Manock v Channel 7 Adelaide Pty Ltd - [2010] SADC 45

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
MANOCK v CHANNEL 7 ADELAIDE PTY LTD
[2010] SADC 45
Judgment of His Honour Judge Muecke
31 March 2010
DEFAMATION
Defence of justification (truth) - whether leave should be granted to allow the defendant to plead and particularise such a defence.
Channel 7 Adelaide Pty Ltd v Manock (2007) 232 CLR 245; Manock v Channel Seven Adelaide Pty Ltd (2006) 95 SASR 462 at 464-470; Manock v Channel 7 Adelaide Pty Ltd [2005] SADC 168; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, considered.

MANOCK v CHANNEL 7 ADELAIDE PTY LTD
[2010] SADC 45

This is an appeal against certain orders made by a Master of this court on 27 February 2009.
Co-incidentally, I gave judgment and published reasons in respect of an appeal and a cross-appeal against certain orders made on 27 September 2005 by the same Master in this same action. I did that on 9 December 2005 (Manock v Channel 7 Adelaide Pty Ltd [2005] SADC 168). The judgment I published on that day was concerned with an Amended Defence filed by Channel 7 on 2 March 2005. In that Amended Defence Channel 7 pleaded that if Channel 7’s promotion on which the plaintiff sued would be understood in its natural and ordinary meaning (and in the context of the whole promotion) to refer to the plaintiff (which was not admitted) the promotion would (not) be or would (not) be capable of being understood to refer solely or primarily to the plaintiff. Channel 7 then pleaded that certain words[1] published by it in the promotion constituted fair comment on a matter of public interest. Channel 7 gave extensive “Particulars of Public Interest” and “Particulars of facts upon which comment is based”[2].
[1] The words identified by Channel 7 were: 1. the new Keogh facts; 2. the evidence they kept to themselves; the data, dates and documents that don't add up; and the evidence changed from one Court to the next.
[2] They are set out in Manock v Channel Seven Adelaide Pty Ltd (2006) 95 SASR 462 at 464-470 [9]-[11]
My judgment of 9 December 2005 related to orders made by the Master in respect of the particulars of facts upon which comment was based. The effect of my judgment was to allow Channel 7 to plead the majority of the particulars that had been the subject of challenge.
My orders were appealed by the plaintiff to the Supreme Court of South Australia. The appeal was referred to and heard by the Full Court.
The Full Court allowed the appeal and ordered that certain particulars I allowed to be pleaded in respect of Channel 7’s defence of fair comment be struck out. Channel 7’s defence of fair comment remained (that had not been challenged), it was only the particulars that were struck out.
Channel 7 appealed to the High Court of Australia. On 13 December 2007 the High Court struck out Channel 7’s defence of comment, which was there challenged by the plaintiff for the first time. It held that none of the statements complained of by Channel 7, taken separately or together, was capable of constituting comment.
By application filed in this Court on 15 February 2008 Channel 7 applied for leave to file a Second Further Amended Defence. Channel 7 sought to add the following new paragraph to its Defence:
2A Further, or in the alternative, if in its natural and ordinary meaning the promotion would have been understood as referring to the plaintiff (which is not admitted) and bore the meaning alleged in paragraph 5 of the Statement of Claim (which is denied), it was true in substance (and in) fact.
The amendment as sought provided Particulars of Justification. They are set out in an Annexure to these reasons.
Channel 7 filed an Affidavit to support its application to amend its Defence which would allow it to seek to justify the plaintiff’s asserted meaning of Channel 7’s promotion the subject of this action. The deponent to that affidavit referred to the decision of the High Court on 13 September 2007 whereby it struck out Channel 7’s defence of fair comment. The deponent stated:
3     Throughout the various pleadings arguments, there had never previously been a finding that the words complained of constituted statements of fact and not comment on (sic) that the defence of fair comment would not be open to the defendant in this matter.
4     Indeed, until the High Court Appeal, the plaintiff had never challenged the defendant’s defence of fair comment – only the particulars to that defence.
5     In addition, it had always been anticipated that the defendant would amend its defence once it had received final directions from the Court as to the current defence.
6     In light of the decision of the High Court, the defendant does not seek to re-plead its fair comment of (sic) defence but seeks leave to amend its pleadings to include defence of justification and withdraw the defence of qualified privilege.
