Tag Archives: Derryn Hinch

DEFAMATION CASE UPDATE: Zoef v Nationwide News Pty Ltd – identification and offer of amends appealed #MLGriff

By MARK PEARSON

CASE UPDATE: Zoef v Nationwide News Pty Ltd – 2015, 2016 and 2017

I blogged in 2016 about a case where the mistaken identification of an innocent octogenarian tailor in place of his alleged gun-running son produced a useful case study for media law educators trying to explain the basic elements of defamation.

Indeed, the NSW District Court case of Zoef v Nationwide News Pty Limited & Ors [2015] NSWDC 232 remains an excellent introduction to defamation, although in October 2016 the NSW Court of Appeal overturned the publisher’s defence of “offer of amends” which was originally granted by the lower court, in the appeal case of Zoef v Nationwide News Pty Ltd [2016] NSWCA 283, and awarded the plaintiff $150,000 in damages. The appellant, Mr Tony Zoef, also had a partial victory in a more recent appeal over the backdating of the damages award, costs and interest owing in Zoef v Nationwide News Pty Ltd (No 2) [2017] NSWCA 2.

The first appeal is useful for educators explaining identification issues in defamation and the “offer of amends” defence requirements under s 18 of the Defamation Act 2005 (NSW) (Defamation Act) – and its equivalent in other Australian jurisdictions – while the 2017 appeal holds little value for media law teachers.

The case centred upon an article published in The Daily Telegraph on 22 August 2013.

It appeared a relatively straightforward case of confused identity, where the reporter mistakenly attributed to the older Mr Zoef – a suburban Sydney tailor – the alleged crimes of his son who lived at the same address. At trial, the sole basis on which Mr Zoef’s claim was dismissed was the newspaper’s defence that Mr Zoef had failed unreasonably to accept its offer of amends.

The article in the Telegraph (22-8-13, p. 9) carried the heading “Tailor’s alter ego as a gunrunner”, which might also make an interesting topic of discussion for students around the issue of sub judice contempt: Does such a heading carry a presumption of the accused’s guilt when accompanying a report of a preliminary court appearance? [The article in question is attached to the judgment as a pdf file.]

The article portrayed a then 81-year-old suburban tailor (with a distinctive surname ‘Zoef’) as a gun-runner who had been arrested, charged and appeared in court facing charges related to him holding a huge cache of weapons and ammunition at his home.

Police had indeed raided his premises and had found weapons and ammunition in the house’s garage, occupied by the tailor’s 43-year-old son, who shared his father’s name and was the actual individual who had appeared in court facing those charges.

As I blogged in 2016, the trial judgment by District Court Judge Leonard Levy is a fascinating one for student discussion because several basic concepts in defamation were contested and resolved, including:

  • imputations – how they are worded and presented
  • the misidentification’s impact on the plaintiff’s relationships, business and emotional state
  • the question of identification and case law establishing the extent of defamation of a second person with the same name and address as the first [*** considered on appeal].
  • whether a claim for defamation will hold when some other identifying factors do not match one of the named individuals. [In this case, while the headline identified the plaintiff as a tailor, the article featured a small photograph of his 43 year old son and mentioned the younger man’s age]. [*** considered on appeal].
  • whether the defences of a fair report of proceedings of public concern could apply when there were serious inaccuracies in the article
  • whether an offer of amends had been reasonable and whether it had been accepted by the plaintiff [***the trial judge’s decision which was subsequently overturned on appeal].

The trial judge had held that, despite the serious errors in the reporting of the story and a dispute over whether the publisher’s offer of amends was reasonable and had been withdrawn, the newspaper was entitled to the offer of amends defence.

In the leading appeal judgment, Justice Fabian Gleeson stated:

Taking into account the seriousness of the defamatory imputations and the significant hurt they caused the appellant, the damage to his business as a tailor, the unequal prominence the respondent afforded to the proposed correction and apology and their resultant inadequacy, the modest monetary component of the offer, and the likelihood of the proceedings being successful, the offer of amends was not reasonable. His Honour was in error in finding to the contrary and upholding the respondent’s defence under s 18 of the Defamation Act. (at para 78).

His reasons for that decision involved a step-by-step appraisal of the offer of amends defence and thus make useful instructional material for educators wanting to explain this defence to students. It should also serve to remind journalists that the offer of amends is very much a ‘lawyers’ defence’ – not something that should be handled by journalists or editors independent of legal advice – and given its time constraints it means that counsel from lawyers on the efficacy and wording of any such offer should be sought promptly.

The publisher also challenged the trial judge’s findings on whether the plaintiff had been identified in the article when it carried a photograph of his son and stated his age as 43 years old.

The Court of Appeal affirmed the trial judge’s decision that Mr Zoef Sr had been identified in the article despite those countering factors. Justice Gleeson ruled:

The article in this case contained a prominent and sensational headline, which, when read together with the first paragraph (par 29), would be reasonably understood to refer to the appellant. The strength of the general impression thereby created surpasses and dominates that of the subsequent reference in par 30 to a “43 year old” which is not something the ordinary reasonable reader might be expected to have focused on, let alone re-read or reviewed. It lacked the prominence of the sensational headline and the focus on the local, relatable indicia of the identified person’s name, profession and locality in the foregoing paragraph.

