Queensland barrister makes grave and baseless allegations online about police officer … Defendant’s conduct improper and unjustified … Copper cleared by coroner … Triviality defence goes down in flames … Seb Tonkin reports 

Queensland barrister Michael McDonald has been ordered to pay $150,000 in damages, including an amount for aggravation, for defaming Victorian police officer Sgt. Colin Dodds. 

McDonald, operated the (now defunct) website justice4tylercassidyjust15.com. The site related to the 2008 shooting of teenager Tyler Cassidy by police in Northcote. Dods was one of four officers on the scene, and one of the three who had fired on Cassidy.

A coroner’s report in November 2011 fully exonerated Dods of responsibility for Cassidy’s death.

After a six-day trial in November last year, a Victorian jury found that two pages on McDonald’s website had conveyed a number of serious defamatory imputations about Dods – including that he had “executed” Cassidy, committed manslaughter, and gunned him down “like he was a monster and a dangerous mongrel dog”. 

McDonald admitted publication, but denied the defamatory imputations and raised the defence of triviality. Defences of truth, fair report, honest opinion and qualified privilege were withdrawn only very shortly before the trial.

Dods gave evidence at the trial of the “additional heavy weight” the website had put on him. He had first become aware of it in February 2009, and accessed it dozens of times over the following years.

In determining damages, Justice Kevin Bell in the Victorian Supreme Court stated that Dods was a person of good reputation and had been “very gravely defamed” by statements that were “entirely unjustifiable”. 

The allegations were a “baseless challenge to the moral foundation of the plaintiff’s personal integrity and public standing”. 

Bell placed particular weight on the fact that McDonald had continued to publish the statements after the coroner’s findings were publicised. 

Also relevant was the fact that McDonald had maintained a defence of truth with “no apparent foundation” up until shortly before the trial.

Defamation actions must be brought within a year of publication. In a separate judgment, Justice Bell rejected McDonald’s submission at the end of trial that there was no evidence of publication in the limitation period.

Dods’ proceedings were issued on April 3, 2013, meaning he could only recover damages for statements published after April 3, 2012. His lawyers led evidence from one witness who had accessed the website after that date – however, that same witness had also accessed the site on an earlier occasion, outside the limitation period. McDonald’s lawyers argued that the later access did not amount to a fresh publication.

Bell found against McDonald for two reasons. First, Dods’ case had not relied solely on publication to the single witness – there was a body of evidence (including Google search rankings) from which the court could infer that others too had accessed the website and read the defamatory statements after April 3, 2012.

Second, the judge rejected the notion that “defamatory matter, once comprehended, cannot be recomprehended”.

In Australia, each publication of the same statement to different people gives rise to a separate cause of action. Bell found (perhaps for the first time) that plaintiffs can sue separately over consecutive publications to the same person.