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[2005] TASSC 26

CITATION:O'Neill v Australian Broadcasting Corporation, Roar FilmPty Ltd and Davie[2005] TASSC 26

PARTIES:O'NEILL, James Ryan

v

AUSTRALIAN BROADCASTING CORPORATION

ROAR FILM PTY LTD

DAVIE, Gordon

TITLE OF COURT:SUPREME COURT OF TASMANIA

JURISDICTION:ORIGINAL

FILE NO/S:135/2005

DELIVERED ON:22 April 2005

DELIVERED AT:Hobart

HEARING DATE:20, 21 April 2005

JUDGMENT OF:Crawford J

CATCHWORDS:

Defamation - Injunctions - Interlocutory injunctions - Principles on whichgranted - Whether prima facie case of negligence - Balanceof convenience -Whether injunction should be refused because the defendant intends to pleadcertain defences - Issue of public benefitconsidered.

Church of Scientology of California Inc v Reader's Digest Services Pty Ltd[1980] 1 NSWLR 344;Chappell v TCN Channel Nine Pty Ltd(1988) 14NSWLR 153, referred to.

Defamation Act1957 (Tas).

Aust Dig Defamation [105]

REPRESENTATION:

Counsel:

Plaintiff:J E Green

First Defendant:A T S Dawson

Second and Third Defendants:D J Gunson SC

Solicitors:

Plaintiff:John Green

First Defendant:Murdoch Clarke

Second and Third Defendants:Gunson Williams

Judgment Number:[2005] TASSC 26

Number of paragraphs:37

Serial No 26/2005

File No 135/2005

REASONS FOR JUDGMENTCRAWFORD J

22 April 2005

1The plaintiff sued the defendants by a writ filed on 15 April 2005. Theendorsement of claim states that he claims damages fordefamation contained ina television program entitled "The Fisherman" which was broadcast at theTasmanian Hobart Summer Film Festivalduring the first week of January 2005 andwhich the first defendant (the ABC) intends to broadcast on 28 April 2005. Italso seeksan injunction to restrain the defendants by themselves, theiremployers or agents or otherwise from further publishing or broadcastingthedefamatory material (in the endorsement referred to as "the said libel"). Nostatement of claim has yet been provided.

2By an interlocutory application filed the same day, the plaintiff sought aninterlocutory injunction restraining the defendants"from publishing (includingbroadcasting) the documentary known as 'The Fisherman' at least insofar as thesaid documentary statesor implies that the plaintiff has been involved in thedisappearance of the Beaumont children or any children other than the childforwhich he was sentenced for killing in November 1975, until after Judgment inthis action" or further order.

3It appears that the plaintiff has not seen the film it is intended tobroadcast and the evidence disclosed little of its contents. Desirably Ishould have seen it. However, the defendants have conceded, for the purposesof the application, that the followingimputations (which I will refer to as"the imputations") are capable of being conveyed by it:

1That the plaintiff is a suspect in the disappearance of the Beaumontchildren.

2That the plaintiff is a suspect in the murder of the Beaumont children.

3That the plaintiff was a multiple killer of children.

4I take the reference to the Beaumont children to be to three children fromthe same family who disappeared in South Australiamany years ago, about whichthere has been much speculation published in the media over the years.

5In his affidavit in support of the interlocutory application, the plaintiffstated that in November 1975 he was convicted ofmurdering a young child andsentenced to life imprisonment. (Life imprisonment was mandatory at thattime.) Although he appliedfor parole some years ago, he has not been releasedfrom custody. However, he has again applied for parole and he intends to applyto the Court for resentencing shortly (a reference, no doubt, to resentencingunder theCriminal Code Amendment (Life Prisoners and Dangerous Criminals)Act1994). For many years he has been imprisoned at the Hayes PrisonFarm.

