Supreme Court of WA|2013-08-02|Before: Miere J

IVES -v- THE STATE OF WESTERN AUSTRALIA [No 8] [2013] WASC 277 (2 August 2013)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : IVES -v- THE STATE OF WESTERN AUSTRALIA [No 8] [2013] WASC 277

Defamation - Qualified privilege at common law - Statutory qualified privilege - Justification - Contextual truth

1 LE MIERE J: On New Year's Eve 2009 Joyce Lim attended Perth police station. Ms Lim complained to the duty constable that she had a violence restraining order against the plaintiff, Mr Ives, and that Mr Ives had posted words on a social media site, LiveJournal.com (LiveJournal), threatening her. Ms Lim produced a printout of the posts.

2 After checking the details relating to the violence restraining order, the constable spoke to Sergeant Skehan. Sergeant Skehan and other police officers attended at a house in Claremont (the Claremont house) which was shown on a police database to be Mr Ives' last known address. The Claremont house was the home of Mr Ives' parents. Mr Ives was not living at that address.

3 Sergeant Skehan spoke to Mr Ives' mother, Mrs Ives, and others at the house and conducted a search of the house. The plaintiff alleges that Sergeant Skehan spoke to Mrs Ives and others words defamatory of Mr Ives. Mr Ives says that Sergeant Skehan and the other police officers were members of the Police Force, that their actions were done by them as members of the Police Force while performing or purporting to perform the functions of a member of the Police Force, and that the defendant, the State, is liable for their actions. The plaintiff claims damages including aggravated damages.

4 The State denies that Sergeant Skehan spoke the words alleged by the plaintiff and pleads that he spoke other words about Ms Lim's complaint against Mr Ives. The State admits that Sergeant Skehan and the other police officers were performing the functions of a member of the Police Force and that pursuant to s 137 of the Police Act 1892 (WA) the State is liable for any conduct of those officers constituting a tort. The State raises a number of affirmative defences. First, the State says that the statements made by Sergeant Skehan were made on an occasion of qualified privilege. Secondly, the State says that the words spoken by Sergeant Skehan were substantially true. Thirdly, the State pleads the defence of contextual truth, that is, the imputations pleaded by the plaintiff, if made out, do not further harm the reputation of the plaintiff because of the substantial truth of the imputations pleaded by the defendant. I will start by considering the events that led up to Sergeant Skehan and the other police officers attending the Claremont house.

5 Mr Ives was in a romantic relationship with Ms Lim from about April 2008 until their relationship broke up in November 2008. On 1 December 2008 the Perth Magistrates Court made a violence restraining order (the VRO) for the benefit of Ms Lim and imposing restraints on the lawful activities and behaviour of Mr Ives. The VRO was for a period of two years. The VRO ordered Mr Ives not to communicate or attempt to communicate by whatever means with Ms Lim, enter or remain upon any premises where she lives or works or be within 100 m of those premises, approach within 20 m of Ms Lim or cause or allow any other person to engage in such conduct on his behalf. Section 14(1) of the Restraining Orders Act 1997 (WA) provides that every violence restraining order includes a restraint prohibiting the person who is bound by the order, in this case Mr Ives, from being in possession of a firearm or firearms licence and obtaining a firearms licence unless the court has made an order permitting such possession.

6 On the afternoon of 31 December 2009 Ms Lim attended the Perth police station and spoke to Constable Holmes. Ms Lim told Constable Holmes that she had a violence restraining order against Mr Ives and he had previously breached the order. Ms Lim said that Mr Ives had made postings on a social media site, LiveJournal, in which he threatened her. Ms Lim showed Constable Holmes a printout of the posts. Constable Holmes used the police computer system to obtain a link to the VRO which appeared on the screen. Constable Holmes accessed the police database to obtain a link to Mr Ives' details. Constable Holmes then informed Sergeant Skehan of Ms Lim's allegation and of the posts.

7 Sergeant Skehan was based at the Perth police station and was the On Road Supervisor (ORS) for the Central Metropolitan District of the Western Australian Police, which includes the Perth police station. Sergeant Skehan's duties as ORS included attending to jobs of a serious nature. His role involved going out to provide on road supervision and to run policing jobs. As I have said, Constable Holmes informed Sergeant Skehan of Ms Lim's complaint. Sergeant Skehan was told that there had been an accusation of a death threat, possibly involving firearms. He was shown printouts of the LiveJournal posts. Sergeant Skehan looked at the police database to check Mr Ives' address and that there was a current violence restraining order in place. Mr Ives' address was shown as the Claremont house.

8 Sergeant Skehan ensured that a standard firearms check was conducted for Mr Ives, which involved checking whether he had any firearms convictions or a firearms licence. Sergeant Skehan decided to take action in relation to the complaint because the VRO was in place and because it was a domestic incident. Sergeant Skehan stated in evidence that police policy requires an immediate response to a breach of a violence restraining order, especially where it arises in a domestic situation. The content of the threats in this case also had an impact on the action Sergeant Skehan decided to take. He found the content quite disturbing because it referred to shooting police and chopping Ms Lim into pieces. Sergeant Skehan decided that it was necessary to go out and interview Mr Ives. In forming his decision about what action to take, Sergeant Skehan relied mainly on the information gleaned from Ms Lim by Constable Holmes. Sergeant Skehan organised to attend Mr Ives' address in Claremont. He decided that he and Senior Constable EynonWilliams would drive to a rendezvous point where they would meet with two officers from Cottesloe police station. Sergeant Skehan arranged by radio for officers from Cottesloe to attend in a police van so that they could convey Mr Ives back to the police station if required, and also provide additional back up because of the risk to officer safety if firearms were involved. Sergeant Skehan decided that the rendezvous point should be two streets away from the address in Claremont.

9 Sergeant Skehan and Senior Constable EynonWilliams met the Cottesloe officers at the rendezvous point. Sergeant Skehan outlined their reason for being there, spoke of the VRO complaint, gave the officers their roles and outlined the action plan and outcome he was hoping for. Sergeant Skehan explained that the reason for police attending the address was to investigate threats to kill, shoot police and chop up and rape Ms Lim that had been made by Mr Ives. Sergeant Skehan told the Cottesloe officers that their role was to provide support, back up and observation.

10 The police arrived at the Claremont house at about 6.20 pm. At that time Mr Ives' sister, Marianne Thomson, her husband, Andrew Thomson and their three children were at the house preparing to have guests over to celebrate New Year's Eve. Mr Ives' father, Mr Bill Ives, was at the golf club. Mrs Ives was out walking her dog. Another couple were present in the house. Andrew Thomson was about to reverse a four wheel drive out of the driveway on his way to collect ice. Sergeant Skehan and Senior Constable EynonWilliams approached the house. They parked their car across the driveway to prevent the four wheel drive reversing out of the driveway. Sergeant Skehan and Senior Constable EynonWilliams approached the driver's side of the four wheel drive. At the same time Marianne Thomson came out of the house and into the driveway. Her three children were in the four wheel drive.

11 There was a conversation between Sergeant Skehan and Mr Thomson and between Sergeant Skehan and Ms Thomson. Mrs Ives was walking her dog when she heard a disturbance behind her and saw two police cars in the culdesac outside her house. She returned to the house. There was a conversation between Sergeant Skehan and Mrs Ives about why the police were there. Sergeant Skehan requested permission to search the house for firearms. Mrs Ives gave permission. After Sergeant Skehan was told that the driver of the four wheel drive was not Ben Ives, the police moved their vehicle so that Mr Thomson could drive the four wheel drive out of the driveway.

12 Sergeant Skehan and Senior Constable EynonWilliams searched the house. They found no firearms. Sergeant Skehan informed Mrs Ives that the police had finished the search and had found nothing. The police then departed.

13 Ms Thomson, Mrs Ives, Sergeant Skehan and Senior Constable EynonWilliams all gave evidence of the conversations between Sergeant Skehan, Mr Thomson, Ms Thomson and Mrs Ives and were crossexamined. All of the witnesses gave their evidenceinchief by way of witness statement. There are some differences in their accounts and recollections. That is to be expected.

14 I find that Senior Constable EynonWilliams did his best to recollect the conversations but his recollection is incomplete and inaccurate. Senior Constable EynonWilliams says that he cannot remember whether there were any vehicles in the driveway. He says that Sergeant Skehan spoke to a male and a female who were standing near the driveway. The male and female were middle aged and were wearing smart casual clothing. That appears to be a reference to Ms Thomson and Mr Thomson. Senior Constable EynonWilliams says that Sergeant Skehan spoke to the lady and gentleman and stated that as a result of certain things written by Mr Ives on Facebook they were there to speak to Mr Ives, and if Mr Ives was not present at the address, to seek permission to search for a firearm. At no time did Sergeant Skehan divulge the details of what had been written by Mr Ives on Facebook. After Sergeant Skehan chatted with the couple for one or two minutes they invited the police officers into the house. Senior Constable EynonWilliams' recollection is incomplete and inaccurate in the following respects. First, he has no recollection of the four wheel drive in the driveway or the police vehicle being parked so as to prevent the four wheel drive from leaving the driveway. Secondly, he has no recollection of Mrs Ives arriving and of the conversation between Sergeant Skehan and Mrs Ives. Thirdly, Senior Constable EynonWilliams says that Sergeant Skehan spoke of things written by Mr Ives on Facebook. Ms Lim's complaint was not about anything Mr Ives wrote on Facebook and nobody else makes any reference to anything written on Facebook. Fourthly, Senior Constable EynonWilliams' recollection that at no time did Sergeant Skehan divulge the details of what had been written by Mr Ives, whether on Facebook or otherwise, is contrary to the evidence of Ms Thomson, Mrs Ives and Sergeant Skehan.

