Dods v McDonald (No 2)
[2016] VSC 201
•6 May 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
MAJOR TORTS LIST
S CI 2013 01637
| COLIN DODS | Plaintiff |
| v | |
| MICHAEL McDONALD | Defendant |
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JUDGE: | Bell J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 4, 5, 6, 9, 10 & 11 November 2015 |
DATE OF JUDGMENT: | 6 May 2016 |
CASE MAY BE CITED AS: | Dods v McDonald (No 2) |
MEDIUM NEUTRAL CITATION: | [2016] VSC 201 |
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DEFAMATION – assessment of damages following verdict of jury for plaintiff – publication of defamatory statements on defendant’s Internet website – plaintiff one of four police officers involved in death by shooting of boy aged 15 years – coronial inquiry exonerated plaintiff of personal responsibility – defendant stated (among other things) that plaintiff had ‘executed’ the boy and ‘gunned [him] down … like he was a monster and a dangerous mongrel dog’ – very grave defamations about serving police officer – no mitigating circumstances – plaintiff feels intense distress, humiliation and embarrassment – scope of publication not large - importance of vindication (nailing the lie) – aggravated damages – whether defendant’s failure to apologise and retract and conduct of his defence improper and unjustified – requirement for amount of damages to bear appropriate and rational relationship to harm sustained by plaintiff – Defamation Act 2005 (Vic) s 34.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr D Bracken | Tony Hargreaves & Partners |
| For the defendant | Mr T Greenway | Rigby Cooke Lawyers |
HIS HONOUR:
Colin Dods is a sergeant of police. He was one of four officers present when one of them shot Tyler Cassidy dead in December 2008. Michael McDonald is a barrister in Queensland. In June and July 2012, he published two statements on pages of his Internet website (justice4tylercassidyjust15.com) about the plaintiff’s involvement in the shooting. In the trial before a jury of the plaintiff’s proceeding for damages for defamation in respect of those publications, a verdict in favour of the plaintiff was given. Pursuant to s 22(3) of the Defamation Act 2005 (Vic), it is now my function to determine what damages should be awarded.
Death of Tyler Cassidy
Tyler was shot dead on the evening of 11 December 2008 at All Nations Park, Northcote. He was aged 15 years and eight months. Ten shots were fired by three of the four police officers, including the plaintiff. Five of those shots struck Tyler, one of them fatally.
In the time immediately leading up to the shooting, Tyler had armed himself with two large knives that he stole from the Kmart store inside the Northcote Plaza Shopping Centre which is adjacent to All Nations Park. He began moving through the shopping centre and its shops and car park, threatening people with the knives and demanding that police be called.
Four officers, including the plaintiff, arrived in two vans. A confrontation occurred between the police and Tyler, who threatened them with the knives and in language. After being pursued into the park, Tyler turned to face the police. Refusing to obey their calls to throw down the knives, he started slowly advancing towards them in a threatening manner.
The plaintiff became separated from the other officers. Tyler advanced towards him with the knives in hand. Ignoring a warning shot fired by the plaintiff, Tyler continued to advance. Fearing for his life, the plaintiff fired two shots into Tyler’s legs. When Tyler continued to advance towards the plaintiff, the four officers fired several shots towards him. He died at the scene minutes later from the wound inflicted by one of the bullets.
Coronial inquiry
The events just described were based upon the report of the coroner, Judge Jennifer Coate, who conducted an inquest into Tyler’s death. Hearings occurred over some 36 days in October, November and December 2010 and March 2011. The coroner delivered her findings (consisting of 129 pages and 696 paragraphs) on 23 November 2011 at about which time the defendant could and, I infer, did access them. The findings were publically available to be accessed at all material times.
The length of the inquest’s hearing process and the comprehensive nature of the reported findings are evidence of the public importance of the issues. The coroner noted the public interest in Tyler’s shooting in those findings. For example, she said:
20. Relying upon the range and extent of public commentary which emerged in the wake of the fatal shooting of Tyler, it was both apparent and understandable that the death of Tyler, a 15-year-old boy, at the hands of four members of Victoria Police both shocked and bewildered us as a community.
The coroner also noted that there had been inaccurate commentary in public fora, which the inquest was intended to address:
42. There was much that was inaccurate about Tyler that made its way into the forum of public opinion in the wake of his death. One of the recognised functions of an inquest is to address rumour and innuendo that has filtered into the public mind.
The coroner did not find that the plaintiff contributed to Tyler’s death. In effect, her Honour exonerated him of personal responsibility for that tragic event. She found that Tyler was shot when the plaintiff was at risk of serious injury or death, that he was a dedicated police officer and that the police had responded within the limitations of their training. More fully, she found:
Conclusion on causation/contribution
461. I am satisfied that when the three police members fired at Tyler, it was at a time that LSC Dods was in immediate and perilous danger of serious injury or death.
462. LSC Dods appeared to be dedicated to his work as a member of Victoria Police and his role as a protector of the community. He left no doubt as to his level of soul searching about this tragedy and belief that he could find no other resolution after two years of reflection. Each of the members seemed intent to convey that they believed they had responded to the training they had as at December 2008. The general effect of their evidence was that since the death of Tyler, they have observed that their training has given greater emphasis to tactical communications, techniques for cordoning and containing and information to assist in dealing with vulnerable people.
463. I am satisfied that the members involved responded within the limitations of the training and skills provided to them by Victoria Police as at December 2008. Those limitations and issues are set out above, together with evidence as to changes and improvements noted.
There is no doubt that, at all material times after 23 November 2011, the defendant was aware of these findings.
Defamatory statements
In his amended statement of claim dated 6 November 2015 (which was pressed at trial), the plaintiff alleged that he had been defamed in two statements published by the defendant on pages on his website.
The first statement was alleged to have been published on 12 June 2012. A downloaded copy of the relevant page was received into evidence. It stated:
What is known about Colin DODS?
The Victorian newspapers, in particular, the Herald Sun, rushed into print within 12 hours of Colin DODS execution of Tyler Cassidy, trashing the meagre reputation that 15 year old Tyler had garnered during his short, tragic life. The papers branded him, a mascot of a racist gang and an associate of bikies and criminals; all of which, in the fullness of time have been proven as lies.
DODS name was withheld from the public for 22 months, during which time, the Victorian Police Commissioner has seen fit to promote him from Senior Constable to Sergeant.
Who, or what, then, is Colin DODS?
Why do we know absolutely NOTHING about the individual who holds the record for killing the youngest person in Australian history, ever killed by a Police Officer?
Is Colin DODS a former student of the exclusive private Presbyterian Boys’ School, Scotch College, Melbourne, where he graduated in 1988?
Was he a member of the Scotch College Cadet Unit where he played in the school’s Pipe Band and learned to shoot a gun for the first time?
Was a blood test carried out after he shot Tyler to test for drugs or alcohol in his system?
NOT UNTIL MORE THAN 9 HOURS HAD PASSED AFTER HE SHOT TYLER DEAD.
This is what we do know about Dods:
20 October 2010: Police Shot Vulnerable Teen 6 Times
According to the police, when they arrived at the shopping centre they confronted Tyler and urged him to drop the knives.
In witness statements, police say Tyler responded: ‘You are going to have to kill me’, ‘you are going to have to shoot me’, and ‘I’ll hurt you. I’ll f---en kill you’.
Tyler was twice sprayed with capsicum spray, but it had little effect, police said in their statements.
‘According to Dods, he discharged a single shot into the ground as a warning’, Ms Ellis said.
‘Tyler kept advancing and Dods said that he was extremely fearful for his safety’.
Ms Ellis said Sergeant Dods said he fired another two shots into Tyler’s thighs.
‘According to Dods, as Tyler continued to advance he took aim at his chest area and kept firing until he went to the ground’.
The plaintiff alleged that the natural and ordinary meaning of the first publication was that:
(a) The Plaintiff executed Tyler Cassidy.
(b)The Plaintiff shot and killed Tyler Cassidy without any or any adequate reason
…
(f)By shooting Tyler Cassidy as he did the Plaintiff committed manslaughter.
