Hocken v Morris [2011] QDC 115

[27] But, in the end, nobody wished to take this issue any further. Thus, I am left with some lingering concern that an explanation that might have been provided about the true nature about any relationship between the plaintiff, the plaintiff's wife and the defendant remains unresolvable. Although it does not particularly matter because I have accepted the plaintiff's evidence as to relevant events in mid-2008 in preference to answers given in evidence by the defendant, the specific reason why the defendant would place such posters in public places concerning the plaintiff must remain a mystery.

[28] The plaintiff called, besides Mr O'Hara, his wife, his daughter, his brother, and two persons who lived in the locality.

[29] Dealing with the last category of persons first, Linda Joy Zegenhagen was a person who did not know, when she first saw a relevant poster, the plaintiff, although she knew who he was because he played cricket with her eldest son and she had known of his name in the community for a long time. She saw a poster of the relevant kind on the noticeboard of that IGA supermarket at Samford in May 2008. She gave evidence that she knew of the publicity surrounding Daniel Morcombe, being that he had disappeared, he as a young boy and she thought everyone in Australia felt for his family and what had happened to him. When asked about her reaction on first seeing the poster, she stated that she was horrified and took the poster down to take home to show her husband. She stated that the noticeboard at the IGA supermarket at Samford was something that you walked past every day as you went to buy bread, milk and the paper. She gave evidence of the other type of shops in the Shopping Centre, indicating that there would be hundreds of people going through that Centre every day, including the weekends.

[30] When Mrs Zegenhagen was asked what she thought concerning the plaintiff when she saw the handwritten words on the poster, she stated that she was horrified because she was the mother of two boys and had followed the Daniel Morcombe case. Nevertheless, she did not think ill of the plaintiff, stating that she "just thought, how could someone put that on a noticeboard" when the plaintiff "was a valued and respected member of our community". When asked what she took the poster as a whole to mean, she responded that it was "very vindictive" and that she "just couldn't believe how someone could do that to someone in our community", adding that it was "not something you would want to do to your worst enemy" (explaining that people who did not know the plaintiff may have had doubt put in their minds that he may have been guilty). The defendant declined to ask her any questions.

[31] Thomas Innes Graham Jessup lived, at the material time, at 5 Winchester Avenue, directly opposite the plaintiff's residence. He stated that he did not know the defendant, but had known the plaintiff since moving there some seven or eight years ago. He also said that he knew the plaintiff to be active in the community. As for the poster, the only one that he could particularly remember was a poster placed on the noticeboard at the IGA supermarket at Samford. He stated that he immediately grabbed the particular poster and rang the plaintiff. His evidence was to the effect that he had seen such posters three times and that what he thought when he saw the poster that it was "pointing the finger at" the plaintiff, "basically accusing him of having something to do" with the substance of the subject of the poster. When cross-examined by the defendant, he indicated that he believed he saw another one near the "Farmers Hall" on a billboard, and took that one down as well. As for further posters, he stated that he was not 100% certain, although he did remember collecting other posters but that he could not remember exact spots because "it was quite a long time ago".

[32] The evidence given by the plaintiff's wife and daughter primarily went to the effect of the placing of the posters on the plaintiff's personal life. Mrs Hocken indicated that she took the poster to mean that her husband was to blame for the disappearance of Daniel Morcombe. She stated that he had been stressed and tired during the time the posters were placed because he used to get up early to go to retrieve any posters that were up and had stated that he felt embarrassed about them, his upset being something that she could observe. She also indicated that she had three children at the time at the Ferny Grove State High School. The defendant did not cross-examine Mrs Hocken about the issues just canvassed. As for Rebecca Hocken - her mother indicated she was in Year 8 at the Ferny Grove High School at the time - she gave evidence of the placement of posters in the form of Exhibit 3 around the Samford and Ferny Grove area and, in particular, outside the Ferny Grove State High School. With respect to her father's reaction, she stated that, when she was with her father and he was driving past and would see such a poster, he would get out and rip it down. The posters in reference to the Ferny Grove State High School were those stated in locations 11, 12, 13 and 14 in Exhibit 5. As to the effect of the poster itself, she stated that other students pointed out to her that "was it not her father's name" that was on the poster, which led to her going to the poster and attempting to scratch out her father's name, but that she could not do so because it had been "superglued". She supported other evidence to the fact that as far as she knew she was a member of the only Hocken family in the relevant area and that her father was the only Michael Hocken that she was aware of. As to that, she indicated that she took the words at the bottom of the relevant poster to be referring to "my dad". Again, the defendant did not cross-examine Rebecca.

