McDonald v Dods [2017] VSCA 129

Court of Appeal (Vic)|2017-06-02|Before: Mr J, Warren CJ, Whelan JA

DEFAMATION - Internet page - Whether sufficient evidence for inference of publication to unknown individuals - Whether damages excessive given scope of publication - Leave to appeal refused.

1 This application for leave to appeal arises from a matter heard in the Trial Division where a verdict was returned that the applicant, Michael McDonald, had defamed the respondent, Colin Dods. An order was made for damages of $150,000.

2 The applicant seeks leave to appeal on the basis that there was insufficient evidence to infer publication was made to a broad pool of people and that damages should be reduced accordingly.

3 The applicant, Michael McDonald, is the administrator and author of the website 'www.justice4tylercassidyjust15.com'. He is a barrister by profession. From December 2008 to October 2012, the applicant maintained a website which discussed a death by police shooting.

4 The respondent, Colin Dods, is a police sergeant. He was one of four Victoria Police officers at All Nations Park in Northcote attempting to contain Tyler Cassidy, an aggravated 15 year old carrying a knife, when the boy was shot dead by the police. The incident was of considerable notoriety and media coverage. It was the subject of a contested coronial inquest.

5 By way of background, set out below is the summary of events around Tyler Cassidy's death drawn from the 2011 report of the Coroner:

Tyler Jordan Cassidy was shot dead by police on the evening of 11 December 2008 at All Nations Park, Northcote. He was 15 years and 8 months old at the time of his death.

Ten shots were fired by three of the four police officers present in the park at the time of his death. Five of those shots struck Tyler, one of them fatally entering his body below his left clavicle and causing significant internal bleeding and the collapse of his right lung. He died within minutes at the scene.

About 11 minutes and 25 seconds before this shooting, Tyler had armed himself with two large knives he had very publicly stolen from a Kmart store inside the Northcote Plaza Shopping Centre which is adjacent to All Nations Park. He had then moved swiftly through the shopping centre, and adjoining shops and car park, pointing the knives at people and demanding that the police be called or people would die that night.

Indeed about three minutes and two seconds before entering the Kmart store he had called 000 himself and said there was a 'psychopath' with a shotgun that had gone crazy and that the police should 'shoot him fucken dead'.

At least four people in and around Northcote Plaza that night had contacted 000 advising police of the presence of a male armed with knives threatening people.

Four police arrived in two vans in response to these 000 calls. They were Leading Senior Constable Colin Dods (LSC Dods) and Senior Constable Richard Blundell (S/C Blundell) in one police van and Constable Antonia Ferrante (C. Ferrante) and Constable Nicole De Propertis (C. De Propertis) in the second van.

LSC Dods and S/C Blundell quickly located Tyler who, upon seeing the police arrive, had run onto the roadway and placed himself in front of the van being driven by S/C Blundell. Upon seeing Tyler, S/C Blundell pulled up immediately and both he and LSC Dods got out of the van. LSC Dods had taken out his Oleoresin Capsicum (OC) foam spray and S/C Blundell immediately withdrew his firearm once he got out of the van.

The first words spoken to Tyler were commands to him to show his hands, which he held behind his back.

Tyler produced two knives, firmly gripping one in each hand. When asked to show his hands and drop the knives, Tyler said 'you're going to have to kill me', 'you're going to have to shoot me' and 'I'll hurt you'.

Upon seeing the knives LSC Dods and S/C Blundell demanded he drop the knives. Tyler did not drop the knives. There is some mixed evidence about whether or not Tyler stepped forward towards LSC Dods and S/C Blundell upon them exiting their van. LSC Dods stepped forward and sprayed Tyler with OC foam. At this point, according to the evidence of LSC Dods he moved forward so that he was within range of distance for the OC foam to be effective.

After this foaming, Tyler ran across the adjoining skate park and into the grassed open area of All Nations Park. By this time the two police members in the second van, C. Ferrante and C. De Propertis, had joined LSC Dods and S/C Blundell on foot as they pursued Tyler into the park.

