Manock v Moles
[2008] SADC 90
•17 July 2008
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Appeal Against a Master's Decision)
MANOCK v MOLES
[2008] SADC 90
Judgment of His Honour Judge Tilmouth
17 July 2008
PROCEDURE - MISCELLANEOUS PROCEDURAL MATTERS - OTHER MATTERS
Defamation - Fair comment - In general - Elements and nature of defence.
Constitutional Law - Operation and effect of Commonwealth Constitution - Restrictions on Commonwealth and State Legislation - Rights and freedoms implied in Commonwealth Constitution - Freedom of political communication - Particular cases - Defamation - Scope and application of Lange defence - Meaning of "government and political matters".
Words and Phrases - "Government and political matters".
Defamation - damages - assessment and mitigation - evidence.
General Steel Industries Inc v Commission for Railways (NSW) & Ors (1964) 112 CLR 125 at 130; Manock v Channel Seven Adelaide Pty Ltd (2006) 95 SASR 462; Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 at 192, applied.
Chapman v Australian Broadcasting Corporation (2002) 77 SASR 181 at 185; Peek v Channel Seven Pty Ltd (2006) 94 SASR 196 at [4]; Morosi v Mirror Newspaper Ltd [1977] 2 NSWLR 749; ABC v McBride (2001) 53 NSWLR 430, discussed.
Kemsley v Foot [1952] AC 345 at 355; Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567 and 571; APLA Ltd v Legal Services Commissioner (NSW) (2005) 79 ALJR 1620 at [27]; Cornwall v Rowan (2004) 90 SASR 269 at [413]; Herald & Weekly Times and Bolt v Popovic (2003) 9 VR 1; Herald & Weekly Times Ltd v Popovic (2003) 9 VR 1; Chappell v Mirror Newspapers [1984] Aust Torts Rep 68,943 at 68,952 (NSWCA); Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 99, considered.
MANOCK v MOLES
[2008] SADC 90Preliminary
For several decades the appellant, Colin Manock (“Dr Manock”), was a Senior Director of the Forensic Pathology based in the State Forensic Science Centre in Adelaide. He was a Fellow of the Royal College of Pathologists of Australasia. In those capacities he must have performed thousands of autopsies and given evidence in hundreds of criminal trials for the prosecution, mostly murder cases. He retired some years ago.
The underlying proceedings
The particular matter now before the Court is an appeal from a decision of a Master, who struck out substantial portions of a defence in proceedings issued by Dr Manock against the appellant/defendant (“the defendant”), claiming damages for defamation. For the reasons outlined in Beare v Light Council[1], an appeal from a Master is by way of a full rehearing on the merits, but that is inconsequential in this case, as the appellant argued his position on the footing that error of law was involved anyway.
[1] [2005] SADC 72.
The primary action in defamation centres on three sets or groups of publication. The first, comprises what the pleadings refer to as the first, second and third publications, concerning an interview on Channel Seven Adelaide, initially on 23 August 2002 and later that day and a further republication on or about 23 May 2005, embodied in annexures “A” and “B” to the statement of claim filed by Dr Manock on 8 December 2005. The fourth is constituted by a further republication on the defendant’s website. The fifth, sixth and seventh publications, the second set, concern statements made by the defendant over radio Adelaide on 4 October 2004 (Annexure “C” to the statement of claim), and a further republication of those statements on his website (Annexure “D”). The eighth publication, the third set, (Annexure “E”) involves statements made by the defendant on his website, at some time prior to June 2005.
To these, the appellant raises defences of justification, fair comment, fair reporting and qualified privilege. The order of the Master had the effect of striking out substantial portions of the defences of fair comment and wholly as to extended qualified privilege or the so-called Lange defence, and fair reporting. She also struck out a plea of impaired reputation on the issue of damages. On appeal, counsel for the defendant challenges these orders, except those relating to fair reporting. There were, in addition, a number of minor “drafting improvements” embodied in what became known during the course of this appeal as the “proposed further amended defence”.
As the parties based their submissions around that document, it is convenient to refer to it in these reasons. Mr Swan for the respondent agreed with that course. In that version, passages marked “DELETED” relate to all of those paragraphs struck out by the Master, as to which there is no appeal. These portions quoted later which happen to be shaded, relate to those struck out, remaining subject to appeal. The document also replaced the words “the imputations themselves are comment” with “the imputations were conveyed as comment” in paragraphs 12.2, 17.1 and 19.2. Depending on the rulings about to be delivered, there may be a need for leave to amend, but that is a matter the parties may address following judgment.
The reasons of the Master
The decision of the Master embodied in reasons posted to the parties on 14 May 2007, made the following two orders of relevance to the appeal:
1. Paragraphs 8.1 (inclusive of all subparagraphs), 8.3.1, 8.3.2, 8.3.3, 8.3.12, 8.4, 9, 12.2, 12.4.7, 12.5, 13 (inclusive of all subparagraphs), 17, 17.1, 19.1, 19.2, 19.3, 19.5, 20 (inclusive of all subparagraphs) and 21 of the amended defence are struck out.
2. Pursuant to Rule 46A.09 the defendant is to provide further particulars of paragraphs 8.2.2, 12.3 and 19.3 of the amended defence.
Those reasons were published before the Master had the benefit of the subsequent decision of the High Court of Australia in Channel Seven Adelaide Pty Ltd v Manock[2], a case obviously also involving Dr Manock. Identical principles applicable to this appeal, were examined at some length in that decision.
[2] (2007) 82 ALJR 303 (2007) 241 ALR 468.
In relation to the paragraphs in the defence relating to fair comment, the Master considered the published words in respect of the first to fourth publications, were statements of fact rather than comment, so she proceeded to strike out paragraphs 8.1.4, 8.1.6 and 8.1.7. In her view, as paragraph 8.2.2 pleaded matters of public interest, she gave leave to file further particulars. When it came to paragraphs 8.3.1, 8.3.2, 8.3.3 and 8.3.12, her conclusion was that these were “not capable of supporting comment adverse to the plaintiff and should be struck out.” Next she struck out paragraph 8.4 of the defence, because the “viewer is left in the position where they cannot possibly fairly assess the comment”. Paragraph 12.2 also went as containing assertions of fact rather than comment. She gave leave for further particulars of paragraph 12.3 to be provided. Paragraphs 12.4.7 and 12.5, did not survive either, the former being incapable of “supporting comments adverse to Dr Manock” and the latter for the same reasons as paragraph 8.4. Paragraphs 17, 17.1, 19.1, 19.2, 19.3, 19.5 and 20 suffered a similar fate, for similar reasons. Quoting Perry J in Channel Seven Adelaide Pty Ltd v S, D J[3], the Master obviously considered these to constitute “an athletic attempt … to convert it into a comment”.
[3] (2007) 248 LSJS 75, [2007] SASC 117 at [67].
In so ruling, the Master directed herself that before a defence could be struck out, it must have been “unarguably bad or devoid of merit”, in reliance upon Chapman v Australian Broadcasting Corporation[4] and Peek v Channel Seven Pty Ltd[5]. The Master also reminded herself the power to do so was one to be exercised sparingly and only in clear cases, in accordance with long established principle: General Steel Industries Inc v Commission for Railways (NSW) & Ors[6], Egan v Commonwealth Minister for Transport (No 2)[7]. Those principles are not in dispute in this appeal.
[4] (2002) 77 SASR 181 at 185.
[5] (2006) 94 SASR 196 at [4].
[6] (1964) 112 CLR 125 at 130.
[7] (1976) 14 SASR 445.
Whilst often stated in various ways, such as the applicant to strike out must establish the defences in question are “unarguably bad”, or “devoid of merit”, “obviously untenable” or “manifestly unarguable”: Chapman v Australian Broadcasting Corporation;[8] Peek v Channel Seven Adelaide Pty Ltd.[9], Jones v Amalgamated Television Services Pty Ltd[10], the various tests amount to much the same thing. Further, in applications of this kind, it is necessary to proceed by assuming the meaning alleged in the pleadings[11].
[8] (2000) 77 SASR 181 at 185.
[9] (2006) 94 SASR 196 at [4].
[10] (1991) 23 NSWLR 364 at 368.
[11] Channel Seven Adelaide Pty. Ltd. v. Manock (2007) 82 ALJR 303; (2007) 241 ALR 468 at [2].
When it came to the Lange defences, the Master struck out paragraphs 9, 13 and 20 inclusive, as failing to attract “a discussion of government and political matters”. Paragraph 21 of the amended defence also failed because it constituted an invalid attempt to seek a reduction in damages on the grounds that Dr Manock’s reputation had already been “significantly impaired”, by reason of other criticism of him in other places. She concluded the defendant was only entitled to plead in that connection “evidence of [Dr Manock’s] reputation arising out of his forensic pathology associated with murder investigations”. She did, however, grant leave to file further particulars “pertinent to the matters complained of”.
