[14]
[14] ts 462.
Court of Appeal proceedings
The plaintiff appealed his conviction to the Court of Appeal, and on 4 November 2022, the Court of Appeal dismissed the appeal. That is reported in CDL v State of Western Australia [2022] WASCA 145.
It is apparent from that decision that in the course of his defence, the plaintiff raised the issue that his own biological son, K, shared the same autoimmune condition or health condition as E and C, in respect of whom the plaintiff asserted at his criminal trial that his conduct was not sexual, but motivated by health concerns. That appears most prominently in [61] of the decision of the Court of Appeal.[15]
[15] CDL v State of Western Australia [2022] WASCA 145, [61].
From [116] of the Court of Appeal judgment it is also evident that an aspect of the appeal by the plaintiff against his criminal conviction was a complaint about the competence of his defence counsel at trial.[16]
[16] CDL v State of Western Australia [2022] WASCA 145, [116].
The plaintiff also appealed against the sentence. The Court of Appeal dismissed that appeal on 18 February 2022, and that is reported at CDL v State of Western Australia [2022] WASCA 18.
In the sentencing appeal decision, the Court of Appeal also noted the trial judge's observation that in respect of all the victims, the plaintiff denied behaving in a sexual or inappropriate way. The Court of Appeal confirmed the correctness of both the conviction and the sentence, and indeed the inference to be drawn about the sexual nature of the conduct. At [75] of the sentencing appeal decision, the Court of Appeal said:[17]
... [N]ot only did the appellant commit the offences the subject of counts 1, 2 and 3, he recorded what he had done being counts 4, 5 and 6. The only reasonable inference that can be drawn from the appellant's recording of the material is that he wished to watch it in the future for his sexual gratification.
[17] CDL v State of Western Australia [2022] WASCA 18, [75].
I provide that background so as to make it clear that the issue of whether the plaintiff's conduct was to attend to health concerns, or was sexual and therefore indecent, was the central issue of his criminal conviction.
I return now to the witness statements, or the statements of proposed evidence sought to be adduced by the plaintiff attached to the document of 15 October 2024 referred to at [7] above.
Outline of evidence proposed to be given
The plaintiff seeks to bring or anticipates bringing evidence from the mother of the children the subjects of counts 1 and 2, as well as the children themselves the subjects of counts 1 and 2. Those children are now adults. Overwhelmingly, the proposed evidence appears directed to showing that the plaintiff's conduct was not sexual, but rather was responsive to health concerns and the children's medical condition. That is so in respect of each of the then children the subjects of counts 1 and 2, and their mother.[18]
[18] Amended Witness Outline of Evidence Proposed to be Given by the Plaintiff's Witnesses, 15 October 2024 (Amended Witness Outline), 4 - 6.
The plaintiff also proposes to adduce evidence from the mother of the other two children, the subjects of the convictions relating to B and M. That evidence, too, is primarily, if not overwhelmingly, directed to demonstrating that the plaintiff's conduct was motivated by health and medical concerns, and was not sexual.[19]
[19] Amended Witness Outline, 7.
The plaintiff also proposes to bring evidence from the then child, M, who was the subject of count 8. That child too is now an adult, and that evidence too is principally if not overwhelmingly directed to seeking to demonstrate that the plaintiff's conduct was motivated by health or medical concerns and was not sexual.[20]
[20] Amended Witness Outline, 8.
In addition, the plaintiff proposes to bring evidence from his defence counsel at trial, Mr Max Crispe. That evidence is primarily directed to demonstrating, it appears, Mr Crispe's alleged incompetence and an asserted failure to bring evidence. The plaintiff maintains that such evidence would have been exculpatory and was available, such as medical evidence that was the subject of the plaintiff's direct advice to Mr Crispe as to its relevance and availability.[21]
[21] Amended Witness Outline, 9.
There are other aspects of the proposed evidence of Mr Crispe, relating to his medical fitness and communications relevant to the conduct of the plaintiff's defence at the criminal trial.[22]
[22] Amended Witness Outline, 9.
