During the evening of 11 December 2008, Tyler Cassidy, a 15 year old boy had stolen two large knives from Kmart at Northcote Plaza Shopping Centre, near All Nations Park. He moved through the shopping centre, its shops and car park, threating people with the knives and demanding that the police be called.
By the time he was in the park, four officers, including the plaintiff, Leading Senior Constable Colin Dods arrived at the scene. There was a confrontation between Cassidy and the police, and Cassidy refused to obey their calls to throw down the knives. He started to slowly advance towards the police in a threatening manner. Dods was separated from the other officers and Cassidy advanced towards him with knives in hand. Dods gave a warning shot which Cassidy ignored and continued to advance.
Dods feared for his life and fired two shots into Cassidy’s legs. When Cassidy continued to advance, the other officers fired several shots towards him. Cassidy was hit and died at the scene minutes later.
The Coroner
There was public outrage, there was media and eventually there was a Coroner’s Inquest that was held to investigate the death in late 2010. The hearing took 36 days, the findings ran for 129 pages and had 696 paragraphs. The findings were publicly available and the Coroner found that:
- Dods did not contribute to Cassidy’s death;
- Cassidy was shot when Dods was at risk of serious injury or death;
- Dods was a dedicated police officer and had responded within the limitations of his training.
The defendant, a Queensland barrister, uploaded a website: www.justice4tylercassidyjust15.com. On it, he wrote a whole raft of allegations, including material that was published about Dods. The plaintiff sued on the website, which included the following words:
“Who, or what, then, is Colin DODS?
Why do we know absolutely NOTHING about the individual who holds the record for killing the youngest person in Australian history, ever killed by a Police Officer?”
Dods argued that the first publication meant and was understood to mean that he:
- Executed Tyler Cassidy;
- Shot and killed Tyler Cassidy without any or any adequate reason;
- Committed manslaughter.
The second publication that Dods sued on, also on the website, included the following words:
“Tyler Cassidy did nothing to give 3 Victorian Police Officers the licence to execute him on 11 December 2008. He was a good, 15 year old kid, having a bad day, who acted impulsively and emotionally, under provocation. For that one bad decision, he was executed.”
……
Who killed Tyler & why has nobody been charged?
It seems that the Victorian Attorney-General and the Victorian Police Minister are unaware that Victorian Police Officers are subject to the Law. It is unlawful for them to use force that is out of proportion to any threat posed by an alleged perpetrator. It is clear that, at least 1 of the 3 Victorian Police officers, Sergeant Dods, used excessive force which was out of proportion to any threat posed by Tyler Cassidy, when he fired 6 shots at Tyler and killed him…..
Tyler would have been blinded by the capsicum spray and, as experienced Police Officersm those 4 police officers, especially Sgt Dods, would have known that fact. In the circumstances, it should have been a relatively simple matter for the 4 trained Police officers, one of whom was an experienced Sergeant, to overpower Tyler, without anybody being harmed. It may have taken longer than 3 minutes to do so, but it should have been possible. They were in a 13 hectare park. There were no members of the public around; there were 4 highly trained and heavily armed Police Officers on the one hand and a slightly built, agitated and half-blinded teenage boy on the other.
The question that must be answered is why did 4 trained Police Officers fail to subdue a slightly built, inexperienced and partially blinded teenager, other than by shooting 6 bullets into him and killing him!
…… they should ensure that, at the very least, Sgt Colin Dods is charged with the offence of manslaughter.”
Dods alleged that this meant that:
- He executed Tyler Cassidy;
- He shot and killed Tyler Cassidy like he was a monster and a dangerous mongrel dog;
- In shooting at Tyler Cassidy six times and killing him, he unlawfully used excessive force out of proportion to any threat posed by Tyler Cassidy;
- He chose to shoot Tyler Cassidy, a slightly built, inexperienced and partially blinded boy, six times when he knew or ought to have known that he and other police present could have otherwise overpowered Tyler Cassidy without anybody being harmed.
In July 2012 and January 2013, Dods emailed the defendant and stated that, in light of the Coroner’s findings, the allegations against him on the website ought to be withdrawn and the defendant should apologise. He never apologised. The matter went to trial.
The defendant was a barrister from Queensland
In the course of the litigation, the defendant pleaded four versions of a defence, the last of which was filed at the start of the trial. He variously claimed the following defences at various times: qualified privilege for discussion of government and political matters, truth, contextual truth, fair comment, honest opinion, fair report of proceedings of public concern and triviality. He also alleged that the claim was statute-barred.
By the time the trial came around, the defendant argued only that the claim was statute-barred because there had been no publication in the 12 months before proceedings were issued and claimed triviality. All other defences were dumped.