6By way of background, the plaintiff explained in his affidavit that at Hayeshe became involved in the prison's worm farm anddeveloped an interest and someexpertise in breeding an insect called the African Night Crawler, meal worms,cockroaches and in theprison's rodent program. In 1999 he was contacted bythe third defendant, Mr Davie, who claimed that he wanted to make a documentaryabout his activities at the worm farm. In a letter dated 7 September 1999, bywhich Mr Davie first contacted the plaintiff, Mr Davieexplained that"according to media releases, you are a keen fisherman like myself and a longterm serving prisoner in Tasmania" andthat "these are the reasons that I wouldlike to visit you". He wrote of talking to the plaintiff "about yourexperiences". Subsequently,they met on a number of occasions and theplaintiff gave Mr Davie permission to film his activities at the worm farm.From evidencetendered by the ABC, it appears that on 2 August 2001, anagreement between the plaintiff and Worm Farm Films Pty Ltd entitled "PersonalPermission Form" was signed by the plaintiff. It referred to "exposure" of theplaintiff in footage of a documentary being producedby the company with theworking title "The Worm Farm". The plaintiff agreed to allow his image,actions and voice to be recordedand/or transmitted and/or communicated in allmedia throughout the world. He agreed that he would not be entitled toinjunctiveor equitable relief because of any action or omission of Worm FarmFilms Pty Ltd or its assignees or licensees. The evidence doesnot show whatthe relationship may have been between Worm Farm Films Pty Ltd and thedefendants, but in any event, there was nothingin the agreement that could beconstrued as amounting to a consent by the plaintiff to the publication ofmaterial that was defamatoryof him or an undertaking by him not to seek aninjunction to prevent such a publication, unless perhaps the defamatorymaterial wasto be found in his own actions or words in the course of theproduction of the documentary.

7Presumably, Mr Davie at least had some connection with Worm Farm Films PtyLtd. The plaintiff's evidence was that at the timehe signed the agreement hehad been informed that the proposed film would only be about his activities atthe worm farm and not aboutthe crime for which he had been convicted, or anyother allegations against him of a criminal nature.

8In a letter from Mr Davie to the plaintiff that is likely to have been sentshortly after 24 March 2003, Mr Davie stated that"it was and still is my viewthat the person who was sentenced to imprisonment in 1975 is a different personto the one I have beenvisiting since September 1999" and he referred to "oneof the best ways of portraying this fact".

9In evidence was a clipping from the Mercury Newspaper published on 3 January2005. It consisted of an article about the documentary,which was to be one ofthe highlights at a film festival that week. The documentary was described asfollowing "former Victoriandetective Gordon Davie as he interviews prisonerJames O'Neill and tracks his path on the mainland before he came to Tasmania inthe 1970s". Mr Davie was reported by the Mercury as saying that he thoughtthat what he had read about the plaintiff in 1999 "showeda strong pattern ofbehaviour and [he] wondered if O'Neill could have committed other crimes beforearriving in Tasmania". The articlestated that the plaintiff had agreed tomeet Mr Davie and over four years they built up a relationship. Mr Davie wasreported assaying that he had started backtracking over the plaintiff's lifeand discovered a string of missing children in places where hehad been. Hereferred to eight children who had disappeared. Although he claimed not to saythat the plaintiff was responsiblefor the deaths, he expressed the hope thatthe film might cause the cases to be reopened, and then contradicted himself bysayingthat he was "convinced in my own mind".

10On the face of the material presented by the plaintiff, he was badly misledand deliberately told untrue representations byMr Davie concerning theproposed content of the documentary. But that is largely a background fact andhas little relevance to thequestion whether I should exercise my discretion togrant an interlocutory injunction against the defendants.

11Clearly, the imputations, if made with respect to the vast majority ofmembers of the public, would be grossly defamatory, andif it was a publicationfor the first time, I would have no hesitation in granting an application suchas the present one unlessthere were exceptional circumstances. However,before proceeding further to consider the merits of the application, it isappropriateto refer to a body of evidence that was tendered by the defendants.

12In October 2002, the second defendant, Roar Film Pty Ltd, contracted withthe ABC to produce the film. The second defendantowned 34.73 per cent of thecopyright in the film and Film Finance Corporation owned the balance. Thetitle of the film was to beThe Worm Farm, unless changed followingconsultation. The film was to be provided to the ABC which, in return for afee totallingover $114,000, exclusive of GST, was granted a licence tobroadcast it.