Some metres into the grassed area of All Nations Park, past the skate park and across a track, Tyler stopped running and turned and faced all four police members who had chased him into the Park. LSC Dods described Tyler as pointing the knives at them in a 'threatening manner'. He was again foamed by LSC Dods, but apparently to no effect in that it did not result in Tyler laying down the knives or indicating his intention to stop.

Refusing to obey the police calls to throw down the knives, Tyler started advancing slowly on the police. The police stated they were commanding him to put down the knives and stop coming towards them or he would be shot. Throughout this exchange the police evidence was that Tyler responded by saying 'I'm going to kill you' and 'you're going to have to shoot me'.

All four police stated they backed away as Tyler continued to advance despite commands for him to stop and put down the knives.

Tyler focused his advance on LSC Dods. LSC Dods continued to issue commands to Tyler to stop and disarm.

LSC Dods fired a warning shot into the ground beside Tyler which did not halt Tyler's advance. After this warning shot was fired, LSC Dods became isolated from the other three members as Tyler continued to advance on LSC Dods. LSC Dods stated he felt forced to back up a set of concrete steps leading to a raised area of the adjoining skate park. LSC then fired two shots at Tyler's legs as Tyler walked up the steps towards him. Apart from a 'flinch' or 'stumble', Tyler did not stop advancing on LSC Dods with the knives held firmly in each hand.

As LSC Dods got to the top of the steps, he came up against a railing running around the steps' apex.

As Tyler commenced his ascent of the steps towards LSC Dods, S/C Blundell fired twice and C. De Propertis fired once. As Tyler walked towards LSC Dods, S/C Blundell fired again. At this time, Tyler was standing in the vicinity of the top of a ramp in the skate park, down which he ultimately fell. LSC Dods stated that, fearing for his life and having exhausted all other non-lethal options, he fired three shots directly at Tyler's chest area as Tyler walked towards him, and as he (i.e. LSC Dods) was standing a step in from a ledge to the back of him and a ramp to the right. There were several shots fired in rapid succession at this time after which Tyler fell down the ramp and died minutes later.[1]

6 On certain pages on his website 'www.justice4tylercassidyjust15.com', the applicant discussed the respondent's involvement in Tyler Cassidy's death. Two pages in particular were impugned in the trial below. The first discussed Mr Dods's background, questioned his promotion after the incident, and referred to 'Colin Dods['s] execution of Tyler Cassidy' (the 'First Publication'). The respondent alleged that the First Publication conveyed the defamatory imputation that the respondent had executed Mr Cassidy.

7 The second publication referred to Tyler Cassidy being 'executed' and 'gunned down as if he was a dangerous mongrel dog' (the 'Second Publication'). The respondent alleged it raised the defamatory imputations that the respondent had executed Mr Cassidy, that he had shot and killed Mr Cassidy without any or any adequate reason; that he had gunned down Mr Cassidy like he was a monster and a dangerous mongrel dog, that in shooting at Mr Cassidy six times and killing him, the respondent had unlawfully used excessive force out of proportion to any threat posed, that the respondent chose to shoot Mr Cassidy, a slightly built, inexperienced and partially blinded boy, six times when he knew or ought to have known that he and other police officers present could have otherwise overpowered Mr Cassidy without anyone being harmed, and that by shooting Mr Cassidy, the respondent committed manslaughter.

8 After an inquest into the death of Mr Cassidy, the State Coroner released her finding in November 2011. This concluded that 'when the three police members fired at Tyler, it was at a time that LSC Dods was in immediate and perilous danger of serious injury or death'.[2]

9 The Coroner went on to note that she was 'satisfied that the members involved responded within the limitations of the training and skills provided to them by Victoria Police as at December 2008'.[3]

10 No change was made to the references to Mr Dods on the applicant's webpages after the State Coroner released her finding. On 13 July 2012, the respondent sent an email to the applicant asking that the webpages be amended and an apology be issued. The following day, the relevant webpages were taken down. In October 2012, the whole website was taken down.

11 On 25 January 2013, the respondent's solicitors wrote to the applicant alleging that the respondent had been defamed by the webpages and requesting an apology. The applicant did not reply to this letter.

