Rogers v State of SA & Benham (No 2) No. Cicd-96-922 Judgment No. D3812

[1998] SADC 4009

GREGORY WILLIAM ROGERS v THE STATE OF SOUTH AUSTRALIA & DEAN MICHAEL BENHAM (NO 2)

Criminal Injuries
Judge Lunn

Introduction

The plaintiff has sued the defendants for compensation under the Criminal Injuries Compensation Act 1978 (“the Act”) based on one or more offences of criminal defamation by the 2nd defendant. Throughout the proceedings the 2nd defendant has been unrepresented, although he has taken, and acted upon, legal advice on certain issues which have arisen. The 1st defendant did not file a Defence and has taken little part in the dispute. Unfortunately, the plaintiff and the 2nd defendant have not complied with many of the Rules of Court applying to the proceedings and have failed to utilise a number of pre-trial procedures which, if pursued, would have reduced the complexity and length of the trial. In some respects it appeared as if the parties were treating the case as if it was a minor civil action in the Magistrates Court. While the amount in issue might have been appropriate for a minor civil action, Part V of the District Court Rules 1992 lays down requirements for this action which are very different from those of a minor civil action.

History of the proceedings

In August 1994 the 2nd defendant and his mother were jointly charged in this Court with criminal defamation in that on 30 December 1993 at Kyneton without lawful excuse they published defamatory matters concerning the plaintiff in the form of a letter knowing those matters to be false and intending to cause serious harm to the plaintiff.  There was a second count relating to a similar criminal defamation against the plaintiff’s wife arising out of the same letter, but that has no relevance to these proceedings.  On 21 June 1995, and on the eve of trial, the 2nd defendant pleaded guilty to these charges of criminal defamation and a nolle was entered against his mother.  Justice Lander then sentenced the 2nd defendant and in doing so delivered some sentencing remarks.

On 9 December 1996 the plaintiff instituted these proceedings under the Act seeking compensation in relation to the 2nd defendant’s criminal defamation of him. His Statement of Claim, wrongly called “Particulars of Claim was as follows:

“1.     The plaintiff is a male born on the 17th day of August 1951.

2...... On or about December 1993 or January 1994 the second defendant committed an act of criminal defamation against the plaintiff and the plaintiff’s wife Sharon Kaye Rogers.

3...... The second defendant drafted approximately 12 identical letters claiming to be sent by the plaintiff’s wife to various wineries in the Barossa Valley in the State of South Australia (hereinafter referred to as ‘the Said Letters’).

4...... The Said Letters described the plaintiff as being involved in adultery, deception, taxation fraud and also as a confidence trickster.

5...... The Said Letters stated that the plaintiff was ‘the worst most infectious bacterial parasite which can only be found at the bottom of the most unhygienic sewerage scum swamp’.

6...... As a result of the criminal defamation by the defendant the defendant was convicted of the charge of criminal defamation in the Central District Criminal Court in or about December 1994.

7...... As a result of the second defendant’s criminal defamation the plaintiff has suffered a psychological condition of anxiety and stress.  In addition the plaintiff’s pre-existing condition of Hodgkin’s Lymphoma was exacerbated as a result of the stress and anxiety caused by the second defendant’s actions.

8...... The plaintiff is a Director and Proprietor of Barossa Opals & Gifts Pty Ltd and as a result of the injuries sustained by him has suffered an economic loss.  In addition as a result of the Said Letters being sent to wineries in or about the Barossa area the plaintiff’s opal shop has suffered a decline in business and the plaintiff has suffered a consequential economic loss.

9...... The plaintiff has not and is not likely to receive compensation for any other source except what he may receive pursuant to this claim.”

On 31 July 1997 the 2nd defendant filed what purported to be a Defence to this Statement of Claim.  It was seventy six pages in length.  It incorporated a detailed narrative of the whole of the relationship of the 2nd defendant with the plaintiff much of which was irrelevant.  Although it was in gross breach of the rules of pleading, the plaintiff took no steps to challenge it.

