Ives v The State of Western Australia [No 7]
[2013] WASC 62
IVES -v- THE STATE OF WESTERN AUSTRALIA [No 7] [2013] WASC 62
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 62 | |
| Case No: | CIV:1069/2010 | ON THE PAPERS | |
| Coram: | LE MIERE J | 5/03/13 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Witness statements partly struck out, leave to file further witness statements | ||
| B | |||
| PDF Version |
| Parties: | BENJAMIN WILLIAM IVES THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Defamation Objections to witness statements Leave to serve further witness statements |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Defamation - Objections to witness statements - Leave to serve further witness statements
Legislation:
Nil
Result:
Witness statements partly struck out, leave to file further witness statements
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Category: B
Representation:
Counsel:
Plaintiff : No appearance
Defendant : No appearance
Solicitors:
Plaintiff : In person
Defendant : State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Nil
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1 LE MIERE J: The trial of this defamation action is listed to commence on 11 March 2013. Each of the parties has filed a number of witness statements in accordance with pre-trial directions. The defendant objects to many paragraphs, or passages, in the witness statements of the plaintiff, Benjamin Ives, and his father, William Bruce Ives, filed by the plaintiff. The defendant has applied to me, as the trial judge, to determine those objections before the commencement of the trial. Ordinarily, objections to evidence are determined in the course of the trial. However, in this case it is convenient to determine the objections prior to the commencement of the trial. That is because the outcome of the objections will determine whether the defendant seeks to adduce further evidence to answer evidence in the plaintiff's witness statements to which the defendant objects.
An overview of the action
2 The matters in issue are, of course, determined by the pleadings. The way in which each party seeks to make out their case can be gleaned from the witness statements and bundle of trial documents that have been filed by the parties.
The pleadings
3 The plaintiff complains of words spoken by Sergeant Skehan when, in the company of other police officers, he attended at the home of the plaintiff's parents to interview the plaintiff and search the house for firearms following a complaint made to the police by the plaintiff's ex-girlfriend, Ms Lim, that the plaintiff had made internet postings that made references to him wanting to do violent things to her. In essence, the plaintiff says that Sergeant Skehan said to his mother, Mrs Ives, and to his sister, Marianne Thompson, and to his brother-in-law, Andrew Thompson, words to the effect that the plaintiff had sent a threatening email to his ex-girlfriend who had a restraining order against him, and had threatened to rape, kill and chop her body into little pieces. The plaintiff says that Sergeant Skehan's actions were done by him as a member of the Police Force while performing or purporting to perform the functions of a member of the Police Force and the defendant is liable for those actions.
4 The defendant denies that Sergeant Skehan spoke the words attributed to him but says that he told Mrs Ives that police were at the premises to investigate a complaint by a female person of threats of violence against that person made on the internet by the plaintiff, that the threats were serious and specific and included, amongst other things, references to murder, rape and firearms and that the threats required
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- police action including an interview of the plaintiff and a search for firearms.
5 The defendant pleads that any statements made by Sergeant Skehan to Mrs Ives, Andrew Thompson or Marianne Thompson were made on an occasion of qualified privilege. The defendant further pleads that if the words alleged by the plaintiff were spoken by Sergeant Skehan, the only imputation which arises from the pleaded words is that the plaintiff made threats through an electronic medium received by an ex-girlfriend that he would cause serious harm to the ex-girlfriend or alternatively that he would rape and kill the ex-girlfriend and smash her body to pieces, and that either of those imputations was substantially true. The defendant further, or alternatively, pleads that the only imputations which arise from the words pleaded by the plaintiff are that the plaintiff was reasonably suspected by Sergeant Skehan, or police officers, of having made an internet posting to a female containing threats that the plaintiff would cause serious harm to her or that the plaintiff would rape and kill her and smash her body to pieces, and that each of those imputations is true. The defendant also pleads truth to an innuendo meaning pleaded by the plaintiff. Finally, the defendant pleads the defence of contextual truth.
The plea of qualified privilege
6 There are three pleas of qualified privilege. The primary plea is in [16] of the defence in which the defendant pleads that the statements made by Sergeant Skehan to Mrs Ives were made on an occasion of qualified privilege. The facts supporting the plea include:
(c) Sergeant Skehan reasonably regarded the report and internet posting as warranting immediate action by the police for the protection of Ms Lim and the public.
(d) Sergeant Skehan had formed the bona fides view that such action by police included promptly searching the house.
7 Paragraph 17 pleads that any statements made by Sergeant Skehan to Andrew Thompson or Marianne Thompson were made on an occasion of qualified privilege. The plea relies upon the following additional facts:
(b) In order to be able to locate and interview the plaintiff, Sergeant Skehan was under an obligation to impart information to Andrew Thompson and Marianne Thompson.