The proposed Second Further Amended Defence which the defendant sought leave to file was annexed to the affidavit.
The plaintiff’s Statement of Claim has never changed from when it was filed in this Court on 22 March 2004, six years ago. In his Statement of Claim the plaintiff set out the facts and basis of his claim. They include:
·       The plaintiff is a Forensic Pathology consultant, he is a Fellow of the Royal College of Pathologists of Australasia, and he is the former Senior Director of Forensic Pathology at the State Forensic Science Centre.
·       Channel 7 is the broadcaster of a program “Today Tonight”.
·       At about 7pm on or about 5 March 2004 the defendant, as part of a program known as “Today Tonight”, broadcast a promotional item for a future edition of that program (“the promotion”).
·       The promotion consisted of the host of “Today Tonight” depicted speaking and saying:
The new Keogh facts. The evidence they kept to themselves. The data, dates and documents that don’t add up. The evidence changed from one Court to the next.
·      This was said whilst a picture of the plaintiff was displayed across the background and slightly above the host.
In its Defence filed on 16 June 2004 Channel 7 admitted all the above facts.
In his Statement of Claim the plaintiff then alleged:
The promotion in its ordinary and natural meaning meant and was understood to mean that the plaintiff had deliberately concealed evidence from the trials of Mr Keogh when he was tried for murder.
The plaintiff alleged that the promotion was calculated to damage him in his occupation as a forensic pathologist and by reason of the broadcast of the promotion he had been greatly injured and had suffered considerable distress and embarrassment. He claimed damages from Channel 7 including exemplary damages.
The plaintiff opposed Channel 7’s application made on 15 February 2008 to amend its Defence to allow it to seek to justify the meaning that the plaintiff alleged that the promotion bore, if it was understood in its natural and ordinary meaning to refer to the plaintiff and if it bore the meaning alleged by the plaintiff.
On 27 February 2009 a District Court Master refused that part of Channel 7’s application to seek to justify the meaning alleged by the plaintiff. The Master published reasons for doing so.
Channel 7 appealed that decision and the order made refusing leave to amend.
The appeal from the Master was heard before me on 7 August 2009. At the end of submissions on the appeal I gave leave to the parties to file written submissions on a decision of the High Court of Australia in another case which was published by the High Court on 5 August 2009. That was the case of Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175. Those written submissions were received by me by the end of August 2009. The delay in giving this decision on the appeal is solely mine.
As indicated, Channel 7, by its proposed defence, seeks the opportunity to prove at trial that if its promotion, in its ordinary and natural meaning, meant and was understood to mean that the plaintiff had deliberately concealed evidence from the trials of Mr Keogh when he was tried for murder, that was true in substance and in fact. Channel 7’s application raises two questions for determination.
First, whether Channel 7 should at this late stage be allowed to seek to justify the meaning alleged. That is, whether Channel 7 should now be allowed to seek to prove at trial that the plaintiff deliberately concealed evidence from the trials of Mr Keogh when he was tried for murder.
Secondly, whether leave to amend to seek to do so should be refused because the particulars given in the proposed pleading do not or cannot, if proved, establish that the plaintiff deliberately concealed evidence from the trials of Mr Keogh when he was tried for murder.
As to the first question it is not absolutely clear to me the position the Master took. In para 68 of his reasons he referred to the passage of time and said that it did not seem to him to be inappropriate for the issue of Channel 7 pleading justification to be further considered. He said that he agreed with Channel 7’s submission that there had been no express prohibition on the right to replead generally, and he rejected the plaintiff’s submission that the proposed amendments, seeking to plead justification, should be rejected without further consideration. He gave leave to the defendant to pursue the application to replead. Later in his reasons, in respect of one of the particulars sought to be pleaded (the grip mark), the Master said he exercised his discretion not to allow a further opportunity to replead, bearing in mind the time since the plea of justification was first raised in an earlier pleading (para 100). However, even in respect of that particular the Master held that the pleading was not adequate and he refused leave to amend. He said that, in any event, that pleading did not meet the defamatory meaning raised by the plaintiff. He said in para 99:
It may be capable of an assertion of deliberate concealment but the pleading does not go far enough.
