Credit of Witnesses
33I will deal with the evidence of the defendants, before dealing with other witnesses and then the plaintiff.
34Tobin (Toby) Ryall is the first defendant. His demeanour and attitude in the witness box was undeniably one that would lead any person observing it to the view that he was deliberately prevaricating, dissembling and lying. His attitude was to try and hide behind what he said was a lack of recollection, but this recollection was obviously disingenuous. His answers to questions made fine, unreasonable distinctions in language and his answers were inaccurate or untruthful.
35His version of events in evidence and in the statement in the proceedings, to the truth of which he attested in oral evidence, were inconsistent, in a significant respect to the contemporaneous note written by him and tendered as Exhibit W. It was inconsistent in at least the following respects: how the conversation between Mr Ryall and the plaintiff commenced; the fact (if it be different from the first item) that the plaintiff raised the issue of the money owing with Mr Yi, who informed the plaintiff that the money had been given to Mr Ryall; whether the plaintiff was in the room at particular times when, in oral evidence, Mr Ryall insisted the plaintiff was there and other matters.
36Further, Mr Ryall also gave evidence about the placement of a "do not disturb" sign which does not accord with the proposition that the plaintiff was in bed, asleep, when Mr Ryall left the room the next morning after placing the money on the dresser. There was also a significant issue as to the time when the money was left on the dresser, i.e. which day/night and whether it was before or after the plaintiff's second tournament day. The later version, given for the first time by Mr Ryall in oral evidence in cross-examination, was never put to the plaintiff.
37Mr Ryall admitted in cross-examination that he affirmed a false affidavit, being the affidavit verifying his defence to the Amended Statement of Claim. He also admitted affirming two false interrogatories as to the identification of the plaintiff in the fourth and fifth matters complained of (interrogatories 17 and 23 admitted as Exhibit X). These are criminal offences committed, on Mr Ryall's evidence, with the intention of improving, illegitimately, his prospects in these proceedings.
38During the course of his examination, the first defendant suggested that the conversation about the $2,000, which was had between the plaintiff and the first defendant before they went back to the hotel room to search for it, included a comment by the first defendant identifying the money as "Tommy's", being a reference to Mr Yi. However, his statement attests to the truth of the fact that he had put the money on the dressing table and when he saw it was no longer there he "assumed that [the plaintiff] had taken it because it was meant for [him]". The attitude to the basis upon which he had assumed that the plaintiff had taken the money is inconsistent, in any common sense manner, to the proposition that he would describe the money as "Tommy's".
39His admission as to lying on oath, his attitude to the answering of questions, his dissembling and disingenuous answers, together with his general demeanour, has led me to conclude that his evidence ought not be accepted on any issue of controversy, unless otherwise corroborated by independent evidence.
40Lastly, in relation to Mr Ryall, it is appropriate to note his attitude to the plaintiff's state of mind. Despite informing the Court (and at times others) that he was wholly unaware of the state of mind of the plaintiff at the time that the money was taken from the dressing table and placed in the soft toy, he was prepared to assume, without knowing, that the plaintiff's intention was to "steal" the money. Mr Ryall was prepared to allege serious misconduct, without ever knowing (or at least on one view of his evidence, without ever forming a view) that the money was, in fact, taken with an intention of stealing it.
41To the extent relevant, it seems that underpinning the allegation made by Mr Ryall against the plaintiff was a developing dislike of the plaintiff based upon what was alleged to be the plaintiff's conduct in the hotel room and the plaintiff's deception of his girlfriend. However, Mr Ryall's motives are wholly irrelevant to the determination of the truth of the accusation or imputation.
42The second defendant published material repeating the allegation relating to the stealing of money in Las Vegas and also making an allegation that the plaintiff sought to steal money at The Star City. It is necessary to recount that which allegedly occurred at The Star City.
43Before repeating the circumstances upon which the second defendant relied for the allegation, it is necessary to recount that the poker games in which the plaintiff and each of the defendants was engaged, from time to time, were high stakes games, often involving thousands of dollars. The incident at The Star occurred in the following manner.
44The plaintiff was engaged in a game of poker and lost a hand, involving thousands of dollars. The winner of the hand, Tolly Sakellariou, was celebrating the win. The plaintiff requested change from the dealer, to be taken from the pot. There was a significant amount of celebration at the time. The dealer approved the change. The plaintiff took twenty $100 chips and put $1000 chip into the pot.
45Two things should be noted. It was the universal evidence that the practice of obtaining change from the pot, once approval had been given by the dealer, was common. Secondly, it was accepted by everyone (with the exception of the second defendant) that in large stake games such as this one often people, taking change, made initial errors, which were corrected.