The trial commenced before me on 12 February 1998. The plaintiff’s counsel opened, and conducted, his case on the basis that the 2nd defendant had been convicted of the offence of criminal defamation in relation to the twelve letters referred to in the Statement of Claim. However, various documents tendered in the course of the plaintiff’s evidence-in-chief caused me to query this. It then became apparent, and it was subsequently accepted by all parties, that the conviction on 21 June 1995 related only to one letter which had been sent to Henschke Cellars at Kyneton (“the Henschke letter”), but that there were eleven other similar letters which the plaintiff was alleging had been sent by the 2nd defendant to other wineries in the Barossa District at about the same time. These other alleged eleven letters did not form part of the criminal defamation for which the 2nd defendant had been convicted, and were each separate publications. As the plaintiff’s case to that point had been pleaded and conducted on the basis of treating the twelve letters as a conglomerate there was obviously an issue as to whether there was a claim properly under the Act before the Court in respect of any injuries suffered by the plaintiff as a result of the other eleven letters if they, or some of them, also could be proved to be offences of criminal defamation committed by the 2nd defendant.

After a short adjournment the plaintiff sought leave to amend the Statement of Claim to add claims in respect of eleven other offences of criminal defamation by the 2nd defendant for which there had been no convictions.  The plaintiff applied to amend in the following terms:

“Paragraph 2 - Substitute ‘acts’ for ‘an act’.

Add at the commencement of paragraph 3 ‘The second defendant without lawful excuse published defamatory matter concerning the plaintiff knowing the matter to be false and intending to cause harm to the plaintiff.  The second defendant drafted twelve letters.’

Paragraph 6 - delete the opening words ‘As a result of the criminal defamation by the defendant.’

Paragraph 7 - after the words ‘as a result of the second defendant’s criminal defamation’ insert ‘as referred to in paragraphs 2, 3 and 6 of these Particulars of Claim.’”

As actions under the Act for such offences were then out of time I reserved my decision on the application to amend and adjourned the trial. On 20 February 1998 I gave the plaintiff leave to amend as sought and published reasons for my ruling. I did not fix any time within which the amendments were to be made, but by Rule 53.12 they were to be made within fourteen days of the granting of leave. I also directed that the 2nd defendant have leave to file a fresh Defence to the Amended Statement of Claim and indicated that this Defence should comply with the rules of pleading. I intended that this new Defence should supersede the Defence filed on 31 July 1997. The plaintiff did not amend his Statement of Claim within the fourteen days allowed by R53.12, and the leave to amend thereupon lapsed. However, the 2nd defendant did file a new Defence on 18 March 1998 which was of a proper length and complied reasonably with most of the rules of pleading. It omitted the narrative which had made the earlier Defence such a prolix document. However, it only expressly pleaded to the allegations of the one act of criminal defamation which was the subject of the conviction and which it admitted, but it did not refer to the other eleven letters pleaded in the Statement of Claim. It was not submitted that the 2nd defendant had thereby admitted pursuant to R46.12(2) the facts alleged by the plaintiff about the other eleven letters. I deal later with why such a submission would have failed even if it had been made. After the Statement of Claim was amended the trial was conducted on the basis that the alleged publications of these eleven other letters by the 2nd defendant was in issue and had to be proved in some way by the plaintiff. The action was not pursued as a claim based on any offence of criminal defamation having been committed by an unidentified person.

On the resumption of the trial on 4 May 1998 I reluctantly allowed the plaintiff’s application for an extension of time to make the amendments for which leave had been given on 20 February and the trial then proceeded on the basis of that Amended Statement of Claim.  It was assumed that the new Defence was to stand as the Defence to the Amended Statement of Claim even though it had been filed before the Statement of Claim had been amended.  The plaintiff took no point about any alleged admissions in the earlier Defence not having been repeated in the new Defence.  The plaintiff subsequently abandoned paragraph 8 of the Statement of Claim.  The only evidence adduced by the plaintiff was his own evidence, two medical reports, which were tendered by consent, and various documents which were tendered.  From various interchanges which occurred between myself and the plaintiff’s counsel about various points arising during the plaintiff’s case it was clear that the plaintiff was aware that he faced potential difficulties in proving the publications of the other eleven letters by the 2nd defendant.  When the 2nd defendant was called upon for his case he indicated that on legal advice which he had just received he did not intend to give evidence himself.  He did not go into the witness box.

