O'Neill v Australian Broadcasting Corporation, Roar Film Pty Ltd and Davie
[2005] TASSC 26
•22 April 2005
[2005] TASSC 26
CITATION:O'Neill v Australian Broadcasting Corporation, Roar Film Pty Ltd and Davie [2005] TASSC 26
PARTIES: O'NEILL, James Ryan
v
AUSTRALIAN BROADCASTING CORPORATION
ROAR FILM PTY LTD
DAVIE, Gordon
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: ORIGINAL
FILE NO/S: 135/2005
DELIVERED ON: 22 April 2005
DELIVERED AT: Hobart
HEARING DATE: 20, 21 April 2005
JUDGMENT OF: Crawford J
CATCHWORDS:
Defamation – Injunctions – Interlocutory injunctions – Principles on which granted – Whether prima facie case of negligence – Balance of convenience – Whether injunction should be refused because the defendant intends to plead certain defences – Issue of public benefit considered.
Church of Scientology of California Inc v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344; Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153, referred to.
Defamation Act 1957 (Tas).
Aust Dig Defamation [105]
REPRESENTATION:
Counsel:
Plaintiff: J E Green
First Defendant: A T S Dawson
Second and Third Defendants: D J Gunson SC
Solicitors:
Plaintiff: John Green
First Defendant: Murdoch Clarke
Second and Third Defendants: Gunson Williams
Judgment Number: [2005] TASSC 26
Number of paragraphs: 37
Serial No 26/2005
File No 135/2005
JAMES RYAN O'NEILL v AUSTRALIAN BROADCASTING CORPORATION, ROAR FILM PTY LTD and GORDON DAVIE
REASONS FOR JUDGMENT CRAWFORD J
22 April 2005
The plaintiff sued the defendants by a writ filed on 15 April 2005. The endorsement of claim states that he claims damages for defamation contained in a television program entitled "The Fisherman" which was broadcast at the Tasmanian Hobart Summer Film Festival during the first week of January 2005 and which the first defendant (the ABC) intends to broadcast on 28 April 2005. It also seeks an injunction to restrain the defendants by themselves, their employers or agents or otherwise from further publishing or broadcasting the defamatory material (in the endorsement referred to as "the said libel"). No statement of claim has yet been provided.
By an interlocutory application filed the same day, the plaintiff sought an interlocutory injunction restraining the defendants "from publishing (including broadcasting) the documentary known as 'The Fisherman' at least insofar as the said documentary states or implies that the plaintiff has been involved in the disappearance of the Beaumont children or any children other than the child for which he was sentenced for killing in November 1975, until after Judgment in this action" or further order.
It appears that the plaintiff has not seen the film it is intended to broadcast and the evidence disclosed little of its contents. Desirably I should have seen it. However, the defendants have conceded, for the purposes of the application, that the following imputations (which I will refer to as "the imputations") are capable of being conveyed by it:
1 That the plaintiff is a suspect in the disappearance of the Beaumont children.
2 That the plaintiff is a suspect in the murder of the Beaumont children.
3 That the plaintiff was a multiple killer of children.
I take the reference to the Beaumont children to be to three children from the same family who disappeared in South Australia many years ago, about which there has been much speculation published in the media over the years.
In his affidavit in support of the interlocutory application, the plaintiff stated that in November 1975 he was convicted of murdering a young child and sentenced to life imprisonment. (Life imprisonment was mandatory at that time.) Although he applied for parole some years ago, he has not been released from custody. However, he has again applied for parole and he intends to apply to the Court for resentencing shortly (a reference, no doubt, to resentencing under the Criminal Code Amendment (Life Prisoners and Dangerous Criminals) Act 1994). For many years he has been imprisoned at the Hayes Prison Farm.
By way of background, the plaintiff explained in his affidavit that at Hayes he became involved in the prison's worm farm and developed an interest and some expertise in breeding an insect called the African Night Crawler, meal worms, cockroaches and in the prison's rodent program. In 1999 he was contacted by the third defendant, Mr Davie, who claimed that he wanted to make a documentary about his activities at the worm farm. In a letter dated 7 September 1999, by which Mr Davie first contacted the plaintiff, Mr Davie explained that "according to media releases, you are a keen fisherman like myself and a long term serving prisoner in Tasmania" and that "these are the reasons that I would like to visit you". He wrote of talking to the plaintiff "about your experiences". Subsequently, they met on a number of occasions and the plaintiff gave Mr Davie permission to film his activities at the worm farm. From evidence tendered by the ABC, it appears that on 2 August 2001, an agreement between the plaintiff and Worm Farm Films Pty Ltd entitled "Personal Permission Form" was signed by the plaintiff. It referred to "exposure" of the plaintiff in footage of a documentary being produced by the company with the working title "The Worm Farm". The plaintiff agreed to allow his image, actions and voice to be recorded and/or transmitted and/or communicated in all media throughout the world. He agreed that he would not be entitled to injunctive or equitable relief because of any action or omission of Worm Farm Films Pty Ltd or its assignees or licensees. The evidence does not show what the relationship may have been between Worm Farm Films Pty Ltd and the defendants, but in any event, there was nothing in the agreement that could be construed as amounting to a consent by the plaintiff to the publication of material that was defamatory of him or an undertaking by him not to seek an injunction to prevent such a publication, unless perhaps the defamatory material was to be found in his own actions or words in the course of the production of the documentary.