15 In his witness statement Sergeant Skehan says that he said to Ms Thomson:

I'm here investigating a complaint of a breach of a VRO.

He says he cannot recall what else, if anything, he revealed about the investigation at that point. Sergeant Skehan then refers to his conversation with Mrs Ives. In his witness statement Sergeant Skehan did not specify the words he spoke to Mrs Ives. He says only:

I said words to the effect that I was here to investigate a breach of VRO complaint by Ms Lim who had identified Ben Ives as the person responsible and to look for Ben and search the house for firearms.

and that when Mrs Ives asked for more details about the investigation:

I revealed more details about the complaint that had been made so that I could obtain her consent to search the premises. I don't recall the details that I gave to Mrs Ives.

16 I find that Sergeant Skehan recalls the subject matter of his discussions with Mr Thomson, Ms Thomson and Mrs Ives but not the words he used or the details of what he said. There is an issue between the parties as to whether Sergeant Skehan referred to a complaint or allegation that Mr Ives had made the threats by email or on the internet. In his witness statement Sergeant Skehan does not say whether, in speaking to Mr Thomson, Ms Thomson or Mrs Ives, he referred to an allegation of threats by email or threats on the internet. In crossexamination Sergeant Skehan initially said he did not use the word email in discussions with people that evening. He says he used the words 'web post'. The following crossexamination then occurred:

Mr Ives: You did use the word 'email'?

Sergeant Skehan: I think I may have. I think I used the word 'email', 'website', 'blog', maybe another term for a computer site or however the information was communicated.

I will refer to the evidence of Ms Thomson and Mrs Ives shortly. Both of them deny that Sergeant Skehan referred to a web post. They both maintained that Sergeant Skehan referred to an email. I accept their evidence on that point. I find Sergeant Skehan has no actual recollection of whether he referred to a web post or an email. He agreed he may have referred to an email.

17 The running sheet incident report (exhibit 19) states in relation to the police attendance at the Claremont house:

Police requested the mother advise POI of reason for police visit and request he refrain from posting such details on the web, the next time she sees him.

In crossexamination by Mr Ives, Sergeant Skehan accepted that he did that and said that he did so:

Because I think I explained to your mum that any communication or any form of communication is considered a breach of a restraining order and would give rise to the applicant of the restraining order to commence a police investigation. So in order to prevent that from happening I gave some advice like I give to everybody in relation to restraining orders, especially when I serve interim orders on people is that the texts, voicemails, emails sorry, voice messages, anything to do with any form of communication Twitter, Facebook, is all part that can cause a breach which would then lead to a police investigation.

18 Ms Thomson said in her witness statement that Sergeant Skehan said that Mr Ives:

had allegedly written a threatening email to a female who had a VRO against him. The email included threats to rape, murder and chop her into pieces.

In crossexamination Ms Thomson tried to recount events as she recalled them without any attempt to tailor her evidence to favour her brother, Mr Ives. Indeed, Ms Thomson did not appear to be favourably disposed towards Mr Ives in the course of her evidence. In crossexamination she repeated:

The police officer said that Ben had allegedly threatened sent a threatening email and he had allegedly threatened to harm this person who had the violence restraining order against him.

Mr Bydder: All right. After three years you've said that you don't remember exactly what the police officer said. Would you agree the police officer may have referred to a web post rather than an email?

Ms Thomson: No. It would have been an email.

19 In her evidenceinchief Mrs Ives said that when she returned to the house Ms Thomson told her that the police were looking for Ben because he had apparently sent a threatening email to his exgirlfriend and thereby breached a violence restraining order. The police spokesman, that is Sergeant Skehan, told her the words that were written in the email. They were something like:

Ben intended to rape and murder the girl and cut her up into little pieces.

Mrs Ives then told Sergeant Skehan some things about Mr Ives and his exgirlfriend. In crossexamination Mrs Ives was asked whether she agreed that Sergeant Skehan said to her that he had come to investigate a breach of VRO complaint that had been made by a Ms Lim. Mrs Ives responded:

No. He said that a threatening email had been sent and words and said what was I'd asked what had been said and he said those awful threats.

When she was asked specifically what did the policeman say, Mrs Ives said:

Well, of course I can't remember the precise words but the message to me from the police was that Ben Ives had sent a threatening email to his exgirlfriend and the words were, as we know, that he threatened to rape her, murder her and cut her into little pieces.

Mrs Ives gave her evidence to the best of her recollection. It was a traumatic incident for her and she has a fair recollection of the thrust of what was said. I accept her evidence as to the substance of what was said. In relation to whether Sergeant Skehan referred to a web post or an email Mrs Ives denied that Sergeant Skehan had referred to a web post. She said:

20 I find that in substance the following took place. Sergeant Skehan approached Mr Thomson who was seated in the driver's seat of the four wheel drive. Sergeant Skehan said:

My name is Sergeant Skehan. I am from Perth police. We're here looking for Ben Ives. Are you Ben Ives?

Sergeant Skehan asked Ms Thomson if she knew where Ben Ives was. Ms Thomson said that she had not seen him. Ms Thomson then said words to the effect:

I'm here investigating a complaint of a breach of a violence restraining order. Ben Ives has allegedly sent a threatening email to the female who had a violence restraining order against him. The email included threats to rape, murder and chop her into pieces.

21 After Mrs Ives returned to the house Ms Thomson said to Mrs Ives:

The police are looking for Ben. He has allegedly breached a violence restraining order.

Mrs Ives asked the police officers what was going on. Sergeant Skehan introduced himself and said:

I am here to investigate a breach of violence restraining order complaint by Ms Lim who has identified Ben Ives as the person responsible and to look for Ben and search the house for firearms.

Mrs Ives said words to the effect that she had not seen Ben for a couple of days, that he was a student at Murdoch University and had a place there but did not know what his room number was or which street it was on. Mrs Ives told Sergeant Skehan that Mr Ives was seeing a psychiatrist but that he had not been diagnosed with anything in particular. Mrs Ives asked Sergeant Skehan what threats Mr Ives had made in the email. Sergeant Skehan said:

Ben Ives threatened to rape and murder Ms Lim and chop her into pieces.

22 Sergeant Skehan asked Mrs Ives for permission to search the house for firearms. Mrs Ives gave permission. Sergeant Skehan and Senior Constable EynonWilliams conducted a search. They found nothing. Sergeant Skehan informed Mrs Ives that they had found nothing. Sergeant Skehan said to Mrs Ives:

Please advise Ben of the reason for our visit and ask him to refrain from any such communications.

Sergeant Skehan then explained to Mrs Ives that any form of communication is considered to be a breach of a restraining order and would give rise to a police investigation. The police then departed.

23 The following day, New Year's Day 2010, Mrs Ives and Mr Ives' father, William Ives, went to the Perth police station. They asked about the email that Mr Ives had allegedly sent to Ms Lim. They were told that the police were not able to disclose the email to them. Mrs Ives and Mr William Ives later spoke to Mr Ives. They told him about the incident. He was shocked.

24 Mr Ives went to Perth police station and asked to speak to Sergeant Skehan. He was unable to do so. Approximately two weeks later Mr Ives received a letter from a policeman which included the words:

I am aware that you were recently involved in a domestic related incident.

The letter contained brochures including information about a men's violence helpline. Mr Ives says that he felt this to be an outrageous insult, made knowingly or unknowingly. Mr Ives attended Perth police station but was not questioned or given any information about the internet posting or the incident at his parents' house on New Year's Eve.

25 On 18 January 2010 Mr Ives caused a writ of summons to be issued commencing these proceedings. On 20 January 2010 Nathan Ross, who was then a police constable attached to the Perth police inquiry group at Perth police station received the case file on Ms Lim's complaint. Mr Ross contacted Ms Lim on 20 January 2010 and advised her that he would be investigating the matter. Mr Ross received a phone call from Mr Ives on 2 February 2010. Mr Ross asked Mr Ives whether he was responsible for making the posts. Mr Ives replied: 'I don't feel at liberty to say'.

