Nowak v Putland [2011] QDC 259

District Court of Queensland|2011-11-08|Before: Mr P

Hynes Lawyers (22 & 23 Feb) and Nyst Lawyers (5,6,7 & 8 Sept) for the plaintiff

[1] The plaintiff claims damages, including aggravated damages, for defamation arising from statements the plaintiff says the defendant made to and about him in the sports bar of the Rainbow Bay Surf Club (RBSC) on the evening of Friday 6 February 2009. No claim is made for specific monetary loss, (see T1-18).

[3] On the plaintiff's estimate there were 40 - 50 people in the sports bar which is a relatively small area (T1-30,31,36,37 and the photos ex17). The defendant was drinking at a dry bar with Peter (Ned) Kelly, a retired Victorian solicitor and some other people. The plaintiff's estimate of numbers is consistent with the evidence of Brent Taylor (T4-8), Mr Kelly (T6-3) and the defendant (T5-26).

[4] The plaintiff was drinking on the balcony with friends. He went inside to get another drink. As he was returning to the balcony he was kicked in the back of the leg. He gave the following evidence of what happened (T1-34,35,37,38,39, T2-94,95,96,98, T3-39,40,41,42,43,48,49,50,51,52,54):

"As I walked past the Keno machine I got a big boot in the back of the - back of the leg here from behind which sort of stumbled me, nearly dropped me, and spilt a bit of my beer. I then turned around in astonishment to see basically Paul Putland abuse me, calling me a paedophile-----

Basically as I turned round he had his hands up, he was yelling, and he yelled it and screamed it in a - oh, a deep, dark tone, he was - he was-----

He goes, 'You're a paedophile', you know, screamed it, yelled it quite loud, which got the attention of a lot of people in that bar, pretty much everyone in the immediate 10 to 15 metre radius, and I said, 'What are you doing that for? What did you do that for?', you know, then he just started - he continued screaming that I was a paedophile. He was very erratic-----

Again, can I get you to repeat what occurred, as best you can recall it, so he's said - on the first occasion he's called out, 'You're a paedophile.'? -Yes, indeed.

What did you say to him?-- I said to him, 'I'm not. Why did you do that for, why did you kick me?'

How near to Mr Putland were you?-- I was within a metre distance from him at the time. After he'd kicked me I just turned around and he came towards me, moved sort of a foot, foot and a half towards me, sort of came - lunged at me like he was going to hit me or something like that and he abused me basically said, 'You're a paedophile.' I said, 'No, I'm not.' And then his friend, Peter Kelly, he launched at me and started calling me a paedophile as well, called me a paedophile.

Again, can you - can you - I would like you to repeat the - everything about what was said on the occasion?-- Yeah, he - he basically said, 'You're a paedophile' and basically then Paul said, 'Why would you take photos of my son?' And I said, 'Well you know what's going on with the body corporate situation' and then he's - he's in a real angry manner sort of lunged at me again with his hands up and screamed, 'You're a paedophile' and just started screaming and abusing me basically.

HIS HONOUR: Well, how long - many times did he repeat , 'You're a paedophile.' ?-- With - it continued on for probably a few minutes, the situation, so over the whole period he said it numerous times, you know, at least, oh, 15 times, I think, at least, maybe - maybe even more like-----

And was-----?-- -----it was - it was - yeah, so-----

And with what type of voice?-- His - he was yelling, enraged with anger, he had his hands up like he wanted to hit me and was moving towards me. He made a big scene, he had his hands up waving them around and basically made a scene so everyone in the bar stopped at that period of time and looked over at us.

Now, to your observation did people in the room notice what was taking place?-- They did indeed, yes. I actually-----

And what allows you to say that?-- I think on the third instance that he called me a paedophile and he was screaming and throwing his hands around, red in the face, I actually looked around and - you know, in astonishment. I couldn't believe what was going on and there was people on every table there, stopped and looking around. It was - he draw the attention of the whole crowd because he was so vocal and so loud. It wasn't a quiet, little whisper or anything like that. It was very loud. His other mate, Peter Kelly, was joining in as well. He was saying, you know, 'You're a wog.' You know, 'You haven't even got an Australian passport.' Calling me a paedophile as well. So there's two guys going towards me, screaming abuse.

Who called you a wog?-- Peter Kelly did and Mr Putland did call me one as well.