The dealings between the parties

There is no need to go into the history of the dealings between the parties in the detail which the 2nd defendant sought to open up.  I confine these reasons to what is necessary for my determination of the matter.  The plaintiff was born in 1951.  He is married to Sharon Rogers and they have four children.  He is a qualified accountant.  He had been a public servant, but in the mid 1980s he was invalided out of the Public Service because of Hodgkin’s Lymphoma and other health problems.  He met the 2nd defendant, who is much younger than him, in the later 1980s and they became good friends.  In October 1990 the plaintiff acquired an option to purchase a business then known as the “Australian Opal Company” and he invited the 2nd defendant to join him in that business.  The plaintiff and the 2nd defendant took out a lease of the business premises in their joint names.  The two of them entered into a contract as joint purchasers to acquire the business.  The plaintiff arranged for a company, Furnton Pty Ltd, to be acquired and for its name to be changed to Barossa Opals and Gifts Pty Ltd.  The plaintiff as an accountant understood the structures and arrangements which were necessary for the business acquired to be run through such a company.  The 2nd defendant did not, and still does not, understand the legal and accounting implications of what was done.  There is no doubt that in 1991 the business which had been purchased was run through the company, Barossa Opals and Gifts Pty Ltd, and that each of the plaintiff, his wife and the 2nd defendant acted as directors of that company and played various roles in its business.  Although the affairs of the company were not documented or recorded as they should have been at least until late 1991, all the parties acquiesced in what was occurring in the use of the company.  There may or may not have been a legally binding agreement between the plaintiff and the 2nd defendant about the ultimate share structure of the company, or their respective entitlements and those of the plaintiff’s wife to moneys from the company, but, if so, it was due to misunderstandings and a failure to attend to detail, and it was not through any malice or fraud by the plaintiff against the 2nd defendant.

In late 1991 there was a falling out between the plaintiff and his wife on the one hand and the 2nd defendant on the other hand which resulted in a break down of the business and personal relationships between them.  There were a number of arguments and considerable ill will was generated.  In January 1992 the plaintiff agreed to buy out the 2nd defendant’s interest in the company for $26,000 but only $20,000 of that amount was then paid.  The plaintiff and his wife later refused to pay the balance of $6,000 on the grounds that it was to be offset against alleged misappropriations from the company by the 2nd defendant which had only come to their attention after they had agreed to pay the $26,000.  The 2nd defendant sued the plaintiff for this $6,000 and a counterclaim by the plaintiff for the alleged misappropriations was struck out because the proper plaintiff on the counterclaim was the company and not the plaintiff personally.  The 2nd defendant obtained judgment for the $6,000 and subsequently it was paid by the plaintiff.  The plaintiff then caused the company to sue the 2nd defendant for $4,180 for alleged misappropriations by him from the company.  There was a trial of this in the Small Claims jurisdiction of Elizabeth Magistrates Court before Mr Carter SM who gave judgment on 31 March 1993 for the company against the 2nd defendant for $1,280 plus interest and costs.  An application to review this judgment was dismissed because it was out of time.  The company eventually enforced payment of the judgment and costs from the 2nd defendant.  Up until about August 1993 there were heated and acrimonious exchanges between the plaintiff and the 2nd defendant, but communications thereafter ceased.

On about 30 December 1993 Henschke Cellars at Kyneton received a letter purporting to be signed by Sharon Rogers in the following terms:

“Dear Sir/Madam,

I would like to take this opportunity to inform you of my husbands unscrupulousness.

Greg Rogers (who operates Barossa Opals and Gifts) engages in adultery, deception, taxation fraud and is a confidence trickster  (I only recently discovered his adulterous pursuits).  He likes to manipulate and use people to his own advantage and especially likes to ‘screw’ others for their money.

In my opinion he can only be compared to the worst, most infectious, bacterial parasite which can only be found at the bottom of the most unhygienic sewage (sic) scum swamp.

If you decide to trust this scumbag, then do so at your own peril!