The High Court in Channel Seven Adelaide Pty Ltd v Manock[12], upheld an order of the Full Court in Manock v Channel Seven Adelaide Pty Ltd[13], unanimously allowing Dr Manock’s appeal and striking out particulars supporting a defence of fair comment, on the basis that none were capable of amounting to fair comment upon the imputations alleged. The pith and substance of the defamatory publications complained of, were that Dr Manock deliberately concealed evidence from the murder trials of one Henry Keogh. The High Court affirmed those orders[14]. It approached the matter of striking out pleadings as disclosing no cause of action or defence, based upon principles approved in Favell v Queensland Newspapers Pty Ltd[15] and again in Channel 7 Adelaide Pty Ltd v Manock, per Gummow, Hayne and Heydon JJ[16]:
Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.
This test is entirely consistent with that applied by the Master, but it does serve to emphasise that where reasonable minds may possibly differ, it remains a matter for the trier of fact, a Judge sitting without a jury in this State, to ultimately resolve that question.
[12] Above.
[13] (2006) 95 SASR 462.
[14] Per Gummow, Hayne and Haydon JJ, Gleeson CJ agreeing, Kirby J agreeing, with one minor exception.
[15] (2005) 79 ALJR 1716; 221 ALR 186.
[16] (2007) 241 ALR 468; (2007) 82 ALJR 303 at [33].
The pleadings: fair comment
The gravamen of the complaint in relation to the first to fourth publications, focus upon, but are not confined to, the evidence given by Dr Manock in the trial of David Szach for the murder of a prominent Adelaide solicitor, Derrance Stevenson. Proceedings in that case at first instance and on appeal are reported elsewhere[17]. The nub of the exchanges are pleaded in paragraph 5 of the statement of claim, as follows:
5. In the first publication the following words were spoken in respect of the investigation into the murder of Derrance Stevenson by David Szach:-
“Defendant: His body was bent round into a sort of foetal position. We know that his body had been in the freezer for some considerable period of time.
Dr Manock thought he could take the formula that was developed in those experiments and apply them in this particular case – to try and estimate the time at which the murder had taken place. This was a complete misapplication of the science involved.
He had to adjust the formula, as he said, by 40% because the body had bent round rather than being frozen in a prone position.
Rohan Wenn: And where did he get the figure of 40%?
Defendant: He made it up”.
[17] (1980) 23 SASR 504.
The statement of claim goes on to allege that:
10.In their natural and ordinary meaning the words of the first, second, third and fourth publications meant and were understood to mean that:-
10.1. In order to provide an opinion as to the time a murder took place the plaintiff:
10.1.1 Wrongly applied science;
10.1.2 Provided an opinion which had no basis;
10.1.3Provided an opinion as to the time a murder had taken place when he knew that an important element of that opinion had no basis;
10.1.4 Fabricated calculations as to the time a murder had taken place;
10.1.5 Used a figure of 40%in his calculations which had no basis;
10.1.6Deliberately and wrongfully made up essential inputs into calculations so as to produce opinions in support of a case in respect of murder. The calculations used by the plaintiff during the course of the autopsy on Derrance Stevenson (“Stevenson autopsy”) were unscientific.
In relation to these publications the proposed defence purports to set up fair comment, alleging the meanings were conveyed as comment:
8.1The following words in the first and/or second and/or third and/or fourth publications were comment:
8.1.8.13 DELETED
8.1.4This is a complete misapplication of the science involved.
8.1.5DELETED
8.1.6 And where did he get the figure of 40%?
8.1.7 He made it up.
Particulars of Public Interest
8.2 The matters of public interest upon which comments were made were:
8.2.1Concerns regarding the performance of the plaintiff in his public capacity as the Senior Director of Forensic Pathology at the State Forensic Science Centre;
8.2.2Concerns regarding the investigation and conviction of David Szach who has maintained his innocence and which have been the subject of other media coverage of public debate;
8.2.3The administration of the justice system and in particular the role played by expert evidence in that system.
Particulars of Fact on which Comment was Based
8.3The following facts were stated or depicted in the first to fourth publications:
8.3.1 DELETED.
8.3.2 DELETED.
8.3.3 DELETED.
8.3.4There was the case of lawyer Derrance Stevenson who was found dead in a freezer at his home on Greenhill Road.
8.3.5David Szach was charged with shooting Stevenson and putting him in a freezer.
8.3.6His body was bent round into a sort of foetal position and we know that his body had been in the freezer for some considerable period of time.
8.3.7Manock claimed he could work out how long the body had been in the freezer by using a special scientific formula.
8.3.8Again the time of death was key, because the police needed to know whether Szach was at Stevenson's house around the time of the murder.
8.3.9Dr Manock thought he could take the formula that was developed in those experiments and apply them in this particular case to try and estimate the time at which the murder had taken place.
8.3.10 The scientists who conducted the experiments were careful to point out that the theory only worked if the bodies were flat but Stevenson's body was bent over.
8.3.11 He had to adjust the formula, as he said, by 40% because the body had been bent around rather than being frozen in a sort of prone position.
8.3.12 DELETED.
8.4 The defendant also repeats and relies upon the facts pleaded in subparagraphs 7.1 to 7.6 above.
By and large subparagraphs 7.1 to 7.6, which contain particulars of publication, relate the matters external to the broadcasts, although they do report the facts that an adjustment of 40% was made and the body was “in a foetal position”.
As to the fifth, sixth and seventh publications, the gist of the alleged defamatory material is that contained in paragraph 12 of the statement of claim:
OK, well one of the cases for example is Derrance Stevenson who was found dead in a freezer at his home. In order to assist the investigation the pathologist was to calculate the time of death because, of course, that would narrow down the range of any possible suspect. In calculating the time of death he took a formula on each of the variables that was used in that formula could have been no better than guesswork.
With respect to this exchange, the following imputations are pleaded “in relation to the Stevenson murder investigation”:
16.In their natural and ordinary meanings the words of the fifth and sixth publications meant and were understood to mean that, in relation to the Stevenson murder investigation the plaintiff:-
16.1.In the course of providing expert pathological opinion in respect of a murder investigation used a formula without adequate foundation; and
16.1.1Guessed at variables which ought to have been the subject of accurate information to provide expert opinion;
16.1.2 Provided an opinion that had no basis;
16.1.3Was prepared to and did proffer an opinion as to the time of death which had no reasonable basis.
In the proposed defence, fair comment is purported to be set up as a defence in the following way:
Fair Comment
12.Further or in the alternative, if (which is denied) the fifth and/or sixth and/or seventh publications were defamatory of the plaintiff in any or all of the meanings pleaded by the plaintiff, then such meaning or meanings were conveyed as fair comment on a matter of public interest.
Particulars of Comment
12.1"each of the variables that was used in that formula could have been no better than guess work."
12.2To the extent that any or all of the imputations pleaded by the plaintiff are to be implied from, or arise by way of implication from, the words used by the defendant, then the imputations were conveyed as comment.
Particulars of Public Interest
12.3 The defendant repeats the matters referred to in paragraph 8.2 herein.
Particulars of Fact on which Comment was Based
12.4The following facts were stated or depicted in the fifth, sixth and seventh publications.
12.4.1One of the cases for example is Derrence Stevenson who was found dead in a freezer at his home.
12.4.2In order to assist the investigation, the pathologist was to calculate the time of death because, of course, that would narrow down the range of any possible suspects.
12.4.3 In calculating the time of death he took a formula.
12.4.4For example, he didn't know the time interval between the person's death and the time of placement in the freezer so, therefore, as the body cools down after death he couldn't actually have known the temperature of the body when it went in the freezer.
12.4.5He couldn't have known the temperature of the freezer when the body was put in there.
12.4.6If it had previously been on super freeze it would have been -28°C, and if it had been just on freeze it would have been -20°C.
12.4.7The plaintiff gave evidence for the prosecution at the trial of Szach for the murder of Stevenson.
12.4.7.1In that evidence, the plaintiff referred to the formula he applied to determine the time of death;
12.4.7.2The formula applied by the plaintiff was valid and had a scientific basis only in circumstances where:
12.4.7.2.1The body was lying flat and had been undisturbed;
12.4.7.2.2The body temperatures had been taken rectally;
12.4.7.2.3There had been no marked change in the environmental conditions to which the body was exposed.
12.4.7.3The plaintiff knew that this was the extent of the validity of the formula, and knew the formula was not valid in the Stevenson case as:
12.4.7.3.1The body had not been lying flat and had been moved;
12.4.7.3.2The plaintiff recorded liver temperatures and not rectal temperatures;
12.4.7.3.3The body had been subject to marked changes in the environmental conditions.
12.5The defendant also repeats and relies upon the facts pleaded in subparagraphs 7.1 to 7.6 above.
