Manock v Advertiser News-Weekend Publishing Co Ltd
[2004] SASC 164
•8 June 2004
SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
MANOCK v ADVERTISER NEWS-WEEKEND PUBLISHING CO LTD
Judgment of The Honourable Justice Besanko
8 June 2004
DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING - SOUTH AUSTRALIA
Plaintiff instituted a claim against the defendant for damages for libel in relation to three articles published in a newspaper of which the defendant is publisher – the plaintiff pleaded that a number of imputations arose from the natural and ordinary meaning of the words in each of the articles – the defendant pleaded justification in relation to a number of the imputations and provided lengthy particulars – the defendant pleaded alternative meanings in addition to his plea of justification and sought to justify those alternative meanings – the plaintiff applied for orders striking out the defendant’s particulars of justification and those paragraphs of the Defence in which the defendant pleaded alternative meanings – whether the particulars in the challenged paragraphs in paragraph 4 of the Defence are permissible particulars of the defendant’s plea in paragraphs 4, 5, 11 and 14 of the defence of justification of the imputations alleged by the plaintiff – whether it is reasonably arguable that it is open to the defendant to plead the alternative meanings in paragraphs 9, 12 and 15 of the Defence – discussion of the relevant legal principles as to when a defendant may plead and seek to justify alternative meanings – availability of the Polly Peck defence in Australia -certain paragraphs of the Defence struck out.
Supreme Court Rules 1987 r46, 46A, referred to.
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Prichard v Krantz (1984) 37 SASR 379, applied.
Templeton v Jones [1984] 1 NZLR 448; Polly Peck (Holdings) plc v Trelford [1986] QB 1000; Brander v Ryan (2000) 78 SASR 234; Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147, discussed.
Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1; David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412; Morrison v Harmer (1837) 132 ER 603; Potts v Moran (1976) 16 SASR 284; Jakudo v South Australian Telecasters Ltd (1997) 69 SASR 440; Nationwide News Pty Ltd v Moodie [2003] WASCA 273, considered.
MANOCK v ADVERTISER NEWS-WEEKEND PUBLISHING CO LTD
[2004] SASC 164Civil
BESANKO J: The plaintiff, Dr Colin Manock, sues the defendant, Advertiser-News Weekend Publishing Co Ltd, for damages for libel. The plaintiff is a forensic pathology consultant. He was formerly the senior director of Forensic Pathology at the State Forensic Science Centre. The defendant is the publisher of the Sunday Mail newspaper which has a wide readership throughout South Australia. The newspaper is also published in the Northern Territory.
The Articles and the Pleadings
On 5th November 2000, the defendant published the newspaper, and it contained an article at page 49 entitled -
“Focus
Was Murder Trial Evidence always reliable?
Why Key Forensic Findings are under a cloud.”
A photograph of the plaintiff appears next to the heading.
The first article discusses forensic science and its importance in determining the cause of death. It refers to the need for it to be accurate and reliable, particularly in murder trials. It refers to the plaintiff as the former chief forensic pathologist at the Forensic Science Centre in Adelaide. It states that two Adelaide lawyers had earlier in the year began compiling “a dossier of case histories in which the former chief forensic pathologist, Dr Colin Manock and forensic staff had conducted investigations over the past 20 years”. It comments on the operation of the Centre and aspects of the plaintiff’s work. It refers to a number of cases and the plaintiff’s findings in those cases and suggests that the plaintiff’s findings were unreliable. It refers to a number of well-publicised murder trials in this State, provides details of some of the issues in those trials and suggests that the plaintiff’s findings in those cases were unreliable. It suggests that there were serious doubts about the plaintiff’s evidence in those murder trials. The article concludes with the following remarks:
“Dr Manock and his staff had overseen countless post-mortems, given reams of evidence at trial and been party to many successful convictions.
But some scientific evidence may not always have been reliable.”
The plaintiff pleads that nine imputations arose from the natural and ordinary meaning of the words in the first article. Only the first four are relevant for the purposes of this application. They are as follows:
“6.In their natural and ordinary meaning, the words of the first publication meant and were understood to mean that in relation to murder trials:
6.1 The plaintiff’s evidence was unreliable (top headline and paragraph 42).
6.2 The plaintiff’s forensic findings were suspect and were not reliable (bold headline with top headline).
6.3 That forensic enquiries undertaken by the plaintiff were inexact, inaccurate and unreliable (paragraph 4).
6.4 That the plaintiff had been guilty of serious mistakes (paragraph 4).”
It is important to note at this point that the imputations in paragraphs 6.1 – 6.4 inclusive are imputations said to arise “in relation to murder trials”. That is an important point for reasons which will become clear. The defendant has not applied to strike out paragraphs 6.1 – 6.4 of the Statement of Claim.
In response to the plea in paragraph 6 of the Statement of Claim, the defendant denies that the first publication bore or was understood to bear or was capable of bearing any of the imputations in paragraph 6. The defendant goes on to allege that if the words bore the imputations alleged in paragraph 6 then the said imputations were true in substance and in fact. Paragraph 4 of the Amended Defence (“the Defence”) contains the plea of justification in relation to the imputation alleged in paragraph 6.1 of the Statement of Claim. Although lengthy, it is necessary to set out in full paragraph 4 of the Defence.
“4.If, which is denied, the first publication bore the meaning alleged in paragraph 6.1 of the Statement of Claim, the said meaning was true in substance and in fact.
PARTICULARS
4.1 Fritz Van Beelen
4.1.1the evidence given by the plaintiff in the trial of R v Fritz Van Beelen was unreliable in that the plaintiff fixed the time of death of the victim Deborah Joan Leach by reference to her stomach contents and the rate of digestion since her last meal;
4.1.2the rate at which the stomach emptied its contents was an unreliable indicator of time of death because of the number of variables involved in making the assessment;
4.2 Emily Perry
4.2.1the evidence given by the plaintiff in the trial of R v Emily Perry was unreliable in that the plaintiff expressed an opinion that four men associated with the accused had been deliberately poisoned with arsenic including the alleged victim in the trial when he had not examined the alleged victim prior to giving evidence and did not have sufficient basis for expressing a scientific opinion as to the cause of the earlier deaths;
4.2.2the plaintiff wrongly attributed rhinitis suffered by the alleged victim in the trial to arsenic or lead poisoning when the alleged victim had suffered from the condition for years and prior to knowing the accused.