The Master held that the second question should be answered in the plaintiff’s favour. That is, he held that the particularised pleadings of justification do not, if the facts alleged in them were proved, establish or prove deliberate concealment by the plaintiff in his evidence at Mr Keogh’s trials. The Master held that the facts alleged in the various particulars might, if proved, variously disclose that the plaintiff’s evidence was wrong, they might disclose negligence, incompetence or oversight, or they might disclose that there were inadequacies and failures in his investigations, but they do not necessarily establish deliberate concealment of evidence.
It is convenient for me first to consider the second question to which I referred earlier. If I am satisfied that the proposed pleading, or any of it, is a proper pleading then I consider that will be relevant to a consideration as to whether Channel 7 should now be allowed to plead those allegations and seek to prove them at trial. If I conclude that they are not proper pleadings then the question of whether it is too late to advance them at trial will not arise.
I consider that I must consider and determine this second question bearing in mind that part of the plaintiff’s case is that he is a Forensic Pathology consultant, that he is a former Senior Director of Forensic Pathology at the State Forensic Science Centre and that the action concerns evidence given by him at the trials of Mr Keogh where he gave expert opinion evidence as an expert forensic pathologist. Those two trials were trials at which Mr Keogh was tried for murdering Ms Anna-Jane Cheney, his then fiancée, in March 1994. It was alleged by the Crown at Mr Keogh’s two trials that he had murdered Ms Cheney by drowning her in a bath. The Crown’s case was largely based on circumstantial evidence. The plaintiff was called by the prosecution to give expert opinion evidence as a forensic pathologist and he gave evidence supporting the drowning hypothesis advanced by the Crown to a jury at each trial. Mr Keogh was found guilty of murder at his second trial. He is currently serving a sentence of life imprisonment.
I consider that the matters just referred to are important in determining this appeal because the particulars of justification sought to be pleaded by Channel 7 all relate to the evidence the plaintiff gave at both trials of Mr Keogh when he was giving opinion evidence as an expert forensic pathologist “for” the prosecution.
The Rule of Law that applies in South Australia and that protects all South Australians, including those charged with murder, requires that the Crown be a model litigant. This requirement applies equally to expert forensic witnesses called and relied on by the Crown in criminal trials.
Furthermore, judges presiding over a criminal trial where there is a jury are required by law, where the Crown’s case relies largely on circumstantial evidence, to direct the jury, in considering circumstantial evidence, to have regard to the possibility that such evidence does not necessarily point to guilt. The jury is directed that it cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than that the accused is guilty of the charge. The jury is directed that before it can be satisfied that the accused is guilty of the charge against him, it must be satisfied not only that his guilt is a rational inference, but that it is the only rational inference that the circumstances it finds proved enables it to draw.
I make the two additional points above because I consider that the meaning pleaded by the plaintiff that the promotion in its ordinary and natural meaning meant and was understood to mean that the plaintiff had deliberately concealed evidence from the trials of Mr Keogh when he was tried for murder must be considered, and must take colour from , the fact that it is sought to be alleged by the plaintiff that deliberate concealment occurred within a murder trial where the plaintiff gave expert opinion evidence having been called by the Crown.
It seems to me that what was discussed between both counsel and me on the appeal as to the proper construction of the words deliberately concealed evidence had a certain semantic aura, and that a certain amount of semantics seems to have influenced the Master in how he approached each particular of justification and why he ultimately decided to refuse Channel 7’s application for leave to amend.
The Master’s reasons and submissions on the appeal before me were directed to the question as to whether the particulars given by Channel 7 in the proposed justification plea established, could establish, supported, or could support, as true in substance and in fact, that the plaintiff had deliberately concealed evidence from the trials of Mr Keogh.
In paras 24-32 of his reasons the Master refers to the definitions of “deliberate” and “conceal” in various dictionaries.
I largely agree with, and adopt, the Master’s conclusion that the words “deliberately concealed” connote “an intentional withholding of information. To put it another way, a deliberate, that is reasoned, intentional decision to hide information from the accused, in the hope that it could not be ascertained so as not to undermine the plaintiff’s expert opinion”. I would not, however, confine that concept to a hiding of information solely from the accused. I would add that such a hiding would include from the jury and the court at the trials of Mr Keogh. I would also use the word “would” instead of the word “could” because “would” is more consistent with what now follows.
