High Court Judgment

C (bb\setc, Cc-Lit‘c1„
IV THE RS *NNW de MEM Ems--- st"
REGISTRY
prism
A. 39/ST
of Dunedin. Ps ychic Medium
-Plata:4W
14_1_12
TREVOR EDWARD REEVES
of 523 South Road.
Caversham. Dunedin
girst Defen4a•t
A N D ALLIED PRESS LIMITED
a duly incorporated
company having
registered OW_
Dunedin and cant n
business there as a
Newspaper Proprietor
Second Defendant
Hearin g :
12th, 13th. 14th, 15th, 16th September 1988
Written Submissions
5th October 1988
Received:
Counsel:
J.M. Conradson for Plaintiff
M.M. Mitchell for First Defendant
D.L. Wood for Second Defendant
judastenti„.19 ,
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-9setnal liet.4.4
JUDGMENT OF WILLIAMSON J.
INTRODUCTION
A psychic medium claims that a sceptic defamed her.
She says he tried to label her as a criminal, a fraud and a
cheat. While she accepts that individuals in groups, such as
the New Zealand Committee for the Scientific Investigation of
Claims of the Paranormal (Inc.) (also known as Skeptics) may
criticise her psychic abilities and her paranormal activities.
she objects to sustained personal attacks upon her integrity.
The
iastigettes, ef
this claim vas said to be Mo4iVitela44
by the Plaintiff's desire to be free to practise het Maisie
and way at 41i1. without attack, tin- St hog CoWn'aaklaatimea-,
2.
o +140.1rto
g.1446:60*-
self-appointed busybody TM . The Plaintiff seeks damages of
$20.000.
tria. a—a*L
The sceptic admit...Apt he
wewthelleAging Om_
psychic medium abilities and genuineness and endeavouring to
warn others of her activities, but he claims that what he wrote
was justified or fair comment and that he did so as part of
what he perceived to be a public duty.
THE CLAIM
In detail the Plaintiff claims that in November and
December 198* the First Defendant conducted
a
campaign against
her by writing letters to the Director and Minister of Social
Welfare. the Chairman of the Dunedin Emermoy
end Citizens
Advice Service, the Chief Superintendent of Police in Dunedin.
and to the Community Mailbag section of the Dunedin Star
Midweek. Further it was claimed that in these letters the
First Defendant had alleged:
that she was obtaining a
benefit fraudulently: that she was misleading and upsetting
disturbed people on welfare benefits; that she was taking
money for fraudulent advice; that she was in breach of the
provisions of the Summary Offences Act; and also that she was
persuading people to go 922 PASW I T 9 24,64tAW-4,444ANIP- It
was claimed that these statements were made with malice and
that they caused the Plaintiff embarrassment, humiliation and
loss.
"1",a
The First Defendant does not deny Writing the various
letters but claims that the words he used were not defamatory
of the Plaintiff. He claims that these words were true or that
they were fair comment made in good faith and without malice
upon a matter of public interest, and that the letters to the
Social Welfare. Dunedin Emergency and Citizens Advice Service.
the New Zealand Association of Citizens Advice Bureaux and the
Police ate subject to a qualified privilege in that they were
Publishe d Dan; ot 419044, and amtja dmits% 91!„)a
Defendant and that they mere received by persons who had a like
duty or iffiatarank.atlicagaitaaRka
were relied upon.
1944Ag‘mliall
Defen
The particulars of justification given by the First
re:
*That the_Plaintirf: .,"4"ugt,
Is fraudulent or dishonest in that, in her
business as a professional psychic-medium
and clairvoyant, she falsely claims to
possess psychic abilities enabling her to
foretell the future and to communicate with
or pass message* ft4147 the dear=
Has no honest belief in her purported
ability to foretell the future or her
purported
to cS*unicate with or
pass messages from the dead and has taken
money for fraudulent advice.
Milt'
In an interview 1I
3rd day of September
1986 with the First Defendant and itudith
Reeves the Plaintiff falsely, fraudulently
and for monetary reward, purported to
exercise her alleged powers as aforesaid
and, in particular, to make contact with or
pass messages from the dead.
In an interview on t1i 15th day of August
1988 with one Varia Poki Poki the Plaintiff
falsely and fraudulently, and for monetary
reward, purported to exercise her alleged
powers as aforesaid and, in particular, to
make contact with or pass messages from the
--u-04mwsr -s‹,#,,,,alyannememandet,,,,L 1- 4ams - dead.
On divers other dates, precise particulars
of which are unknown to the First Defendant.
the Plaintiff has, in the course of her
professional'antSte aforentitt Sea
inexpert or misleading or upsetting advice
to various persons including the Defendant,
Judith Reeves and Varia Poki Poki as
aforesaid: Lyla McGregor and a number of
patients of one Richard Matches of Dunedin.
Psychotherapist, between 1980-1987.
Has committed a criminal offence in that:
(a) On the 3rd day of September 1986, with
intent to deceive the First Defendant
or Judith Reeves she did purport to act
as a spiritualistic medium or to
swgimmuult,el
clairvOtriati711—Othei
po
when acting fen reward contrary to
1
444sAIWY ma4V Cifaagarks,
(b) On the 15th day of August 1988 with
beta* t.:4049ar.4001 "Ot t rattl , -did purport to act as a spiritualistic
medium or to exercise powers of
telepathror clairvoyance or other
siMillarnowers whiMi=acting for levant:
contrary to Section 16 of the Summary
Offences Act 1981.
(c) On divers other dates with intent to
deceive other persons unknown she did
purport to agt_ as a titritual tic
medium Or te'exercitd"feWeri
telepathy or clairvoyance or other
similar powers when acting for reward
contrary to Section 16 of the Summary
Offences Act 1981.
Did receive or obtain a Social Welfare
Department benefit fraudulently in that she
failed to properly or accurately adConut or
disclose to the Department all the income
she earned as a psychic medium/clairvoyant."
In reply and in support of her claim that the First
Defendant was actuated by malice the Plaintiff alleged that he
had written to the Director and Minister of Social Welfare in
an attempt to show that she was receiving a benefit to which
she was not entitled; that his letters to the Dunedin
Emergency and Citizens Advice Service were an endeavour to
niiteffttitilitiltit of —
iali at.ae Oka =toe to recto
persons to whom referrals could be made and that the letter to
the Police was an endeavour to have the Plaintiff prosecuted
for a criminal ettencet wagon
:,
In relation to the First Defendant's letters in the
Dunedin Star Midweek it was claimed that these showed malice
because in addition to criticising her activities as a
clairvoyant they alleged, either expressly or by innuendo:
(a) That the Plaintiff gave "inexpert misleading and very
upsetting advice to quite a number of disturbed
people on welfare benefits•.
"4441"4--
(b) That her "psychic" abilities "we have determined from
ThepiiiiiiiritaainiiMeke ago ailaWst.
non-existent".
qe:"
(c)
That she is a fraud "who has been taking money off
people in return for fraudulent advice for many
years".
That she is committing criminal offences and
specifically was in breach of 8.16 of the Summary
Offences Act 1981.
(e)
That she was using a false name to obtain a Social
Welfare benefit fraudulent/T.
(f)
That she was telling people that her work had the
official approval and endorsement of the Dunedin
Emergency and Citizens Advice Service.
The Second Defendant publishes the Dunedin Star
Midweek. It admitted that it had published the letters
referred to, but claimed that all of the Letters amounted to
fair comment on a matter,_,(
441914409re 4t ,?niatiaiiliansizta
s
reliance was placed upon 8.11 of the Defamation Act 1954,
It can be seen from these pleadings that the
iaiiita nieied
i
to
essential dispute beteieritt v
the Plaintiff's activities and her intent rather than giiiiner
the words were used about her.
EVIDENCE
Very detailed, and fascinating, evidence was given
over a period of 5 days. Also lengthy evidence for the First
Defendant (involving an additional 2 days) had been taken from
Professor David Marks and Dr Denis Dutton, both members of the
skeetics4esjetY.
zatialeXtaw..