At what point of-----?-- After about the third time he called me a paedophile, he said, 'You're a wog.' Basically then he started just yelling paedophile again. 'Paedophile.' He just started yelling it very loudly.

And over what period of time does this take place? I know it's-----?-- You know, because - yeah, the situation - it was probably about a two to three-minute period, but it may have went for, say, four to five minutes, but - you know, in that period of time was just - time freezes almost in a way, sort of thing. You know - I just couldn't believe it was happening sort of thing.

And who was-----?-- It was probably about a two to three-minute period.

Okay. And that suggests quite a long conversation?-- It was, yeah.

Were you speaking to Mr Putland? Was there an engage of-----?-- I basically said, you know, 'Why would you say that?', and I said, 'You're a sick man.' I said, 'You're a sick man.'.

Now, can I ask you, what - when Mr Putland is saying these things to you, what's your reaction? What's your emotional reaction at that time?-- I was disgusted. I couldn't believe that it had occurred. It was the biggest put down that anybody could be put across. I didn't understand why he was saying it. I even asked him, 'Why would you say that?', and then he spoke the words in relation to filming his son the night before, and I said, 'Well, it's got nothing to do with

that. It's to do with the body corporate situation', which then he just continued - you know, basically continued screaming out the words 'paedophile' very loudly.

You've given your evidence already that at one stage you looked around the room, and what did you see?-- I saw people all looking in my direction and looking at me whilst this was going on.

Okay. And if you think back to the person that you saw looking at you, or in your direction when this took place, what was the furtherest person away from you, as best you can recall?-- Oh, probably 15 metres.

And when you looked around the room to realise that people were looking at what was occurring, what did that mean to you? How did you feel when that occurred?-- I felt totally inferior, so small, yeah. Just, like, nothing. Like, felt like dirt, really.

Now, the first thing that you noticed was that something hit the back of your knee; is that your evidence?-- Yes, it was. Yeah.

But, you didn't see who did that; did you?-- No, I didn't, not until I turned around, no.

But, when you turned around there was no foot sticking out into the back of your knee; was there?-- No, there was guy of front of - like this...turned around at me and walking to - walked towards me, screaming, 'Paedophile', so-----

Mr Nowak, you have not told this Court, on a number of occasions, that Mr Putland was seen by you to have kneed you-----?-- Well, you see when someone's-----

Excuse me?-- -----into your back of your leg, it retracts.

You have told this Court on a number of occasions that you saw Mr Putland knee you and kick you in the back of your knee. Now, you didn't see that; did you?-- Well, I felt it and I seen him retract his foot and if -if I can rephrase that, retract his foot. You know when you - you kick someone like that...you've got to bring your foot back down. It was a - it was a high-----

Two questions ago-----?-- It was the height in the back of my knee, so you could-----

Two question ago I suggested to you that you hadn't seen anyone pulling their foot back and you said, 'No, but I saw a bloke standing up with his arms up', or words to that effect?-- Yeah, coming towards me as well, yeah.

Coming towards you?-- You could see someone when they're off foot, when they put their foot down after doing something there's no-one else right next to me in the - in the visual area, so who - who - who would you think it would be? Was it a-----

Well, Mr Nowak's it's not-----?-- -----tree or something [sic].

-----for us to speculate, but apparently it is for you. So, you didn't see who actually kicked you or pushed the back of your knee?-- I turned around and I saw Mr Putland retracting his foot.

How many people were standing next to Mr Putland?-- At that bar there were six or eight people standing on that table.

Right. And they were all in close proximity to where you were?-- They were all behind him. He was on the corner of the bar. I was probably where that guy is with his one form shirt is now walking along. So, they were all on the right-hand side on those tables.

See, I suggest to you, you're just mistaken about whether Mr Putland did that, and that he in fact didn't kick you or knee you in the back of your knee at all?-- Well, there was no-one there for two to three metres, well, you know, two - two metres behind. Mr Putland was there within the immediate metre, half a metre or so. There was no-one in the surrounding area and no-one against the wall.

Mister-----?-- -----that was against the wall, which was my right leg, which was closest to the wall, as I was walking towards the glass doors.

When you were giving your evidence yesterday and earlier today on this issue, why didn't you tell his Honour that you hadn't seen the person kick you, but you did feel something behind your knee and when you turned around you saw Mr Putland retracting his foot? Why didn't you say that?-- Oh, sorry, I didn't, no.