I do not agree, however, with the proposition that “deliberate concealment” means “intentional and planned concealment, that is, the hiding of material in the expectation that it would not be, or was unlikely to be, discoverable”. Although the Master later in his reasons qualifies the word “expectation” by the word “reasonable”, I do not consider that evidence will only be deliberately concealed if there is an expectation that it will not be, or will unlikely to be, discovered. I consider that one can intentionally conceal or hide something in the hope that it will not be discovered. One does not have to have an expectation, even a reasonable expectation, that it will not be, or will unlikely to be, discovered. The latter is not necessary, in my view, before one can be said to have deliberately concealed something. Whilst one might hope that something one intentionally hides might remain undiscovered, it is sufficient, in my view, to say that a person who takes such action with such a hope has deliberately concealed that thing. I also disagree, for the same reasons, with what the Master said (in para 40) that “deliberate concealment” “is the intentional hiding of information in whole or part, such that it could not be uncovered, or its ascertainment would be extremely difficult, that is, something only known to the plaintiff”, and with what he said (in para 46) that if Channel 7 “asserted that the plaintiff’s evidence or expert report tendered at the trial expressly hid information that was relevant and could not be ascertained by the defence, then that might go to the assertion that the plaintiff deliberately concealed evidence which was presented at the trials of Mr Keogh.”
I consider that my view becomes more tenable still where the person who is hiding something or concealing something from others is doing so in the context of giving expert opinion evidence to a jury who does not have the same expertise, and is doing so in a criminal trial of a person charged with the most serious criminal offence.
My view is that if a forensic pathologist gives expert opinion evidence to a jury on matters outside a jury’s expertise, and does so on the (probably express) basis that the forensic pathologist has expertise to give such evidence by reason of his qualifications, after his examination of a body and scientific testing on that body, drawing on his expertise, and as a result of his experience as a forensic pathologist and as a witness in a forensic setting, that evidence will be received by that jury in a certain way. For example, if such a witness tells that jury “that aortic staining is a classic sign of fresh water drowning; and that a loss of consciousness would leave visible physical evidence on the brain” that evidence would be received and understood by that jury on the basis that it is expert opinion evidence given by the forensic pathologist on the basis of examinations and investigations he has made and on his experience as a forensic pathologist on the topic on which he gave that evidence. In my view a juror would interpret the word “classic” in the above quote as meaning that “scientifically” aortic staining indicates fresh water drowning. A juror would further understand that evidence as being to the effect that if Ms Cheney lost consciousness, scientifically and pathologically there would be some visible physical evidence on her brain.
If the fact is that the forensic pathologist who gave that evidence knew that there was no scientific basis in the scientific literature for it and/or that there was no scientific literature that supported it, I consider that if a jury was not informed of that because the pathologist deliberately withheld that information from it when he knew there was no such literature, then that would be capable of likely misleading the jury as to how they would understand the evidence that was given. It would further, in my opinion, not be appropriate for a forensic pathologist not to tell that jury that he was only using the words “classic sign”, and that his assertion that a loss of consciousness would leave visible evidence on the brain, as being and was confined to his own experience, and that he was not relying on any scientific literature in addition to his professional training and familiarity.

My views about the other particulars sought to be alleged by Channel 7 are generally the same, although the other particulars are sometimes expressed differently. Indeed, the new recent publication sought to be pleaded since the decision of the Master expressly alleges that the plaintiff “deliberately concealed” certain histology slides.
It is alleged in respect of bruising on Ms Cheney’s left leg that the plaintiff gave evidence at both of Mr Keogh’s trials to the effect that there was a bruise to her left leg caused by a thumb mark. It is sought to be alleged by Channel 7 in this action that the plaintiff knew at the time he gave that evidence that the histological sample taken of “the bruise” did not show any bruising and that he did not tell the jury in either trial that fact. If any of the facts sought to be alleged by Channel 7 are established by the plaintiff not to be true facts, then that allegation to justify the defamatory meaning will not be made out at trial, possibly with significant consequences. In my view, however, particulars in pleadings are just that, they are particulars of facts which the pleader of them seeks to allege and make out at trial. It is not for me or the Master to try the proposed allegations of fact. My view is that if the allegations of fact sought to be particularised are capable of being found by a fact finder, and if found proved, are capable of constituting, in all the circumstances, a deliberate concealment of evidence by the plaintiff at Mr Keogh’s trials, then that is sufficient for the allegations to be allowed to go to trial.