4.3 Henry Vincent Keogh
4.3.1the evidence given by the plaintiff in the trial of R v Henry Vincent Keogh was unreliable in that he excluded accidental drowning as a possible cause of death on unsound scientific bases;
4.3.2the plaintiff failed to undertake or cause to be undertaken any or any proper scientific tests to exclude as a cause of death an epileptic seizure in the bath leading to unconsciousness and drowning;
4.3.3the plaintiff failed to undertake or cause to be undertaken any or any proper scientific tests to exclude as a cause of death a congenital heart defect causing the alleged victim to lose consciousness in the bath and drown;
4.3.4the plaintiff failed to undertake or cause to be undertaken any or any proper scientific tests to exclude as a cause of death an anaphylactic reaction in the bath leading to unconsciousness and drowning;
4.3.5the plaintiff expressed the opinion that he could find no explanation as to why the alleged victim could have drowned without foul play being involved when he knew that he had not excluded on any scientific basis the possible causes of death which did not involve foul play;
4.3.6the plaintiff propounded a theory that the alleged victim had been drowned in the bath by her assailant grasping her left ankle in his right hand and lifting her legs over her head thereby sliding her under the water and drowning her;
4.3.7the theory propounded by the plaintiff as referred to in paragraph 4.3.6 above included the proposition that the sudden upending of the alleged victim would cause water to rush into the nasopharynx and cause unconsciousness quickly, thereby explaining the lack of evidence of a violent struggle in terms of marks on the body of the alleged victim and the accused;
4.3.8the proposition advanced by the plaintiff that water could rush into the nasopharynx and cause unconsciousness quickly was equally consistent with drowning having occurred by the alleged victim having suffered postural hypotension and fainted in the bath with consequent rushing of water into the nasopharynx leading to unconsciousness and drowning;
4.3.9the proposition advanced by the plaintiff that water could rush into the nasopharynx and cause unconsciousness quickly was equally consistent with drowning having occurred by the alleged victim having suffered any of either an epileptic seizure, a cardiac arrest or an anaphylactic reaction leading to a fall in the bath with consequent rushing of water into the nasopharynx leading to unconsciousness and drowning;
4.3.10the plaintiff wrongly rejected the possibility that unconsciousness had occurred from an accidental fall on the basis that a blow to the head sufficient to produce unconsciousness would have produced bruising or other observable damage to the brain on examination at autopsy;
4.3.11the plaintiff’s evidence that a blow to the head sufficient to produce unconsciousness would have produced bruising or other observable damage to the brain on examination at autopsy was:-
4.3.11.1fundamentally wrong;
4.3.11.2negligent
4.3.11.3not an opinion which would have been held by competent forensic pathologists;
4.3.12the plaintiff gave evidence that bruising on the left lower leg of the alleged victim was consistent with a hand grip having been made by the assailant who drowned her which evidence was incorrect in that:-
4.3.12.1histological evidence did not support the conclusion that the marks on the alleged victim’s left lower leg were bruises at all;
4.3.12.2photographic evidence did not support the conclusion that the marks on the alleged victim’s left lower leg were bruises at all;
4.3.12.3if the marks on the alleged victim’s left lower leg were bruises, it was a matter of speculation that they were consistent with a hand grip as opposed to other causes;
4.3.13it was inappropriate misleading and unreliable for the plaintiff to propound a theory in evidence at trial that the alleged victim had been drowned in the bath by an assailant when he had failed to exclude by appropriate scientific means which were available to him possible causes of death which were accidental;
4.3.14the evidence given by the plaintiff as to cause of death was not refutable by enquiry or testing and was no more than the plaintiff’s theory which had less scientific merit than the theories of the cause of death being accidental;
4.3.15the plaintiff failed to make any or any proper enquiry as to the past medical history of the deceased for the purpose of excluding the presence of occult disease as a possible cause of unconsciousness or death;
4.4 Joshua Clive Nottle
4.4.1 in or about 1993 Joshua Clive Nottle, an infant, died;
4.4.2the plaintiff expressed the opinion that the cause of death was broncopneumonia;
4.4.3the deceased infant was found on x-ray to have multiple rib fractures, injury to both clavicles, extensive bruising and a fractured spine;
4.4.4 the injuries were consistent with a violent assault;
4.4.5there was no evidence of broncopneumonia in the deceased infant’s lungs;
4.4.6the father of the deceased infant was charged with his murder;
4.4.7the plaintiff expressed the opinion that the physical injuries evident in the deceased infant were consistent with vigorous attempts at resuscitation when such opinion was inconsistent with the available evidence and wrong;
4.4.8the murder charge against the father of the deceased infant was dropped by prosecution authorities;
4.4.9if the murder charge against the father of the deceased infant had proceeded a murder trial may have occurred in which the opinions of the plaintiff as to cause of death would have been evidence;
4.4.10had the plaintiff given evidence in the same or similar terms to the opinions referred to in paragraphs 4.4.2 and 4.4.7 above then the prospects of a conviction would have been significantly and inappropriately impaired.
4.5 Storm Don Ernie Dean.
4.5.1the plaintiff conducted a post mortem in respect of the death of Storm Don Ernie Dean, an infant;
4.5.2the deceased infant had suffered multiple rib fractures, two fractures of the skull and a severe burn;
4.5.3the deceased infant had injuries consistent with death being caused by violent assault;
4.5.4the plaintiff wrongly identified bronchopneumonia as the cause of death and expressed an opinion in these terms;
4.5.5the plaintiff failed to conclude that the injuries suffered by the deceased infant raised a real possibility that the deceased infant had been the victim of a violent assault and further failed to alert police in these terms;
4.5.6as a consequence of the plaintiff having wrongly expressed the opinions referred to in paragraphs 4.5.4 and 4.5.5 above no person or persons were charged with the murder of the deceased infant.
4.6 William Anthony Barnard
4.6.1the plaintiff conducted a post mortem in respect of the death of William Anthony Barnard;
4.6.2the deceased infant had suffered bruising, severe dermatitis and an untreated broken arm which was at least two weeks old;
4.6.3the deceased infant had injuries consistent with death being caused by violent assault;
4.6.4the plaintiff wrongly identified bronchopneumonia as the cause of death and expressed an opinion in these terms;
4.6.5the plaintiff failed to conclude that the injuries suffered by the deceased infant raised a real possibility that the deceased infant had been the victim of a violent assault and failed to alert police in these terms;
4.6.6as a result of the plaintiff having wrongly expressed the opinions referred to in paragraphs 4.6.4 and 4.6.5 above no person or persons were charged with the murder of the deceased infant;
4.7 David Joe Szach
4.7.1the evidence given by the plaintiff in the trial of R v David Joe Szach was unreliable in that he fixed the time of death of the deceased by using a method which lacked scientific validity;
4.7.2the deceased had been discovered in a freezer in a position resembling the foetal position;
4.7.3a critical issue in the trial of the accused Szach was the time of death of the deceased;
4.7.4the plaintiff gave evidence as to the time of the deceased’s death by using a formula applicable to frozen bodies which had been in the prone position. The plaintiff adjusted the formula by 40% to take account of the altered position of the deceased when there was no scientific basis for so doing, either in published literature on the subject or in research carried out and published by the plaintiff;
4.7.5the formula used by the plaintiff to determine the time of death of the deceased was in any event inappropriate in that:-
4.7.5.1the variables used in the equation were not known;
4.7.5.2there was no scientific basis for the plaintiff to substitute as he did liver temperature for rectal temperature;
4.7.5.3the running temperature of the freezer at the time that the body was placed in the freezer was unknown;
4.8 John Clarence Highfold
4.8.1the plaintiff conducted an autopsy on Clarence Highfold who was an aboriginal man who died in custody at Adelaide Gaol on 4 January 1983;
4.8.2the deceased was aged 30 years at the time of death and had been an epileptic for some years;
4.8.3the Coroner found that the deceased’s death was due to “status epilepticus” which finding was based on a post mortem report of the plaintiff;
4.8.4the plaintiff’s opinion that the cause of death of the deceased was status epilepticus was wrong;
4.8.5the death of the deceased was the subject of an Inquiry by the Royal Commission into Aboriginal Deaths in Custody (“Royal Commission”);
4.8.6the plaintiff was called as a witness and gave evidence concerning his post mortem report and the cause of death of the deceased;
4.8.7the plaintiff failed to exclude other possible causes of death (namely poisoning or consumption of drugs) before expressing the opinion that the cause of death was status epilepticus in that:-
4.8.7.1the plaintiff failed to arrange a full toxicological screen at the time of the autopsy;
4.8.7.2the plaintiff failed to arrange serum phenytoin tests at autopsy to screen for Dilantin levels;
4.8.8the plaintiff gave evidence that a factor in not ordering a full toxicological screen was cost in that it would have cost approximately $2,000 when in fact a Dilantin screen at IMVS at the time would have cost $18.40;
4.8.9tissue samples taken by the plaintiff were insufficient in that he failed to conduct histological examination of the liver, kidney, spleen and pancreas so that the possibility of death being due to failure of one of these organs could not be absolutely excluded;
4.8.10the histological sample taken from the heart was insufficient to exclude heart disease as a cause of death;
4.8.11the plaintiff took a histological sample from only one of the deceased’s lungs when both lungs should have been sampled to exclude lung disease;
4.8.12the cause of death of the deceased was not status epilepticus but sudden unexplained heart failure related to a single epileptic fit;
4.8.13having failed to exclude other possible causes of death on any or any proper scientific basis the opinion of the plaintiff as to cause of death in any event itself lacked scientific validity and was no more than a theory of the plaintiff;
4.8.14the plaintiff failed to acknowledge that by reason of his failure to exclude other possible causes of death on any or any proper scientific basis that his theory as to the cause of death had no greater scientific validity than other theories;
4.9 Peter Marshall
4.9.1the plaintiff attended at the scene of the death of Peter Marshall in or about 1992;
4.9.2the plaintiff examined the deceased and expressed the opinion that the deceased had fallen, suffered a haemorrhage and that the death was accidental;
4.9.3subsequently the plaintiff discovered a bullet in the deceased’s brain.