46The mistake, made by the plaintiff (and I accept it was a mistake) was pointed out by another player at the table and the error was immediately corrected. There is no suggestion that the plaintiff intended to "short change" the winner. Further, the plaintiff was barely cross-examined on the basis that he had intended to "short change" the pot. The only evidence before the Court is consistent with the proposition that any mistake in the provision, initially, of a chip in response to the change, was a mistake corrected immediately.
47The overwhelming evidence was that any attempt by any player, including the plaintiff, to short change the pot in the manner suggested would soon be discovered. First, the winner of the hand would notice that he was $1000 short. Secondly, The Star is monitored by video in a way which would immediately determine who, if anyone, sought to attempt such a ruse.
48Further, the evidence before the Court discloses that it would have been impossible for a person with the plaintiff's size hand to hide ten $100 chips without it being noticed. The allegation that the plaintiff sought to steal this money in that way does not withstand any reasonable scrutiny.
49Yet, the second defendant maintained the accusation. The second defendant, with other defendants, agreed that he had witnessed errors of that kind on many occasions. He admitted that, given the security at the Star and the circumstances of the poker game, including the number of people at the table, a person would have to be "stupid or desperate" to attempt to steal chips, at all or in that manner. He agreed that the plaintiff was not stupid or desperate.
50The winner of the pot, Tolly Sakellariou, does not hold the view that the plaintiff attempted to steal from him. He observed the whole of the exchange, heard the plaintiff request change from the dealer, saw him take the change and heard the mistake pointed out by the other player. He saw the plaintiff correct it immediately. The winner of the pot, also, had witnessed many such errors in high stake games.
51The poker player, known to all parties, who sought to have the plaintiff correct the error, was not called in relation to this incident.
52The second defendant, who was sitting at the poker table at the time that this "short change" occurred, said nothing at the time. The second defendant republished the accusation that the plaintiff had stolen money in Las Vegas and published the accusation that the plaintiff attempted to steal money in the occasion just recounted.
53I find, positively, that the plaintiff did not attempt to steal the money in the events just described. In other words, while the burden of proof is on the defendants to prove that the plaintiff stole the money, i.e. that the imputation is true, my findings are not simply related to the burden of proof. I find that the plaintiff did not attempt to steal the money at The Star.
54Again, the second defendant showed himself to be a person not wholly committed to the truth. The second defendant denied publication of the sixth matter complained of, even though he had admitted it in a defence to the truth of which he had sworn (Exhibit C). Further, the second defendant swore to the truth of a number interrogatories that he admitted were false. Moreover, once these proceedings had commenced he had a conversation with Mr Sakellariou, which Mr Sakellariou recounted in a contemporaneous text message delivered at the time of the conversation or shortly thereafter. That conversation was recounted in a SMS message (Exhibit H), which is in the following terms:
"We were playing together and I asked him why is this case still alive and going to court?
Why not drop it?
And he said:
We've come to [sic] far for that.
Plaintiff: Where did the threats come from...? About suing you and signing a false affidavit?
He said: You better be sure about what you've signed because if it is not the truth then its perjury."
55It seems, on the face of the conversation between the second defendant and Mr Sakellariou, which I accept was in or to the effect of the terms outlined above, that the second defendant was seeking to dissuade Mr Sakellariou from giving evidence. I need not put the issue any higher than that.
56However, it is relevant to point that the second defendant denied use of the term "perjury" in the conversation with Mr Sakellariou. The contemporaneous note, the independence of Mr Sakellariou to any proceedings before this Court and the demeanour of each of them satisfies me that the term was used. I also find that the second defendant did not forget the use of the term and, in a manner not dissimilar to the verifying of false statements in defences and interrogatories, simply said what he thought most assisted his case.
57The third defendant was involved in a statement, it is said, which imputed that the plaintiff stole money from the first defendant. This was a reference to the events in Las Vegas. Evidence of this publication was given by Mr Ron Shabtay. Mr Shabtay is an independent witness who attended a dinner at which the statement was said to have been made. The words stated by the third defendant were to the following effect:
"Nick stole money from Toby.
Toby left money on a table in Las Vegas and Nick did something.
I don't know when and where but the money was missing.
Nick put his whole story on Facebook saying he did not steal the money but we do not believe him."