As to the eighth, the following allegedly defamatory words are seized upon, with respect to evidence given in two prosecutions, those of Peter Marshall and David Szach as follows:
19.1. “Peter Marshall 1992
Mr Marshall was found dead beside his bed, with some blood pooling around his head. Dr Manock visited the scene and said that Mr Marshall had died by falling out of bed and had possibly suffered a brain haemorrhage. He concluded that there was nothing suspicious about the death. During the subsequent autopsy, it was found that he had been shot in the head and that a bullet was lodged in his brain. By that time, of course, the murder scene had been tidied up.
19.2. David Szach 1979
This case involved Derrance Stevenson, a lawyer in Adelaide, who was found dead in his freezer at home. He had been shot. His young boyfriend was convicted of his murder. Dr Manock’s estimate of the time of death was wrong. He utilises scientific formula in an entirely inappropriate manner. He “made up” or guessed at most of the scientific variables which he used in this formula. He could not have not known the temperature of the body when it was placed in the freezer. He could not have known what the temperature of the freezer was at the time of the body’s placement there. He could not have known how long the body had been in the freezer. It just so happened that the “estimated time of death” was at the time when David Szach was known to be at the premises.
The imputations pleaded with respect to the eight publication are those contained in paragraphs 20 and 21 of the statement of claim, expressed in these terms:
20.In their natural and ordinary meaning the words of the eighth publication referred to in paragraph 19.1 above meant and were understood to mean that in relation to the case of Peter Marshall the plaintiff:-
20.1. Incorrectly determined the cause of death;
20.2. Incorrectly reached a conclusion about the cause of death;
20.3.Proffered an opinion prior to autopsy which was wrong and which compromised a murder investigation.
21.In their natural and ordinary meaning the words of the eighth publication referred to in paragraph 19.2 herein meant and were understood to mean that in relation to the Derrance Stevenson murder investigation the plaintiff:-
21.1. Inappropriately applied scientific formula in relation to calculating the time of death;
21.2.Guessed or fabricated important base information in calculating a time of death for the purpose of coming to a pre-conceived conclusion
21.3.Averted the course of justice by providing an estimate of time of death for which there was no reasonable basis with the purpose of impugning David Szach.
Finally on the topic of fair comment, the following pleas appear in relation to the Marshall and Szach cases, through paragraphs 17 and 19 of the proposed defence, respectively in relation to the eighth publication:
17.Further, or in the alternative, if (which is denied) any or all of the meanings alleged by the plaintiff in relation to the eighth publication as pleaded in paragraph 19.1 arise, then such meaning or meanings were conveyed as fair comment on a matter of public interest.
Particulars of Comment
17.1To the extent that any or all of the imputations pleaded by the plaintiff are to be implied from, or arise by way of implication from, the words used by the defendant, then the imputations were conveyed as comment.
Particulars of Fact on which Comment was Based
17.2 Marshall was found beside his bed with some blood pooling around his head.
17.3Dr Manock visited the scene and said that Mr Marshall had died by falling out of bed and had possibly suffered a brain haemorrhage.
17.4 He concluded that there was "nothing suspicious" about the death.
17.5During the subsequent autopsy, it was found that Marshall had been shot in the head and a bullet was lodged in his brain.
17.6 By then the murder scene had been tidied up.
Particulars of Public Interest
17.7 The defendant repeats paragraphs 8.2.1 and 8.2.3 herein.
Fair Comment – The Szach Case
19.Further or in the alternative, if (which is denied) any or all of the meanings pleaded by the plaintiff in relation to the eighth publication in 19.2 arise, then such meaning or meanings were conveyed as fair comment on a matter of public interest.
Particulars of Comment
19.1"Dr Manock's estimate of the time of death was wrong. He utilises scientific formula in an entirely inappropriate manner. He "made up" or guessed at most of the scientific variables which he used in his formula."
19.2To the extent that any or all of the imputations pleaded by the plaintiff are to be implied from, or arise by way of implication from, the words used by the defendant, then the imputations were conveyed as comment.
Particulars of Public Interest
19.3 The defendant repeats the matters alleged in paragraphs 8.2 herein.
Particulars of Fact on which Comment was Based
19.4 The following facts were stated in the eighth publication in paragraph 19.2:
19.4.1 The defendant repeats the matters alleged in paragraph 7.1 and 7.2 herein.
19.4.2This case involved Derrance Stevenson, a lawyer in Adelaide, who was found dead in a freezer at his home.
19.4.3 He had been shot.
19.4.4 His young boyfriend was convicted of his murder.
19.4.5 He [Dr Manock] could not have known the temperature of the body when it was placed in the freezer.
19.4.6 He [Dr Manock] could not have known what the temperature of the freezer was at the time of the body's placement there.
19.4.7 He [Dr Manock] could not have known how long the body had been in the freezer.
19.4.8 The estimated time of death was at the time when David Szach was known to be at the premises.
19.5The defendant also repeats and relies upon the facts pleaded in subparagraphs 7.1 to 7.6 above.
The respective submissions of the parties: fair comment
Mr Doyle for the appellant stressed the publications should be seen in total context as recognisable “opinion pieces”, or as publications containing readily recognisable expressions of opinion or comment. Given the importance of the defence of fair comment to the freedom of discussion and expression, a narrow approach should not be taken to this question, especially at an interlocutory stage. He proceeded to argue these publications can reasonably be inferred to be in the nature of deductions, inferences, conclusions, criticism, or matters of judgment, remark and observation, such that the impugned words would appear to a reasonable reader to be concludory in nature. He cited Channel Seven Adelaide Pty Ltd v Manock[18], approving passages from Cole v The Operative Plasterers’ Federation of Australia (NSW Branch)[19], O’Brien v Marquis of Salisbury[20] and Mitchell v Sprott[21], in support of these propositions.
[18] At [35] and [127].
[19] (1927) 28 SR(NSW) 62 at 67.
[20] (1889) 6 TLR 133 at 137.
[21] [2002] 1 NZLR 766 at [19].
Coming to the 1st to 4th publications, it was submitted none of the paragraph 10 imputations were expressed in the words of the publications, although he conceded the imputations “wrongly applied science’ and “had no basis”, were “not too far removed” from them. Even so, the submission was to the effect that all were inherently comment or opinion properly so characterised, and would in any event be understood as “opinion pieces on the quality of forensic evidence given by the plaintiff, and the state of the justice system in South Australia”.
As to the fourth, fifth and sixth publications, insofar as these involved conscious or deliberate conduct on the part of Dr Manock and might have appeared at first sight to be statements of fact, they could only have arisen by way of implicit conclusion, and hence were matters of comment or otherwise “patently inferences or conclusions”. The decision of the High Court in Channel Seven Adelaide Pty Ltd v Manock[22] was distinguishable, as unlike that case, the comments pertinent here were based on material set out in the publications.
[22] Above.
Turning to the fifth, sixth and seventh publications, the submission was, for the same reasons advanced in relation to the first four, that it was reasonably arguable the imputations were conveyed as comment. It was further contended the Master fell into error by approaching the issue of whether the assumed imputations pleaded could be seen as assertions of fact, by focussing on the form of the words rather than considering if they were impliedly conveyed as comment. Once again it was put that they should be seen as recognisable critiques of the evidence given by Dr Manock in a number of murder cases.
The defendant’s counsel then turned his attention to the submission that the statements were sufficiently indicated or referred to in the subject publication. The situation was that a defendant is entitled to plead the detail of those facts in support of the comment relied upon, once the matter complained of indicates in general terms the facts upon which the comment is based: Channel Seven Adelaide Pty Ltd v Manock[23]. Hence it was contended the Master erred in holding the defendant was not entitled to rely upon facts outside the broadcasts, in addition to those included within. The facts so identified are contained in paragraphs 8.3.4 to 8.3.11 in respect of the 1st to 4th publications, paragraphs 12.4.1 to 12.4.6 in respect of the 5th to 7th publications, and paragraphs 17.2 to 17.6 and 19.4.1 to 19.4.8 in respect of the 8th.
[23] At [52].
Further, even if they were not sufficient to allow listeners to form their own view about the comments expressed, it was argued that as the comments related to Dr Manock’s evidence given in public court hearings in the Szach and Marshall cases, they fell within the exceptional category of case explained by Lord Porter in Kemsley v Foot[24]:
Not all the public will see or read or hear it but the work is public in the same sense as a case in the Law Courts is said to be heard in public. In many cases it is not possible for everyone who is interested, to attend a trial, but in so far as there is room for them in the court all are entitled to do so, and the subject-matter upon which comment can be made is indicated to the world at large.
[24] [1952] AC 345 at 355, quoted by Gummow, Hayne and Heydon JJ in Channel Seven Adelaide Pty Ltd v Manock at [70].
As a consequence, paragraphs 8.4 (1st to 4th publications), 12.4.7 and 12.5 (5th to 7th publications) and 19.5 of the Defence (8th publication), which were struck out, validly pleaded or incorporated facts not expressly set out in terms in the publications themselves. Here again the alternative submission was made that even if the publications were insufficient to allow reasonable listeners to form their own views, as the impugned comments related to Dr Manock’s evidence during public court hearings in the Szach and Marshall cases, they fall within the exceptional category.