12 On 3 April 2013, the respondent filed a writ and statement of claim.

13 The trial proceeded with a jury of six. To make out his case, the respondent had to first show that the publications were made within the relevant limitation period - that is, within the year prior to the issue of the statement of claim on 3 April 2013.[4] The respondent, the respondent's wife Mrs Robyn Dods, and a family friend Ms Samantha Mazer each gave evidence that they had accessed the website prior to 3 April 2012 and both the respondent and Ms Mazer gave evidence that they had viewed the website again during the relevant limitation period from 3 April 2012. Each of the respondent, Mrs Dods and Ms Mazer indicated that they had originally accessed the site in 2009 and 2010 simply by Googling either Mr Cassidy's or Mr Dods's name and found that the site was in the first page of results. Mr Dods and Ms Mazer returned to the website through a variety of methods in the subsequent years, including during the limitation period. Excerpts from their testimony explaining how they accessed to the site are set out below.[5]

14 At the trial, the applicant applied for a ruling that he had no case to answer as there was no evidence that the statements had been published within the limitation period. The applicant submitted to the trial judge that as Ms Mazer had already viewed the site, her subsequent re-reading of the material could not be an instance of publication. The respondent's visits to the website were of course inconsequential on this point as his reputation could not be damaged in his own eyes. The trial judge ruled against the application finding there was evidence on which the jury could find publication was made.[6] His Honour held that there was sufficient evidence from which the jury could infer publication had been made outside Ms Mazer to a pool of unknown individuals who would have downloaded and read the website (the 'Google inference').[7]

consistently with principles governing proof of publication by inference generally, it is open to a plaintiff to prove publication to at least one other person via an Internet website, and the scope of any such publication, by inference from other evidence.[8]

16 His Honour stated that '[h]aving regard to the ubiquity of the Internet, the courts are not slow to draw an inference of publication on websites'[9] and that in this case 'there was a substratum of fact to support a proper inference of publication'.[10] The judge reasoned that as the matter was one of 'substantial public controversy', as the report from the coronial inquiry was published in November 2011 and as the evidence showed that the link to the applicant's website was returned on the first page of Google search results after entering Mr Dods's or Mr Cassidy's name, it was open to the jury to find on the balance of probabilities 'by way of inference that the statement has been published to at least one (unidentified) person other that [sic] the plaintiff on or after that date'.[11] The judge directed the jury accordingly.

17 His Honour further held that publication could be made to the same person more than once which meant Ms Mazer's viewing of the site in 2012 could be considered an instance of publication.[12]

18 The jury returned a verdict that the respondent had established that the applicant had made the publications within the limitation period.[13] On appeal, the applicant submitted that there was an insufficient substratum of evidence to make the Google inference that formed a basis for the finding of publication. This will be returned to below.

19 At trial, the respondent put to the jury that the First and Second Publications raised certain imputations that were defamatory of him. The jury returned a verdict that both the First and Second Publications made defamatory claims.[14] The defamatory content of the publications is not contested on this appeal.

20 Finally, the jury found that the defence of triviality had not been made out by the applicant.[15] Section 33 of the Defamation Act 2005 codifies the defence of triviality, providing: 'It is a defence to the publication of defamatory matter if the defendant proves that the circumstances were such that the plaintiff was unlikely to sustain any harm.'

21 After the jury returned its verdict, the trial judge ruled that $150,000 of damages for non-economic loss was payable to the plaintiff.

22 In making his assessment of damages, the judge referred to the following as relevant to his assessment of damages: the 'very grave' and 'shocking' nature of the defamations,[16] the applicant's failure to offer an apology despite repeated requests,[17] the 'intense experience of distress, embarrassment and humiliation' that the respondent had suffered,[18] the lack of mitigating factors,[19] and the importance of the need for vindication.[20]

23 The trial judge also noted that the scope of the publication was an important consideration.[21] Although his Honour found that the publications were only available on the website for a period of about three months during the limitation period, the judge found that the scope of the publication was not insignificant.[22] The killing of Tyler Cassidy was a 'matter of substantial public controversy' and 'searches of the plaintiff's and Tyler's name on standard search engines would have produced results that listed the defendant's website very prominently'.[23]