58On no account of that which occurred in Las Vegas was "the money missing". The third defendant knew nothing of the circumstances and repeated a defamatory accusation on the basis of that which she had heard or read, presumably on Facebook. After that statement, or those statements, were made by the third defendant, the plaintiff became a topic of conversation amongst the persons at the dinner table. The statements were made at an event at the Chinese restaurant at The Star, at which approximately twenty five people were attending. All of those people were from the "poker community".
59The third defendant denies ever making those statements. I do not accept her evidence and I do accept the evidence of Mr Shabtay. It was obvious from the evidence of the third defendant that she was prepared to give evidence to any effect which she considered would assist her case. A prime example of that proposition was her attempt to convince the Court that the term "thief" had a particular and special meaning in poker parlance. The proposition does not withstand scrutiny and no other witness had any knowledge of any such special meaning.
60The last defendant with which it is necessary to deal is the fourth defendant, Mr Gould. This relates to the eighth matter complained of, being a further oral publication accusing the plaintiff of stealing money from the first defendant when they were in Las Vegas. The fourth defendant's defence to the original Statement of Claim, filed 20 August 2013, admits paragraph 44 of the Statement of Claim, being the conversation referred to above, admits that the statements are defamatory but alleges they are true or substantially true. The defence was affirmed as true at the time it was filed. The aforesaid admission was continued in the defence to the Amended Statement of Claim, filed 25 October 2013, also verified by affirmation. It is not in issue in these proceedings that the statement was made as alleged and was defamatory. The truth of the statement has already been the subject of findings.
61The independent witnesses called by the plaintiff gave evidence that was truthful and generally accurate. Their evidence is accepted.
62The plaintiff gave evidence. Essentially, there is not a great deal of controversy, properly analysed, in the evidence that he gave. He was not cross-examined to suggest that The Star incident was one in which he intended to steal money. It was put to him by counsel acting for the defendants that he stole money in Las Vegas, or intended to steal it. (This was not put directly, but there was a question in which counsel suggested that he intended he took the $2,000 cash, because he was short of cash, intending to keep it. Transcript, 104, line 21 and see discussion at Transcript, 105, line 1).
63The plaintiff was prepared to accept, even though he did not recall it, that he may have taken the money from the dressing table in Las Vegas and put it in the soft toy. It is unnecessary for the Court to determine whether that is, in fact, what happened. Or, notwithstanding the denial of Mr Ryall, whether Mr Ryall placed the money in the soft toy. It matters not.
64During the course of proceedings, an ancillary question arose as to the relationship between Tommy Yi, the first defendant and the plaintiff on the issue as to who owned the $2000 at particular periods of time. The issue is now irrelevant, given the findings I have made, and it is strictly unnecessary for the Court to deal with the matter.
65It was suggested by counsel for the defendants that the relationship was one of bailment. This occurred after the possibility of that arrangement was raised by the Court. In final submissions, counsel for the defendants argued that the proper relationship was one of bailment; that Tommy Yi gave the money to the first defendant for delivery to the plaintiff. The issue is not wholly without complication.
66Obviously, none of the parties actually determined what was the arrangement between them when the money was given by Tommy Yi to the first defendant. It is possible that there was a bailment, although I doubt it. If the parties were to have been asked, it would not seem to me that the bailment was an appropriate refection of the relationship between them.
67Rather, it seems to me that the money was given to Tommy Yi by the plaintiff and was a loan. The amount was owed (albeit without interest) by Tommy Yi to the plaintiff. There was a special and close relationship (or perceived to be) between the plaintiff and the first defendant.
68It would seem that the better analysis is that the money was given by Tommy Yi to the first defendant on trust for the plaintiff and accepted on that basis. In other words, if the first defendant had spent the money gambling on the way back to the hotel room, the first defendant would have owed the plaintiff, not Tommy Yi, the $2000. At the same time, if Tommy Yi had desired to rescind the arrangement with the first defendant and spend the money elsewhere, he would have been required to obtain the consent or permission of the plaintiff.
69As earlier stated, the issue is now irrelevant. The money was never stolen, because it was never intended that the rightful owner be deprived of the money. The money was never missing. The money was in the soft toy.
70There is no evidence to suggest that the plaintiff intended to deprive anyone of the $2000. Indeed, the evidence from everyone who has knowledge of the incident seems to be to the contrary. However, if I were incorrect in that, I would take the view that the money was already the money of the plaintiff (i.e. he had beneficial ownership of it). At the time the money was taken from the dressing table by the plaintiff, assuming for this purpose it was so taken, the money belonged to the plaintiff.
71I conclude that the defendants have failed to prove the truth of the imputations alleged and that arise from the eight matters complained of that are the subject of these proceedings.