The submission of Mr Swan for Dr Manock, accepted the legal principles articulated by the appellant, but attacked the characterisation of the publications as a whole, as opinion pieces. He suggested it was a matter of looking at the meanings Dr Manock alleges were conveyed and determining whether they are arguably defensible, as expressions of opinion. It follows there is no point in pleading certain words “may be comment”, since the asserted comments have nothing to do with the plaintiff’s case, as pleaded. So far as the suggested “factual sub stratum” goes, he contended “these are not facts which were either referred to in the broadcast or were so notorious that the viewer could be aware of them.”
Likewise as to he fifth, sixth and seventh publications, detailed in paragraphs 11 to 17 of the Statement of Claim, the “essence of the publication relied upon by the plaintiff” could only be characterised as assertions of fact. This view is reinforced by the language used, that it was not the subject of any reservation or qualification, and was clearly proffered as “absolute assertion”. The purported particulars contained in paragraphs 12.4.7 and 12.5 of the proposed defence, do not refer to the facts published, and nor could they be so notorious or presented in a way that enable them to be seen as matters of comment. It follows they are not facts “which can be relied upon in respect of the defence of fair comment.” As to the eighth publication, Mr Swan advanced similar propositions; none of the particular meanings could be seen as comment, which given the language employed, failed to convey expressions of opinion, and clearly made unqualified assertions of fact pertaining to Dr Manock.
Legal principles: fair comment
There was a consensus from the bar table in relation to the principles emerging from the cases cited by counsel. The areas of disagreement between them really hinge upon the application of those principles to the facts. Those principles may be conveniently condensed as follows, first in respect of the defence of fair comment:
·a statement is more likely to be recognisable as a statement of opinion, if the facts on which it is based are identified or identifiable: Channel Seven Adelaide Pty Ltd v Manock at [4] per Gleeson CJ;
·a statement can be regarded as comment as distinct from allegation of fact, only if the facts on which it is based are stated or indicated with sufficient clarity to make it clear that it is comment on those facts: Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 at 192 per King CJ, quoted with approval by Gleeson CJ in Channel Seven Adelaide Pty Ltd v Manock at [6] and by Gummow, Hayne and Heydon JJ at [45];
·it is not the mere form of words used that determines whether an utterance is comment or not, as the most explicit allegation of fact may be treated as comment if it would be understood by the readers or hearers, not as an independent imputation, but as an inference from other facts stated: Channel Seven Adelaide Pty Ltd v Manock at [35] per Gummow, Hayne and Heydon JJ;
·the supposed comment must be with respect to a matter of public interest and it must be fair, that is one “a fair minded man might … reasonably form upon the facts on which it is put forward as being based”: Goldsborough v. John Fairfax & Sons Ltd. (1934) 34 SR NSW 524 at 532; Channel Seven Adelaide Pty Ltd v Manock at [90], C v L & Ors [2005] SASC 315 at [79];
·it is not necessary for the facts upon which the comment is based to be stated in the terms of the communication itself, provided the facts are "sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded": Channel Seven Adelaide Pty Ltd v Manock at [5] per Gleeson citing Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309 at 341 and per Gummow, Hayne and Heydon JJ at [52];
·when distinguishing comment from statements of fact, the Court must have regard to the actual words used, considered in the context in which they were published: Channel Seven Adelaide Pty Ltd v Manock at [11], [38]-[44], [122]-[131], Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 468-469, John Fairfax Publications Pty Ltd v O’Shane (2005) Aust Torts Reports 81-789; [2005] NSWCA 164 at [29], [40], [42]-[43].
The defence of fair comment: analysis
The key passages involved are first those taken from paragraph 5 of the statement of claim so far as first to fourth publications go. The subject matter of these related to the estimated time of death formulated by Dr Manock during evidence for the presentation against the accused Keogh, Van Beelen and Szach, as well as in relation to the death of Dr Duncan. The publications also referred to his evidence as to the likelihood of poisoning in an attempted murder charge against Mrs Emily Perry. Viewed in isolation, the central words bear every appearance of statements of fact. The material assertions “misapplication of the science”, “misuse of an existing scientific formula” and “he made it up”, are especially emphatic and unqualified. In terms those are clearly statements of fact: Channel Seven Adelaide Pty Ltd v Manock [25].
[25] Above at [39].
The basis upon which these and the other pleaded “comments” are said to be circumstantially based, gel into the premise that time of death could be estimated by using “a special scientific formula” which only worked if the bodies were flat, “(b)ut Stevenson’s body was bent over”. From this premise the publications proceed to the rather emphatic and gratuitous “… this was a complete misapplication of the science … he had to adjust the formula”, and “(H)e made it up”, and yet they provide no foundation for those assertions. No discernable connection is established between these and the premise. Nothing is identified as reasonably underpinning the leap involved in reasoning therefrom, to the effective claim of fabrication. Any reasonable fair minded reader would understand the premise, but was left in no position to judge if the supposed conclusions, were well founded or not. The significance of the body being found in the foetal position is not revealed. To adopt an expression taken from the joint judgment in Channel Seven Adelaide Pty Ltd v Manock[26], there “is a great gulf” between the material set out and the allegation of fabrication that follows. Nor is the “statement of fact … sufficiently indicated”: Peruan v North Queensland Newspaper Co Ltd[27] and Channel 9 South Australia Pty Ltd v Clarke[28]. And nor is it a situation where the underlying facts are so well known, or the subject matter was sufficiently in the public gaze, or sufficiently notorious in the Kemsley v Foot sense.
[26] Above at [86].
[27] Above at [340].
[28] [2007] SASC 309; 250 LSJS 321. 250 LSJS 321 at [6-7].
The exchanges relating to the other cases do nothing to sustain the particular words used in relation to Dr Manock’s evidence in the Szach case. The same considerations apply to the broadcast on Channel 7 on 23 May 2005 (Annexure “B”). The subject matter of criticism remained essentially linked to Dr Manock’s estimates as to cause of death, even though further cases were added to the list, including the Kapunda Road Royal Commission, the Chamberlain Case, Gerald Warren and Terry Akritidis. The insuperable leap forward from this material to “misuse of an existing scientific formula” and “he made it up”, remains exactly the same. It follows that the Master fell into no error by removing paragraphs 8.1, 8.1.4, 8.1.6, 8.1.7 and 8.4 of the proposed defence.
When it comes to the fifth, sixth and seventh publications, the exchanges initially concern the Szach and the Keogh cases (Annexure C) and then Keogh and Perry (Annexure D). The common denomination remains the expert evidence of Dr Manock in those cases, essentially as to cause of death. The nub in the alleged defamatory implications was that in the Szach case, he provided an opinion on that topic which had no basis. The context in Annexure C was this: (Radio Adelaide 101.5 Monday 4 October 2004 at 7.50 am):
Annie Hastwell: Well, take us through one of those cases that highlights what you say is the unjust setup in this state.
Bob Moles:Okay, well one of the cases for example is Derrance Stevenson who was found dead in a freezer at his home. In order to assist the investigation the pathologist was to calculate the time of death because, of course, that would narrow down the range of any possible suspects. In calculating the time of death he took a formula and each of the variables that was used in that formula could have been no better than guesswork. For example, he didn’t know the time interval between the person’s death and the time of placement in the freezer. So, therefore, as the body cools down after death you couldn’t actually have known the temperature of the body when it went into the freezer. Also, with the freezer, he couldn’t have known the temperature of the freezer when the body was put in there. If it had been previously on super-freeze it would have been minus 28 degrees, and if it had been just on freeze it would have been minus 20 degrees, that’s a significant difference.
In annexure D it was as follows (Defendant’s website sometime near to June 2005):
David Szach 1979
This case involved Derrance Stevenson, a lawyer in Adelaide, who was found dead in a freezer at his home. He had been shot. His young boyfriend was convicted of his murder. Dr Manock’s estimate of the time of death was wrong. He utilised a scientific formula in an entirely inappropriate manner. He “made up” or guessed at most of the significant variables which he used in the formula. He could not have known the temperature of the body when it was placed in the freezer. He could not have known what the temperature of the freezer was at the time of the body’s placement there. He could not have known how long the body had been in the freezer. It just so happened that the “estimated time of death” was the time when David Szach was known to be at the premises.
These convey significant additional information, which was that Dr Manock could not have known the temperature of the body or the freezer. These two considerations, in particular, constitute material differences between the first and second sets of publication. Moreover the particular sting inherent in the words “misapplication or misuse of science” and “he made it up”, are noticeably absent from these two publications, although the allegation of “guess-work” remains.