Yours sincerely

Sharon Rogers”

This letter was written and published by the 2nd defendant and was the subject matter of his conviction for criminal defamation.  Some other letters in similar terms were also circulated to wineries in the Barossa Valley at about the same time.  I will deal with these other letters later.

The evidence of the plaintiff

I generally accept the evidence of the plaintiff, although his views were coloured to some extent by a deep-seated animosity towards the 2nd defendant.  He has become obsessive about various ongoing disputes with the 2nd defendant.

Publications of the letters

In his new Defence the 2nd defendant admitted that he had published the Henschke letter. Under Section 8(1a)(a) of the Act it is necessary for the plaintiff to prove beyond reasonable doubt the publication by the 2nd defendant of any other letters before he can be entitle to compensation under the Act in respect of them. The plaintiff’s evidence to prove such publications is indirect and somewhat tenuous. It is not for me to inquire whether there were any better means available to the plaintiff to prove their publications by the 2nd defendant.

Section 8(1a) provides:

“No order for compensation may be made (except by consent) on an application under this Act unless -

(a).... the commission of the offence to which the application relates has been proved beyond reasonable doubt ......”

It is necessary to consider precisely what this requires the plaintiff to prove and how it may be proved. The purpose of the Act is to provide compensation for victims of offences. “Offence” is defined in s4 of the Act as follows:

“’Offence’ means an offence, whether indictable or not, committed by one or more persons and includes conduct on the part of a person that would constitute an offence if it were not for that person’s age, or the existence of a defence of insanity.”

The operation of the Act is not limited to where there has been a conviction in a criminal court for the offence. However, under s8(1a)(a) the commission of the offence must be proved beyond reasonable doubt. The provisions of the Act allowing compensation to be ordered for offences which have not been the subject of convictions in the criminal court are obviously designed to ensure that the victims of offences are not deprived of compensation merely because there has been no conviction in a criminal court for such offences, but other than on the grounds of age and insanity, which are expressly recognised in the definition of “offence”, there is no warrant for interpreting the Act to mean that compensation can be ordered under it for an offence where a conviction would not have been obtained for it in a criminal court. Although I can find no reported authority on the point, this view of the Act means that “proof beyond reasonable doubt” in s8(1a)(a) of the Act is to be construed as not only the degree of proof which would be required in the criminal court, but proof based only on the evidence which would be admissible in a criminal court if there was a trial there of the offence by a Judge alone. Hence, on matters which go to proof of the offence under the Act, it is the rules of evidence as applicable in the criminal court which must be applied, and the privileges and rights which an accused person has in the criminal court must be recognised, in deciding what has been proved beyond reasonable doubt. Otherwise, it would be possible for an accused person to be acquitted in the criminal court on the evidence which was admissible there, but for the victim to succeed under the Act on the same offence if the civil rules of evidence and procedure were to be applied, even with the burden of proof being beyond reasonable doubt. In particular the accused is to have available to him in relation to the matters to be proved under s8(1a)(a) of the Act the same right to silence and the same presumption of innocence as he would have had if he had been brought to trial in the criminal court for offences of criminal defamation based on the letters other than the Henschke letter. It is for this reason that R46.12(2) could not be used to establish the offences.

It is not proved beyond reasonable doubt that there were eleven other letters in identical terms sent to other wineries.  Copies of five such letters were tendered.  No attempt was made to explain why the other six could not have been produced other than that the plaintiff did not have copies of them at the time of the trial.  While I accept that at some later time the plaintiff believed that eleven letters had been received by other wineries which were in similar terms to the Henschke letter, it is unclear on his evidence whether he actually saw them or was only told of them.  I do not accept that these letters which were not tendered are proved to have been in identical terms to the Henschke letter.

