by Joanna Kamath, legal volunteer at the Arts Law Centre of Australia. First Published in June 2005.
In the recent decision of O’Neill v Australian Broadcasting Corporation, Roar Film Pty Ltd and Davie [2005] TASSC (22 April 2005) the Supreme Court of Tasmania considered whether the reputation of a criminal can be lowered, to found a claim for defamation. Joanna Kamath reports.
Tasmania’s longest serving prisoner, convicted child murderer, James Ryan O’Neill, has successfully obtained an injunction in the Tasmanian Supreme Court against the maker of a documentary about him.
“The Fisherman: Journey into the Mind of a Killer” traces O’Neill’s movements through mainland Australia before his flight to Tasmania and suggests that he is connected to several unsolved child abductions and murders in addition to the crime for which he is currently serving a life sentence, the abduction and murder of nine year old Ricky John Smith in Tasmania.
The documentary maker, former Victorian Police Detective Gordon Davie, was in correspondence with O’Neill over a period of around four years researching for the documentary. He conducted numerous interviews with O’Neill during that time. Davies told O’Neill that the documentary was to focus on O’Neill’s involvement with insect-farming in prison and his love of fishing (hence the title) and it was in this belief that O’Neill consented to the interviews, unaware that the documentary would allude to his possible involvement with the unsolved crimes.
It was this suggestion, that O’Neill was in fact responsible for many more murders than just the one in respect of which he was convicted and gaoled, that led to the Court’s conclusion that his reputation had been severely damaged by the film and that an injunction should be awarded to stop the screening of the documentary.
O’Neill, who was refused parole in 1991, feared that the documentary would jeopardise his chances of success in his upcoming application for parole by subjecting him to a trial by media and renewed persecution in relation to the crime he committed thirty years ago.
As defamation law exists to protect a person’s reputation, this case has unsurprisingly sparked public debate about what kind of reputation a convicted child killer has in the first place such that it may be injured by suggestions of involvement in further crimes.
The case provides an opportunity to consider whether a defence, such as the “Polly Peck” defence at common law, could have or should have been applied here.
The “Polly Peck” defence provides that where one potentially defamatory statement is true (truth being a defence to defamation proceedings under both the common law and Tasmanian legislation,[1] but not in all states and territories of Australia), another unsubstantiated defamatory statement may also be defended provided that this second unsubstantiated statement does no further injury to the plaintiff’s reputation than the first true statement had already done.
So to say something false about someone does not defame them if they have in fact admitted to something that damages their reputation more than the untrue statement.
The Tasmanian Supreme Court did not acknowledge such a defence, finding that it was significantly worse to be labelled a possible multiple child killer than a convicted child killer in relation to one proven incident. It was held to be impossible to claim that no further damage had been done to O’Neill’s reputation.
[1]Defamation Act 1957 (Tas) section 15