In respect of the photograph, his Honour’s finding that it was “immaterial” is supported by three considerations. One is that the photograph was small, cropped, and, as his Honour found, “less than distinct”. Next, the appellant gave unchallenged evidence in cross-examination that his son was not known to his customers. No identification would therefore have been made on a visual basis by the appellant’s customers. Finally, the use of historical photographs in newspaper articles is not so uncommon as to render unreasonable a conclusion by the ordinary reasonable reader that the article (with an unfamiliar photo) referred yet to the appellant. (paras 159-160).

So there you have it. The Zoef case – both at trial and on appeal – holds valuable lessons for media law students and educators are encouraged to use it as a case study. I have done so successfully with both journalists and tertiary students.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2017

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Barrister and co-author Mark Polden chats with @journlaw on #defamation defences: #MLGriff

By MARK PEARSON

Defamation laws can be intimidating for journalists, bloggers and other professional communicators. The key, according to barrister Mark Polden, is in researching and writing to the basic defences.

Mark Polden was in-house counsel at Fairfax Media for many years before going to the Bar, and is my co-author of The Journalist’s Guide to Media Law (Allen & Unwin).

In this 11 minute interview with @journlaw, he outlines in simple terms the three ‘bread and butter’ defences used by writers and publishers – truth, fair report and honest opinion (fair comment).

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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On Skype with @journlaw – barrister and co-author Mark Polden on #defamation basics: #MLGriff

By MARK PEARSON

Exactly what is defamation and how does it apply to your average journalist or blogger?

That’s what I asked barrister Mark Polden in this short interview on defamation basics. Mark Polden was in-house counsel at Fairfax Media for many years before going to the Bar, and is my co-author of The Journalist’s Guide to Media Law (Allen & Unwin).

Here he offers a lay definition of defamation and gives some examples of how journalists, bloggers and other professional communicators might write to minimise the threat of legal action.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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15 mins with @journlaw – Peter Gregory on ‘contempt and the court reporter’ #MLGriff #medialaw

By MARK PEARSON

We hear about the many types of contempt affecting the role of the court reporter – but how does a journalist manage this in practice?

That is exactly the issue I raised with veteran court reporter (now academic) Peter Gregory [@petergregory17] in this interview covering the main types of contempt of court affecting court reporting – contempt in the face of the court, disobedience contempt, sub judice (prejudicial reporting) and interference with the deliberations of jurors.

Gregory – author of Court Reporting in Australia (Cambridge University Press, 2005) – explains how court reporters might be affected by such forms of contempt, offers examples from his own career, and suggests how journalists might adjust their own practice to minimise risk.

CourtReportinginAustraliacoverHe looks at the impact of new technologies – particularly social media – in the courtroom. Finally, he assesses the dynamics of social media and traditional media at play in the major Victorian trial of the murderer of Irishwoman Jill Meagher (Adrian Bayley) which resulted in the jailing of blogger Derryn Hinch on a contempt charge after disobeying a suppression order.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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#Hinch (@HumanHeadline), #Morcombe and open justice – lessons in media law

By MARK PEARSON

It is timely that in the space of a week we should see the Human Headline (@HumanHeadline) Derryn Hinch released from jail for a publication offence and a serial offender receive a life sentence for the sex murder of teenager Daniel Morcombe.

CatchingTheDevil(Morcombefrontpage14-3-14)C-M

Courier Mail front page 14-3-14

We learned yesterday after Brett Peter Cowan was convicted of that 2003 crime that he had served time twice earlier for similar offences.

He is exactly the kind of individual that Hinch wants placed on a public sex offender register for exactly the reason most talkback callers and social media commenters are asking this question: How can we release such individuals anonymously into our communities when we cannot be sure they will not strike again?

Hinch asked it again this morning:

Hinch became the first Australian journalist jailed this millennium for a publishing offence when he was jailed for 50 days refusing to pay a $100,000 fine for breaching a suppression order on the prior convictions of Adrian Ernest Bayley – the accused sex murderer of ABC worker Jill Meagher in Melbourne in 2012.

In 2011 he was sentenced to five months of home detention for publicly naming two sex offenders at a rally and on his website in defiance of such anonymity orders.

In 1987 he was jailed on a contempt of court charge after broadcasting the criminal record of a former priest Michael Glennon accused of child sex offences and implying his guilt in his high rating Melbourne radio program.

It was only by a 4-3 majority that the High Court later stopped short of overturning Glennon’s conviction on those sex charges on the grounds of Hinch prejudicing his fair trial. (Glennon died in jail this year.)

Journalists and media law students have much to learn from the events of the past week.

While the crimes themselves left a trail of human destruction, the Hinch and Morcombe stories make for ideal case studies in a media law module covering open justice, contempt of court and court reporting – the exact module my students will be starting next week.