In order to prove that the eleven other letters were published by the 2nd defendant the plaintiff relied upon the following pieces of evidence:

1. What he had been told by others about the receipt of such letters and him having seen them.  This evidence was admissible as being relevant to his belief about such letters which gave rise to his psychiatric condition as an alleged result of them  However, such evidence was not admissible to prove the truth of what he was so told about them being received or about their precise contents.  Although no objection was taken to the limited admissibility of this evidence on the tender of the five letters, I later referred to it before the close of the plaintiff’s case.  At the time this exhibit was received the plaintiff’s pleaded cause of action was only the single act of criminal defamation for which there had been a conviction.  In respect of the proof of criminal offences, which is what is in issue here, the Court should for the reasons previously given not act on hearsay evidence for legally inadmissible  purposes, even in the absence of objection from the defendant, and this must be particularly so where there is an unrepresented defendant: R v Kelly (1975) 12 SASR 389 at 395;  A Child v Andrews (1994) 12 WAR 552. On this issue of publication the plaintiff’s oral evidence proves no more than that in about early January 1994 some wineries in the Barossa area were in possession of letters falsely signed in the name of his wife and some of those letters were generally similar to the Henschke letter.

1. Various comments made on 21 June 1995 by the Honourable Justice Lander in his sentencing remarks.  He did not refer expressly in those remarks to any letter other than the Henschke letter.  He did say:

......... “She (Mrs Rogers) did not write the letter, but, in fact, the letter was written by you and circularised to a number of different persons, including a number of wineries (page 2) .... you decided to embark upon this most cowardly and underhanded behaviour by publishing the letter to as many people as possible in the Barossa Valley ..... (page 3).”

These sentencing remarks were tendered by consent, but at a time in the trial when the Henschke letter was the only pleaded cause of action. Again no objection was taken to any limits on the admissibility of the remarks. They are not a “transcript of evidence” within s8(3) of the Act. Sentencing remarks are not reasons for judgment, and do not necessarily constitute findings by the Court: Shrubsole v Rodriguez (1978) 18 SASR 233 at 235. I presume that His Honour based these remarks upon some material which was before him either in the depositions or through the submissions of counsel. Neither those depositions nor what was said by counsel were put in evidence before me. They may or may not have constituted admissible evidence for the proof of publication in this action. (Under Section 6 of the Sentencing Act the Court is not bound by the rules of evidence in sentencing.) I do not consider that what was said by Justice Lander in those remarks can constitute evidence in this trial that any similar letters were circulated by the 2nd defendant to other wineries. In any event the statements relied on are ambiguous. It does not expressly say that the letter was circulated by the 2nd defendant, although it may have been written by him. It does not identify the wineries as being those referred to by the plaintiff, and those which will be mentioned in 3 below. Accordingly, what was said by Lander J does not constitute admissible evidence in this trial that the 2nd defendant in fact published any letter to other wineries.

1. The contents of the typewriter tape.  The plaintiff’s sister worked in an office where the 2nd defendant’s mother was a typist.  On 4 January 1994 the plaintiff with his sister examined in that office a tape from the typewriter used by the 2nd defendant’s mother and copied from that tape, inter alia, a sequential list of addressees of envelopes which had been typed on that typewriter.  The names and addresses of twelve wineries appeared on that tape consecutively, subject to one other name being included, and Henschke Cellars was in about the middle of the sequence.  I infer from the plaintiff’s evidence that these were the wineries which he contacted subsequently about the letter.  I am satisfied that an envelope for the Henschke letter, for which the 2nd defendant has admitted publication, was typed on the same typewriter and at about the same time as some similar envelopes addressed to other wineries.  The question is what, if any, inference can properly be drawn from this to prove that the 2nd defendant was likewise responsible for the publications of similar letters to the other wineries.

The plaintiff’s counsel submitted that an inference could be drawn against the 2nd defendant on this point by reason of his failure to give evidence in the trial.  The point was argued in the course of the course of addresses on authorities which were applicable to civil proceedings, eg Insurance Commissioner v Joyce (1948) 77 CLR 39; Bruggemann v Ace Nominees (1986) 41 SASR 25 at 34; Jones v Hameister (1976) 14 SASR 328 at 330-1, but on further reflection I consider that they are not applicable in aid of proof under the Act of the commission of an offence. As stated above the accused was entitle to the benefit of the right to silence which is a fundamental common law right in criminal proceedings: Ling v Police (1996) 188 LSJS 488 at 489-491.