.4..stk9 Plaintif;44a44,466WW9Cce
has four children aged between 29 and 19. In evidence
4vs%
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the
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4.n$44'4e4•44444
Plaintiff described herself as a spiritual psychic medium. She
able to
g
g
coniequeht
she was able "to predict things and tell people things°. She
COi ltfatiN tinOtaii
dietaticoll
said tagtgantly practised, at a media after her
her husband some 10 years ago.
She claimed, however, that the
powers she possessed had been with her since she was a small
child and that she had been aware of her abilities during all
of her life. She described the way in which she practised as a
medium. She said thitl*Ople usually called at her hotili by
appointment but that on some occasions she would go to Oamaru
or Invercargill and that an advertisement wombs be 14 40S/4 in
the paper concerning her attendance there. She said that she
did not ask a person's name or any details about them but
arranged for them to sit in a room wjt4 her. She said that she
would then ask them their date of birth and discuss with them
their personality characteristics. Sometimes she said she
asked for a watch or ring from the client. These preliminary
steps, she said, enabled her to tune into the client's spirits
or guardian angels. She said that a normal reading would take
15-45 minutes but that there was no set time and some persons
came back on a number of occasions and asked specific
questions. She said that many of the persons who came to see
liafj1094
her described spiritual experiencee.40..AWA own
they were not prepared to discuss with those who were plainly
sceptical or who might laugh at them. She said that she saw
the spirits in a solid , physical form but that their
communi t0ltiOns came inalgrtlbfaTOffirliarbeinilakhrtri
manner which other persons could hear or in the normal fashion
when one living person speaks to another. For this reason, she
said, language did not constitute a problem. She believes that
the messages which came into her mind were communications from
the spirits. She said that she had made it a rule not to pass
on any distressing or unhappy communications which she received.
So far as the actual business of being a psychic
medium via stencextuml. •411.441att gt ;,...48fi c 0k04 it9,w ,Caskaaatit,
had developed from one where she would receive flowers or fruit
—06 AVM 144",AKC
indicated a set fee for an appointee
been in receipt of a Social Welfare benefit for approximately 3
ye
During this tiMeihe laltilthai she
income to them and that she haiAse ,declara her in4oir tO the
Inland Reveng e,D0P artme nti Ansa0.4, yeigrottAuWOLIPAAMO
have earned on average about $45-60 per week. She said she did
not always charge a fee and that the fee was primarily to cover
the costs involved in providing the readings.
As a result of the letters which had beth►i
in the Dunedin Midweek Star in November and December 1986 the
Plaintiff said that she had received a number of funny or
obscene calls on the telephone. - that she was fearful of
burglaries or attacks because the correspondence had suggested
that she was earning sums of $35,9 per day, and she104
investigated by the Police and Social Welfare. Allegations
that she was earning a lot of money, the Plaintiff said, were
absolutely stupid. Often her friend, Dorothy Paul. was at her
home and answered the phone or door when people arrived. Mrs
Paul was not paid but carries out her tasks as part of her
friendship with the Plaintiff. During cross-examination the
Plaintiff gave details of the procedures she follows in
Dunedin. Invercargill and Oamaru, and the meagre records which
she keeps. She said that shejuitheen invep
ea1M
Department a few years ago and also by the Social Welfare
Department who appeared to be satisfied. She said she had been
keeping whatever records they had asked her to keep but she
conceded that records weirgfrrattong feaitteeirlIP"'
business. She said she was dyslexic but did Ma hairifirether
health problems. She denied the many allegations which were
put to her in relation to the types of persons who came to see
her, the advice she gave and the results which that advice may
have had on some persons. She vigorously rejected any points
put to her as coming from evidence which might be given by a
neighbour Mrs Mills.
When the evidence of,tFofessor MarcsatRitaidam
concerning the technique known as cold reading was erred to
44Mtjtlaintiff,44„demiMaistassatt
She explained that she asked questions, chatted and Made
4'
A4' 4 ,...b:eai.."C",
.flortammoo.,:,
k 0.5th, AP2f*Aak4A-
comments to maintain the link which she had established between
NittiP1';'"
the _ _On and their perSOns ift the spirit woridY
the , glaine nature et the Untying..,
given by the Plaintiff to clients was contained in the evidence
of three witnesses, Sally Fay Hansen, Te Whitu 0 Te Marmite
Paerata and Alan Beale. Sally Fay Hansen is a qualified
barrister and solicitor practising in Dunedin. At Oxford
University she had studied psychology during one year. She
Support
fox
Is
a mature married woman with three children. She said that she
had attended the Plaintiff on three or four occasions. She
described the nature of the readings and the Plaintiff's claim
to be in communication with spirits of dead relatives. She
said that she was impressed because the Plaintiff hat told her
that she was communicating with a man whose name she did not
know but who stood in a particular manner and who wore unusual
clothing. The Plaintiff described these features and also
imitated the tone of voice of this spirit. Because the
witness's father were such unusual clothing. namely a cravat
and dressing gown often, and because he stood in an unusual
way, being an amputee, and spoke a particular way, she
recognised the description given by the Plaintiff. The witness
pointed out she did not know 00 Plaintiff prior to this
interview and that at no stage had she given her name or any
details to the Plaintiff prior to the interview taking place.
She said that she believed that the Plaintiff did have a skill
to see or hear spirits and that although some specific
predictions she had made about the witness seemed inaccurate,
she had no doubts about the Plaintiff's sincerity.
Similar views were expressed by Mrs Paerata, an
assessment officer. Mrs Paerata, who spoke of being an
Anglican and a person closely involved in Maori cultural
activities, said she believed that some persons do have the
with the spirits of the dead. For that
had contacted the, Plaintiff about Irtqm,n
power to communicate
reason she said she
year over the last 9 or 10 years. She said she had not been
0140
-e-q
aenfliat9atitaatialatatlatitat,0*,P
had passed messages from spirits to her. Mr Beale is a welder
4
9.
aged in his 40s. He had consulted the Plaintiff on three
occasions. He said thirbecnuse of tihn description
aVS
concerning his relatives and the nature of the meseaki which
were passed on to him he
Wired
PleintinAttbeen
that the
able to communicate with the spirit of his father. He said
that he had not been charged for the visits which he had made
and that he had known the Plaintiff prior to these visits
because she had been friendly with his wife.
Detective Senior Sergeant Philip McCausland gave
evidence that the Police had carried out an investigation into
the activities of the Plaintiff following receipt of a
complaint dated the 28th November 1986 from the First
Defendant. He said that after interviews with pergoni
mentioned in the complaint and with the Plaintiff the Police
concluded that there was insufficient evidence upon which to
base any charge under 8.16 of the Summary Offences Act 1981.
Kevin James Thompson, an officer of the Department of Social
Welfare at Dunedin. produced correspondence between the First
Defendant and the Department concerning the Plaintiff. He
produced the declarations which had been made by the Plaintiff
concerning the continuation of the benefit. He also detailed
the investigations made by the Department in field ,tax
returns and by way of interview. Mr Thompson relented Abe
suggestions which the First Defendant had made to the
Department to the effect that some social workers were
referring persons to the Plaintiff. Donald 3ametthe
Chairman of the Dunedin Citizens Emergency Advice SerVice, gave
evidence of his recollection of a complaint made by the First
Defendant about the sincerity and legality of the Plaintiff's
activities. He produced the correspondence which was still in
his possession and emphasised the nature of the service which
was given. Because he was unable to produce the First
Defendant's letter of complaint or prove the actual words used
in the letter, I excluded that letter from consideration as
part of the alleged defamation.
The only other
P41
Timothy John Linzey. He is a University Lecturer with an
4
10.
honours degree in education philosophy. Since his evidence
relateeprimarily to the 6/44i:rations previously made
two
defence witnesses, namely Professor Marks and Dr Dutton, it is
appropriate to deal with it in conjunction with their evidence.