26 On 16 April 2010 Mr Ross and Senior Constable Thompson arrested Mr Ives at Murdoch University for alleged breaches of violence restraining orders in relation to a number of incidents. Mr Ross did not charge Mr Ives with any offence in relation to the complaint by Ms Lim on 31 December 2009. The incident report states in relation to Ms Lim's complaint:

Joyce Lim today has brought to the attention of police an internet posting that has been posted by: benny091074 on livejournal.com.

This internet account belongs to Benjamin IVES and it has been confirmed in court that he is the holder of this account.

The internet posting made makes references to him stalking Joyce and then wanting to get her drunk and win her back. There is also a posting stating that he wishes to beat her up and smash her into pieces.

A copy of this posting is in the case file that has been created.

This posting does not breach the VRO that is in place owing to it being posted on a world wide website and not directed directly at the protected person. This has been explained to the protected person and she is fully aware.

ORS Sgt Skehan was spoken to regarding this matter and if it was a breach.

Sgt Skehan is speaking to the POI regarding his behaviour and actions and wording on the internet.

I have advised my supervisor that I am untrained in this area and therefore the assessment I make is entirely on that basis.

27 The plaintiff pleads that Sergeant Skehan spoke and published to Andrew Thomson, Marianne Thomson and their three children and to Mrs Ives the following words:

Ben Ives has sent a threatening email to a girl with a restraining order against him, has sent his exgirlfriend an email threatening to rape, kill and chop her body into little pieces.

28 The defendant pleads that Sergeant Skehan had a conversation with Mrs Ives during which Sergeant Skehan said, amongst other things, that the police were there to investigate a complaint by a female of threats of violence against her made on the internet, that the female had identified the plaintiff as the author of the threats and the threats were serious and specific and included, amongst other things, references to murder, rape and firearms.

29 I find that Sergeant Skehan made two relevant publications. The first was to Ms Thomson. I accept Ms Thomson's evidence of what Sergeant Skehan said. I find that Sergeant Skehan said:

He [meaning the plaintiff] allegedly sent a threatening email to a female who had a violence restraining order against him. The email included threats to rape, murder and chop her into pieces.

30 The words were heard by Andrew Thomson who was in the vehicle which Sergeant Skehan was standing next to. I find that the children heard what Sergeant Skehan said. I make that finding because the children were in the four wheel drive vehicle and after Sergeant Skehan spoke the words I have referred to Ms Thomson asked him not to use such graphic language in front of her kids.

I am here to investigate a breach of violence restraining order complaint by Ms Lim who has identified Ben Ives as the person responsible and to look for Ben and search the house for firearms.

Mrs Ives asked Sergeant Skehan what threats Mr Ives had made in the email. Sergeant Skehan said:

Ben Ives sent a threatening email to a female. The threats included to rape and murder the girl and cut her into pieces.

Those are not the precise words spoken by Sergeant Skehan but I am satisfied he spoke words not substantially different.

32 The plaintiff pleads that the words spoken by Sergeant Skehan to Ms Thomson, Mr Thomson, their children and Mrs Ives in their natural and ordinary meaning meant and were understood to mean that Mr Ives had committed the offence of breaching a violence restraining order by emailing a threat to rape and murder and cut into pieces the body of a person the plaintiff had been in a relationship with.

33 The plaintiff pleads that, further or alternatively, by way of innuendo, the words spoken by Sergeant Skehan meant and were understood to mean that the plaintiff had committed breaches of a violence restraining order protecting Ms Lim from the plaintiff and would be brought into custody as a result, when found, and spend time in jail. The extrinsic facts relied upon by the plaintiff to give rise to the innuendo meaning are as follows. First, the hearers of the words knew that a violence restraining order was in force protecting Ms Lim from any contact or communication from Mr Ives. Second, the urgent conduct, including body language and the positioning of squad cars in a siege like formation, coupled with the urgent style of communication by the police officers, inferred that the plaintiff was being actively sought for immediate arrest. Third, it is common knowledge that any breach of a violence restraining order is serious and requires the immediate imprisonment of the offender. Fourth, the police officers acted and communicated to the effect that Mr Ives had actually committed breaches of a violence restraining order and was not really under suspicion.

34 The State denies that the words spoken by Sergeant Skehan give rise to the meanings alleged by Mr Ives. The State pleads what is referred to in Western Australia as a Polly Peck defence to both the natural and ordinary meaning imputations and the innuendo imputations pleaded by the plaintiff. The State pleads that the words spoken by Sergeant Skehan gave rise to four alternative meanings. The first is that Mr Ives made threats through an electronic medium received by an exgirlfriend:

(a) Mr Ives would cause serious harm to the exgirlfriend; or

(b) Mr Ives would rape and kill the exgirlfriend and smash her body to pieces.

The second is Mr Ives was reasonably suspected by Sergeant Skehan, or alternatively by police officers, of having made an internet posting to a female containing threats:

(a) that Mr Ives would cause serious harm to the female, or alternatively;

(b) that the plaintiff would rape and kill the female and smash her body to pieces.

The third alternative meaning is that there had been threatening behaviour by Mr Ives towards a person for whose benefit a violence restraining order had been made imposing restraints on the activities and behaviour of Mr Ives. The fourth alternative meaning is that Mr Ives was reasonably suspected by Sergeant Skehan, or alternatively by police officers, of threatening behaviour towards a person for whose benefit a violence restraining order had been made imposing restraints on the activities and behaviour of Mr Ives. The State pleads that each of those imputations is true in substance and in fact.

35 The law concerning the pleading and application of Polly Peck defences is authoritatively stated in Western Australia by Steytler P in West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387. The principles propounded by Steytler P are sufficiently summarised in the head note:

(1) An imputation pleaded by a defendant by way of a Polly Peck defence will be allowed where the pleaded meaning is not substantially different from or more injurious than the meaning alleged by the plaintiff.

(2) An imputation that a person has engaged in criminal or reprehensible conduct is different from one that there are reasonable grounds to suspect that a person has engaged in such conduct. The distinction between suspicion and guilty is obvious and important.

(3) An imputation of guilt will always be more serious than one of suspicion on reasonable grounds. Ordinarily, a plea of justification of an imputation that there are reasonable grounds for suspicion that the plaintiff engaged in criminal or reprehensible conduct will require proof of the same published facts as are said by the plaintiff to give rise, in the context of the publication, to an imputation that he has engaged in that conduct. It is only the conclusion to be drawn from those facts which is different, and, even then, the difference is one of degree.

(4) In that circumstance, the Court should continue to apply the decisions in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 and Gumina v Williams (No 2) (1990) 3 WAR 351, to the effect that a plaintiff who pleads an imputation of guilt may rely on a lesser imputation of a reasonable suspicion of guilt, provided that there is no disadvantage to the defendant.

(5) There can be no suggestion of disadvantage where a defendant has pleaded a Polly Peck imputation of reasonable suspicion of guilt, and such a plea is permissible until further guidance is provided by the High Court.

The other member of the two member court, McLure JA, agreed with the reasons of Steytler P with some additional comments. In Buckeridge v Walter [2010] WASCA 134 McLure P, with whom Owen and Buss JJA agreed, adopted and applied the principles propounded by Steytler P in West Australian Newspapers v Elliott.

36 In this case there was no challenge to the defendant's Polly Peck defences at the interlocutory stage. That is not surprising where, as here, the plaintiff is selfrepresented. At trial each party led evidence and sought to support the imputations they had pleaded. There is no unfairness to either party in considering the imputations pleaded by the plaintiff, those pleaded by the defendant and the range of meanings falling between them.

37 The subject matter of what Sergeant Skehan said is that Mr Ives was guilty of sending a threatening email to a girl with a restraining order against him threatening to rape, kill and chop her body into pieces. However, the use of qualifying words such as 'complaint' and 'allegedly' means that the words are capable of imputing suspicion rather than guilt. A defamatory statement may impute discreditable behaviour to the plaintiff, but it may be a matter of dispute as to what level of involvement the statement imputes. The statement might mean that the plaintiff is guilty of a crime or discreditable behaviour, or that the plaintiff is under suspicion but not that he is guilty.

38 In determining the meaning of spoken words it is necessary to take into consideration not only the actual words used but the context of the words. The meaning of words spoken in the course of a conversation must be determined having regard to the whole of the conversation. The meaning of a particular sentence or sentences may be qualified by other sentences. The standard is that of the ordinary person. The ordinary person is not naïve, but is not unduly suspicious. He or she may read in an implication and may indulge in a certain amount of loose thinking, but must be treated as being a person who is not avid for scandal and someone who does not, and should not, select one bad meaning where other less injurious meanings are available. Overelaborate analysis is best avoided. The exercise is one of impression.

39 The critical words spoken by Sergeant Skehan to Marianne Thomson and overheard by Andrew Thomson and their children are:

I'm here investigating a complaint of a breach of a violence restraining order. Ben Ives has allegedly sent a threatening email to the female who had a violence restraining order against him. The email included threats to rape, murder and chop her into pieces.