However, the application of the right to silence is not an end to the point.  The failure of the defendant to give evidence can still be taken into account for the purpose of evaluating the other evidence which is before the court, and particularly where the case against the defendant is a circumstantial one: Weissensteiner v R (1993) 117 ALR 545 and other cases noted in “Criminal Law South Australia”, para 120.3. The typewriter was that used by the 2nd defendant’s mother in her place of employment. There is no evidence that the 2nd defendant himself ever used that typewriter or that he personally had access to it. There is some inference available on the evidence before me that the envelopes to the wineries were typed by Colleen Benham who had very much sided with her son in the disputes with the plaintiff and who also apparently bore some animosity towards the plaintiff. (I ignore what I saw of Mrs Benham in the courtroom during the trial: Angaston Hospital v Thamm (1987) 47 SASR 177 at 178-9.) The crux of publication in law is the sending, and not the writing, of the letter. It is not proved how the letters were sent and whether they were posted or hand-delivered. (I do not act on the plaintiff’s hearsay evidence about the Orlando letter.) On the evidence it is possible that Mrs Benham, or some other member or friend of the family, could have posted or delivered one or more of the letters to the other wineries even though it was the 2nd defendant who was responsible for the posting or delivery of the Henschke letter Likewise it is unknown whether, if any other member or friend of the family performed the act of publication, it was done in the course of a common purpose with the 2nd defendant to publish that particular letter. The inference that all the letters constituted a single enterprise would be stronger if it was shown that they were all received through a similar mode of delivery on about the same day, but on the evidence it is unknown how they were each delivered and it is possible that there could have been an interval of a week or more between the first and the last of such letters being delivered.

Under the rules of evidence applicable to a criminal trial I cannot use any propensity or similar fact line of reasoning in aid of proof that because the 2nd defendant published the Henschke letter therefore he published other similar letters.  For the reasons given in the preceding paragraph the plaintiff’s evidence is not such that it bears no reasonable explanation other than that the 2nd defendant published other similar letters, and therefore the threshold test for the admissibility of such propensity or similar fact evidence has not been satisfied: Pfennig v R (1995) 127 ALR 99.

On the whole of the evidence which is properly before me which bears on the alleged publications of the other eleven letters there is still a reasonable possibility available on that evidence that it was not the 2nd defendant who was responsible for the publication of each of those letters.  There are too many gaps and uncertainties in the evidence about the individual letters and their publications.  If there had been criminal charges in respect of them, each letter would have had to be the subject of a separate count, and each count would have had to be proved beyond reasonable doubt.  There may have been differences between the evidence relating to the counts.  This can not be overcome by lumping together the evidence about all of the publications which is what the plaintiff has done here.  In other words if there had been a trial by Judge alone in the criminal court before me of the 2nd defendant on eleven counts of criminal defamation relating to each of the alleged eleven letters, and the evidence adduced on this trial was the only evidence on that criminal trial, the 2nd defendant would have been acquitted on all eleven counts

No comment was made by the plaintiff’s counsel about the failure of the 2nd defendant to call his mother as a witness on his behalf.  Clearly she was in his camp, but she may well have elected to claim privilege concerning her involvement in the matter as the nolle which was previously entered against her does not prevent her again being prosecuted for criminal defamation.  In any event no inference is to be drawn from this to plug a crucial gap in the plaintiff’s case: Bruggemann v Ace Nominees (above).

1. Alleged admissions in the Defence of 31 July 1997.  This Defence was superseded by the new Defence filed on 18 March 1998.  A party wishing to rely on the contents of a superseded pleading must tender that pleading as part of its case: Copping v ANZ McCaughan Ltd, Perry J, 20/5/94, Jud No S4557, unreported. The superseded Defence was not tendered by the plaintiff. Counsel for the plaintiff made no express reference to any alleged admissions appearing in it until almost the close of his final address. The 2nd defendant made a tactical decision not to give evidence in the light of the case which he had to meet based on evidence adduced by the plaintiff. If the superseded Defence had been tendered as part of the plaintiff’s case, it may be that the 2nd defendant would have adopted a different course. Thus any admissions contained in the superseded Defence are not evidence which can be relied upon by the plaintiff.