The second statement was alleged to have been published on 12 June and 13 July 2012. A downloaded copy of the relevant pages was received into evidence. As material to this proceeding, it stated (footnote omitted):
Tyler Cassidy did nothing to give 3 Victorian Police Officers the licence to execute him on 11 December 2008. He was a good, 15 year old kid, having a bad day, who acted impulsively and emotionally, under provocation. For that one bad decision, he was executed.
Death Penalty
No Australian State has the Death Penalty. Ronald Ryan was the last Australian to be officially executed for a crime and that was on the 3rd February 1967.
However, it has been recorded that, in the last 2 decades, more than 80 people have been shot dead by Australian Police Officers and 48 of those were shot and killed by Victorian Police officers.
Tyler Cassidy was the last person (and the youngest in Australian history) to be shot dead, on 11 December 2008, and even though he was not guilty of any crime, other than bad judgment.
Youngest ever killed by Police
Tyler Cassidy has the unique honour of being the youngest person to have ever been killed by an Australian Police officer. He was just 15 years of age when 3 Victorian Police Officers shot him 6 times, within 3 minutes of meeting up with him, initially in a carpark, located at the rear of the Northcote Shopping Centre, at approximately 9.30 pm on Thursday, 11 December 2008, and shortly afterwards at the skateboard bowl, a couple of hundred metres away. He had not been arrested and he had no criminal record.
Not one of those police officers have been charged with any offence.
Not one of those police officers have been suspended. In fact, as at 19 October 2010, all are still ‘serving’ in the Victorian Police Force; and
Two have even been promoted.
Not one of those police officers were named publicly, until the first day of the Inquest into Tyler’s death, on 19 October 2010, more than 22 months after… Tyler’s life and reputation had been taken away from him by Victorian Police.
Not one of those police officers have been asked to hand in their firearms.
Who was Tyler?
Let’s see if Tyler Cassidy was a monster who deserved to be gunned down as if he was a dangerous mongrel dog.
Physically slight
Physically, Tyler Cassidy was not a big person. He was approximately 5ft 5ins tall (less than 170cms) and weighed less than 9.5 stone (60kgs). He was only just entering puberty and he had not begun to shave.
…
‘White Supremacist’ or not?
Police Media reports released to the Herald Sun newspaper within 12 hours of the execution of Tyler Cassidy reported that he was a ‘White Supremacist’ who belonged to the ‘racist’ ‘neo nazi’ group called ‘Southern Cross Soldiers’ which allegedly numbered 200, and whose members allegedly included skinheads & criminals, according to the Police [M]edia Release. The Police Media Release alleged that Tyler Cassidy was their ‘mascot’. (See Newspaper Reports in Menu). This was an outright Police Media Lie. The trouble with the law is that a dead person can be slandered and defamed and there is no cause of action that can be brought against the defamer, even if they are the very people who took that person’s life.
‘Southern Cross Soldiers’
There is no ‘organisation’ known as the ‘Southern Cross Soldiers’, as reported by the Police Media Section and reported in the Herald Sun in the 1st edition reporting Tyler’s death. Tyler was certainly not the mascot of any such group. There is a loose association of patriotic young Australians who have been educated, since Australia’s Bicentennial in 1988, to be proud Australians and that group of young Australians is a multi cultural group; not a racist; white supremacist group. Before Tyler Cassidy’s death, there had only been one mention of that name in any Australian Newspaper and that was on 23 November 2008, reporting fears of Inspector Neil Patterson of Moorabbin Police with respect to an alleged rally at a local beach by proud Australian youths. Nothing has ever happened at Moorabbin, either before or since to support Inspector Patterson’s fears.
Judging from Tyler Cassidy’s Myspace page, Tyler was proud to be an Australian & proclaimed his pride on Myspace. That pride has been sullied and slandered by Police Media Liaison in an attempt to justify the execution of Tyler Cassidy. However, it is not a crime to be a proud Aussie and such a stance does not attract the death penalty; except, it seems, in Victoria!
Father died of Cancer
Tyler Cassidy did not have a father. His father had died 4 years earlier, on 1 December 2004, of Lung Cancer when Tyler was 11 years of age. When his father died, Tyler Cassidy was inconsolable. On the night of his execution, Tyler Cassidy was grieving the 4th anniversary of his father’s death.
…
A good kid having a bad day
The Assault
The events leading up to Tyler’s death appear to have unfolded in the following manner.
Early in the evening on the night that Tyler Cassidy was killed, it seems that he had been assaulted after travelling home on the train, after having been visiting with friends that day. Perhaps Tyler knew who his attackers were because his mother reports that, when he got home, he was visibly upset but went straight to his room, without telling her what had occurred to upset him.
His mother, Shani, reports that he was on his computer in his room for about 30 minutes or so before coming out of his room, in an extremely agitated and angry state. He tried to grab a couple of kitchen knives as he was leaving the house but his mother, Shani, took them off him and Tyler stormed out of the house.
It is possible that Tyler knew who his assailants were and had, perhaps, been communicating with them on his computer but had been challenged to a fight by his assailants, a challenge that Tyler unwisely accepted. One thing is clear. Tyler left home that night, in an agitated and aggressive state.
When Tyler left the house in his agitated state, his mother, Shani, who trusted the Police to do the right thing, telephoned the Northcote Police Station and asked them to keep an eye out for Tyler and to call her if they intercepted him so that she would know that he was safe.
Shani Cassidy never saw her son, Tyler, again, except through a viewing window in the City Morgue, the following day, after an autopsy on his body!
The Execution
By 9.30 pm, less than 40 minutes after he had left his home, Tyler lay dead, in a bloody mess, at the foot of a skate board bowl in the, ironically named, ‘All Nations Park’, shot dead by the very same Police Officers who Tyler’s mother had telephoned shortly before, with 6 Police Bullets in his body. It would be another 2 hours before Police Officers from the same Police Station as those who executed Tyler, would tell Shani that her son had been shot dead.
Not a Monster
CLEARLY, Tyler Cassidy was no monster. This is evident from the testimony of his employers; teachers and his friends.
CLEARLY, Tyler Cassidy did not deserve to be shot dead. He had not even physically developed into a man and was still just a kid … a good kid, having a bad day.
Who killed Tyler & why has nobody been charged?
It seems that the Victorian Attorney General and Victorian Police Minister are unaware that Victorian Police Officers are subject to the Law. It is unlawful for them to use force that is out of proportion to any threat posed by an alleged perpetrator. It is clear that, at least 1 of the 3 Victorian Police officers, Sgt Dods, used excessive force which was out of proportion to any threat posed by Tyler Cassidy when he fired 6 shots at Tyler and killed him. (see entry of 20 October 2010 in “Latest News” on Menu)
Tyler Cassidy was only slightly built. According to newspaper reports, 2 police vans with a total of 4 Police Officers were dispatched to Northcote Shopping Centre where they confronted Tyler who had obtained 2 kitchen knives from a store in the Shopping Centre. The Police Officers then doused Tyler twice with Capsicum Spray, before chasing him into the 13 hectare All Nations Park beside the Shopping Centre. Less than 3 minutes later 3 of the 4 Police Officers had shot Tyler dead, after allegedly shooting him twice in the legs which, according to the Police Officers, still did not stop Tyler.
Tyler would have been blinded by the capsicum spray and, as experienced Police Officers, those 4 Police officers, especially Sgt Dods, would have known that fact. In the circumstances, it should have been a relatively simple matter for the 4 trained Police officers, one of whom was an experienced Sergeant, to overpower Tyler, without anybody being harmed. It may have taken longer than 3 minutes to do so, but it should have been possible. They were in a 13 hectare park. There were no members of the public around; there were 4 highly trained and heavily armed Police Officers on the one hand and a slightly built, agitated and half-blinded teenage boy on the other.
The question that must be answered is why did 4 trained Police Officers fail to subdue a slightly built, inexperienced and partially blinded teenager, other than by shooting 6 bullets into him and killing him!