These exchanges are claimed to be justified on the various grounds summarised above, and especially the particulars contained in paragraph 12 of the proposed defence, together with the struck out paragraphs 12.2, 12.4.7 and 12.5. Those publications of 1 and 4 October 2004 lay an arguable foundation for the listener to understand the statement “no better than guesswork” was by way of comment. These are essentially the remaining particulars 12.4.1 – 12.4.6 inclusive, in contrast to the earlier publications which omitted this foundation and contained no reference to what the formula was or the implications if the body was not flat. Those contained in the deleted paragraphs 12.4.7 and 12.5 however, remain well outside the terms of the publications and therefore have no reference point to enable a connection to be made between the premise and the comment “ … each of the variables … could have been no better than guess work”. Even so a reasonable listener or reader has a discernable basis for forming the view that the “guess-work” was then, a statement by way of comment, or at least that is reasonably arguable, but not on the basis of those extrinsic publications. It must follow that the Master was correct in relation to removing paragraphs 12.2, 12.4.7, 12.5 of the proposed defence.
The eighth publication, uploaded onto the defendant’s website sometime prior to June 2005 (Annexure E), is summarised above. The defamatory imputations, in essence, entail expressions of an opinion as to cause of death in the Marshall case and giving fabricated evidence or evidence without basis in the Szach trial. The former paragraphs 17 and 17.1 were struck out as containing assertions of fact, as were paragraphs 19.1, 19.2, 19.3 and 19.5.
Here once again, the foundation that Dr Manock could not have known the temperature of the body or of the freezer, in the Szach case, are sufficient enough, arguably, to found the comment, or to be appreciated as founding the comment, he “guessed at most of the scientific variables which he used in his formula”, but not that “he made it up”. That being the case, paragraphs 19.1, 19.2, 19.3 and 19.5 were correctly struck out, however the defendant should be furnished the opportunity to replead, consistent with these reasons.
In regard to the Marshall case, the audience is told that upon “subsequent autopsy”, “it was found that he had been shot in the head” so that a justifiable basis is laid for the conclusion that Dr Manock had incorrectly reached a conclusion about cause of death by asserting “there was nothing suspicious”, so this is capable of being, or being seen by way of comment. Paragraphs 17 and 17.1 of the proposed defence should be reinstated accordingly.
The Pleadings: qualified privilege or Lange defence.
The defence of qualified privilege raised in relation to the first four publications, is pleaded as follows:
9.2The discussion of Government and political matters and the defendant's conduct in publishing the publication was reasonable in the circumstances.
Particulars of Discussion of Government and Political Matters
9.2.1In light of the public concerns expressed regarding the investigation of the investigation of the death of Derrance Stevenson and the prosecution and conviction of Mr David Szach the circumstances surrounding previous events and ongoing developments in the case were worthy of further inquiry and scrutiny.
9.2.2The ongoing interest and debate in relation to the performance of the plaintiff in forensic investigations and the evidence of the plaintiff continued to generate wide spread public debate.
9.2.3The concerns regarding the conduct of the plaintiff had been the subject of substantial debate in State Parliament prior to the broadcast of the various first to fourth publications including:
9.2.3.1On Wednesday 31 October 2001, the Honourable Sandra Kanck referred to the Four Corners report and said it "outlined 30 years of alleged mistakes made by Dr Manock … the 1971 Van Belan case, the 1981 Emily Perry case, the 1993 Coroner's report into the death of 9 month old Joshua Nottle and the 1998 Royal Commission into black deaths in custody all raise serious questions about the competency and professional conduct of Dr Colin Manock. … Even his own employer, Dr Jim Bonnin stated there were people who would claim that Dr Manock is not competent. Questions about Dr Manock's expertise were in the public area from 1971 with the Van Belan case …"
9.2.3.2 On Wednesday 31 October 2001, the Honourable Nick Xenophon moved:
"1. That this Council expressed its deep concern over the material presented and allegations contained in the ABC's Four Corners report entitled 'Expert Witness' broadcast on 22 October 2001 including Dr Colin Manock, Forensic Pathologist and evidence he gave from 1968 to 1995 in numerous criminal law cases.
2. Further this Council calls on the Attorney General to request an enquiry by an independent Senior Counsel, or a retired Supreme Court Judge, to report whether there are matters of substance raised by the Four Corners report that warrant further formal investigation.
3. That the Attorney General subsequently report, in an appropriate manner, to this Council on the allegations made in the Four Corners report and their impact on the administration of justice in the State."
And stated that:
"The question posed by the Four Corners program was that one forensic pathologist's mistake had prompted lawyers, medical experts and investigators to question the administration of justice over nearly three decades in this State in relation to a number of Dr Manock's findings … There were simply too many mistakes documented by Dr Manock and too many instances where serious questions were raised about his findings … This is an important issue in relation to the administration of justice in this State."
9.2.3.3 On 28 November 2001, the Honourable T Crothers said:
"There seemed to be something quite rotten in the State of Denmark relevant to the occupation of the Office of Forensic Pathologist in the State of South Australia by the now retired Dr Manock. an experiment indicated that in [Keogh's] case … Manock's theory is what it has always been; bullshit … This decision [in the death of infant Storm Deane] means that Dr Manock was incompetent, at least, on this occasion … in light of all the medical opinions … the opinion of Detective Fielding of the South Australian Police … and some common sense … I ask how is it possible with even just a modicum of common sense for anyone to say that Dr Manock's mistakes are only related to some lack of skill in a particular specialist area against the weight of all the evidence laid against Dr Manock. … The only apparent thing I can say is that this was all a big mistake by Dr Manock. … It is obvious that those responsible for this little child's [William Barnard] death escaped justice due to basic elementary mistakes made by Dr Manock and, again, the point must be made that this particular piece of incompetence, coupled with his mistakes, have nothing whatsoever to do with lack of skill in a particular specialist area … When I look at the Coroner's findings (in respect of the 3 infant deaths), I have to believe, at best, Dr Manock is incompetent, or at worst, he is an absolute liar. … Whoever killed Joshua Nottle escaped justice because of Manock's incompetence. Secondly, Dr Manock was the Senior Forensic Pathologist in this State. He claimed that he had the qualifications and skills to carry out the autopsies on these babies. Since the Attorney General and the Director of Public Prosecutions now say he did not have those special skills, how many other babies have been killed without the killers having been brought to justice. Thirdly, since the mistakes and incompetencies have not just related to the investigation of infant deaths … how many other people have escaped justice? An example of this could be the Szach murder, the …. bullet in the head case, and the Keogh case more recently. Fourthly, how many people are in prison because of Dr Manock's proven incompetence? This question, and this question alone, is sufficient reason why there must be an inquiry ….Does the Attorney General accept the following …
3. That the Coroner's finding that Manock's explanation for his failure to co-operate with police investigations were spurious, that is, Manock lied, is a matter of the gravest concern.
4. That Dr Donald's assessment that is, what you would expect of an 'untrained, inexperienced junior medical officer' refutes the explanation that Manock's mistake in infant cases are solely related to these cases?
… This Council calls on the Attorney General to request an inquiry by independent Senior Counsel or a retired Supreme Court Judge to report whether there are matters of substance raised by the Four Corners report that warrant further formal investigation. … enable justice to be done. … Innocent people may have served and, indeed, still may be serving long jail sentences for crimes they did not commit. … "
9.2.3.4On Wednesday 10 July 2002 wherein the Honourable Nick Xenophon again moved the motion he made on 31 October 2001.
9.2.3.5On Wednesday 4 December 2002 wherein the Honourable A J Redford referred to the criticism of Dr Manock in the Coroner's enquiry into the three infant deaths, the Four Corners report and the Perry case and said:
"Public confidence in the criminal justice system is fundamental to the very success of an open, tolerant and successful community. … raises some very important issues concerning the South Australian criminal justice system and, in particular, public confidence in that system. … As a result of that Coronial enquiry [into infant death] the following criticisms were made of Dr Manock:
(a) that he was not truthful;
(b) that he failed to properly record findings;
(c) that he saw things that could not be seen; and
(d)that serious crimes may well have gone uninvestigated as a result of Dr Manock's investigations.
… There is a perception in the eyes of the public concerning the role and performance of the Forensic Science Centre … Public confidence in our criminal justice system has, as a consequence of these and other factors, dramatically diminished since the former Attorney General stood up and said that an inquiry should not be held unless and until new evidence is produced. … "
9.2.3.6 On 27 May 2003 the Honourable A J Redford said:
"Will the Premier cause an immediate review of all cases and reports undertaken by Dr Manock to ensure other investigations are not unnecessarily delayed or adversely affected by misleading conclusions."
9.2.3.7 On 5 May 2004 the Honourable R D Lawson said:
"There have been claims which have received widespread publicity not only in this State but now throughout the country that the opinions and evidence of the Forensic Pathologist, Manock in many cases, were flawed or unreliable. … The investigative program Today Tonight (televised on Channel Seven in Adelaide on a number of occasions) has raised a series of significant issues which ought to be addressed…"
9.2.3.8 On 11 November 2004 the Honourable R D Lawson said:
"It was widely reported earlier this week that Dr Colin Manock appeared before the Medical Board and gave evidence. It has also been reported that in the course of the evidence Dr Manock made statements which are incompatible with, or at least at odds with, evidence given by him in at least one earlier criminal trial … My questions are:
(1)Has the Attorney General seen the evidence of Dr Manock or received a briefing on its effect? If so, what action does the Attorney General propose to take in relation to that evidence .."