4.9.4As a result of the plaintiff having expressed his opinion to police that the death was accidental, police did not seal off the scene and conduct immediate investigations into a possible homicide having been committed.
4.10 Lorraine Moss
4.10.1the evidence given by the plaintiff to the Melbourne Coroner’s Court in or about 1986 in relation to the death of Leonard Moss was unreliable in that the plaintiff excluded accidental or suicidal ingestion of poison on unscientific and illogical bases;
4.10.2Leonard Moss died from lead arsenic poisoning which poisoning had occurred from multiple ingestions;
4.10.3the plaintiff gave evidence in the Melbourne Coroner’s Court that the death of Leonard Moss was neither suicide nor an accident because there had been multiple ingestions;
4.10.4Lorraine Moss was charged with the murder of Leonard Moss;
4.10.5the plaintiff gave evidence that the poisoning of Leonard Moss was deliberate because it was not possible to have multiple accidental ingestions of lead arsenic;
4.10.6the plaintiff gave evidence that lead arsenic lacked taste, smell and texture so that it was possible for it to be administered to a victim by an assailant without the victim being aware of it;
4.10.7the characteristics of lead arsenic referred to in paragraph 4.10.6 above mean that accidental ingestion of lead arsenic on multiple occasions is possible if the victim is engaged in activities involving exposure to lead arsenic;
4.10.8Leonard Moss had used a spray containing lead and arsenic to spray fruit trees in his garden on multiple occasions;
4.10.9the use of lead arsenic based spray by Leonard Moss was a possible mechanism for the accidental ingestion of lead arsenic by Leonard Moss on multiple occasions;
4.10.10the reasoning employed by the plaintiff to arrive at the conclusion that the poisoning of Leonard Moss had been deliberate did not exclude accidental poisoning in the circumstances referred to in paragraphs 4.10.7 – 4.10.9 above.
4.11 Wendy Annette Cooke
4.11.1the plaintiff performed an autopsy on the body of Wendy Annette Cooke on 14 April 1984;
4.11.2the body of the deceased had been found in a car at Bolivar;
4.11.3the body of the deceased was in an advanced state of putrefaction;
4.11.4the plaintiff was the author of a post mortem report which (inter alia) expressed the opinion that the time of death was in the evening of 12 April with death having occurred an hour or so after the last meal;
4.11.5the plaintiff expressed the opinion that the cause of death of the deceased was strangulation by ligature when the findings noted by the plaintiff at autopsy were not consistent with an asphyxial death due to mechanical obstruction of respiration;
4.11.6the opinion expressed by the plaintiff was subjective rather than objective;
4.11.7in expressing an opinion as to the cause of death of the deceased the plaintiff had failed to exclude alternative causes of death on any or any proper scientific basis;
4.11.8in expressing an opinion as to the cause of death of the deceased the plaintiff failed to acknowledge that his opinion was no more than a theory as to cause of death which had no greater scientific validity than other theories;
4.12 Elefterios Akratidis
4.12.1The body of the deceased was found at the base of a police communications tower late in the evening of 3 August 1987;
4.12.2the deceased had last been seen alive between 10 a.m. and 12 noon on 3 August 1987;
4.12.3the body of the deceased was discovered at 5.45 p.m. on 3 August 1987;
4.12.4an autopsy was performed by Dr R R Ashby at 8.15 a.m. on 4 August 1987;
4.12.5Dr Ashby expressed the opinion that based on the extent of waterlogging death occurred approximately twelve hours prior to discovery;
4.12.6the plaintiff gave evidence in the Coroner’s Court which evidence was accepted by the Coroner that the time of death fixed by Dr Ashby was erroneous and that the time of death was twelve hours prior to autopsy;
4.12.7the Coroner found that Akratidis had committed suicide by jumping from the communications tower;
4.12.8the plaintiff failed to adequately explain how, if the deceased had jumped or fallen from the tower (a height of 47 metres), had bounced off the roof of a concrete building and hit a concrete area at ground level with such force as to crack the concrete that the deceased had suffered no significant internal injuries;
4.12.9the findings of the Coroner included a rejection of suggestions that police officers or others were involved in the death of the deceased;
4.13 Adam Carter
4.13.1the deceased died in Darwin during the course of a rugby game;
4.13.2 the deceased was aged 18 years at the time of death;
4.13.3the deceased was a member of a touring schoolboy rugby team which had arrived in Australia on 23 July 1999;
4.13.4the deceased had played in rugby games in Sydney, Brisbane and Cairns prior to playing the rugby game in Darwin on 4 August 1999;
4.13.5during the course of the rugby game in Darwin the deceased was observed to fall backwards and begin to twitch. The deceased then became unconscious, was breathing in a laboured manner and later died;
4.13.6the plaintiff expressed the opinion that the cause of death of the deceased was heat stroke which opinion was :-
4.13.6.1wrong; and
4.13.6.2based on a failure of the plaintiff to exclude other possible causes of death on any or any scientific basis;
4.13.6.3based on a purported finding at autopsy that the lungs showed signs of muscle spasm when such signs would not be detectable after death;
4.13.6.4based on symptoms and signs which were neither diagnostic of nor consistent with heatstroke;
4.13.7the plaintiff ought to have found that the death of the deceased was a sudden, unexpected, natural cardiac death and that heat stroke played no part in the causation of death.
4.14 Gerald Warren
4.14.1the deceased was a young aboriginal man who died near Port Augusta in about 1991;
4.14.2the plaintiff gave evidence at a Coronial inquest that the cause of death of the deceased was a fall from the back of a moving utility or truck causing injuries leading to death;
4.14.3the opinion expressed by the plaintiff and referred to in paragraph 4.14.2 above:-
4.14.3.1was wrong;
4.14.3.2was based on unsound reasoning and inadequate evidence;
4.14.3.3had no scientific basis to it;
4.14.3.4arrived at without the plaintiff having first excluded on any or any proper scientific basis other possible causes of death including homicide;
4.14.3.5no more than a theory of the plaintiff which had no greater (and in fact significantly less) scientific validity than other theories as to the cause of death of the deceased;
4.14.4the plaintiff gave evidence that marks on the upper body of the deceased were consistent with those parts of his body coming into contact with corduroy pants worn by him at the time of the fall;
4.14.5the marks referred to in paragraph 4.14.4 above had in fact been made by the thread of a metal pipe with which the deceased had been beaten by two assailants;
4.14.6the opinion expressed by the plaintiff and referred to in paragraph 4.14.4 above was :-
4.14.6.1wrong;
4.14.6.2based on unsound reasoning and inadequate evidence;
4.14.6.3had no scientific basis to it;
4.14.7the actual cause of death of the deceased was in fact a violent assault by two men who beat the plaintiff about the head and body with a metal pipe and then ran over him with a motor vehicle;
4.14.8the actual cause of death of the deceased was only discovered when one of the assailants confessed to police in the course of unrelated enquiries;
4.14.9two men were tried and convicted of the murder of the deceased.”