[33] The evidence of the plaintiff's brother, Philip Roy Hocken, dealt with, primarily, the night of 12 July 2008. He lived at Mansfield, a suburb of Brisbane. Hence, he did not see the posters until informed about, and shown one of, such posters by his brother. His evidence about the surveillance conducted by him and his brother on the night of 12 July 2008 I accept in full. There was a video camera set up in nearby bushes and a light had been arranged to be left on immediately above the noticeboard outside the IGA supermarket at Samford. The two brothers had placed themselves approximately 100 metres away, although with a direct sightline to the noticeboard from which they were able to observe it with powerful binoculars, containing a magnification of 75. I accept the relevant evidence from this witness, and the very similar evidence to the same effect from the plaintiff, that they observed a male person go to that noticeboard place a poster upon it and then be intercepted by them some short time later. The DVD taken by the video camera, which is Exhibit 6, is supportive of the evidence they gave, although, as an identifier itself, it is not particularly clear. But I do accept that what is shown on that DVD is a person who was kept under constant surveillance from the time shown of placing the poster on the noticeboard to the time of interception by the brothers. On the evidence I accept, the defendant was identified by the plaintiff and when it was put to him that he had been putting the poster up, his response was, amongst others, to the effect that, "You prove it".

[34] With respect to what the poster meant to him, with the additional handwritten words, the plaintiff's brother responded that he interpreted it as being that his brother was the person responsible for Daniel Morcombe's disappearance. Again, the defendant did not cross-examine this witness. It must be stated, at this point, that the plaintiff's own evidence about this interception on 12 July 2008 was also not the subject of any cross-examination by the defendant, even though I did warn him that evidence that he might wish later to give about the night of 12 July 2008 might be an area about which he might wish to "put" certain things to the plaintiff.

[35] I have canvassed what the plaintiff's wife and daughter have said about this issue.

[36] As for the plaintiff himself, he gave evidence of several people who approached him during the relevant time and asked him, for instance, whether he knew that his name was linked to the abduction and murder of Daniel Morcombe.

[37] As for its effect personally on him, he said that it was a "pretty bad time for the family" particularly when he was asked by his eldest daughter as to why he was being associated with Daniel Morcombe's abduction and murder. He indicated that he tried not to talk to his children about it much but that they would know, because he would come home with a heap of posters that he had collected and that they would see them. He stated that his children were upset and, in particular, Rebecca was and that had an adverse effect on him. He stated that his wife was much more concerned with the reputation of the entire family and the effect on the children, being much less worried about him, with the effect of those feelings of his wife meaning that it was very frustrating because the embarrassment was not just to him but it was to his children and to his wife, which was a "terrible feeling". He felt strongly enough to offer a reward of $5, 000.00 for evidence leading to a conviction of the person responsible.

[38] When questioned about whether the defendant had ever offered an apology, the plaintiff responded that he had not and that he had also not ever provided an explanation. The plaintiff further stated that he provided a three-page Victim Impact Statement to the District Court for the sentencing hearing by Samios DCJ and that he was present in court when the defendant pleaded guilty to the charge in question.

[39] As I mentioned earlier, the plaintiff was in court when the defendant was extensively cross-examined by the plaintiff's counsel on many issues which the defendant had not put in contention in the evidence he gave in examination-in-chief, or in the questions that he asked in cross-examination of the plaintiff and his witnesses. It is impossible for me to judge to what extent the plaintiff felt some personal vindication from the questions asked of the defendant in cross-examination and the responses given, noting that the responses were essentially denials of guilt of the offence with which he was charged and denials of his involvement in the placing of any poster, or being the cause of the handwriting that appeared on the bottom of the poster copy of the original "Crime Stoppers" poster. What could be of concern is that the plaintiff's counsel put to the defendant that only a "coward" would put up posters of the type in Exhibit 3 outside the school where the plaintiff's "kids" went, with the defendant giving a reply of non-agreement with "anything that was being put to him". In addition, the plaintiff's counsel put to the defendant that he was "never a big enough man" when he was in Court for sentencing to stand up and apologise, to which the defendant replied, "That's right." Further, when it was put to him that it was a "disgraceful, disgusting thing" that the person who caused the posters to be put placed had done, the defended responded, "Yes".

[40] It is impossible for the Court to know to what extent the cross-examination directed to the kinds of matters that I have just canvassed had an effect in terms of heightening the plaintiff's feelings of vindication. Hence, there being no relevant authority brought to my attention with respect to how this issue might bear upon damages (apart from the defendant's conduct up to verdict being relevant to aggravated damages), I decline to undertake any further consideration of it.