The plaintiff also seeks to bring evidence from his own biological son, K. The principal object of that evidence relates to the fact that his own biological son is a half-sibling, through his mother, of the then children who are the subjects of counts 1 and 2. The plaintiff says that the medical condition that was the subject of his concern in the criminal proceedings was shared by his own biological son because the condition is passed through the mother and therefore shared with the then children the subjects of counts 1 and 2.[23]
[23] Amended Witness Outline,10.
The plaintiff also proposes to bring evidence from a close friend. The plaintiff explained in oral submissions that this close friend witnessed at least some of the offending. He is therefore in a position to give evidence, the plaintiff contends, in respect of whether it was motivated by health concerns or was sexual. The plaintiff pointed out in his submissions that the police were also aware that the friend was present and witnessed the offending and is therefore in a position directly to give evidence.[24]
[24] Amended Witness Outline, 11.
The plaintiff further proposes to give evidence from the author of the article in the West Australian, a Mr Timothy Clarke. That evidence appears on its face, and as was explained by the plaintiff in oral submissions, to be directed to understanding what Mr Clarke knew of the matters beyond that which was written in the article. The plaintiff explained in oral submissions that the forensic function of that evidence is to demonstrate that Mr Clarke knew or must have known that the matters written in the article were untruthful. That is relevant to the question of whether the alleged defamation was undertaken in circumstances of aggravation or motivated by malice.[25]
[25] Amended Witness Outline, 12.
The plaintiff candidly accepted that he had not pleaded malice. Senior counsel for the defendants pointed to a reference to malice in the prayer for relief. But the plaintiff accepted that at this stage malice is not pleaded, and further explained that he is not in a position to plead malice because he does not yet know what Mr Clarke will say in respect of the matters about which he wishes to elicit evidence. As he does not know of those matters, he cannot presently, in good conscience, allege malice. The object of calling Mr Clarke is to determine or to confirm matters that the plaintiff suspects to be the case, at which point he says he will plead malice if the evidence falls that way.
The plaintiff has also provided an outline of his own proposed evidence.
Ruling on inadmissibility of evidence
I turn now to the orders sought by the defendants.[26] As senior counsel for the defendants accepted, it is somewhat unusual to make an order ruling on the inadmissibility of evidence proposed to be given before there is even so much as a signed witness statement. Senior counsel for the defendants submitted that it was in the inherent power of the court and consistent with case management principles for the court to make those rulings now, because the proposed evidence includes a very significant amount of evidence that the defendants contend is plainly inadmissible. It would be in the interests of justice and the efficient management of the case, therefore, to have that ruling now so that a more accurate assessment can be made of how long the trial will take, and so that a more appropriate and directed preparation for the case can be undertaken.
[26] Defendants' Outline of Submissions as to the Admissibility of the Evidence Proposed to be Led by the Plaintiff (13 December 2024), [2] - [3].
I observe also that Order 4A rule 2 of Rules of the Supreme Court 1971 (WA) provides that a court can make a case management direction for the attainment of the objects referred to in O 1 r 4(b)(1). Those objects include promoting the just determination of litigation and disposing efficiently of the business of the court, and various other important objects. The specific types of management directions that can be given that are set out in O 4A r 2(2), do not include, in terms, the type of order sought by the defendants. However, that sub-paragraph begins with the words: 'without limiting sub-rule (1)'. Therefore, it does not purport to be exhaustive and the question remains whether this management direction ought to be given either in the inherent power of the court or because it would promote the just determination of litigation or dispose efficiently of the business of the court, or fulfil any one of the other objects set out in O 1 r 4(b).
Although it is somewhat unusual, in my view, given the volume of the evidence objected to by the defendants, and in particular the proportion of the totality of the evidence the subject of objection, if those objections are properly made, it seems to me it would be proper and appropriate for a ruling to be made now about the admissibility of that proposed evidence. Given the proportion of the evidence the subject of objection to the totality of evidence proposed to be adduced by the plaintiff, it is plain that if this evidence cannot be led, it will lead to a very significant contraction of the amount of evidence, and therefore the length of the trial and aspects of preparation for the trial. I therefore consider that if the objections are properly made, the defendants' application ought to be granted.
The defendants have carefully set out the specific paragraphs to which objection is taken in respect of each attachment.