By Notice for Specific Directions the plaintiff applied to strike out paragraphs 4.4, 4.5, 4.6, and 4.8-4.14 inclusive. For ease of identification, I will refer to these paragraphs as “the challenged paragraphs in paragraph 4”. After submissions had been made on the application, the defendant applied to make amendments to the Defence. A document entitled Proposed Further Amended Defence dated 25th May 2004 and containing the proposed amendments was produced. The proposed amendments are as follows:
“4.4Joshua Clive Nottle
…
4.4.11the plaintiff gave evidence in the Coroner’s Court in relation to the death of Joshua Clive Nottle to the same or similar effect as the matters pleaded in paragraphs 4.4.2 and 4.4.7 above;
4.5Storm Don Ernie Dean
…
4.5.7the plaintiff gave evidence in the Coroner’s Court in relation to the death of Storm Don Ernie Dean to the same or similar effect as the matters pleaded in paragraphs 4.5.4 above.
4.5.8the plaintiff’s evidence in the Coroner’s Court failed to allow that the injuries suffered by the deceased infant raised a real possibility that the deceased infant had been the victim of a violent assault.
…
4.6 William Anthony Barnard
…
4.6.7the plaintiff gave evidence in the Coroner’s Court in relation to the death of William Anthony Barnard to the same or similar effect as the matters pleaded in paragraph 4.6.4 above.
4.6.8the plaintiff’s evidence in the Coroner’s Court failed to allow that the injuries suffered by the deceased infant raised a real possibility that the deceased infant had been the victim of a violent assault.
4.14 Gerald Warren
4.14.10the plaintiff gave evidence in the criminal trial of the two men referred to in paragraph 4.14.9 above to the same or similar effect as the matters pleaded in paragraphs 4.14.2 and 4.14.4 above.
4.15 the defendant repeats paragraphs 8.16 – 8.18 below.”
Paragraphs 8.16 – 8.18 of the Defence (which are not the subject of challenge) are as follows:
“8.16in the conduct of autopsies by the plaintiff in the period 1968 to the date of his last autopsy the plaintiff was required to conform to the following aims of a forensic autopsy:-
8.16.1discover, describe and record the pathological processes present in the deceased;
8.16.2to relate these processes to the known medical history, to make conclusions about the cause of symptoms and signs observed in life and then to make conclusions about the medical cause of death and factors contributing to death;
8.16.3to contribute to the reconstruction of the circumstances surrounding the death. Where these circumstances are important or likely to be in dispute, then this will require consideration of the scene of the death as well as the relevant autopsy observations, many of which may be of trivial medical consequence;
8.16.4to record all the relevant observations and negative findings in such a way as to put other pathologist in the same position as the pathologist performing the autopsy;
8.17in giving evidence in criminal courts, coroner’s courts or other tribunals in the period 1968 to the time that he last gave evidence the plaintiff was required to:
8.17.1express opinions as to the cause of a death which were based on scientific evidence;
8.17.2express opinions as to the cause of a death which were based on scientific reasoning and collective, peer reviewed experience;
8.17.3to rely on autopsy results where the autopsies had been conducted in accordance with the aims set forth in paragraphs 8.16.1 – 8.16.4 but not otherwise.
8.17.4to refrain from expressing an opinion as to the cause of a death unless other causes of death had been excluded on appropriate scientific bases;
8.17.5to refrain from expressing opinions as to the cause of a death which were merely theories of the plaintiff based on his intuitive view of the particular case as opposed to conclusions reached by scientific reasoning which reasoning was capable of peer review.
8.17.6to refrain from expressing opinions as to the cause of a death which were speculative;
8.18the plaintiff failed to conform to the aims referred to in paragraph 8.16.1 – 8.16.4 above in the course of his practice.”
Neither party sought to make further submissions in relation to the proposed amendments. The plaintiff is content for me to proceed on the basis that the proposed amendments should not be allowed for the same reasons the paragraphs identified in its application should be struck out. The defendant submits that the proposed amendments should be allowed, and relies on its submissions in response to the plaintiff’s application. I think that it is appropriate that I proceed on that basis.
Paragraph 5 of the Defence contains the plea of justification in relation to the imputations in paragraphs 6.2 – 6.4 of the Statement of Claim, and by way of particulars it repeats paragraph 4 above. The plaintiff applies for an order striking out paragraph 5, or, I think more accurately, having regard to the submissions made to me, the challenged paragraphs in paragraph 4.
In addition to the plea of justification in relation to the imputations pleaded by the plaintiff, the defendant pleads alternative meanings and seeks to justify those alternative meanings. Paragraph 9 of the Defence reads as follows:
“9.Further, and in the alternative, the first publication meant and was understood to mean that in the plaintiff’s performance of his duties as a forensic pathologist employed at the State Forensic Science Centre:-
9.1 the plaintiff had given evidence in relation to the causes of death of deceased persons which was unreliable;
9.2 the plaintiff had made forensic findings which were suspect and not reliable;
9.3 forensic investigations undertaken by the plaintiff had been inexact, inaccurate and unreliable;
9.4 the plaintiff had been guilty of serious mistakes;
9.5 the plaintiff had given incorrect, inaccurate and unscientific evidence in criminal trials;
9.6 the plaintiff was incompetent in that he wrongly found the cause of death in three infants to be bronchopneumonia when the three deceased infants had significant injuries consistent with having been the victims of violent assaults;
and so understood the first publication was true in substance and in fact.
PARTICULARS
9.7 the defendant repeats paragraph 4 and 8 above.”
The plaintiff applies for an order striking out paragraph 9 of the Defence. He submits that in the circumstances of this case it is not open to the defendant to plead alternative meanings.
On 16th December 2001, the defendant published the newspaper, and it contained an article at pages 1, 2, 3 and 5 entitled -
“The Anna-Jane Cheney Case
Bath Murder Video”
A photograph of the plaintiff appears on page 5. The focus of the second article is the death of Anna Jane Cheney. It discusses the means by which it was said that she was drowned in her bath by Henry Keogh. It reports the fact that a re-enactment of the drowning had been performed by a group of, what were said in the article to be, prominent legal and medical figures. The article is critical of the plaintiff’s evidence in the case and in other well-publicised trials. In particular, the article refers to two other well-publicised murder trials and to the plaintiff’s findings in relation to a number of other deaths.
The plaintiff pleads that three imputations arose from the natural and ordinary meaning of the words in the second article. The plea is in the following terms:
“7.In their natural and ordinary meaning the words and images contained in the second publication meant and were understood to mean that in relation to murder trials:
7.1 the plaintiff’s evidence was unreliable;
7.2 the evidence given by the plaintiff in the Keogh trial had by videotaped reconstruction of the crime proven to be false, unreliable, inaccurate and unscientific and supported by an impossible theory (photographs from reconstruction video (paragraphs 1 – 22)).
7.3 that the conviction of Emily Perry was overturned by the High Court because Dr Manock’s evidence was found by the High Court to be ‘an appalling departure from acceptable standards of forensic science’ (paragraph 29).”
In response to the plea in paragraph 7 of the Statement of Claim, the defendant denies that the second publication bore or was understood to bear or was capable of bearing any of the meanings pleaded in that paragraph. In paragraph 11 of the Defence it pleads that if the second article bore any of the imputations pleaded by the plaintiff, then such imputations were true in substance and in fact. Paragraph 11 of the Defence reads as follows:
“11If, which is denied, the second publication bore any of the meanings pleaded in paragraph 7 of the Statement of Claim, the said meanings are true in substance and in fact.