24 His Honour found that aggravated damages were warranted in this case because of the post-publication conduct of the applicant. First, the judge found that 'the defendant's failure to apologise and retract in the present case was improper and unjustified'.[24] It was egregious that the publication continued after 'the coroner exonerated the plaintiff' in a report that was 'comprehensive and clear'.[25] Second, it was egregious that 'until just before trial, the defendant persisted with defences including justification, that flew in the face of the coroner's findings and contained no apparent foundation'.[26]

By the award of damages in this case, the court intends to demonstrate to all the world that the defamatory publications of the defendant represented a baseless challenge to the moral foundation of the plaintiff's personal integrity and public standing and that the plaintiff deserves to keep his good name as a respected member of the community and sergeant of police.[27]

26 The applicant submitted in this appeal that the judge erred in his assessment of damages. These submissions are set out below.

1. The learned trial judge erred by ruling that an inference of publication was able to be drawn from the primary facts as set out in paragraph [10] of the Reasons for Judgment No 1.

2. When assessing aggravated damages, the learned trial judge erred by taking into account an irrelevant consideration at [77] of the Reasons for Judgment No 2, namely the defence of justification pleaded in the Second Amended Defence dated 4 July 2014.

3. The learned trial judge's assessment of damages was manifestly excessive in that at [77] of the Reasons for Judgment No 2, his Honour placed undue weight upon the defence of justification pleaded in Second Amended Defence dated 4 July 2014.

4. The learned trial judge's assessment of damages was manifestly excessive in that at [73] of the Reasons for Judgment No 2, his Honour placed undue weight on the scope and extent of the publication.

28 At the hearing of the application, counsel for the applicant expressly stated that Grounds 2 and 3 were abandoned and that Grounds 1 and 4 were pressed.

29 Counsel for the applicant indicated in the course of his oral submissions that Grounds 1 and 4 were highly interrelated. That is, if the applicant could succeed in establishing there was insufficient evidence for the Google inference, counsel conceded there would still be publication due to the judge's ruling that Ms Mazer re-comprehended the material in the limitation period. However, the reduced scope of publication would, in the applicant's submission, require an adjustment to the trial judge's assessment of damages.

Ground 1: That his Honour erred in finding there was sufficient evidence from which to make the Google inference

30 The applicant submitted that an inference of publication could be made only where there is a proven platform of facts on which that inference could be drawn. The mere posting of material on an Internet site is insufficient. According to the applicant, in this case there was no evidence to support the inference that the statements had been published to at least one (unidentified) person other than the plaintiff[28] during the limitation period.

31 The applicant submitted that in this case the trial judge misconstrued the evidence given by Mr Dods and Ms Mazer about how they accessed the site in the limitation period. According to the applicant, Mr Dods and Ms Mazer had not simply entered Mr Dods's name or Mr Cassidy's name into Google during the limitation period to find the site. Instead, the applicant submitted the evidence from the trial indicated Mr Dods and Ms Mazer had navigated to the website after 3 April 2012 through other means, either from having memorised the URL address or by having entered search terms of phrases peculiar to the site. According to the applicant, this was contrary to the judge's statement at [10] of Reasons No 1 in which he concluded there was sufficient evidence to support the Google inference.

32 Next the applicant submitted that as Google is 'not a static creature', the evidence of where the search result had appeared for Ms Mazer and Mr Dods in previous years could not be relayed into a similar conclusion for 2012. Moreover, the applicant submitted that the algorithm that Google used for its search results may have factored in the previous searches by Mr Dods and Ms Mazer which demonstrated an interest in the topic of Mr Cassidy's death. Given that, in the applicant's submission there was no evidence as to where the applicant's website would have come up in Google search results for strangers who had not made these previous searches. Again, this would undercut the judge's finding at [10] of Reasons No 1 that there was sufficient evidence to infer a pool of unknown individuals would have read the impugned webpages.

33 Counsel for the applicant conceded that his submissions as to what may have affected the search results for Mr Dods and Ms Mazer were speculation but submitted that for the trial judge to have concluded that the applicant's website was on the first page of Google search results in 2012 was equally speculative.

34 Finally the applicant noted that the defamatory webpages were pages subsidiary to the homepage of the website. Given that, the applicant submitted that even if the website was reasonably prominent among the Google search results, it was not consequential that the defamatory webpages would have been read. Rather, according to the applicant, all that could be inferred was that the homepage may have been viewed.