Surely, it would have been a simple task for one of the Police vans to be dispatched to collect Tyler’s mother and bring her to the All Nations Park to talk to him while the other Police Officers kept an eye on him. These questions and more will need to be answered during the Coroner’s Inquest into Tyler’s execution held in 2010, from 19 October for 5 weeks.
Justice must be seen to be done
Both the Victorian Attorney General and Victorian Police Minister should either resign, because they are incapable of upholding the responsibility of their offices or, alternatively, they should ensure that, at the very least, Sgt Colin DODS is charged with the offence of manslaughter, so that the Justice System can dictate the eventual outcome.
‘… it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done’.
The plaintiff alleged that the natural and ordinary meaning of the second publication was that:
(a) The Plaintiff executed Tyler Cassidy.
(b)The Plaintiff shot and killed Tyler Cassidy without any or any adequate reason.
(c)The Plaintiff gunned down Tyler Cassidy like he was a monster and a dangerous mongrel dog.
(d)In shooting at Tyler Cassidy six times and killing him, the Plaintiff unlawfully used excessive force out of proportion to any threat posed by Tyler Cassidy.
(e)The Plaintiff chose to shoot Tyler Cassidy, then a slightly built, inexperienced and partially blinded boy, six times when he knew or ought to have known that he and other police present could have otherwise overpowered Tyler Cassidy without anybody being harmed.
(f)By shooting Tyler Cassidy as he did the Plaintiff committed manslaughter.
It will later be necessary to consider how the defendant conducted his defence prior to the commencement of the trial. At trial, however, he admitted that he had administered the website and was the author of the two publications. He denied that the statements were defamatory and relied upon the defence of triviality.[1] He also contended that the proceeding was statute barred under s 5(1AAA) of the Limitation of Actions Act 1958 (Vic). In a separate judgment, I have given my reasons for ruling against that contention.[2]
[1]Section 33 of the Defamation Act provides:
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
[2]Dods v McDonald (No 1) [2016] VSC 200 (6 May 2016) (Bell J).
Request for and denial of apology
Prior to commencing the proceeding, the plaintiff (personally or through his solicitors) communicated with the defendant on 13 July and 14 July 2012 and 25 January 2013. It was common ground at the trial that the defendant received these communications.
On 13 July 2012, the plaintiff sent the defendant an email message in these terms:
Given some of your comments are in direct conflict with Judge COATE’s findings regarding my use of force and conduct generally, it is probably time for you to amend your site, post an apology and call it a day. I’ve given you a good go considering the findings have defined some of your comments as defamatory for the last six months.
You brought my wife into this and endangered my two children who were both less than 4 years old when you published my off-duty movements thereby enabling any person to locate me.
I think I have shown more than reasonable restraint.
If you have the courage to reveal your identity, I can be contacted at Mill Park Police Station on (03) 9407 3333 should you wish to discuss the matter in person.
C. DODS
Sergeant 32595Mill Park Police Station.
The defendant did not reply to this email but he did modify the relevant page on his website.
On 14 July 2012, the plaintiff sent the defendant an email in these terms:
Dear Mr. McDonald.
Thank you for modifying the web site justice4tylercassidyjust15.com in response to my email sent on 13/7/2012. As with all its evolutions, the latest version of the site has been captured for later comparison during civil and criminal proceedings.
Clearly, you are going to be sued.
A complaint file regarding your behaviour has been forwarded to the Queensland Law Society and the Bar Association of Queensland Inc.
The fact that you have identified various pages and segments of the site as requiring removal will be telling indeed; a tacit admission of libel.
I note that you have not had the courage to post an apology on the same public forum you utilised to defame me. This would go a long way to ameliorating future costs directions which may be imposed upon you.
In recognition that the website is factually and grammatically moribund, I would like to offer you some assistance. This … incident occurred on Thursday 11th, December 2008, not 12/12/2008 as you have stated; a fairly basic oversight. Alas, too many other inaccuracies exist to address here. Suffice to say that I recommend you read the findings and seek assistance from a colleague should you not be able to comprehend its contents.
If you have the courage, my offer remains open to discuss any and all issues related to your conduct including the current and past content of the website.
C. Dods
Sergeant 32595
Mill Park Police Station(03) 9407 3333.
The defendant did not reply to this email but he did, on the same day, cause the relevant page of his website to be removed. He closed the website down completely in October 2012.
On 25 January 2013, the plaintiff’s solicitors wrote to the defendant setting out in full the plaintiff’s allegation that he had been seriously defamed in the website. The letter made the following demands:
Demand
The effect of your publication on Sergeant Dods and his family has been profound. It has exposed our client to hatred, contempt and ridicule in circumstances where Sergeant Dods has, by the Coroner’s own observations, been deeply affected by the death of Tyler Cassidy and his role in it. Your conduct in publishing the defamatory material subsequent to the Coroner’s findings in circumstances where you knew Sergeant Dods had been exonerated demonstrates an intention on your part to maliciously tarnish our client’s good name and reputation.
In the circumstances, we require you within the next 7 days to:-
1.provide a written apology to Sergeant Dods in a form to be agreed acknowledging the falsity of the matters published, withdrawing the allegations previously published and apologising for any distress and damage caused to Sergeant Dods, his family and Victoria Police;
2.publish your apology on the Website for a period of no less than 3 months in a form and with a degree of prominence to be agreed;
3.undertake not to re-publish in any form any of the material previously appearing on the Website;
4.provide all records and statistical data evidencing the number of “hits” at the Website since its establishment in December, 2008 to date.
We anticipate that the harm done by these publications to Sergeant Dods, his reputation and his family is such that the publication of an apology will not afford adequate redress. Sergeant Dods reserves all his rights including his right to issue defamation proceedings against you.
It is essential that you commence taking the remedial steps set out above in order to deal with the damage caused by your conduct as soon as possible. It is also essential that you advise us immediately of both the course of action you intend to take and the progress of any remedial action taken.
Your response is requested strictly within 7 days of the date of this letter.
The plaintiff did not reply to this letter.
Despite these repeated requests for an apology, the defendant has never offered one. Furthermore, the manner in which he has conducted his defence is relevant to the plaintiff’s claim for aggravated damages. That takes me to the course of the proceeding.
Course of proceeding
The proceeding was issued by writ on 3 April 2013.
In the statement of claim that was served with the writ, the plaintiff relied upon three alleged defamatory publications. He withdrew one of these at the trial and succeeded with respect to the other two.
The plaintiff claimed aggravated damages, as follows (as pressed at trial):
Further the Defendant:
(a)published The Publications with reckless indifference as to the truth of the facts alleged,
(b)carried out a deliberate campaign to denigrate the Plaintiff and destroy his reputation
showing a contumelious disregard for the plaintiff’s reputation entitling him to an award of aggravated damages.
Particulars
(i)The Defendant published The Publications without making any attempt to check the facts with the Plaintiff.
(ii)The Defendant published The Publications after her Honour Judge Coate published her findings in the Coronial Inquest into the circumstances surrounding Tyler Cassidy’s death. The content of The Publications was significantly inconsistent with her Honours findings.
(iii)The Defendant published extraneous details of the Plaintiff’s personal and family life so as to facilitate the Plaintiff being identified by a larger number of people than he would otherwise have been so as to cause greater hurt and upset to the Plaintiff.
(iv)The Defendant failed to apologise to the Plaintiff as requested directly by the Plaintiff on numerous occasions including in writing by email on 13 and 14 July 2012 and by letter from the Plaintiff’s solicitors to the defendant dated 25 January 2013 or at all …
The defendant filed a defence on 3 June 2013, an amended defence on 20 January 2014, a further amended defence on 4 July 2014 and a second further amended defence on 2 November 2015. On 22 October 2015, he issued an extensive subpoena for production of documents to the Chief Commissioner of Police.