Presumably, Mr Davie at least had some connection with Worm Farm Films Pty Ltd. The plaintiff's evidence was that at the time he signed the agreement he had been informed that the proposed film would only be about his activities at the worm farm and not about the crime for which he had been convicted, or any other allegations against him of a criminal nature.
In a letter from Mr Davie to the plaintiff that is likely to have been sent shortly after 24 March 2003, Mr Davie stated that "it was and still is my view that the person who was sentenced to imprisonment in 1975 is a different person to the one I have been visiting since September 1999" and he referred to "one of the best ways of portraying this fact".
In evidence was a clipping from the Mercury Newspaper published on 3 January 2005. It consisted of an article about the documentary, which was to be one of the highlights at a film festival that week. The documentary was described as following "former Victorian detective Gordon Davie as he interviews prisoner James O'Neill and tracks his path on the mainland before he came to Tasmania in the 1970s". Mr Davie was reported by the Mercury as saying that he thought that what he had read about the plaintiff in 1999 "showed a strong pattern of behaviour and [he] wondered if O'Neill could have committed other crimes before arriving in Tasmania". The article stated that the plaintiff had agreed to meet Mr Davie and over four years they built up a relationship. Mr Davie was reported as saying that he had started backtracking over the plaintiff's life and discovered a string of missing children in places where he had been. He referred to eight children who had disappeared. Although he claimed not to say that the plaintiff was responsible for the deaths, he expressed the hope that the film might cause the cases to be reopened, and then contradicted himself by saying that he was "convinced in my own mind".
On the face of the material presented by the plaintiff, he was badly misled and deliberately told untrue representations by Mr Davie concerning the proposed content of the documentary. But that is largely a background fact and has little relevance to the question whether I should exercise my discretion to grant an interlocutory injunction against the defendants.
Clearly, the imputations, if made with respect to the vast majority of members of the public, would be grossly defamatory, and if it was a publication for the first time, I would have no hesitation in granting an application such as the present one unless there were exceptional circumstances. However, before proceeding further to consider the merits of the application, it is appropriate to refer to a body of evidence that was tendered by the defendants.
In October 2002, the second defendant, Roar Film Pty Ltd, contracted with the ABC to produce the film. The second defendant owned 34.73 per cent of the copyright in the film and Film Finance Corporation owned the balance. The title of the film was to be The Worm Farm, unless changed following consultation. The film was to be provided to the ABC which, in return for a fee totalling over $114,000, exclusive of GST, was granted a licence to broadcast it.
The defendants sought to rely on copies of documents purporting to consist of interviews with the plaintiff conducted by the police in May 1975. One purports to contain a confession by the plaintiff to having abducted and violently killed a boy at Tarana on the Tasman Peninsula on 4 February 1975. That was the boy with respect to whose death the plaintiff was convicted of murder. Another document purports to contain a confession by the plaintiff to having abducted and violently killed a 9 year old boy in the vicinity of the eastern shore of the Derwent and Richmond on 26 April 1975. I was advised by the plaintiff's counsel that the confessions are not admitted by him. The defendants say that they will rely on those documents in the course of proving at the trial that the plaintiff has murdered at least two boys.