PARTICULARS
11.1 The defendant repeats paragraphs 4 and 8 above.”
The plaintiff applies for an order striking out paragraph 11 or more accurately, the reference to the challenged paragraphs in paragraph 4.
In relation to the second article, the defendant also pleads alternative imputations and a plea of justification in relation to the alternative imputations. Paragraph 12 of the Defence reads as follows:
“12In the alternative, the second publication meant and was understood to mean that in the performance by the plaintiff of his duties as a forensic pathologist employed by the State Forensic Science Centre:-
12.1 the plaintiff had given evidence which was unreliable.
12.2 the evidence given by the plaintiff in the Keogh trial was incorrect, unreliable and inaccurate in that the plaintiff wrongly excluded accidental drowning as a possible cause of death on inadequate and unscientific grounds;
12.3 the plaintiff had departed from acceptable standards of forensic science in the case of R v Emily Perry and had been criticised by the High Court as a consequence;
12.4 the plaintiff was incompetent in that following post mortem examination he expressed the opinion that three infant children had died from bronchial pneumonia when they had died of multiple fractures including broken spines, broken ribs and possible skull fractures consistent with violent assaults.
and so understood the second publication was true in substance and in fact.
PARTICULARS
12.5 The defendant repeats paragraphs 4 and 8 above.”
The plaintiff applies for an order striking out paragraph 12 of the Defence. As with paragraph 9 the plaintiff submits that in the circumstances of this case it is not open to the defendant to plead alternative meanings.
The defendant published a third article which also appeared in the newspaper on 16th December 2001. The third article is in the editorial section of the newspaper. It comments on forensic evidence generally but with particular reference to the re-enactment referred to in the second article. It makes the comment that at times forensic evidence has been far from exact, and in some cases “extremely flawed”.
The plaintiff pleads that four imputations arose from the natural and ordinary meaning of the words in the third article. The plea is in the following terms:
“8.The plaintiff says that in the natural and ordinary meaning the words contained in the third publication were meant, or were understood to mean that in relation to murder trials:-
8.1The plaintiff was not a dedicated scientific investigator (paragraph 2).
8.2 The plaintiff’s evidence was extremely flawed (paragraph 4).
8.3The evidence given by the plaintiff had been so flawed that it had resulted in the overturning of guilty verdicts (paragraph 5).
8.4The plaintiff’s evidence had been so defective that it had resulted in guilty verdicts which were unsafe and trials should be reopened (paragraph 8).”
In response to the plea in paragraph 8 of the Statement of Claim, the defendant denies that the third article bore or was understood to bear or was capable of bearing any of the meanings pleaded in paragraph 8. In paragraph 14 of the Defence it pleads that if the third article bore any of the imputations pleaded by the plaintiff then such imputations were true in substance and in fact. Paragraph 14 of the Defence reads as follows:
“14.If, which is denied, the third publication bore any of the meanings pleaded in paragraph 8 of the Statement of Claim, the said meanings are true in substance and in fact.
PARTICULARS
14.1 The defendant repeats paragraphs 4 and 8 above.”
The plaintiff applies for an order striking out paragraph 14, or more accurately, the reference to the challenged paragraphs in paragraph 4.
In relation to the third article, the defendant also pleads alternative imputations and a plea of justification in relation to the alternative imputations. Paragraph 15 of the Defence reads as follows:
“15.In the alternative, the third publication meant and was understood to mean that in the performance by the plaintiff of his duties as a forensic pathologist employed by the State Forensic Science Centre:-
15.1 evidence given by the plaintiff was extremely flawed;
15.2evidence given by the plaintiff had been so flawed as to raise serious questions as to the safety of some guilty verdicts in criminal trials.
and so understood the third publication was true in substance and in fact.
PARTICULARS
15.3 the defendant repeats paragraphs 4 and 8 above.”
The plaintiff applies for an order striking out paragraph 15 of the Defence. As with paragraphs 9 and 12, the plaintiff submits that in the circumstances of this case it is not open to the defendant to plead alternative meanings.
The Basis on the Application
The plaintiff relies on r46.18 of the Supreme Court Rules 1987 (“the Rules”) which is in the following terms:
“Striking out pleadings
46.18 Where a pleading:
(a) discloses no reasonable cause of action or defence;
(b) does not comply with the Rules as to pleadings;
(c)has a tendency to cause prejudice, embarrassment or delay in the proceedings;
(d)is scandalous, frivolous, or vexatious or contains scandalous matter; or
(e) is otherwise an abuse of the process of the Court,
the Court may at any stage of the proceedings, order that the whole or any part of the pleadings be struck out, on such terms as it thinks just or may direct that the scandalous matter be expunged.”
This rule applies even though the pleadings in this case are governed by r46A (r46A.16).
The plaintiff’s application raises two issues. First, are the particulars in the challenged paragraphs in paragraph 4 of the Defence permissible particulars of the defendant’s pleas in paragraphs 4, 5, 11 and 14 of the defence of justification of the imputations alleged by the plaintiff in relation to the first, second and third articles respectively. They are not permissible particulars if it is not reasonably arguable that they are capable of supporting the pleas in paragraphs 4, 5, 11 and 14 of the Defence. The relevant legal test on an application such as this is well known and I will not repeat it (General Steel Industries Inc v Commissioner for Railways (NSW) and Others (1964) 112 CLR 125). Secondly, is it reasonably arguable that, within the relevant legal principles, it is open to the defendant to plead the alternative imputations in paragraphs 9, 12 and 15 of the Defence? If the answer to this question is yes, a subsidiary issue may arise. The defendant relies on, inter alia, the challenged paragraphs in paragraph 4 as particulars of justification of the alternative meanings it has pleaded. If they are struck out of paragraphs 4, 5, 11 and 14 of the Defence, it may nevertheless be necessary to consider if they are permissible particulars of the pleas of justification in relation to alternative meanings.
Before examining these issues, it is necessary for me to set out the relevant legal principles.
Legal Principles
The relevant legal principles in relation to the first issue are clear. If it is not reasonably arguable that a particular of a plea of justification is capable of supporting the plea then it should be struck out. It should be struck out because it discloses no reasonable defence (r46.18(a)) or because it has a tendency to cause prejudice, embarrassment or delay in the proceedings (r46.18(c)).
The relevant legal principles in relation to the second issue are not so clear.
It has long been the position that a plaintiff is able to sue on one defamatory imputation in a publication and not another. A good example of the application of this principle is found in the decision of the New Zealand Court of Appeal in Templeton v Jones [1984] 1 NZLR 448. It was said of the plaintiff in that case that he was “a man who despised bureaucrats, politicians, women, Jews and professionals”. The plaintiff complained only of the allegation that he despised Jews. The defendant pleaded justification and provided particulars of the criticisms of the plaintiff in addition to the allegation that he was anti-Semitic. The additional particulars were struck out because the plaintiff was entitled to restrict his plea to the allegation that he was anti-Semitic, and accordingly, the additional particulars were irrelevant. Cooke J said (at 451):
“It is elementary that a defendant may not justify – that is to say, prove the truth of – that of which the plaintiff does not complain. If an article or speech or a broadcast makes several charges against the plaintiff, he is entitled to sue on one charge only. The defendant may then justify that charge if he can, but he is not allowed to confuse the issue by bringing evidence that the other charges are true. He is fully entitled to point out to the tribunal of fact, usually a jury in defamation cases, that the plaintiff has not complained of the other charges made at the same time. But that goes only to damages.”
Cooke J went on to say (at 452) that the principle does not apply if the words are not severable in the sense that there are not distinct charges but in substance only one.