The context in which the words were spoken include the following. Four police officers attended the house. The police officers initially parked their vehicle in a way such as to prevent the four wheel drive from leaving the driveway. Sergeant Skehan identified himself and said:

40 The words spoken by Sergeant Skehan to Marianne Thomson in their ordinary and natural meaning, or having regard to the extrinsic facts pleaded by the plaintiff, do not mean that Ben Ives was guilty of breaching a violence restraining order by sending a threatening email to a girl with a restraining order against him threatening to rape, kill and chop her body into pieces. They mean that there were reasonable grounds to suspect that Ben Ives had breached a violence restraining order by sending a threatening email to a girl with a restraining order against him threatening to rape, murder and chop her body into pieces. Sergeant Skehan said that the police were there investigating a complaint of a breach of violence restraining order. An ordinary reasonable person understands that if the police receive a complaint that a person has sent an email threatening to rape, murder and chop into pieces a female who has a violence restraining order against that person, then in the ordinary course of their duties the police would investigate that complaint. The fact that four police officers arrived in two separate vehicles at 6.20 pm on New Years' Eve would indicate to an ordinary reasonable person that the police believed there were reasonable grounds to suspect that the person had sent the threatening email. But an ordinary reasonable person in the circumstances of Marianne and Andrew Thomson and their children would not understand Sergeant Skehan's words to mean that Mr Ives was guilty of breaching a violence restraining order by sending an email threatening to rape and murder a girl and chop her body into pieces.

41 The words spoken by Sergeant Skehan to Mrs Ives included the words:

Ben Ives sent a threatening email to a female. The threats included to rape and murder the girl and cut her into pieces.

However, those words must be viewed in the context of the whole conversation. Sergeant Skehan had previously informed Mrs Ives that he was there to investigate a complaint of a breach of violence restraining order and that Mr Ives had been identified by the complainant as the person responsible. The words 'Ben Ives threatened to rape and murder Ms Lim and break her into pieces' were spoken by Sergeant Skehan in response to a question from Mrs Ives asking what threats Mr Ives had made in the email. Having regard to the words immediately preceding his statement, and the whole of the conversation, the words spoken by Sergeant Skehan in their natural and ordinary meaning do not mean that Mr Ives was guilty of threatening to rape and murder Ms Lim and chop her into pieces. Nor do those words carry that meaning having regard to the extrinsic facts pleaded by the plaintiff. The words spoken by Sergeant Skehan to Mrs Ives carry a somewhat stronger or more serious meaning than the words spoken by Sergeant Skehan to Marianne Thomson. Sergeant Skehan told Mrs Ives that in addition to being there to investigate a breach of violence restraining order, they were there to look for Mr Ives and to search the house for firearms. The statement that they were there to search for firearms, together with the presence of four police officers, gives rise to the meaning that there were reasonable grounds to believe that Mr Ives had committed a breach of a violence restraining order by sending an email to Ms Lim threatening to rape and murder her and chop her into pieces.

42 The words spoken by Sergeant Skehan, taken together with the extrinsic facts pleaded by the plaintiff, do not give rise to the meaning that the plaintiff had committed breaches of a violence restraining order and would be brought into custody as a result, when found, and spend time in jail. The fact that the police were investigating an alleged breach of a violence restraining order, that four of them attended the scene, and that they asked permission to search the house for firearms gives rise to the reasonable inference that there were reasonable grounds to believe that Mr Ives had breached the VRO by sending a threatening email. However, to conclude that the plaintiff would be brought into custody and when found spend some time in jail involves the taking of further steps which are unreasonable. It involves the process of drawing an inference from an inference and to take two substantial steps at the same time see Lewis v Daily Telegraph Ltd [1964] AC 234, 274; Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293, 299.

43 In summary, I find that the words spoken by Sergeant Skehan to Marianne Thomson, Andrew Thomson, their three children and to Mrs Ives gave rise to the imputation that there were reasonable grounds to believe that Mr Ives had breached a violence restraining order by sending an email to his exgirlfriend threatening to rape and murder her and cut her into pieces. That is not the imputation pleaded by the plaintiff. In WA Newspapers Ltd v Elliott, Steytler P, after reviewing the authorities, said that there is general, although not universal, support for the proposition that a plaintiff who has pleaded specific meanings by way of false innuendo may also succeed at trial on some other meaning if it is not substantially different from and not more injurious than the meanings pleaded. An imputation of reasonable grounds to believe that the plaintiff is guilty is not substantially different from an imputation of guilt. In WA Newspapers Ltd v Elliott, Steytler P observed by reference to authority, that 'for practical purposes there can be an imputation of suspicion so strong as to be indistinguishable from guilt, it must always be a question of fact how far the defamatory meaning goes' and there is no difference between an imputation of guilt, on the one hand, and one of wellfound suspicion, on the other. Steytler P said that 'there is a difference between "reasonable grounds to believe", on the one hand, and reasonable grounds for suspicion, on the other, with the former being even closer to an imputation of guilt than the latter' [70]. The imputation of 'reasonable grounds to believe' is not substantially different from and more injurious than the imputation pleaded by the plaintiff. Furthermore, having regard to the way in which the trial was conducted, there is no unfairness to the defendant in finding that the words spoken by Sergeant Skehan gave rise to the imputation I have found.

44 The imputation is defamatory of Mr Ives. The State did not argue otherwise. There are decisions in this State arguably to the effect that the meaning that a person is suspected of illegal or reprehensible conduct is not defamatory without being joined to the meaning that the person is suspected on reasonable grounds or that the person has engaged in conduct warranting the suspicion: Corse v Robinson (Unreported, WASCA, 8 December 1997); Singleton v Hudson (1998) 20 WAR 191, 198; Ronci v Nationwide News Pty Ltd [2001] WASC 239 [32] [41]. However, the imputation in this case is not one of mere suspicion. The words spoken by Sergeant Skehan to Ms Thomson give rise at least to the imputation of suspicion on reasonable grounds. The imputation arising from the words spoken by Sergeant Skehan to Mrs Ives gives rise to the imputation of belief on reasonable grounds and is close to an imputation of guilt.

45 There are circumstances in which, on grounds of public policy and convenience, a person may, without incurring liability for defamation, make statements of fact about another which are defamatory and are in fact untrue. These are cases of qualified privilege. The common law defence of qualified privilege is preserved by s 24 of the Defamation Act 2005 (WA). In Aktas v Westpac Banking Corporation Ltd [2010] HCA 25; (2010) 241 CLR 79 Heydon J said at [55] that

whether a communication is privileged for the purpose of [the defence of qualified privilege] depends on the satisfaction of three conditions. First, the occasion on which the defamation was published must be a 'privileged one'. Secondly, the defamation must be related to the occasion. Third, there must not be malice.

46 In Adam v Ward [1917] AC 309, 334 Lord Atkinson said:

A privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made as a corresponding interest or duty to receive it.

That statement of principle was approved in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 36 [9] and by Heydon J in Aktas at [56].

47 The role, functions and duties of noncommissioned police officers includes preserving the peace and preventing and investigating the commission of offences. The breach of a violence restraining order is an offence: Restraining Orders Act 1997 (WA) s 61.

48 Sergeant Skehan was informed about the complaint made by Ms Lim. He was shown the printouts provided by Ms Lim. The printouts consist of a chain of posts on the angel_of_yhwh account on the LiveJournal website. The posts include posts by benny091074. Mr Ives agrees that benny091074 is the name he used to make posts and that the posts attributed to benny091074 were written and posted by him. One post refers to the violence restraining order and that the author is talking about Ms Lim. The subsequent post includes:

BUT SOMETIMES AFTER WHAT SHE DID I JUST WANT TO KILL HER!!!!

I WANT TO BEAT UP HER BODY AND SMASH HER TO PIECES AND MAKE HER REGRET EVERYTHIN!!!!!!!!!!

...

and if I get the chance I am going TO FORCE HER INTO MY CAR AND RAPE HER!

THE COPS ARE DEAD MEAT IF THEY TRY TO KEEP US APART!!!

I will get a gun, and I will hold up a bank, and with the money I will buy another gun, and go and shoot her front door down and TAKE HER FOREVER TO MY PLANE.

49 Sergeant Skehan was told that there had been an accusation of a death threat, possibly involving firearms. He was shown the printouts provided to Constable Holmes by Ms Lim. Sergeant Skehan looked at the police database and confirmed that there was a current violence restraining order in place. He decided to take action in relation to the complaint because the violence restraining order was in place and because it was a domestic incident. Sergeant Skehan said that the police take violence restraining orders very seriously because they are court orders and there is a community expectation that breaches of violence restraining orders will be investigated. Sergeant Skehan said that there is a statutory requirement that police officers must investigate acts of domestic violence. That may be a reference to Restraining Orders Act s 62A. Sergeant Skehan said that there have also been a number of homicides over the past decade caused by domestic violence. Police policy therefore requires an immediate response to a breach of a violence restraining order, especially where it arises in a domestic situation. The contents of the threats in this case had an impact on the action Sergeant Skehan decided to take. He found the content disturbing because it referred to shooting police and chopping Ms Lim into pieces. He decided it was necessary to go out and interview Mr Ives. In the circumstances Sergeant Skehan was carrying out his function and duty as a police officer to attend Mr Ives' address and interview him in relation to the complaint.

