Spencer v McKay
[2023] VCC 2238
•18 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
DEFAMATION LIST
Case No. CI-21-05224
| RENEE ANNETTE SPENCER | Plaintiff |
| v | |
| DAVID McKAY | Defendant |
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JUDGE: | HER HONOUR JUDGE CLAYTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4-8, 11 to 13 and 18 to 21 September 2023 | |
DATE OF JUDGMENT: | 18 December 2023 | |
CASE MAY BE CITED AS: | Spencer v McKay | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2238 | |
REASONS FOR JUDGMENT
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Subject:DEFAMATION
Catchwords: Defamation – where defendant is founder of religious organisation to which plaintiff’s daughter belongs – publication on YouTube by religious organisation about the plaintiff – whether plaintiff is identified – whether imputation that plaintiff is a worshipper of the devil is conveyed – whether imputation is defamatory – justification – substantial truth – contextual truth – whether contextual imputations are conveyed by publication – whether contextual imputations are substantially true – contextual imputations involve allegations about Nazis, criminals and persecution of Christian group – whether contextual imputations swamp imputation of devil worship - honest opinion – whether opinion honestly held – whether ordinary reasonable reader would understand imputation as expression of opinion – damages – aggravated damages – use of sensational language – use of graphic imagery – injunction
Legislation Cited: Defamation Act 2005; Evidence Act 2008
Cases Cited: Amalgamated Television Services v Marsden (1998) 43 NSWLR 158
Armstrong v McIntosh (No 4) [2020] WASC 31 (S)
Bazzi v Dutton (2022) 289 FCR 1
Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535
Brose v Baluskas (No 6) [2020] QDC 015
Callan v Chawk [2023] FCA 898
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351
Cassell & Co Ltd v Broome [1972] AC 1027
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245
Charan v Nationwide News Pty Ltd [2018] VSC 3
Chau v Australian Broadcasting Corporation (No 3) (2021) 386 ALR 36
Cornes v the Ten Group Pty Ltd & Ors [2012] SASCFC 99
Crampton v Nugawela (1996) 41 NSWLR 176
Farquhar v Bottom [1980] 2 NSWLR 380
Gatto v Australian Broadcasting Corporation & Ors [2021] VSC 83
Hanks v Johnston (No 2) [2016] VSC 149
Hardie v Herald and Weekly Times Pty Ltd [2016] VSCA 103
Herald & Weekly Times Ltd & Anor v Popovic(2003) 9 VR 1
Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33
John Fairfax & Sons Ltd v Hook (1983) 72 FLR 190
John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657
Jones v Skelton [1963] 1 WLR 1362
Lewis v Daily Telegraph Ltd [1964] AC 234
Massoud v Radio 2GB Sydney Pty Ltd; Massoud v Fox Sports Australia Ltd; Massoud v Commonwealth Broadcasting Corporation Pty Ltd; Massoud v Nine Digital Pty Ltd; Massoud v Nationwide News Pty Ltd [2021] NSWDC 336
Ley v Hamilton (1935) 153 LT 384
Morgan v Odhams Press Ltd [1971] 2 All ER 1156
Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388
Prendergast v Roberts [2012] QSC 144
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
Rush v Nationwide News Pty Limited(No 9) [2019] FCA 1383
Schiff v Nine Network Australia (No 2) [2022] FCA 1120
Slim v Daily Telegraph Ltd [1968] 2 QB 157
Srecko and David Lorbek v Peter King [2023] VSC 218
Stocker v Stocker [2019] UKSC 17
Wilson v Bauer Media Pty Ltd [2017] VSC 521
Webster v Brewer (No 3) [2020] FCA 1343
Judgment: Judgment for the plaintiff.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A Anderson | Sanicki Lawyers |
| For the Defendant | The defendant appeared in person | - |
HER HONOUR:
1This is a claim for defamation arising from the publication by the defendant of a video on a YouTube channel called “A Voice in the Desert”. The plaintiff, Ms Spencer, says the video conveyed an imputation that she is a worshipper of the Devil. She says this has caused her reputation harm, particularly among a religious group known as the Jesus Christians, of which her daughter is a member. She seeks damages and an injunction restraining the further publication of the video.
2The defendant is the founder of the Jesus Christians. He admits that he wrote the script for, and authorised the uploading of, the video onto YouTube. He denies that Ms Spencer is identified in the video, and denies the imputation is conveyed. If it is conveyed, he relies on defences of justification or substantial truth, contextual truth and honest opinion.
A note on titles
3The defendant informed the Court that he does not use a title such as Mr McKay, and the members of the Jesus Christians refer to each other by first name. His daughter, Christine Dunn, also informed the Court that she did not use a title. Accordingly, the defendant and the defendant’s daughter will be referred to by that nomenclature in these reasons. Witnesses called by the Jesus Christians will be identified by their first name in accordance with their preference.
The conduct of the trial
4The defendant was unrepresented at trial. He had assistance from his daughter and his son-in-law at the Bar table.
5At the outset, he requested a six-month adjournment due to the late provision of documents by the plaintiff.
6As those documents amounted to only a small bundle of new material, I did not consider an adjournment was necessary or appropriate. The defendant also late served discoverable documents.
7Throughout the trial the defendant raised concerns about the demands of the trial and the toll it was taking on him. In particular, he submitted that his mental capacity meant that he was sometimes unable to absorb information or to find the word he was looking for. He said his memory made it difficult for him to remember the answers to questions. He made a number of requests for adjournments. He said he was suffering from the early stages of senility.[1] He agreed that what he meant was that he was suffering the effects of age-related cognitive decline, that it took longer to process and he was slower in cognitive tasks than he once was.[2]
[1]Transcript (“T”) 502
[2]T502 – T503
8While I accept the defendant considered his cognitive abilities to be in decline, my own assessment of the defendant was that he was a competent and capable advocate for himself and understood what was happening in court. He asked appropriate and insightful questions. He took objections which, while not always upheld, demonstrated an understanding of the legal issues that govern the admissibility of evidence. For example, he made numerous objections on the grounds that evidence was hearsay. The fact that he could identify potential hearsay evidence gave me confidence that he was well able to defend the claim.[3]
[3]See for example T93, Lines (“L”) 3-18; T129, L10-30 and T176, L5-16
9He also asked, appropriately, for direction from me as to the correct time to put on evidence, make submissions and challenge submissions made by plaintiff’s counsel. Where I considered it appropriate, I provided direction to him about the appropriate parameters of cross-examination.[4] (When he did not understand he appropriately asked for clarification).[5]
[4]See for example T342, L12 – T343, L10
[5]See for example T44, L13 – T45, L8; T157, L15 – T160, L12; T181, L5 – T184, L26
10At one point a witness, who had previously been a member of the Jesus Christians but had left the group, gave evidence in which he made allegations about the defendant that were not relevant to the issues in dispute. The defendant said there was “a lot of slander” and sought that evidence be “struck from the record”. I explained to the defendant that the evidence to which he objected was inadmissible and would form no part of my reasoning,[6] but I was not aware of an ability to “strike” something from the “record” in Australian court proceedings.
[6]T659, L1-18
11I have no doubt that the trial was stressful and tiring for the defendant, however he was well prepared for both cross-examination of Ms Spencer’s witnesses and examination-in-chief of the witnesses he called, with orderly and logical questions. He put documents to witnesses by reference to the Joint Court Book (“JCB”), and tendered documents that assisted his case. It was clear from the manner in which he conducted his defence that he understood the elements of the defences he was required to prove.
12Nevertheless, throughout the trial, the defendant made frequent complaints about the difficulties he was experiencing.
13As his concerns about his mental capacity were raised on numerous occasions and as those concerns were at odds with my own observations, I informed the defendant that any application to adjourn on the basis of his mental capacity would need to be accompanied by expert material.[7]
[7]T397, L1-3
14I was mindful of my obligations to provide appropriate assistance to a self-represented litigant. However, I was also mindful of my obligations under the Civil Procedure Act 2010 to ensure a just, efficient and cost-effective trial. Delays in the trial inevitably increase costs and waste court resources.
15The initial trial estimate was five sitting days, which was probably always overly optimistic. The matter did not finish within that time. On Sunday, 10 September 2023, the day before the trial was due to resume for its sixth day, the Court received an email from the defendant as follows:
“Unfortunately due to my health I will be unable to attend court on Monday and the court dates will need to be rescheduled. Please see the attached medical certificate. Can you please acknowledge that you have received this and also let me know when the new dates are scheduled for? Thank you and I am sorry for any inconvenience caused.
I’m also attaching (by way of service) an expert witness certificate from Ruben Van Luijk.”
16Attached to the email was a document from the Northern Hospital which was titled “Ordinary Medical Certificate” dated 9 September 2023, signed by Ben Sheridan, who certified that the defendant was suffering from “a medical illness” and “will be unfit to follow his daily occupation from 9/9/2023 to 17/9/2023”.
17No further information or explanation was provided to the Court. Ms Spencer opposed any adjournment of the trial. Plainly, a medical certificate in these terms is entirely inadequate evidence upon which to obtain an adjournment mid trial.
18The Court informed the defendant that the Medical Certificate did not provide an adequate basis for an adjournment and court would resume, as scheduled, on 11 September 2023. The Court informed the defendant that any application to adjourn on medical grounds would need to be accompanied by a medical report from a treating doctor setting out diagnosis, prognosis and why the treating doctor considered the defendant unable to attend court. The doctor would need to be available to attend court, either in person or remotely, to answer questions about the capacity of the defendant.
19The defendant did not attend court on 11 September 2023. I was mindful that the defendant was unrepresented, and I had no information about his medical condition. In those circumstances I did not consider it was just to proceed in his absence when there was a prospect that he might be medically unfit to attend, notwithstanding the inadequacy of the material provided and the prejudice to Ms Spencer. Accordingly, I adjourned the trial to the following day to allow the defendant the opportunity to put on appropriate evidence.
20On 12 September 2023, the defendant provided to the Court a medical report dated 11 September 2023 from his general practitioner Dr Nicholas Nassios. Dr Nassios diagnosed the defendant with an adjustment disorder and depressed mood and said he was referring the defendant back to hospital for further assessment and that he was “unable to attend court for this reason today and likely the rest of the week”. The report attached medical records from the Northern Hospital.
21The defendant refused to provide the medical report or records to Ms Spencer. The Court then received an email from Christine Dunn, the daughter of the defendant. In the email, the defendant’s daughter informed the Court that her father was “currently being admitted” to hospital and had spent the night in emergency with very little sleep. She reiterated her father’s refusal to allow the plaintiff or her lawyers access to the medical report and records.
22I did not consider that Dr Nassios’ report provided sufficient evidence for me to be satisfied that the defendant could not attend court for the rest of the week. Numerous litigants with similar presentations attend this court every day in the course of running their claims. Without more, the evidence did not satisfy me that the matter should be adjourned. Further, by refusing to provide the material to Ms Spencer, the defendant was denying her the opportunity to make submissions on the adjournment sought.
23The trial resumed on 12 September 2023. The defendant’s daughter appeared via video link. She informed the Court that her father was “in the process of being admitted” to hospital.[8]
[8]T628, L6-7
24I adjourned the hearing and the adjournment application to 13 September 2023 for the reasons set out in my ruling of that date.