Eight witnesses were called for the First Defendant.
At the outset Mr Reeves, a 48 year old welfare beneficiary.
confirmed that he had in the past been a book publisher with
particular interest in a great variety of community concerns
such as drugs, womens issues, unemployment, abortion, stress.
and smoking. He also said that he ran a group called COPE,
namely the Committee Opposing Psychic Entrepreneurs. He
described this as a group set up to counsel, help, support and
refer people who have had bad experiences with clairVoyants,
psychics, mediums, satanic rites, devil worship and similar
sorts of things. He said his wife, Judith Ellen Reeves (also
known as Wolfe) was associated with him in a number of these
activities. He confirmed that he joined the Skeptics Society
in 1986 and that he was a member of the Dunedin Branch
Committee. Mr Reeves gave evidence of attending the
Plaintiff's residence with his wife on the 3rd September 1986.
He said that, without the Plaintiff's consent, he taped the
tiff.
interview which took place between his, wife and the„
A tape recording of that interview, which I have heard, and a
transcript were produced in evidence. After obtaining that
recording the First Defendant forwarded it to Dr Dutton, a
bf
university lecturer in Christchurch, who was the Chi
the Skeptics Society. He said that because Dr Dutton
considered this to be an example of a technique called cold
reading, and because of other matters mentioned to him by
various persons he became upset about the Plaintiff's psychic
activities. He said that he considered that they were harming
persons and that it was appropriate to take steps in relation
to them. He said his wife had telephoned the Citizens Advice
Bureau and been told of the Plaintiff's service, charges and
that Mrs Saxon was "effective". The First per win.411,4 , *ego
things affected him so much that he decided to write to the
Department of Social Melton oapikpArniputhe isto
which he believed that she must be earning and not declaring if
11.
she was still receiving a benefit. He claimed that he didn't
intend to convey any 'iriudtteie motive on her ieitiniaiming
a benefit. He confirmed that he also wrote to the Citizens
Advice Bureau and to the Police concerning the Plaintiff's
activities. He said that he did this as a citizen carrying out
his duty and that he believed that his correspondence with
these persons would be kept totally confidential.
Mr Reeves went oft to explain how the course of
correspondence in the Midweek newspaper had commenced with an
article concerning Reuben Romany, an astrologist. Daring the
course of this correspondence Mrs Saxon's name was mentioned by
one correspondent. As a result Mr Reeves says he was drawn
into making comments concerning Mrs Saxon and her activities.
He explained the reasons why he wrote the letters in the manner
in which he did. He said that at that time his "true belief"
was that the Plaintiff was a dishonest and fraudulent person.
He considered that his opinion in this respect was fair advice
and that it could be of help to persons reading the paper. He
emphasised that he had nothing to gain by making these comments
about Mrs Saxon but that he did so because of his concern about
persons who might be exploited by her activities. Further Mr
Reeves recounted the manner in which he and the Pietetiff's
neighbour. Mrs Mills. had co-operated in an endeavour to
ascertain how many persons were visiting the Plaintiff. Also
Mr Reeves described how he arranged for a further secret
transcript of an interview to be obtained withtetlinistance
of a Miss Varia Poki Poki. He said he had arranged for that in
August of 1988 so that further material would be available for
the experts to consider in analysing and commenting on any
alleged techniques used by the Plaintiff. While being
cross-examined. Mr Reeves agreed that he had intended to
publish in the newspaper by his letters that the Plaintiff was
committing an offence. He said that he was not at all
satisfied by the investigation which had been carried out by
the Police and had not accepted their conclusiege,agreed
that he had no authority from the Skeptics Society to write or
make statements on,its behe;LeYSAJPRW9h at lefloWar21,
letters he had written had had an express reference to his
12.
position as a member of the Skeptics Society. He also agreed
that he had shown some persistence in relation tVihe letters
he had written to various bodies and to the newspaper. For
example he confirmed that one of the letters he wrote to the
newspaper had the following passages edited out of it:
"I see mention in your columns of Mrs Saxon of
Mornington. This lady has redefined the art of
cottage industry clairvoyancy into a large scale
commercial enterprise pushing people through from
waitingroom to office faster than lambs go to the
sacrificial altar at the freezing works."
He had not accepted this editing and had written to
the Editor of the newspaper with evidence which he claimed
supported the view he had taken. Mr Reeves also confirmed that
he had written to the Solicitor-General, Minister of Police and
to the Under Secretary to the Minister of Finance in an effort
to have his complaints considered. He said that he carried on
with these complaints as part of what he regarded as his public
duty to supply information. He said that he did not consider
there was anything wrong with taping his wife's interview with
the Plaintiff without her consent even though he was aware
that, because of the circumstances, it was not a regular or
spontaneous interview.
Judith Ellen Reeves, the wife of the First Defendant,
gave evidence of the inquiries which she had made at the
‘.,4watoo‘-io.
Citizens Advice Bureau and the nature of the interview which
she had with the Plaintiff in September 1986. She said that
she was also a member of the Skeptics Society and had been
aware of and agreed with the steps which her husband had taken
in relation to obtaining the transcript of the interview and in
writing the various letters.
Varia
Poki Poki.
a 25 year old machine operator, is
married to Michael Enright. A person by the name of M. Enright
had written one of the letters to the Midweek Star in relation
to the relevant correspondence. Miss Poki Poki described how
attended the Plaintiff, at the request-etMx laves* in
order to obtain a tape recording (which I have listened to) of
she had
13.
an interview. She said that she had not been required to give
her name before the intervieviiith the Plaintiff. Also she
described the procedure which was followed by the Plaintiff.
She said that a number of mistakes or inaccuracies had been
made by the Plaintiff during the course of the interview so far
as there was reference to relatives or to proposed plans for
her future.
Desmond Trevor McDonald. a 40 year old unemployed
man, gave evidence that some 13 or 15 years ago he was with the
Plaintiff in a group for trainee mediums. He said that she
left the group after it became apparent that members of this
circle of the Spiritualist Church were not getting on
together. Despite knowing this Mr McDonald said that.
approximately 4 years ago he and his wife and mother-in-law had
gone for an interview and readings with the Plaintiff. He said
that the material which had been discussed at his reading with
the Plaintiff was a load of rubbish and contained inaccuracies
relating to his mother and father. He said that he could not
express any opinion concerning Mrs Saxon's sincerity. He said
he did not regard her as a true medium because in his view such
a medium must be within the organisation of a church and any
reading must be accompanied by prayer to protect the medium and
usually with singing or other religious practices. Mr McDonald
also gave some evidence as to numbers of persons he had
observed going to the Plaintiff's property on one occasion.
.ra r6Ian
IvAtitwaiozw,„-
Observations of persons going to the Plaintiff's
house were also given by Mrs Isla Isabel Mills. She lives
directly opposite the Plaintiff's house. Mrs Mills said that
because of the First Defendant's letter published in the
Midweek, and because she had heard that he knew about
spiritualists she telephoned him concerning her observations of
the number of persons who attended at Mrs Saxon's place. She
said that she did not necessarily record every vehicle and
person who she observed op mvery day but that she
AMitcord
some. After the issue of these proceedings she said that the
First Defendant had, aganhed,,40,
persons who she observed going to the house. She said that she
14.
did not know the Plaintiff's personal friends and consequently
was unable to differentiate between persons who might be
friends and those who might be clients. She also agreed that
she did not know who paid a fee. She said that she had
included in her notes the woman who went almost every day to
the Plaintiff's. She explained the method by which she
recorded these and the fact that she then handed these records
to the First Defendant for use in the statistics which he had
later published concerning the numbers who vent to see the
Plaintiff and the money, which he estimated, she would have
obtained. Mrs Mills also confirmed that she had telephoned Mr
Stedman, the editor of the Midweek newspaper, concerning the
same information.