50 Mr Ives had previously been arrested and admitted to bail. There is evidence that Mr Ives was arrested in October 2009 for alleged breaches of a restraining order and was admitted to bail. Mr Ives gave evidence that his bail undertaking contained his then address at Murdoch Student Village, Murdoch University. However, there is no evidence that Sergeant Skehan, Constable Holmes or any other police officer accessed that bail record on 31 December 2009. Sergeant Skehan's evidence, which I accept, is that he looked at the police database which showed Mr Ives' address to be the Claremont house. In those circumstances Sergeant Skehan was acting in the performance of his functions and duty as a police officer in attending the Claremont house to investigate Ms Lim's complaint.

51 When Sergeant Skehan arrived at the Claremont house there was a four wheel drive in the driveway. A man was in the driver's seat. Sergeant Skehan asked the man if he was Benjamin Ives. In doing so Sergeant Skehan was acting in the exercise of his functions and duty as a police officer. After Mr Thomson told Sergeant Skehan that he was not Ben Ives and identified himself, Marianne Thomson arrived on the scene. She said that Ben Ives was her brother and he was not there. She asked: 'What's the matter? Why do you want to know?' It was then that Sergeant Skehan informed her that he was there investigating a complaint of a breach of a violence restraining order and that Mr Ives had allegedly sent a threatening email to the female who had a violence restraining order against him threatening to rape, murder and chop her into pieces. Sergeant Skehan had a duty or interest to inform Ms Thomson of why he was there and why he wanted to locate Mr Ives. In informing Ms Thomson as he did, Sergeant Skehan was meeting the natural and proper concern of Ms Thomson to know why the police were attending her family home and asking her about the whereabouts of her brother. Furthermore, Sergeant Skehan had a duty or interest to inform Ms Thomson of what he was investigating to encourage her to provide information which might assist the investigation and locate Mr Ives. Ms Thomson had an interest in receiving the information and also a duty to assist the police in their investigation. The occasion on which Sergeant Skehan made the statement to Ms Thomson was an occasion of qualified privilege.

52 The statement made by Sergeant Skehan was relevant to the occasion. The statement was not excessive. It was reasonably necessary for Sergeant Skehan to inform Ms Thomson of the subject matter of the alleged threatening email so as to make her aware of the seriousness of the complaint and to encourage her to assist in the investigation.

53 Sergeant Skehan's statement to Mrs Ives was made on an occasion of qualified privilege for essentially the same reasons that his statement to Ms Thomson was made on an occasion of qualified privilege. Furthermore, Sergeant Skehan wished to search Mrs Ives' home for firearms. He had a duty to inform Mrs Ives of the reason why he wished to search her house. He had an interest in informing Mrs Ives of the reason he wished to search the house so as to obtain her permission and assistance. Mrs Ives had an interest in knowing why the police were attending her house and looking for her son. She had a duty to receive information from the police about what they were investigating and why so that she might assist them in their investigation. Mrs Ives had an interest in being told of the complaint concerning her son which caused the police to seek her permission to search her house. The statement made by Sergeant Skehan to Mrs Ives was made on an occasion of qualified privilege. The statement was relevant to the occasion. The statement was not excessive. It was reasonable for Sergeant Skehan to inform Mrs Ives of the content of Ms Lim's complaint to make Mrs Ives aware of the seriousness of the matter and encourage her to assist in the investigation.

54 Mr Ives submitted that Sergeant Skehan could have obtained a search warrant. That is beside the point. It was proper and appropriate for Sergeant Skehan to seek the permission of Mrs Ives to search her house for firearms. In any event, even if Sergeant Skehan had obtained a search warrant he would have a duty and interest in informing Mrs Ives of the reason for searching her house. Mrs Ives would have an interest in being informed why the police were searching her house for firearms whether or not they had obtained a search warrant to do so.

55 The State says that the publication to Mr Thomson and the Thomson children was on an occasion of qualified privilege without the necessity of establishing that they had a duty or interest in receiving the information conveyed by Sergeant Skehan. The presence of a person or persons lacking a corresponding duty or interest is not necessarily fatal to the defence of qualified privilege. The authors of Gatley on Libel and Slander (11th ed, 2008) say:

In cases of slander, where the defendant spoke the words complained of with honesty of purpose to a person or persons who had some legitimate interest, or some duty in the matter, the mere fact that one, or even several, (legally) uninterested persons happened to be present and heard what was said will not necessarily prevent the occasion from being a privileged occasion [14.74].

In Duncan and Neill on Defamation (3rd ed, 2009) the authors say:

The question is whether the mode of publication adopted for the purpose of communicating with those persons who had the necessary duty or interest in relation to the subject matter of the communication was in all the circumstances reasonably warranted by the exigency of the occasion (191).

56 There is no evidence that Sergeant Skehan knew of the presence of the children before Mrs Thomson made him aware of their presence. Andrew Thomson was in the driver's seat of the four wheel drive. Sergeant Skehan had spoken to Andrew Thomson and asked him if he was Ben Ives. Marianne Thomson was standing next to the four wheel drive when she engaged Sergeant Skehan in the conversation. Speaking to Marianne Thomson in the presence of Andrew Thomson was in all the circumstances reasonably warranted by the exigency of the occasion. Indeed, there was no practical alternative. It would not have been practical or reasonable for Sergeant Skehan to ask Ms Thomson to move out of the hearing of her husband before speaking to Sergeant Skehan. The publication to Andrew Thomson and the children was on an occasion of qualified privilege.

57 The plaintiff submitted, in effect, that the conduct of Sergeant Skehan and other police officers after attending the Claremont house shows that Sergeant Skehan and the police officers did not believe that Mr Ives had breached the VRO or that it was reasonably necessary to attend the Claremont house and make the statements that Sergeant Skehan made to Marianne Thomson and Mrs Ives, and that they did not act reasonably in doing so. I do not accept those submissions.

58 The plaintiff submits, correctly, that after attending the Claremont house, Sergeant Skehan and the other police officers did not attempt to locate Mr Ives and interview him. Sergeant Skehan did not attempt to locate and interview Mr Ives because he did not know his address. Mrs Ives told Sergeant Skehan that Mr Ives was living at Murdoch University or the Murdoch University apartments but she did not know, and could not tell Sergeant Skehan, Mr Ives' address or contact number. Sergeant Skehan did not subsequently investigate Ms Lim's complaint and attempt to interview Mr Ives in relation to it. That is because his role did not extend beyond the immediate response to Ms Lim's complaint. After Sergeant Skehan and the other police officers attended the Claremont house in an unsuccessful attempt to locate and interview Mr Ives, the file was passed to other police officers to investigate.

59 The case file on Ms Lim's complaint was not allocated to Constable Ross for investigation until 20 January 2010. There is no explanation for the delay. However, that delay does not lead to an inference that Sergeant Skehan did not consider Ms Lim's complaint to be serious and to reasonably require him to attempt to locate and interview Mr Ives and to make the statements he made to Ms Thomson and Mrs Ives in pursuit of that course. Sergeant Skehan's role was concluded on 31 December 2009. The events that occurred, or did not occur, thereafter do not lead to any inference as to the beliefs of Sergeant Skehan or the reasonableness of his actions.

60 The plaintiff has not pleaded malice. If Sergeant Skehan had acted with corruption or malice then the State would not have been liable for his tortious conduct. Section 137(5) of the Police Act provides that the State is liable for a tort that results from anything done by a member of the Police Force, without corruption or malice, while performing or purporting to perform the functions of a member of the Police Force, whether or not under a written or other law.

61 In summary, the words spoken by Sergeant Skehan were spoken on a privileged occasion, the words spoken related to the privileged occasion and there was no malice. Therefore, the common law defence of qualified privilege is a good defence, Sergeant Skehan did not commit the tort of defamation and the State is not liable in defamation to Mr Ives for the words spoken by Sergeant Skehan.

62 The State also relies upon the defence of qualified privilege under s 30 of the Defamation Act which provides that

There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that:

(a) the recipient has an interest or apparent interest in having information on some subject;

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and

(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

63 Ms Thomson and Mrs Ives had an interest in having information on the complaint or allegation against Mr Ives for the reasons I have stated in considering the defence of qualified privilege at common law. The statements made by Sergeant Skehan to Ms Thomson and Mrs Ives were published to them in the course of giving to them information on the complaint or allegation against Mr Ives. The remaining issue is whether the conduct of Sergeant Skehan in making the statements to Ms Thomson and Mrs Ives is reasonable in the circumstances.