35 In response, the respondent submitted that there was ample evidence fit to go to the jury from which an inference of publication could be made. According to the respondent, the evidence from Mr Dods's examination at trial indicated that he may have navigated to the website after 3 April 2012 simply by typing either his or Mr Cassidy's name into Google. Regardless, the respondent submitted that the evidence from Mr Dods and Ms Mazer was a proper basis for an inference of the prominence of the webpage in Google search results even if their searches were done outside the limitation period. In the respondent's submission, the evidence was informative and could be used by the jury as it disclosed a pattern from which an inference could be made.

36 The respondent also emphasised that Ms Mazer had found the webpage of her own accord. She had not been directed to it by Mr Dods but had come across it through searches of Mr Dods's name. Even though her first visit to the site was outside the limitation period, the respondent submitted it was readily foreseeable that others would have come across it with the same ease after 3 April 2012.

37 According to the respondent, these factors, combined with the significant media attention given to the death of Mr Cassidy - not only in 2008 but again in 2010 when the coronial inquest began and at the end of 2011 when the report from the inquest was released - created a strong substratum of facts from which an inference of publication could be made.

Ground 4: That his Honour's assessment of damages was manifestly excessive as a result of the undue weight the judge placed on the scope and extent of the publication

38 The applicant submitted that if he succeeded in showing that the Google inference was not open to the trial judge, then publication of the defamatory webpages was made only to Ms Mazer. In that case, the applicant submitted that the defence of triviality would be 'enlivened'. According to the applicant, this would act as a defence to the finding that publication was made on the basis no harm was done to the respondent as the defamatory statements were viewed only by a close friend.

39 As already observed,[29] at the trial the jury returned a verdict that the applicant had not made out the defence of triviality. Although the applicant seeks to challenge the finding by the judge that the Google inference could be made which could have altered the consideration of publication and of the defence of triviality by the jury, the applicant has not submitted on this appeal that the jury was bound to find the s 33 defence of triviality was made out. Nor has he sought to set aside the judge's ruling that the 'no case' application should be refused. Finally, the applicant has not submitted that the judge erred in his instructions to the jury.

40 Pressed by the Court on the hearing of the application, counsel for the applicant clarified that he relied on Ground 1 to support the submission under Ground 4 that the amount of damages was excessive with regard to the limited scope of publication.

41 The applicant's submission under Ground 4 was that if the Google inference was set aside, the evidence only showed publication to one person during the limitation period. According to the applicant, it was clear in [73] of Reasons No 2 that the trial judge had awarded damages based on the prominence of the webpage in the Google search results and a smaller publication warranted a substantially smaller award of damages.

42 For completeness we note that finally, the applicant referred to the 'grapevine effect': a proposition that publication may be inferred from the likelihood that one individual who knew of it would have informed another of it and so on. The applicant submitted that the 'grapevine effect' could not be relied on in this case as there was no evidence to support it. As such it was not available as an alternative basis for finding a broader scope of publication warranting a higher award of damages.

43 The respondent made two submissions under this ground. His primary position was that the trial judge was correct to instruct the jury that there was evidence to support the Google inference so his Honour's assessment of the scope of publication was accurate. Further the respondent noted that his Honour did not rely on the Google inference to suggest there was widespread publication. Rather his Honour described it as 'not large' but 'not insignificant'.[30] The respondent submitted that this was an appropriate treatment of the scope of publication.

44 The respondent's second contention was that, if publication was only made to Ms Mazer, then the amount of damages awarded was nonetheless open to the trial judge. According to the respondent, the trial judge correctly identified that damages should be awarded to respond to the very serious defamatory imputations made, the particular need to vindicate reputation, the personal hurt to the plaintiff and the aggravating factors. The respondent said the amount awarded was appropriate given these circumstances.

45 Finally, in passing the respondent submitted that there was some evidence to support an inference of publication based on the 'grapevine effect' due to Ms Mazer's testimony that she had discussed the publication with a friend over lunch. The respondent noted that, although Ms Mazer's testimony was that she spoke of it reluctantly and pointed out she thought it was untrue, it nonetheless provided some evidence to support an inference. We note however that there was no indication that the trial judge relied on the 'grapevine effect' in his assessment of damages so there is no need for the Court to consider it on this appeal.