The reason you didn't, I suggest, Mr Nowak, is because you feel, just as you did this morning, that's it's necessary to exaggerate or improve your evidence if it helps your case. That's the position?-- I disagree.

You've exaggerated your evidence earlier today to suggest that Mr Putland had screamed and yelled at you at the body corporate meeting and you've exaggerated your evidence today to improve it about having seen Mr Putland kick you?-- I disagree.

There was a lot of other noise in that room that night, wasn't there?-- There was a little bit of noise, but the depth and the loud - the way that Mr Putland yelled and screamed at everyone in that vicinity, from anywhere around that bar and in the whole sports bar which you can't see from any of these photos, because you don't actually depict all the tables and seating in it, all stopped and looked, yeah, pretty much.

What I asked you, Mr Nowak, is whether you accept that the people who would have seen and heard the most that night were the ones who were closest to the action?-- Yes, indeed. Yes. Yes, they did, yes.

And I suggest that what he said to you first was, 'What right do you have taking photos of my son in the middle of the night?' He said that in a loud voice?-- No, that wasn't the first - yeah, I think it was more the-----

What was the first thing?-- Sorry, as I understand, it was, yeah, calling me a paedophile and then he said, 'What are you' - 'What right have you got to call my kid this?', sort of thing.

So we understand you correctly, he did say what I just put to you, but he said before that, 'You're a paedophile.'?-- I'm not quite sure just - which way it all went in now, yeah, yeah.

All right. Well, so then you'd accept in light of what you've just told us then that it's possible that the first thing he said to you was, 'What right do you have taking photos of my son in the middle of the night?', and he said it in a loud voice? Do you accept that that may be the first thing he said?-- I - it may well have been, but I'm very sure it led with that paedophile matter and then it went into that what - it was screaming paedophile then it was turning around saying what right. That was the thing, 'What right do you have to photograph my kid?', yeah.

And I suggest to you that he was a bit angry in his voice and in his manner?-- A bit's an understatement, yes, he was angry, yeah, infuriated.

But your evidence that, in effect, he'd lunged at you on more than one occasion as if to hit you with his arms is quite false, that he didn't do any such thing?-- Well the situation-----

He raised both arms and put them out in front of him?-- Yeah, raised his hands while he's saying it. He's yelling like this so, yeah.

HIS HONOUR: Well, you felt intimidated?-- Yeah, the way - you know, way he's coming at you, you know, either way you can interpret it as he's going to punch you or he's angry, you know. It's not my - how am I meant to justify that, you know?

MR RONEY: Well, don't. So you accept the possibility that his arms moving was part of this angry and exciting gesturing with his hands rather than actually attacking you with his hands?-- Well, I didn't get - I didn't get physically hit after I got assaulted through the leg, if that's what you're saying, yeah.

HIS HONOUR: Look, I understood him to say he felt intimidated by what the defendant was doing. That's all.

MR RONEY: Well, there's a difference between his interpretation of something and what he feels and the objective fact, your Honour. I'm trying to - I'm focusing on the objective fact.

HIS HONOUR: Well, I don't follow you. I mean, he's given evidence that the defendant was waving his hands - had his arms up and waving them in front of him and this behaviour intimidated him.

HIS HONOUR: So what's wrong with that? That's all he's saying.

MR RONEY: Well, that's a reference to what he feels.

HIS HONOUR: But the defendant's raised his arms in the air and is waving them about and shouting at him. That's as I understood.

Yes, and-----?-- Going red in the face, screaming abuse at me.

-----as a result of that conduct by the defendant the plaintiff says he felt intimidated.

The events, I suggest, did not involve Mr Putland lunging at you like he was going to hit you at all. I suggest that. You deny that, I imagine?-- Yeah, that - I felt threatened. My personal space-----

You see, this is the dilemma I'm placed in, your Honour.

HIS HONOUR: You felt threatened, all right?-- I feel threatened, yeah, feared for my safety.

So you disagree with what Mr Roney put to you?-- Yeah.

MR RONEY: Well, Mr Nowak, I don't think you are disagreeing with what you put to me because may I just suggest you just said that you interpreted it as intimidating, but from what you've said earlier it may be, you accept, that he was waving his arms about angry and excited rather than with view to lunging at you. Now, are we right in understanding that?-- He - that's maybe what he felt, but I'm the one being threatened and I didn't see it that way, no.