In the defence dated 3 June 2013, the defendant (among other things):
·admitted publication of the website
·denied any publications of and concerning the plaintiff were defamatory
·relied upon the defences of qualified privilege in relation to governmental and political matters, justification (that is, that the publications, if consisting of facts, were substantially true) and fair comment (that is, that the publications, if consisting of opinions, were fair comment on matters of public interest)
·relied upon the defences in ss 29, 30 and 31 of the Defamation Act
·denied that the plaintiff had been severely injured in his feelings, reputation and good name, or humiliated and embarrassed, by any defamations
·generally denied that the plaintiff was entitled to aggravated damages.
In his amended defence dated 20 January 2014, the defendant (among other things):
·admitted that certain of the imputations alleged by the plaintiff were defamatory
·relied upon the fact that the relevant pages of the website were only two of many containing comprehensive information on the subject of Tyler’s death, including information derived from newspaper reports and coronial findings
·gave extensive particulars of why the publications were protected by qualified privilege in relation to governmental and political matters
·relied upon the defences of justification and fair comment
·in relation to the particulars of the plaintiff’s claim for aggravated damages, alleged (as here material):
As to the allegations in paragraph 9 of the statement of claim, the defendant denies that the plaintiff is entitled to aggravated damages, either as demanded at paragraph 9 of the statement of claim, or at all. So far as the Particulars to paragraph 9 of the statement of claim are concerned:
a) Given that:
i)none of the names of the 3 police officers involved in the death of Tyler Cassidy were published until the commencement of the Coronial Inquest in October 2010;
ii)the Coroner did not release her findings until 23 November 2011;
iii)the plaintiff’s version of events was implicitly self serving, and not necessarily factual; and
iv)the Coroner’s findings and recommendations with respect to the investigation into Tyler Cassidy’s death
there was neither an opportunity, nor any point in obtaining the plaintiff’s version of events which, in any case, was published by the defendant on the Who killed Tyler Cassidy website and which were not significantly inconsistent with Her Honour’s findings.
·alleged that the proceeding was statute barred with respect to defamations published more than one year previously.
In his further amended defence dated 4 July 2014, the defendant:
·narrowed and refined his defences
·denied that the publications were defamatory
·alternatively, relied upon the defences of justification in s 25 of the Defamation Act with respect to the imputation admitted as ‘the shooting meaning’, namely that the plaintiff shot and killed Tyler, which was substantially true
·relied upon the defences of fair comment at common law and contextualised truth in s 26 of the Defamation Act, qualified privilege at common law and providing certain information in s 30 of the Defamation Act, honest opinion in s 31 of the Defamation Act and triviality in s 33 of the Defamation Act
·in relation to the defences of fair comment at common law and honest opinion under s 31 of the Defamation Act, asserted facts which placed in issue aspects of the circumstances of Tyler’s death and the plaintiff’s role therein
·generally denied that the plaintiff was entitled to aggravated damages
·alleged that the proceeding was statute barred with respect to any defamation prior to 3 April 2012.
By order of the Honourable Justice Dixon on 18 December 2014, the proceeding was set down for trial commencing on 4 November 2015 with an estimated hearing time of 10 days.
On 22 October 2015, that is, about two weeks prior to the commencement of the trial, the defendant issued a subpoena for production of documents to the Chief Commissioner of Police, returnable on 2 November 2015. It specified about 50 particular documents (category A) and also documents within the following category (category B):
… all investigation materials including covert investigation materials, reports arising from such investigation materials, photographs, emails, LEDR reports, LEAP narratives, any Interpose Investigation report, memoranda and correspondence in relation to Michael McDonald, the defendant in these proceedings, arising from publications he made on an internet webpage:
reported by Acting Sergeant Colin Dods (as he then was), commencing on or about 3 April 2013, until the date of this subpoena, created or received by any of the following:-
A/Sgt Colin Dods
Detective A/S/Sgt Andrew Lawrence
Inspector Debra Robertson
Detective Acting Senior Sergeant Birch
Detective Snr Sergeant Baade
[T]he E Crime Squad
Detective Snr Sgt Dyson
Senior Sergeant Lindsay Cook.
These documents were potentially relevant (among other things) to the defences of justification, fair comment and honest opinion (among others) that were relied upon by the defendant in his further amended defence.
Compliance with the subpoena was deferred by consent from 2 November until 4 November 2015, the first day of the trial. When the subpoena was called on by counsel for the defendant, counsel for the Chief Commissioner opposed production on several grounds and sought time for compliance. After discussion, counsel for the defendant announced that the subpoena would not be pressed because the documents were not relevant to the second further amended defence filed by the defendant on 2 November 2015 (the original date for compliance of the subpoena).
In the defendant’s second further amended defence dated 2 November 2015, the defendant:
·admitted administration of the website
·admitted authorship of the three publications
·alleged that the proceeding was statute barred with respect to defamations published prior to 3 April 2012
·alleged that certain alleged publications had not been comprehended by a third party
·denied that the publications were defamatory
·withdrew all defences except triviality under s 33 of the Defamation Act
·generally denied the plaintiff’s entitlement to aggravated damages.
On the commencement of the trial on 4 November 2015, the defendant relied upon the second further amended defence. His counsel announced that the defendant was not intending to give evidence and in fact he did not give evidence. Although I will take the above matters into account in relation to the issue of aggravated damages (see below), there is nothing in the defendant’s actual conduct of the trial which is relevant to that subject and the conduct of his counsel, in particular, was exemplary.
Verdict of the jury
After a trial lasting six days, the jury gave its verdict by reference to a series of specific questions that I formulated (after receiving submissions from counsel for the parties) with respect to the first and second publications separately.
First publication
With respect to the first publication, the questions asked of the jury and the answers given were as follows (irrelevant questions and answers have been excluded):
Question 1:
Has the plaintiff established that the defendant published or caused to be published Exhibit 6 on the internet website on or about 12 June 2012?
Answer: YES
Question 2:
Has the plaintiff established that the matter complained of in the first publication in its natural and ordinary meaning, would have conveyed to the ordinary and reasonable reader of and concerning the plaintiff any of the following imputations or imputations not substantially different from them and no more serious:
(a) The plaintiff executed Tyler Cassidy?
Answer: YES
(b)The plaintiff shot and killed Tyler Cassidy without any or any adequate reason?
Answer: NO
…
(f)By shooting Tyler Cassidy as he did the plaintiff committed manslaughter?
Answer: NO
Question 3:
Has the plaintiff established in respect of the first publication that:
(a)The imputation described in question 2(a) is defamatory of the plaintiff?
Is this question applicable:
Answer: YES
(b)The imputation described in question 2(b) is defamatory of the plaintiff?
Answer: NOT APPLICABLE
…
(f)The imputation described in question 2(f) is defamatory of the plaintiff?
Answer: NOT APPLICABLE
Question 4:
If yes to any of questions 3(a), (b) or (f) has the defence of triviality raised by the defendant been established:
Answer: NO.
Second publication
With respect to the second publication, the questions asked of the jury and the answers given were as follows (irrelevant questions and answers have likewise been excluded):
Question 1:
Has the plaintiff established that the defendant published or caused to be published Exhibit 7 on the internet website on or about 12 June 2012 or on or about 13 July 2012?
Answer: YES
Question 2:
Has the plaintiff established that the matter complained of in the second publication, in its natural and ordinary meaning, would have conveyed to the ordinary and reasonable reader of and concerning the plaintiff any of the following imputations or imputations not substantially different from them and no more serious:
(a) The plaintiff executed Tyler Cassidy?
Answer: YES
(b)The plaintiff shot and killed Tyler Cassidy without any or any adequate reason?
Answer: YES
(c)The plaintiff gunned down Tyler Cassidy like he was a monster and a dangerous mongrel dog?
Answer: YES
(d)In shooting at Tyler Cassidy six times and killing him, the plaintiff unlawfully used excessive force out of proportion to any threat posed by Tyler Cassidy?
Answer: YES
(e)The plaintiff chose to shoot Tyler Cassidy, then a slightly built, inexperienced and partially blinded boy, six times when he knew or ought to have known that he and other police present could have otherwise overpowered Tyler Cassidy without anybody being harmed?