64 Section 30(3) of the Defamation Act provides that in determining whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances a court may take into account the 10 matters there enumerated. Many of the matters enumerated in s 30(3) do not apply in this case. I will refer briefly to those which do. One matter is the seriousness of any defamatory imputation carried by the matter published. The defamatory imputations arising from Sergeant Skehan's statements are very serious. A further matter is the extent to which the matter published distinguishes between suspicions, allegations and proven facts. The statements by Sergeant Skehan referred to allegations rather than proven facts. However, the manner and circumstances in which the allegations were stated conveyed the meaning that there were reasonable grounds to believe that Mr Ives had engaged in the criminal and reprehensible conduct alleged. A further matter enumerated in s 30(3) is whether it was in the public interest in the circumstances for the matter published to be published expeditiously. I find it was. A court had made a violence restraining order against Mr Ives in favour of Ms Lim. Ms Lim had complained that Mr Ives had made internet postings threatening to rape and murder her. It was in Ms Lim's interests that the complaint be investigated and Mr Ives be interviewed about the matter expeditiously. It is in the public interest that allegations of a breach of a violence restraining order and a complaint of serious threats be investigated expeditiously. The expeditious investigation of the complaint and search of the house for firearms was facilitated by the statements made by Sergeant Skehan to Ms Thomson and Mrs Ives. A further matter to be considered under s 30(3) is the sources of the information in the matter published and the integrity of those sources. There were essentially three sources of the information in the statements made by Sergeant Skehan. The first is the violence restraining order. That was verified by the police database. The second was the posts on LiveJournal. The police had a printout of those posts and there was no reason to believe that they were not authentic. The third source was Ms Lim's complaint and her identification of Mr Ives as the author of the posts. The name of the author of the posts appearing on LiveJournal, benny091074, together with the textual references to the VRO, Ms Lim and the relationship between the author and Ms Lim corroborate Ms Lim's assertion that Mr Ives is the author of the posts. Sergeant Skehan relied upon Constable Holmes' assessment of Ms Lim. A further matter under s 30(3) is any other steps taken to verify the information in the matter published. The police verified that there was a violence restraining order against Mr Ives in favour of Ms Lim. They verified the content of the posts.

65 The final matter referred to in s 30(3) is any other circumstances that the court considers relevant. I have already referred to the relevant circumstances in considering the common law defence of qualified privilege. Having regard to those matters and to the matters specifically identified in s 30(3) I find that the conduct of Sergeant Skehan in making the statements complained of was reasonable. I find that the State has proven the three matters which s 30(1) of the Defamation Act requires a defendant to prove to establish a defence of qualified privilege. I find that the statements made by Sergeant Skehan to Ms Thomson and Mrs Ives are the subject of qualified privilege under s 30 of the Defamation Act. The State is not liable to Mr Ives on that basis as well.

66 The State pleads four Polly Peck imputations in [19], [20] and [21] of its defence. I have referred to those pleas earlier in these reasons. The Polly Peck pleas of imputations which are less serious than the imputation which I have found to arise from the words spoken are not capable of giving rise to the defence of truth. Proving a less serious imputation to be true cannot justify a more serious imputation. However, the plea in [19] of the defence, that the words spoken gave rise to the imputation that the plaintiff made threats through an electronic medium received by an exgirlfriend that the plaintiff would rape and kill the exgirlfriend and smash her body to pieces, is similar to that which I have found to arise. I will consider whether the State has proved to be true the imputation which I have found arises from the words spoken by Sergeant Skehan, that is, that there are reasonable grounds to believe that the plaintiff breached a violence restraining order by sending an email to his exgirlfriend threatening to rape and murder her and cut her into pieces.

67 There is no doubt that Mr Ives made the posts on the LiveJournal website. The posts, or a printout of them, are in evidence. The posts include the following:

... I JUST WANT TO KILL HER.

I WANT TO BEAT UP HER BODY AND SMASH HER TO PIECES ...

...

... I am going TO FORCE HER INTO MY CAR AND RAPE HER.

There is no doubt that those words refer to Mr Ives' exgirlfriend, Ms Lim. That is apparent when the posts are read sequentially. Mr Ives agrees that the words refer to Ms Lim.

68 In order to establish the defence of justification the defendant must prove that the words complained of were, on the balance of probabilities, substantially true. In Turcu v News Group Newspapers Ltd [2005] EWHC 799 Eady J gave this guidance:

... the court should not be too literal in its approach or insist upon proof of every detail where it is not essential to the sting of the article ...

In deciding whether any given libel is substantially true, the court will have well in mind the requirement to allow for exaggeration, at the margins, and have regard in that context also to proportionality. In other words, one needs to consider whether the sting of a libel has been established having regard to its overall gravity and the relative significance of any elements of inaccuracy or exaggeration ...[109] [111].

69 I find that the imputation that Mr Ives sent an email threatening to rape and kill Ms Lim and chop her body into pieces has not been proved to be substantially true. There are a number of matters which lead me to that conclusion. First, the plaintiff did not send an email to Ms Lim. The web post was not a direct communication to Ms Lim. The post was not made on Ms Lim's account on LiveJournal but on the account of someone calling himself or herself angel_of_yhwh, who I will refer to as AY. It appears from earlier posts made by AY that AY knew of the proceedings brought by Ms Lim to obtain the VRO against Mr Ives. In crossexamination Mr Ives said that he did not know whether or not AY knew Ms Lim personally but they obviously had some kind of connection. He did not know what the line of communication was between them. Mr Ives agreed that if he posted something on AY's website there was a risk it would get back to Ms Lim. Anything posted by Mr Ives on AY's account on LiveJournal might be viewed by anyone who AY allowed to have access to the account. Nevertheless, the posts were communications to AY, not Ms Lim. They were part of what might be viewed as a conversation between AY and Mr Ives. The fact that the posts were not a direct communication to Ms Lim does not necessarily lead to the conclusion that the imputation that Mr Ives sent an email threatening to rape and kill Ms Lim and chop her body into pieces is not substantially true. However, it calls for a careful examination of the content and context of the posts.

70 Secondly, Mr Ives says that he wrote what he did on the website in jest. What he wrote were not threats nor intended to be threats. I accept Mr Ives' evidence that he wrote the words in jest and did not intend them to be taken seriously.

71 The State submits that whether the words written are threats is to be determined objectively. Counsel for the State referred to Green v The Queen (Unreported, WASCA, 8 November 1995). In Green the Court of Criminal Appeal dismissed an appeal against a conviction for an offence of threatening to kill a police officer contrary to s 338B of the Criminal Code (WA). Ipp J, with whom Franklyn and Anderson JJ agreed, said:

It is no part of the offence that the person who is making the threat should possess an intention to carry out the threat ... That is to say, the subjective intention of the person making the threat is irrelevant. To this extent the offence of threatening to kill under our Criminal Code differs from similar offences elsewhere ...

The words in s 338B 'makes a threat' are equivalent to 'threaten'. The Oxford English Dictionary defines 'threaten' relevantly as, 'To declare one's intention of inflicting'. Therefore the words used, when objectively construed, must constitute a declaration of an intention to kill. Accordingly, while there should be no enquiry into the subjective intention of the person alleged to have made a threat, the words alleged to constitute a threat must constitute, objectively speaking, a declaration of an intention to kill.

The meaning of words may depend on the circumstances in which they are used, and any task of construction will ordinarily involve an examination of those circumstances. As Hodgson J said in Williams (1987) Cr App R 299 at 300:

'Words which, on their plain meaning, amount to a threat to kill, are frequently made in jest or temper in context where they are not intended to be taken seriously.'

It is not uncommon for one person to say to another 'I'll kill you' in circumstances in which it would be manifest to a reasonable person that the words could not be given their literal meaning; ie they would not constitute a declaration of an intention to kill. For example, words of this kind may be uttered in anger, in jest, or as a means of expressing embarrassment. The statement 'I'll kill you' may be made in the heat of the moment, in extreme emotional circumstances, as part of a stream of abuse where they have no meaningful content. In these instances there could not be said to be 'a statement or behaviour that expressly constitutes, or may reasonably be regarded as constituting, a threat' within the meaning of s 338. The words, in isolation, may very well expressly constitute a threat, but when considered in the context of the circumstances in which they were uttered, they would not.

It has long been held that whether a threat to kill has been made is a question for the jury to determine ... That question involves not only an examination of the words used, but in addition the circumstances in which they were spoken.

72 In Jeffery v The State of Western Australia [2009] WASCA 133 Miller JA refused an application for leave to appeal against a conviction for the offence of threatening to unlawfully kill another contrary to s 338B of the Criminal Code. Miller JA referred to the judgment of Ipp J in Green and then observed that counsel for the appellant sought to extrapolate from that decision the proposition that an examination of the circumstances in which the words were spoken means that the circumstances should include the effect of the words spoken upon the recipient. Miller JA said that in Green Ipp J had made no statement to that effect. After referring to what Ipp J said, Miller JA observed:

I apprehend this statement to be no more than that the jury must look at the circumstances in which the words were spoken to see whether they truly constituted a threat to kill, or whether the words may have been used in some other context. This statement does not support the proposition that the circumstances include the effect of the words spoken upon the recipient [27].