25For reasons that were not explained, after two days of resisting production of Dr Nassios’ medical report to Ms Spencer, the defendant provided the medical report. By email dated 12 September 2023, the defendant’s daughter informed the Court that her father had been admitted to the short-stay unit at Northern Hospital and was then transferred to Bundoora Extended Care. On 12 September 2023, the defendant’s daughter appeared by video link and requested an adjournment of the trial until 18 September 2023. She informed the Court that her father was in the psychiatric unit of the aged care facility and that he had no access to a phone or computer, his glasses or his hearing aid. Because he had been exposed to COVID, he was in an isolation ward. The defendant’s daughter informed the Court that it had not been possible to get reports or documentary evidence to put before the Court.
26Having regard to the information before the Court, the defendant’s lack of legal representation, and the ongoing costs Ms Spencer was incurring by having counsel and solicitors attend Court each day, only to have the matter adjourned, I considered the most appropriate course was to adjourn until 18 September 2023. I made orders that the defendant file affidavit material exhibiting all medical evidence upon which he relied on the question of costs, and all material upon which he relied should he seek any further adjournment.
27On 15 September 2023, the defendant’s daughter filed an affidavit. In that affidavit she said:
(a) Her father was moved to Bundoora Extended Care Centre (“BECC”) late on 12 September 2023;
(b) On 13 September 2023 at 11.15am, psychiatry registrar, Nicole Grant, certified that the defendant:
(i)appears to have a mental illness;
(ii)because the person appears to have a mental illness, the person appears to need immediate treatment to prevent:
·serious deterioration in the person’s mental or physical health
·serious harm to the person or to another person; and
(iii)if the person is made subject to an assessment order, the person can be assessed; and
(iv)there are no less restrictive means reasonably available to enable the person to be assessed;
(c) the duration of the Inpatient Assessment Order was the earlier of either twenty-four hours after the person is received at a designated mental health service or seventy-two hours after the Order is made, unless it was extended or revoked;
(d) between 2.00pm and 3.00pm on 13 September 2023 she visited her father at the BECC and became aware of the Assessment Order;
(e) at 4.55pm, the defendant’s daughter received a call from a psychiatrist at the BECC Mental Health Unit informing her that the defendant had been made a voluntary patient and was welcome to stay or leave. At 6.00pm, the defendant’s daughter received a call from a nurse to inform her that the defendant had left the unit. The defendant’s daughter said she had not heard from her father between the time of her visit to him between 2.00pm and 3.00pm on 13 September and swearing her affidavit on 15 September 2023. However, her mother had told her that the defendant “planned to get away for a few days” to catch up on sleep and to clear his head. The defendant’s daughter said she expected that “he is probably having a time of rest, prayer and reflection in relation to the trial and this will be good for him”.
28On 18 September 2023, the trial resumed with the defendant in attendance. No further medical material was provided. There was no further application to adjourn. As significant court time had already been lost, the parties agreed to proceed with the evidence and deal with arguments about the costs of the adjournment at a later date.
29The defendant continued to present as a competent and able litigant. He continued to take appropriate objections, and to ask for clarification.[9]
[9]See for example T661, L23 – T662, L1; T674, L19-25; T837, L30 – T388, L7; T990, L3-9; T991, L28 – T992, L3
30The manner in which he continued to cross-examine showed a fairly sophisticated understanding of the elements of defamation the plaintiff needed to prove and the elements of his defence that he needed to prove.[10]
[10]See for example T664 ꟷ T665 and T687 ꟷ T693
31Despite his brief admission to BECC, there was no indication during the remainder of the trial that the defendant was not competent to conduct his defence. After the close of the plaintiff’s evidence, the defendant gave a lengthy and detailed opening, setting out the way he put his defence, the submissions he would make and the evidence he would call.
32On 19 September 2023, after the defendant had made his opening arguments, he requested to give his evidence with his legs elevated and, if possible, from the Bar table. This was readily agreed to by counsel for Ms Spencer. The defendant asked whether, during cross-examination, he was able to take notes so that he could give further evidence in “re-examination”. Again, this was readily agreed to by opposing counsel. The defendant then asked for another “favour”. He said that, as a result of his religious beliefs, he was:
“… quite happy to say that I will try to be totally honest in everything I say today and I understand that there are penalties if I knowingly do not do that. The reason for wanting to word it that way is that I can’t honestly tell you that I would say the whole truth and I don’t think the court wants to hear the whole truth.”[11]
[11]T793, L28 – T794, L4
33I explained to the defendant that his option was to give evidence under oath or by way of affirmation but that, either way, his promise to the Court was to tell the whole truth. He said he would prefer to say “honest” but he could not say “whole” truth. He said this was “part of [his] honesty” and that he would give “the relevant truths”. He said, “what I’m going to affirm is not that I will tell the whole truth but what I say will be the truth”.[12]
[12]T795, L8-9
34I informed him that the oath or affirmation was not a negotiation, that everyone coming to court was required to take an oath or affirmation in the same terms and not in the terms with which they felt comfortable. The defendant said that the Court made allowances if a person spoke a different language and that there “was a day when you could not affirm and many Quakers went to gaol for not swearing because of what the Bible says”.[13] I informed the defendant that if he did not take the oath or affirmation he would be unable to give evidence.
[13]T798, L8-10
35I stood the matter down for fifteen minutes to give the defendant an opportunity to consider the implications if he was not to give evidence. When the trial resumed, the defendant informed me that he could not “lie and say that I will tell the whole truth”.[14]
[14]T798, L13-14
36Pursuant to s21 of the Evidence Act 2008, a witness in a proceeding must either take an oath or make an affirmation before giving evidence unless they lack capacity pursuant to s13. A lack of capacity may include that the person does not have the capacity to understand a question about a fact, does not have capacity to give an answer that can be understood, or does not have the capacity to understand the obligation to give truthful evidence. None of these exceptions apply to the defendant.
37The terms of the oath or affirmation are set out in Schedule 1 and each includes the words “the evidence I shall give will be the truth, the whole truth and nothing but the truth”. There is no discretion to alter or amend the terms of the oath or affirmation according to the preference of a witness.
38Accordingly, the defendant declined to give any evidence and denied Ms Spencer the opportunity to cross-examine him.
The publication
39On 7 June 2021, the defendant published a video on the YouTube channel “A Voice in the Desert”. The video was titled Strange Bedfellows.
40The video shows animations, still images, words and symbols, and is accompanied by a spoken commentary.
41In the video, the narrator quotes from the bible “Pilate and Herod were made friends together: for before they were at enmity between themselves”.[15] The narrator says Luke noted (in the bible) that Jesus:
“… also united people in ironic ways. Pilate and Herod did not get along – probably political opponents. But they were faced with a common enemy and that enemy was Jesus. Their mutual hatred for Jesus was not only able to overcome their other differences, but it led to a strange friendship as they became partners in crime of the worst kind.”[16]
[15]Schedule “A” (a transcript of Strange Bedfellows) of the Writ and Statement of Claim, dated 7 December 2021 at JCB 21
[16](Ibid) JCB 21
42The commentary then goes on:
“In some equally interesting ways, we Jesus Christians have been able, over the years, to unite many of our enemies through our commitment to the truth, as revealed in the teachings of Jesus. They hate our faith in Jesus, and they hate our lack of fear in the face of all their threats.
I want to tell you about a situation that is happening in several different places at the moment, which certainly takes the cake when it comes to strange bedfellows. Many of you would already know about Sheila and Jared Johnson in California who tried, many years ago, to kill one of our members, kicking him repeatedly in the head while he was unconscious on the ground. This member only survived when it became clear that the murder attempt was being filmed by a passer-by in the early morning attack. Nevertheless, the victim was rushed to intensive care and finished up with permanent brain damage because of the assault. To this day, the family is unrepentant, and they continue to demand an apology from their son for having joined our community.
But the point of this video is that Sheila Johnson is believed to have been in touch with other parents in their on-going hatred for what we teach. Bear in mind that the Johnsons are Black... African American Black, and staunchly proud of it. But now it appears that they have been at least indirectly working with another family that is fighting our community through such bizarre things as a faked ransom note in order to get the FBI to pursue us internationally on suspicion of kidnapping.
These other parents have boasted of their high standing in the Aryan Nations... a white supremacist terrorist organisation in the American Northwest. The husband bragged to us in writing that he was personally decorated by Richard Butler who organised a yearly ‘world congress’ of Klan members, Nazis and other white supremacists in his compound in Idaho, in the 1980s and the 1990s, as head of the Aryan Nations. The Kellys sell neo-Nazi paraphernalia, which can be seen popping up in extreme right gatherings all over the US.
So here you have two families, which could hardly be more opposite, both opposing us and working together to do it – one proudly Black and the other so proudly White that they hate Blacks everywhere. They do, however, have one thing in common, beside hating us. They both claim to be followers of Jesus Christ. Sheila preaches from time to time at her Pentecostal church in California and the Kellys refer to Richard Butler as ‘Pastor’ Butler. How is this possible?
Like Pilate and Herod, their hatred for each other was overcome by their mutual hatred for the Jesus whom we teach. The real Jesus exposes the hatred and hypocrisy of their false Jesuses – one Jesus that justifies kicking a man to death for no good reason, and the other Jesus justifies hating and killing Jews, Blacks and anyone else who does not conform to their so-called ‘historical’ Nazi beliefs. Well, their hatred for ourselves has forced them into bed together. Or should I say their hatred for Jesus and what he taught? It has, however, made them very strange bedfellows indeed.
Nevertheless, Jesus said that, in the last days, many – probably many millions – would claim to be following him when he has nothing to do with them and their evil deeds.
But the story gets worse. There is another parent – a mother in Australia whose daughter married one of our members – a Black member. This mother is a Luciferian – a Satanist, if you like. She insists that her love for Lucifer does not interfere with her respect for anything that Jesus may have said. But she has linked up with the Kellys in particular to pass on threats about how they are all going to use their various evil powers to stalk and torment us around the world. They have done so in writing.
There are other parents – mostly mothers – who have also conspired with this unholy trinity. But these three appear to be the main ringleaders, along with world-renowned cult-buster, Rick Ross.”[17]
[17](Ibid) JCB 21-22
43The commentary goes on to say that this video is a celebration of spiritual victory over “all of this insane hatred and over all of the demonic spirits operating through each of these family members”.[18] The narrator says “[a]ll the demons of hell are not enough for them to destroy that spotless Lamb of God whom we will follow to our death”.[19] He then encourages viewers to click on another video.
[18](Ibid) JCB 22
[19](Ibid) JCB 22
44The graphics that accompany the video include:
(a) crossed swords with the words “hate” on them in front of a shield with the words “faith, hope, love”;
(b) an embedded video showing an assault and an embedded video showing Sheila Johnson in a news interview;
(c) an embedded video showing a person rushed into an ambulance and through a hospital;
(d) an image of an unconscious injured person in a hospital bed from a news segment;
(e) an image of a world map and laptop with “Voice in the Desert” in a magnifying glass overlaid by a note “I DEMAND A RANSOM. PLAY BY MY RULES OR I WILL MAKE HER PAY WITH HER LIFE”;
(f) an image of a black fist commonly associated with “black power” overlaid on an image of the Johnsons;
(g) a photograph of the Kellys with a swastika and a Ku Klux Klan hood overlaid onto the photograph;
(h) images of Ku Klux Klan members;
(i) images of typing;
(j) stylised pictures of Jesus, Pilate, and Herod;
(k) large moving arrows with the words “[h]ate” inside them;
(l) a cartoon image of Jesus holding a gun with a cartridge of bullets slung across his chest;
(m) an image of Jews in a concentration camp, behind barbed wire, and a stylised image of Auschwitz;
(n) an image of a bed on which both photos of the Kellys and Johnsons are superimposed, with the swastika and black-power symbol, and the words “HATE”;
(o) a video scrolling through the Kellys’ website;
(p) images of people praying;
(q) an image of an eye, over which a dollar sign is superimposed;
(r) an image of the Australian flag, over which a stylised image of a short-haired middle-aged “motherly” woman is superimposed;
(s) a black symbol of triangles and lines;
(t) a picture of a naked man with large wings holding a sword or weapon;
(u) an image of a hooded figure in front of a pentagram in a circle, backlit in red;
(v) the words “‘My understanding is [our daughter] told you about our strong historical beliefs.’ — L. Kelly”;[20]
(w) the words “‘I know that Lucifer is intelligent and beautiful and we have much to learn from him; Lucifer is a catalyst for finding the true light of Christ.’ — Renee (mother)”;[21]
(x) stylised images of “demons” with gaping screaming mouths over an image of the motherly woman, superimposed over an image of the swastika and the photo of the Kellys;
(y) a map of the world with Nazi flags, superimposed with a photo of the Kellys;
(z) images of Rick Ross;
(aa) video footage of a woman jumping over a fence, getting into a car, being interviewed and standing in front of a lake;
(bb) stylised images of three women when the words “this unholy trinity” are spoken.