Answer: YES
(f)By shooting Tyler Cassidy as he did the plaintiff committed manslaughter?
Answer: YES
Question 3:
Has the plaintiff established in respect of the second publication that:
(a)The imputation described in question 2(a) is defamatory of the plaintiff?
Answer: YES
(b)The imputation described in question 2(b) is defamatory of the plaintiff?
Answer: YES
(c)The imputation described in question 2(c) is defamatory of the plaintiff?
Answer: YES
(d)The imputation described in question 2(d) is defamatory of the plaintiff?
Answer: YES
(e)The imputation described in question 2(e) is defamatory of the plaintiff?
Answer: YES
(f)The imputation described in question 2(f) is defamatory of the plaintiff?
Answer: YES
Question 4:
If yes to any of questions 3(a), (b), (c), (d), (e) or (f), has the defence of triviality raised by the defendant been established?
Answer: NO.
It is by reference to the verdict of the jury so given that I must assess the damages to be paid by the defendant to the plaintiff.
An important consideration is the impact of the defamatory publications upon the plaintiff. It is convenient to deal with that next.
Impact of defamatory publications upon plaintiff
The plaintiff gave evidence that he was a sergeant of police, was married to Robyn Dods and the couple had two young children. He finished school in 1988, studied at university to be a teacher and, after three years without finally completing that study, became a full time teacher. After teaching for about ten years, he joined the police force (in 2000). He did so because it was more rewarding ‘in terms of contributing to the community’. When Tyler died in 2008, the plaintiff had been a police officer for eight years. At that time he was a leading senior constable.
The plaintiff became aware of the defendant’s website and accessed it in about February 2009. He accessed it again when the inquest commenced in 2010 and on dozens of occasions in 2011 and the first half of 2012 (up to July of that year). He then decided that, if anything was to be done to have the website taken down, he would have to do it himself. He accessed the website again, then complained to the internet service provider and sent email messages to the defendant on 13 and 14 July 2012 (see above).
Mr Dods became visibly upset when giving evidence about these messages, especially when speaking about the parts of the email messages which referred to the impact of the defamatory statements upon him and his family. It was necessary for the hearing to be adjourned for a short period so that he could compose himself. I could see that giving this evidence had forced him to relive the intense experience of distress, embarrassment and humiliation that the publications had caused him to suffer.
When giving evidence about informing friends (Mr and Mrs Mazer) of the shooting of Mr Cassidy, the plaintiff said that he was not proud about the incident and did not want to discuss it unless his hand was forced. Mr and Ms Mazer asked him about it so they were informed of his version of events and how he felt about the incident as family friends.
The plaintiff said that he had many and varied responses to the shooting, the anniversaries of Tyler’s death and birthday were always difficult.
As to the impact of the defamatory statements upon him, the plaintiff deposed:
Are you able then to tell the members of the jury, Mr Dods, what effect, if any, the publication of firstly 26 June had on you?---Well, yes. The, um, it was – it’s like having an additional heavy weight pressed on you. You don’t know who’s read it, um, you don’t know what Facebook sites it might link to encouraging people to go and look at it. Um, you don’t know what effect it has on your superiors who even if you asked them might deny it and privately believe you to be tainted by this kind of, um, material being available to the public. Um, even if I asked people that I don’t know, hey, have you ever seen this site, would I get an honest answer, and if I did would I like it? Probably not. Um, it’s – and the fact is that there are cached versions of the site still available today.
What about the publication of 1 July 2012?---Um, the impact is the same, it’s just, um, ah, describing me as an executioner when the facts explored by Judge Coate were such that I was doing everything in my power to avoid a fatal outcome for Tyler Cassidy.
And 14 July 2012?---Yes, the same. It was just, um, ah, just vitriolic, um …
I consider all of this evidence to be relevant to the impact upon the plaintiff of the two publications that were pressed to verdict.
In the immediate aftermath of the shooting, the plaintiff drew upon the support of his colleagues. They helped him to rehabilitate. In the longer term, he found it helpful for him to help other people who had been involved in critical incidents. This had made him a better supervisor and investigator and also leader in the field. He was a better communicator and contributor to the community. When asked why he had remained in the police force after Tyler’s shooting, he said:
Because I can contribute to my community once I close this chapter. I believe I’m a greatly effective police officer. I love representing victims of crime through the investigative and judicial process, achieving outcomes for my stakeholders in my current taskforce. I train civilian agencies in various techniques, investigative techniques and operational skills, techniques, which is of great benefit to that stakeholder and that’s all done through experience that I’ve gleaned through various processes and expertise obtained through the Victoria Police.
The plaintiff’s wife gave evidence of the ‘upset’ that he experienced by reason of the website. She said ‘upset’ was an ‘understatement’. He felt hurt and was visibly upset and tense on a regular basis. He did not sleep well. This was especially so after he had been exonerated by the inquest and the website remained available for public access. The plaintiff was concerned about what people reading the website might think of him, especially people who did not know him. He was distraught to think that some people would consider the contents of the publications to be true. It was always in the back of his mind that other parents at his childrens’ school might read the website. He feared that he would be prejudged. He was concerned about the impact of the website on his employment and promotion prospects and his career generally.
Mrs Dods deposed that her husband was very involved at their children’s school. He was on the parents and friends committee, attended fund raising events and was ‘highly respected within the school community’. He also did a great deal for the McCrae Yacht Club, where he was ‘regarded very highly’. He was ‘well respected and well liked’ within the Victoria Police community. The effect of the statements on the website was to impact the plaintiff ‘severely’.
Now to the principles governing the awarding of damages for defamation.
Damages: principles
The plaintiff succeeded before the jury with respect to the first publication (which was found to carry one defamatory imputation) and a second publication (which was found to carry six defamatory imputations). Technically he has two causes of action, one with respect to each publication. While the second publication conveyed multiple defamatory imputations, it constitutes one cause of action.[3]
[3]Defamation Act, s 8.
Where a plaintiff in defamation proceedings succeeds with respect to more than one cause of action, the court has discretionary power to assess damages in a single sum.[4] It is appropriate to do so in the present proceeding having regard to the following considerations: the two publications relate to the same subject matter; they were published by the same means (on the defendant’s Internet website); they were made at about the same time; they do not raise significantly different issues as regards the assessment of damages; as between the two publications, the defamatory imputations found by the jury overlap; and considering the publications together will assist the task of assessing damages.
[4]Defamation Act, s 39.
The function of damages in a proceeding for defamation is to compensate the plaintiff. Exemplary or punitive damages may not be awarded.[5] Aggravated damages may be awarded where appropriate; in the present case it is appropriate (see below). The malice or other state of mind of the defendant is not relevant except where it affects the harm sustained by the plaintiff;[6] in the present case, this consideration is not relevant.
[5]Defamation Act, s 37.
[6]Defamation Act, s 36.
Under the national uniform legislation, damages in defamation proceedings must bear a rational relationship to the harm caused. Thus, in Victoria, s 34 of the Defamation Act provides:
In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
It can be seen that the court has a positive obligation to ensure that the amount of damages reflects this principle, which requires that the amount of the damages bears an appropriate and rational relationship to the harm sustained by the plaintiff. The purpose of this provision is to ensure that the amount of damages awarded does not exceed that which is necessary to compensate the plaintiff for the harm caused by the publication of the defamation. This must be kept in mind in the present case.
The plaintiff claims damages only by way of non-economic loss. By reason of s 35(1) of the Defamation Act, a maximum amount of such damages is specified. At the material time, this was $376,500.[7] The court has a discretion to order damages in excess of this amount where aggravated damages are warranted (s 35(2)). The amount of damages to be awarded in the present case will not exceed the statutory maximum even when aggravated damages are included.
[7]Declaration pursuant to s 35(3) of the Defamation Act in Victoria, Victorian Government Gazette, No G24, 18 June 2015, 1321, 1337.