[41] As a result of the surveillance operation, the plea of "guilty" in the District Court and the timing of the cessation of the placement, I find on the balance of probabilities that the defendant caused to be published during the months of May, June and July 2008 on at least 60, and probably several more, occasions a poster in the form of Exhibit 3.

[42] I further find that the publication was made throughout the Ferny Grove and Samford area in places where the poster could be easily seen and its contents read in full by passing pedestrian or vehicular traffic. Thus, the publication was extensive throughout the area in question, with the effect that it is a reasonable inference to draw that many people would have seen such posters before they were ripped down or otherwise extensively erased by the plaintiff's acts, or those of his fellow community members.

[43] In circumstances where the plaintiff has not ever been charged with any offence of any kind concerning Daniel Morcombe - although, understandably, interviewed by the Police - the statement of claim alleges that the content of the posters was understood and intended to mean that the plaintiff:

(a) was involved, in a criminal manner, in the abduction and suspected murder of Daniel Morcombe; and, or alternatively

(b) was a person who had been involved in criminal activity relating to the abduction and suspected murder of Daniel Morcombe (for which extrinsic facts, pleading a true innuendo, were stated).

[44] There was no doubt that, with respect to the pleading of the true innuendo, at least the persons who gave evidence were aware of the specific facts concerning the alleged abduction and suspected murder of the pre-teenage child Daniel Morcombe. But it matters little in this case, as the first imputation is, by the words used in their particular context, to a very similar effect.

[45] As recently remarked by the High Court in Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460, the general test is whether the published matter is likely to lead an ordinary reasonable person to think less of the plaintiff, or whether the likelihood is that the imputations might cause "ordinary decent folk" in the community to think less of the plaintiff: at 467 [5]. As the plurality judgment of French CJ, Gummow, Keifel and Bell JJ observed, such referees have been described as "of ordinary intelligence, experience and education", "not avid for scandal", "fair-minded" and "persons who are expected to bring to the matter in question their general knowledge and experience of worldly affairs": at 467 [6].

[46] Given the terms in which the original "Crime Stoppers" poster was formulated and given the actual wording of the additional handwritten remarks directly referrable to that formulation, it is simple to draw the conclusion that the appropriate referees would think that the person "MICHAEL HOCKEN" is a person who is imputed by the poster to be, at the very least, a strong suspect in the case of the abduction and suspected murder of a child. Such a conclusion is almost impossible to escape by the use of the words that the person named "WILL BE BROUGHT TO JUSTICE". On any basis, because of the fact that this poster, as published by the defendant, was published in mid-2008 and that the child Daniel Morcombe is stated by the poster to have been abducted in late 2003, a background of a widespread community knowledge of the circumstances of the disappearance of that child is readily inferred. Thus, it is unlikely that even any members of the local community of Samford and Ferny Grove would not understand the published matter. Hence, it is sufficient for the present purposes to accept that the imputation is that the plaintiff was involved, in a criminal manner, in the abduction and suspected murder of the child in question. Given that, and applying the test about defamatory matter, it is clear that the publication of the various posters was defamatory of the plaintiff, particularly when the only evidence at trial was that there was only one Hocken family in the area and only one "Michael Hocken" who was known there. The plaintiff's wide involvement in the local community would also be an important aspect. Even for those persons not actually knowing the plaintiff, it would be difficult to escape the conclusion that the published matter was likely to lead them, as ordinary reasonable persons, to think less of the plaintiff. The evidence of the few people called was consistent with, although unnecessary for, this conclusion.

[47] As Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 establishes, purposes served by an award of damages include consolation to the plaintiff for the personal distress and hurt caused by the publication, reparation for the harm done to the plaintiff's reputation and, finally, vindication of the plaintiff's reputation: at 60-61.

[48] The Defamation Act 2005, commencing 1 January 2006, has, as the Objects stated in s 3 indicate, taken steps to provide "fair" remedies for persons whose reputations are harmed by the publication of defamatory matter: see paragraph (c). To this end, both s 34 and s 35 have particular resonance in this case.