[20]Ex 29 – Subject video ‘Strange Bedfellows’
[21](Ibid)
45The graphics also include images of people laughing to accompany the words “laughing in the faces of people who think they can win an argument with the King of Kings and the Lord or Lords”[22] as well as generic imagery of Jesus.
[22](Ibid) JCB 22
46The video was also uploaded onto the Voice in the Desert Facebook page, a video sharing website known as Odysee and a video sharing website known as Vimeo.
47The defendant admits he published the video and that it was downloaded and viewed by people in Victoria and elsewhere in Australia.
The issues
48This case involves a plaintiff whose daughter joined a religious group. Ms Spencer considers that the religious group is a coercive cult. Ms Spencer has become estranged from her daughter and believes that the estrangement has been orchestrated by the defendant in his capacity as the leader of that group.
49There are a number of email exchanges that demonstrate the intensity of the negative feelings Ms Spencer has about the defendant, and her perception he is exerting coercive control over her daughter.
50The defendant also has very strong feelings that he and his group have been, and continue to be, persecuted by parents such as Ms Spencer, who are unable to accept their adult children’s decision to join the Jesus Christians. He submits this litigation to be a continuation of the harassment to which he feels he has been subjected. He submits that calling the Jesus Christians a cult is defamatory. He pleads that damages should not be awarded to Ms Spencer, but should be awarded to him for the stress and inconvenience caused to him by having to defend a case he believes was motivated by malice.
51This litigation is not an inquiry into the Jesus Christians. It is not part of my role to determine whether the group is, or is not, a cult, nor to opine on the meaning of a “cult”. It is not part of my role to assign blame for the deterioration of Ms Spencer’s relationship with her daughter, except to the extent that it impacts on any assessment of damages.
52It is not part of my role to determine whether Ms Spencer’s views of the defendant’s conduct are true. Where I refer to Ms Spencer’s perceptions about the defendant to explain findings I make, it should not be seen as an endorsement of those views.
53The only relevance of the practices of the Jesus Christians to this case is where they have a direct bearing on the issues I must determine. My role is to make findings of fact only to the extent necessary to reach my decision on the issues in dispute.
54There is no claim before the Court by the defendant in defamation and therefore there is no capacity for the defendant to be awarded damages.
55A great deal of evidence was given and a great number of documents were tendered that enabled me to understand the background to the publication of the video. I have carefully read the material tendered, and have reviewed the transcript of the evidence. However, I will only refer to evidence and transcript where it is necessary to explain these reasons.
56The issues that I must determine are whether:
(a) Ms Spencer is identified in the video; if so
(b) the imputation that Ms Spencer is a worshipper of the Devil is conveyed; if so
(c) if the imputation is conveyed, it is defamatory of Ms Spencer; if so
(d) Ms Spencer is a worshipper of the Devil (“justification defence”); or, if not,
(e) Ms Spencer is in direct communication with a neo-Nazi family and has coordinated with them to persecute a Christian group (“first contextual imputation”); or
(f) Ms Spencer is part of a larger international group of parents, influenced by anti-“cult” campaigners, who have coordinated their efforts to persecute a Christian group in which their adult children have been involved (“second contextual imputation”); or
(g) Ms Spencer communicates with, and is willing to associate with, those involved in a serious violent assault against a member of a Christian group; (“third contextual imputation”); and
(h) if any of the contextual imputations are made out, they swamp the imputation that Ms Spencer is a worshipper of the Devil (“contextual truth defence”); or
(i) the defendant honestly believed Ms Spencer does worship the Devil and it was in the public interest for him to express his honest opinion (“honest opinion defence”); and
(j) If none of the defences have been made out, what damages Ms Spencer is entitled to.
57For the reasons that follow, I am satisfied that:
(a) Ms Spencer is identified in the video;
(b) the imputation that she is a worshipper of the Devil is conveyed;
(c) the imputation is defamatory of Ms Spencer;
(d) Ms Spencer is not a worshipper of the Devil;
(e) the first contextual imputation that Ms Spencer is in direct communication with a neo-Nazi family and has coordinated with them to persecute a Christian group is conveyed. It is not substantially true;
(f) the second contextual imputation that Ms Spencer is part of larger international group of parents influenced by anti-“cult” campaigners who have coordinated their efforts to persecute a Christian group in which their adult children have been involved, is not conveyed;
(g) the third contextual imputation that Ms Spencer communicates with, and is willing to associate, with those involved in a serious violent assault against a member of a Christian group, is not substantially true;
(h) the imputation that Ms Spencer is a worshipper of the Devil was not an honest opinion held by the defendant;
(i) Ms Spencer is entitled to damages in the amount of $85,000.
Is Ms Spencer Identified in the video?
58Ms Spencer says she is identified in the photograph in the following ways:
(a) a stylised image of her face and head is shown;
(b) her first name, Renee, is written on the screen;
(c) the Australian flag is shown in the background when she is being referred to;
(d) she is a “mother in Australia”, as identified in the video;
(e) her daughter married a Black member of the Jesus Christians;
(f) there are few Black members of the Jesus Christians and no other Black members who are married to people with Australian mothers.
59The defendant, in his pleading, denies that the publication is of and concerning Ms Spencer. However, he goes on to say that, although he does not deny she is the “Renee” mentioned in the video, and says the quote shown on the screen was from her, it would be difficult for viewers to identify her from what was shown in the video, as the photograph was not of her.
Findings on identification
60I accept that the photograph of the “motherly” woman is not a stylised photograph of Ms Spencer. It was taken from a stock photograph of a middle-aged woman ironing. Whether the image was intended to represent Ms Spencer, or intended to represent a motherly stereotype, is not relevant. On its own, the image would be insufficient to identify Ms Spencer.
61However, the use of her name, Renee, and her identification as an Australian mother whose daughter married a Black member of the Jesus Christians, is sufficient to identify her to people who knew her first name and that she had a daughter involved in a religious group, as well as to people within the Jesus Christians. Even without the name “Renee”, I am satisfied that Jesus Christians would know the person referred to was Ms Spencer, as she appears to be the only Australian mother with a member married to a Black man.[23]
[23]Evidence of Joseph Johnson at T845 – 846; Evidence of Daniel Reiher at T601, L21-31; Evidence of Christian Stevens at T886, L19-25
62I am satisfied, on the evidence, that Ms Spencer had met most, if not all, the Jesus Christians in Australia. She had met them at the wedding of her daughter, Ellicia to Joseph Johnson; when she visited Ellicia in Blacktown on her way to and from Brisbane in 2018; when she visited Ellicia and other Jesus Christians in Sale in 2019 and when she visited Ellicia and other Jesus Christians who were on a hunger strike outside Flinders Street Station in late 2019. There were also occasions when Ellicia and other group members had come to dinner at Ms Spencer’s house.
63The Jesus Christians are a community of between eighty and one hundred members around the world.[24] I am satisfied that, within a small group who live communally and move frequently between communities in various countries, all Jesus Christians would be aware of Ellicia’s marriage to Joseph, a Black member.[25] Mr Johnson gave evidence that, to his personal knowledge, there were four other Black men in the Jesus Christians, only one of whom was married. That member’s wife was mixed race and she was not Australian.[26] It is overwhelmingly likely that the only person who is Australian, married to a Black man and whose mother is called Renee, is Ellicia. Even those Jesus Christians who had not met Ms Spencer would, after watching the video, know that the person to whom it referred was Ellicia’s mother. This includes people who joined the Jesus Christians after the publication of the video in 2021.
[24]Evidence of Joseph Johnson at T835
[25]See for example, the evidence of Christian Stevens at T886
[26]T845 – T848
64Furthermore, it was the intention of the defendant to identify Ms Spencer. In an email prior to publication to the leadership group of the Jesus Christians known as “the Hub”, the defendant wrote:
“… I have to admit seeing their names on the screen kind of startled me, but it does have a much better chance of confronting them where they live if their neighbours (and the Journal) know what is going on. … .”[27]
[27]Ex P33 – Email chain between defendant and various recipients regarding TD&T AVID Draft: Strange Bedfellows dated June 2020 at page 2
Is the imputation conveyed?
65Ms Spencer pleads that the publication, in its ordinary and natural meaning, carried an imputation that she is a worshipper of the Devil. She says that the ordinary, reasonable reader would infer that describing someone as a “Luciferian, a Satanist if you like” would be understood to mean that the person worshipped the Devil. The use of graphics, including mysterious-looking symbols, pentagrams, images of screaming demons, and so on, utilises techniques that “contribute to the overall impression”.[28]
[28]Schiff v Nine Network Australia (No 2) [2022] FCA 1120 at paragraph [49]
66Ms Spencer submits that the Macquarie Dictionary defines the word Satanism as “the worship of Satan”. Other references in the video include “this mother is a Luciferian”, “using evil powers”, “this video is our celebration of spiritual victory over all this insane hatred and over all the demonic spirits operating through each of these family members”, “all the demons of Hell are not enough” and “unholy trinity”, which, together, go much further than suggesting Ms Spencer is someone who has an interest in, or a regard, or respect for, Lucifer.
67Ms Spencer says the graphics used, including the hooded figure in front of a pentagram, a common symbol associated with Satanic rituals, backlit in deep red, create an impression to the ordinary, reasonable reader that a Satanist worships the Devil.
68The defendant says the imputation that Ms Spencer worships the Devil is not conveyed. He says the definition for Luciferians from the website Definify is “A belief system that venerates the essential characteristics identified with Lucifer”.[29] He points to an article on CNN titled “5 things you didn’t know about satanists”, which notes “[s]urprisingly, most card-carrying satanists do not worship Satan or any other form of the Devil – they are actually atheists”.[30] He says Ruben van Luijk, author of the book, Children of Lucifer: The Origins of Modern Religious Satanism”, who has a PhD in Divinity from the University of Tilburg, Netherlands, defines “Satanist” as “someone practising intentional religious veneration for Satan or entities identified or associated with Satan in the Christian tradition”.[31]
[29]JCB 2336
[30]JCB 2250
[31]T1006, L14-16 and JCB 2096
69The defendant says veneration and worship are not the same thing. The Church of Satan is an organisation that does not worship the Devil and the inverted pentagram is a symbol associated with the Church of Satan. The defendant says it is not “good reasoning” to use a symbol used by “non-worshippers of the [Devil] to suggest that the symbol imputes worship of the Devil”.[32]
[32]T1007, L26-28
70The defendant says the other symbol used, a black symbol of triangles and lines, is not well known as a satanic symbol and would have little or no meaning to the ordinary, reasonable viewer.[33] The defendant says the word “Luciferian” is not allowed in the Scrabble dictionary, so it is not a widely-used or understood term. In Christian theology, the Devil and Lucifer are terms for something bad, but “that is as far as it goes”.[34]
[33]T1009, L27-29
[34]T1010, L13
71He says the Jesus Christians have no formal doctrine on the Devil and that Jesus Christians have personal beliefs about the Devil, but those beliefs, as shown in the evidence of Joseph Johnson and Christian Stevens, are not based on Jesus Christian teaching.