13The defendants sought to rely on copies of documents purporting to consistof interviews with the plaintiff conducted by thepolice in May 1975. Onepurports to contain a confession by the plaintiff to having abducted andviolently killed a boy at Taranaon the Tasman Peninsula on 4 February 1975.That was the boy with respect to whose death the plaintiff was convicted ofmurder. Another document purports to contain a confession by the plaintiff tohaving abducted and violently killed a 9 year old boy in thevicinity of theeastern shore of the Derwent and Richmond on 26 April 1975. I was advised bythe plaintiff's counsel that the confessionsare not admitted by him. Thedefendants say that they will rely on those documents in the course of provingat the trial that theplaintiff has murdered at least two boys.

14The defendants rely on the fact that similar, but far more detailed,imputations to the ones of which the plaintiff complainshave been made to thepublic in recent times. Copies of articles in the Hobart based Mercurynewspaper on 26, 27, 28, 29 and 30January 2005, and 6, 7, 8, 11, 12, 13 and 15April 2005, in addition to the one on 3 January 2005, to which I have alreadyreferred,were tendered. They contained many statements concerning theplaintiff, many of which are likely to have been highly defamatory. I willrefer to some of them. The Tasmanian Commissioner of Police was reported assaying that the plaintiff could be responsiblefor the kidnapping of theBeaumont children in 1966 and that he was convinced that the plaintiff hadmurdered more children thanthe one of which he was convicted in 1975. TheCommissioner was reported as saying: "He's got a real lust for kiddies. He's amultiplemurderer." It was also reported that the plaintiff was wanted inVictoria on 12 charges involving the abduction and sexual assaultof four boysin the 1970s and that the Commissioner had said that he was also a suspectconcerning the disappearance and presumedmurders of several boys and girlsaround Australia before 1974. However, South Australian police were reportedas saying that theyhad found no evidence to support the plaintiff'sinvolvement in the disappearance of the Beaumont children and that he had beendiscountedfrom their inquiries. Notwithstanding those denials, the TasmanianCommissioner was reported as maintaining what he had said andof saying "he'skilled plenty of other people", "he's a multiple murder" and "he would killother kids, there is no doubt in theworld if he gets out", adding "wediscovered that in the fortnight prior to the second boy disappearing thatthere were probablyfour if not five other children picked up, taken to remotelocations, and had managed to escape the person who abducted them andget awayrelatively injury free". He described the plaintiff as "cold blooded,psychopathic, a prolific liar ... would seek gratificationat all costs ... noremorse, no emotion, no guilt".

15Mr Davie was reported as saying "I know O'Neill has told other people hewas responsible for killing the Beaumonts", referringto a denial by theplaintiff as a refusal to confess. Mr Davie was also reported to have saidthat the plaintiff had murdered morechildren than the one for which he wasgaoled for life in 1975. A journalist, who was said to have worked with MrDavie on the documentary,was reported to have made similar statements, addingthat she was convinced that she knew where the Beaumont children were buriedand that she wanted an investigation into the murders she believed theplaintiff had committed before being imprisoned.

16Politicians became involved in the newspaper publicity. The Oppositionjustice spokesman called for the plaintiff to be immediatelymoved from theGaol Farm to the security of Risdon Prison, demanding that the Attorney-General"guarantee the safety of O'Neill'saccommodation arrangements to the people ofthe Derwent Valley". The Attorney-General was reported as saying that suchcalls were"scandalous". The Opposition spokesman was then reported accusingthe Attorney-General of "breathtaking arrogance and potentialrecklessness" andchallenging the Attorney-General to state publicly that she was personallysatisfied that housing the plaintiffat Hayes Prison Farm posed no risk to thecommunity.

17It was reported in the Mercury on 8 February 2005 that the plaintiff wasprepared to meet a reporter to establish pre-interviewguidelines and to havean article based on an acceptable level for him, but the Director of Prisonsprohibited the meeting. A referencewas made in the Mercury to a politicalstorm having erupted concerning a day-release program for prisoners which hadallowed theplaintiff to fish for trout in the Derwent River accompanied onlyby his pet dog. The Opposition spokesman then called for a representativeofvictims of crime to be a member of the Parole Board for "appropriate balance",to which the Attorney-General retorted that thesuggestion was insulting toexisting members of the Board.