Accordingly, I do not find it proved beyond reasonable doubt that the 2nd defendant published letters to any other wineries other than Henschke Cellars and thus that he had not committed any offence of criminal defamation against Section 257 of the Criminal Law Consolidation Act by any such other letters. The only cause of action which the plaintiff has proved is the one act of criminal defamation for which he was convicted on 21 June 1995, ie the Henschke letter in respect of which the essential elements of the offence were admitted by his plea of guilty.

Other issues

In case they become relevant on any appeal I deal briefly with other issues canvassed in relation to whether the letters to the other eleven wineries are proved to have been offences of criminal defamation by the 2nd defendant.  There can be no doubt that the contents of the letter, insofar as they were the same as the Henschke letter, were defamatory of the plaintiff who is a living person.  I reject the 2nd defendant’s plea that there was no intention to cause harm to the plaintiff.  The underhanded stratagem of falsely signing the letter in the name of the plaintiff’s wife was clearly malicious and designed to cause harm.  The 2nd defendant admitted in his final address that he regarded the decision of the Elizabeth Court on 31 March 1993 as unjust.  In publishing whatever defamatory letters he did he was intentionally seeking to cause serious harm to the plaintiff.

The 2nd defendant pleaded that the contents of the letters were true. To make out a defence under s257(2) of the Criminal Law Consolidation Act, on which the onus was on him under s5B of that Act, he had to meet the sting of the whole libel and to justify all of the imputations made: Sutherland v Stopes [1925] AC 47 at 78-80. He clearly failed to do so. I accept the plaintiff’s denial that he had never committed any acts of adultery or taxation fraud. I do not accept that the evidence of Mr Brewer established that plaintiff had unlawfully charged him for preparing his tax return when he was not entitled to do so. I accept the plaintiff’s explanation, which was supported by the contemporaneous invoice, that the charges were for accounting work and not for preparing the tax return. In any event charging for the preparation of taxation returns without holding a tax agent’s licence is not “taxation fraud”. Although the 2nd defendant canvassed many allegations of deception, confidence tricks and manipulation by the plaintiff, it is not necessary to go into them. They were not established on the evidence and the plaintiff’s reputation is untarnished. (If the matter had been properly pleaded in accordance with the Rules, the 2nd defendant would have been required to have given proper particulars of his plea of justification, and it is highly likely that the plea could have been struck out for failure to give particulars which could amount to an arguable ground of defence or alternatively many of the particulars would have been struck out which would have shortened the trial.)

Corroboration

The 1st defendant submitted that the plaintiff had not satisfied s8(1b) of the Act, which provides:

“Where an order for compensation is sought in respect of an offence, and no person has been brought to trial charged with the offence, the evidence of the claimant as to the commission of the offence, unless supported in a material particular by corroborative evidence, is not sufficient to establish the commission of the offence.”

The short answer to this point is that it is not the plaintiff’s own evidence which was relied upon to establish the offences and thus it need not be corroborated.  Alternatively, the corroboration is the evidence of the typewriter tape and the production of the letters addressed to some other wineries.

Conduct contributing

The 2nd defendant submitted that any award to the plaintiff should be reduced under s7(9) of the Act which provides:

“In determining an application for, and the quantum of, compensation, the Court must have regard to -

(a).... any conduct on the part of the victim (whether or not forming part of the circumstances immediately surrounding the offence or injury) that contributed directly or indirectly, to the commission of the offence or to the injury to the victim:

and

(b).... such other circumstances as it considers relevant.”

Conduct contributing under this subsection must be conduct which is reasonably proximate to the commission of the offence and not too remote from it.  The 2nd defendant claimed that the plaintiff’s correspondence to him, and his pursuit of the action in the Elizabeth Magistrates Court in March 1993, were malicious and so provoked and harassed him that he published the defamatory letter.  I reject that the plaintiff was malicious in his actions towards the 2nd defendant, and find that he was only taking legitimate steps to pursue his legal rights and those of the company.  Insofar as some of his language and allegations may have been heated, they were no more than would usually be expected in such a dispute.  If the defamatory letters had been written in the heat of the moment immediately upon some provocative conduct by the plaintiff, there may have been a basis to find conduct contributing.  However, the plaintiff’s conduct relied upon by the 2nd defendant occurred months before any letter was published by him.  The publication of any such letter by the 2nd defendant was a vindictive and malicious act on his part to exact revenge for wrongs which he perceived he had suffered at the hands of the plaintiff.  That cannot be conduct contributing under s7(11).  (Again if the case had been pleaded in accordance with the Rules, the 2nd defendant would have been required to have given proper particulars of the conduct upon which he relied upon under s7(11) and it is highly likely that the plea would have been struck out as not amounting to grounds in law to conduct contributing, and thereby have saved considerable time and expense at the trial.)