72The defendant says that in the video he suggests Ms Spencer also has respect for things that Jesus said and this is not the sort of thing an ordinary, reasonable person would expect of a devil worshipper. He says the picture used of Lucifer is the angelic vision of Lucifer with wings, rather than a traditional satanic picture of the Devil, which you might expect to use if someone was a devil worshipper.
73He says an ordinary, reasonable reader would not understand someone who is a Satanist, and who has respect for Jesus, to be a devil worshipper.
74He says use of the words “a Satanist if you like”, communicated to the viewers that others may feel different to himself, and that he is sensitive to the religious differences between himself and Ms Spencer.
Findings on imputation
75Ms Spencer must establish the imputation alleged was conveyed. The relevant principles are well known:
(a) the question is whether ordinary, reasonable readers would have understood the matter complained of in the defamatory sense pleaded;[35]
[35]Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33 (“Hockey”)
(b) the “natural and ordinary” or “ordinary and reasonable” meaning of a publication can be its literal meaning, its implied meaning, or what is to be inferred;[36]
(c) ordinary, reasonable readers are persons of ordinary intelligence, experience and education, who are neither perverse nor morbid, nor suspicious of mind, nor avid for scandal;[37]
“This ordinary reasonable reader does not, we are told, live in an ivory tower. He [or she] can, and does, read between the lines, in the light of his [or her] general knowledge and experience of worldly affairs …. It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his [or her] capacity for implication is much greater than that of a lawyer: … .”[38]
(d) the ordinary, reasonable reader does not look at the matter in isolation, but, rather, in the whole context in which it is published, including the surrounding circumstances.[39] If one part of the publication damages the plaintiff, but that is removed by the conclusion, the:
“‘…bane and antidote must be taken together.’ But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. … .”;[40]
(Footnotes omitted.)
[36]Jones v Skelton [1963] 1 WLR 1362; Cornes v the Ten Group Pty Ltd & Ors [2012] SASCFC 99 at paragraph [92] (per Gray J); Hockey (ibid) at paragraph [63] (per White J)
[37]Hockey at paragraph [64]; Farquhar v Bottom [1980] 2 NSWLR 380 at paragraph [21] (“Farquhar”)
[38]Farquhar at paragraph [22]
[39]John Fairfax & Sons Ltd v Hook (1983) 72 FLR 190 at 195
[40]John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at paragraph [26]
(e) the meaning which the defendant intended to convey by the words published is irrelevant to determining their natural and ordinary meaning;[41]
(f) the manner in which the publication was actually understood is also irrelevant in determining the natural and ordinary meaning;
(g) a publication may convey multiple imputations, but the adjudicator at trial will arrive at a single “right” meaning as to the “natural and ordinary meaning” of the words complained of;[42]
(h) the more sensational an article in a newspaper, the less likely it is that the ordinary, reasonable reader will read it with the degree of analytical care which may otherwise be expected, and the less the reader will expect a degree of accuracy;[43]
(i) generally, courts will not take a narrow view of the meaning conveyed by words which are imprecise, ambiguous, loose, fanciful or unusual;
(j) the assessment of meaning is ultimately a matter of impression, rather than of close scrutiny and analysis of the publication;[44]
(k) the hypothetical reader is not taken to formulate reasons, which are very often an afterthought.[45] Nor is he or she taken to consider the meaning of what is published by reference to various meanings which might be found in dictionaries;[46]
(l) the forum of publication is a relevant factor in determining meaning.[47]
(m) publications on social media platforms, such as Facebook or Twitter, may be read in a “fleeting” manner and should not be subjected to an elaborate analysis or parsing of content. The medium has “the nature of a conversation in which participants ordinarily correspond without using carefully chosen expressions”.[48]
[41]Hockey (supra) at paragraph [72]
[42]Slim v Daily Telegraph Ltd [1968] 2 QB 157 at paragraphs [173]-[175] (per Diplock LJ)
[43]Amalgamated Television Services v Marsden (1998) 43 NSWLR 158 at 165
[44]Lewis v Daily Telegraph Ltd [1964] AC 234 at [260] (per Lord Reid); Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 574, paragraph [134] (per Kirby J); Gatto v Australian Broadcasting Corporation & Ors [2021] VSC 83 at paragraph [26] (per Keogh J)
[45]Morgan v Odhams Press Ltd [1971] 2 All ER 1156 at 1162 (per Lord Reid)
[46]Hardie v Herald and Weekly Times Pty Ltd [2016] VSCA 103 at paragraph [52] (per Ashley, Tate and Beach JJA)
[47]Armstrong v McIntosh (No 4) [2020] WASC 31 (S) at paragraph [100], Stocker v Stocker [2019] UKSC 17 at paragraphs [41]-[46] (“Stocker”); see also Brose v Baluskas (No 6) [2020] QDC 015 at paragraphs [60]-[77]
[48]Bazzi v Dutton (2022) 289 FCR 1 at paragraph [47] referring to Stocker at [606], paragraph [43].
76In this case, though the publication was on a social media platform, that platform was YouTube and the format was a video which, in my view, provides a different experience for viewers than the fleeting interactions that might occur on Twitter or Instagram and other platforms where there is a quick succession of posts to be scrolled through.
77YouTube videos can be quite long and each has to be selected or clicked on, although the “algorithm” will offer suggestions based on prior viewership.
78The video was also published on a YouTube channel with its own subscribers who were likely to have a particular interest in the subject matter of the videos uploaded.
79The publication is likely to be viewed by someone with an interest in the subject matter. The subject matter assumes a degree of knowledge, for example the publication refers to “the twenty third chapter of Luke” and “John’s Gospel” without further explanation, assuming that viewers will understand those as bible references. Members of the Jesus Christians who gave evidence acknowledged that they and other members of the group usually would watch videos published by the defendant.
80However, it was not pleaded, and the case was not put, that the viewership of the video was exclusively Jesus Christians. The evidence discloses that, although Jesus Christians watch the defendant’s videos, other people also watched them, as this was how a number of Jesus Christians were first introduced to the ideas of the group. The videos are a primary mechanism of religious ministry for the defendant and the Jesus Christians. Videos and other publications are one of the ways the Jesus Christians attracted the attention of people who ultimately joined their group. Christian Stevens,[49] Daniel Reiher[50] and Ellicia[51] all gave evidence that their first contact with the Jesus Christians was through emails to the address given by the Voice in the Desert YouTube channel.
[49]T860, L3-6
[50]T590, L18-21
[51]T906, L5-6
81It was not pleaded that viewers of the video have some extrinsic knowledge that would cause those viewers to define “Luciferian” or “Satanist” in a different way from the ordinary, reasonable viewer.
82Nor was it put that there is a cohesive view or explanation about what Luciferianism or Satanism imputes within the Jesus Christians or Christian communities more generally. Although the defendant did not give evidence, he submitted that the Jesus Christians have no formal doctrine about the Devil. Joseph Johnson gave evidence that he was not an expert on Satan and he could not give a definition of what Satan epitomises with any definitiveness. However, he said his understanding was that, in the time of tribulation, the Devil will be ruler for roughly a thousand years, until he is later bound or stopped from his reign.[52] His understanding of the formal teaching of the Jesus Christians was that “the mark of the beast” will be “the form of currency that in the end time, people will need to buy or sell” and the Jesus Christians’ belief is that people who accept the mark of the beast on the right hand and the forehead will receive the wrath of God.[53] He said that someone who takes the mark of the beast is essentially worshipping the Devil, and this is a prophesy that is in Revelation 13, and that this was his understanding of the Jesus Christians’ teaching about the Devil. He also said he may have been confused about the thousand-year reign and that might have been a thousand-year reign of Jesus.[54]
[52]T829 – T830
[53]T854, L17-23
[54]T853, L25-30
83Christian Stevens had a similar understanding of the mark of the beast taken from Revelation 13. He said he was not aware of any formal Jesus Christians’ doctrine about demonology.[55]
[55]T901, L8-9
84The apparent lack of any formal Jesus Christian doctrine about Satan or the Devil supports my conclusion that there is no basis upon which it could be said that the particular viewers of this video would have any understanding that differs from the ordinary, reasonable viewer about the meaning of being a Luciferian or Satanist.
85Although dictionary definitions cannot substitute for the meaning an ordinary, reasonable reader would understand from the publication, a survey of definitions from various dictionaries is illustrative. For example, in online versions, Luciferian is not defined in the Collins, Merriam-Webster or Cambridge dictionaries. As the defendant notes, Luciferian is “not allowed” by the Scrabble dictionary. In contrast, Satanist is defined in all but the Collins dictionary, which only proffers a definition for “Satanism”.
86Oxford English Dictionary ( …
A person who worships or venerates Satan; one who practices Satanism … .”
87Merriam-Webster Dictionary ( worship of Satan marked by the travesty of Christian rites
Satanist”
88Definify ( One who identifies with Anton Szandor LaVey’s philosophical teachings and the religion, Satanism, founded upon it.
Examples of Satanists include Luciferians and Laveyans.
2. One who worships Satan; or, one who believes in service to self regardless of the consequences concerning others.
… .”
89Cambridge Dictionary ( person who worships Satan”
90Collins Dictionary ( is worship of Satan.”
91Dictionary.com (
…
1. a person who engages in any of a highly diverse group of religious, philosophical, or countercultural practices centered around Satan, either as a deity or a nontheistic symbol of enlightenment, individualism, or ethical egoism.
2. a person who participates in a deliberate inversion of Christian rites in which Satan is worshiped.”
92Satan is variously defined as a name used for the Devil in Christian and Jewish traditions (Cambridge), the name of the Devil (OED), the rebellious angel who, in Christian belief, is the adversary of God and lord of evil (Merriam Webster), the grand adversary of man; the Devil, or prince of darkness; the chief of the fallen angels, the archfiend (Definify), the Devil in Christian religion, a powerful being who is the chief opponent of God (Collins).
93I do not accept the defendant’s submission that using the words “a Satanist if you like” indicates that people may disagree with his allegation that Ms Spencer is a Luciferian. He presents, as fact, that she is a Luciferian and proffers “a Satanist if you like” as an explanation for what a Luciferian is. His own words equate a Luciferian with a Satanist. That he intended to offer an explanation rather than a qualification is made explicit in his own email communication with other Jesus Christians’ leaders prior to publication of the video.[56] His submission that those words meant anything else is disingenuous and I reject it.
[56]Ex P33 (supra)
94Although different dictionaries proffer slightly different meanings, I reject the defendant’s submission that the common theme is that a Luciferian is someone who “venerates” Satan and that this conveys a different meaning than someone who worships the Devil. The words used in the video are “Luciferian, a Satanist if you like”. By using these words he is offering a more commonly-understood explanation for what a Luciferian is, appreciating that not everyone will be acquainted with the term “Luciferian”.
95It is not disputed that Satan is a term used interchangeably with the Devil, or that Lucifer is another name for Satan or the Devil.
96On the face of the words themselves, I consider the ordinary, reasonable reader would understand a Satanist to be someone who worships the Devil.