In defamation proceedings, evidence may be admitted in mitigation of damages for the publication of defamatory matter. Pursuant to s 38(1) of the Defamation Act, the following matters non-exhaustively (see subsection 38(2)) fall into this category:
(a)the defendant has made an apology to the plaintiff about the publication of the defamatory matter; or
(b) the defendant has published a correction of the defamatory matter; or
(c)the plaintiff has already recovered damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(d)the plaintiff has brought proceedings for damages for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter; or
(e)the plaintiff has received or agreed to receive compensation for defamation in relation to any other publication of matter having the same meaning or effect as the defamatory matter.
None of these matters are here relevant and no other matters stand in mitigation of the damages that should be awarded to the plaintiff for the defendant’s very grave defamations.
The plaintiff is a person of good reputation who has been very gravely defamed. Although I do not find on the evidence that the plaintiff’s reputation in the minds of others has actually been damaged, the personal harm caused to him by the defendant’s defamation has been very real. In this kind of case, the governing principles are those relating to compensation for the distress, embarrassment and humiliation experienced by the plaintiff as a result of the defendant’s defamation and the need for strong vindication of the plaintiff’s reputation.
As was recently discussed by Ashley, Kaye and McLeish JJA in Barrow v Bolt,[8] in a defamation proceeding damages may compensate for harm that ‘extends beyond … damaged reputation’.[9] Their Honours went on: [10]
it has been long recognised that an important component of an award of damages in an action for defamation consists of compensation for the distress, embarrassment and humiliation occasioned to a plaintiff as a result of the publication to other people of the defamatory material about that plaintiff.[11]
[8][2015] VSCA 107 (21 May 2015) (‘Barrow’).
[9]Ibid [52].
[10]Ibid [53].
[11]See, for example, Coyne v Citizen Finance Ltd (1991) 172 CLR 211, 216 (Mason CJ and Deane J) (‘Coyne’); Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 60 (Mason CJ, Deane, Dawson and Gaudron JJ) (‘Carson’); McCarey v Associated Newspapers Ltd & Ors(No 2) [1965] 2 QB 86, 104 (Pearson LJ), 107 (Diplock LJ) (‘McCarey’); Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1, 76–7 [379]–[380] (Gillard AJA) (‘Popovic’).
Compensation for a plaintiff’s subjective distress, embarrassment and humiliation (in addition to any objective harm to his or her reputation) reflects the personal nature of the injury or harm that is caused by defamation to a person’s reputation. This was explained by the oft-cited[12] judgment of Windeyer J in Uren v John Fairfax & Sons Pty Ltd:[13]
It seems to me that, properly speaking, a man defamed does not get compensation for his damaged reputation. He gets damages because he was injured in his reputation, that is because he was publicly defamed. For this reason, compensation by damages operates in two ways — as a vindication of the plaintiff to the public and as consolation to him for a wrong done. Compensation here is a solatium rather than a monetary recompense for harm measurable in money.[14]
The personal nature of the harm experienced by a defamed person was also relevantly discussed in Cassell & Co Ltd v Broome[15] by Lord Diplock:
The harm caused to the plaintiff by the publication of a libel upon him often lies more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him. A solatium for injured feelings, however innocent the publication by the defendant may have been, forms a large element in … [compensatory] damages …[16]
[12]See eg Barrow [2015] VSCA 107 (21 May 2015) [52] (Ashley, Kaye and McLeish JJA).
[13](1966) 117 CLR 118, 150.
[14]Cassell & Co Ltd v Broome & Anor [1972] AC 1027, 1071 (Lord Hailsham); Coyne (1991) 172 CLR 211, 235 (Toohey J); Carson (1993) 178 CLR 44, 69 (Brennan J).
[15][1972] AC 1027.
[16]Ibid 1125; cited with approval in Curnow v Giles [2015] VSCA 70 (24 April 2015) [25] (Warren CJ and Tate JA, Ginnane AJA agreeing) (‘Curnow’).
Thus the law recognises and compensates personal or internal harm to reputation resulting from defamation as well as public or external harm. The sense of having a good reputation and positive social standing is not conceptualised as ‘a commodity having a market value’[17] but as an essential ingredient of a person’s dignity as an individual.[18] Distress, humiliation and embarrassment as the plaintiff’s felt experience of defamation are conceptualised as harm to his or her reputation. As such, it is taken into account when assessing damages, remembering that ‘[r]eputation and money are in that sense incommensurable’,[19] and the damages are in the nature of a solatium.
[17]Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327, 349 [60] (Hayne J) (‘Rogers’).
[18]Carson (1993) 178 CLR 44, 71 (Brennan J).
[19]Rogers (2003) 216 CLR 327, 349 [66] (Hayne J); see also Carson (1993) 178 CLR 44, 70 (Brennan J).
More generally, the principles applicable to the assessment of damages in defamation cases were discussed by the High Court in the leading case of Carson v John Fairfax & Sons Ltd.[20] Of compensatory damages, Mason CJ, Deane, Dawson and Gaudron JJ said:[21]
Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that "the amount of a verdict is the product of a mixture of inextricable considerations".[22] The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant's personal and (if relevant) business reputation and vindication of the appellant's reputation.[23] The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant.[24] Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant's reputation. "The gravity of the libel, the social standing of the parties and the availability of alternative remedies" are all relevant to assessing the quantum of damages necessary to vindicate the appellant.[25]
[20](1993) 178 CLR 44.
[21]Ibid 60-1.
[22]Uren v John Fairfax and Sons Pty Ltd (1966) 117 CLR 18, 150 (Windeyer J).
[23]Carson (1991) 24 NSWLR 259, 296-299 (Mahoney JA).
[24]Uren (1966) 117 CLR 18, 150 (Windeyer J); Coyne (1991) 172 CLR 211, 216 (Mason CJ, Deane J); John Fairfax and Sons v Kelly (1987) 8 NSWLR 131, 142 (McHugh JA); McCarey [1965] 2 QB 86, 107 (Diplock LJ).
[25]John G Fleming, The Law of Torts (Thomson Reuters, 8th ed, 1992) 595.
I have already discussed the first and second purposes. The third purpose – vindication – is of fundamental importance in the present case. In Carson, Brennan J said that the ‘chief purpose of the law in creating a cause of action for defamation is to provide vindication to counter the injury done to the plaintiff in his or her reputation’.[26] His Honour approved[27] of the statement made by Lord Radcliffe in Dingle v Associated Newspapers Ltd[28] that, in a defamation action, ‘the damages awarded have to be regarded as the demonstrative mark of … vindication’.[29] Brennan J went on to emphasise that the amount awarded must be sufficient once and for all[30] and for demonstrating convincingly that the defamation was false:[31]
The sufficiency of the amount awarded is not to be determined by reference solely to circumstances past and present; the amount must be sufficient to vindicate the plaintiff's reputation in the relevant respect in the future. Thus Lord Hailsham in Broome v Cassell and Co[32] said:
‘Not merely can (the plaintiff) recover the estimated sum of his past and future losses, but, in case the libel, driven underground, emerges from its lurking place at some future date, he must be able to point to a sum awarded by a jury sufficient to convince a bystander of the baselessness of the charge.’
The purpose of vindication has been described as ‘nailing the lie’.[33]
[26](1993) 178 CLR 44, 69.
[27]Ibid.
[28][1964] AC 371.
[29]Ibid 396.
[30]See also Curnow v Giles [2015] VSCA 70 (24 April 2015) [27] (Warren CJ and Tate JA, Ginnane AJA agreeing).
[31](1993) 178 CLR 44, 69-70.
[32][1972] AC 1027, 1071.
[33]Lower Murray Urban and Rural Water Corporation v Di Masi [2014] VSCA 104 (4 June 2014) [107] (Warren CJ, Tate and Beach JJA) (‘Di Masi’).
As a consideration relevant in the assessment of damages, vindication of the plaintiff’s reputation might count for much more than other considerations, such as the relatively narrow scope of the publication. Beach J so held in French v Herald & Weekly Times Pty Ltd (No 2):[34]
In my view, the most relevant consideration when assessing the plaintiff’s damages in this case is vindication. That is, whatever view one takes of the actual damage to reputation and hurt feelings, the amount must be sufficient (in the words of some authorities) to ‘nail the lie’.[35] To that end, the precise circulation figures of the Herald Sun are less relevant than they would be in a case where damage to reputation and hurt feelings were principal considerations.[36]
As will be seen, this is so in the present case.