Ground 1: Was there evidence to support the Google inference?

46 In our view, his Honour was correct to rule that the evidence provided at trial was sufficient for the jury to find publication based on the Google inference.

47 Publication requires a bilateral communication - defamatory material is produced by one party and that material is digested or comprehended by a third party.[31] In this case, setting aside publication to Ms Mazer, that third parties had downloaded and comprehended the material could only be deduced by inference as there was no direct evidence brought.

48 Inferences of publication have been made previously in cases where material has been posted online and the evidence brought has demonstrated the ease with which the material online could be accessed. For example, in Steinberg v Pritchard Englefield (A Firm) & Anor,[32] Mr Steinberg published on the Internet a copy of a letter to Pritchard Englefield in which he claimed the firm inflated its costs. Sedley LJ, with whom Longmore and Ward LJJ agreed, said:

[The letter] was accessible to anyone, including in particular a potential client, who fed the claimant's name into a standard search engine. It was also readable by anyone who accessed the defendant's own professional website. The inference of substantial publication was, it seems to me, irresistible.[33]

49 In the case of Trkulja v Yahoo! Inc LLC,[34] the defendant sought to characterise online publication as a 'necessarily restricted' form of publication as only those who specifically wished to know of the plaintiff would have found and viewed the material, unlike print or live media which are read or heard by the world at large.[35] Kaye JA disagreed with this submission noting he was

entitled to take into account, as a matter of judicial notice, that the use of the internet, to ascertain information about particular people, is now commonplace. Indeed those searches have entered the everyday lexicon of the community, and the process of undertaking such a search, is commonly referred to as 'to google'.[36]

50 In Trkulja, publication was conceded by the defendant in the face of two third-party witnesses providing evidence of direct publication.[37] Nonetheless, it is clear from the judge's ruling on damages that his Honour accepted that publication was made beyond these individuals to others. Kaye JA stated:

In this case, I am satisfied, on the evidence that the allegations contained in the article, published by the defendants, reached a wide audience, and thus, the damage to the plaintiff's reputation has been widespread. The plaintiff's evidence, as to the reactions to him by other people, is testament to the breadth of the damage caused to his reputation by the publication, by the defendants, of the article. That evidence is supported by the testimony of both Mr Smith and Ms Legarto to the same effect.[38]

51 The appeal before us is distinguishable from Trkulja v Yahoo! Inc LLC as there has been no evidence of an alteration in people's behaviour towards the respondent after the defamatory material was published. Rather the evidence indicates only the respondent's fear that this would occur. However, the cases discussed above indicate the sort of evidence from which an inference of publication could reasonably be drawn. The prominence of the defamatory material when searching for information about the defamed individual or entity, the frequency with which people use the Internet to inform themselves about others, and the ease witnesses had in accessing the material, for example due to the notoriety of the subject matter, are all factors which can inform an inference of publication.

52 At trial, Mr Dods gave the following evidence about coming across the website:

[PLAINTIFF'S COUNSEL]: Mr Dods, can I ask you when you first became aware of the website 'justice4tylercassidyjust15'?

MR DODS: Yes, it was February 2009, some probably about two months after the incident.

...

[PLAINTIFF'S COUNSEL]: And how was it you first became aware of it?

MR DODS: I Googled the phrase 'Tyler Cassidy', simple as that, and the website popped up on the first page of returns on Google.

53 After viewing the website a couple of times in 2009 and 2010 after his initial visit, Mr Dods returned to the website after the commencement of the coronial inquest on 19 October 2010.

[PLAINTIFF'S COUNSEL]: And what did you find?

MR DODS: I found quite a bit of material. My name was mentioned which was okay, it was in the public domain because the counsel assisting the Coroner had been obliged to identify us at the inquest and that's as it should be. But there are allegations already at this stage on the site that I had shot and killed young Mr Cassidy and that I should be charged with manslaughter. I was quite alarmed because in any other jurisdiction it could be possibly be deemed a sub judici kind of comment. But then...

[PLAINTIFF'S COUNSEL]: Do you remember how you navigated your way through the site on that occasion?