During cross-examination Mrs Mills agreed
that she had also written a letter to the Midweek newspaper
concerning the Plaintiff and that she had signed it with a nom
de plume. She agreed that on some days on the record she had
made she had marked "full moon" but was unable to explain the
significance of this notation. She accepted that there had
been a history of difficulty between herself and the
Plaintiff. She said she did not like the Plaintiff and had
made complaints about her to the Police. She also confirmed
that on occasions she had made complaints to the Social Welfare
in relation to the Plaintiff's activities. She &veld that she
had made complaints about a number of the other near neighbours
and their activities.
Thief" taltailtithatinfrittIlfrffetteet
activities of the Skeptics Society, also gave evidence for the
First Defendant. David Marks, professor of Psychology and
presently head of the School of Psychology at Middlesex
Polytechnic in London, was previously a senior lecturer at the
University of Otago Department of Psychology. He vas the
founding chairperson of the Skeptics Society and remained in
that position until August 1986 when he was succeeded by Dr
Denis Dutton. Professor Marks gave evidence of having made a
asdiliummtchica and
particular study of techniques adopt
clairvoyants, and in particular of investigations leading to
the disproving of claimg ,made
by,044442
, _ 110
in
evidence that he had had an opportunity to hear the tapes of
1 5.
the interviews between the Plaintiff and Judith Wolfe and Varia
Poki Poki. In his'viev these interviews contained clear
examples of a common technique known as "cold reading". In
this technique he said the golden rule was to tell people what
they wanted to hear. He said that this technique was a very
old one where spirit mediums would claim that they could see or
hear the spirits of deceased relatives while in fact they gave
vague general statements of a nature which could apply to
anyone. In addition he said the technique involved questions
of a "fishing" type so that the medium could ascertain the
client's worries, problems or concerns and then effectively
convince a client that they were aware of details about them
which they could not normally have known. He said that the
effect which such a technique had on the client was to subject
them to a powerful illusion which convinced them that they were
listening to matters individual or significant to themselves.
This effect was known technically as the Barnum effect.
Professor Marks said that the question and answer method of
communication by the Plaintiff with her clients was an
illustration of such technique. He pointed to various matters
in the interviews which were examples of stock phrases which
could be used on different persons with different backgrounds
in order to bring forth a response which could be later used in
the interview or reading. He said that in part such a
technique of cold reading was based upon a client's appearance
and matters such as age, race, dress would all be used by the
to
sugge
medium
ne'i'2'se
reading the transcripts Professor Marks expressed the view that
there was absolutely no evidence in them of any paranormal
spirit communication. He said that in his view the Plaintiff
must be aware that she is using such a technique and that she
did not have any ability to contact spirits. He surmised that
some mediums might genuinely believe that they were able to
contact spirits (although they were not able to) but that in
this case he was of the view that the Plaintiff's claims were
tsct witjto tiokot o t her abilmade concer41 404 op,
convince the client that she could tell the* things that were
WP,
specisl a bPUCJiteismi...04
44
mediums could be harmful toltiotionally disWbed persons.
16.
Professor Marks also said that psychic investigations conducted
over a period of 100 years in Great Britain and the United
States of America had not recorded any case where a psychic
medium had been able to demonstrate his or her ability to
communicate with spirits.
During cross-examination Professor Marks said that he
had an open mind about the possibility of life after death. He
said he did not believe in it because he lacked any evidence
whatever to support such a belief. He said that he did allow
for the possibility that intensely religious experiences were
experienced by christian mystics and that a large number of
other reasonable people believed that these mystics were
genuine. So far as the tape recordings of the interviews with
Mrs Wolfe and Miss Poki Poki were concerned, Professor Marks
agreed that these were not taken in ideal testing conditions
and he said that he would not have agreed to such tapes being
taken secretly. He also agreed that he had not heard evidence
from persons who were satisfied, nor who genuinely believed
that they had obtained the results of spirit communications
from the Plaintiff. He confirmed that he had not had any
personal contact with the Plaintiff.
Dr Denis Dutton, a senior lecturer in Art Theory at
the University of Canterbury and the present Chairperson of the
Skeptics Society gave similar evidence to that of Professor
—n1EM
: ir
an
reading and the phenomenon known as the Barnum effect. He said
that in his view the transcripts of the interviews which he had
been shown had standard cliches of cold reading. Based on
those transcripts, it was his view that the Plaintiff did not
have any paranormal abilities. He said that in his view, while
the Plaintiff may think that she possesses some kind of
intuitive ability in dealing with people, it would not be
reasonable to imagine that she thinks she is talking to the
dead. He said in his view she mukt ,kneythft she ix4talli,_
claiming that these come from the life hereafter. Like
a
as em re s
Professor Marks, Dr Duttoadgmted tmsk
view about someone he had never met or spoken to and that he
17.
had been relying upon transcripts of interviews conducted in
the artificial setting of a sceptic conducting a sham interview
with the Plaintiff. Dr Dutton confirmed that the First
Defendant had no authority to write on behalf of the Skeptics
Society or to use that Society's letterhead. He also said that
he was not aware of many of the letters which the First
Defendant had written.
John Charles Sullivan, a lecturer in the Department
of Quantitative and Computer Studies, but with a psychology
degree, gave evidence of his special interest in the paranormal
and of the researches which he had carried out both overseas
and in New Zealand. He confirmed he had worked closely with
Professor Marks and was an active member of the Skeptics
Society. He traced a history of investigations into mediums
and the number of these who, upon investigation, were exposed
as frauds. He recounted his analysis of the transcripts and,
like the other two academic witnesses, talked of cold readings
and the Barnum effect. He said that a classic article called
"How to Convince Strangers that You Know All About Them"
written by Ray Hyman in 1977 described fully the technique
referred to.
Mr Sullivan explained the nature of articles and
textbooks which had been written concerning psychic phenomena
and the psychology involved. He drew attention to chapters in
a-bo
Camman which he said concerned cognitive illusions suggesting
that both psychic performers and their clients could quite
naturally be fooled into believing things without there being
any shred of deceit or fraud involved. He suggested that these
chapters dealt with the paranormal as reflecting the natural
fallibility of human judgments.
In cross-examination Mr Sullivan agreed that he had
taken writ in the correspondence ‘Wal■Midweek newspape.
during November 1986. He confirmed that he had not met the
as
concerning t
A
,flaltits40044*AMIJinlian
which she made. He accepted that the techniques described as
142,4,e*
18.
cold reading could well be used by genuine persons in all sorts
of counselling or advising situatioti - but he said that if the
medium was genuine then he would expect more specific
information than had been the case in the transcripts which he
had observed. He also accepted that certain cultural groups
could be sincere in their traditional beliefs in relation to
communicating with the dead. To some degree Mr Sullivan was
answering evidence given for the Plaintiff by Timothy John
Linzey. Because the evidence of Professor Marks and Dr Dutton
had been taken prior to the trial commencing, Mr Linzey's
evidence was in itself a comment upon the proposition put
forward by those two witnesses. Mr Sullivan in turn was
replying to matters discussed in Mr Linzey's evidence.
Of the academic expert witnesses Mr Linzey was the
only one who had had any personal contact with the Plaintiff.