[34](2010) 27 VR 171 (‘French’).
[35]See, for example, Hewitt v Pacific Magazines Pty Ltd [2009] SASC 323 (15 October 2009) [11] (Lunn J).
[36]French (2010) 27 VR 171, 194 [87]; cited with approval in Di Masi [2014] VSCA 104 (4 June 2014) [107] (Warren CJ, Tate and Beach JJA).
The gravity of the defamation is an important consideration in the assessment of damages.[37] Other considerations are relevant, such as those mentioned in Curnow by Warren CJ and Tate JA (Ginnane AJA agreeing):[38]
The mode and extent of publication, a failure to retract the publication or apologise, and the persistence in allegations of justification or truth may give further currency to defamatory publications by extending their capacity to harm a plaintiff’s reputation, apart from any additional injury to feelings.[39]
These considerations are relevant to the assessment of compensatory damages ‘as part of the harm caused to the plaintiff by the defamation’[40] quite apart from their potential relevance to aggravated damages. In the present case, I consider that such considerations more naturally relate to aggravation (see below).
[37]Carson (1993) 178 CLR 44, 61 (Mason CJ, Deane, Dawson and Gaudron JJ), citing John G Fleming, The Law of Torts (Thomson Reuters, 8th ed, 1992) 595.
[38][2015] VSCA 70 (24 April 2015) [26].
[39]Herald and Weekly Times v McGregor (1928) 41 CLR 254, 262–3 (Knox CJ, Gavan Duffy and Starke JJ)
[40]Duffy v Google Inc (No 2) [2015] SASC 206 (23 December 2015) [100] (Blue J) (see [100]-[108] for a review of the authorities on the subject).
In final submissions, the plaintiff contended that he should be awarded damages on an aggravated basis.
Compensation damages are awarded as a single sum reflecting the purposes of consolation, reparation and vindication,[41] as well as any component for aggravation. Aggravated damages are compensation damages.[42] An award of compensation damages is not broken into components.[43] Accordingly, damages in the present case will be awarded in a global amount.
[41]Carson (1993) 178 CLR 44, 60-1 (Mason CJ, Deane, Dawson and Gaudron JJ), 72 (Brennan J).
[42]Popovic (2003) 9 VR 1, 77 [385] (Gillard AJA, Winneke ACJ and Warren AJA agreeing).
[43]Di Masi [2014] VSCA 104 (4 June 2014) [16] (Warren CJ, Tate and Beach JJA).
Aggravated damages may be awarded with respect to increased hurt to feelings resulting from at-publication or post-publication conduct of the defendant that was not bona fide, justifiable or proper.[44] Instances were given in Herald & Weekly Times Ltd v Popovic[45] by Gillard AJA (Winneke ACJ and Warren AJA agreeing):
The cases provide examples of the conduct of the publisher which has attracted an award of aggravated damages. Typical examples are the conduct of the publisher at the time of publication, including any evidence of malice, the extent and mode of the publication, and the conduct of the publisher during the litigation. Other examples are failure to apologise and retract and the pleading and persistence in unjustifiable defences. The conduct of counsel at trial may be another example.[46]
[44]Ibid [118] (Warren CJ, Tate and Beach JJA); Triggell v Pheeney (1951) 82 CLR 497, 514 (Dixon, Williams, Webb and Kitto JJ) (‘Triggell’); Trkulja v Yahoo! Inc LLC [2012] VSC 88 (15 March 2012) [51] (Kaye J) (see [51]-[55] for a review of the authorities on the requirement that both at-publication and post-publication conduct must be lacking in bona fides, improper or unjustifiable).
[45](2003) 9 VR 1.
[46]Ibid 77-8 [386].
Not every failure to apologise for and retract a defamation constitutes aggravating conduct.[47] It must be lacking in bona fides, improper or unjustifiable. I adopt with gratitude the following statement of the applicable principle by Kaye J in Belbin v Lower Murray Urban and Rural Water Corporation:[48]
depending on the circumstances, a failure to apologise and express regret can constitute improper or unjustifiable conduct.[49] Ordinarily, it may be difficult to establish that a mere failure to apologise, without more, aggravates damages in a particular case.[50] However, in the context of other factors, by failing to publish a retraction or apology a defendant may be seen to be continuing to assert the imputations published by it.[51]
As will be seen, the defendant’s failure to apologise and retract in the present case was improper and unjustified.
[47]See generally Matthew Collins, The Law of Defamation and the Internet (OUP, 3rd ed, 2010) 390 [20.26]; Patrick George, Defamation Law in Australia (LexisNexis, 2nd ed, 2012) 509 [33.5].
[48][2012] VSC 535 (9 November 2012) [330].
[49]Popovic (2003) 9 VR 1, 79 [399] (Gillard AJA).
[50]Carson (1992) 178 CLR 44, 66 (Mason CJ, Deane, Dawson and Gaudron JJ).
[51]Ali v Nationwide News Pty Ltd [2008] NSWCA 183, [83] (Tobias and McColl JJA).
Likewise, the conduct of the defendant’s defence can only be an aggravating consideration if it was lacking in bona fides, improper or unjustifiable.[52] That principle was expounded in Triggell v Pheeney[53] by Dixon, Williams, Webb and Kitto JJ as follows:
It is no doubt true that the jury cannot take into consideration as a ground for giving or increasing damages, whether exemplary or compensatory, conduct of the defendant which was not merely bona fide but was justifiable or proper. A bona-fide defence raised properly or justifiably in the circumstances known to the defendant and evidence honestly given in support of such a defence doubtless cannot be used for such a purpose. But the decision of the majority in Herald and Weekly Times Ltd v McGregor[54] must mean that the conduct of the defence may be taken into consideration not only as evidencing malice at the time of publication or afterwards, as, for instance, in filing a plea, but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable.[55]
[52]See Matthew Collins, The Law of Defamation and the Internet (OUP, 3rd ed, 2010) 389 [20.22]; Patrick George, Defamation Law in Australia (LexisNexis, 2nd ed, 2012) 510-11 [33.6].
[53](1951) 82 CLR 497.
[54](1928) 41 CLR 254 (Knox CJ, Gavan Duffy and Starke JJ).
[55]Triggell (1951) 82 CLR 497, 514.
Again, the defendant’s conduct of his defence was improper and unjustified (see below).
To the assessment of damages in accordance with these principles I now turn.
Damages: assessment
The plaintiff submitted that each of the imputations found by the jury to be defamatory were very serious. They were entirely unjustifiable and bespoke of very serious misconduct by the plaintiff, a serving police officer. They caused the plaintiff very considerable injury to his feelings, and caused hurt and distress, which were continuing. The hurt and distress was all the greater because of the underlying hurt and distress caused by Tyler’s shooting.[56] The defamatory publications were made on an Internet website about matters of significant public interest. The damages must fully vindicate the plaintiff’s reputation and take into account the aggravated considerations.
[56]Defendants in defamation proceedings take plaintiffs as they find them: Cripps v Vakras [2014] VSC 279 (20 June 2014) [559] (Kyrou J).
The defendant submitted the scope of the publication was not large – relevantly only for the period from 3 April 2012 to 14 July 2012. The previous period of publication on the website is outside the limitation period and cannot be taken into account. Given that the coroner’s report was handed down in November 2011, the public interest in the website would not have been high. As to aggravated damages, at trial the defendant simply put the plaintiff to his proof, as was his right. Defences such as justification were withdrawn prior to commencement of the trial. The particular averment of January 2014 complained of by the plaintiff was withdrawn on 4 July 2014. There is no evidence of actual damage to the plaintiff’s reputation (whose good reputation was conceded). Although the defendant has not apologised, the two publications were removed by 14 July 2012 as a result of the plaintiff’s two email messages.