97The particular use of graphics showing demons, the use of symbols associated with satanic rituals, and the imagery of a hooded figure in front of an inverted pentagram, convey an imputation of something far different from respect or veneration for Lucifer. The use of the quote, taken out of context, to support the claim that Ms Spencer is a “Luciferian, a Satanist if you like”, is clearly intended to persuade the audience that the allegations are founded in truth.
98The defendant says that the line “[s]he insists that her love for Lucifer does not interfere with her respect for anything that Jesus may have said”[57] would identify, to the ordinary, reasonable reader, that Ms Spencer has respect for Jesus and this would be inconsistent with being a worshipper of the Devil. However, viewed in the context of the whole video, it is clear that the defendant is in fact dismissing Ms Spencer’s protestations of respect for Jesus. He follows up this line with the word “[b]ut” and goes on to describe how she has threatened to use her “various evil powers to stalk and torment us around the world”.[58] The use of the word “[b]ut” clearly indicates that he is dismissing her professed respect for anything Jesus has said. In any event, “respect” is not the same as “love” and he alleges she loves Lucifer.
[57]Schedule “A” (supra) at JCB 22
[58](Ibid)
99In the publication, the defendant refers to the “Jesus” the Kellys and the Johnsons profess to worship as a Jesus who:
“… justifies kicking a man to death for no good reason, and the other Jesus justifies hating and killing Jews, Blacks and anyone else who does not conform to their so-called ‘historical” Nazi beliefs. … .”[59]
[59]Schedule “A” (supra) at JCB 22
100He is identifying the Jesus they profess to worship as a false Jesus. He says, in the publication, that really they “hate” Jesus and what he taught. He links Ms Spencer with these other women, by saying they are bedfellows (the title of the video) and by calling them an unholy trinity. I do not accept that including the words “her respect for anything that Jesus may have said”[60] offers an antidote to the bane of being called a Luciferian and a Satanist.
[60](Ibid) at JCB 29
101The imputation that Ms Spencer is a worshipper of the Devil is conveyed.
Is the imputation defamatory?
102Words are defamatory when the imputation lowers the person’s reputation in the eyes of reasonable members of the community or causes the person to be ridiculed, shunned or avoided by members of the general public.[61]
[61]Charan v Nationwide News Pty Ltd [2018] VSC 3 (upheld on appeal in Charan v Nationwide News Pty Ltd [2019] VSCA 36)
103Ms Spencer pleads, at paragraph 7 of her statement of claim, that the publication carried the imputation “which is defamatory of the plaintiff”.
104In his defence, the defendant denies that this is true.
105The defendant submitted that:
“… Lucifer and a theme of Devil worshipping appear regularly in the entertainment industry to the point where it is fashionable to use these themes to attract fans. … .”[62]
[62]T763, L15-18
106Beyond this, the defendant made no submissions that the imputation was not defamatory of the plaintiff.
107While it may be true that a theme of devil worship is used in the entertainment industry, this does not establish that it is not defamatory.
108The publication was targeted at an audience of people with an interest in religion or religious ideas, particularly Christian ideas. There can be little doubt that, among religious people, in particular Christians, worshipping the Devil would cause a person to be shunned or avoided. A person who was a devil worshipper would be viewed as dangerous.
109Even among people who do not identify as religious, an allegation that a person is a worshipper of the Devil would tend to cause reasonable members of the community to shun or avoid such a person. Worship of the Devil carries with it concepts of satanic ritual, such rituals specifically implied in the video by the use of graphics and images, and ritualistic sacrifice, reinforced by the blood-red backlighting behind the hooded figure. Even community members who do not believe in the Devil would likely condemn a person seeking to engage in such practices.
110While the evidence of individuals has little relevance to an assessment of whether an imputation is defamatory, I note that both Joseph Johnson and Christian Stevens agreed that it would be a bad thing to be a devil worshipper,[63] albeit that the Jesus Christian religious beliefs would still mean that such a person was still “love[d] and respect[ed]”.[64]
[63]T831 and T891
[64]T994
111The imputation was defamatory of Ms Spencer.
Defences
112The defendant relies on statutory defences under the Defamation Act 2005 (“the Act”) of justification, contextual truth and honest opinion.
113To understand the way the defendant pleads his defences, it is necessary to give some background to the events that led to the publication of the video.
Ellicia’s involvement with the Jesus Christians
114Ms Spencer has two children, Ellicia, born 1995 and Lachlan, born 2002.
115In around October 2017, when Ms Spencer and her son were living in Brisbane, Ellicia joined the Jesus Christians. The Jesus Christians are an organisation of people who adhere to particular religious beliefs and live a particular lifestyle that is characterised by giving away all their material possessions, not working for money, “forsaking all”, and living communally. At that time, the group was also known as “A Ship in the Desert”.[65]
[65]T905, L26
116Shortly after joining the Jesus Christians, Ellicia married another member, Joseph Johnson, also known as Jay, in January 2018. Ms Spencer attended the wedding. Ms Spencer described herself as generally supportive of Ellicia’s decision to join the Jesus Christians at this point.
117Over the next two years, Ellicia lived and travelled with the Jesus Christians and had occasional “in person” contact with Ms Spencer. In late 2018, Ellicia separated from Joseph and went to the USA and Mexico. In 2019, she moved to Kenya. She remained in contact with Ms Spencer from time to time.
118In August 2019, Ellicia returned to Australia and Ms Spencer visited her in Sale, where she was living with other Jesus Christians. At this time, Ms Spencer began to have concerns about her relationship with Ellicia.
119In November 2019, Ellicia and other Jesus Christians staged a hunger strike for climate change outside Flinders Street Station in Melbourne. Ms Spencer visited Ellicia at the hunger strike. Subsequently, Ellicia said to Ms Spencer that Ms Spencer had been rude and argumentative during that visit and that she, Ellicia, needed some space from Ms Spencer’s negativity.[66]
[66]Ex P11 – Text message exchange between Ellicia and Renee Spencer from 3 October 2019 to 31 December 2019 at JCB 2437-2464
120Around this time, Ms Spencer became aware that the group Ellicia had joined was called the Jesus Christians and she undertook some online research, which caused her alarm. She came to the view that the Jesus Christians were a cult and that the defendant was the leader of the cult.
121In December 2019, Ms Spencer visited Ellicia in Sale and during a private conversation told Ellicia of her concern that the Jesus Christians was a “cult”. After this visit, Ellicia returned a mobile phone that Ms Spencer had previously given her. Ms Spencer has not seen Ellicia in person since December 2019.
122In January 2020, Ellicia moved to Mexico and re-united with Joseph.
The “Lucifer” emails
123In an email exchange between Ellicia and Ms Spencer in January 2020, Ellicia wrote:[67]
“I felt it was very manipulative of you to lie to me before our last meet up. You said you had something private and important to tell me, but all you wanted to do was tell me I’m in a cult”.[68]
[67]Ex P13 – Email exchange between Ellicia and the plaintiff, dated 18 January 2020 to 26 January 2020 (including quotes used in publication) at JCB 185-191
[68](Ibid) at JCB 185
124In response, Ms Spencer wrote a lengthy email on 25 January 2020 that is important to the defendant’s truth defence. The email is over five pages long. In it, Ms Spencer wrote, “[g]iven that you have belittled my spiritual beliefs in the past, I feel I need to assert myself”.”[69] She said she had studied:
“… the occult, esoteric traditions, ancient mysteries - in particular ancient Egyptian, conspiracy theories, Christianity, Catholicism, witchcraft, aliens, astrology, Steiner, psychology, mental health, art history, religious symbolism, and a whole lot more! … .”[70]
[69](Ibid) at JCB 187
[70](Ibid) at JCB 187
125She said she had a thorough understanding of the principles of Christianity and that an individual’s relationship with God was a private matter which she would never want to interfere with. She said the group’s practice of fear mongering and trying to sell a particular brand of Christianity did not sit well with her. She wrote, in part:
“My beliefs are this: There is truth in the bible. Symbolic truth. It is a map of sorts. … .
Christianity did not abolish the old pagan religions - it transformed them. Old symbols were used and mixed with new symbols. Of note, verses once known as ‘spells’ became known as ‘prayers’. Or in other words, prayers are spells. To my mind, the aim of early Christians was to keep the ‘holy grail’ a secret from those who would use its power for evil deeds. The holy grail, of course, is a metaphor. It has taken me years to get a true sense of what the holy grail is/means.
… You probably already know this, but I’ll say it anyway, ‘occult’ means ‘hidden’, my studies of occult history is the study of hidden history … like the Tower of Babel, hold grail fragments are scattered and one will not find a complete definition anywhere … hence one must seek. … .
From my research, and experience I have come to understand that the spiritual world does not distinguish between ‘good’ and ‘bad’ prayers, nor does it distinguish between religions - it just responds to the intention of the person, hence, when prayers or spells are said they need to come from a moral and ethical place. … .
Unintentionally, some ‘good’ people can say ‘bad’ prayers and God answers these all the same because he has given us free will. That is the unconditional love God gives. He gave us, his children, everything. We are made in God’s image (I almost wrote a secret of what this means, alas, I had to un-type it because such things can not be written) … To be completely honest, I must confess, I know that God answers all our prayers because I once ‘played’ with the power of prayer and in doing so I took away someone’s free will. It is my greatest sin. I sometimes wonder if God answered my ‘evil’ prayer so as to show me just how powerful he is.
… I am not truly worthy nor knowledgeable (despite my years of study) so I do not know it all but I can tell you some of what I have come to understand through careful research and personal investigations. For example, in addition to what I’ve already told you of the book of revelations, it is my belief that references to animals are indications of soul qualities. For example, the lion represents our heart, our courage. Do you remember all the paintings of lions that we saw in Venice? The Renaissance artists, (at least some of them), knew the secret language … I cannot explain too much in writing. It is too sacred. This is the dilemma the early Christians faced too. They could not put the full truth down in writing.
I do not know it all, and while some of this is based on belief, there are scientific methods and historical records to confirm what I am saying. For me personally, it has taken years to see beyond the veil. Science, psychology, art, music, history, nature - all areas need to be studied in order to really understand spirit. There are many charlatans and spiritual bypassers who can mislead. I know because I have tried following many of them! I suspect that such false prophets don’t deliberately mean to mislead others, they have simply misinterpreted the symbols or filled in the blanks incorrectly. Critical thinking skills are a must for seekers of spiritual truths. There have been times when I have followed false leads to spirit and the acknowledgement of finding a dead end has been hard to accept, nevertheless, I’ve known that the consequences of not turning around would be worse. I am now very secure in my stance that I will never follow any spiritual leader or religious group.
My latest points of investigations are to re-evaluate Steiner’s work. However, I do not identify as an anthroprosophicalist. Steiner’s work was written a hundred years ago and I am amazed at how his work has been translated and re-written with such inaccuracies. By comparing different translations I can see how Steiner schools have gone astray. Word changes and sentence structures divert the original intentions of Steiner’s messages profoundly. (If this can happen so easily by a few generations, it confirms for me that today’s bible is very inaccurate.) I want to learn German so as I can learn what Steiner was really saying. That is not to say I believe Steiner was completely correct but I do believe there are great insights to be gained from his wisdom.