HIS HONOUR: Do you agree or disagree?-- Yeah, not to king hit me or something to that effect, no, if that's - yeah, I didn't have to block any physical punches or anything like that, if that's what you're saying.

Can I suggest to you or, indeed, put to you that at no time during the events of that evening did Mr Putland as distinct from Mr Kelly call you a paedophile. Comment, please?-- No.

All right, and Mr Kelly certainly used that word, didn't he?-- Mr Kelly called me a wog and said I should get a passport, asked me if I had an Australian passport, yes.

He also said that you were a paedophile?-- Yeah, he joined in, actually, yeah, they joined in, yeah, yeah.

Well, you do see - understand what I'm asking you, Mr Nowak? I'm not asking if he joined in. I'm asking whether he said - that is, Mr Kelly said - you're a paedophile?-- He mentioned it with Paul, yeah. They both - he did say it. Yes, he did.

He didn't mention it with Paul, Mr Nowak, I suggest?-- Yes.

HIS HONOUR: Well, what did he say that you recall?-- He called me a paedophile and he called me a wog and said, you know, 'You wouldn't even have an Australian passport. What are you doing here?', sort of thing.

MR RONEY: And can I suggest that the whole conversation - or the whole incident, from the moment that you stopped and Mr Putland started talking to you, took about 30 seconds?-- No.

How long do you say?-- As I said before, it was a couple of minutes, yeah.

Now, in your evidence last time you told us that Mr Putland called you a paedophile 15 times at least. Do you remember that?-- Yes, yep.

I just want to understand that evidence, though. That's the totality of the number of times that he said 'paedophile' to you?-- It could have been there [sic]. It could have been double that. You know what I mean? It was - it was just said numerous times, constantly, throughout that period of time. Through that, you know, minute or two that we were there, in the situation, I suppose you call it.

A minute or two. So it might have been as little as a minute that it took?-- Yeah, it might have went for two to three. You know, I - in that situation where you're confronted with something so compelling and so bizarre and just - I just freaked out by the whole situation, yeah. It does make you sort of lose track of time within that thing. You get absorbed in the moment, so-----

Mr Nowak, no one's blaming you for that, but it might be that the whole incident took a minute, or it might have taken more; is that your evidence?-- Yeah, I would say it would be over a minute, yeah. Probably about a minute and a half to two minutes, probably.

All right. That's your best estimate now, one to two minutes?-- Well, somewhere through that. It might have been up to three minutes, you know what I mean.

Well, it might have been up to four?-- Well, I don't think it went that long, four to five. It was sort of something between, say, one and three, you know what I mean, and it wasn't just for 30 seconds or 20 seconds, sort of what you're trying to-----

I didn't say that, Mr Nowak. I asked you whether on your evidence that it's possible that it lasted as short as one minute? That's your evidence, isn't it? Or it might have been two or it might have been three?-- I don't think it was as short as a minute, no. I think it was longer than a minute.

All right. And your best estimate of the number of times that he said you were a paedophile is that it was 15, but it might be 30, according to your evidence a moment ago?-- Well, yeah.

Might it be 50?-- I don't think it was that long, no, but it was repeated, you know, quite constantly.

You see, can I suggest to you - I'll withdraw that. Was the way in which he said it to you continuous in the sense of saying, 'You're a paedophile. You're a paedophile. You're a paedophile.', that sort of thing?-- No, he stopped. No, he did stop in between, but he kept bringing it up over that minute and a half or two minutes, through that. So he'd say it for one and then he'd stop for 10, 15 seconds, then go and yell it out and scream it again. That's how it was sort of-----

He would say it and then there would be other things said and then he would say it again and then there would be other things said. Is that the way it happened?-- There was very minimal stuff said other than that, so no. There was very minimal stuff said in between. It was more the paedophile was the main gist of it all. I think the other things we spoke about was what you brought up earlier. There was a mention, you know, why did you film the son or something like that. That's about all he said. So it was more just that paedophile being repeated constantly, yeah.

And did you call him any names?-- I said, 'You're a sick man.' Yeah, I replied, 'You're a sick man.' That's all I said and it was in front of all these - all those other people but - yeah.

I mean, after all, you've told his Honour you were intimidated by this behaviour by Mr Putland, so may we take it that you were concentrating on what he was doing to you?-- Yeah, exactly. Yeah, my concentration was on that, but I did, at times, look or see other peoples' reactions - their faces. Obviously the talking stopped in the area. Everyone went quiet. It went silent, and it was just our conversation that dominated the bar.