MR DODS: Yeah there were additional links on the left hand side and one of them was 'who is Colin Dods' and within that there were questions that were posed and one of them was if read a certain way, revealed my off duty whereabouts.

[PLAINTIFF'S COUNSEL]: How did you find your way to the website on this occasion?

MR DODS: I again just Googled 'Tyler Cassidy'. But you could also Google 'Colin Dods' at this stage and it just came straight up as well on the first page of the Google searches.

[PLAINTIFF'S COUNSEL]: Was this some time in early November, did you say?

MR DODS: Yes.

...

[PLAINTIFF'S COUNSEL]: Did you look at the website in 2011?

MR DODS: Yes, I did.

[PLAINTIFF'S COUNSEL]: And what did you find? Firstly, how did you find your way to it?

MR DODS: The same way as I've already described, through basic Google searches. But I also had the website address well memorised by that stage so I was also able to bring the site straight up by typing that into the address field of...

[PLAINTIFF'S COUNSEL]: And so how many times do you think you looked at it in 2011?

MR DODS: At least a dozen.

[PLAINTIFF'S COUNSEL]: And 2012?

MR DODS: Also at least a dozen between 1 January and the middle of July.

...

[PLAINTIFF'S COUNSEL]: When did you first make contact with Mr McDonald?

MR DODS: It was on 13 July 2012.

[PLAINTIFF'S COUNSEL]: And how did you make that contact?

MR DODS: I actually emailed his professional barrister's website which I had found by Googling the justice4tylercassidyjust15 address and it came back with a result on the Google page showing up Mr McDonald's professional website. So I clicked on that link and it went to a webpage within his barrister's website which invited people to connect to the justice4tylercassidyjust15 website via his professional website.

54 Ms Mazer gave evidence that after finding out in October 2010 that Mr Dods had been involved in the shooting of Mr Cassidy, she and her husband went to dinner with Mr and Mrs Dods. The following day, Ms Mazer conducted her own searches on the Internet and came across the website.

[PLAINTIFF'S COUNSEL]: ...Did [Mr Dods] tell you anything about a website?

MS MAZER: No, he didn't.

[PLAINTIFF'S COUNSEL]: And what happened after that dinner?

MS MAZER: After the dinner I went home and I think the next morning I started Googling, um, I guess just to see what was in the media, what he was up against, and I guess to get the information about things that we hadn't thought to ask on the night while we were in shock.

[PLAINTIFF'S COUNSEL]: Sure. And when you say Googling what do you mean?

MS MAZER: Ah, sitting on my laptop with the search engine, putting in, ah, Col's name, um, you know, inquest, those sorts of search terms to bring up whatever was being said about it.

[PLAINTIFF'S COUNSEL]: Do you recall any other terms you may have put in?

MS MAZER: At that stage, no.

[PLAINTIFF'S COUNSEL]: Okay. And what happened as a result of that exercise?

MS MAZER: Um, I came up with a lot of mainstream media coverage. Um, it just came up with a lot of coverage, um, both in the mainstream and less mainstream, you know, comments on articles, et cetera.

[PLAINTIFF'S COUNSEL]: Okay, what about... I withdraw that... do you have any recollection of anything in particular coming up?

MS MAZER: Ah, I do. I obviously recall the main articles in The Age and I recall then coming across a website, um, I can't remember actual URL, it was confusing, but I remember that it was, 'Who killed Tyler Cassidy', and it appeared to be just a website of opinion.

55 Finally, Mrs Dods also gave evidence at trial that she came across the website in February or March 2009 simply by Googling Mr Cassidy's name.

56 In this case, there is evidence to support an inference of publication to unknown individuals via Google. It is clear from Ms Mazer's evidence that the site was a prominent search result when seeking information about Mr Dods. Moreover, the evidence of Mr and Mrs Dods indicates that was equally true when searching for information on Tyler Cassidy. That is, not only could the site be accessed by searching for Mr Dods's name in Google, it could also be accessed after a search of Mr Cassidy's name. That would have broadened the scope of the pool of individuals to whom these webpages may have been published.