18On 11 April 2005, the Mercury reported a claim by a man identified asLionel, who stated that he had been picked up by the plaintiffin a car when a10 year old and had escaped from his clutches.

19On 7 April 2005, the Mercury newspaper published having received a letterfrom the plaintiff's lawyer complaining that the Mercurywas attempting to keephim in custody through trial by media and that he considered it to be totallyirresponsible and grossly unfairthat he was being persecuted 30 years afterhis conviction. His lawyer said that he believed that he deserved a secondchance ifthe Parole Board deemed him suitable for release.

20Counsel for the plaintiff relied on the principles established inBeecham Group Ltd v Bristol Laboratories Pty Ltd(1968) 118 CLR 619 and,in accordance with them, submitted that the plaintiff had shown that he wouldhave aprima facie case for defamation against the defendants in view ofthe imputations that he is a suspect with regard to the disappearance andmurderof the Beaumont children and a multiple killer of children.Acknowledging that the plaintiff's reputation has already suffered becauseofhis conviction and imprisonment for murder and the publications that appear tohave been made by the Commissioner of Police, MrDavie, the Mercury and others,the plaintiff's counsel nevertheless submitted in effect that what is left ofthe plaintiff's reputationis likely to be injured by the proposed publicationand that it is likely that some persons, more than before, will be induced toshun, avoid, ridicule or despise him because of it. See theDefamation Act1957, s5(1)(a) and (c). He pointed out that the persons who will watch theABC's broadcast are likely to include many people whowould not have seen theMercury's publications, particularly people in northern Tasmania. He alsopointed out that the defendantshad not sought to establish that they wouldsuffer any inconvenience if the broadcast of the imputations was to be delayeduntilafter the hearing of the action. On the other hand, he referred to therisk that the publicity might influence the minds of membersof the ParoleBoard against him, when they come to consider his application for parole. Ithink that last submission has littlemerit, having regard to the extensive andearlier publicity the Mercury has already given to similar, and other,imputations concerninghim and the integrity that he is entitled to expect fromthe individual members of the Board.

21For the defendants it was submitted that to say of a convicted murderer ofa child who was abducted by him that he is suspectedof being responsible forthe murder and abduction of other children, is unlikely to injure hisreputation. Associated with thatsubmission, it was argued that an imputationthat a person is suspected of a crime is not as serious as one that the personis infact guilty of it. Reliance was placed on what was said inMirrorNewspapers Ltd v Harrison(1982) 149 CLR 292 by Mason J at 300 - 302, tothe effect that to say that a person has been charged with a crime is to saythat the person is suspectedof committing it and does not impute that he orshe is in fact guilty.

22To say that a person is in fact a multiple killer of children is a muchmore damming statement, and far more likely to amountto defamatory matter,although once again it was submitted for the defendants that the plaintiff'sreputation is already so bad thatit is unlikely to have been further injuredand, as I understood what was submitted, it is unlikely that other persons arelikelyto be induced to shun, avoid, ridicule or despise the plaintiff morethan they already do.

23Counsel for the defendants referred toChurch of Scientology ofCalifornia Inc v Reader's Digest Services Pty Ltd[1980] 1 NSWLR 344,Chappell v TCN Channel Nine Pty Ltd(1988) 14 NSWLR 153 and a number ofEnglish cases in support of the proposition that the power to grant aninterlocutory injunction to restrain an allegedlydefamatory publication shouldbe exercised with great caution, only in very clear cases and usually not incases where the defendantasserts that it has good defences. But as was madevery clear by Hunt J inChappell, there are no rigid rules relating tothe question. I have an unfettered discretion.