That takes me then to the determination of the relevant and applicable test for admissibility. Senior counsel for the defendants directed the court's attention to a number of decisions relating to the use that may be made of criminal convictions in subsequent civil proceedings between different parties. That is the case here because the civil proceeding - although involving the plaintiff who was the defendant at the criminal proceeding - involves a different defendant, being media outlets.
Before I turn to those authorities, I should observe that without wishing to traverse each sentence of the proposed outlines of proposed evidence, and speaking at a level of generality, there seems to me to be very considerable, if not insurmountable, difficulty in respect of evidence proposed to be given by any of the victims or their mothers, or anybody else, about the motivation of the plaintiff in perpetrating the offences.
Whether the conduct was sexual or motivated by health concerns may be something that can be inferred by surrounding circumstances in respect of which people can give evidence. But fundamentally, the subjective intent or motivation of the plaintiff is not something of which anyone else can give direct evidence. They are matters of which only the plaintiff could give evidence, and in respect of which others can draw inferences.
I put that to one side because that was not the principal submission advanced on behalf of the defendants. That may be because it is arguable that anyone who witnessed the offending could give evidence of surrounding circumstances from which inferences could be drawn. Rather, the principal basis upon which the defendants advance the objection to the evidence arises from the decision of Mickelberg v Director of the Perth Mint [1986] WAR 365 (Mickelberg).
Mickelberg test
In Mickelberg, the Director of the Perth Mint sued the Mickelbergs for the recovery of gold which the Director alleged they had stolen from the Perth Mint. The defendants, or at least some of them, had been convicted of that stealing. The question arose in an interlocutory application as to the use that could be made of those criminal convictions in the civil proceedings.[27] Burt CJ reviewed the authorities and at 372 set out the test for the admissibility of evidence that seeks to displace criminal convictions, or that might tend to displace criminal convictions. In respect of evidence that is intended to displace the prima facie evidence of the criminal conviction, Burt CJ said:[28]
[T]hat evidence must not only be fresh in the sense that it was not available at trial and could not by the exercise of reasonable diligence have then been obtained, it must also be evidence which entirely changes the aspect of the case.
[27] Mickelberg, 365.
[28] Mickelberg, 372.
It is a two-pronged test. First, it must be 'fresh' evidence in the manner described by Burt CJ. Secondly, it must be evidence which entirely changes 'the aspect of the case'.
Kennedy J also reviewed the authorities. Kennedy J concluded that the weight to be given to any convictions is a matter for the trial judge. His Honour went on to say that in the normal case there can be little doubt that considerable weight would be given to a verdict arrived at by a jury on findings made beyond reasonable doubt.[29]
[29] Mickelberg, 385.
The issue was reviewed, including with reference to the case of Mickelberg by the Court of Appeal in Bennett v The State of Western Australia[2012] WASCA 70 (Bennett). In that case Martin CJ, at [64], having further reviewed the authorities, said that it is clear that the decision in Mickelberg regarding the admissibility of a conviction as evidence of the facts giving rise to that conviction has been consistently followed in this jurisdiction.
It is the case that there are other authorities that take a less liberal approach to the incontrovertibility of a criminal conviction, or evidence that seeks to contravene a criminal conviction. I mention the decision in Smargiassi Nominees Pty Ltd v Shire of Collie [2024] WASC 16, a recent decision of Quinlan CJ, which reviews the principle of incontrovertibility. But that decision, as with these other decisions, concerns findings or a conviction in respect of the same parties that are the subject of the subsequent civil proceedings. That was not the case in Mickelberg, and it is not the case here.[30]
[30] Smargiassi Nominees Pty Ltd v Shire of Collie [2024] WASC 16 [186] - [188].
In the circumstances, I consider that I am bound to follow the conclusion of Martin CJ in Bennett, which adopts the test of Burt CJ in Mickelberg.[31] Therefore, the evidence will be inadmissible unless it is fresh evidence in the sense that it was not available and could not have been obtained with reasonable diligence, and is also evidence that entirely changes the aspect of the case.
[31] Bennett, [64].
Having identified the test, I turn back to the outlines of the proposed evidence.