Channel 7 further seek to allege and prove that the plaintiff gave evidence at both trials to the effect that bruising on Ms Cheney’s left leg was caused by a right-hand grip mark. It is sought to be alleged and proved by Channel 7 that when he gave that evidence he believed that that bruising on Ms Cheney’s left leg had been caused by a left-hand grip mark, but he did not disclose that belief in his evidence to either jury. My view is that if Channel 7 is allowed to prove at trial, and does prove at trial, that the plaintiff gave evidence at both trials of Mr Keogh that his opinion was that bruising on Ms Cheney’s left leg was caused by a right-hand grip mark, and at the time he gave that evidence he believed that the bruising on her left leg had been caused by a left-hand grip mark, then that would clearly be capable of being characterised as a deliberate concealment of evidence. That is, he deliberately concealed his opinion that certain bruising was caused by a left-hand grip mark and said instead that it was caused by a right-hand grip mark.
The factual allegations in each of the various particulars for justification are, in my view, capable of being characterised by a judge, if proved, as constituting deliberate concealment by the plaintiff in his evidence at Mr Keogh’s trials. I am of that view whether there was a failure to disclose relevant evidence that would or could undermine the evidence the plaintiff gave as an expert, whether it was that the plaintiff did not disclose to the jury certain investigations which he knew could undermine his drowning hypothesis, or whether it was that the plaintiff knew that there had been inadequacies and failures in his investigations of Ms Cheney’s death. These comments are applicable to the allegations sought to be pleaded regarding the bath water level, the alternative hypothesis, inadequacies and failures in the plaintiff’s investigations, and those later sought to be pleaded regarding Concealment of the 5^th Histology Slide, in which deliberate concealment is expressly alleged.
I consider that the Master applied for himself the wrong test when considering the proposed particulars of justification. As previously indicated, I do not consider that deliberate concealment is confined to the intentional hiding of information “in the (reasonable) expectation that it would not be, or was unlikely to be, discoverable”, or “that it could not be uncovered, or its ascertainment would be extremely difficult, that is, something only known to the plaintiff”, or that it “could not be ascertained by the defence”.
I consider that it is open to a judge to be satisfied that a forensic pathologist giving evidence at a murder trial could intentionally hide and deliberately conceal information from a court, and a jury, by failing to disclose in evidence what he knows to be relevant material, or by failing to disclose what he knows could be relevant material, in both cases being material relevant to the opinion that he was expressing to a court and to the jury on issues relevant to the jury’s deliberations and verdict.
My view is that all the particulars sought to be alleged under the heading “Particulars of Justification” are capable, if the facts alleged in them are proved, of being characterised by a judge as constituting deliberate concealment of evidence, in the sense that I consider that that phrase should be construed.
I do not consider anything that was said by the Justices of the High Court in Channel 7 Adelaide Pty Ltd v Manock (2007) 232 CLR 245 to be directly contradictory of the view I have just expressed. In that appeal the High Court was considering particulars of public interest and particulars of facts upon which comment was alleged to be based, and that court was considering those particulars that were then differently expressed than those now sought to be pleaded by Channel 7. The High Court was also considering and expressing certain views on certain facts pleaded upon which comments were allegedly based where the court ultimately held that none of the statements complained of, taken separately or together, was capable of constituting comment. The issues before the High Court (see, for example, Gummow, Hayne and Heydon JJ, at para 19) did not include a consideration of whether the particulars then alleged constituted a deliberate concealment of evidence. Indeed, in the end, Channel 7 in that appeal conceded that taken individually the paragraphs then alleged did not allege any deliberate failure to disclose (see para 78). Furthermore, at para 39, in the joint reasons, the High Court said, in relation to what Channel 7 then said to be comment, the evidence they kept to themselves: “(t)o say that the plaintiff kept evidence to himself is to say that he deliberately concealed it. Whether he did is a question of fact”. I accept that this was said in a different context, but I consider that it is some support for the views I have expressed. It is clearly not, in my view, contrary to them.
I consider that what the High Court had to consider was different from what I now have to consider. That is whether, for example, the plaintiff’s alleged evidence at two trials that bruising on Ms Cheney’s left leg was caused by a right-hand grip mark when the plaintiff allegedly believed that the bruising was caused by a left-hand grip mark is capable, if proved, of being found to constitute deliberate concealment of evidence by the plaintiff from the trials of Mr Keogh. If those allegations are true then it is open to a judge to find that the plaintiff has given evidence to the jury at two trials that his opinion was something different from what his true opinion was. If he knew that he was giving evidence contrary to his true opinion then it would be open, in my view, for a judge to hold that in those circumstances he deliberately concealed his true opinion when he gave an opinion he believed was not his true opinion.
