Andrew Gunston
The Hobart Mercury newspaper has been ordered to pay a former police officer more than $124,000 in damages after it dubbed him “Sergeant Sleaze”.
Andrew Scott Gunston was sacked by police after performing a public sex act on a woman in a Queenstown pub in 2002 but was later reinstated.
Last year Mr Gunston sued the paper for inaccurate coverage of his Tasmanian Industrial Commission hearing, which resulted in the paper using the defamatory label in articles over a 15-month period.
The Supreme Court heard the Mercury inaccurately reported those proceedings, wrongly stating that one of Mr Gunston’s colleagues had told the Commission he had become known as “Sergeant Sleaze” in Queenstown.
During the hearing the court was told The Mercury published 34 articles, cartoons and letters which Mr Gunston claimed defamed him.
Chief Justice Ewan Crawford said he had “no hesitation” in concluding the paper, its then editor and four of its former journalists had defamed Mr Gunston and that had affected his ability to find work.
Mr Gunston’s lawyer says it is the highest ever damages payout in the state for defamation.
• How The Mercury reported it:
ZARA DAWTREY
A FORMER police officer has been awarded $124,500 plus costs against the Mercury’s publisher, Davies Brothers Limited, in a defamation action dating back to 2002.
Andrew Scott Gunston was dismissed by Tasmania Police in 2001 after he was caught performing a sex act on a woman in a Queenstown pub in October that year.
He took his case to the Tasmanian Industrial Commission, which ordered he be re-employed, but was eventually granted a cash settlement and left the police force.
The Mercury covered the industrial dispute and other matters throughout 2002 and into 2003 using a salacious nickname, which was first mentioned in the industrial proceedings, throughout those reports.
Mr Gunston sued the newspaper over 30 articles, four street posters and two cartoons published in the Mercury between May 2002 and August 2003 as part of its coverage of an industrial dispute.
Mr Gunston’s lawyer, David Gunson SC, asserted his client had been defamed and his reputation damaged as a result of the reporting.
Chief Justice Ewan Crawford agreed, yesterday handing down his judgment in the Supreme Court of Tasmania by video link from Burnie to Hobart. He said the reports were extremely unfair and had subjected Mr Gunston to scorn and ridicule.
The judge found it was an appropriate case in which exemplary damages should be awarded.
Speaking outside the court, Mr Gunson said his client was pleased with the outcome of the case and intended to move on with his life.
• What the Judge said: Read for yourself:
Gunston v Davies Brothers Ltd [2012] TASSC 15 (17 April 2012)
Extract:
202 Exemplary damages may be awarded in a case of contumelious disregard of another’s rights. Uren v John Fairfax & Sons Pty Ltd (supra) at 122, 138, 147, 154 and 160. Those responsible for the publications, and particularly the first and second defendants, chose that when referring to proceedings concerning the plaintiff, he should be referred to as Sergeant Sleaze and the like, when in fact, in almost every case, no such reference had been made to him in the proceedings being reported. It was an extremely unfair way to report proceedings and matters concerning him. When describing him in that way, they were not reporting the news, which is the basic function of a newspaper, but instead were subjecting him to scorn and ridicule.
203 I conclude that they consciously adopted that course. I infer that they did so in the hope and expectation that more members of the public would be attracted by and would read The Mercury for its apparent salacious content, with callous disregard for the feelings of the plaintiff and his reputation.
204 This is a proper case for an award of exemplary damages against the first and second defendants. It was in the commercial interests of the first defendant that the publications were made in that way. The second defendant had overall responsibility for the content of the newspaper and ultimately, it was his responsibility to control it.
205 I have determined not to award exemplary damages against the other defendants, for it was not their ultimate responsibility to determine what should or should not be published.
• Mercury: In court on contempt charges
DAVIES Brothers Limited, the publisher of the Sunday Tasmanian and the Mercury, has appeared in the Supreme Court of Tasmania on contempt of court charges over a story and a photograph which identified a sexual assault victim.
In Tasmania, the law prevents publication of the identity of sexual assault crime victims, irrespective of whether they have given their permission as was the case in the Sunday Tasmanian article published earlier this year without a court order.