9.2.4The publications related to matters which were relevant to the public of South Australia and, in particular, electors in that State:
9.2.4.1In determining and assessing the public concerns expressed in relation to the investigation of the death of Mr Stevenson and the prosecution and conviction of Mr Szach.
9.2.4.2In determining the role played by the members of the South Australian Parliament and other public officials in addressing those public concerns.
9.2.4.3In determining the adequacy and quality of the procedures undertaken by the State Forensic Science Centre.
9.2.4.4In determining the adequacy and quality of the procedures undertaken by the plaintiff in respect of the death of Mr Stevenson.
9.2.4.5In determining the adequacy and quality of the procedures undertaken by the plaintiff in his appointed capacity as Senior Director of Forensic Pathology at the State Forensic Science Centre.
9.2.4.6 In determining whether the administration of justice in the State was satisfactory.
9.2.4.7In determining whether the rights of Mr Szach, a person investigated and prosecuted by South Australian authorities, convicted by South Australian Courts and previously held in a South Australian correctional institution had been adequately and appropriately safeguarded.
9.2.4.8In determining whether more formal investigations and inquiries into matters which were the subject of the publications should be initiated or supported by the South Australian Parliament.
Particulars of Reasonableness
9.2.5Publication of those matters by the defendant by means of a broadcast on the Today Tonight current affairs program and on a website were appropriate and practical modes of communication of those public issues.
9.2.6The defendant had reason for believing the matters contained in the publication to be true.
Particulars of Basis for Belief as to Truth
9.2.6.1 In making his comments the defendant had regard to:
9.2.6.1.1Comments and observations from the following medical experts regarding the Szach trial:
9.2.6.1.1.1Reports dated 5 August 1994 and 12 September 1995 from Dr Richard Byron Collins, Independent Consultant Forensic Pathologist, B Med Sc, MBBS, FRCPA.
9.2.6.1.1.2Correspondence from Professor Bernard Knight, Professor of Forensic Pathology, Home Office Pathologist, Wales dated 14 July 1994.
9.2.6.1.2In addition, the defendant had regard to the comments and observations of various medical experts relating to other forensic investigations by the plaintiff; including the following experts:
9.2.6.1.2.1Professor Stephen Cordner MA, MB, BS, B Med Sc, Dip Crim, FRCPA, FRC Path, Professor of Forensic Medicine, Monash University and Director of the Victorian Institute of Forensic Pathology;
9.2.6.1.2.2Associate Professor Tony Thomas MC, BS, BSC, MSC, PhD, FRC Path, FRCPA, FFOP, Senior Specialist in Anatomical Pathology at Flinders Medical Centre, Associate Professor in Pathology at the Flinders University of South Australia, Associate Consultant in Cardiac Pathology at the Forensic Science Centre and Associate Chief Examiner in Anatomical Pathology for the Royal College of Pathologists of Australasia;
9.2.6.1.2.3Associate Professor Peter Scally, MB BS, FRANZCR, Associate Professor and Deputy Director of Radiology at the Princess Alexandra Hospital, Brisbane Queensland;
9.2.6.1.2.4Professor Malcolm McDougal Fisher, Professor of the Intensive Therapy Unit at the Royal North Shore Hospital in Sydney and Clinical Professor in Intensive Care Medicine at the Departments of Medicine and Anaesthesia at the University of Sydney, visiting medical officer at the North Shore Private Hospital at Sydney Adventist Hospital and Area Director for Intensive Care for Northern Sydney Area Health;
9.2.6.1.2.5Professor Anthony Ansford, MB ChB (Otago), MRACP, Dip CP (Otago), FRCPA; Former Director of Pathology Services in Queensland; Senior Pathologist in Forensic Pathology Scientific Services for Queensland Health;
9.2.6.1.2.6Associate Professor Gayle Spring MFA, RBI, FBCA, FIPT, Associate Professor of Scientific Photography and Program Leader of the Applied Science Photography Program at the School of Applied Sciences in the Department of Applied Physics at RMIT University of Melbourne and former director of Photographic Services in the Department of Pathology at the University of Texas
9.2.6.1.2.7Professor Maciej Henneberg PhD, DSc, FAIBol, Professor of Anthropological and Comparative Anatomy and the holder of the Wood Jones Chair in that respect at the University of Adelaide, Convenor of the Academic Board of the University and Head of the Department of Anatomical Sciences at the Medical School at the University of Adelaide;
9.2.6.1.2.8Professor Derrick Pounder MB, ChB, FRCPA, FFPath RCPI, MRCPath, FRC Path, FHKCPath, Professor and Head of Department in the Department of Forensic Medicine at the University of Dundee;
9.2.6.1.2.9 Harry Harding BSc (Hons), PhD, Forensic Scientist & Consultant.
9.2.6.1.3Comments and observations from the following lawyers regarding the Szach trial conducted by the plaintiff:
9.2.6.1.3.1 Mr K Borick QC;
9.2.6.1.3.2 Mr J Nader QC;
9.2.6.1.3.3 Mr T O'Gorman;
9.2.6.1.3.4 Mr T Percy QC;
9.2.6.1.3.5 Mr T Game QC.
9.2.6.1.4The discussions in the Legislative Council of the South Australian Parliament as referred to in sub paragraph 9.2.3 herein.
9.2.6.1.5 The transcript of evidence given by the plaintiff at the Szach trial.
9.2.6.1.6 Newspaper reports relating to the investigation into the death.
9.2.7The defendant took the proper steps insofar as they were reasonably open, to verify the accuracy of the material relied upon.
Particulars of Steps Taken
9.2.7.1 The defendant repeats the particulars to paragraph 9.2.6.
9.2.7.2The plaintiff (both directly and through his lawyers) had been given previous opportunities to respond publicly to the matters which were the subject of the publication.
9.2.7.3 The plaintiff had rejected or failed to take advantage of those opportunities.
Particulars of Opportunities and Rejections
9.2.7.3.1On 2 August 2002 the plaintiff's solicitors wrote complaining about a broadcast in 2002 in relation to similar matters. Channel Seven Adelaide Pty Ltd ("Channel Seven) by its solicitors responded on 8 August 2002 asking them to identify any statements in the broadcast which were untrue. Channel Seven did not receive any response to this letter.
9.2.7.3.2In the letter on 23 August 2002 from Channel Seven's solicitors to the plaintiff's solicitors, Channel Seven's solicitors advised that Channel 7 Seven was happy to interview the plaintiff. No response was received to this invitation.
9.2.8The defendant did not believe any of the matters contained in the publication to be untrue.
9.2.9The publication was a balanced discussion reasonably and proportionally adapted to the occasion of privilege.
9.2.10In the circumstances, it was not necessary that the plaintiff be given an opportunity to respond to the publication.
As to the sixth and seventh publications, qualified privilege is pleaded in this way:
13.Further, or in the alternative, the fifth, sixth and seventh publications were published on occasions of qualified privilege in that the publications constituted:
13.1 DELETED
13.2the discussion of Government and political matters and the defendant's conduct in publishing the fifth, sixth and seventh publications were reasonable in the circumstances.
Particulars of Discussion of Government and Political Matters
13.3 The defendant repeats the particulars in paragraph 9.2.1 – 9.2.4 herein.
13.4Publication of those matters by the defendant by means of an interview on Radio Adelaide and publication on the website was an appropriate and practical mode of communication of those public issues.
13.5In the circumstances, the fifth, sixth and seventh publications related to matters which were relevant to the public of South Australia and, in particular, electors in that State.
Particulars of Reasonableness
13.6The defendant had reason for believing the matters contained in the publication to be true and repeats the matters pleaded in paragraph 9.2.6 – 9.2.10 herein.
Then as to the eighth publication, qualified privilege is claimed as follows:
20.Further, or in the alternative, the eighth publication (as referred to in both subparagraphs 19.1 and 19.2 of the statement of claim) was published on an occasion of qualified privilege in that:
20.1 DELETED
20.2In respect of the publication as referred to in both 19.1 and 19.2, the publication constituted the discussion of government and political matters and the defendant's conduct in publishing the publication was reasonable in the circumstances.
Particulars
20.2.1The defendant repeats paragraph 9.2.1 – 9.2.4; 9.2.6 – 9.2.10 herein.
20.2.2Publication of those matters by the defendant by means of a website was an appropriate and practical mode of communication of those public issues.