- That is an implied assertion that Sergeant Skehan made the statements, amongst other things, for the purpose of locating the plaintiff. The plea in
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- [8] that the plaintiff's parents' house was the address for the plaintiff last known to the police is relevant to those pleas.
8 In his reply the plaintiff says that his parents' house was not the last known address of the plaintiff. The plaintiff denies that Sergeant Skehan spoke the words on an occasion of qualified privilege. Amongst other things the plaintiff pleads that the conduct of Sergeant Skehan in publishing the words complained of was unreasonable. In support of that plea the plaintiff says, amongst other things, that it is to be inferred from the facts that Sergeant Skehan did not subsequently search the plaintiff's own home and did not subsequently question the plaintiff that:
1. it was not in the public interest in the circumstances for the words complained of to be published expeditiously in any event;
2. it was not in Sergeant Skehan's interest in the circumstances for the words complained of to be published in any event; and
3. it was not part of Sergeant Skehan's duty to publish the words complained of.
The witness statements
9 The plaintiff has filed a witness statement by Mrs Ives. In that statement Mrs Ives says that on the evening in question the policeman told her the words that were written in the email which were something like 'Ben intended to rape and murder the girl and cut her into little pieces'. Mrs Ives says they chatted for a while and she answered lots of questions about the plaintiff. She told them that the plaintiff did not live with his father and her and his home was at the Murdoch University apartments. She co-operated with the police request to search the house. She says in effect that they did not carry out a very thorough search.
10 The plaintiff has filed a witness statement by the plaintiff. He says that he was arrested in about August 2009 and was on bail until February 2010. The address on the bail form of his house was Murdoch Student Village. He says that after the police visit to his parents' house he telephoned Crime Stoppers. He says that he was told that the reason the police attended his parents' house rather than his own was because Murdoch police station was closed and Perth police station did not have his correct address and wanted to respond straight away so they went to his parents' house instead of his. He was also told that if he did not present himself at Perth police station and speak to Sergeant Skehan that police would attend his parents' house again. The plaintiff says he went to
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- Perth police station and asked to speak to Sergeant Skehan. He did not see him. The plaintiff says he was never questioned or charged regarding the incident at his parents' house. Police never searched his house for firearms. Approximately two weeks after the incident he received a letter from a policeman with words to the effect that he was involved in a domestic disturbance on 31 December 2009; the letter contained brochures including men's line, men's violence helpline, Alcoholics Anonymous and other such material.
11 The defendant has filed a number of witness statements. One is a witness statement of Constable Holmes. Constable Holmes says that on 31 December 2009 Ms Lim came to the Perth police station. Ms Lim told him she had a violence restraining order (VRO) against the plaintiff and there had been previous breaches of the order by him. Ms Lim complained about new postings Mr Ives had made on a social media site. She said words to the effect that the posts involved firearms or shooting and that she knew Mr Ives had posted them. Constable Holmes used IMS to check the details relating to the VRO. He then spoke to Sergeant Skehan about the allegation.
12 The defendant has filed a witness statement by Sergeant Skehan. Sergeant Skehan says that he was first informed about the complaint made by Ms Lim when he was at Perth police station. He cannot recall the words that were spoken but the gist of what he was told was that there had been an accusation of a death threat, possibly involving firearms. He looked over another staff member's shoulder at a computer screen where details of a current VRO were being checked. Mr Ives' address was somewhere in Claremont. He organised to attend Mr Ives' address in Claremont. Sergeant Skehan spoke to Mrs Ives at her house in Claremont. Mrs Ives said she had not seen Ben for a couple of days. She mentioned that Ben was a student at Murdoch University and had a place there but she did not know what his room number was or which street it was on. With Mrs Ives' permission Sergeant Skehan and Constable Eynon-Williams searched the house. They were in the house for between six and eight minutes. A couple of days later Sergeant Skehan received a call from Mrs Ives. She wanted Sergeant Skehan to meet with her and her husband to discuss the investigation. Sergeant Skehan declined and said he was no longer the investigating officer. He explained that his role was limited to the initial police response.
Objections to witness statement of Benjamin Ives 25 October 2012
13 I will deal with each objection in turn.
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Paragraph 2
14 The defendant objects to the words: 'I believe she did this to punish me for breaking up with her, she expressed a vendetta against me online which included "utilising" the police to harass me'. The defendant says this is an impermissible opinion. The plaintiff says that the opinion expressed is not intended to prove the existence of a fact about which the opinion is expressed. The plaintiff says that the words are relevant to his reactions and feelings upon learning of the publication. The words do not describe the plaintiff's feelings or reactions to the publication he complains of. There is insufficient connection between the plaintiff's statement of belief and his feelings or reactions to the publication complained of for the words to be relevant to damages. The words will be struck out.