24Particular reliance was placed by the defendants on the statement of Hunt JinChappell at 164, following upon what his Honour said in theChurchof Scientologycase at 351 - 352, that an interlocutory injunction will notusually be granted "where such an injunction would restrain the discussioninthe media of matters of public interest or concern". It was submitted that theconcept of "public interest" in other jurisdictionsis effectively the same asthe concept of "public benefit" in theDefamation Act. Counsel for theABC, whose submissions counsel for the other defendants generally adopted, saidthat his client would plead thedefence of truth and public benefit. SeeDefamation Act, s15. He said that his client would endeavour to provethat the imputations were true. Obviously there will be little difficultyinproving that the plaintiff is suspected of being involved in the disappearancesand possible murders of the Beaumont childrenin the light of the Mercury'spublications. Whether it can be proved that the plaintiff is a multiplemurderer of children is notso clear. Counsel for the ABC asserted that itwould be proved at the trial. Counsel for the plaintiff said that his clientdeniedit.

25I think that a greater problem for the defendants will be to establish thatthe publication of the imputations will be for thepublic benefit. Thesubmissions of counsel for the defendants about the matter at the hearing wereslight in substance and in content. It appears that was due to a belief thatcounsel for the plaintiff had conceded the issue of public benefit. I had notunderstoodthat such a concession had been made, but I agreed, at the requestof counsel for the ABC, that written submissions about the topicwould beallowed. Those submissions were received by me at a late point in time today,about which I make no complaint, for it isunderstandable. I have consideredthem but have not had time to respond in detail in these reasons. They do notpersuade me toalter my conclusions.

26For the information of counsel, I advise that a check of the relevantpassage in the Court's recording of the hearing revealswhat happened was asfollows. Counsel for the ABC submitted that there was no difference betweenthe concept of public benefit inthis jurisdiction and the concept of publicinterest in other jurisdictions and he referred to a text and some authoritiesaboutthe matter. Counsel then said:

"It's just two ways of saying the same thing. As his Honour Justice Higginssays, it's difficult to think of circumstances whereone would be satisfied butnot the other. And it's not a matter of controversy, and I don't think yourHonour will hear my learnedfriend Mr Green suggest otherwise, that matters ofcrime are quite obviously matters of public interest."

At that, counsel for the ABC leaned over Mr Green, who nodded. Counsel for theABC then said:

"My friend's indicated that we've agreed on that. Your Honour might regardthat as a matter which is not in contest."

27I do not consider by nodding, Mr Green conceded that it was not an issuethat the publication of the imputations would be forthe public benefit. Byagreeing that matters of crime are matters of public interest is a far cry fromconceding that the publicdissemination by the media of all matters relating tocrime, or matters concerning crimes allegedly committed by the plaintiff, willbe for the public benefit.

28My view is that, in general, it is not for the public benefit that themedia should publicly allege that a person has committedcrimes of which he orshe has not been convicted, whether or not there are currently proceedingsafoot with respect to the crimes. It is instead in the public interest thatsuch allegations should usually be made to the public only as a result ofcharges andsubsequent conviction. That the media on occasions makes suchallegations is often referred to as "trial by media", of which itappears theplaintiff complained to the Mercury. However, so far as concerns theimputation that the accused is a multiple killerof children, a moreappropriate description in this case would be "conviction by media". Nosuggestion of a trial, as we understandthat word, will be involved here.Similarly, I can see no aspect of public benefit in the making public ofallegations that the plaintiffwas responsible for the disappearance and murderof the Beaumont children or that he is suspected of being responsible. Theresponsibilityowed to the public with regard to the investigation of crime isentrusted by our society to the police and other public investigatorsandprosecutors. If there is evidence available that might assist the authoritiesto investigate the disappearance of the childrenin question, it should be madeavailable to them. I have difficulty accepting that it is in the publicinterest that instead, suchinformation be bandied about in public. Therewill, of course, be cases when in the light of prior public statements by thepersonwho is being defamed, or the public conduct of that person, it will befor the public benefit to publish allegations of that kindto the generalpublic, but I have difficulty seeing that this is such a case. It issufficient to say that the claim of the defendantsto "public benefit" may wellbe unsuccessful.

29It follows from what I have been saying that I am unpersuaded that thegranting of an interlocutory injunction restraining thedefendants frompublishing the imputations will "restrain the discussion in the media ofmatters of public interest", as that expressionwas used by Hunt J inChappell's case at 164, applying, of course, the law's use of the term"public interest".