…
A point in which I believe Steiner was correct is his insight that references to Christ returning will not be a physical phenomenon. Rather, he will return in the etheric. The ether is life force (that is putting simply, I cannot explain it any better than that in writing). Jesus was the first to overcome the challenges of the ether. That is part of the mystery of Golgotha. Jesus perfected control of his life force. To be like Christ we must do the same. It is an ongoing challenge for all humans. In order to achieve this we need to face Lucifer. I’m still working out exactly what Luciferic influence is. I know that it exists in all of us - every human being - and I know that Lucifer is intelligent and beautiful and we have much to learn from him; Lucifer is a catalyst for finding the true light of Christ. Again, I’m sorry I cannot write this more clearly but hopefully you get the gist of what I am saying.
…
The spiritual world, is a fascinating realm to explore and learn about. Sincerely, I am proud of your efforts to do so and your attempts to unearth the true essence of humankind’s spiritual nature. It reminds me that you are indeed my child. Whilst you have followed a different path of exploration, you are just like me in so many respects. Ellicia, you are my biological child and I am your biological mother. God is your spiritual parent. I am very glad you love God; if he is your favourite parent, then so be it, I will not berate you for that. God (and the Goddess) are also my spiritual parents and I love them too. They blessed me with your presence in my life and I am eternally grateful; I could not of asked for a more wonderful daughter.
I honour your independence and I respect that you want to keep our communication to emails. I look forward to hearing from you and having discussions about the issues between us, spiritual based or otherwise. (Silence like a cancer goes ... Simon and Garfunkel … the ‘right’ timing for discussions sometimes never comes.)
I love you to the moon and back again an infinity times.”[71]
[71](Ibid) at JCB 188-191
126Ellicia did not respond to that email. Ms Spencer sent further emails, including one called “Bible Talk”, dated 26 May 2020, where she wrote about her research into the origins of the bible. She wrote:
“… I do believe there is truth in [the bible]; spiritual truth, not literal. Among other things, the bible warns against worshiping false idols and I have a strong sense of what that means
…
Why am I telling you all this? Ellicia, you’ve made some very serious life decisions based on your beliefs of the bible. I trust you to be wise, to think for yourself, and research what being an authentic Christian really means. Lucifer’s influence can shine as brightly as God’s. As I have said before, do not take my words for things. Pray to God and ask for the truth to be revealed to you”.[72]
[72]Ex P15 ꟷ Email from the plaintiff to Ellicia, dated 26 May 2020, regarding “Bible Talk” at JCB 200
127Ms Spencer continued to email Ellicia, although she did not receive a response to those emails.
128On 31 July 2020, she sent an article she had written about Freud to Ellicia and said there was a job waiting for her if she came home.[73]
[73]Ex P17 ꟷ Email from the plaintiff to Ellicia, dated 31 July 2020, attaching an article regarding Freud at JCB 210
129On 2 August 2020, Ms Spencer sent a further email begging Ellicia to come home.[74] She wrote:
“… Like I’ve told you again and again, things are not what they seem. I’ve been studying the occult and conspiracy theories for almost as long as you have been alive, and so it is, you also know it is not on a whim when I tell I am associated with a group who is privy to inside knowledge of current world events. David’s philosophies do not match the information and updates which I regularly receive. He does not know what I know. … .”[75]
[74]Ex P18 – Email from the plaintiff to Ellicia, dated 2 August 2020, regarding “Please come home” at JCB 211
[75](Ibid)
130She said, in evidence, that she:
“… temporarily had some communication with a friend who was part of a Christian group and they were working towards humanities issues and things like that and they looked really good. I, after a little bit of finding out a little bit more about this Christian organisation, which does not have a name and I’ve lost contact with the person, I decided that no, maybe I’d gone down - maybe I’d fallen for a false prophet.”[76]
[76]T234, L9-16
131She said it was this group to which she was referring to when she mentioned her “contacts” and “inside information”. This occurred at a time when much of the world, and, in particular, Melbourne, was subject to lockdown as a result of the COVID-19 pandemic.
132On 8 August 2020, Ms Spencer received a chain of email correspondence dated 2 to 6 August 2020 between Ellicia, the defendant, and the defendant’s daughter.[77] Ellicia gave evidence that she had emailed this to her mother by accident.[78]
[77]Ex P19 – email from Ellicia to the plaintiff forwarding correspondence between Tina, the defendant and Ellie, dated 6 August 2020 at JCB 212-219
[78]T919, L18-31
133In this email chain, the defendant had written to Ellicia about the events that led to her being relegated to “visitor status”.
134Ellicia responded to that email by writing that it would be good to clear it up. She wrote
“… Particularly because Renee really doesn’t like you; I feel the devil’s devisive-ness (sic) in the way she talks about you, and it’s an awkward position to be in. So for that reason too, it’d be good to have a discussion, to make sure the devil doesn’t have a chance to get a foothold.
When I left, the situation was that I had visitor status. I recall there were a few different issues aside from the table setting issues, including forgetting Cherry’s food needs. When we had the meeting where I was informed about my visitor status, you’d talked about how I probably had bad habits from my mother, which would probably take time to change. One thing that was mentioned was lack of respect for authority, and I think bossiness was another. But the general spirit was that it’d take time for me to work through the issues.”[79]
[79](Ibid) at JCB 217
135The defendant responded:
“Dave here. I'm not sure how to respond to this, as it seems like you kind of left things hanging.
It comes across to me as double-mindedness on your part.
You hint, for example, that you are struggling with bitterness toward me, when you say that similar feelings from Renee could be quite dangerous unless we get this matter sorted out.
You state what I/WE saw as the problem, but you do not give your own impression of what was happening.
You say that you learned this lesson: ‘I remembered the lesson I'd learned about serving people, and doing things the way people prefer them.’ But that seems to be a very tiny lesson, considering how drawn out the grievance was here in Oz, where it seemed like, meal after meal, you pretty stubbornly refused to ‘follow the rules’ about what needed to be put on the table (including Cherry's dietary needs). We here thought it was a huge problem, with overwhelming evidence of rebellion, given that we were more or less shouting it louder and louder each time, and yet you were still refusing to change.
Thank you for reminding me that you left here as a visitor. What is your status there? Did you enter the community there as a visitor?
Btw, I have copied Tina in, so that she can help me, if my memory is wrong on any of this.
You said: ‘I didn't feel like I was deliberately being disobedient in January, but I also don't have a reason for why I was behaving the way I was.’ ‘Zoning out’ as you put it, may be just another way of saying ‘deliberately being disobedient,’ where you hide the truth from yourself.
That really does need to be sorted out, and the longer it is put off, the more chance that your memory and mine will become permanently irreconcilable.
It may be like that with the issue of the carpet being vacuumed too. We obviously need to re-state how each side saw it.
You finished by saying that discussion would be good, but then did not discuss.
Can I get more information on how you see these issues now that you have had a very long time to cool down?”[80]
[80](Ibid) at JCB 217
136Ellicia then responded that the defendant was right about her “double mindedness” and that she had tried to overcome this. In her email, she wrote:
“What I meant was that when Renee writes about you in her emails to me, it reminds me that I left Australia with things unresolved. I find it challenging to read her emails, and I don’t want to get sucked in by her. I hope by resolving our issues, it will help me in my relationship with Renee, to be clear in where she is coming from and make sure I stay firm to not give in to her (we are still not talking, but I usually feel crappy spiritual (sic) after reading her letters). Some things that she says put temporary doubt in my mind. And when she talks about ‘Dave’s theories’, it makes me want to prove I’m not just following your theories. I shared in the first grievance that I felt Renee’s attitude towards the community influenced my bad behavior, particularly things she said to me on her last visit to me, and in the communication leading up to the visit.
290An opinion that bears no rational relationship to the facts particularised cannot be said to be based on that material.[177]
[177]Hanks v Johnston (No 2) [2016] VSC 149 at paragraph [8]
291The relevant test for the requirement of a rational connection is that the comment is one which could have been made by an honest person however prejudiced he might be, and however exaggerated or obstinate his views.”[178]
[178]Herald & Weekly Times Ltd & Anor v Popovic(2003) 9 VR 1 at [55]
292The allegation was not based on proper material. The defendant did not have any basis for alleging that Ms Spencer was a worshipper of the Devil, nor did he think she was a worshipper of the Devil. In his defence, he says the veneration or worship he is talking about is describing Lucifer as one might describe a deity, such as Jesus or God, and that he is not talking about performing so-called Satanic rituals. If his intention was to convey merely that Ms Spencer described Lucifer in terms associated with a deity, it is inexplicable why he used imagery in the video of Satanic rituals, as well as referring to the “demons from hell” and the “unholy trinity”.
293I do not accept that Ms Spencer’s lengthy emails, in which she set out her understanding of Lucifer and her spiritual beliefs, including her emails in response to allegations by the defendant’s daughter that she was an “admitted Luciferian”, amount to proper material upon which the defendant could have reasonably concluded that Ms Spencer worshipped the Devil.
294Instead, as he conceded in his submissions, her explanations indicate her views about Lucifer are largely in accordance with traditional Christian theology, although, in his submission, those explanations ought not be accepted.
295Nevertheless, a person who had read all the material the defendant had available could not reasonably have formed an opinion that Ms Spencer worshipped the Devil.
Not honestly held
296Finally, even if the defence could otherwise have been made out, the opinion was not honestly held by the defendant.
297The defendant chose not to give evidence. In the absence of evidence from a witness one would have expected to hear from, I am not able to speculate on what that evidence might have been. I am entitled to infer that the evidence would not have assisted his case.
298I am entitled to infer that the defendant would not give evidence that he honestly held the opinion that Ms Spencer was a worshipper of the Devil. I am comfortable in drawing this inference, as it is supported by his submissions and his pleading, in which he qualifies what he means by “worship”.
299The inference is also supported by the email he sent prior to uploading the video onto YouTube. The video and script were sent to members of the Jesus Christians’ “leadership” group.[179] Various members weighed in with opinions and concerns.
[179]Ex P33 (supra)
300The defendant’s daughter commented:
“… I had hoped by the time the video was released we might have more confirmation that Jay’s family are in touch with the Kellys and Ellie’s family. All we have at the moment is circumstantial evidence that Sheila started being more antagonistic in her communication with Jay around the time things became heated with the other mothers … .
…
With regard to the Luciferian claim, I think it would be helpful in the video to show a statement from Renee on the screen. Here is a good one, ‘I know that Lucifer is intelligent and beautiful and we have much to learn from him; Lucifer is a catalyst for finding the true light of Christ,’ I would probably favour focusing less on satanist pics, since Luciferians object to being called Satanists (even though it’s hard to imagine why). In fact that was a false claim that Renee made about us (up to now) that we were referring to her as a satanist. Up to now, we have only referred to her as a Luciferian. It feels like a shame to give her that satisfaction, which is why I am suggesting toning the satanist pics down a bit.”[180]
[180](Ibid) at page 3-4
301The defendant responded:
“I think we all have similar concerns e.g. (a) how it will impact on Candis [Linda Kelly’s daughter Heather Kelly]m (b) whether Sheila & Linda really are in touch with each other, (c) whether the Kellys really are Nazis, (d) whether it will actually help our enemies to get in touch with each other, and (e) whether it’s fair to say Renee is a satanist
…
… I like Tina’s suggestions about playing down the sensational pictures of the devil and overuse of the word ‘satanist’, although I think what I said in the script was ‘luciferians… satanists, if you like.’ I think that is reasonable for any who do not understand that Lucifer is the name for Satan. I also like the idea of putting Renee’s quote on the screen.”[181]
[181](Ibid) at page 1-2
302In that email, he said he was persuaded that Ms Kelly and the plaintiff are both working with Sheila, because Ms Kelly had written:
“ ‘… I could find other things to do with my time, particularly if two members (and her husband) were to decide to get in contact with their families, resume relationships and begin making plans to come home.’.”[182]
[182](Ibid) at page 1
303The defendant said, in this email, that:
“… Given [Linda’s] hatred for Blacks, why would Linda campaign for Jay to ‘come home’ if she were not in touch with Sheila. Come home has been the constant demand that Sheila has made … .”[183]
[183](Ibid) at page 1
304He considered this “convincing evidence” that the three mothers were working together.
