C**ts and bastards

Extreme anger is as good a reason as any to come out of  blogging retirement temporarily.   The ABC’s Andrew Denton has demanded that Channel Nein apologise to Joanne Lees for publishing a poll on yesterday’s Today program asking viewers  if they felt Ms Lees was innocent of Peter Falconio’s 2001 murder in the Northern Territory!

I would go even further.   I’d be interested in lawyer readers’ thoughts on the following questions:

  • Is the poll defamatory?   It seems to me that at the very least it carries the imputation that Ms Lees’ guilt or innocence remains an open question and a reasonable one to ask about.
  • If so, is there  any available defence under the new national defamation laws?   I would not think that either truth, fair comment or any form of privilege, qualified or otherwise, could assist Nein.
  • Could Ms Lees therefore obtain an interlocutory injunction against Nein?   The principles governing interlocutory injunctions in defamation cases  were recently considered by the High Court in Australian Broadcasting Corporation v O’Neill (28 September 2006).   Essentially, an injunction may be granted if:
    • there is no “real room for debate as to whether the statements complained of are defamatory”; and
    • there is no “real ground for supposing that the defendant may succeed upon any such ground (defence)  as privilege, or of truth and public benefit”.
  • Of course, the new national defamation laws substitute truth for “truth and public benefit”, but I would not imagine that would be a hindrance to Ms Lees’ case given that she is manifestly innocent and a man has already been convicted of the murder on evidence that would appear on my evaluation to be overwhelmingly convincing.
  • Finally, if you agree that the case is a pretty strong one, do you know any public-spirited senior barrister who might be prepared to take on such an injunction  application pro bono and urgently?   Of course, there would only be a point in this if Nein intends further publishing the poll or its results, either on TV or its website.   Nevertheless, if anyone is interested in pursuing it, I might  conceivably be able to put Joanne Lees in contact with you via  a former  NT Police victim support officer I know who provided her with support throughout the Falconio trial. Clearly you would need to be in a position to move quickly.

About Ken Parish

Ken Parish is a legal academic, with research areas in public law (constitutional and administrative law), civil procedure and teaching & learning theory and practice. He has been a legal academic for almost 20 years. Before that he ran a legal practice in Darwin for 15 years and was a Member of the NT Legislative Assembly for almost 4 years in the early 1990s.
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whyisitso
whyisitso
15 years ago

Good to see someone in the Northern Territory at last defending Joanne Lees. The NTites have an appalling reputation in persecuting innocent women (you know who else I mean). Extracts from Ms Lees’ book indicate that the NT police were less than helpful in supporting her at the time.

Gummo Trotsky
Gummo Trotsky
15 years ago
Jc
Jc
15 years ago

I don’t get this. Wasn’t a guy conmvicted of this crime a little while ago. IF so why7 on earth would nine do a poll?

whyisitso
whyisitso
15 years ago

Yes, Bradley John Murdoch is the man Ken is referring to above.

However just as a very high percentage of the female population still believe Lindy Chamberlain was guilty, a very large percentage (again mainly female) believe Lees is guilty or mixed up in it somehow. Women in particular go by gut feel in making judgements rather than trial evidence, and neither Chamberlain nor Lees behaved in the way a woman is “expected to” in their respective circumstances. If Nine’s poll hadn’t been abandoned, I reckon the result would have reflected what I’ve just said.

wpd
wpd
15 years ago

IF so why7 on earth would nine do a poll?

Because they can; and do so with apparent impunity? Isn’t it great that we have a responsible media.

No wonder Lees was critical of the Australian media.

Christine Keeler
Christine Keeler
15 years ago

“Women in particular go by gut feel in making judgements rather than trial evidence”

That’s a downright dirty lie. I couldn’t recount the number of times that dimwitted young constable on ‘Home and Away’ has uttered the immortal words “I know I can’t point to any evidence. I’ve just got a strong gut feeling this guy did the murder/arson/kidnapping/graffiti.”

And yet by some miracle of psychic policing he’s inevitabley right. What are the odds?

By the way, anyone with half a brain can see that murder is the last thing that poor Mr Murdoch fellow is capable of. I’ve heard from people who know other people who have friends who are definitely in the know that the full disturbing truth about the reclusive Ms Lees will one day emerge.

Did you realise her name is an anagram of ‘Jane No Eels?’ What about that then, eh?

Graham Bell
Graham Bell
15 years ago

Ken Parish:
Having been on the receiving end of vilification, defamation and negative stereotyping myself (Haven’t we all?) I reckon this poll was indeed downright defamatory …. and you can chuck in contempt of court there for good measure. Now, exactly what is the procedure for getting a television station’s broadcasting licence suspended for seven days or even revoked?

In fairness to all concerned, there should be a ballot or raffle to see which barrister gets to knock over the TV Goliath – it’s the Australian thing to do (and have a second draw to get counsel assisting?).

Whyisitso [post 4]:
Inapppropriate or unexpected or surprising responses are very common. In my professional work (I’m retired now), time and time again, I would see the people respond to the traumatic sudden death of loved ones with laughter, nonchalance, screaming abuse and all sorts of other strange behaviors. These were human beings in the real world, not characters in a TV soapie, and their responses were a reflection of the breadth of human experience ….. but just try telling that to anyone who turns their fleeting impressions of what they glimpsed on TV into hard cold “facts”.