Paragraph 12
15 The defendant complains of the words: 'ie police had put their house under siege the previous night'. The defendant says that to the extent that the words are relied upon to prove the truth of what was said in the note it is hearsay. The plaintiff says the evidence is not being led to assert that what was contained in the note was true but to prove that the note was left and contained what it did as the motivation for the plaintiff's consequent actions and as evidence of damage to his feelings and reputation. I will allow the statement not as evidence of its truth but as relevant to the plaintiff's reaction and feelings.
Paragraph 13
16 The defendant objects to the words: 'besides they were not threats nor ever intended to be. I don't believe anyone could read that text and believe the person who wrote it was serious, I would never believe such a person existed'. The defendant says the words express an impermissible opinion. The plaintiff says that he is an expert on his motives and on his intentions. The words are argumentative. They will be struck out.
Paragraph 14
17 In this paragraph the plaintiff says that he telephoned Crime Stoppers to find out what had happened and was told that the reason police attended his parents house rather than his own was because Murdoch police station was closed and Perth police station did not have his correct address and wanted to respond straight away. The defendant says it is hearsay and irrelevant. The evidence is hearsay as evidence of why the police
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- attended the plaintiff's parents' house. It is irrelevant for any other purpose. The words will be struck out.
Paragraph 15
18 In this paragraph the plaintiff says he went to Perth police station and asked to speak to Sergeant Skehan. He says Sergeant Skehan was there but the plaintiff believed he would not see him. The defendant says the whole paragraph is irrelevant and the second sentence is speculative opinion. I will permit the first sentence to stand but strike out the second sentence. That is a statement of belief or speculation which is irrelevant.
Paragraphs 16 and 17
19 In [16] the plaintiff says he was never questioned or charged or apologised to regarding the incident at his parents' house. In [17] the plaintiff says the police never searched his house for firearms nor accused him of emailing threats to Ms Lim. The defendant says those paragraphs are irrelevant. The defendant says that the actions of police officers other than Sergeant Skehan to further investigate the alleged breach of the VRO after 31 December 2009 are not relevant to the issues in dispute. The allegations in par 4(d)(iv) of the reply are confined to Sergeant Skehan's actions after 31 December 2009.
20 Paragraphs 16 and 17 are relevant in so far as they are evidence that Sergeant Skehan did not question the plaintiff or search his house for firearms or cause any other police officers to do so. In [16] of the defence the defendant pleads the facts giving rise to the qualified privilege. Those facts include that Sergeant Skehan reasonably regarded the report and internet posting as warranting immediate action by the police for the protection of Ms Lim and the public and Sergeant Skehan formed the bona fide view that such action by police included promptly searching the house. The plaintiff effectively joins issue with those pleas in par 4(d)(iv) of his reply. It is common ground that when Sergeant Skehan visited the plaintiff's parents' house he did not speak to the plaintiff and he learned that the plaintiff lived at an apartment at Murdoch University. Proof that Sergeant Skehan did not subsequently attempt to speak to the plaintiff or search the place where he lived for firearms is evidence that Sergeant Skehan did not regard the report and internet posting as warranting immediate action by the police for the protection of Ms Lim and the public and that Sergeant Skehan did not form the bona fide view that such action by police included promptly searching the place where the plaintiff was living.
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21 Of course, the evidence in [16] and [17] of the plaintiff's witness statement does not necessarily lead to that conclusion. There may be good reasons why Sergeant Skehan did not attempt to locate the plaintiff at Murdoch University and interview him about the internet posting or search the place where he was living. However, [16] and [17] of the plaintiff's witness statement are relevant to that issue. Those paragraphs will not be struck out.
Paragraph 18
22 In this paragraph the plaintiff gives evidence of communications he received from a policeman about two weeks after the incident. The defendant says it is irrelevant. The evidence is relevant to the plaintiff's feelings about the publication complained of. The paragraph will not be struck out.
Paragraph 19
23 In this paragraph the plaintiff gives hearsay evidence of the opinion of Dr Kolnick that the internet posting was satire. That is inadmissible hearsay and irrelevant. Dr Kolnick's opinion on whether the posting is satire is irrelevant. The paragraph will be struck out.
Paragraph 20
24 In this paragraph the plaintiff gives evidence that he was furious the police had contacted his mother and his doctor. The defendant says this is irrelevant. It is relevant in so far as it is evidence that the plaintiff was furious that police had contacted his mother. That is, it is evidence of the plaintiff's feelings and injury to his feelings caused by the publication complained of. The evidence that the plaintiff was furious that the police had contacted his doctor is irrelevant. I will strike out all of the words after 'my mother'.
Paragraph 21
25 In this paragraph the plaintiff says he is furious police could not read for themselves the postings and see they are jest and dare to plead justification in this action. The defendant says that is irrelevant and argumentative. It is relevant insofar as it is evidence of the plaintiff's reactions and injury to his feelings and hence to the issue of damages. The paragraph will not be struck out.