The defences of qualified privilege or the Lange defence
In this instance, there were once again no major differences between the respective counsel for the parties as to the applicable principles; they differed on their application to the particular facts. Those principles might be conveniently summarised as follows:
·the Lange defence, having its source in the implied freedom of communication under the Commonwealth Constitution, requires a defendant to establish the publication in question is a communication concerning government and political matters, affecting the people of the Commonwealth: Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 567 and 571;
·the meaning of the expression "communication about a government and political matter" although imprecise, it is not one of the kind protected by the First Amendment to the United States Constitution: APLA Ltd v Legal Services Commissioner (NSW) (2005) 79 ALJR 1620 at [27] per Gleeson CJ and Heydon J;
·in considering whether the words complained of come within that expression, it is necessary to consider what constitutes such a communication, and whether the true nature and character of the publication should be characterised as a communication of that kind: Peek v Channel Seven Adelaide Pty Ltd: (2006) 94 SASR 196 at [14], Cornwall v Rowan (2004) 90 SASR 269 at [413];
·this question of characterisation is to be approached in a broad way according to what the ordinary reasonable viewer would understand the publication to be about at the time of the publication: Peek v Channel Seven Adelaide Pty Ltd at[14], [20], [88], [98], [107];
·the mere fact that the publication mentions political or government issue, or names politicians, or that the subject matter of the publication is a matter of public interest, of themselves do not mean the publication is necessarily a communication of or on a government and political matter: Peek v Channel Seven Adelaide Pty Ltd at [16], [19], [88];
·as the concept “communication on government political matters” derives from Chapters I, II and VIII of the Constitution, it does not encompass the exercise of judicial power of the Commonwealth by Courts invested with Federal jurisdiction: Peek v. Channel Seven Adelaide Pty Ltd (2006) 94 SASR 196 at [7], Herald & Weekly Times and Bolt v Popovic (2003) 9 VR 1.
Based on the application of these principles to the particular facts of this case, it was submitted on behalf of the defendant that the publications went beyond a criticism of the conduct as to Dr Manock in particular cases. Indeed, they extended to a criticism of a systemic nature, of the quality of forensic evidence given in this State, and the significance this held to citizens charged before the criminal courts in South Australia. It was submitted there were much broader concerns at stake, such as a number of innocent people going to gaol, the justice system failing to serve the public, ignoring its failures, the State’s chief forensic pathologist for over three decades not being properly qualified and making a “catalogue of bizarre findings” over that time.
Finally the point was made that the publications contained express calls for action in the political arena or by the Executive arm of Government, by reference to, for example, “none of this is news to the current State Government … but Premier Rann seems obsessed with the cost of a proper inquiry” and querying whether the Government and the Premier “were scared of what they might find if they went looking”, the role of the former Director of Public Prosecutions and to the stubborn refusal of politicians to address these problems, by establishing a formal inquiry.
For his part counsel for Dr Manock turned his focus on the proposition that this was a criticism of particular witnesses or particular cases, which could not possibly come within the established notions of political free speech. Criticism of particular criminal cases, it was submitted, “should be judged against the traditional tests for qualified privilege” and therefore lay outside the realm of communications touching governmental and political matters.
The Lange defence: analysis
The particulars said to sustain the discussion of government and political matters, suggest the evidence of Dr Manock, particularly in the Szach and Keogh cases, continues to “generate widespread public debate”. The defendant also points to several separate occasions when Dr Manock is mentioned by name in one or both Houses of Parliament. Based on these, it is said the publications “were appropriate and practical modes of communications of those public issues”. And he pleads to having a sound basis for believing the truth of those matters, those being set out in paragraph 9.2.6 of the proposed defence. Essentially these arguments are repeated with respect to the fifth, sixth and seventh publications (paragraph 13), as well as the eighth publication (paragraph 20).
As can be seen from the authorities summarised above, the mere fact that a publication mentions political or governmental issues, does not automatically mean the publication acquires the status of a requisite Lange communication. Nor in terms, is the material identified in this case, of a kind or as extensive as one would expect to see if there were wide spread public debate in the true Lange sense. The material relied on here is relatively thin in that respect and considerably thinner than it was in Chapman v Australian Broadcasting Corporation[29]. The occasions relied on are also repetitive. No force is gained by sheer weight of numbers. The common denominator of all the publications, is the expert evidence of Dr Manock with regard to time of death, as it may affect cause of death in a relatively small number of cases.
[29] Above.
An ordinary reasonable viewer or reader would hardly connect such a narrow focus with a systematic problem, still less one of Governmental dimensions. It is beyond argument that once properly characterised, the true nature of the publications did not constitute and could not be characterised as being on governmental or political matters. Insofar as there is a suggestion of political or executive intervention, such as by convening an enquiry, that does not serve to clothe them with the requisite governmental or political status. The publication must in terms, in substance and in form, be of that character, before the defence is attracted. A good deal more than is present in this case is necessary before that situation could come about.
In that respect an ordinary reasonable viewer could not have understood at the time of publication that those under consideration were directed to public debate or comment in relation to the state of forensic science evidence at large. Nor is a communication on the matter of public interest, necessarily a communication on a government or political matter. Although the question is not at all to be approached in a narrow way, it is insufficient that the subject matter relates to events or matters which attracts a measure of public debate. Even when there has been extensive or longstanding public debate, or both for that matter, it remains a separate question of substance whether or not the publication itself attracts the constitutional protection[30].
[30] Conservation Council of SA Inc v Chapman (above) 87 SASR 62 at 71 [17].
In the result the conclusion must inevitably be that the subject publications in this case, fall far short of what is properly characterised as “government and political matters”. Essentially they revolve around the quality of the expert evidence given by Dr Manock on the subjects identified above. On that view of matters, the Master was correct in striking out the relevant paragraphs, namely 9, 9.2 – 9.2.4.8 inclusive, 13 and 20 – 20.2.2 inclusive.
Damages: previously impaired reputation
The law of defamation recognises evidence of a plaintiff’s prior bad reputation, may serve to reduce the measure of damages otherwise awarded, based on the proposition that a plaintiff with a tarnished reputation has less to lose than a plaintiff of impeccable standing: Chappell v Mirror Newspapers[31], Plato Films v Speidel[32]. Evidence of specific misconduct on the part of a plaintiff, or of other defamatory publications, are generally not admissible towards that end: Carson v John Fairfax & Sons Ltd[33], Plato Films v Spiedel[34], Morosi v Mirror Newspaper Ltd[35], Australian Broadcasting Corporation v McBride[36], Chappell v Mirror Newspapers[37]. A recognised exception is with respect to proof of criminal convictions of the plaintiff: Goody v Odhams Press Ltd[38].
[31] [1984] Aust Torts Rep 68,943 at 68,952 (NSWCA).
[32] [1961] AC 1090.
[33] (1993) 178 CLR 44 at 99.
[34] [1961] AC 1090 at 1124 and 1125.
[35] [1977] 2 NSWLR 749.
[36] (2001) 53 NSWLR 430.
[37] Above at 68,953 to 68,955.
[38] [1967] 1 QB 333 at 340 to 344.
Even then, evidence of reputation must be confined to the sector of the plaintiff’s character, relevant to the libel: Hobbs v Tinling & Co Ltd[39]. There are suggestions in the authorities that findings made in open court, being matters of public record, may be employed as evidence of bad reputation: Amalgamated Television Services Pty Ltd v Marsden[40].
[39] [1929] 2 KB 1.
[40] 2002] NSWCA 419 at[1402] and Television New Zealand v Quinn [1996] 3 NZLR 24.
Such a plea is erected in paragraph 21 of the proposed defence, which the Master proceeded to strike out. It read:
Damages
21.The defendant denies the matters alleged in paragraph 22 of the statement of claim. The defendant says that at the time of the publication, the plaintiff's reputation as a forensic pathologist had been significantly impaired by the reason of the:
21.1Criticism of the plaintiff in the performance of his duties as Senior Director of Forensic Pathology at the State Forensic Science Centre as found by the Coroner in his findings into the infant deaths of Storm Deane, William Barnard and Joshua Nottle dated 25 August 1995:
21.1.1In respect to the death of Storm Deane the Coroner found:
"It is extraordinary that Dr Manock did not conduct further inquiries in order to either verify or exclude [a possible scenario of the death outlined by counsel assisting the Coroner] …. In these circumstances, it seems to me that the post-mortem examination achieved the opposite of what should have been its purpose – it closed off lines of investigation rather than opening them up."
21.1.2In respect of the death of William Barnard, the Coroner found:
"I am quite unable to accept Dr Manock's explanation … it is spurious … Dr Manock's conclusion basically caused the death to be written off as "natural" and the investigation of the death was basically cut off before it began. As I remarked in the Deane matter, the post-mortem examination basically achieved the opposite of its proper purpose, in that it closed off lines of investigation rather than opening them up."