57 Most importantly, it was acknowledged by the applicant that the death of Mr Cassidy gained notoriety and garnered significant media attention. This attention was renewed throughout and after the conclusion of the coronial inquest. In that context, with both Mr Cassidy's and Mr Dods's names regularly in the public eye, it is highly probable that numerous others may have read and downloaded the defamatory webpages. This conclusion is enhanced with the knowledge of the increasing regularity with which people use the Internet.

58 We reject the applicant's submission that Mr Dods did not navigate to the site by Googling Mr Cassidy's name in 2012. Although the final questions in the excerpt of Mr Dods's evidence above were asked and answered in a staccato fashion, it is reasonable to assume that where it remained unsaid, he intended to repeat the same methods by which he accessed the site. The tenor of his evidence was that he used these methods over the years and it continually enabled him to access the site.

59 Even so, in the absence of evidence to the contrary, it was open to the jury to infer that similar results may have been returned in the limitation period even if evidence of searches of Mr Cassidy's name was limited to prior years.

60 Finally, we reject the applicant's submission that as the defamatory claims were on subsidiary webpages rather than the homepage of the website, the inference of publication could not be made. As was the case in Duffy v Google Inc (No 1),[39] the visible search result was eye-catching and would have attracted the attention of Google search users. It is reasonable to assume that Internet users would have explored the other pages for an elaboration of the claims made by the website's author.[40]

61 The jury needed only be satisfied on the balance of probabilities that publication occurred to make the Google inference. His Honour was right to find that here there was sufficient evidence to be so satisfied.

Ground 4: Was the award of damages of $150,000 manifestly excessive?

62 By reason of the foregoing, it is clear that the applicant cannot succeed on the ground that the damages award was excessive due to the Google inference being made in error.

63 For the sake of completeness, we would further note that the award of damages was reasonably open to the judge regardless of the scope of publication. The defamatory claims made in the publications in this case were at the highest end of the scale. The allegation of committing manslaughter, a grave crime in society, could have created severe and long-lasting damage to reputation. Further, the respondent and his wife gave moving evidence as to the seriousness of the harm they and their family had suffered as a result of the defamatory material. This evidence was not challenged. Lastly, the trial judge was correct to find aggravated damages were warranted given the applicant's persistence with his claims after the coronial inquest's finding, given the applicant's refusal to apologise, and given the applicant's protracted reliance on the defence of justification.

64 In May 2016, when this award was made, damages for non-economic loss for defamation were capped at $376,500 pursuant to s 35(1) of the Defamation Act 2005.[41] The trial judge's award of $150,000 fell well within the middle range for such an award. Given the need for vindication in this case, we note that his Honour's award was, if anything, light. As the respondent has not appealed the award, it remains undisturbed.

66 After the hearing of the application and notwithstanding the express abandonment of proposed Grounds 2 and 3, the applicant informed the Court that he wished to rely on those grounds. Given the abandonment, the respondent had accordingly chosen not to address those grounds in his oral submissions. The applicant requested the Court consider Grounds 2 and 3, although it had not had the advantage of hearing oral argument on them, by referring to the parties' written submissions. The applicant noted that he had informed counsel for the respondent who opposed the proposed course of action.

67 It is readily apparent that the applicant is not entitled to resile from the abandonment of the grounds by seeking the permission of the Court in this manner. We will not consider these grounds. In any event, we note that Grounds 2 and 3 were bound to fail.

[1] Judge Jennifer Coate, State Coroner of Victoria, Finding into Death with Inquest: Tyler Jordan Cassidy (23 November 2011) 7-9 [1]-[18] (citations omitted).

[4] Limitations of Actions Act 1958, s 5(1AAA).

[5] Below at [52]-[55].

[6] Dods v McDonald (No 1) [2016] VSC 200 ('Reasons No 1').

[12] Ibid [5], [14], [18], [19].

[13] Dods v McDonald (No 2) [2016] VSC 201 ('Reasons No 2') [34], [35].

[18] Ibid [40]; see generally [40]-[46].

[26] Ibid [77]; see further [24]-[32] re the defences claimed, see also [84] for confirmation of this reasoning.

[31] Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, 600-1 [25]-[28].

[34] [2012] VSC 88 ('Trkulja').

[41] Victoria, Victoria Government Gazette, No G24, 18 June 2015, 1337.

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