But you were facing away from the bar. You've told us that?-- Yeah.

And that's the short end of the bar that you'd be looking at?-- Yep. It didn't-----

Sorry, can you just listen to my questions and answer them. You could not possibly have seen what was going on behind you on the other side of the bar where the larger part of the bar area is; all the tables and chairs and so on that are in there. Am I right?-- To an extent because we actually did move, as I said to you, between the two tables there. So the main table you've got in the middle with the guy with the yellow shirt. The whole situation moved between that and the actual table on the left-hand side. So it did move and it actually changed in view. We didn't just sit there going head to head, you know what I mean? I tried to get away and he kept carrying on and it got moved through this whole area here. So it didn't just continue on there. It moved through this whole area here and that's when the people from this table and stuff started coming in. So that's when that sort of - so that, you know, everyone who was standing up here - what, two or three metres away, they obviously heard it and saw it as well.

And even in respect of what - those people who were in there, you weren't paying any attention to what they were doing, were you, when this was going on? You were looking after your own interests?-- I was dealing with the situation, but yeah, obviously saw glimpses of them-----

Glimpses?-- -----at times. You know what I mean, seeing their facial reactions. Seeing everyone stop and look. Noticed the crowds all staring around us, yes. I did turn and have a look at that."

[5] See also his evidence at T2-84,85,90,91,92,93,104 and T3-23,24,25,26,27,38,39.

[6] After the incident was over Brent Taylor approached the plaintiff, told him he'd seen and heard what happened and gave him a Keno ticket with his nickname (Tarj) and phone number written on it - ex2 (T1-69-72).

[7] Mr Taylor knew both the plaintiff and the defendant. He was more a club acquaintance of the plaintiff than a friend. He said the bar was quite crowded - maybe 20 people in the room plus two or three deep at the bar. He was sitting not far from events. He gave the following evidence (T4-9,10,11,13,14,22,23,24,25,26,27):

"So I first heard the altercation and kind of - and turned around in shock and then witnessed what had actually happened.

Do you remember any more words than that?-- Look, there was a bit of a slandering - a verbal between - stoush between the two of them and a lot of the F and C words.

MR ANDERSON: You talk about a verbal stoush. Who was using the F word and who was using the C word?-- They both were.

And did you hear Mr Putland use the word 'paedophile' once or more than once?-- I heard it more than once.

Do you recall how many?-- I first heard it and then turned around and saw it.

I'm sorry, you heard it first with your back to him-----?-- I heard it first with my back to it, and with that got up and turned around to see who and what was going on, and then saw it a - a number of times, maybe twice.

Again, do you recall the context in which it's being said? Do you recall anything about the conversation that's taking place in which the word is being used?-- No, I don't recall any of that conversation. There's a little bit of noise going on in this area, so that part of the conversation was background noise. It wasn't until I heard the - the 'paedophile' words that I was able to distinguish what was said and what was going on.

And when you turned around and were able to see who was involved, who did you see?-- Joseph and - and - and Mr Putland.

And where were they standing having regard to the photograph that's in front of you?-- Joseph was probably about - he was standing where this gentleman is in the yellow shirt.

Yes?-- And Paul would have been at the table along from that.

Okay. Was he seated or standing?-- He was - by that point he was standing.

And, to your observation, was there anybody else involved?-- I can't - I can't honestly answer that. I - like I say, I can't even recall the number of people that were at Paul's table and who was there.

You're aware of there being more than one person?-- I was aware of there being more than one, yes.

And what did you then do, having heard this, did you do or say anything yourself?-- I - I kind of inter - well, not intervened, but I just, you know, as you do, just try and calm the situation down.

And how did you do that?-- And I grabbed Joe and brought him over to my table and sat him with me and we - we proceeded to have a conversation about what had gone on and what have you.

MR ANDERSON: If you think about the expression that he used, how his words came out, how does that compare?-- The expression and the words, they were quite venomous.

Did you hear anything other than the word 'paedophile' that adds to this notion of venomous?-- No, I can only honestly say I heard the word 'paedophile'.

HIS HONOUR: At what volume?-- Well, it caught my attention, and as I say, what was being said between the two of them and what had gone on at the table was like morphed into all the noise of the club. It was the loudness of the 'paedophile' word that I - that caught my ear and alerted me to turn around to see what was going on.

