| 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…
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- AGLC
- Dods v McDonald (No 2) [2016] VSC 201
- Case
- [2016] VSC 201
- Decision Date
CaseChat Overview and Summary
The primary legal issues addressed by the court included the assessment of damages following the jury's verdict in favour of the plaintiff. The court needed to consider the gravity of the defamations, the lack of mitigating circumstances, the extent of the publication, the importance of vindication, and the defendant's failure to retract or apologise for the statements. The court also had to determine whether the defendant's conduct during the trial was improper and unjustified, and whether this warranted an increase in the damages awarded. The court's reasoning focused on the necessity for the damages to reflect the harm sustained by the plaintiff and to maintain an appropriate and rational relationship with the harm caused.
The court found that the defamatory statements were of a very grave nature, particularly given they related to a serving police officer. The lack of mitigating circumstances, such as the limited scope of publication, did not diminish the impact on the plaintiff. The court emphasised the importance of vindication in such cases, where the defendant's lies needed to be 'nailed'. The court also considered the defendant's failure to retract or apologise, as well as the conduct during the trial, as factors that warranted an increase in the damages awarded. The court ultimately decided that the amount of damages should be sufficient to reflect the harm caused to the plaintiff, while also ensuring that it bore an appropriate and rational relationship to that harm.
The court awarded the plaintiff aggravated damages, taking into account the severity of the defamatory statements and the defendant's conduct. The final orders included an amount of damages to compensate for the distress, humiliation, and embarrassment suffered by the plaintiff, as well as a sum for aggravated damages to reflect the improper and unjustified conduct of the defendant.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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