He said that he had attended one reading
his work as a lecturer in the Education
that as part of a course which he taught
to make an appointment with someone from
with her as part of
Department. He said
he encouraged students
what he called the
"fringe helping professions". He said he thought that he
should not ask students to do this unless he had some first
hand experience, so for that reason he had attended thg,,4-4.,„
Plaintiff. Mr Linzey said he was familiar with the technique
of cold reading. He confirmed that his interpretation of it
the issuing of very general statements that because of the
context
specifically. Mr Linzey said that, as part of the reseatch he
was
engaged in with the students, similarities were noted between
such techniques and assessment procedures used by
educationalists He commented on the similarities that were
found when a psychologist draws on generalised scientifically
based views to deal with the particular or individual personal
situation of a client. Such generalised material tends to lend
weight in the mind of a client to the truth of comments made by
such a ptehmasional. Mx LiBAmAgjkaggd the vieuAttorgu
therapist and every practitioner employs techniques which of
necessity,an, 0$0.9WYR#441044s441A 40
"44
techniques. He suggested Oat the memo• of a disti
19.
between cold reading and normal every day conversational
techniquei - was the intent of the person using it. Re said that
he had read the book co-authored by Professor Marks, but that
ultimately he had become irritated with the dogmatic approach
in the book and with the underlying assumption of it which
seemed "to see no gap between the fraudulent psychic, that is
the person setting out to deceive on the one hand, and the
rational scientific practitioner on the other." He said that
the book did not appear to have given any logical space for the
idea that somebody may be operating in a psychic type of
framework with good intent. He said that in his view it
appeared to be based on a supposition that all such persons had
an intent of deceiving or making money or gaining power over
other people. Mr Linzey confirmed that he disagreed Ninth the
opinions expressed by Professor Marks and Dr Dutton in so much
as they did not give any heed to the logical gap he had already
referred to.
When cross-examined about his own interview with the
Plaintiff, Mr Linzey said he had gone into it with an open mind
and had also come out of it with an open mind. He indicated
that while he respected the work of Professor Marks, he
believed that in giving evidence Professor Marks had been
guided by his own set of presuppositions in this area. Mr
Linzey said "We are all prone to see what we believe and I
suggest there is no scientist that is immune from that very
normal human strength". Further Ph I:they
drew aitintieh to
'
the assumptions about the nature of human potential which
underlie the phenomena of an IQ test. He said that more and
more psychologists were moving away from such tests as
examination continued concerning the science upon which such
tests were built.
For the Second Defendant one witness was called,
namely Richard Disdale Stedman, the editor of the Star
Midweek. Me described bow theAmtisis OMItteKJINgjeitin
theflreekfollowinganarticleaboute
described the extent of the
OAR
the
and the manner in which the First Defendant had called to s
20.
him with the transcript of the interview between the Plaintiff
and the First Defendant's
Stedman also descrlifr
having received two and possibly three calls from Mrs Mills who
Arm.
had expressed concern about the Plaintiff's activities.
Publication of the letters was carried out in the public
interest. Mr Stedman said he was reassured because of the
balance maintained in the letters both for and against the
Plaintiff. He confirmed that the newspaper would have been
happy to have accepted a letter from the Plaintiff or to have
interviewed her and published her views as well. He said she
had not attempted to contact the paper in order to do this. Mr
Stedman said that in his view matters in letters written by the
First Defendant about the Plaintiff were expressions of opinion
and in particular he said that statements such as "The Summary
Offences Act 8.16 states that paying people like her is
unlawful" was, in his view, a statement of opinion by the First
Defendant. He said that once he became aware that the
Plaintiff was claiming some of the letters were defamatory of
her he did not consider publishing an apology and he pointed
out that the paper was not asked to make a retraction and nor
was any complaint laid with the Press Council.
ASSESSMENT OF EVIDENCE
The complexity of the personalities of the various
witnesses in this case increases the difficulty of making clear
and confident assessments of them. Somewhat surprisingly, the
Plaintiff impressed as a forthright, no nonsense, outaiokSIC
talkative person of moderate, although not great.
intelligence. She certainly did not appear to be well
educated. At times when she was faced with questions which had
been cynically expressed she answered in a sharp shrewd way and
sometimes in an almost flippant manner. There was nothing in
her evidence or the manner in which she gave it which suggested
any doubt or insincerity on her part as to the claims which she
communications iron spirits. On the
tie,, lasatipagetne a)solu*Spow,
made to be able to receive
„ether,,,hand I
did not
convincing that she did in
interviews, I could au,
too
copmunicate with spirits.
21.
they did not have evidence to support any intent to deceive on
her part. I was not impressed with her evidence about the
records she kept, either as to the number of persons who
visited her or the money which she obtained from her fees.
appreciate that she is dyslexic and that she did not attach as
much importance to such records as a business person would
normally do. On the one hand she had clearly complied with the
necessity to complete declarations in order to obtain Social
Welfare benefits and to file returns with the Inland Revenue
Department. On the other hand she had not retained the base
records to justify her returns and her replies to questions in
relation to records and numbers were less than entirely
satisfactory. I accept, however, that her rejection of the
large numbers and amounts mentioned by the First Defendant in
his letters was correct. In particular I accept her evidence
that she did not always charge clients and that a number of
persons who came to her house were friends or relatives and
were not necessarily clients of her business. In making an
overall assessment of her I have given weight to her failure in
relation to records and to inaccuracies and mistakes during
interviews in deciding whether her general evidence concerning
her activities could be believed. On balance I concluded that
she was probably telling the truth as she believed it te he.
The First Defendant was not an impressive witness.
He appeared during his evidence to shift ground and at times to
be evasive. I conclude he may have been well motivater&
raising issues about the Plaintiff and her activities but that
he lacked sufficient responsibility and fairness to obtain firm
factual evidence before launching on such a campaign. He gave
the impression of a reasonably intelligent person who was on
the fringe of a number of causes but who enjoyed having
listened to gossip and loose talk about the Plaintiff. There
was no suggestion that he had any financial benefit to gain
from the steps which he took.
The evidence of Sally Fay Hansen was post
significant. She was clearly,hhhmstaudvii
with a balanced approach to the claims made by the plaintiff.
22.
She recounted an interesting experience or episode between the
Plaintiff and herself which she could not understand as
explainable by any of the relevant information having been
given to the Plaintiff in a normal manner. Although the
witness had approached her first interview with the Plaintiff
in an intelligently sceptical manner, she had concluded that
the Plaintiff did appear to have some paranormal skills and she
had no doubt as to the Plaintiff's sincerity.
Mrs Paerata. Mr Beale and Mr McDonald all impressed
as sincere and reasonable witnesses. They experienced true
interviews with the Plaintiff. The first two supported the
Plaintiff's genuineness while the third made criticisms of
style rather than content.
The evidence of Judith Reeves and Varia Poki Poki
related primarily to the tape recordings of interviews that
were made. There was no contest that these recordings were
made without the Plaintiff's knowledge and in a deliberate
effort to obtain information detrimental to her. In this
respect they were false interviews. The value of the
recordings and the resultant transcripts is coloured by such
famine.
Mrs Mills' evidence was muddled and appeared to be
based, at least to some degree, upon her hostility towards the
Plaintiff over a number of years. The records of
vtiribtribt
compiled were even less adequate than those which the Plaintiff
kept. They suffered from the important defect that Mrs Mills
was unable to identify whether the persons visiting the
Plaintiff's home were paying clients or not. I accept she may
have been truthful in her evidence but the history of the
relationship and the nature of the evidence was such that no
weight could be placed on it.
,c,`r
Toseib4440.04.4344WwW0 ant a4ent417
describes the evidence Oyes by the academic witnesses.
nahlia; artstaratatabeit ICE
all gave thoughtful and valuable evidence. To
41 de
23.
it was essentially theoretical and so far as the first three of
those witnesses were concerned it was based on their attitudes
formed by detailed reading and research, combined with their
perusal of two transcripts of interviews. In some respects
their evidence had to be weighed with the knowledge that they
were all members of the Skeptics Society. That Society
appears, from the magazine that was produced as part of the
evidence, to delight in what is referred to as the "debunking"
of those who claim to be psychic mediums or clairvoyants. To
approach this case on the basis of the patterns, analyses and
depersonalised theories of such commentators, however learned.
would be to ignore the personalities of the parties involved.
Certainly only one of the academic witnesses who gave evidence.
namely Mr Linzey, had any personal contact with the Plaintiff
and he was not prepared to express a view one way or the other
about the abilities which she claimed or her sincerity in
making such claims.
THE LETTERS
Publication of the relevant letters is not in issue.
The Defendants accepted in evidence that the letters referred
to in the Statement of Claim were published and that they
referred to the Plaintiff.