The trial proceeded in front of a jury in late 2015 and ran for 6 days. The defendant himself did not give evidence and at the end of the plaintiff’s case, made a submission that he had no case to answer and did not have to call any evidence at all.
The basis for that was a claim that the plaintiff had only called evidence from one person, a friend, who had read the website during the 12 months before proceedings were issued. It also was the case that she had read the material previously and so the defendant argued because she had read it before, re-reading it was not enough to prove publication.
Justice Bell dismissed the application to have the case thrown out. His Honour concluded:
- The plaintiff’s case was not just based on evidence of publication to one person, but was also based on an inference from the rest of the evidence that other people had read the website. His Honour found that given the public notoriety of the case, such an inference could be made and directed the jury in that way; and
- As a matter of law, evidence of the witness who downloaded and read pages from the website containing the statements inside the limitation period was evidence of publication to her even though she had previously downloaded and read the page. This was because it was a case of continuing publication by the defendant.
The matter then went to the jury to answer the questions: did the website convey the imputations complained of? Did the defendant have the defence of triviality? In layman’s terms: the pie in the sky defence.
The plaintiff was a member of Victoria Police
The jury found for Sergeant Dods. Yes, the website was defamatory. For starters, it meant that Sergeant Dods had executed Tyler Cassidy: That is defamatory. It also meant that he gunned down Tyler Cassidy like he was a monster and a dangerous mongrel dog: That is defamatory. Further, it meant that by shooting him, he had committed manslaughter: Very defamatory.
It was then for Justice Bell to assess damages. His Honour found that Sergeant Dods had a good reputation as a respected member of the community and sergeant of police. That he had suffered intense distress, humiliation and embarrassment. That it caused great harm to his reputation and that despite a limited scope of publication, it was necessary to award him a sum to vindicate his reputation and to “nail the lie”. It was necessary to demonstrate to all the world that the defamatory publication represented a baseless challenge to the moral foundation of the plaintiff’s personal integrity and to his public standing. All nice reading for the plaintiff.
Also, His Honour found that the circumstances justified an award of aggravated damages. The reasons included that the defendant had failed to apologise, despite knowing of the Coroner’s findings and had persisted with a raft of defences, including truth, right up until the commencement of the trial, when they were abandoned.
As for the damages, His Honour landed on the figure of $150,000. A hefty price for the defendant to pay. Pretty sure that he will also be left with costs of the trial, and perhaps considering whether he should have relied on his discussion of government and political matters defence after all.
Mildura Water Corporation Appeal hosed down: Lower Murray Urban and Rural Water Corporation v Di Masi & Ors [2014] VSCA 104
Two of the winning plaintiffs
In 2012, a jury in the Supreme Court of Victoria sat in Mildura, a small orange-picking town on the border of NSW, for 22 days (there were a further four days of legal argument) and heard a defamation case. At the end of it all, left with a list of pages of questions to answer, the jury found for the four plaintiffs, three of whom were awarded $70,000 and the other $85,000.
The defendant, who had turned down an offer of compromise where the plaintiffs said that they would accept $20,000 (in hindsight: not a good call), appealed.
What happened was this:
At trial, the appellant ran several defences, including that the letter written by the Minister was “issued” by the government and was therefore a public document, within the meaning of section 28 of the Defamation Act. The trial judge rejected this argument and this was one of the main aspects of the appeal.
The Court of Appeal upheld the trial judge’s findings in virtually all respects. It agreed that the letter was not “issued”, because it was only sent to former customers of FMIT, it was not of a genuinely official nature and it was not published to the public. Therefore, that s.28 defence failed: [70].
The appellant also argued that the trial judge was wrong when he rejected the section 30 Defamation Act defence, namely that the recipients had an interest in the subject matter and the appellant had a duty to publish. That was rejected because it was held that the appellant’s conduct was not reasonable, which is required by section 30(3) of the Act.
To answer that question, it was held that the Court could look at the subjective intent or purpose of the publisher [87]. The appellant had acted unreasonably because at the time of uploading the letter, the appellant had information that showed that, contrary to the letter, the board had not invested the money borrowed from the government in the United States, and the appellant did nothing to put the plaintiffs’ side of the story.
The appellant also complained about the amount of damages, since the trial judge had relied on the “grapevine effect” in a rural community. This too was rejected.
So the trial judge was validated in virtually all respects and the appeal was dismissed. Since then, defamation judges in Victoria have always been cautious about the barristers’ trial length estimates. Fortunately for Mildura, the case was not remitted back to determine a question or two, and presuming no leave was sought to appeal to the High Court, the case has now come to an end.