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Paragraph 22
26 In this paragraph the plaintiff gives evidence of what his parents and sister believe. The defendant says it is irrelevant and argumentative. It is hearsay insofar as it purports to be evidence of what the plaintiff's parents and his sister believe. However, it is admissible evidence of what the plaintiff believes they think or believe about him as a result of the publication complained of. The evidence is admissible in relation to damages and hence to the issue of damages. The paragraph will not be struck out.
Witness statement of William Bruce Ives of 16 December 2012
27 The defendant has objected to a number of paragraphs of this witness statement. I will consider each objection in turn.
Paragraph 2
28 The defendant objects to the second and third sentences. In the second sentence William Ives says that he is angry police searched his house and in the third sentence refers to the party at his house. The defendant says this is irrelevant. I agree. William Ives' reactions and feelings about the police are not relevant. Insofar as he gives evidence of what happened at the Claremont house, it is hearsay because he was not present.
Paragraph 3
29 In this paragraph William Ives sets out his opinion of the police conduct towards the plaintiff and what the plaintiff told him. The paragraph also contains argumentative opinions. The paragraph is irrelevant and will be struck out.
Paragraph 12 and 13
30 In these paragraphs William Ives gives evidence that he and his wife attempted to find out what the email sent by the plaintiff said. William Ives says that they went to the police station but were told that the police were not allowed to discuss the matter. That is irrelevant. The paragraphs will be struck out.
Paragraph 14
31 In this paragraph William Ives says that he spoke to Ben on the phone and he was very angry at what police had done and I told him he had to sue the police for what they had done. The first part of the
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- paragraph, that is the statement that Ben was very angry at what the police had done, is relevant to the plaintiff's reactions and feelings and therefore relevant to the issue of damages. William Ives telling the plaintiff that he had to sue the police is irrelevant. It will be struck out.
Paragraph 15
32 In this paragraph William Ives speaks of chasing up the police about the matter but receiving no response. It is irrelevant. It will be struck out.
Paragraph 16
33 In this paragraph William Ives commences by saying 'the effect this court case has had on my son has nearly destroyed him'. William Ives then goes on to characterise the conduct of the police, speculates about the outcome of the action and states his opinion of the effect of this court case on William Ives' family. William Ives may give evidence of his observations of the plaintiff and the plaintiff's conduct, demeanour and appearance since the publication complained of. However, this paragraph consists in the main of Mr William Ives' reflections on the conduct of the police. That is irrelevant. Paragraph 16 will be struck out.
Paragraph 17
34 In this paragraph William Ives says that he and his wife should be entitled to compensation or damages. That is irrelevant. The paragraph will be struck out.
Conclusion on application to strike out paragraphs of witness statements
35 The following paragraphs, or words, of the witness statement of Benjamin Ives of 25 October 2012 will be struck out:
Paragraph 2, the words 'I believe she did this to punish me for breaking up with her, she expressed a vendetta against me online which included utilising the police to harass me';
Paragraph 13, 'besides they were not threats nor ever intended to be. I don't believe anyone could read that text and believe the person who wrote it was serious, I would never believe such a person existed';
Paragraph 14;
Paragraph 15, second sentence;
Paragraph 19;
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- Paragraph 20, all of the words after 'my mother'.
36 The following paragraphs, or part paragraphs, of the statement of William Bruce Ives of 16 December 2012 will be struck out:
Paragraph 2, second and third sentences;
Paragraph 3;
Paragraph 12;
Paragraph 13;
Paragraph 14, all the words after 'the police had done';
Paragraph 15;
Paragraph 16;
Paragraph 17.
Defendant's application to file further evidence
37 The defendant seeks an order that it have leave to file and serve further witness statements addressing the further investigation by police officers of the complaint made against the plaintiff by Ms Lim on 31 December 2009. The defendant's application is contingent upon the paragraphs in the plaintiff's witness statement that the police did not interview him or search his house after the incident not being struck out. I have not struck out those paragraphs of the plaintiff's witness statement.
38 The plaintiff objects to the defendant being given leave on the grounds that it is too late and the defendant has had an opportunity to put on the evidence. The defendant says that it has previously foreshadowed that it would seek to lead that evidence if the plaintiff's evidence to which I have referred is not struck out.
39 I will give the defendant the leave it seeks. The defendant has made it clear in previous interlocutory hearings that it says that what happened after 31 December 2009 is not relevant to any matter in issue but if, contrary to that submission, the plaintiff is permitted to put on evidence concerning the failure of the police to further investigate Ms Lim's complaint, interview the plaintiff or search his house then the defendant would seek to put on evidence in response. I will give the defendant leave to do so by filing the witness statements by 6 March 2013. If the plaintiff wishes to put on further witness statements, or to lead evidence from
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- further witnesses, I will hear an application from the plaintiff to that effect.
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