John Profumo
John Profumo
15 years ago

You’re a gal after my own heart (and secrets!) Christine.

Bill Posters
Bill Posters
15 years ago

Not a lawyer, thankfully.

The poll is way, way, way out of line.

But while the imputation may be defamatory, I would say Lees’ chances of recovering damages would be limited.

The question of Lees’ innocence is and has been a matter of public debate. The defence of opinion may be available.

Also, the idea that the courts alone are to be allowed to accuse people of a criminal offence – the lawyers’ fallacy – has been overturned recently in a case involving the ABC. There’s no contempt of court here.

Bill Posters
Bill Posters
15 years ago

Sorry Ken, not a lawyer as I said – “fair comment” it indeed is. I’ve no doubt that’s the line Nine would run, anyhow. Contra what you’ve said, Nine would produce masses of press coverage – especially British press coverage – that does indeed cast doubt on Lees’ innocence. It’s no secret that several of the British papers came to the conclusion she was guilty very early on and framed their coverage accordingly.

They could use any defo trial to drag all this stuff out again and thoroughly mud her.

And, still not a lawyer, but does comment have to be rational? (As distinct from fair.)

whyisitso
whyisitso
15 years ago

My theory about women comes from my own personal experiences Ken, your experiences are obviously different. I’ve come across many many women who are of this opinion, and when it comes down to why, it’s the chemistry between them. Particularly in Chamberlain’s case the women I’m referring to hated her guts because she didn’t behave as they consider they would behave themselves. She came across as callous, inhuman even. She “must have guilty”. After all “she was just the sort of person who would kill a baby, isn’t she?” I’m not saying men were unanimously convinced of her innocence, but those who doubted her at least tried to base their belief on an aspect of evidence, unbalanced as that belief may have been.

pablo
pablo
15 years ago

Since we’re getting down and dirty on tabloid media I can recall the Sydney Morning Herald finding it sufficiently interesting to put on the front page a story of Lees’ ‘infidelity’ with some Irish backpacker spunk – pictures included -from a liaison hatched in some Newtown pub. I couldn’t believe it at the time (pre Murdoch’s arrest) and still think it was a low act rather than a slow news day.

Chris Lloyd
Chris Lloyd
15 years ago

II agree entirely with your sentiment Ken. TT is a vicious, brutal, excuse for a current affairs show. But just to play devils advocate, I wonder whether reporting the results of a poll would be anything different from verbally reporting the well-known fact that many Australians hold Lees in suspicion. If they reported the results of a poll that 90% of Australians hate Jews (supposing for the sake of argument that this were true) would this be racial vilification?

In either case they might argue that they are reporting the statistical popularity of the opinion, not endorsing it. At what point, legally, does airing the existence of a view become defamatory? Papers for instance often refer to the existence of Holocaust denial groups.

..ohh. And nice title for the post. Ken’s back!!

whyisitso
whyisitso
15 years ago

‘If they reported the results of a poll that 90% of Australians hate Jews’

‘In either case they might argue that they are reporting the statistical popularity of the opinion’

I hardly think you can extrapolate responses from Nine polls to Australians as a whole, Chris. Not exactly an exercise in statistical sampling are they?

Gummo Trotsky
Gummo Trotsky
15 years ago

My theory about women comes from my own personal experiences Ken, your experiences are obviously different.

Based entirely on my personal experience, I have some well developed theories about idiots. I’ve often wondered why I so often find myself in disagreement with other people on this subject. Thanks to whyisitso for pointing the way to an answer.

Chris Lloyd
Chris Lloyd
15 years ago

WIIS: While it is true that the poll is biased, the defense I am suggesting might still be considered even if the poll were not scientific. But I take your point that the nature of a phone poll would possiblt undermine them, since it might be considered to be an open invitation to every crazy to vent their spleen.

To make my point more clearly, if Today has actually commissioned a proper poll then I suspect that Denton would still be calling for an apology and Ken would probably still be writing this post. So I am wondering, in the case of a proper poll, how the defamation case would fare.

Jason Soon
15 years ago

what would Popper think about the falsifiability of these charges?

Sorry, just responding to Ken’s challenge on behalf of Rafe.

As you were …

whyisitso
whyisitso
15 years ago

Just an example of the sort of questions Nine conducts in its polling:

Thursday, 17 August 2006g: Do you believe Lindy Chamberlain’s story?
Yes: 37900 (58%)
No: 27084 (42%)

whyisitso
whyisitso
15 years ago

Test

whyisitso
whyisitso
15 years ago

Sorry about comment 21. I thought I must have been banned again, as I twice tried unsuccessfully to submit a comment on another thread.

Armagnac Esq
15 years ago

Ken,

Whether involving poetry about pollies or accusations of criminal guilt, the biggest protection in many defo actions is likely to be unwillingness to litigate and therefore have to face cross-examination pursuant to someone’s defence of ‘truth’ or the like.