MR ANDERSON: Was Mr Putland gesticulating in any way?-- Sorry, meaning?

Was he waving his arms around? Was he moving his body?-- No.

I wouldn't say he was - not physically aggressive, no.

When you took him to your table and you spoke with him, how was his demeanour then?-- He was quite unsettled by it all.

MR ANDERSON: Mr Taylor, from when your attention was caught,

to the point in time when you sat down with Mr Nowak-----?-- Yes.

-----what kind of period of time are we looking at?-- Sorry?

From the moment your attention was caught by what you heard-----?-- Yes.

-----to - through what you saw and what you did and then you sat down with Mr Nowak, how long did that take?-- Oh, five minutes.

Now, you spoke to Mr Nowak when you were sitting at the table?-- Yes.

And do you recognise that document that you've just been given?-- Yes, I do. It's a Keno ticket with my name, my phone number and my handwriting.

Why did you write your name and phone number on the Keno ticket?-- I just - at that point I just handed it to Joey in case he needed any assistance with what had gone on. He - like I say, he was quite unsettled and disturbed by the whole action.

And did you say to him that you would come to Court to assist him?-- I said if he needed a witness, that I would - I would give him a written account of what I saw happen that afternoon.

So when you told his Honour that this took about five minutes, you must have watched most if not all of that five-minutes worth of activity?-- Well, I was - well, I don't think I would have stared or glared at it. It was just kind of - well, you know, I didn't want to become a part of it.

We understand that, but what I'm trying to ascertain is whether you were looking at what was going on, or were you looking away?-- No, I was looking at what was going on.

So if Mr Putland moved at any stage during those five minutes, you would have seen that?-- Yes, yes.

And if they got into a position where they were close to each other and Mr Putland was standing over and waving his arms, or his fists in an overbearing way toward Mr Nowak, there's no doubt that you would have seen that?-- That's correct, yes.

And that certainly didn't happen, did it?-- No, no.

You did tell my learned friend in response to a question that Mr Putland wasn't physically aggressive and wasn't waving his arms around and so on. So was the thing that drew your attention to all of this just the use of the word 'paedophile'?-- Yes.

And this wasn't being shouted, was it?-- It was above the regular crowd noise there.

Yes. But it wasn't being shouted?-- Shouting as in yelling, no, but it was-----

It was loud-----?-- I certainly heard it and I was aware of what had been said.

It was louder than ordinary conversational level?-- Yes.

But not particularly loud?-- No, it was louder than the normal conversation level, but not yelling.

All right. Now, would it be right to say that you were only a few metres away from all of this going on?-- Yes, it would be fair to say that. Judging that, I would have - maximum 4 metres from it all.

And do we understand your evidence to be that you couldn't really discern anything else that was being said between them apart from being able to hear the word 'paedophile' being used?-- Yes, that's correct.

MR RONEY: Oh, yes, he did, thank you, your Honour, for reminding me. You heard the swearing - I will come to the swearing - but you couldn't actually hear the content of any discussion that might have taken place between them?-- No.

All right. But you also heard some swearing - I won't go over the words used - but both of them were swearing, is that your evidence?-- That's - that's my hearing evidence, yes, I can't - I didn't see this, I heard it.

All right. So when was the swearing relative to the first time you heard the word 'paedophile' used?-- It came after the words 'paedophile' were used.

And - and from your evidence Mr Nowak was using this language?-- Yes.

Could you be mistaken about that, as to whether there was this swearing going on?-- No, I couldn't be mistaken; no.

The - and may we take it that the reason you could hear the swearing is because it was also spoken at the same volume as this 'paedophile' word was being used?-- Yes, yes, yes, it would have been. Well, I heard it above the day-to-day noise or the hum of the noise that one hears-----

HIS HONOUR: The club noise, above the club noise?-- Yeah, above the club noise, that's correct.

Now, you've not told us about any context in which you heard this word 'paedophile' used in a sentence? Do you know what I mean by that? You haven't told us that the word 'paedophile' was in some particular sentence or in some context-----?-- In a sentence?

Is it the case that you didn't hear the context in which that word was used?-- No, I - I heard it used in an aggressive context.

Well, I'm not asking you about tone or volume now, I'm asking about the words around it, do you understand what I'm saying? I'm asking you what sentence was it used in or if you can say what you heard was the sentence in which it was used?-- Yes, I heard the word used in a sentence that went along the lines of, 'You're a paedophile.'