In England this well-established principle is qualified or affected by another. In Polly Peck (Holdings) plc v Trelford [1986] QB 1000 the Court of Appeal said that a failure to justify a particular imputation will not result in the defendant being liable if that particular imputation is encompassed within the “common sting” of other defamatory imputations which are justified. O’Connor LJ speaking for the Court of Appeal said (at 1032):
“Where a publication contains two or more separate and distinct defamatory statements, the plaintiff is entitled to select one for complaint, and the defendant is not entitled to assert the truth of the others by way of justification.
Whether a defamatory statement is separate and distinct from other defamatory statements contained in the publication is a question of fact and degree in each case. The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting, and once again it is fortuitous that what is in fact similar fact evidence is found in the publication.”
I will refer to this principle as the Polly Peck principle. The Polly Peck principle was applied in Khashoggi v IPC Magazines Ltd [1986] 1 WLR 1412.
I make the point at this stage that the argument related to the Polly Peck principle, and not the longstanding principle that in certain circumstances the defendant will have a defence if he justifies the gist of the libel even though he cannot justify every epithet or term of general abuse (Morrison v Harmer (1837) 3 Bing (NC) 759; 132 ER 603 and Potts v Moran (1976) 16 SASR 284 per Bray CJ at 305 – 306).
One Australian writer has said that the Polly Peck principle is significant for two major reasons (Gillooly, The Law of Defamation in Australia and New Zealand, (1998) at 109):
“First it expresses the test for determining whether defamatory statements are separate and distinct in a novel fashion – they are not to be so regarded if they have a ‘common sting’. Secondly it recognises the right of a defendant to allege and prove that, in their context, the words of which the plaintiff complains bear a different meaning or imputation from that contended for by the plaintiff.”
Before Chakravarti v Advertiser Newspapers Limited (1998) 193 CLR 519 (“Chakravarti”) the Polly Peck principle was applied in a number of Australian jurisdictions including this jurisdiction (Jakudo v South Australian Telecasters Ltd (1997) 69 SASR 440 per Doyle CJ at 443; per Williams J at 447 – 448; per Bleby J at 449 (“Jakudo”)).
However, I think that since the decision in Chakravarti the position has changed, or at least has been clarified. I think the Polly Peck principle applies in this country (if it applies at all) only to the extent that the defendant is permitted to plead and seek to justify alternative meanings to those pleaded by the plaintiff. The defendant’s ability to do that in turn depends on the plaintiff’s ability to obtain a judgment on meanings other than those which he has pleaded. There are limits to the plaintiff’s ability to rely on meanings other than those which he has pleaded. Those limits were discussed in Chakravarti.
It seems that the authorities are not clear as to whether a plaintiff is required to plead the imputations for which he contends in a case where the meanings are not clear, or there is uncertainty as to the meanings for which he contends. It is clear that the plaintiff can be ordered to give particulars of the meanings for which he contends (Prichard v Krantz (1984) 37 SASR 379 per King CJ (with whom Millhouse and Prior JJ agreed) at 384) (“Prichard”). In this case, the plaintiff has pleaded the imputations for which he contends.
In Prichard, the question of the extent to which the plaintiff could rely on imputations which he had not pleaded was considered by the Full Court of this Court. King CJ said (at 384 – 387) that a plaintiff is permitted to rely on unpleaded imputations which are less injurious. A plaintiff is not permitted to rely on unpleaded imputations which are substantially different.
Chakravarti involved an appeal from a decision of the Full Court of this Court. The relevant rule of Court in that case was the rule which applied to actions commenced before 3rd June 2000 (ie., r46). This action was commenced after that date, and the relevant rule is r46A. It was not suggested by either party to this application that the change in the rules affects the outcome of the application. That approach is correct, and I propose to proceed on that basis. Under r46A a plaintiff is required to plead material facts relied upon to constitute to his cause of action and such other material facts as will give his opponent fair notice of the case he will have to meet.
There were three sets of reasons in Chakravarti. Brennan CJ and McHugh J said that a plaintiff who pleads an imputation cannot seek a verdict on a different imputation “which so alters the substance of the meaning pleaded that the defendant would have been entitled to plead a different issue, to adduce different evidence or to conduct the case on a different basis” (at 532). Their Honours referred to the principles stated by King CJ in Prichard with approval. In a concluding passage, their Honours said (at [24]):
“If the defendant is, or might reasonably be thought to be, prejudiced, embarrassed or unfairly disadvantaged by the departure – whether in pleading or preparing for trial, or adducing evidence or in conducting the case before verdict – the plaintiff will be held to the meaning pleaded. If the meaning pleaded goes to the jury and is not found by the jury, the plaintiff fails. If there be no unfair disadvantage to the defendant by allowing another defamatory meaning to be relied on and to go to and be considered by the jury – as where the plaintiff seeks to rely on a different nuance of meaning or, oftentimes, merely a less serious defamation – the different defamatory meaning may be found by the jury.”
Gaudron and Gummow JJ said that the consequences of the plaintiff pleading a specific meaning were far from settled. After referring to a number of authorities, their Honours said that a plaintiff could rely on meanings which are comprehended in, or are less injurious, than the meanings pleaded in the Statement of Claim, or a meaning which is simply a variant of a meaning pleaded in the Statement of Claim. A plaintiff cannot rely on an unpleaded meaning which is a substantially different meaning, or even a meaning which has a different factual basis. At trial, the issue is not decided simply by reference to the pleadings. Their Honours said (at [60]):
“However, the question whether disadvantage will or may result is one to be answered having regard to all the circumstances of the case, including the material which is said to be defamatory and the issues in the trial, and not simply by reference to the pleadings.”
Whilst that might be the position at trial, I think that at this stage where there is a challenge to the pleadings the issue can only be determined by reference to the pleadings.
Kirby J said (at [139]):
“4. In an attempt to reconcile the desirable encouragement of particularisation of claims, the avoidance of ‘trial by ambush’ and the consideration of the entirety of the publication in question, courts will uphold the discretion of the trial judge, including a discretion to confine parties to the imputations pleaded where that is required by considerations of fairness. However, a more serious allegation will generally be taken to include a less serious one unless the latter is of a substantially different kind. It is true that dicta appear in decisions of this Court, other Australian courts and courts overseas which favour a strict approach: binding a plaintiff at the trial to the precise imputations pleaded. However, I do not consider that these dicta represent the law. The better view is that the rules of pleading must, in those jurisdictions governed by the common law, adapt to the fair evaluation by the tribunal of fact of the matter complained of. If the publisher claims surprise, prejudice or other disadvantage, the trial judge may protect it. No complaint can arise where additional imputations found represent nothing more than nuances or shades of meaning of those pleaded. The position will be otherwise in jurisdictions which, by statute, provide that each imputation is a cause of action upon which the plaintiff may sue. But South Australia is not one of these.” (footnotes omitted)
At this stage, when I am asked to consider whether pleadings comply with the rules as to pleadings, I think the correct principle is that the plaintiff can rely on the meanings he has pleaded and meanings which are less injurious and not of a substantially different kind. The plaintiff may rely on unpleaded meanings which are simply a variant of the meanings pleaded, or involve no more than a different nuance or shade of meaning.
The next step in the analysis is to ask what the defendant is permitted to plead in light of this restriction on the plaintiff’s ability to rely on meanings which are not pleaded.