The essence of the offence of threatening to kill is that (1) there must be a threat, and (2) the threat when viewed objectively (which means an examination of the words used and the circumstances in which they were spoken) must declare an intention to kill [30].

73 I am not concerned in this case to determine whether or not the words written by Mr Ives constitute a threat to kill constituting an offence under s 338B of the Criminal Code. I am concerned with whether or not Mr Ives sent an email, or some communication, threatening to murder and kill Ms Lim and chop her into pieces. I am concerned with the ordinary meaning of 'threaten to kill'. Nevertheless, the judgments in Green and Jeffery offer some guidance on whether or not the words written by Mr Ives amounted to a declaration of an intention to rape and murder Ms Lim and chop her into pieces. The meaning of the words depends on the circumstances in which they are used. As Hodgson J observed 'words which, on their plain meaning, amounted to a threat to kill, are frequently made in jest ... in context where are they not intended to be taken seriously'.

74 I find that, viewed objectively, in context and having regard to the circumstances in which they were written, the words written by Mr Ives do not amount to a threat to rape and murder Ms Lim and chop her into pieces. I accept that the posts made by Mr Ives are disturbing and may reasonably cause distress to the person to whom they refer if they came to her attention. That person might reasonably consider that the author of the words is disturbed or unstable, notwithstanding that the underlying meaning of the words written is not the same as their surface meaning.

75 The circumstances in which the words were written are described by Mr Ives in his evidence. AY initiated communication with Mr Ives. In November 2009 AY posted comments on Mr Ives LiveJournal page using the identifier 'angel_of_yhwh'. AY maintained that Mr Ives was a stalker and was guilty of stalking Ms Lim. AY's comments included allusions to supernatural forces. Mr Ives engaged in replies to AY. Mr Ives says:

One evening in jest I decided to agree with this character, 'angel_of_ yhwh' and instead of maintaining a denial of the stalking infatuation of Ms Joyce Lim as had been constantly thrust at me for months, I made light of the anonymous character who was portraying him/herself to be the devil, and sarcastically affirmed his accusations / insinuations in an obviously exaggerated manner, and made it clear that the postings were mocking, sarcastic and comedy writings. I am still proud of the creativeness of some of the humorous writings.

The series of messages I made on this blog site of, 'angel_of_yhwh' were directed at the administrator of the anonymous account, 'angel_of_yhwh' who I do not believe to be Ms Joyce Lim but some other person. The only actual literal threat was a threat to kill myself if Ms Joyce Lim did not phone me. This was also of course in jest. I felt highly amused at the comments and thought they were hilarious. My closing statement on that blog post was an admission that the writings were comedy.

76 Most people would not find the messages posted by Mr Ives to be funny. They are disturbing. However, in context they do not amount to a declaration of an intent to kill and rape. The message written by AY to which Mr Ives' messages respond is ironic and mocking. AY's comment is essentially that Ms Lim was not Mr Ives' girlfriend and a normal person in his position would accept that and get on with his life. It is in response to those comments that Mr Ives wrote the comments which Ms Lim presented to the police. They consist of seven separate posts but each post was made immediately after the preceding post or after only a short interval. The comments that the author wants to kill her, rape her and smash her to pieces cannot be taken seriously. Mr Ives wrote that 'I just want to kill her, I want to beat up her body and smash her to pieces'. Those comments are immediately followed by the words 'and make her forget everythin!!!!!!!!!!! So I hope she's reading this, because I want her to know what she did to me, and how she can fix my brokenness!!' The author could not wish to kill her and have her fix his 'brokenness'. Mr Ives wrote 'and if I get the chance, I'm going to force her into my car and rape her!' That is immediately followed by the comment, 'don't tell her I said that, she might think I am being immature'. The words referring to raping her could not be taken as a serious declaration of an intention to do that when they are followed by the exhortation not to tell her because 'she might think I am being immature'. The third post includes the words 'the police cant stop me, THE COPS ARE DEAD MEAT IF THEY TRY TO KEEP US APART!!!!' Those words are immediately followed by the words 'I will get a gun, and I will hold up a bank, and with the money I will buy another gun, and go and shoot her front door down and TAKE HER FOREVER TO MY PLANE and fly us out over ayres rock and tell her to kiss me or she has to jump out the plane!!!!!!!!' Ms Lim knew that Mr Ives did not have a plane. It is highly unlikely that AY, or anyone else reading the page, would think that the author had a plane. The notion of getting a gun to rob a bank to get the money to buy another gun is nonsense. The idea of taking her forever to his plane, flying over Ayres Rock and telling her to kiss him or she has to jump out the plane is also nonsense. The next post refers to AY catching her and tying her up so that benny

will come over and take her to my plane and fly over duncraig senior high school, and shoot all the cops and nurses and FORCE JOYCE SUK LIM to marry me, in my plane and then when we are legally wed, she cant say no to kids, I think a girl that age should get pregnant strait away.

Again, this is all fantasy nonsense. A later post says:

I been working on my speech to her dad for when I ask his permission to marry her. It's going to be something like - if you ever want to see your daughter alive again, you will sign this form, and if you tell anyone where we are, and if the cops come for us I will choke her to death, and then set us both on fire, so we can scream in pain together, and I might do that anyway because it sounds romantic, then we can look into each others eyes and ONLY THEN WHEN WE DIE TOGETHER WE'LL BE AWAY FROM YOU DANNY.

Mr Ives suggests that this is a humorous passage; the humour arises from the contrast between the humility of working on a speech to ask her father for permission to marry her and the violent content of the speech. Few people would find that humorous. But, in the circumstances in which it was written, it is not a serious declaration of an intention to cause harm to Ms Lim. The penultimate post includes:

I have been joking and so bad and its because I want to stalk her and I haven't been.

sorry I am just really drunk and need your support.

Please please if you are not danny please listen, please dont taunt me or go on about your schedule anymore.

77 The State also pleads that the words spoken by Sergeant Skehan, in conjunction with the extrinsic facts pleaded by the plaintiff, give rise to the imputations that there had been threatening behaviour by the plaintiff towards a person for whose benefit a violence restraining order had been made imposing restraints on the activities and behaviour of the plaintiff, or alternatively the plaintiff was reasonably suspected by Sergeant Skehan, or alternatively by police officers, of threatening behaviour towards a person for whose benefit a violence restraining order had been made imposing restraints on the activities and behaviour of the plaintiff and that each of those imputations is substantially true. I have found that the words spoken by Sergeant Skehan give rise to the imputation that there were reasonable grounds to believe that Mr Ives had committed a breach of a violence restraining order by sending an email to Ms Lim threatening to rape and murder her and break her into pieces.

78 The repetition rule requires that in order to justify those imputations the State must prove that Mr Ives breached a violence restraining order by sending an email to Ms Lim threatening to rape and murder her and chop her into pieces. The general rule is that it is no defence to an action for defamation for the defendant to prove that he had merely repeated an allegation, even if he discloses the name of his informant. This rule was termed the 'repetition rule' by Hirst LJ in Stern v Piper [1996] EWCA Civ 1290; [1997] QB 123, 128. In Shah v Standard Chartered Bank [1998] EWCA Civ 612; [1999] QB 241, 263 Hirst LJ explained the repetition rule in these terms:

... I consider that the repetition rule reflects a fundamental canon of legal policy in the law of defamation dating back nearly 170 years, that words must be interpreted, and the imputation that they contain justified, by reference to the underlying allegations of fact and not merely by reliance upon some secondhand report or assertion of them.

79 Sergeant Skehan said, in effect, that it was alleged that Mr Ives had breached a violence restraining order by sending an email threatening to murder and kill Ms Lim and chop her into pieces. To establish the defence of justification the State must prove that Mr Ives breached the violence restraining order by sending an email to Ms Lim threatening to rape and murder her and chop her into pieces. For the reasons I have stated, the State has not proved that Mr Ives sent an email to Ms Lim threatening to rape and kill her and chop her into pieces.

80 The State has not proved that Mr Ives breached the VRO. The VRO ordered Mr Ives not to communicate or attempt to communicate by whatever means with Ms Lim. The plaintiff posted comments on AY's account on LiveJournal. That was not a direct communication with Ms Lim. It was not an indirect communication with Ms Lim. Mr Ives did not convey the comments or messages to AY with the intention that AY would convey them to Ms Lim. Mr Ives was engaged in a form of conversation with AY. Mr Ives knew, or ought reasonably to have known, that AY might inform Ms Lim of the comments or messages or that Ms Lim might herself access AY's LiveJournal account and see the messages or comments posted by Mr Ives. However, in the absence of evidence that Mr Ives intended AY to convey the comments to Ms Lim or intended Ms Lim to access the comments on AY's LiveJournal account, that does not constitute a communication so as to amount to a breach of the VRO.

