Bale Boshev - Defamation Court Reports

Channel 9 defames Australian Federal Police informer.

In March 2007, Bale Boshev were successful in the first part of a Supreme Court defamation case against Channel 9, the publishers of the Sunday program. A jury of 4 found that former federal police informer Kevin John Enniss was defamed by the Sunday program which went to air in February 2002 and which alleged he was a people smuggler.

Under the relevant legislation (there have been changes in 2005), a jury was required to determine two questions:
1. Whether certain imputations (“meanings”) about Mr Enniss were conveyed by the program, and
2. If they were, whether they were defamatory of him.
The jury found nine of 16 imputations pleaded by Kevin Ennis were conveyed and defamatory.
They included:

• The plaintiff (Mr Enniss) is a smuggler of illegal immigrants.
• The plaintiff is a crook.
• The plaintiff is dishonest.
• The plaintiff is a double-crosser.

Channel 9 defames Australian Federal Police informer, again
In a second case, Kevin John Enniss sued Channel 9 for other allegations made about him in other Sunday programs televised in 2002

Enniss was successful in relation to a follow-up Sunday program in September 2002, The Federal Police and People Smugglers, and a short intro broadcast in February 2002.
On 15 April 2008, Bale Boshev Lawyers were again acting for Mr Enniss when another Supreme Court jury of 4 found nine out of ten imputations conveyed and defamatory, including that he is a people smuggler

Some of the imputations alleged to arise out of the follow-up programs included:

• The plaintiff carried out one of the world’s most successful people smuggling rackets.
• The plaintiff is a people smuggler.
• The plaintiff was involved in deliberately sinking boats packed with asylum seekers.
• The plaintiff took money from asylum seekers on the promise that he would get them into Australia and then double-crossed them by turning them over to the authorities.
• The plaintiff is a criminal.

Enniss’ second defamation action pitted two of the wiliest defamation barristers against each other once again.

Clive Evatt, barrister for Enniss, told the jury Enniss was referred to as a people smuggler “at least 20 times” and a criminal “about 30 times” and the allegations were “screamingly apparent”.
He told the jury that, “as horrendous as they [the allegations] are, you’re not entitled to assume they’re true”.“Television programs can make mistakes; they can get things wrong,” he said, before adding, “The plaintiff doesn’t get one cent because of what you decide.”

He said Enniss was portrayed in the program as a people smuggler and double-crosser who deceived both the AFP and asylum seekers.
“Mr Enniss is painted as one of the most despicable people ever – a scoundrel.”
Evatt concluded by urging the jury to find all the imputations conveyed and defamatory.
“It’s unarguable”, he said of the defamatory nature of being called a people smuggler.
Evatt stressed the “powerful” nature of the imagery, before handing over to Bruce McClintock SC, whom he described as “a Dalek with a smile”.

McClintock denied any such resemblance before submitting to the jury that the ordinary reasonable viewer gets “an overall impression, not a series of statements”.
“The focus of the program is that the Australian Federal Police are not telling the truth about what’s going on… just look at the footage, it’s all about the federal police… the theme is whether the AFP may have committed crimes.”

He contended that the program explained why Enniss was not in fact a people smuggler.
“If he was working for the AFP, he wasn’t a people smuggler because he was trying to stop people smuggling.”

He quoted Coulthart’s statement that, “He [Enniss] held himself out as a people smuggler” as evidence of what Sunday was saying.
McClintock was dismissive of Enniss’ claims, including that he was portrayed as a criminal.
He argued that the jury should find that the imputations alleged by Mr Enniss were simply not conveyed by the programs, and asked them to find in favour of Channel 9.

The s.7A jury did no such thing, delivering a definitive verdict for the plaintiff.
It found 9 out of the 10 imputations pleaded were conveyed by the programs and were defamatory of Enniss.

Mr Enniss’ two cases have now been consolidated and will be heard together. The juries, haven completed their tasks, take no further part in the proceedings. The case has been listed for a hearing in November 2008 before a Supreme Court judge sitting alone.
In the further hearing of the matter, the judge will hear and determine any defences Channel 9 may have – that is, whether they were “justified” in publishing the programs. If the judge finds that the programs were unjustified, he will then go on to determine what damages should be paid to Enniss to compensate him for his hurt distress and humiliation.
Stay tuned.
June 2008