30Counsel for the ABC also said that his client will plead the defence offair comment that is available by virtue of s14(1)(a),(d) and (h). Counselfor the other defendants was not enthusiastic about the prospects of such adefence succeeding. Paragraph(d) concerns fair comment about the merits of acase. There is no reason to think that such an issue will arise at the trialofthe plaintiff's action. Paragraph (h) concerns fair comment about acommunication made to the public on any subject. I did notunderstand counselto identify what the relevant communication was and I think that the defendantswill have some difficulty at trialwith the requirement for fairness. Counselfor the ABC said that par(a) is the most obvious paragraph that applies to thiscase,but I cannot see that it would found a defence, for it brings in theprovisions of s13, none of which conceivably arise here.

31The defendants also intend to plead qualified privilege pursuant tos16(1)(h), but as that defence requires public benefit tobe established, itslikely success is open to doubt. Counsel for the second and third defendantssaid that his clients will alsorely on s16(1)(c) and possibly also (e).Paragraph (c) concerns a publication "for the public good". I think that adefence relyingon that may have difficulty for the reasons I expressed whendealing with the question of public benefit. I regard par(e) as likelyto beinapplicable in the circumstances of the case. Once again, it would raise thequestion of the public's interest or benefit.

32The defendants submitted that delay by the plaintiff in taking proceedingsshould count against him. As I understand it, theperiod of the delay uponwhich they seek to rely is from an unknown date in January last until thecommencement of the action onthe 15th of this month. There is no evidenceestablishing when the plaintiff first knew of the intention of the defendantsto publishthe imputations that have been raised here. Counsel for the ABCreferred to the contents of an article in the Mercury newspaperon 3 Januarylast, but there is no evidence that the plaintiff was aware of it prior to theday upon which he commenced the action. I conclude that there is no evidenceof relevant delay. Further, there is no evidence that the defendants have insome way suffereda detriment because of any delay on his part. The complaintof delay is unimpressive.

33I find unpersuasive the fact that the plaintiff may already have beendefamed by the public viewing of the documentary at thefilm festival inJanuary and by the publications of the Mercury newspaper on a number of datesthis year. That he may have beendefamed before cannot justify thecontinuation of defamatory statements, notwithstanding that his reputation mayhave suffered badlyas a consequence of the earlier ones. He has demonstratedaprima facie case that the publication of the imputations will amountto actionable defamation and in the absence of any suggestion of inconvenienceto the defendants, an interlocutory injunction will be granted. Ultimately, acourt, constituted either by a judge alone or by ajudge with a jury, may findagainst the plaintiff or award him only nominal damages, but thosepossibilities are not persuasive tome when resolving the appropriate outcomefor the application.

34Nor do I find persuasive the argument that damages may be an appropriateremedy. Admittedly, if the plaintiff's case is sound,he has already beendefamed to many members of the public and the publication intended by thedefendants will merely add to that. Nevertheless, he is entitled to the law'sprotection and no suggestion was made by counsel for the defendants that if hisactionis successful, it is unlikely that the Court would be persuaded torestrain further publications of the imputations.

35I infer that it is likely that in part. at least, the film has beenproduced by Mr Davie and the second defendant with a motivefor commercialprofit, and that in part at least, the ABC wishes to broadcast it to improveits ratings. Such considerations favourthe granting of the injunction for theprotection of an individual.

36Much was said at the hearing by counsel for the defendants about the needto uphold and protect the freedom of the press. Butlike all freedoms, it isnot an absolute one. The protection of individuals from the power andinfluence of the media is also important.

Orders

37Upon the usual undertaking of the plaintiff as to damages having beengiven, it will be ordered that until judgment in thisaction or earlier order,the defendants are restrained by themselves, their servants and agents, frombroadcasting or otherwise publishingto the general public any part of thedocumentary known as "The Fisherman" that imputes or implies that the plaintiffwas responsiblefor or is suspected of being responsible for the disappearanceor murder of children commonly referred to as the Beaumont childrenor that theplaintiff is a multiple killer of children.