In considering whether or not the letters were
defamatory of the Plaintiff it is appropriate to consider the
ordinary and natural meaning of the words used in fbA Utters.
As many Judges have said, in a great variety of cases, there is
no exhaustive definition of the word "defamatory". These cases
and the various expressions commonly used are collected in the
textbooks Gatley on Libel and Slander, 8th Edn chapter 2 page
15 and Duncan and Neill on Defamation, 2nd Edn chapter 7 page
29. words causing hatred, contempt or ridicule, words causing
other persons to shun or avoid persons, words lowering a person
in the estimation of others, are all capable of being held to
be defanatory._,Iford , AtAin inA01_pase of
All ER 1237 describes the matter in this way:
iii—X4441haea,?
24.
"Judges and text book writers alike have found
difficulty in defining with precision the Wan
'defamatory'. The conventional phrase expoding
the plaintiff to hatred, ridicule or contempt is
probably too narrow. The question is complicated
by having to consider the person or class of
persons whose reaction to the publication is the
test of the wrongful character of the words
used. I do not intend to ask your Lordships to
lay down a formal definition, but after collating
the opinions of many authorities I propose in the
present case the test: would the words tend to
lower the plaintiff in the estimation of
right-thinking members of society generally?"
In this case the basis of the Plaintiff's claim is
that the relevant letters stated that she was behaving
unlawfully and that she was acting fraudulently, both so far as
the persons who consulted her and the Social Welfare Department
were concerned. It was also claimed that the manner in which
the letters were written also clearly exposed the Plaintiff to
ridicule, not just because of her beliefs about communications
with the spirits, but also because of her general activities
and her method of carrying on business. There could be little
doubt that such statements would lower a person in the
estimation of others.
The first relevant /otter dated the 7th *tidiest 1986
was written by the First Defendant to the Director of the
Department of Social Welfare at Dunedin. In signing the letter
the First Defendant referr‘d to his membership of t44L1l4inedin
branch of the Skeptics Society. In this letter the First
Defendant said, about the Plaintiff:'She has been making a considerable amount of
money through her activities as a
spiritualist/clairvoyant for many years all in
cash ... we know that in a good week she will
take in over 81.000 and she makes several trips
to Invercargill where she advertises bringing in
large amounts of money for her services. We are
wondering whether she declares any of her
earnings on her tliaar returns to your
Department. a
St:'
r
"F-444
-s
25.
"We have had reports from reputable people,
psychologists, social workers etc, that quite a
number of disturbed people on welfare benefits
have been given inexpert, misleading and very
upsetting advice by Mrs Saxon whose psychic
abilities we have determined from a separate
study made some weeks ago ate non existent."
"In short she is a fraud who has been taking money
off people in return for fraudulent advice for
many years."
"I feel we don't need to tell you about the
Summary Offences Act reference to clairvoyants
and the like."
"Also we are wondering whether Mrs Saxon uses
another name with respect to her dealings with
your Department. Her true name we have found out
is Mrs Poole and her maiden name was Hurting."
The passages from the letter which have been quoted
indicate allegations of a defamatory nature were made in the
letters. Certainly I could not accept the submissions made by
Counsel for the First Defendant that the overall nature of the
letters was not a defamatory one. It seems quite clear from
the evidence, which I heard, that the allegation in the letter
as to amounts of money earned and the Plaintiff's true name had
no sufficient basis at all in fact. Further the suggestion
implicit in the letter that the Skeptics Society had determined
the Plaintiff's abilities in a separate study was grossly
misleading.
On the 10th November 1986 the First Defendant wrote
to the Editor of the Midweek, including the following passage
in his letter:
"I see mention in your columns of Mrs Saxon of
Mornington. This lady has redefined the art of
cottage industry clairvoyancy into a large scale
commercial enterprise, pushing people through
from waitingroom to office faster than lambs go
to the sacrificial altar at the freezing works."
This passage was not published in the newspaper
although the rest of the relevant letter did appear with the
26.
notation at the foot of it "Abridged. We would require
evidence to support such a claim."
At about this time the First Defendant also wrote to
the Emergency and Citizens Advice Service (Inc) but this letter
was not produced in evidence and details of its specific
contents were not proved.
In the Midweek newspaper of the 26th November 1986 a
letter from the First Defendant appeared. This letter named
and was essentially concerned with the Plaintiff. In this
context the letter stated:
"Section 16 of the Summary Offences Act
specifically states that anyone acting as a
spiritualist medium for monetary reward is liable
for fines not exceeding $1,000."
On the 27th November 1986 the First Defendant wrote
to the Solicitor General and to the Minister of Police. He
wanted them to direct that a prosecution be brought. TheSolicitor General declined to do so. On the 28th November the
First Defendant wrote to the Chief Superintendent of Police at
Dunedin. In the letter the First Defendant stated that he had
proof that the Plaintiff was making large amounts of money and
that he believed a fairly large proportion of this was paid to
her assistant. Details were given of a psychiatrist and an
alleged former client who could testify to damage suffered at
the hands of Mrs Saxon. Ultimately the Police reported to the
First Defendant that they had investigated all the matters
mentioned in his letter. He was also told of the negative
results in relation to the matters he had alleged.
On the 3rd December 1986 the Midweek newspaper
published a further letter from the First Defendant in which he
said:
-While its disappointing to say the least that a
fully fledged professor at the university of
°tali° supports themitchy poo actiViSiee'ot- Mrs
Saxon, it is possible to give a little advice to
27.
her intending clients. The Summary Offences Act
section 16 states that paying people like her is
unlawful...."
On the 5th December the First Defendant wrote to
Detective Aitken who was handling the investigation on behalf
of the Police and he also wrote to Mr de Cleene. the Under
Secretary to the Minister of Finance. Both these letters
concerned Mrs Saxon. They involved further allegations as to
her earnings and her liability for goods and services tax.
A further letter from the First Defendant was
published in the Midweek, along with a number of other letters,
on the 10th December 1986. In that letter the First Defendant
said (inter alia):
m ... some people are gullible enough to be taken in
and pay through the nose ($15 for 15 minutes) and
some people go to Mrs Saxon in desperation for
help, and get sadly disappointed, even
emotionally damaged....
If Mrs Saxon has faith in God she is charging for
that privilege. Will she give her services
free? Oh no. You don't get to see Mrs Saxon
unless you pay $15 for 15 minutes. (As quoted by
Professor Beck, Citizens Advice Service.) ...
I find it appalling that Mrs Salton is short
circuiting the doctors by getting people off
their medication. I thought that was illegal. ...
On a good day Mrs Saxon will reap over $300."
It is apparent from the quotations set out above that
the First Defendant was not content to challenge the psychic or
alleged paranormal activities of the Plaintiff but that he also
wished to state publicly that she was committing an offence
under s.16 of the Summary Offences Act and that she was making
large sums of money in a fraudulent manner and that she was
damaging persons by persuading them to give up medication.
Further letters written by persons other than the
First Defendant appeared in the Midweek newspaper. They also
related to Mrs Saxon and made similar, although not identical,
allegations. In particular letters under the name of Clare
28.
Diehl, G.B. Begley, God Fearing. Sarah Mahon, M. Enright.
L.K.N. and N.B.J. Barker contained such references.
I am satisfied that the words used in these letters
were defamatory of the Plaintiff. Such allegations of
committing offences, defrauding persons, and physically or
emotionally damaging persons, clearly lower the accused in the
eyes of right thinking people. They also exposed her to
contempt and ridicule.
JUSTIFICATION
Once a Plaintiff has proved that defamatory words
have been published about her it is for the Defendants to prove
that the words are true. It is, of course, not every word that
must be justified but rather the essence (or what is sometimes
referred to as the sting) of the charge. If more than one
allegation is made against a person then the Defendant may
justify part only of the charge. If they do then such partial
justification will restrict the damages. It can, of course, be
no help to a Defendant to prove that he was merely relying upon
what he had been told or that he was repeating rumour or gossip
which was being discussed by others.