The Supreme Court yesterday heard the Sunday Tasmanian had sought external legal advice in relation to the article and the potential breach had not been identified by that lawyer or editorial staff.
As a result the article had appeared in the newspaper.
The court also heard that the acting editor of the publication at the time of the breach had not been advised of the story ahead of its publication and had identified the breach immediately upon seeing the article on the morning it appeared in print.
The then-acting editor took immediate steps to remove the article from the newspaper’s website and eliminate it from the newspaper’s in-house online archive.
The lawyer pro-actively advised the Director of Public Prosecutions of the breach.
“My submission is ultimately that although the procedures in place are not foolproof and ultimately they can’t be, the procedures were followed, legal advice was sought, there was no suggestion of risk in that advice, there was no weighing-up of risk versus commercial value,” lawyer for the respondents Justin Quill, told Justice Helen Wood.
DPP Tim Ellis SC emphasised the purpose of the legislation was to protect the victims of sexually motivated crimes with the flow-on effect of encouraging such victims to report the matter to police knowing their identities would be protected.
Mr Ellis said the law was black-and-white on the issue and the breach should not have occurred.
Justice Wood will consider the submissions and hand down her decision at a later date.
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Comments (12)
It could of course have been put that this police officer defamed his badge and uniform and The Mercury’s exposure of the matter may have been in the public interest.
Judgements like this may not be in the public interest as a cumulative effect of defamation cases could create a media snail-syndrome, where it pulls its head into a safe shell and halts progress.
I am sure there are cases that the judge could have referred to support an opposite judgement…but the case does provide an opportunity for the judiciary to give the Fourth Estate a public serve.
I hope The Mercury doesn’t become too cautious over this. I can’t believe the judgement upheld the claim that the police officer’s reputation was damaged as a result of The Mercury’s paraphrasing of the incident as ‘sleazy’.
After all it was the sergeant who brought this on himself and it was the Tasmanian Police who wanted him out of the force because of his conduct.
How often do we hear magistrates tell a drink-driver that they bring hardship on themselves by their own poor judgement.
I don’t think too many will be unhappy if an appeal against this decision is successful.After all, what’s in a name? Sergeant Sordid? Sergeant Squalid? They all add up to the same misconduct unbecoming of an officer charged with upholding the law.
Its great to see this ex-Tasmanian police officer has had his reputation fully restored.
When you go down on a judgment from the Tasmanian CJ, it’s serious, honestly. This will be an example to anyone who might contemplate displeasing our judiciary.
John Hayward
Has anyone else noticed derisory sentences handed down in criminal cases that the police had pursued with notable vigour?
John Hayward
Be a good idea for contributors to read this judgment; sets out what amounts to defamation, particularly:-
163 An imputation concerning a person is defamatory if because of it, his reputation is likely to be injured, he is likely to be injured in his profession or trade, or other persons are likely to be induced to shun, avoid, ridicule, or despise him. Defamation Act 1957, s5(1). It matters not whether the imputation is expressed directly or by insinuation or irony. Section 5(2). Whether a matter is or is not defamatory is a question of fact. Section 5(3).
164 Whether the defamatory nature of the publication is established depends upon whether reasonable persons[5], right-thinking members of society generally[6], or ordinary persons not avid for scandal[7] would understand the published words in a defamatory sense. That question raises two separate questions. Reader’s Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500 per Brennan J at 506.
165 The first question to be determined is what the hypothetical referee would consider to be the meaning of the words used, that is to say, the imputation. The second question concerns the defamatory character of the imputation.
The decision is best summed up in the words of para 194
194 I will include aggravated damages in the award of general damages, in response to what appears to have been high-handed, malicious, insulting and oppressive behaviour on the part of most of the defendants over a prolonged period of time. In general terms, they deliberately engaged in repeated ridicule of the plaintiff for no apparent reason other than that they thought that at his expense, members of the public would be drawn to read the newspaper and their reports. None of them has conceded, publicly or to him, that they did wrong. Why that is so is impossible to understand. Instead they have maintained to the end that they did no wrong and that, such was the plaintiff’s poor character and reputation, he suffered no harm as a result of the ridicule they heaped upon him. As to aggravated damages, see for example Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 at 1221; Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 151; Broome v Cassell & Co Ltd [1972] UKHL 3; [1972] AC 1027 at 1085; Carson v John Fairfax & Sons Ltd (supra) at 71.