This issue was addressed by Brennan CJ and McHugh J in Chakravarti, but not directly addressed by the other Justices. Brennan CJ and McHugh J said that a defendant should only plead to the imputations alleged by the plaintiff. There was no need to plead alternative imputations except perhaps to make clear why the imputations alleged by the plaintiff were denied (at [8]). Their Honours strongly criticised the Polly Peck principle saying that it contravened the fundamental principles of common law pleadings ([8]). Their Honours said, after referring to Templeton v Jones (supra), (at [11]):
“This passage highlights what we regard as the fundamental defect in the reasoning in Polly Peck. Cooke J rejected the notion that the defendant can take severable parts of a publication each containing defamatory imputations, link them together, and give the publication a meaning at a sufficiently high level of abstraction to subsume the meanings of the severable parts. That is, a defendant cannot take a part of an article that wrongly alleges that the plaintiff has convictions for dishonesty and a part that imputes that the plaintiff has defrauded shareholders, assert that the article means that the plaintiff is dishonest, and then justify that meaning, perhaps by proving that the plaintiff had in fact defrauded the shareholders. On that hypothesis, it would be outrageous if the defendant could obtain a finding that the article was true in substance and in fact when it plainly was not. Yet that is the sort of finding that must result from applying the central proposition of Polly Peck. That proposition is that:
‘The several defamatory allegations in their context may have a common sting, in which event they are not to be regarded as separate and distinct allegations. The defendant is entitled to justify the sting.’”
I pause at this point to note that in Brander v Ryan and Another [2000] SASC 446; (2000) 78 SASR 234 (“Brander”), Lander J (with whom Prior and Bleby JJ agreed) said (at [26]) that a pleading by a defendant of the meaning he said arose from the natural and ordinary meaning of the words was not a proper plea. His Honour’s observation was obiter. I doubt whether Brennan CJ and McHugh J went so far as to say that a defendant could never plead and seek to justify an alternative meaning. I think that, having regard to the whole of their Honours’ reasons, a defendant may do this if the alternative meaning is one which, although not pleaded by the plaintiff, may be relied on by the plaintiff to obtain a judgment.
Gaudron and Gummow JJ in Chakravarti did not discuss the issue. They did refer to the decision in Polly Peck (Holdings) v Trelford (supra) without disapproval. They referred to Lucas-Box v News Group Newspapers Ltd [1986] 1 WLR 147 with approval. That decision held that if a defendant seeks to justify alternative meanings then he should plead the alternative meanings. Although their Honours did not express disapproval of the Polly Peck principle, they did make the observations which I have already referred to about the limits on the plaintiff’s ability to obtain judgment on unpleaded meanings. I can see no reason why a defendant should be permitted to plead alternative meanings and seek to justify those meanings if they could not form the basis of a judgment in favour of the plaintiff. Not only would such a course be contrary to the fundamental principles of common law pleadings, it would also have consequences identified by Miles CJ in Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1 at 21 where he said that the Polly Peck principle had the potential to convert “a modest and narrow claim by a plaintiff into a wide-ranging expansive and extensive inquiry”.
Kirby J did not address the issue of the circumstances in which a defendant could plead alternative meanings, although, as I have said, he did address the extent to which the plaintiff could rely on unpleaded meanings.
Having regard to the decision in Chakravarti, the decisions in this Court in Prichard, Jakudo, Brander, the common law principles of pleadings and the considerations referred to by Miles CJ, I think the principle I should apply is that the defendant may only plead and seek to justify such alternative meanings as may be relied on by the plaintiff to obtain a judgment even though he has not pleaded them. A plaintiff may rely on unpleaded meanings which are less injurious or represent merely a variant or a different nuance from the meanings pleaded. The plaintiff may not rely on unpleaded meanings which are substantially different. Support for this approach is to be found in the decision of the Victorian Court of Appeal in David Syme & Co Ltd and Anor v Hore-Lacy (2000) 1 VR 667 (“David Syme”) and in the decision of the Full Court of the Supreme Court of Western Australia in Nationwide News Pty Ltd v Moodie [2003] WASCA 273 (see also the article by Mr AJH Morris QC “Polly Peck Defence: Its Future in Australia” (2000) 74 Australian Law Journal 760).
In David Syme, Ormiston and Charles JJA said that a plaintiff in a defamation action who pleads a false imputation or innuendo can rely at trial only on a pleaded meaning or some other meaning which “is comprehended by or is simply a variant of one of the meanings pleaded or otherwise relied upon” (Ormiston JA) or which is “not substantially different from and not more injurious than the meanings pleaded (Charles JA). A defendant in a defamation action who pleads justification to allegations of imputation or innuendo is confined to justifying the meanings pleaded by the plaintiff or some other meaning which is comprehended by or is simply a variant of one of the meanings pleaded or otherwise relied upon or not substantially different from and was not more injurious than the meanings pleaded. Charles JA referred to the criticisms of the Polly Peck principle, and said (at [53] – [54]):
“The principal criticisms of the practice sanctioned in Polly Peck, of permitting a defendant to plead and justify a meaning different from that contended for by the plaintiff are that such an approach allows the defendant to raise false issues which can only embarrass the fair trial of the action and will on occasions unfairly prevent a plaintiff from pursuing a claim in defamation, in the manner explained by Brennan CJ and McHugh J in Chakravarti. The setting up of false issues by the defendant in this way may well make admissible a substantial body of evidence that would otherwise be irrelevant and thus greatly lengthen proceedings. But it seems to me that the same criticisms would not hold good if the defendant were limited to justifying a meaning which was one upon which the plaintiff might himself obtain a verdict on the pleadings as they stand.
Nor should a defendant be unfairly prejudiced if the defendant were limited to pleading a meaning which was sufficiently close (in the manner already suggested) to the plaintiff’s meanings, so that the plaintiff himself could succeed upon that meaning on the pleadings as they stand. If the defendant is limited to pleading a meaning on which the plaintiff would be permitted to go to the jury, a false issue is not thereby raised. The issues are instead identified and confined, to the benefit of the court and the parties. Of course, if the plaintiff cannot make good a meaning amongst those identified, his action must fail, and the defendant has no need to plead any other meaning.”
Ormiston and Charles JJA also said that where a defendant intends to justify an imputation which differs in a permissible sense from the imputations pleaded by the plaintiff, the defendant should plead that imputation together with the necessary particulars of the facts on which the plea of justification is based.
I turn now to consider the issues in this case.
Issues on this Application
1. The Challenged Paragraphs in Paragraph 4
The plaintiff’s pleas of imputations in relation to the first, second and third articles are imputations in relation to murder trials. The challenged paragraphs in paragraph 4 raise the plaintiff’s conduct in relation to deaths but not deaths which were followed by a person or persons being charged with murder.
It is convenient to deal with paragraphs 4.4, 4.5 and 4.6 together. In each case it is alleged that an infant died and that the plaintiff expressed an opinion as to the cause of death (ie., bronchopneumonia) which the defendant alleges was wrong. In each case, the plaintiff gave evidence in the Coroner’s Court as to the cause of death. It is alleged by the defendant in each case that the injuries sustained by the infant were consistent with a violent assault. Only in the case of Joshua Clive Nottle is it alleged that a person was charged with murder, and that charge was subsequently withdrawn. It is not alleged that the murder charge was withdrawn because of the plaintiff’s opinion. It is alleged in the case of Storm Don Ernie Dean and William Anthony Barnard that by reason of the plaintiff’s opinion no person or persons were charged with murder. Because there were no murder trials, it is not alleged that in relation to the deaths referred to in paragraphs 4.4, 4.5 and 4.6 the plaintiff’s conduct fell below a proper standard in the manner identified in the imputations alleged by the plaintiff.
In paragraph 4.8, the defendant alleges that John Clarence Highfold died on 4th January 1983. The plaintiff performed a post mortem examination and expressed an opinion as to the cause of death. It is alleged that the Coroner’s finding as to the cause of death (ie., status epilepticus) was based on the plaintiff’s post-mortem report. The plaintiff gave evidence before an Inquiry by the Royal Commission into Aboriginal Deaths in Custody as to the cause of death. The plaintiff is said not to have performed his post mortem examination correctly, and to have erred in his identification of the cause of death. Although it is alleged that the plaintiff was wrong in his identification of the cause of death, the defendant does not allege that the cause of death was other than accidental. No person was charged with murder, and it is not suggested that any person should have been charged.