Section 7 of the Defamation Act 1954 states:
"Justification In an action for defamation in respect of
words containing 2 or more distinct charges
against the plaintiff, a defence of justification
shall not fail by reason only that the truth of
every charge is not proved if the words not
proved to be true do not materially injure the
plaintiff's reputation having regard to the truth
of the remaining charges."
The first and major charge which the Defendants had
published concerning the Plaintiff was that she was
guilty of
a
criminal offence under s.16 of the Summary Offences Act.
Counsel argued that in order to succeed in a defence of
justification it was necessary only to establish the commission
of the offence charged on a balance of probabilities. I accept
29.
and apply that basis but with the consciousness that the Court.
in deciding whether or not the burden of proof has been
discharged, must have regard to the gravity of the issue and
the seriousness of the allegation. (See Hornal v Neuburaer
Products Limited 1957 1 QB 247 (CA) and Re Dellows Will Trusts
1964 1 WLR 455.) The Plaintiff clearly purported to act as
spiritualist medium and was acting for reward. The Defendants
claimed that it was also established that she did these things
with an intent to deceive. They relied principally upon the
opinions of the experts as to the techniques which she used and
her unsatisfactory evidence concerning records of the numbers
who attended her and the money received by her. I have already
set out my assessment of the Plaintiff and of the witnesses
called in support of her. In ay view, on the evidence which I
have heard, it has not been established that she was acting
with an intent to deceive. I conclude that she may well
genuinely believe she has a power to communicate with spirits.
In reaching this conclusion I am not holding that the Plaintiff
has established that she is able to communicate with spirits or
that she believes all of the statements which she has made
concerning her ability.
The second principal charge against the Plaintiff was
that she was acting fraudulently. To some degree this charge
was based upon the allegation that she was taking money from
persons when she was aware that she could not do what she
claimed, but it also concerned her activities in obtaining
money from fees and a benefit at the same time. In my view the
Defendants did not go far enough to establish this charge on
the balance of probabilities. Certainly there was evidence
(although it had not been available to the First Defendant at
the time he wrote the letters) that the Plaintiff did not keep
good records and that she was a little vague as to exact
amounts received, but the evidence of the number of persons
attending at her house and whether or not they were paying
customers, was woefully inadequate.
The remaining principal charge was that the Plaintiff
caused damage to persons who came to see her. Particulars of
30.
this damage. it was alleged. involved emotional harm to
vulnerable persons and harm resulting from going off
medication. In the final analysis there was no evidence of
such matters other than the opinions expressed by the experts
that such results may follow if certain types of persons were
to visit the Plaintiff for readings of the same type as those
which they had studied. The First Defendant mentioned some
hearsay suggestions which had been made to him concerning such
activities but which he accepted had been investigated by the
Police with negative results.
QUALIFIED PRIVILEGE
A duty to report the Plaintiff's activities to the
Police and Social Welfare is claimed by the First Defendant.
He says that his communications to them were protected by
qualified privilege. The existence of such a privilege has
been discussed and expressed in a number of authorities (see
Toogood v S pvring 1834 1 CM & R 193. Brvanston Finance v De
Vries 1975 QB 737 (CA). Pullman v Hill Ltd 1891 1 QB 524.
Temp leton v Jones [1984] 1 NZLR 448.) To constitute an
occasion of qualified privilege the person who makes the
communication must have an interest or a duty legal, social or
moral to make the communication and the person to whom it is
made must have a corresponding interest or duty to receive it.
Many of the statements of principle emphasise that such a
communication must be fairly made or warranted by the
occasion. The voluntary reporting of suspected crimes would
certainly come within such a duty. (See Burns v Burns 1937 1
KB 818; Bowles v Armstron g [1912] 32 NZLR 409.)
The formulation of this principle in law is an
example of the manner in which one individual's freedom must on
occasions be restricted for the benefit of a number of other
persons. It means that occasionally an individual must suffer
to provide for a freedom of communication between citizens and
law enforcement authorities. However such occasions of
qualified privilege can only arise when the persons making the
communications act honestly and without actual malice. While
it is correct to say in general terms that a citizen reporting
31.
a suspected crime to the Police or Social Welfare may be
properly exercising a duty of reporting facts to authorities
which have a corresponding duty to receive it, it does not
automatically follow that qualified privilege applies. An
assessment must still be made of the basis upon which the
person has acted in making the report or communication. A
consideration of malice is necessary to decide whether a
defence of qualified privilege is appropriate in this case.
FAIR COMMENT
Both Defendants rely upon a defence of fair comment.
So far as the First Defendant is concerned it is alleged that
this defence must fail because the First Defendant acted with
malice. It is for the Defendants to prove that the words
complained of were published as fair comment on a matter of
public interest. Such comment must be based on fact and
although consisting of or including inferences of fact must be
recognisable as comment. (See Truth NZ Ltd v Avery [1959] NZLR
274 at p.277, Isbey v NZ Broadcasting Corporation [1975] 1 NZLR
721 at p.723.) If the comment has been made with express
malice then the defence is defeated.
In this case malice is not alleged so far as the
Second Defendant is concerned. The primary issue between the
Plaintiff and Second Defendant on this defence is whether the
statements contained in the letters published in the newspaper
were comments rather than plain statements of fact. Mr
Stedman, the editor of the Midweek, was of the view that the
letters published in the correspondence column of the paper
were substantially the views or opinions of the writers of
those letters rather than statements of fact. He suggested
that persons writing letters to the editor of such a paper were
expressing personal views and that many readers would take them
with "a grain of salt". Although he accepted that the letters
contained fact and opinion, he suggested that persons reading
them would reasonably conclude that they expressed the
or comments of the writers of those letters rather than
statements of actual fact.
opinions
32.
The difficulties in distinguishing between statements
of fact and statements which represent inferences drawn by a
commentator have been illustrated in a number of cases.
Obviously it depends upon the context in which the words appear
and the basis of the statement which is made. it is not
necessary for introductory words indicative of opinion to be
used so long as the words appear to be a deduction or
conclusion from other facts. If the comment is so mixed up
with facts that a reader cannot distinguish between what is a
report and what is comment, then such words cannot be protected
by a defence of fair comment. (See Hunt v Star Newspaper
Limited 1908 2 KB 309 at 319 and London Artists Ltd v Littler
1969 2 QB 376 at 395.)
The letters which appeared in the newspaper contained
clear statements of fact such as:
"If Mrs Saxon has faith in God she is charging for
the privilege. Will she give her services free?
Oh no. You don't get to see Mrs Saxon unless you
pay $15 for 15 minutes."
"Some people go to Mrs Saxon in desperation for
help and get sadly disappointed, even emotionally
damaged."
"Summary Offences Act section 16 states that paying
people like her is unlawful."
"I find it appalling that Mrs Saxon is short
circuiting the doctors by getting people off
their medication."
It is of course important that any comment made is
upon the basis of true statements of fact. Reference was made
in the submissions to Lord Denning's views about subjectivity
in Adams v Sunday Pictorial Newspapers (1920) Limited 1951 1 KB
354 and Slim v Daily Telegraph Limited 1968 2 QB 157 at 170.
It is to be noted that in those judgments emphasis is placed
upon the honesty of the person making
the statements or
expressing the views. Both Counsel for the Plaintiff and
Second Defendant in this case accepted that the test to be
applied was an objective one which was expressed in Duncan and
Neill on Defamation para. 12.14 in this way:
33.