No you wouldn’t want this bloke as your local copper and he should have been prosecuted for the incident BUT his rights and those of a paragon of virtue must be protected by the court with the same rigour and vigilance. Otherwise we don’t have rights only privilege extended. And that goes for pedaphiles, rapists, dishonest politicans, crooked cops and the rest of the rat bag scum that benefit from the protection that must be afforded you and I against abuse by the state or powerful interests.
The author of #1 writes:
“I can’t believe the judgement upheld the claim that the police officer’s reputation was damaged as a result of The Mercury’s paraphrasing of the incident as ‘sleazy’.”
It didn’t. I suggest reading the finding carefully.
The basis for the finding was not that any particular incident was regarded as “sleazy” but that the Mercury went to town on the whole “Sergeant Sleaze” nickname business and thereby implied that the officer was widely considered sleazy in the town and with good reason (ie that he was habitually sleazy and immoral). In fact the only evidence for the nickname existing at all came from a single witness who had heard it from a small number of people, on the claimed basis of the officer allegedly putting his arm around women rather than for anything to do with the incident in question.
The Mercury misreported the evidence on the question of the nickname and then ran with it repeatedly even when it wasn’t strictly relevant. As James implies, no-one is saying the officer is a “paragon of virtue”, but that doesn’t mean a newspaper has a licence to say whatever it likes. 190 in the judgement makes the point well: just fair reports of the incident in question and others would have done damage to the officer’s reputation (and given him a somewhat sleazy image) that would not have been actionable. The Mercury went far beyond that and hence caused disproportionate damage to reputation.
I hope the judgement will make the Mercury more cautious about sensationalist and poorly substantiated reporting. Unfortunately in the past the paper has seemed to view defeats in defamation suits as an operating expense.
Note to editor: That’s not a Transcript, that’s a Judgment.
#5 & #6
I prefer that nice little maxim that translates in this case as it is better that 100 sleazy cops go unscathed than one innocent Mercury go to prison.
...
Practitioners of journalism become cynical over time as politicians, govt CEO’s and others on the public purse slip just beyond the radar of sleaze and contumacious behaviour and then have the front to front up as ‘paragons of virtue’.
Did I ever tell you of the time I argued forcibly and vainly with my bosses to put to air a litany of abuse, recorded in a lift, of a drunk national leader?
Or legally-privileged documentation of a senior police officer ordering his reluctant subordinates to misuse a police boat for gala-destined crayfish? That never got broadcast because it would be too upsetting to The Establishment? As this little anecdote may be on TT.
Or a legal practitioner using the court rooms to channel drugs secreted in law books to his clientele in prison?
Journalism is both risky and frustrating. Its agencies belong to the people, not to The Establishment armchair experts. And risks sometimes go ballistic when the story gets a modicum of privilege as in the sergeant sleaze case.
Even though The Mercury has lost the first round it still wins the war, for the community has been well served by this story and the payout just a small price to pay for a good message sent ...
This is the big picture and I hope that the Mercury’s appeal hits the right spot with judges who’ve been around the traps for long enough to also view this judgement with more than a modicum of cynicism.
On a lighter farewelling note, it was sometimes the dread of journos to have to go to the unis for news of some breakthrough research…but we’d go along pad in hand and maxim in mind that at the end of the day, an expert is really only a drip under pressure.
Yes I can understand that it would be the dread of many journos to engage with experts, since reporting something accurately in a field you don’t understand requires more care than a lot of them are capable of - so many pieces dealing with subjects involving expert findings are so inaccurate. However, some try hard to get it right. Anyway, I’m asking ALF1 to cease making dubiously relevant comments about experts and/or doctorates, and advising that I’ll treat all further such as referrable to moderation unless it’s clear to me that they are not aimed at any posters on this site.