The defendants rely on the fact that similar, but far more detailed, imputations to the ones of which the plaintiff complains have been made to the public in recent times. Copies of articles in the Hobart based Mercury newspaper on 26, 27, 28, 29 and 30 January 2005, and 6, 7, 8, 11, 12, 13 and 15 April 2005, in addition to the one on 3 January 2005, to which I have already referred, were tendered. They contained many statements concerning the plaintiff, many of which are likely to have been highly defamatory. I will refer to some of them. The Tasmanian Commissioner of Police was reported as saying that the plaintiff could be responsible for the kidnapping of the Beaumont children in 1966 and that he was convinced that the plaintiff had murdered more children than the one of which he was convicted in 1975. The Commissioner was reported as saying: "He's got a real lust for kiddies. He's a multiple murderer." It was also reported that the plaintiff was wanted in Victoria on 12 charges involving the abduction and sexual assault of four boys in the 1970s and that the Commissioner had said that he was also a suspect concerning the disappearance and presumed murders of several boys and girls around Australia before 1974. However, South Australian police were reported as saying that they had found no evidence to support the plaintiff's involvement in the disappearance of the Beaumont children and that he had been discounted from their inquiries. Notwithstanding those denials, the Tasmanian Commissioner was reported as maintaining what he had said and of saying "he's killed plenty of other people", "he's a multiple murder" and "he would kill other kids, there is no doubt in the world if he gets out", adding "we discovered that in the fortnight prior to the second boy disappearing that there were probably four if not five other children picked up, taken to remote locations, and had managed to escape the person who abducted them and get away relatively injury free". He described the plaintiff as "cold blooded, psychopathic, a prolific liar … would seek gratification at all costs … no remorse, no emotion, no guilt".
Mr Davie was reported as saying "I know O'Neill has told other people he was responsible for killing the Beaumonts", referring to a denial by the plaintiff as a refusal to confess. Mr Davie was also reported to have said that the plaintiff had murdered more children than the one for which he was gaoled for life in 1975. A journalist, who was said to have worked with Mr Davie on the documentary, was reported to have made similar statements, adding that she was convinced that she knew where the Beaumont children were buried and that she wanted an investigation into the murders she believed the plaintiff had committed before being imprisoned.
Politicians became involved in the newspaper publicity. The Opposition justice spokesman called for the plaintiff to be immediately moved from the Gaol Farm to the security of Risdon Prison, demanding that the Attorney-General "guarantee the safety of O'Neill's accommodation arrangements to the people of the Derwent Valley". The Attorney-General was reported as saying that such calls were "scandalous". The Opposition spokesman was then reported accusing the Attorney-General of "breathtaking arrogance and potential recklessness" and challenging the Attorney-General to state publicly that she was personally satisfied that housing the plaintiff at Hayes Prison Farm posed no risk to the community.
It was reported in the Mercury on 8 February 2005 that the plaintiff was prepared to meet a reporter to establish pre-interview guidelines and to have an article based on an acceptable level for him, but the Director of Prisons prohibited the meeting. A reference was made in the Mercury to a political storm having erupted concerning a day-release program for prisoners which had allowed the plaintiff to fish for trout in the Derwent River accompanied only by his pet dog. The Opposition spokesman then called for a representative of victims of crime to be a member of the Parole Board for "appropriate balance", to which the Attorney-General retorted that the suggestion was insulting to existing members of the Board.
On 11 April 2005, the Mercury reported a claim by a man identified as Lionel, who stated that he had been picked up by the plaintiff in a car when a 10 year old and had escaped from his clutches.
On 7 April 2005, the Mercury newspaper published having received a letter from the plaintiff's lawyer complaining that the Mercury was attempting to keep him in custody through trial by media and that he considered it to be totally irresponsible and grossly unfair that he was being persecuted 30 years after his conviction. His lawyer said that he believed that he deserved a second chance if the Parole Board deemed him suitable for release.
Counsel for the plaintiff relied on the principles established in Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 619 and, in accordance with them, submitted that the plaintiff had shown that he would have a prima facie case for defamation against the defendants in view of the imputations that he is a suspect with regard to the disappearance and murder of the Beaumont children and a multiple killer of children. Acknowledging that the plaintiff's reputation has already suffered because of his conviction and imprisonment for murder and the publications that appear to have been made by the Commissioner of Police, Mr Davie, the Mercury and others, the plaintiff's counsel nevertheless submitted in effect that what is left of the plaintiff's reputation is likely to be injured by the proposed publication and that it is likely that some persons, more than before, will be induced to shun, avoid, ridicule or despise him because of it. See the Defamation Act 1957, s5(1)(a) and (c). He pointed out that the persons who will watch the ABC's broadcast are likely to include many people who would not have seen the Mercury's publications, particularly people in northern Tasmania. He also pointed out that the defendants had not sought to establish that they would suffer any inconvenience if the broadcast of the imputations was to be delayed until after the hearing of the action. On the other hand, he referred to the risk that the publicity might influence the minds of members of the Parole Board against him, when they come to consider his application for parole. I think that last submission has little merit, having regard to the extensive and earlier publicity the Mercury has already given to similar, and other, imputations concerning him and the integrity that he is entitled to expect from the individual members of the Board.