They will get to research and debate these kinds of important questions that arise from the week’s events:

  • What public policy issues are at play that see a journalist jailed for reporting the past convictions of an individual convicted of a high profile crime?
  • What does such a penalty say about Australia’s standard of media freedom?
  • Why is Australia’s approach to this level of suppression different from that applying in the United States?
  • Why should the mainstream media be prevented from reporting such material when social media platforms and certain websites are full of it?
  • Why would Hinch’s blog and Twitter feed where he breached the suppression orders over Bayley not represent a ‘real risk of prejudice’ to the trial, when mainstream media coverage might do so?
  • How can juries be quarantined from such information and – if they can’t – why shouldn’t the media be allowed to publish it?
  • Do other methods of dealing with juries – judges’ instructions, training, sequestering etc – mean we no longer need to suppress such material?
  • Are the past offences of such criminals matters of such overwhelming social importance and public concern that suppression of the details should be considered contrary to the public interest?
  • Should the Courier-Mail’s front page heading of February 21, 2014 – ‘Daniel’s Killer’ – have forced the trial to be aborted? Should it be grounds for a sub judice contempt charge? Should it be grounds for Cowan’s appeal?
  • How can a journalist report upon such proceedings in an interesting and timely way while navigating the various restrictions that apply?
  • How ‘open’ should ‘open justice’ be in such high profile trials? Should cameras and smartphone recordings be allowed in court? Should tweeting and other social media usage be allowed in court?
  • Is it appropriate in the modern era of communication that a major television network has to rely on a presenter standing outside a courthouse relaying sentencing information to the audience from a court reporter on the inside via telephone?
  • How much social media commentary should be tolerated about such cases while an accused is facing trial?

I’m sure many other questions arise too – and would be keen for other educators, journalists, lawyers and students to use the Comments section here to pose them so my students can take them up in lecture and tutorial discussions.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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The Human Headline legacy – the jailed Hinch, suppression and free expression

By MARK PEARSON

Broadcaster, tweeter, blogger and veteran journalist Derryn Hinch – the self-proclaimed ‘Human Headline’ – has been released from jail after serving a 50 day sentence for breaching a suppression order. 

Derryn Hinch's 'Human Headline' blog - Countdown to Freedom

Derryn Hinch’s ‘Human Headline’ blog – Countdown to Freedom

Hinch had refused to pay a $100,000 fine over his blog and Twitter comments including suppressed background material on Adrian Ernest Bayley, accused of the Melbourne murder of Irish woman Jill Meagher.

Hinch has been jailed twice, fined and sentenced to home detention for his contemptuous reportage and commentary about sex offenders over more than a quarter of a century.

While much of the coverage of his prosecutions and trials has focused on his cavalier and principled stance in the vein of his ‘Human Headline’ moniker, he has also been responsible for a body of case law covering sub judice contempt, the naming of a child sexual assault victim and the defiance of suppression orders – in his television and talkback radio programs, blogs and Twitter feeds.

I am preparing a paper for the ANZCA conference in Melbourne in July, reporting on a legal and textual analysis of eight key Victorian and High Court cases involving Hinch as a party in 1986, 1987, 1996, 2011 and 2013.

It reviews these key cases involving Hinch as a defendant and an appellant since 1986 – including Magistrates, Supreme Court, Court of Appeal and two High Court judgments – and identifies the key media law principles shaped in the process.

It concludes that the Hinch legacy is far more significant than his shallow ‘Human Headline’ title suggests – and ventures into important human rights questions arising in the complex legal and moral terrain where free expression, the ‘public interest’ and the ‘public right to know’ compete with an accused’s right to a fair trial, an ex-prisoner’s right to rehabilitation and a child’s right to protection from sexual predators.

For example, Hinch’s appeal to the High Court over his contempt conviction in 1987 was unsuccessful but resulted in a broadening of the public interest defence to sub judice contempt.

His latest case offers an excellent summary of the relevant factors considered in deciding whether there is a real risk of prejudice to a trial, because Hinch was acquitted on a second contempt charge that his blog ‘had a tendency, or was calculated, to interfere with the due administration of justice in the trial of Bayley’.

Victorian Supreme Court Justice Stephen Kaye ruled that three factors combined to reduce the tendency of Hinch’s blogging to prejudice potential jurors: the small readership of the article, the period of delay between the publication of the article and the likely trial date of Bayley, and other prejudicial material about Bayley circulating in the media and social media at the time (para 114). While ‘highly prejudicial’, Justice Kaye had a ‘reasonable doubt’ in light of those three factors that the article would have prevented Bayley getting a fair trial.

I will post updates on this paper as the research and writing unfolds. Meanwhile, no matter what you think of Hinch’s bravado in his naming and shaming of sex offenders, at least this week we should be able to celebrate the release of an Australian journalist from jail.

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Disclaimer: While I write about media law and ethics, nothing here should be construed as legal advice. I am an academic, not a lawyer. My only advice is that you consult a lawyer before taking any legal risks.

© Mark Pearson 2014

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Filed under blogging, contempt of court, courts, free expression, media ethics, Media freedom, media law, Press freedom, sub judice, suppression, Uncategorized