Assessment of damages

In late 1993 and early 1994 the plaintiff had a number of experiences, including being subjected to the criminal defamation  in the Henschke letter, which gave rise to him suffering an adjustment disorder with depressed and anxious moods.  The condition lasted for about two years, and was often of moderate severity.  His prior asthmatic condition was aggravated, he became anxious, and concerned for his safety, he could not sleep and he became obsessive about security and his disputes with the 2nd defendant.  This in turn caused a reduction of his social activities and arguments and friction within his family.  There was no evidence about, and I do not accept, that his pre-existing condition of Hodgkin’s Lymphoma was thereby exacerbated.  He did not receive any treatment for the adjustment disorder or its symptoms.  He has claimed no economic loss.

There is a major issue whether the adjustment disorder and its symptoms were caused by the Henschke letter for the purposes of him suffering a mental injury from that criminal defamation justifying an order for compensation under the Act. In the period of December 1993 and January 1994 the company’s shop and two vehicles at the plaintiff’s home were vandalised, his children’s dog was stolen, a letter was received from a funeral company in reply to a false request for information on a prepaid funeral plan and there were bangings on the house windows at night. The plaintiff believed that the 2nd defendant was responsible for these incidents as part of a campaign of terror and retribution against him. It is not necessary for me to make any findings about who was responsible for these incidents as it was not sought to make them causes of action under the Act in this action.

While all of these incidents, including the Henschke letter, were stressors which led to the plaintiff’s mental injury, I accept the opinion of Dr Lucas, a psychiatrist, that “the defamatory letter was a severe stressor” giving rise to the adjustment disorder. The problem is that neither Dr Lucas nor the plaintiff in their evidence differentiated between the Henschke letter, which is the only letter actionable under the Act, and the other eleven letters in similar terms which the plaintiff believed had been sent to other wineries. The plaintiff gave no evidence specifically referable to the effect of the Henschke letter upon him. He did not say when he had learnt of the Henschke letter in relation to learning of the other similar letters. Although it was not referred to in H K v State of South Australia (1997) 190 LSJS 174, the causa sine qua non test was recognised as still a valid negative test for the existence of a causal link by the High Court in March v Stramare Pty Ltd (1991) 171 CLR 506 particularly at 514-6 and 522. (This follows my similar ruling in Wardle v State of SA & Wardle, 25/11/97, Jud No D3714, unreported.)  Thus if it can be shown on the balance of probabilities that but for the publication of the Henschke letter the plaintiff’s pleaded mental injury would still have occurred, no sufficient causal link has been proved.  Here the consequences of that letter were no greater or different from the consequences of the other similar letters.  There is nothing which makes that letter stand out in any way from any other of the letters.  The mere fact that the Henschke letter has been proved to be an offence, but the others have not, does not mean that the effect of the other letters on him was any different from that of the Henschke letter.  If the other eleven letters had been published, or even some of them, but not the Henschke letter, it is probable that the plaintiff would have suffered the same adjustment disorder as a result of them.  Accordingly, on the causa sine qua non test the plaintiff has not proved the necessary causal link between the only proved offence of criminal defamation and the pleaded mental injury.

If the plaintiff had succeeded in sufficiently proving the necessary causal link between proved offences of criminal defamation and his mental injury, I would have assigned a numerical value to his non-financial loss under s7(8)(a)(ii) of the Act of 2 and awarded him compensation of $2,000. Counsel for the plaintiff did not ask for an award of aggravated damages.

The action is dismissed.  I will hear the parties on the issue of costs.