21.1.3In respect of the death of Joshua Nottle:
"Dr Manock's diagnosis of a cause of death as "bronchopneumonia associated with multiple rib fractures" clearly prevented the establishment of a causative link between any non-accidental injury and death. Accordingly, in my view what should have been a homicide investigation became the investigation of an admitted serious assault. Dr Manock's investigation, and his subsequent report, provided innocent explanations for the most serious injuries found on Joshua's body, explanations which I am now satisfied were incorrect. In those circumstances, and in common with the other two cases, the post mortem examination basically achieved the opposite of its proper purpose in that it closed off lines of investigation rather than opening them up …I consider Dr Manock's explanation that he was waiting for further information from the Police to be spurious …"
21.1.4Criticism of the plaintiff in the published findings of the High Court of Australia in the case of Perry v The Queen (1982) 150 CLR 580 including a description of that performance as being an "appalling departure from acceptable standards of forensic science" (per Murphy J at 599).
21.1.5Criticism of the plaintiff in the Royal Commission into Aboriginal Deaths in Custody in respect of John Clarence Highfold wherein it was found that the cause of death was probably not the cause of death found by the plaintiff and that "Dr Manock has not made all relevant investigations and relied perhaps too far on assumptions that had not been satisfactorily proven."
21.1.6The discussions in Parliament as referred to paragraph 9.2 herein.
In this context, the Master referred to Australian Broadcasting Corporation v McBride[41]. She also referred to Morosi v Mirror Newspapers Ltd[42], in which the Court of Appeal confirmed the principle that evidence of reputation in defamation actions is limited to that part of the plaintiff’s life put in issue by the defamatory publication.
[41] (2001) 53 NSWLR 430.
[42] [1977] 2 NSWLR 749.
The submission at this point, was that the Master erred by holding the defendant was confined to evidence of the plaintiff’s reputation arising out of “his forensic pathology associated with murder investigations”. This defines the relevant field as evidence as to cause of death, excluding non-homicidal loss of life. It can be accepted there is no logical distinction between post mortems that just happen to result in murder charges and those that do not. The defendant’s complaint was that he was entitled to rely on evidence of reputation arising out of Dr Manock’s forensic pathology work generally, and certainly that associated with investigating deaths. The material relied on by him in this respect are said to be matters of public record, included findings and comments made in a Coronial Inquest, a judgment of a Justice of the High Court, a Royal Commission report and comments made in Parliament. It was submitted the confines set by the Master “drew an artificially narrow boundary”.
The submission mounted on behalf of Dr Manock was that the Master correctly applied established principle. In any case the particular matters relied upon in the defence, were not matters of general reputation, in no way related to the defamatory imputations, were too dated to be relevant, and in respect of comments made in Parliament, did no more than refer to questions raised by Members of Parliament, thus furnishing no basis for denting the reputation of the Dr Manock.
Damages: previously impaired reputation: analysis
In Australian Broadcasting Corporation v McBride[43], the alleged defamatory implications were that the plaintiff, a medical doctor, exposed women patients to danger. The defendant set up in mitigation that he did not have a good reputation in “the practice of his profession” and relied upon publications concerning findings of scientific fraud “in the testing of drugs used or to be used in the treatment of pregnant women”. It was held that because the proceedings related to his reputation as a medical practitioner treating his patients, any reputation for falsifying scientific experiments was not relevant on the question of mitigated damages. In that connection Ipp A-JA (Beazley JA agreeing) said this[44]:
In my view, the rule that evidence of bad reputation must be confined to the relevant sector of a plaintiff's reputation means merely that the evidence, to be admissible, must be relevant to that part of the plaintiff's reputation capable of being harmed by the defamatory material. This, as was recognised in O'Hagan v Nationwide News Pty Ltd[45], may be difficult to apply in practice.
[43] Above.
[44] 53 NSWLR 430 at 436 [28].
[45] [2001] NSWCA 302.
In separate reasons, concurring with the majority, Fitzerald A-JA posed the following “sector test” [46]:
Reference was made in O'Hagan to the imprecision associated with the "same sector" of activities test which is used in this context. At least some of the difficulty evaporates once its understood that the "same sector" test is a negative test to exclude irrelevant matters from proof in mitigation of damages, and that the ultimate test is whether the facts, matters and circumstances affecting a plaintiff's reputation which a defendant seeks to rely on in mitigation could rationally diminish the harm to the plaintiff's reputation from the defamatory imputation.
[46] 53 NSWLR 430 at 449 [106].
In the other case to which the Master specifically made reference, Morosi v Mirror Newspapers Ltd[47], a jury was directed at first instance to consider “the nature of the bad reputation that she had and the nature of the reputation that is injured or prone to be injured … ” by the defamatory material. The alleged defamation was one of promiscuity, whereas the matters of reputation were of dishonesty. The court considered “different kinds of bad reputation would have been a relevant matter for the jury to consider”[48].
[47] [1997] 2 NSWLR 749 at 800.
[48] [1997] 2 NSWLR 749 at 801.
In the case at bar, the matters raised in mitigation under the rubric of impaired reputation, include criticisms of Dr Manock in the performance of his duties by a Coroner in August 1995 (para 21.1), which did centre on cause of death and criticisms by Murphy J in Perry v The Queen[49], which did not, as well as criticisms in another Coronial report (undated) which did not go to those subjects. As mentioned above, the area of discourse relevant to reputation, touches Dr Manock’s expert estimates of time and necessarily cause of death[50].
[49] (1982) 150 CLR 580 at 599.
[50] Judgment 14 May 2007 para [89].
The Coroner’s report dated 25 August 1995, at face value seems to be in that category, as does the Royal Commission into Aboriginal Deaths in Custody (paragraphs 21.1 and 21.1.5 respectively). Proposed paragraphs 21.1 and 21.1.5 were therefore wrongly struck out. As to the judgment of Murphy J (paragraph 21.1.4), the exact quote from that case, was this:[51]
Forensic Evidence, the evidence particularly in relation to Duncan, but also of the other alleged poisonings including that of Mr. Perry, reveals an appalling departure from acceptable standards of forensic science in the investigation of this case and in the evidence presented on behalf of the prosecution.
[51] (1982) 150 CLR 580 at 599.
Earlier passages in his Honour’s judgment reveal the criticisms of the Duncan evidence he had in mind, went to admissibility rather than method or associated forensics[52]. The content of the evidence given by Dr Manock was summarised in the case by Gibbs CJ[53]:
A witness for the Crown, Dr. Manock, said that Duncan's symptoms, as described to him, were consistent with, but not specific for, the ingestion of lead arsenate. However, he saw no signs of heavy metal poisoning when he conducted an autopsy.
It follows that whatever the scope of the admissible reputation evidence, this was not in the event, within it. The Master was correct to strike down paragraph 21.1.4 of the defence.
[52] (1982) 150 CLR 580 at 596-597.
[53] Above at 584.
Finally the defendant called in aid the Parliamentary material earlier referred to (paragraphs 21.1.6 and 9.2). These, it may be fairly said, consist of the repetition of essentially the same cases as those referred to at various times in the subject publications. In the main they call for an inquiry. Their tenor and content is however quite different. Under cloak of parliamentary privilege, Dr Manock is attacked for, amongst other things, “mistakes…about his findings”, his theory in the Keogh case being “bullshit”, “at best…incompetent, or at worst…an absolute liar”, his opinions being “flawed or unreliable” and so on. None of these in terms, or by implication, relate to his opinions concerning causes of death. They are generalised and non-specific criticisms. In that situation, these fall outside proper limits, and were rightly excluded from the defence. In the result paragraphs 21.1.4 and 21.1.6 will remain excluded, whereas 21, 21.1, 21.1.1 – 21.1.3 and 21.1.5 must be reinstated.
Conclusion and orders
For these reasons, the appeal from the decision of the Master in this matter dated 14 May 2007 will be allowed, to the extent that the paragraphs 17, 17.1, 21, 21.1, 21.1.1 – 21.1.3 and 21.5 of the amended defence will be reinstated. The defendant should have leave to replead paragraphs 19.1, 19.2, 19.3 and 19.5 consistently with these reasons. Order 2 made by the Master remains intact. Otherwise the appeal is dismissed. The parties can now be heard as to any consequential orders necessary to give effect to these reasons, any questions of further amendment, the final terms of the orders to be made and as to costs.
It remains only to mention that these proceedings relate to publications going back as far as August 2002, that is six years ago. The litigation, instituted in early December 2005, remains bogged down in pleadings disputation. Those that went to the High Court were published in March 2004. The court was told, they too, are at a contentious pleading stage, currently being considered by another Master of the Court. One has to wonder at the efficacy of taking steps to strike out, especially in defamation cases. Of course that might serve in some instances to save unnecessary court time, but this was not suggested by counsel to be such a case. The Australian Law Reform Commission in its 1979 report no 11 “Unfair Publication: Defamation and Privacy” noted interlocutory applications of this kind were “standard features of defamation”, having the practical effect of denying vindication and producing not uncommon delays of four or five years[54]. So far as one can judge from the current litigation, this is just as true of this State, and not much has changed either. This intends no criticism of either counsel or party. On the contrary, they are fully entitled to pursue such remedies as the law permits. It is, rather, to question the value these days of procedures resulting in obtaining vindication too late to be effective and final resolution too protracted and delayed to do complete justice to either party.
[54] At paragraph 276.
25
0