However on the nature of the beast itself assuming the accusation is 100% defamatory (and yes I was stunned to read of this poll as well), I think it could be actionable.

The statements by individuals pressing the buttons to vote yes would, imho constitute individual defamations. If you could prove the identity of each voter then theoretically each one could be a defendant, no? I’m weakest on joint and several liability however and am not sure I can see a Court allowing full damages to be pursued against say one or some of the voters.

Publishing the results is arguably publishing those defamations. On the other hand given that they are publishing the no votes as well, is it arguable that they are not endorsing or effectively publishing the statement as to the facts that is “she did it” but rather the statement as to the facts that is “X% of the public think yes and Y% think no?”

By analogy, are there any cases people know of where publication of an opinion poll result is defo?

I don’t think it’s contempt of court. The media and the baying public are always having a go at the results of court processes.

Lindy probably didn’t kill Azaria, but i’d put healthy money on it NOT being a Dingo.

whyisitso
whyisitso
15 years ago

“Lindy probably didn’t kill Azaria, but i’d put healthy money on it NOT being a Dingo.”

Oh my Gawd – not another one!!!!!!!!!!!!

Angharad
Angharad
15 years ago

Oh my Gawd – not another one!!!!!!!!!!!!

Another what? woman?

david tiley
15 years ago

What about James Ryan O’Neill? here and here.

O’Neill was convicted of killing a child in 1976, and a recent documentary made for the ABC alleges that he may have been responsible for killing a number of other children, including the Beaumonts.

John Green, his solicitor, expects to sue the ABC for defamation once the film is broadcast. As far as he is concerned, if O’Neill cannot be protected from libel, then the media is free to create any case it wants against any prisoner whose crime is regarded as heinous by the community.

Given the attitude to truth by the people who slimed Joanna Lees, and concocted th story about Yum Yum the edible child, you’d have to say that is a reasonable fear.

As Media Watch has recently pointed out, Australian Story from our respectable national broadcaster is running close to treating the truth as an inconvenient obstacle to a good story as well, as in the case of Phillip Walsham, whose convicted murderers claimed they did assault him but someone else chucked him over a bridge afterwards and can they please go home to play with the nunchuckas now.. and that Clare Pigliardo, who saw the whole thing, was just.. not important compared to the opinion of one of the murderer’s girlfriends, who was given three half hours on successive Monday nights on the ABC to second guess the jury who sat for ten weeks, and agreed unanimously that the story concocted by these louts was garbage..

Sorry about the rant, but this stuff is important. How the hell do we impose some standards?

Armagnac Esq
15 years ago

=”Oh my Gawd – not another one!!!!!!!!!!!! “=

Yeah, don’t break the fucking lockstep, whatever you do. Meryl Streep knows best.

The case against Lindy was not one which should have even gone to trial, let alone resulted in conviction by a reasonable jury. On the other hand the likelihood it was a dingo is microcosmic.

Actually a lot easier to pull the case against the dingos apart than it is to pull the case against Lindy apart. And that was the end of the prosecution’s closing speech, which was quite persuasive, unfortunately, on the jury.

Christine Keeler
Christine Keeler
15 years ago

Rolls eyes.

Armagnac Esq
15 years ago

David, don’t know how we impose standards, not sure how useful Defo is going to be in such cases.

Y’need a law imposed by a 3rd party, eg regulatory body, so the target of the story doesn’t become the one on trial. Mr O’Neill will need to be confident because if they sue under defo then the truth of the accusations may become the primary issue of fact before the Court, with a lower standard of proof than that required on a prosecution.

It can easily backfire. Defo is most useful to incredibly rich and powerful individuals with vast vats of money whose continual shenanigans have drawn an accusation from their detractors that they know is 100% refutable.

For these reasons I can’t see Lees wanting to go there.

Ian
Ian
15 years ago

O/T Thanks, Ken, for a great link…. the home page is just great!

BTW Great ta see ya still around regularly :-)

Ian
Ian
15 years ago

^ PS Ken
If ya’ve got any influence at UMKC, ya should get them ta put at least one Wicking cartoon in there !

Armagnac Esq
15 years ago

Oh good, we’ve gone from calling for advice from QCs to quoting Wikipedia [sic] as conclusive legal authority.

“confront their own ignorant prejudices”

What’s this rhetorical flourish meant to mean? How does it relate to a prejudice?

I don’t see why my comment warrants such hyperbolic flaming, particularly when I’m not accusing Lindy. Not, um, dog whistling that allegation either. I just think it’s a baffling and screwed up case that offers no conclusive answers.

Yes I revisited my initial conclusions after Fraser Island in particular, I think a lot of people did. I think it more possible than I did before, but still very low (ok microcosmic was my own rhetorical understatement, I’ll recalibrate that) that a Dingo did it and got rid of the evidence so cleanly.

But to conclusively decide that a dingo did it when that evidence simply isn’t available, and ruling out completely homicide -by a stranger, other family member, person in a nearby tent etc- completely, is just not possible.

The case against the dingos, like that against Lindy herself or the tabloid case against poor Ms Lees, is composed of threads of fantasy and possibility, wound together to achieve the illusion of a rope.