For the defendants it was submitted that to say of a convicted murderer of a child who was abducted by him that he is suspected of being responsible for the murder and abduction of other children, is unlikely to injure his reputation. Associated with that submission, it was argued that an imputation that a person is suspected of a crime is not as serious as one that the person is in fact guilty of it. Reliance was placed on what was said in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 292 by Mason J at 300 – 302, to the effect that to say that a person has been charged with a crime is to say that the person is suspected of committing it and does not impute that he or she is in fact guilty.
To say that a person is in fact a multiple killer of children is a much more damming statement, and far more likely to amount to defamatory matter, although once again it was submitted for the defendants that the plaintiff's reputation is already so bad that it is unlikely to have been further injured and, as I understood what was submitted, it is unlikely that other persons are likely to be induced to shun, avoid, ridicule or despise the plaintiff more than they already do.
Counsel for the defendants referred to Church of Scientology of California Inc v Reader's Digest Services Pty Ltd [1980] 1 NSWLR 344, Chappell v TCN Channel Nine Pty Ltd (1988) 14 NSWLR 153 and a number of English cases in support of the proposition that the power to grant an interlocutory injunction to restrain an allegedly defamatory publication should be exercised with great caution, only in very clear cases and usually not in cases where the defendant asserts that it has good defences. But as was made very clear by Hunt J in Chappell, there are no rigid rules relating to the question. I have an unfettered discretion.
Particular reliance was placed by the defendants on the statement of Hunt J in Chappell at 164, following upon what his Honour said in the Church of Scientology case at 351 – 352, that an interlocutory injunction will not usually be granted "where such an injunction would restrain the discussion in the media of matters of public interest or concern". It was submitted that the concept of "public interest" in other jurisdictions is effectively the same as the concept of "public benefit" in the Defamation Act. Counsel for the ABC, whose submissions counsel for the other defendants generally adopted, said that his client would plead the defence of truth and public benefit. See Defamation Act, s15. He said that his client would endeavour to prove that the imputations were true. Obviously there will be little difficulty in proving that the plaintiff is suspected of being involved in the disappearances and possible murders of the Beaumont children in the light of the Mercury's publications. Whether it can be proved that the plaintiff is a multiple murderer of children is not so clear. Counsel for the ABC asserted that it would be proved at the trial. Counsel for the plaintiff said that his client denied it.
I think that a greater problem for the defendants will be to establish that the publication of the imputations will be for the public benefit. The submissions of counsel for the defendants about the matter at the hearing were slight in substance and in content. It appears that was due to a belief that counsel for the plaintiff had conceded the issue of public benefit. I had not understood that such a concession had been made, but I agreed, at the request of counsel for the ABC, that written submissions about the topic would be allowed. Those submissions were received by me at a late point in time today, about which I make no complaint, for it is understandable. I have considered them but have not had time to respond in detail in these reasons. They do not persuade me to alter my conclusions.
For the information of counsel, I advise that a check of the relevant passage in the Court's recording of the hearing reveals what happened was as follows. Counsel for the ABC submitted that there was no difference between the concept of public benefit in this jurisdiction and the concept of public interest in other jurisdictions and he referred to a text and some authorities about the matter. Counsel then said:
"It's just two ways of saying the same thing. As his Honour Justice Higgins says, it's difficult to think of circumstances where one would be satisfied but not the other. And it's not a matter of controversy, and I don't think your Honour will hear my learned friend Mr Green suggest otherwise, that matters of crime are quite obviously matters of public interest."
At that, counsel for the ABC leaned over Mr Green, who nodded. Counsel for the ABC then said:
"My friend's indicated that we've agreed on that. Your Honour might regard that as a matter which is not in contest."
I do not consider by nodding, Mr Green conceded that it was not an issue that the publication of the imputations would be for the public benefit. By agreeing that matters of crime are matters of public interest is a far cry from conceding that the public dissemination by the media of all matters relating to crime, or matters concerning crimes allegedly committed by the plaintiff, will be for the public benefit.
My view is that, in general, it is not for the public benefit that the media should publicly allege that a person has committed crimes of which he or she has not been convicted, whether or not there are currently proceedings afoot with respect to the crimes. It is instead in the public interest that such allegations should usually be made to the public only as a result of charges and subsequent conviction. That the media on occasions makes such allegations is often referred to as "trial by media", of which it appears the plaintiff complained to the Mercury. However, so far as concerns the imputation that the accused is a multiple killer of children, a more appropriate description in this case would be "conviction by media". No suggestion of a trial, as we understand that word, will be involved here. Similarly, I can see no aspect of public benefit in the making public of allegations that the plaintiff was responsible for the disappearance and murder of the Beaumont children or that he is suspected of being responsible. The responsibility owed to the public with regard to the investigation of crime is entrusted by our society to the police and other public investigators and prosecutors. If there is evidence available that might assist the authorities to investigate the disappearance of the children in question, it should be made available to them. I have difficulty accepting that it is in the public interest that instead, such information be bandied about in public. There will, of course, be cases when in the light of prior public statements by the person who is being defamed, or the public conduct of that person, it will be for the public benefit to publish allegations of that kind to the general public, but I have difficulty seeing that this is such a case. It is sufficient to say that the claim of the defendants to "public benefit" may well be unsuccessful.