Proposed evidence
As I have observed, the proposed evidence of the then children and the two mothers is directed principally, if not overwhelmingly, to the proposition sought to be advanced by the plaintiff in this defamation proceeding, that his conduct was not sexual. That evidence, it seems to me, seeks to directly contravene the outcome of the criminal proceedings. As I have said, whether the conduct was sexual or motivated by health or medical concerns was the very issue decided upon by the jury and the subject of the District Court trial judge's findings beyond reasonable doubt upon sentencing.[32] It follows that that evidence, unless it meets the test in Mickelberg, is inadmissible.
[32] Sentencing Remarks ts, 18.
In my view, the evidence the subject of objection in attachments A, B, C, D and E does not meet the test in Mickelberg, in that it is not fresh evidence that would not have been available upon reasonable diligence, and further it does not entirely change the aspect of the case. Indeed, it is the very aspect of the case on which the defence was run. Accordingly, I accept the submission from senior counsel for the defendants that I should rule the evidence the subject of objection in those attachments inadmissible.
I turn then to attachment F, which is the proposed evidence of the plaintiff's defence counsel at his criminal trial. That account of the proposed evidence serves to confirm overwhelmingly that the matters relate to decisions of the plaintiff's counsel at the criminal trial. Whether the plaintiff now complains about those decisions is not relevant to the question of whether these are matters that constitute evidence that was not available at the time or would otherwise entirely change the aspect of the case. In any event, the competence of defence counsel was an issue raised in the Court of Appeal, as I have observed.
Whether or not the plaintiff has a genuine complaint and an actionable complaint against his then defence counsel is a different matter to whether such evidence is admissible in this defamation proceeding. In my view, it does not meet the test and therefore I should also rule the paragraphs the subject of the defendants' objections in respect of the proposed evidence of Mr Crispe to be inadmissible. Those matters overwhelmingly relate to forensic decisions made, rightly or wrongly, at the time of the criminal trial.
I turn then to attachment G, which is the evidence proposed to be led from the plaintiff's biological son. It is plain from the District Court trial and from the Court of Appeal, that the matters proposed to be led were not only matters available but were matters that were raised in the course of the criminal trial. They plainly do not meet the test in Mickelberg and accordingly, I will rule that the paragraphs the subject of the defendants' objection are inadmissible.
I turn then to attachment H, the proposed evidence of the plaintiff's friend. It is clear from what the plaintiff explained in oral submissions today that that evidence, again, was also available on reasonable diligence at the time of the trial. The plaintiff confirmed that the police knew that the friend observed the offending. There is nothing before me to explain how that evidence meets the test in Mickelberg, and accordingly I will rule that the paragraphs the subject of the defendants' objection are inadmissible.
I turn then to the evidence of Mr Clarke set out in attachment I. I have already explained the background to the proposed evidence of Mr Clarke. It is quite plain from the submissions advanced orally by the plaintiff that the plaintiff is calling Mr Clarke in order to determine whether he can then go on to assert malice. That is not the function of evidence in this court. One does not call witnesses in order to find out something and then fashion the claim accordingly. That is more of a fishing expedition than the proper use of processes and procedures of the court. There are many other aspects of that proposed evidence that have no apparent relevance to the defamation claim, particularly as, other than the prospect of malice having been raised in the prayer for relief, the plaintiff has readily conceded that he does not and presently is not in a position to allege malice. Accordingly, I will rule that the paragraphs the subject of the defendants' objections will be inadmissible.
That leaves me with the evidence of the plaintiff himself. I am not inclined to rule out at this stage the evidence of the plaintiff himself. In my view, it would be more appropriate for that ruling to be made at a later stage, possibly even at trial, given that I wish to allow the plaintiff every opportunity to give his own evidence as he wishes. That does not mean I would admit inadmissible evidence, but I do not think it is appropriate to rule out aspects of his evidence at this stage.
Orders
Accordingly, I will make orders ruling inadmissible the subject of the attachments to the plaintiff's amended witness outline of evidence proposed to be given by the plaintiff's witnesses as identified by the defendants' lawyers other than attachment J, the evidence of the plaintiff himself.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LZ
Associate to the Honourable Justice Solomon
24 FEBRUARY 2025
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