My conclusion is that Channel 7’s allegation and particulars of truth as a further or alternative allegation in defence of the plaintiff’s claim is a proper pleading.
The other issue for determination is whether, in the circumstances that Channel 7’s application to amend is now made, should be refused on the basis that it is too late now to plead justification when that was not done initially, when it was partially done and was struck out without any appeal by Channel 7, and when Channel 7 went through an appellate process all the way to the High Court of Australia on its comment defence.
In considering this issue, which is a matter for my discretionary decision, I am acutely aware of comments in the joint reasons in the High Court in this case as to what was said to be an assumption shared by many parties to defamation litigation, particularly defendants. It was said (at para 97) “That assumption is that proceedings can proceed in very leisurely fashion through every level of appeal in relation to repeated pleading refinements”. I am also acutely aware of what the High Court said in Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 in its reasons published on 5 August 2009, just two days before the appeal against the Master’s decision was argued before me.
I have, however, had put before me on this appeal some matters that were not before the High Court. Importantly, Channel 7 set out in paragraph 4 of its grounds of appeal against the decision of the Master the pleading history in this action. I am satisfied that that pleading history does not support a conclusion that the delay in this action in reaching its current position should be laid at the feet of Channel 7. Furthermore, I accept a submission on behalf of Channel 7 that whilst a justification defence could have been pleaded earlier, it is “understandable why it was not”. The earlier pleadings appeals proceeded on the basis that the plaintiff’s pleaded meaning, if conveyed, was conveyed as a matter of comment rather than as a matter of fact. It was not until the matter reached the High Court that the plaintiff suggested that the words complained of were arguably fact. Indeed, in the appeals prior to the appeal before the High Court the plaintiff indicated that he was not challenging Channel 7’s defence of comment, but confined his challenge to the particulars pleaded in support of such substantive defence.
Whilst there is no doubt that the proceedings have been in this court for a significant period of time since being issued (just over 6 years ago) it is hard to lay much blame for that on Channel 7. I am not suggesting by saying that that the plaintiff has been to blame, except in respect of the fact that the plaintiff disavowed a complaint about Channel 7’s defence of comment until the matter was before the High Court.
I am also not prepared to find that Channel 7 made an earlier “tactical” decision not to make the amendments now sought, at least in the sense that it was tactically determined to take the comment issues on appeal to me, then to the Full Court of South Australia and then to the High Court of Australia whilst “keeping its powder dry” (as was suggested by Mr Swan, of counsel for the plaintiff, on this appeal) to then try and run a justification defence.
There is no trial yet listed in respect of this action. It is not, therefore, a matter of interrupting a trial by granting Channel 7 leave to amend to plead a defence of justification. There is no further prejudice to the plaintiff beyond that which might be associated with the amendment application itself. It is a matter largely of speculation as to whether the allowing of this amendment would have the effect of the action proceeding to trial later than might otherwise be the case. Given the history of the pleadings in this matter hitherto I cannot ignore the possibility that if I grant or refuse to grant Channel 7’s application to amend my decision will be appealed
I have concluded that, being satisfied that the pleading sought by Channel 7 is a proper pleading, and being satisfied that there are no proper reasons to refuse Channel 7 the right to seek to justify the meaning pleaded by the plaintiff, I should allow the appeal, and grant leave to Channel 7 to file and serve an amended defence in the terms sought, including the proposed paragraphs 2A.20‑2A.23.
Annexure
2AFurther, or in the alternative, if in its natural and ordinary meaning the promotion would have been understood as referring to the plaintiff (which is not admitted) and bore the meaning alleged in paragraph 5 of the Statement of Claim (which is denied), it was true in substance (and in) fact.
Particulars of Justification
2A.1The plaintiff gave evidence at both trials of Mr Keogh.
Aortic Staining & Physical Evidence of Loss of Consciousness
2A.2The plaintiff gave evidence at both trials to the effect:
2A.2.1that aortic staining is a classic sign of fresh water drowning; and
2A.2.2that a loss of consciousness would leave visible physical evidence on the brain.
2A.3At the time of giving his evidence, the plaintiff knew, from his professional training and familiarity with the scientific literature, that there was no scientific basis and/or no support in the scientific literature for his evidence.