It follows from what I have been saying that I am unpersuaded that the granting of an interlocutory injunction restraining the defendants from publishing the imputations will "restrain the discussion in the media of matters of public interest", as that expression was used by Hunt J in Chappell's case at 164, applying, of course, the law's use of the term "public interest".
Counsel for the ABC also said that his client will plead the defence of fair comment that is available by virtue of s14(1)(a), (d) and (h). Counsel for the other defendants was not enthusiastic about the prospects of such a defence succeeding. Paragraph (d) concerns fair comment about the merits of a case. There is no reason to think that such an issue will arise at the trial of the plaintiff's action. Paragraph (h) concerns fair comment about a communication made to the public on any subject. I did not understand counsel to identify what the relevant communication was and I think that the defendants will have some difficulty at trial with the requirement for fairness. Counsel for the ABC said that par(a) is the most obvious paragraph that applies to this case, but I cannot see that it would found a defence, for it brings in the provisions of s13, none of which conceivably arise here.
The defendants also intend to plead qualified privilege pursuant to s16(1)(h), but as that defence requires public benefit to be established, its likely success is open to doubt. Counsel for the second and third defendants said that his clients will also rely on s16(1)(c) and possibly also (e). Paragraph (c) concerns a publication "for the public good". I think that a defence relying on that may have difficulty for the reasons I expressed when dealing with the question of public benefit. I regard par(e) as likely to be inapplicable in the circumstances of the case. Once again, it would raise the question of the public's interest or benefit.
The defendants submitted that delay by the plaintiff in taking proceedings should count against him. As I understand it, the period of the delay upon which they seek to rely is from an unknown date in January last until the commencement of the action on the 15th of this month. There is no evidence establishing when the plaintiff first knew of the intention of the defendants to publish the imputations that have been raised here. Counsel for the ABC referred to the contents of an article in the Mercury newspaper on 3 January last, but there is no evidence that the plaintiff was aware of it prior to the day upon which he commenced the action. I conclude that there is no evidence of relevant delay. Further, there is no evidence that the defendants have in some way suffered a detriment because of any delay on his part. The complaint of delay is unimpressive.
I find unpersuasive the fact that the plaintiff may already have been defamed by the public viewing of the documentary at the film festival in January and by the publications of the Mercury newspaper on a number of dates this year. That he may have been defamed before cannot justify the continuation of defamatory statements, notwithstanding that his reputation may have suffered badly as a consequence of the earlier ones. He has demonstrated a prima facie case that the publication of the imputations will amount to actionable defamation and in the absence of any suggestion of inconvenience to the defendants, an interlocutory injunction will be granted. Ultimately, a court, constituted either by a judge alone or by a judge with a jury, may find against the plaintiff or award him only nominal damages, but those possibilities are not persuasive to me when resolving the appropriate outcome for the application.
Nor do I find persuasive the argument that damages may be an appropriate remedy. Admittedly, if the plaintiff's case is sound, he has already been defamed to many members of the public and the publication intended by the defendants will merely add to that. Nevertheless, he is entitled to the law's protection and no suggestion was made by counsel for the defendants that if his action is successful, it is unlikely that the Court would be persuaded to restrain further publications of the imputations.
I infer that it is likely that in part. at least, the film has been produced by Mr Davie and the second defendant with a motive for commercial profit, and that in part at least, the ABC wishes to broadcast it to improve its ratings. Such considerations favour the granting of the injunction for the protection of an individual.
Much was said at the hearing by counsel for the defendants about the need to uphold and protect the freedom of the press. But like all freedoms, it is not an absolute one. The protection of individuals from the power and influence of the media is also important.
Orders
Upon the usual undertaking of the plaintiff as to damages having been given, it will be ordered that until judgment in this action or earlier order, the defendants are restrained by themselves, their servants and agents, from broadcasting or otherwise publishing to the general public any part of the documentary known as "The Fisherman" that imputes or implies that the plaintiff was responsible for or is suspected of being responsible for the disappearance or murder of children commonly referred to as the Beaumont children or that the plaintiff is a multiple killer of children.
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