305This is far from “convincing evidence”. At best, the defendant had engaged in supposition and guess work. He did not hold an honest opinion that Ms Spencer worshipped the Devil, but rather seized an opportunity to present a range of allegations about the parents of members using sensationalist language.
306In addition to the defendant having access to the email from which he quoted in the publication, he had access to the many emails which Ms Spencer wrote to Ellicia after she became aware that Ellicia had been told that Ms Spencer was a Luciferian. Ms Spencer disavowed the idea that she was a Luciferian on many occasions, calling the allegations “lies”.[184] Ms Spencer had not admitted to being a Satanist. She had not “insisted her love for Lucifer” did not interfere with her respect for Jesus, because she had not said she loved Lucifer.
[184]JCB 231; Ex D14 (supra) at JCB 267; Ex D42 at JCB 279
307The choice of wording in this phrase was calculated to cause the ordinary reasonable viewer to understand that there was additional evidence known to the defendant in which such admissions had been made. This was dishonest.
308The defence of honest opinion fails.
Assessment of damages
309Ms Spencer has made out her claim in defamation and the defendant has failed to make out any of his defences.
310Accordingly, Ms Spencer is entitled to damages.
311The principles for assessing damages are helpfully summarised by John Dixon J in Wilson v Bauer Media Pty Ltd:[185]
(a) damages should provide consolation for hurt feelings, damage to reputation and vindication of the plaintiff’s reputation;[186]
[185] [2017] VSC 521 (“Wilson”) at paragraph [59]
[186] Belbin & Ors v Lower Murray Urban and Rural Water Corporation [2012] VSC 535 at paragraph [242]
(b) damages ought to reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgement;[187]
(c) the gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to vindicate the plaintiff. The award must be sufficient to convince a bystander of the baselessness of the charge;
(d) there must be an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded;
(e) the extent of publication and the seriousness of the defamatory sting are pertinent considerations;
(f) in determining the damage done to a plaintiff’s reputation, the Court should also take into account the “grapevine” effect arising from the publication;[188]
(g) it is well accepted that injury to feelings may constitute a significant part of the harm sustained by a plaintiff;[189]
(h) aggravated damages are a form of compensatory damages and, where appropriate, form part of the general damages awarded to a successful plaintiff for non-economic loss, designed to reflect aggravation caused to a plaintiff’s hurt or injury by reason of some conduct of the defendant.
[187] Wilson (supra) citing Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 (“Carson”)
[188]Ley v Hamilton (1935) 153 LT 384 at 386 (per Lord Atkin); Crampton v Nugawela (1996) 41 NSWLR 176 at 193-195 (per Mahoney A-CJ) and 198 (per Handley JA); Cassell & Co Ltd v Broome [1972] AC 1027 at 1071 (per Lord Hailsham of St Marylebone LC); Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388 at 416, paragraph [88] (per Gummow J); Prendergast v Roberts [2012] QSC 144 at paragraph [31] (per Mullins J)
[189] Wilson (supra), citing Carson at paragraph [71]
312Aggravating conduct may include a failure to publish a retraction or an apology that amounts to a continuing assertion of the defamatory imputations.[190] Aggravating conduct can include pleading a defence of truth with reckless indifference to its relevance.[191]
[190] (Ibid) at paragraph [87]
[191](Ibid) at paragraphs [84]-[88]
Plaintiff’s submissions on damages
313The plaintiff says the publication has been seen by thousands of people, based on the number of views recorded. The Court should infer it has been seen by all Jesus Christians, and the evidence shows that Ms Spencer was widely known within the Jesus Christian community.
314The plaintiff submits that the defendant’s motivation in publishing was to “put the nail” in the coffin of her relationship with her daughter. The defendant was aware that contact with Ms Spencer caused Ellicia to have doubts about the defendant’s teachings. Prior to the defendant’s daughter telling Ellicia that Ms Spencer was a “self-confessed” Luciferian, it is apparent from the email train between the defendant, his daughter and Ellicia, that Ellicia had not considered her mother to be a Luciferian. “Outing” Renee as a Satanist in front of all the other Jesus Christians, and all people who might join the community was a good mechanism for ensuring that Ellicia would not “go back” to Renee. If she did so she would be seen by the Jesus Christian community as someone who left the Jesus Christians for a Satanist.
315Although the plaintiff acknowledges that prior to publication the defendant’s daughter had already made these allegations about Ms Spencer, having those allegations made by the defendant, in public, before the entire Jesus Christian community in which Ellicia lives and in which the most important people in her life live, elevates the allegations significantly and magnifies the harm done to her reputation.
316The plaintiff submits that the defendant knew that the “false and ridiculous” claim that Ms Spencer is a Satanist was being used to manipulate Ellicia. He knew that Ms Spencer still had some influence in her daughter’s life and wanted to ensure that influence was terminated. He was aware his daughter had advised Ellicia that it would help her if she “let go” of her emotional attachment to Ms Spencer. He knew the power and effect of the allegation he was making and he chose to share that allegation, an allegation he did not himself believe to be true, with the entire Jesus Christians’ community, as well as others.
317The plaintiff submits that the defendant knew his words would be believed by Ellicia and by others. He has been a highly-respected leader within the Jesus Christians’ community for decades, and within the Jesus Christians’ community he is seen as someone who would tell the truth and would not make things up.[192]
[192]T833, L2-7; T887, L5-10
318The plaintiff submits that the defendant has succeeded in his goal of driving a wedge between mother and daughter, and the proof of this is that Ellicia came to Court to give evidence on behalf of the defendant and now believes that innocent, enjoyable activities from her childhood, such as visiting a “magic” shop, are evidence that her mother is a Luciferian.
319The plaintiff submits that damages in this case must reflect the particularly high degree of hurt experienced, and must “nail the lie” so that a bystander would be convinced of the baselessness of the allegations.
320The plaintiff is a teacher and a mental health practitioner, and someone whose reputation is important to the work she does. No school or institution is going to want to employ a person who is supposedly an admitted devil worshipper.
321The plaintiff submits that aggravating conduct includes the failure by the defendant to remove the publication and the “pinning” of the publication to the top of his YouTube page to ensure maximum exposure.
322The plaintiff says the fact that the defendant did not believe the allegation he was presenting as true, and knew that, far from “admitting” it, the plaintiff had expressly disavowed it, aggravates the damage.
323Further, the plaintiff says the publication itself is sensationalist and designed to attract viewers by using graphic imagery of swords, swastikas and satanic imagery to drive up viewership and interest. It is designed to create a false belief in a conspiracy by powerful people against the Jesus Christians, which make it more likely that Jesus Christians’ viewers will believe it, and this aggravates the damage suffered by the plaintiff.
Defendant’s submission on damages
324The defendant says the publication was not widely seen, and that most people who have seen it would not know it refers to the plaintiff.
325The defendant says the viewing data shows only raw figures, but that many people drop off viewing prior to completion of the video and the Court cannot be satisfied that thousands of people saw those parts of the video where the plaintiff is mentioned.
326The defendant says there is no evidence that the video has caused any actual harm to the plaintiff’s reputation. Her friends and supporters would not have believed it and they only saw it because she directed their attention to it. There is no reason that other people, such as prospective employers, would identify the plaintiff as the subject of the video. There was no evidence that the plaintiff’s employment prospects had been impacted.
327To the extent that the plaintiff’s relationship with her daughter has been damaged, this is a consequence of the plaintiff’s own actions. The defendant says there were problems prior to the publication. The plaintiff had made missing persons’ reports and was “actively fighting her daughter’s choice of religion”.[193]
[193]T1012, L8-9
328The defendant submitted that Jesus Christians:
“… seek to outgrow any emotional dependency, that is cutting the umbilical cord or separating from mummy’s apron strings as others might describe it, at the same time they seek to outgrow emotional dependency standing in the way of personal development.”[194]
[194]T1012, L21-26
329He said relations between the plaintiff and her daughter and the Jesus Christians’ community were relatively positive until the plaintiff started reading the “hate sites” on the internet, and this deeply affected her interactions with Ellicia.
330The defendant says the long letters the plaintiff wrote to Ellicia criticising the Jesus Christians and Ellicia’s decision to be with the Jesus Christians, were “extremely harmful to the relationship”.[195] The defendant says the plaintiff’s goal in her communications with Ellicia was to slander him and to “take [him] down”.[196] The defendant says Ellicia attempted to re-assure Ms Spencer that her concerns were not valid, but Ms Spencer was not receptive to what her daughter was telling her and resorted to tactics, such as reporting her missing and demanding the Jesus Christians put Ellicia back on a plane to Melbourne, “as if Ellicia did not have a choice in the matter”.[197]
[195]T766, L17-18
[196]T1016, L24
[197]T766, T11
331The defendant submits that Ellicia’s evidence supports a finding that it was Ms Spencer’s conduct, not the defendant’s conduct, that harmed Ellicia’s relationship with her mother.
Findings
Extent of publication
332The publication was uploaded to the defendant’s YouTube channel which, as at December 2021, had 123,000 subscribers and currently has 142,000 subscribers. As at December 2021 there had been 3,724 views of the video, 223 likes and an undisclosed number of shares.[198] In addition to publication on YouTube, it has been published on a number of other sites.
[198]JCB 160
333On 25 February 2022, the defendant pixelated the word ”Renee” on the video. Between 1 August 2022 and 26 October 2022, the defendant hid the video from view. As at August 2023, the video had 4,503 views and 240 likes.[199] From 9 September 2023, during the course of the trial, the video was elevated to a prominent position at the top of the YouTube channel page and “pinned” so that it always appears there. It has continued to accumulate views.[200]
[199]JCB 166
[200]Ex P34 ꟷ screenshot of “A Voice in the Desert” YouTube channel home page, dated 9 September 2023
334In addition to publication on the YouTube channel, it was published on the “A Voice in the Desert” Facebook page between 6 July 2021 to August 2022; to Vimeo from July 2021 until sometime in the first half of 2022; and on the Odysee channel from November 2021 to August 2022.
335The video had been watched by all the witnesses who gave evidence. The witnesses called by Ms Spencer had seen it because it was brought to their attention by Ms Spencer. The witnesses called by the defendant were members of the Jesus Christians. Christian Stevens gave evidence that he would probably have seen the video within the first week it was uploaded.[201] Joseph gave evidence that members of the community would normally watch the videos posted by the defendant.[202] Daniel Reiher gave evidence that he watched videos and that they were seen as teachings which everyone would watch discuss. They were also used for recruitment and were monetised.[203] Ellicia gave evidence that the YouTube channel was a key channel to promote Jesus Christians’ beliefs.[204]
[201]JCB 881, L17-18
[202]T851, L18-29
[203]T599 – T600
[204]T984, L29-31
336I am satisfied that most, if not all, of the Jesus Christians’ community would have watched the video. Many people outside the community have also watched the video, including the parents and family members of members of the community. Parents and family members would likely know to whom the video referred.
337Beyond the group of Jesus Christians’ members, family of Jesus Christians’ members and people who closely follow the activities of the community, I am not satisfied that members of the general public would know who the “Renee” referred to in the video is. Nevertheless, the video was likely seen by more than one hundred people who would have known it referred to the plaintiff.