2A.4The plaintiff did not disclose in his evidence this absence of scientific basis and support in the scientific literature for the evidence he gave.
Bruising on Ms Cheney’s Left Leg
2A.5The plaintiff gave evidence at both trials to the effect that there was a bruise to Ms Cheney’s medial left leg caused by a thumb mark.
2A.6At the time of giving his evidence, the plaintiff knew that the histological sample taken of “the bruise” did not show any bruising.
2A.7The plaintiff did not disclose in his evidence that the histological sample taken from the medial left leg did not disclose a bruise.
Grip Mark
2A.8The plaintiff gave evidence at both trials to the effect that bruising on Ms Cheney’s left leg was caused by a right hand grip mark.
2A.9At the time of his giving his evidence, the plaintiff believed that bruising on Ms Cheney’s left leg had been caused by a left hand grip mark.
2A.10The plaintiff did not disclose in his evidence his belief as to the cause of the bruising on Ms Cheney’s left leg.
Bath Water Level
2A.11The plaintiff gave evidence on both trials to the effect that Ms Cheney had been drowned in the bath by her assailant grasping her left leg and lifting her legs over her head thereby sliding her under the water and drowning her (“the drowning hypothesis”).
2A.12At the time of giving his evidence as to the drowning hypothesis, the plaintiff knew:
2A.12.1that Ms Cheney could not have been drowned in this way if the bath water level was less than approximately one third full; and
2A.12.2that he had not taken, nor caused to be taken, any measurements of the level of the water in the bath.
2A.13The plaintiff did not disclose in his evidence his knowledge of the matters in the preceding paragraph.
Alternative Hypotheses
2A.14At the time of giving his evidence in both trials as to the drowning hypothesis, the plaintiff knew, from his professional training and his conduct of the autopsy of Ms Cheney, that there were reasonable and plausible alternative hypotheses or explanations for Ms Cheney’s death (“the alternative hypotheses”), namely:
2A.14.1epileptic seizure in the bath leading to unconsciousness and drowning;
2A.14.2congenital heart defect causing loss of consciousness in the bath and drowning; and
2A.14.3anaphylactic reaction in the bath leading to unconsciousness and drowning.
2A.15At the time of giving his evidence as to the drowning hypothesis, the plaintiff knew that he had not conducted investigations adequate to exclude the alternative hypotheses.
2A.16The plaintiff in his evidence did not disclose the matters in the preceding two paragraphs.
Inadequacies and Failures in the Plaintiff’s Investigation
2A.17At the time of giving his evidence at both trials, the plaintiff knew that there had been inadequacies and failures in his investigation of the circumstances of Ms Cheney’s death, namely:
2A.17.1he had failed to adequately document his findings and observations in the autopsy reports, including as to organ weights;
2A.17.2the forensic photographs collected were inadequate in that they were poor in quality, were not in colour, and were insufficient in number; and
2A.17.3he had failed to collect and retain sufficient tissue and other body samples (from relevant organs, suspected bruises and body fluids) to enable a proper histological examination.
2A.18At the time of giving his evidence in both trials, the plaintiff knew that the inadequacies and failures in the preceding paragraph prevented any substantiation of the observations and conclusions he made or reached during the autopsy, and was hence relevant to the reliability of his evidence as to the cause of Ms Cheney’s death.
2A.19The plaintiff in his evidence did not disclose the matters in the preceding two paragraphs.
*Concealment of the 5^th Histology Slide
* sought to be added by application filed 17 April 2009
2A.20The defendant refers to and repeats subparagraphs 2A.5 to 2A.7 above in relation to the alleged bruising of Ms Cheney’s medial left leg.
2A.21The plaintiff gave evidence at the second trial of Mr Keogh that there were four histology slides taken of Ms Cheney’s bruising, only one of which related to Ms Cheney’s medial left leg.
2A.22In fact, five histology slides had been taken of Ms Cheney’s bruising, two of which related to Ms Cheney’s medial left leg and neither of which supported the plaintiff’s evidence as to the alleged bruising of Ms Cheney’s medial left leg.
2A.23At the time of giving this evidence, the plaintiff knew and deliberately concealed that two slides relating to Ms Cheney’s medial left leg existed and did not support the plaintiff’s evidence as to the alleged bruising of Ms Cheney’s medial left leg.