[49] Section 34 of the Defamation Act states that, in determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is "an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded". Section 35 then goes on, particularly by s 35(1), to state that unless the court otherwise orders under s 35(2), the "maximum" amount of damages for non-economic loss that may be awarded in defamation proceedings is that sum which is adjusted in accordance with s 35 from time to time. By a declaration pursuant to s 35(3) of the Defamation Act gazetted on 25 June 2010, on and from 1 July 2010 the maximum amount of damages that may be awarded for non-economic loss in a defamation proceeding "shall be" $311,000.00: see Queensland Government Gazette No. 64, at p 814.

[50] Section 35(2) of the Defamation Act states that a court may order a defendant to pay damages for non-economic loss that exceeds that amount if, and only if, the court is satisfied that the circumstances of the publication of the defamatory matter to which the proceedings relate are such as to warrant "an award of aggravated damages".

[51] It is also important to note that s 36 of the Defamation Act states that, in an award of damages for defamation, the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate, or at any other time, except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff.

[52] Despite the submission that the capping (that s 35 of the Defamation Act effects) means that there should be scaling of an award in relation to that maximum, the legislation does not contain any terms that suggest the cap is not simply that, namely, a maximum amount that can be awarded.

[53] In this particular case the cap will not be triggered; but I do not intend to scale the award on the basis of a comparison between the harm suffered by the plaintiff in this case and the harm of the most serious kind, unless required by appropriate appellate authority.

[54] I have been given very many cases dealing with awards for defamation. None of those cases has a direct comparable quality with this case, either in the kind of imputation proved or in the width of the publication.

[55] In my view, even though the publication was relatively widespread in the area in question, the plaintiff's and others' efforts in removing the offending posters together with the limited area of publication (compared to publications, for instance, in widely circulating newspapers) calls for a fair moderation in the damages to be awarded. I do accept that the defamation was serious, involving the imputation of the criminal conduct alleged, but it is unlikely, given the plaintiff's standing in the local community, that the actual harm done to his reputation was substantial, even though the personal distress and hurt that he underwent was. Importantly in this case is the need for vindication of that reputation which this judgment effects.

[56] Taking all the relevant factors into account, I assess the damages for defamation at $50,000.00.

[57] This issue has been canvassed, legislatively, in a reference to it in s 35(2) of the Defamation Act. But this is not a case in which the cap is of any moment.

[58] Thus, it is necessary to consider when it is appropriate for aggravated damages to be awarded.

[59] Some consideration of the approach that should be adopted was undertaken by Nicholas J in Haertach v Channel 9 Pty Ltd [2010] NSWSC 182. There, by reference to relevant cited authority, he held that in any award of aggravated damages is important to keep in mind that they must be confined to what is truly compensation for the relevant harm to the plaintiff caused by the defendant's conduct and must not include any element of punitive damages, noting that the conduct for this head must be that which in some way is unjustifiable, improper or lacking in bona fides: at [121]. Nicholas J further observed that the courts are reminded that, in awarding aggravated damages, the conduct of the defendant which will increase the harm caused by the publication will include a failure to apologise and include the conduct of the defendant right up to the moment of verdict.

[60] Taking those relevant principles into account, in view of the defendant failing to apologise, not indicating express remorse when pleading guilty to a criminal charge involving 10 placements of the relevant poster and continuing to deny any involvement with the publication of the defamatory matter right up to, and including, oral submissions made in this case, an appropriate grounding has been laid for the awarding of aggravated damages.

[61] An appropriate sum in this case would be $25,000.00, bearing in mind the exclusion of any possible award for exemplary or punitive damages and a requirement to disregard malice, or other state of mind, of the defendant except to the extent that that malice or other state of mind affects the harm sustained. In this case, there is clearly a level of vindictiveness that would bring these circumstances within that last mentioned exception, but, obviously, only to the extent that it has generated harm.

[62] Interest has been sought by the plaintiff pursuant to s 47 of the Supreme Court Act 1995.

[63] There is no reason not to grant interest. It should date from the filing of the Claim on 15 October 2008 to the date of judgment in this proceeding at the rate of 5% per annum on the total award of damages.

[64] It appears to be clear beyond argument that the plaintiff is entitled to his costs. Nevertheless, s 40 of the Defamation Act contains certain matters that must be considered before an order for costs is made.

[65] Accordingly, I will, at the time of handing down the judgment, permit both parties additional time, if sought, to file written submissions, if any, regarding costs, and the calculation of the interest component.

1. The defendant pay to the plaintiff $75,000.00 damages, plus interest of $10,125.00 calculated on that sum from 15 October 2008 at 5% per annum.

2. The plaintiff and the defendant file submissions, if any, concerning costs, by 4pm on 1 July 2011, unless costs orders can be agreed, or ordered, when judgment is given.