Hurt feelings, vindication, restoration of reputation
338The defendant accepts that the publication was personally upsetting to the plaintiff, and the plaintiff and her witnesses gave evidence of the impact it had on her when she saw the video.
339I am satisfied that allegations of this nature, in this context, would be hurtful and damaging. Although similar allegations had previously been made by the defendant’s daughter in an email to Ellicia, I am satisfied that making those allegations publicly in a video that would be seen by all Jesus Christians, was particularly hurtful and damaging. The defendant submitted that the videos he uploaded to YouTube formed part of his ministry as a Christian teacher. Accordingly, within the community he founded, and in which he is acknowledged as attracting great respect, allegations presented as truth are highly likely to be believed.
340Further, although there seemed to be a reluctance on the part of Jesus Christians’ witnesses to acknowledge that the defendant had a leadership role within the community, and the defendant submitted that he was no longer the leader of the Jesus Christians,[205] it is apparent from the documents that he did have an important leadership role.
[205]T394, L4-5
341Importantly “the Hub”, described as “a leadership base for the community,”[206] discussed the video. From reading those emails, it is quite obvious that, while others weighed in with their views, the defendant’s opinion carried the day and the publication went ahead on his terms.
[206]See cross-examination evidence of Joseph Gerard Johnson at T849, L13-14
342As the allegation was presented as a fact and was likely to be believed by the people of greatest importance to Ms Spencer – her daughter, and her daughter’s husband and friends ꟷ it is important that the damages awarded “nail the lie”. Unfortunately, given the important and persuasive role the defendant plays in the community, I am not confident that a decision of this court will be able to significantly impact the views of those within the community. The publication itself tells those community members that the Jesus Christians are persecuted by “their enemies” and the cause of this persecution is their enemies’ hatred of the Jesus Christians, hatred of Jesus and hatred of what Jesus taught. There is a real prospect that any finding by this court will be used by the defendant as evidence of the ongoing persecution of the Jesus Christians.
343No award of damages can undo the harm done to the plaintiff’s reputation within the Jesus Christians and in the eyes of the Ms Spencer’s daughter.
344I accept the defendant’s submission that the publication and the allegations that the Ms Spencer is a devil worshipper was not the only factor in the deterioration of the relationship between Ms Spencer and her daughter. I accept that the relationship between Ms Spencer and her daughter had begun to deteriorate prior to the publication. The deterioration had begun by October 2019, when Ms Spencer wrote to Ellicia and said she felt frustrated with her lack of contact and ability to communicate with her daughter.[207]
[207]Ex P10 – Email from plaintiff to Ellicia dated 1 October 2019 at JCB 182
345Ellicia gave evidence that she believed the deterioration in her relationship with her mother started around the time of the hunger strike in late 2019. She said Ms Spencer was not supportive of the hunger strike, that she was antagonistic and that was “probably … when things started going downhill” in their relationship.[208]
[208]T913, L12-13
346Shortly after this, Ms Spencer disclosed to Ellicia that she considered Ellicia was in a cult. This did not assist their relationship and they have not seen each other since.
347Ellicia said she sent her phone back to Ms Spencer because she was not planning to be in Australia any longer, her relationship with her mother was deteriorating and she felt like the phone was “kind of her having some power over [her] life”.[209]
[209]T916, L14
348At some time in late 2019, Ellicia went through a grievance process with the community. It is apparent from the email exchange between Ellicia, the defendant and the defendant’s daughter, that, both prior to that email exchange and in that email exchange, Ms Spencer was identified by the defendant and his daughter as the source of some of Ellicia’s difficulties, including because of Ms Spencer’s purported support for Lucifer.
349Ellicia’s response to the allegation by the defendant’s daughter’s that Ms Spencer “openly supports Lucifer” is illustrative. Ellicia said she had “forgotten” this. It is unlikely that a very religious Christian, who has decided to join a Christian community and devote her life to living as she understood Jesus intended, would “forget” that her mother openly supports Lucifer. The more likely explanation is that Ellicia had not taken the words written by her mother to disclose support for Lucifer or to establish that her mother was in fact a Luciferian. The defendant’s daughter’s rather disingenuous “reminder” likely significantly impacted the relationship between Ellicia and Ms Spencer in a negative way.
350Regardless of the various causes of the deterioration of the relationship between Ms Spencer and Ellicia, I accept that the relationship had deteriorated prior to publication.
351The publication further harmed that relationship, and harmed Ms Spencer’s reputation with her daughter, but was not the only cause of that harm.
352There is no evidence that others within the community believed that Ms Spencer was a Luciferian prior to the publication and therefore I am satisfied that the publication caused harm to Ms Spencer’s reputation in the eyes of the Jesus Christians’ community, and their families, both within and outside the Jesus Christians.
Aggravation
353I am satisfied that the defendant has aggravated the damage done to Ms Spencer by relying on a truth defence, and on an honest opinion defence, in circumstances where he did not believe in the truth of the allegation, and did not hold an honest opinion that Ms Spencer was either a Luciferian or a Satanist.
354The failure to remove, retract or apologise for the publication, is also an aggravating factor.
355I am satisfied that the defendant was motivated by malice, that is, by a foreign or ulterior purpose in making the publication.
356There was no evidence upon which the defendant could have satisfied himself that the Kellys and Johnsons were working together, and no evidence emerged during that trial to support this allegation.
357There was no evidence that Ms Spencer was working with the Johnsons and no evidence emerged during the trial to support this allegation.
358There was scant evidence that the Kellys were working with Ms Spencer, although Ms Kelly and Ms Spencer discussed the possibility. However, at the time the defendant published the video, he was not aware of those discussions. His allegations were based purely on speculation.
359He did not believe that Ms Spencer worshipped the Devil.
360I am satisfied, on the evidence, that the ulterior purpose for the publication of the video was to attract viewers and to promote a belief within the Jesus Christians’ community, and the broader community, that hatred of the Jesus Christians had caused Nazis, Devil worshippers and criminals to become strange bedfellows. The accuracy of the allegations made in the video was less important to the defendant than drawing a parallel between the treatment of Jesus Christians and the treatment of Jesus, to promote his message.
361The video was particularly sensationalist and used graphic and eye-catching imagery to engage and maintain the viewer’s attention. The videos are evidently an important means by which the Jesus Christians spread their message. Sensational allegations and graphic imagery are likely to be successful in the competition for views, shares and likes.
362The allegations themselves are serious. The defendant was, at best, reckless as to the accuracy of the allegations.
363Other cases are of limited assistance in assessing damages in this case. For example in Callan v Chawk, the Court found that an award of $50,000 was appropriate where the initial hurt and emotional distress upon first reading the publication had not endured and there was no tangible evidence of damage to reputation.[210] The award of damages was necessary to vindicate the reputation of the plaintiff in the wake of an “ill-informed but relatively restrained review on a website from a single disappointed patient”.[211]
[210][2023] FCA 898
[211](Ibid) at paragraph [210]
364In Srecko and David Lorbek v Peter King, McDonald J held that he would have awarded $25,000 as the publication was very limited, there was no evidence of any person having a diminished opinion of the plaintiffs and the defendant was not motivated by malice.[212] However he upheld the defendant’s qualified privilege defence and no award was ultimately made.
[212][2023] VSC 218
365At the other end of the spectrum imputations of bribery and corruption made on televised broadcast attracted damages of $590,000,[213] allegations of scandalously inappropriate behaviour in the theatre attracted an award of $850,000 including aggravated damages,[214] and damages of $350,000, $225,000 and $300,000 respectively were awarded to a member of parliament, her doctor husband and a charity they were involved in where allegations of child trafficking and sexual abuse were made.[215]
[213]Chau v Australian Broadcasting Corporation (No 3) (2021) 386 ALR 36
[214]Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
[215]Webster v Brewer (No 3) [2020] FCA 1343
366These cases all bear little relationship to the allegations in this case and the particular harm done by them to Ms Spencer.
367In this case I consider the appropriate award of damages is $85,000, which includes a component for aggravated damages. This reflects a rational relationship between the harm suffered and the damages awarded because:
(a) Much of the harm done to Ms Spencer is the personal hurt and emotional distress she has experienced;
(b) The publication caused further damage, but was not the sole cause of damage, to the relationship between Ms Spencer and her daughter;
(c) The publication was limited, in that only a hundred or so people are likely to identify Ms Spencer;
(d) It is likely that the allegation caused harm to Ms Spencer’s reputation within the Jesus Christians but it is unlikely that her reputation will be damaged more broadly, including in her professional life;
(e) It is important that Ms Spencer can point to this verdict to vindicate her reputation notwithstanding the real prospect that members of the Jesus Christians will believe the word of the defendant over any judgment of this court.
Injunction
368The plaintiff also seeks an injunction restraining the defendant from further publication. The video has remained available since it was first published. At some point during the trial the video was “pinned” to the front page of the defendant’s YouTube channel so that it always appears when the “A Voice in the Desert” channel is accessed.
369A permanent injunction should only be granted where the Court has assessed the threat or risk of a repeat of the publication of the defamatory matter, and is satisfied that such an order is reasonably necessary to address that threat or risk.[216]
[216]Carolan v Fairfax Media Publications Pty Ltd (No 7) [2017] NSWSC 351 at paragraph [15]; Massoud v Radio 2GB Sydney Pty Ltd; Massoud v Fox Sports Australia Ltd; Massoud v Commonwealth Broadcasting Corporation Pty Ltd; Massoud v Nine Digital Pty Ltd; Massoud v Nationwide News Pty Ltd [2021] NSWDC 336 at paragraph [643] (per Gibson DCJ)
370As Wigney J notes in Rush v Nationwide News Pty Limited (No 9),[217] there is no express provision in the legislation for the making of permanent injunctions as a remedy. However, this does not mean that there is no power to make such an order, and it is generally accepted that the jurisdiction to make such an order rests in the Court’s auxiliary jurisdiction to restrain the threatened infringement or the repeated infringement of the plaintiff’s legal rights.[218]
[218]Ibid at paragraph [5]
371Where a defendant is a mainstream media organisation, the threat or risk might generally be considered low. But in this case publication has continued and will likely continue notwithstanding this decision, unless an order is made requiring the defendant to remove the publication. Accordingly, I am satisfied it is appropriate to grant the plaintiff’s application for an injunction.
372Only a portion of the publication refers to Ms Spencer. Those parts of the video that refer to the Kellys and Johnsons are not part of this proceeding nor the subject of my ruling. Accordingly, there is no basis upon which to restrain the defendant from publication of those parts of the video that do not refer, directly or indirectly to Ms Spencer.
373However removing specific identifying references to Ms Spencer is insufficient to appropriately ameliorate the future damage that ongoing publication of the video will have on Ms Spencer.
374The defendant:
(a) must remove the defamatory content from all platforms; and
(b) is restrained from any further publication of the defamatory matter on any platform; and
(c) is restrained from any publication of matter that conveys the same meanings on any platform;
until further order of the Court.
375The defamatory content of the video referred to above is:
(a) All that portion of the video including written and spoken words, graphics and other imagery, from and including the words ”But the story gets worse” to that part of the video with and including the words “But these three appear to be the main ringleaders along with world-renowned cult-buster Rick Ross”;
(b) The words “and over all of the demonic spirits operating through each of these family members”; and
(c) The words “All the demons of hell”.
376Until these modifications are made, the defendant is to remove the entirety of video from YouTube and any other locations where it is currently available forthwith. If the video has been published on any other platform without the authority of the defendant, he is to use all reasonable endeavours to ensure that the video is taken down from that platform.
377I will hear the parties on the question of costs.
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[217][2019] FCA 1383
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