There's no possibility, is there, that the word 'paedophile' was used, at least as far as you heard it, 10, 20 or 30 times?-- It was used repetitively, yes. How many times? I wasn't counting.

Right. Just excuse me a moment, your Honour? Isn't it your evidence that you heard it three times all up, once when you weren't looking at the incident and then two other times?--

That's what you told us in your evidence-in-chief when Mr Anderson was asking you questions?-- Well, I heard it a number of occasions. I don't think I quoted a number. Several times. What's several? Any more than two so-----

Well, several isn't 10, is it?-- No, several is not 10.

So, just so that we understand your evidence though, what you heard was the use of the word 'paedophile' two or three times?-- On a number - no, it would have been more than two or three times - I - I-----

I know you weren't counting. We're asking you to give evidence of what you heard that day?

HIS HONOUR: Yeah, but I think he is-----?-- The evidence I'm giving is that I heard the word "paedophile". I'm sorry, I don't stand there and count how many times I've heard a word.

MR RONEY: Doing the best you can with what you recall that evening, would it have been more than four times?-- No, I can't answer that, I can't answer that.

In any event, as I've understood your evidence, and my note of it is this that, when you heard for the first time the word 'paedophile' being used, you moved over immediately and tried to calm the situation down?-- That's correct.

So may we take it that you were in much closer proximity to what was taking place than when you first heard the word 'paedophile' used?-- No. I - like I say, you know, we're talking - when you're talking proximity, we're talking about 3, 3 and a half metres here from where I had my back to it as to when I heard the word for the first time. I didn't take any note of how many times it was said, all I was interested in doing was sort of calming and quelching the incident.

But what I asked you was whether when you moved over immediately after hearing 'paedophile' used for the first time you were much closer to the action than when you were sitting at the dry bar-----?-- First heard it, yes, sorry, yes, I was.

So you must have been able to hear a lot more of what was being said at that time?-- Look, I've got to be honest with you, I wasn't taking a lot of notice of what was being said. I - I - it was the words 'paedophile' and I heard them on a number of occasions. I didn't count the occasions or the number I heard them, but, you know, it's more about just calming the situation down and, 'Come on, let's just - we're here to be - you know, this is a social - social aspect of the club.'-----

Yes. And so how long did it take you before you were able to get Mr Nowak to come back with you to the table?-- 0h, Mr Nowak was quite happy to come back and sit at the table.

So is this the way that it happened: you heard the word 'paedophile' and you turned around?-- Yes.

Then you got up from your chair and you walked across to where Mr Nowak and Mr Putland put were?-- Yes.

And you said immediately to Mr Nowak, 'Come on, come with me, settle it down' and he came with you?-- Yes.

All right. Now, you've told his Honour that the whole incident took five minutes?-- Yes.

And we appreciate that time can be a strange thing in these situations, but, what from you've just told us happened, the incident involving the use of the word 'paedophile' must have only taken a few seconds before you intervened?-- Yes.

So is the truth of the matter that the whole incident involving calling Mr Nowak a 'paedophile' really only took a few seconds before you stepped in?-- From when I heard it, yes.

Yes, from when you heard - first heard the word 'paedophile'-----?-- I can't answer about what happened previously to that, but-----

Of course. So a few seconds passed between when you first heard the word "paedophile" used and when you intervened and took Mr Nowak away back to your table?-- Yes.

Did - did Mr Putland show signs of being upset?-- I don't know about upset, maybe aggressive.

Well, you told his Honour before that he wasn't physically aggressive?-- No, he wasn't physically aggressive, but, you know, you can see aggression in an expression.

Well, so you're telling us now that you saw his expression, did you?-- Yeah."

[8] Mr Taylor was recalled and it was put to him in further cross-examination that he was mistaken in saying it was the defendant as opposed to Peter Kelly who used the word "paedophile". His response was (T4-66,67):

"Oh, mate, no, no. 'Cause I - I'm sorry, I know Mr Putland's voice from - it came from behind me and when I turned the - the - the - the paedophile abuse continued on. And, that came from Mr Putland's voice.

Yes. Did you - you know Mr Kelly?-- Yeah, I know him.

And, he was involved in the incident, wasn't he?-- Like I said, I honestly can't remember who was at Mr Putland's table.

