Case Law, Australia: Moran v Schwartz Publishing Pty Ltd, CSI Lismore: German backpacker’s efforts to prevent publication of book all in vain – Justin Castelan

27 02 2015

tobias-moranIn early 2005, the plaintiff, a German National with a working visa in Australia, was travelling along the east coast of Australia in a campervan with his German girlfriend of 6 and a half years, Simone Strobel. By the time they got to Lismore, they had been joined by the plaintiff’s sister, Katrin and another friend from their village in Germany called Jens.

In February 2005, while the party of 4 camped at the caravan park in Lismore, Simone disappeared and her body was found 6 days later, 90 metres from the camp site under a pile leaves. How she died remains a mystery.

In 2007, a coronial inquest took place in relation to her death and one of the observers was Virginia Peters, who was to write a book about the case. The Coroner made the finding that Simone died on 12 February 2005, and that it was more likely than not, that she died from suffocation or asphyxia, which was caused by the action of a person unknown.

In 2014, Ms Peters (the second defendant) wrote a book, “Have you Seen Simone?”, and it was set to be published by the first defendant, both in physical hard copy and in electronic format. The plaintiff urgently ran off to the West Australian Supreme Court and sought an interlocutory injunction, seeking to prevent the publication of the book. He argued that the book carried an imputation that he was guilty of murdering Simone.

The defendants argued that the book carried an imputation that there were reasonable grounds to suspect that the plaintiff was guilty of the murder, and they were going to argue that such an imputation was true.

In a judgment handed down on 23 September 2014 (Moran v Schwartz Publishing [2014] WASC 334) Kenneth Martin J accepted that there did exist facts which comprised reasonable grounds to suspect the plaintiff. Those included:

  • As at February 2005, while the plaintiff and Simone had been in a relationship for six and a half years, their diaries revealed that their relationship had deteriorated and in the days before the death, they were arguing;
  • There had been some verbally aggressive behavior from the plaintiff towards Simone on the evening she was last seen alive;
  • On the evening before Simone disappeared, the party of four had been observed to have drunk excessive amounts of alcohol and it was also suggested they had marijuana;
  • There was evidence of an argument involving Simone and the plaintiff at the caravan park before she walked off that evening;
  • The remaining party of 3 were the last people to see Simone alive before she disappeared; and
  • Simone’s body was found 6 days later, only 90 metres from the camping site and covered by palm branches.

While His Honour found that none of this was conclusive in establishing the plaintiff’s guilt, there was enough to create reasonable grounds for a suspicion of guilt.

The judge considered the authorities on injunctions in relation to potentially defamatory publications and concluded that the position in Australia was more flexible than that in England, where if a defendant stated that it was going to plead truth, it is virtually impossible to get such an injunction.

The question in this case was where the balance of convenience lay. A critical factor for Kenneth Martin J was that since 2005, there had been a large volume of material that had appeared on the internet canvassing the death of Simone and suggesting involvement by the plaintiff. The defendants produced 90 pages of this in evidence.

Also, in 2011, Channel Seven broadcast a show “Sunday Night” where it unequivocally asserted that the plaintiff killed Simone. That show remained accessible on the internet at the time of the hearing.

His Honour also acknowledged the public interest in freedom of speech, the fact that the plaintiff did not live in or have assets in WA (and so that effected the value of any undertaking as to damages that he could give) and what His Honour concluded were the respectable defences raised by the defendants. In the end: no injunction granted, the plaintiff’s proper remedy is in damages.

Whether there is a trial or not in 2015, remains to be seen. If not, a version of the case will probably appear on one of the 47 murder mystery shows in the USA. Surely, they will run out of ideas soon…

This post originally appeared on the Defamation Watch blog and is reproduced with permission and thanks.


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