The only message sent by the supposed story is “don’t get caught”. There would be many thousands of sporadically-sleazy-sergeant types out there in various occupations nationwide writing silly comments in hotel guestbooks, making dodgy comments to women, being inappropriately touchy-feely and so on. Any of these might deserve proportionate public exposure of their behaviour but the vast majority don’t make for titillating stories and hence will never get it. The main reason this one ended up where it did was that an off-duty cop with a degree of dodgy reputation was foolish enough to luridly engage in a consensual sex act in a marginally public place thus creating a trigger for attempts to sack him.
Interesting to see how TT readers view the Pink Slipper situation in the context of this blog. It has sleaze written all over it. But of course being so politically-correct now, it can’t even be paraphrased as so, so journos won’t be able to use the term unless some courageous person uses parliamentary or court-room privilege to put a label on him. It has much more populist meaning than ‘salacious’. Journos generally have to write for about a 12-13 year old demographic, that way the majority get to understand what its all about. You can get away with much more on this web-site because of the intellect of the demographic and in many respects it is a reasonable presumption from observation, its only natural for many more articulate moths to hover about this very bright beacon in a very dark and sleazy place. But sometimes the message gets clouded by something than runs parallel to Narcissism and a brush-up of the rules on conciseness is recommended.
I think this blog creates a pathway to further comment on what my maxim of journalism is. You judge a news agency by not what is in it, but what is not in it. That means that so many journalists are working to a sinecure rather than a profession or a calling. I will give a good example. I have disguised this before on TT, a true tale and raises alarming implications.
A retired police officer visits the pub frequently and has a beer with locals including a retired journo he brushed more than once when both were on the job. He is a part- time professional fisherman and we enjoy his anecdotes of high seas and a bit of uniform reminiscing. And then one day his former colleagues nail him for one or two under-size. He then mumbles retribution and talks of his official duty as a cop when Parliament is on. That he is assigned to follow pollies home after their hard day’s work. He is in fact assigned as an official spy. He tells me who goes to which motel and with whom. He has obviously as part of his formal duty more than likely filed a formal report to whomever assigned him his official duty. And so has a dossier been kept on our elected members? Have they been told, we know with whom sir you kept an assignation with last night. And so the implications. Dare any politician with such a dossier ever use parliamentary privilege to criticise police. It goes to this. Has parliament been paralysed by these official spying duties? This is a true tale which may have taken place anywhere in this country, as ALF1 gets about a bit, and as a retired journo on a clear crisp night, just loves to hear the crickets singing.
If journalism is to be effective, then it needs to assign one person per agency to investigative roles as priority. If the sergeant-sleaze case had not raised its head in the Industrial Commission nobody would have known about it. A Cynical journo will never treat his/her job as a sinecure.
A very good journalist can whittle a three-page statement from an expert into three paragraphs of news.
Truism…a retired journo is persona-non-grata with his former colleagues. A good journalist has very few friends. A very good journalist is very much hated. An exceptionally good journalist will go outside the rules of conduct and professionally criticise his profession…if it serves the public interest. Watch this spot, sport.
Dr Kevin Bonham in post 9 you are spot on with your last sentence.
Being someone who is very familiar with the case, a couple of the people involved and particularly the hotel and room in question, I don’t think you could put it better.
The Mercury beat this story up for more than it was worth and took great delight in the tag for the sergeant.
I know people who had professional dealings with this police officer and have many good words for him. It’s a pity his off-duty behaviour ended his career.
AFL 1.
Your, “Or a legal practitioner using the court rooms to channel drugs secreted in law books to his clientele in prison?” enlivens my reading of the rest of your post.
Not that I don’t believe everything that I read in the paper, nor everything that I’m told by a man in a pub, but I must be incredibly naive because I can’t even contemplate a practitioner being that stupid. But as I said I can be naif.
So whithout revealing your sources, or naming names (except if they’re dead) and to generally assist my edification after nearly 30 years of criminal practise; where, when, who (if the miscreant is deceased) would add a lot to your credibility.
And if you don’t want to share with the rest of the world Linz will give you my email address.