Sorry, do you know Mr - Mr Kelly's voice? Are you familiar with his voice-----?-- Yes, I do. I've known - I've known Ned around the club for a number of years.

All right. If I were to suggest to you that in the course of that altercation that day Mr Kelly called Mr Nowak a paedophile and also called him a wog, or a name like that, would you disagree with that?-- To be honest, I - I can't say I heard the word wog.

All right. You don't disagree with it, but you can't say whether it happened or not?-- No, I can't - I can't give a definite answer on that.

HIS HONOUR: Mr Taylor, do you - by that do you mean that Mr Kelly may have used the word paedophile or you don't know?-- Once again I - I heard the word paedophile and turned and saw it coming from Mr Putland.

Yes?-- Maybe Mr Kelly was the first one to say it. But, I actually heard it and I know - I know Mr Putland's voice quite well-----

And, did you-----?-- -----and - and Mr Kelly's and I would have to say that it would've been Mr Putland's voice.

And-----?-- And, then I saw him actually saying it.

Okay. Thank you-----?-- I - I'm not sure what involvement Mr Kelly had in this. I honestly have to say I can't even remember [indistinct] being there.

MR RONEY: Do you recall Mr Putland saying words to the effect to Mr Nowak that night that he was upset about the fact that photographs had been taken of your son in the middle of the night and that he couldn't do this kind of thing?-- No. I don't recall any of that. I - I have no recollection of that being said.

As I understood it, you were saying that Mr - you had no recollection of Mr Kelly being there?-- No, I don't have any recollection of Mr Kelly being there.

Do you think that if Mr Kelly had been there - excuse me - you would remember it, given you know him?-- Like, you know, the thing is it all happened so quick and it was all a bit obnoxious and I - you know, personally, I was quite disgusted in what had [indistinct] had. I think if - I know Ned quite well and I think if I'd have known he was there or seen him there I would've remembered. But, like I say, I - I can't actually state that I definitely saw Ned [indistinct] or didn't see him there."

[9] The defendant's version of events at the RBSC was quite different to that of the plaintiff and Mr Taylor. He said (T5-25,26):

"Well, I was standing at a dry table near the Keno section where they sold the Keno, and Mr Nowak walked - I was standing there with my back to the Keno section, and he walked behind me and around to just on the corner of the bar.

Right. Go on?-- And he went there and Stewart Ball was there. He was talking to him. And I saw him over there and I was probably - he'd been there for about a minute. I said - I said to Peter, I said, 'I'm going to tell this fellow that he can't go around taking photos of me son.', and Peter said - Peter said, 'Let it go. Don't do anything.', and I said, 'I'm sorry, I'm going.' So I went over and I said, 'Hey, you. What do you think you're doing taking photos of my son in the

middle of the night?', and he looked at me and he said, 'I can do what I like. I'm getting proof for the council.', and then I said back to him something like, 'You can't go around in the middle of the night taking photos of under-age children. He's only a minor.', and then I - I sort of turned around and was walking back and Peter Kelly started saying things to him. I didn't hear what Peter was saying. I was a little bit agitated, and then about 30 seconds later Peter came back and that was it.

Did you hear anything that Mr Kelly said?-- No, nothing - well, I - no, not really."

[10] He denied kicking the defendant, being physically aggressive towards him (T5-26,27) or calling him a paedophile and a wog (T5-88).

[11] Mr Kelly has no recollection of seeing Mr Taylor that night. As far as he is aware Mr Taylor "played no part in the incident" involving the plaintiff and the defendant (T6-5). As to the incident he said (T6-5,6,7,15,16):

"So could I then take you, please, to that incident, and could you tell us, please, how it happened, as you recollect it?-- Well, my recollection is that I'm standing there having a beer, I drove up there to have a beer, which I always do, and the place - sort of just depends who's there, who you end up with, like, sometimes you might be three or four of you, might - sometimes there might be 50 from the surf club. So, anyway, this particular moment I looked across, and I was drinking, Mr Putland was there, along with several other people, and I looked across to the bar area and I saw Mr Nowak just looking towards us with a big grin on his face, and Mr Putland saw that too, he was making it obvious, but he was grinning at us. So the next thing I said to Mr Putland, 'Don't - let it go, don't worry about it, he's trying to egg us on or egg you on, or whatever.'

At a glance

Court

Decision date

Before

Source

Judgment (449 paragraphs)

Parties

Cases Cited (3)