81 Section 26 of the Defamation Act provides that it is a defence to the publication of defamatory matter if the defendant proves that:

(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and

(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

82 In [22] of its defence the State pleads that the imputations pleaded by the plaintiff do not further harm the reputation of the plaintiff because of the substantial truth of the imputations pleaded in [19], [20] and [21] of the defence.

83 The Defamation Act 2005 (WA) and its counterparts in the other States and Territories were the result of an agreement between the Attorneys General of the States and Territories to enact uniform legislation in Australia. Before the enactment of the Uniform Defamation Act, a defence of contextual truth was found in s 16 of the Defamation Act 1974 (NSW) but was not a defence in Western Australia.

84 In John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205 Spigelman CJ, with whom Ipp JA agreed, considered the defence of contextual truth under the Defamation Act 1974 (NSW) s 16. The section relevantly provides that it is a defence to any imputation complained of that one or more imputations contextual to the imputations complained of are substantially true and by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff. A contextual imputation was defined as 'another imputation' made by the same publication as the imputation complained of. Spigelman CJ said:

In my opinion, the words 'another imputation' are not satisfied where a defendant relies on a contextual imputation which is, in substance, nothing more than an alternative way of formulating the same imputation relied on by the plaintiff, based on exactly the same words in the matter complained of and applying those words in exactly the same way [16].

85 In Ange v Fairfax Media Publications Pty Ltd [2010] NSWSC 645 Simpson J considered that statement to be of equal relevance to the application of s 26 of the Defamation Act 2005 (NSW), which is in the same terms as s 26 of the WA Act, notwithstanding a slight difference in the language of the two sections. Her Honour accepted Jones as authority for the proposition that a defendant cannot expand the area of misconduct by pleading a contextual imputation related to the same class of misconduct but framed in general terms.

86 Section 16 of the Defamation Act 1974 (NSW) was considered by the New South Wales Court of Appeal in Snedden v Nationwide News Pty Ltd [2011] NSWCA 262. McClellan CJ at CL, with whom McColl and Mcfarlan JJA agreed, said, after referring to the judgment of Spigelman CJ in Jones 'contextual imputations must be "of a different character", rather than different levels of generality of the same allegation'.

87 Section 26 of the Defamation Act 2005 (NSW), was considered by the New South Wales Court of Appeal in Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157. McColl JA with whom Beazley and Giles JJA agreed, discussed the defence of contextual truth under s 16 of the Defamation Act 1974 (NSW). Her Honour said that a series of decisions had worked out that, amongst other things:

(a) the defence of contextual truth under s 16 was created to fill a lacuna in the common law by enabling a defendant to justify a meaning of the matter complained of upon which the plaintiff had not relied; and

(b) a contextual imputation must be another imputation from the plaintiff's imputation; the test of whether it differs in substance from the plaintiff's imputation is a necessary but not sufficient test for 'another' imputation, which requires a difference in kind (John Fairfax Publications Pty Ltd v Jones); it must be 'truly alternative' imputation (Hepburn v TCN Channel 9 Pty Ltd) [68].

88 McColl JA said that while the conceptual foundation for the contextual truth defence which became s 16 of the Defamation Act 1974 (NSW) to some extent informs an understanding of s 26 of the Uniform Defamation Act, it cannot be decisive as to its operation in the context of the Uniform Act. Her Honour made the following observations about the defence of contextual truth under s 26:

A defence of contextual truth must defeat the whole defamatory matter (cause of action) of which the plaintiff complains, that is to say all of the plaintiff's stings ... Thus s 26 postulates that the defence of contextual truth must carry contextual imputations 'in addition to' those 'of which the plaintiff complains'.

Secondly, when the tribunal of fact comes to the weighing exercise the contextual truth defence entails ... it must be able to conclude that because of the substantial truth of the contextual imputations 'the defamatory imputations' that is to say the plaintiff's cause of action do not further harm the plaintiff's reputation. Once (sic) again the focus is on comparing the defendant's contextual imputations with the plaintiff's cause of action.

Thirdly, the use of the definite article in both subparagraphs of s 26 (' the defamatory imputations') focuses attention on the plaintiff's imputations as a group emphasising that the defence has to respond to all the plaintiff's imputations (cause of action). In contrast, s 16 of the 1974 Act used the indefinite article, directing the defence to 'any imputation complained of', thus permitting the pleadingback of any other of a plaintiff's imputations to another.

Fourthly, the words 'in addition to ...', as the primary judge pointed out ... correctly in my view, cannot be 'contorted to include imputations pleaded by the plaintiff' [78] - [81].

89 In Newnham v Davis [No 2] [2010] VSC 94 Kaye J considered the defence of contextual truth under s 26 of the Defamation Act 2005 (Vic), which is in the same terms as s 26 of the WA Act:

It is clear, from the express terms of s 26(a), and also from the structure of a contextual truth defence, that the contextual imputations must be 'additional to' the imputations pleaded by the plaintiff. ... Thus, as Hunt J stated in the John Fairfax & Sons Ltd case, it is necessary that the contextual imputations relied on by the defendant 'differ in substance' from those pleaded by the plaintiff [48].

90 In my opinion the defence of contextual truth pleaded by the State does not succeed. First, the imputations pleaded by the State are not separate and distinct from the imputations which I have found Sergeant Skehan's statements give rise to, that is they are not 'in addition to the defamatory imputations of which the plaintiff complains'. The imputations relied upon by the State do not differ in substance from those which I have found to arise, they are mere variants or nuances of the imputations I have found to arise from the publications complained of.

91 The contextual imputations pleaded by the State are not of a different character from the imputations I have found to arise. They are in substance no more than an alternative way of formulating the same imputation. They are based on the same words spoken by Sergeant Skehan in the same way. Accordingly, the defendant's imputations do not give rise to a defence of contextual imputation.

92 Secondly, the imputations pleaded by the State are less serious than the imputation which I have found to arise from the words spoken by Sergeant Skehan. The imputation that there are reasonable grounds to believe that Mr Ives breached a violence restraining order by sending an email threatening to rape and murder Ms Lim and chop her into pieces further harms the reputation of Mr Ives even if the imputations pleaded by the State are substantially true. Therefore, the imputations pleaded by the State are not capable of giving rise to the defence of contextual truth.

93 For the reasons I have stated the plaintiff's claim fails. This is not a case in which it is appropriate to make a provisional assessment of damages.

94 The plaintiff claims damages including aggravated damages. The particulars in support of the claim for aggravated damages include matters relevant to the defence of qualified privilege. The particulars of aggravated damages given by the plaintiff include '[t]he seriousness and abhorrent imputation is deserving of aggregated damages as a fact in its own right'. I have found that the imputation or imputations arising from the publications complained are not the imputation pleaded by the plaintiff but a variation of that. If I am wrong about the imputation or imputations arising from the words spoken by Sergeant Skehan then it would be necessary to determine what imputation or imputations arise before considering the plaintiff's claim for aggregated damages.

95 The plaintiff's particulars of aggregated damages also include:

The publications were indiscriminate and made to several young children with an existing relationship with the plaintiff
1. which were unnecessary under any circumstances
2. the damage of the imputation was disproportionately large in terms of the feelings and reputation of the plaintiff
The publication was made to immediate family members repeatedly,
The location of the publication was unjustifiable
The withdrawal of Sergeant Skehan and other police officers into obscurity in the days, weeks and months following the publication, coupled with their refusal to explain their actions to the plaintiff and his parents, conveyed a self righteous attitude and reinforced the imputation causing aggravated damage.

No attempt to apologize 2. Refusal to explain actions

Never attempted to contact or meet with plaintiff at his own home 2. The defendant has refused to acknowledge that the plaintiff didn't live at 16 Lakeway Road, and has maintained he did live there and pleaded such, in spite of the fact evidence has been circulated the plaintiff was on bail elsewhere 3. Police patronizingly mailed documents stating he was involved in a domestic dispute on 31/12/2009, at 16 Lakeway Rd Claremont and included selfhelp documents in the envelope.

I have made findings contrary to some of these particulars, or have not made findings in terms of those particulars. For example, I find that the publication was not made to immediate family members repeatedly. I have found that the location of the publication was not unjustifiable. In light of my findings the failure of Sergeant Skehan, the police or the State to apologise was not unjustifiable. It is not appropriate to assess damages without making hypothetical findings contrary to those which I have made. There are a range of other possible findings. It is not appropriate to attempt to provisionally assess damages in those circumstances.

96 The State has made out the defence of qualified privilege at common law and pursuant to s 30 of the Defamation Act. The plaintiff's action should be dismissed.

IVES -v- THE STATE OF WESTERN AUSTRALIA [No 8] [2013] WASC 277 (2 August 2013)

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Judgment (189 paragraphs)

IVES -v- THE STATE OF WESTERN AUSTRALIA [No 8] [2013] WASC 277 (2 August 2013)

Legislation Cited (1)

Cases Cited (8)