"Could any fair minded man honestly express that
opinion on the proved facts?•
After considering the facts which have been
established in evidence and the words which were used in the
letters published in the Midweek, I am satisfied that the
defence of fair comment has not been made out. Statements made
in the letters purport to be true statements of fact. They are
not accurate and, in my view, could not be the work of a fair
minded man honestly expressing an opinion. Indeed most of them
do not read as if they are opinions at all. While it would be
possible to take each such statement and analyse them, two
examples are sufficient to illustrate the view which I have
taken. They are first the quotations concerning section 16 of
the Summary Offences Act which leave out all reference to the
essential element necessary to prove such an offence, namely an
intent to deceive. To deliberately leave out those words in
the context of the correspondence and history of this matter
could not be the work of a fair minded person honestly
approaching the problem. A second example is the statement
that persons attending the Plaintiff must always pay. This
statement was presumably based upon the First Defendant's own
experience (where his wife paid $15 for 22 minutes) and upon a
reported statement made by a person at the Citizens Advice
Bureau to the First Defendant's wife. It was not a true
statement. If it was meant to be a comment then it did not
have a satisfactory basis of fact. In so far as the statements
may be said to contain comment, I do not accept that they are
the honest expressions of a fair minded man.
It is, in my view, no answer for the Second Defendant
to claim that the correspondence was balanced in that there
were letters both for and against the Plaintiff. If statements
in the letters were truly matters of comment on her alleged
psychic abilities both for and against then such a view would
be understandable but when there are statements made concerning
criminal offending and fraudulent activities the fact that
supportive statements are also made can not be a defence to
defamation. To allow persons to avoid'an action for Witently
34.
untrue statements about another because some good things have
also been said at the same time would bring greater weight to
the phrase "to damn by faint praise".
MALICE
In accordance with Rule 190 the Plaintiff gave the
First Defendant particulars of matters from which malice could
be inferred. The parts of those particulars which referred to
the letters published in the Midweek have already been quoted
in this judgment. In addition the Plaintiff relied upon the
combined effect of:
1.
The First Defendant's letters to the Director of
Social Welfare in Dunedin and in Wellington which it
was alleged was an attempt to show the Plaintiff was
receiving a benefit to which she was not entitled.
2.
The fact that the First Defendant wrote to the
Dunedin Emergency and Citizens Advice Service seeking
to persuade those services to remove her name from
the list of persons to whom referrals were made.
3.
The First Defendant's complaint to the Police in an
endeavour to have the Plaintiff prosecuted for a,
criminal offence.
Further the Plaintiff relied upon the frequency of
the publication of the letters.
For the First Defendant it was submitted that the
Plaintiff was restricted to the particulars of malice which had
been given prior to trial. On the other hand Counsel for the
Plaintiff argued that the Court was entitled to have regard to
all matters arising during the trial as establishing malice.
Neither referred to authority in relation
to
the utter. Any
judgment of whether or not there was malice must be made after
hearing the evidence at the trial. In my opinion the Court
cannot be restricted only to the Matters which were contained
in particulars of malice given under Rule 190 unless t
35.
Defendant has been prejudiced by a failure on the part of the
Plaintiff to fairly and adequately describe the basis for
allegations of malice. In this case I do not think such
prejudice arises. In the case of Collerton v Maclean & Ors
(1962] NZLR 1045 McGregor J. considered the defendants conduct
at the hearing. He said (at p.1051):
"It seems to me that the question of malice can be
considered on a much wider basis than is covered
by the express allegations."
Actual or express malice includes not only illwill or
spitefulness but also any intention to injure the Plaintiff.
After hearing the parties I have no hesitation in concluding
that the First Defendant was motivated by an intention to
injure the Plaintiff.
In reaching this conclusion I have been conscious of
the warning Lord Diplock gave in the case of Horrocks v Lowe
[1975] AC 135, namely:
Judges and juries should, however, be very
slow to draw the inference that a defendant was
so far actuated by improper motives as to deprive
him of the protection of the privilege unless
they are satisfied that he did not believe that
what he said or wrote was true or that he was
indifferent to its truth or falsity. The motives
with which human beings act are mixed. They find
it difficult to hate the sin but love the sinner."
A conclusion regarding express malice arises from the
total assessment of all the evidence which was presented.
Certainly the First Defendant's attitude in giving evidence
lent weight to the inference to be drawn from a combination of
a number of factors, including the following:
1.
That the First Defendant wrote not just to the Police
but also to the Social Welfare, Dunedin and Head
Office, and to the Dunedin Emergency and Citizens
Advice Service.
36.
2.
The matters raised in these letters went beyond a
mere complaint or reporting that an offence or fraud
may have occurred.
3.
The results of these investigations were not only
rejected by the First Defendant but also he took
steps to endeavour to persuade the authorities when
his original complaint had been rejected.
4.
That the vital words in s.16 of the Summary Offences
Act were constantly omitted. (The significance of
repetition is referred to by Hosking J. in Hill v
Balkind [1918] 37 NZLR 740.)
5.
The manner in which the First Defendant went about
his investigations by secretly recording interviews
and his attitude to having done so.
6.
The use of membership of the New Zealand Skeptics
Society and letterhead.
I conclude that his original intention was to
challenge her psychic or paranormal abilities and perhaps to
obtain some satisfaction, as a member of the Skeptics Society,
by exposing her activities. As his thinking progressed,
however, he decided to also attack her overall integrity by
alleging that she was guilty of a criminal offence (involving
intent to deceive) and of defrauding the Social Welfare and
causing physical and emotional harm to persons, particularly by
persuading them not to continue their medication. It is a case
which could be described in New Zealand rugby parlance as
"playing the man and not the ball".
DAMAGES
The extent of the considerations relevant to damages
in defamation matters can be seen from the following passage
the judgment of Lord Reed in Cassell & Co. Ltd v Broome & Anor
1972 AC 1027 where he said:-
of
37.
"Where the injury is material and it has been
ascertained it is generally possible to assess
damages with some precision. That is not so
where he has been caused mental distress or when
his reputation has been attacked - where, to use
the traditional phrase, he has been held up to
hatred, ridicule or contempt. Not only is it
impossible to ascertain how far other people's
minds have been affected, it is almost impossible
to equate the damage to a sum of money. Any one
person trying to fix a sum as compensation will
probably find in his mind a vide bracket within
which any sum could be regarded by him as not
unreasonable and different people will come to
different conclusions."
In the same case Lord Hailsham said:
"Quite obviously the award must include factors for
injury to feelings, the anxiety and uncertainty
undergone in the litigation, the absence of
apology or the reaffirmation of the truth of the
matters complained of or the malice of the
defendant.•
In this case the letters to the Police and Department
of Social Welfare had limited publication. The letters in the
Midweek paper. however, had wide publication of some 39,500.
The publication took place over some weeks rather than on a
single instance. No apology vas tendered by the Defendants and
in fact they persisted during the entire hearing
with pleas
that the letters were justified, or that they constituted fair
comment, rather than statements of fact.
On the other hand I note that there vas no specific
evidence from anyone who said that they had thought less of the
Plaintiff because of the publication of the letters. I am also
conscious that the Second Defendant did publish letters which
were supportive of the Plaintiff and which may well have
assisted her in some respects. The First Defendant is
responsible for publishing the letters to the Police and Social
Welfare as well as the letters signed by him and printed in the
Midweek. The Second Defendant is responsible for the
publication of the letters in the Midweek, including the
letters under the name of the First Defendant.
4
39.
Balancing all the factors urged on se by Counsel
for
all the parties, I am of the view that the appropriate award of
damages to the Plaintiff against the First Defendant is $6.000
and additionally to the Plaintiff against the Second Defendant
$6,000. The Plaintiff is also entitled to costs, disbursements
and witnesses expenses to be fixed by the Registrar.
Solicitors:
G.A. Fraser, Dunedin, for Plaintiff
Mitchell & Mackersy, Dunedin for First Defendant
Tonkinson Mood & Adams Bros, Dunedin, for Second Defendant
A.39/87
0. ai l '
IN THE HIGH COURT OF NNW ZEALAND
DUNEDIN REGISTRY
BETWEEN
SHONA YVONNE MARY SAXON
Plaintiff
A N D
TREVOR EDWARD REEVES
First Defendant
A N D
ALLIED PRESS LIMITED
Second Defendant
JUDGMENT OF WILLIAMSON J.