In paragraph 4.9, the defendant alleges that Peter Marshall died in 1992. It is alleged that the plaintiff attended at the scene, and erred in the opinion he expressed as to the cause of death. In fact, the plaintiff subsequently found a bullet in the deceased’s brain. It is alleged that because the plaintiff expressed the opinion he did as to the cause of death, the police did not seal off the scene and conduct an immediate investigation into a possible homicide having been committed.
In paragraph 4.10, it is alleged Leonard Moss died in about 1986. It is alleged that the plaintiff expressed an opinion as to the cause of Leonard Moss’s death, and that he gave evidence of his opinion in the Coroner’s Court in Melbourne. His opinion was unreliable because he excluded accidental or suicidal ingestion of poison on unscientific and illogical bases. Lorraine Moss was charged with the murder of Leonard Moss. The plaintiff gave evidence that Leonard Moss had been deliberately poisoned. It is not clear whether that evidence was evidence in the murder trial of Lorraine Moss. Nor is the outcome of the trial pleaded.
In paragraph 4.11, the defendant alleges that Wendy Annette Cooke died in April 1984. The plaintiff performed an autopsy on her body and, it is alleged, formed and expressed in a post-mortem report an opinion which was unreliable. There is no allegation that a person or persons were charged with the murder of Wendy Annette Cooke.
In paragraph 4.12, the defendant alleges that Elefterios Akratidis died on 3rd August 1987. The plaintiff gave evidence in the Coroner’s Court about the time of death of Akratidis. There was an unexplained feature of the case and the Coroner rejected suggestions that police or others were involved in the death of the deceased.
In paragraph 4.13, the defendant alleges that Adam Carter died in 1999. It is alleged that his death was accidental. It is alleged that the plaintiff expressed an opinion as to the cause of death which was formed on an inadequate basis and was wrong.
In paragraph 4.14, the defendant alleges that Gerard Warren died in 1991. The plaintiff gave evidence at a coronial inquest as to the cause of death which it is alleged was wrong, and based on unsound reasoning and inadequate evidence. It is alleged that two men were tried and convicted of the murder of the deceased. It is alleged that the plaintiff gave evidence at the criminal trial of the two men which was wrong and based on unsound reasoning and inadequate evidence.
The proposed amendment by the addition of paragraph 4.15 incorporates into paragraph 4 the pleas in paragraph 8.16 – 8.18. The effect of these pleas is very broad. It alleges that in the course of his practice from 1968 to the date of his last autopsy, the plaintiff, in conducting autopsies, failed to conform with certain alleged “aims” of a forensic autopsy. No particulars are provided of the manner in which the plaintiff failed to conform with the alleged aims.
Except in the case of paragraph 4.14 which deals with the death of Gerard Warren (and paragraph 4.10 which deals with the death of Leonard Moss) it is not alleged in the other challenged paragraphs in paragraph 4 that the plaintiff gave evidence in a murder trial or even prepared a report for the purposes of a murder trial. On the face of it, these paragraphs are not reasonably capable of supporting a plea of justification in relation to the imputations alleged by the plaintiff which all relate to the plaintiff’s conduct in relation to murder trials.
Counsel for the defendant sought to meet this apparent difficulty by putting two arguments. First, he submitted that a wide meaning should be given to the phrase in paragraphs 6.1 – 6.4 (inclusive) of the Statement of Claim “in relation to murder trials”. Any link, he submitted, was sufficient. He submitted that if the plaintiff gave an unreliable opinion that led to a person not being charged, for example, in relation to the deaths of the three infants, that was as relevant as an unreliable opinion given in the course of a murder trial. Leaving aside the fact that in any event that argument would not save the paragraphs in which it is alleged the death was accidental, I do not accept the argument. The imputations alleged by the plaintiff are clearly criticisms of the plaintiff’s professional conduct and work in relation to murder trials, and the link suggested by the defendant is far too tenuous. Secondly, counsel for the defendant submitted that the particulars are capable of supporting a finding as to the practice of the plaintiff from which the court might draw certain inferences relevant to the plaintiff’s conduct in relation to murder trials. I do not accept this argument. Leaving aside the fact that I have some doubts as to whether it is open to the defendant to plead a practice, there is no plea of a practice in this case. The incorporation of paragraphs 8.16 – 8.18 does not constitute the pleading of a practice. The plea in those paragraphs does not contain any particulars of how the plaintiff is said to have failed to comply with the aims of a forensic autopsy, or of how any such failures were relevant to his professional conduct and work in relation to murder trials.
I would strike out paragraphs 4.4, 4.5, 4.6, 4.8, 4.9, 4.11, 4.12 and 4.13. I decline to strike out paragraph 4.14. I would hear further from the parties as to paragraph 4.10, and in particular, whether the evidence referred to in paragraph 4.10.5 was evidence in a murder trial. I would strike out paragraph 4.15.
If the above paragraphs are struck out, the references to paragraph 4 in paragraphs 5, 11 and 14 of the Defence will only incorporate the paragraphs in paragraph 4 which remain. I will hear from the parties as to whether, in those circumstances, any order is necessary in relation to paragraphs 5, 11 and 14.
2. Alternative Meanings Pleaded by the Defendant
I have already set out the relevant legal principles and it is now a question of applying those principles to the defendant’s pleas of alternative meanings.
I start with paragraph 9 which relates to the first article. The pleaded imputations of the plaintiff relate to his professional conduct and work in relation to murder trials. The defendant’s alternative meanings in paragraph 9 relate to the plaintiff’s performance of his duties as a forensic pathologist employed at the Forensic Science Centre. Leaving aside paragraph 9.5, the imputations raised by the defendant are more general than the imputations pleaded by the plaintiff. It might be debatable as to whether they are more injurious, but in my opinion it cannot be said that they are less injurious than the imputations pleaded by the plaintiff. They are not mere variants or different nuances from the meanings pleaded by the plaintiff. In my opinion, they are substantially different and, although there is some overlap, they involve a different factual inquiry. They are not meanings which could be relied on by the plaintiff, and in accordance with the principles which I have set out earlier, the defendant cannot plead them as alternative meanings. I am not satisfied that the plaintiff could not obtain judgment on the meaning pleaded in paragraph 9.5, and accordingly I decline to strike out that paragraph.
For similar reasons to those which I have given in relation to paragraphs 9.1, 9.2, 9.3, 9.4 and 9.6, I do not think the defendant can plead the alternative meanings in paragraphs 12.1 and 12.4 which relate to the second article. I decline to strike out paragraphs 12.2 and 12.3 because I am not satisfied that the plaintiff could not obtain judgment on the meanings pleaded in those paragraphs.
Again for similar reasons to those which I have given in relation to paragraphs 9.1, 9.2, 9.3, 9.4 and 9.6, I do not think the defendant can plead the alternative meaning in paragraph 15.1. I decline to strike out paragraph 15.2 because I am not satisfied that the plaintiff could not obtain judgment on the meaning pleaded in that paragraph.
Conclusions
I would strike out paragraphs 4.4, 4.5, 4.6, 4.8, 4.9, 4.11, 4.12, 4.13, 9.1, 9.2, 9.3, 9.4, 9.6, 12.1, 12.4 and 15.1 of the Amended Defence. I decline to strike out paragraph 4.14, 9.5, 12.2, 12.3 and 15.2 of the Amended Defence.
I would refuse the defendant’s application to amend the Defence except insofar as it involves an amendment to paragraph 4.14 which I would allow. I will hear the parties on the appropriate orders in light of these reasons in relation to paragraphs 4.10, 5, 11 and 14 of the Amended Defence, any other orders and on the question of costs.
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7
1