A fundamental consideration when assessing the amount of damages that should be awarded in this case is the very grave nature of the defamations. I have already set out the relevant pages of the defendant’s website. The jury found that the first publication carried the defamatory imputation that the plaintiff had ‘executed’ Tyler. It found that the second publication carried that imputation and further imputations that the plaintiff had shot and killed Tyler without any or any adequate reason; that he had ‘gunned down [Tyler] like he was a monster and a dangerous mongrel dog’; that he had shot Tyler six times and killed him, thereby unlawfully using excessive force; that he had shot and killed a slightly built, inexperienced and partially blinded boy six times when he and the other police knew they could have overpowered him; and that, by shooting Tyler, he had committed the crime of manslaughter.
It would be difficult to overstate the gravity of these defamations. They are shocking in the extreme. Any person would be grievously hurt and distressed when so defamed. The plaintiff is a serving police officer who is devoting his working life to helping others through the law. As his and his wife’s evidence show, his distress, embarrassment and humiliation is particularly intense, which must be reflected in the amount of damages awarded. The defamatory publications of the defendant represent a baseless challenge to the moral foundation of the plaintiff’s personal integrity and public standing, both as an individual and a police officer.
Another important consideration is the scope of the publication. I exclude entirely from consideration any and all publications of the relevant and like statements prior to 3 April 2012. I take into account, and award damages for, only the two publications made on 12 June and 14 July 2012. On the evidence, the scope of the publication of the relevant pages of the defendant’s website during the relevant period was not large. At most, the publications in one form or another were available for accessing on the defendant’s Internet website for a period of about three months from 3 April 2012 until 12 June or 14 July 2012. But the scope of the defendant’s publication was not insignificant. The subject of the publications was a matter of substantial public controversy. I do not find that the publication of the coroner’s report in November 2011 would necessarily have quelled that controversy. Searches of the plaintiff’s and Tyler’s name on standard search engines would have produced results that listed the defendant’s website very prominently.
Although the defendant’s defamation of the plaintiff was not the subject of large publication, the nature of the defamations was very grave. Having regard to the very grave nature of the defamations and the intense personal harm that has been caused to the plaintiff, vindication is a fundamentally important consideration to take into account. Despite the not-large scope of the publication, the damages must be adequate for the purpose of vindicating the plaintiff’s reputation, ie nailing the defendant’s lie.
Vindication would be an important consideration whatever the plaintiff’s occupation and circumstances of the defamation. But he was and is a police officer and the defamations related to his work as such. The legal principles that I have discussed emphasise that the award of damages by the court must be such as to convincingly demonstrate that the plaintiff has been vindicated by the jury and the court. People both familiar and unfamiliar with the circumstances of the defamations must be left in no doubt that the statements were baseless and that the plaintiff deserves to keep his good reputation as a respected person and (now) a sergeant of police.
In final submissions, the plaintiff relied upon the defendant’s failure to check the facts with the plaintiff, continuing the publication after the coroner published her findings, publishing details of the plaintiff’s family and personal life, refusing to apologise and persisting with unmeritorious defences. In my view, the defendant’s conduct in all of these respects was improper and unjustified and aggravated the personal impact of the defamations upon the plaintiff in his reputation. Having regard to the nature of the allegations made, the defendant should have checked his facts with the plaintiff. Having regard to the coroner’s findings, he should have fundamentally changed the website soon after November 2011. There was no justification for bringing the plaintiff’s private and family life into the defamations. Having regard to the clear defamatory nature of the allegations, he should have apologised to the plaintiff when invited to do so, especially given the publication of the coroner’s findings. By then it must have been clear that the defendant had no hope of substantiating the allegations made. He should not have persisted with unsustainable defences, as he did, nor made unsubstantiated averments calling into question the plaintiff’s version of events concerning the shooting.
Having so upheld all of the plaintiff’s grounds of aggravation, I am compelled to draw particular attention to two aspects of the defendant’s conduct which, in my view, are more egregious. First, he continued to publish defamatory statements about the plaintiff in pages on his website after the coroner exonerated the plaintiff. The coroner’s report was comprehensive and clear. It demanded immediate action from the defendant yet he delayed for six months or so (the last three or so of which are relevant). Secondly, until just before trial the defendant persisted with defences, including justification, that flew in the face of the coroner’s findings and contained no apparent foundation. For a lesser time, his averments called into question the plaintiff’s version of events concerning the shooting. The defendant’s conduct of his defence required the plaintiff to respond and prepare for trial accordingly. In these respects, the conduct of the defendant was especially unjustified and improper. The defendant is not to be punished for this conduct, for punitive or exemplary damages are not available in defamation proceedings. But this conduct aggravated the intensity of the hurt suffered by the plaintiff by reason of the defamations, ones that were already very grave indeed.
In all of the circumstances, the court will award damages in favour of the plaintiff against the defendant, including aggravated damages, in the sum of $150,000.
Conclusion
As the judge in this proceeding, my function is to assess the damages to be awarded in favour of the plaintiff against the defendant in respect of two publications on the defendant’s Internet website that were found by the jury to be defamatory.
The publications concerned the plaintiff’s involvement in the death of Tyler Cassidy, aged 15 years. Tyler died in tragic circumstances in 2008. The plaintiff, then a leading senior constable and now a sergeant of police, was one of four officers present when Tyler was fatally shot by one of them. After a long inquest, in November 2011 the coroner published findings that exonerated the plaintiff of any personal responsibility for Tyler’s death and described the plaintiff as being ‘dedicated to his work as a member of Victoria Police and his role as a protector of the community’.
The jury found that, in relevant pages of his website, the defendant had published statements in June and July of 2012 that were defamatory of the plaintiff and rejected the defence of triviality relied upon by the defendant. It found that the publications carried defamatory imputations that (in summary): the plaintiff had executed Tyler; he had shot and killed Tyler without any or any adequate reason; had gunned down Tyler like he was a monster and a dangerous mongrel dog; in shooting at Tyler six times and killing him, the plaintiff had unlawfully used excessive force out of proportion to any threat posed by Tyler; he chose to shoot Tyler, then a slightly built, inexperienced and partially blinded boy, six times when he knew or ought to have known that he and other police present could have otherwise overpowered Tyler without anybody being harmed; and by shooting Tyler as he did the plaintiff committed manslaughter. As so found by the jury, the defamatory content of the publications of the defendant was very grave.
The publications caused the plaintiff to suffer (continuing) intense distress, humiliation and embarrassment and thereby great harm in his reputation. The purpose of a damages award by the court in a defamation proceeding is to compensate the plaintiff proportionately for such harm. The court has a positive obligation to ensure that the amount of damages awarded bears an appropriate and rational relationship to the harm so suffered.
The period during which the defamatory statements were published on the defendant’s website was not more than 3 April to 14 July 2012. The scope of the publication was not large (but was not insignificant). Even though the scope of the publication was not large, an important consideration in relation to damages is that the amount of the damages must be sufficient to vindicate the reputation of the plaintiff. By the award of damages in this case, the court intends to demonstrate to all the world that the defamatory publications of the defendant represented a baseless challenge to the moral foundation of the plaintiff’s personal integrity and public standing and that the plaintiff deserves to keep his good name as a respected member of the community and sergeant of police.
Certain aspects of the circumstances of the defamations and the defendant’s conduct of his defence were improper and unjustified. In particular, the defendant continued to publish the defamatory statements on his website for more than six months after the coroner exonerated the plaintiff. He also persisted with unsubstantiated defences, including the defence of justification (that is, that the defamatory publications were substantially true), up to shortly before the commencement of the trial. These and other improper and unjustified aspects of the circumstances of the defamations and the defendant’s conduct of his defence aggravated the intensity of the (continuing) harm done and the hurt caused to the plaintiff by the defamatory publications of the defendant. This too is to be reflected in the award of damages.
The order of the court will be that, in respect of the verdict of the jury that the publications of the defendant defamed the plaintiff, the defendant is to pay the plaintiff damages (including aggravated damages) in the amount of $150,000. I will hear the parties in relation to costs.
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