Fortune telling and its detractors in 1980s Dunedin.

Case reviewed: Saxon v Reeves, High Court, Dunedin; and Court of Appeal
HC Dunedin A39/87, 6 March 1989; CA 134, 17 December 1992

Background

Ms Saxon was a welfare beneficiary who advertised her services as a psychic medium. She provided psychic readings to clients at her home in Mornington at a rate of $15 per 15 minutes (about $27.50 today).

Mr Reeves, also a welfare beneficiary, was a member of the New Zealand Committee for the Scientific Investigation of Claims of the Paranormal – also known as the Skeptics.  This group sought to expose as frauds those who claimed to have paranormal abilities.

The claim concerned a number of statements Reeves had written about Saxon in letters he sent to the Department of Social Welfare, Citizens Advice Bureau, the Police, the Solicitor-General, and several letters-to-the-editor that were published in the now-defunct Dunedin Star Midweek.

Ms Saxon perceived that Mr Reeves was a “self-appointed busybody”, and sued him on the basis that readers of Mr Reeves’ statements understood them to convey that Ms Saxon had

• obtained a benefit fraudulently;

• misled and upset disturbed people on welfare benefits;

• taken money for fraudulent advice;

• breached s 16 of the Summary Offences Act (which prohibits the provision of paid psychic readings where there is an intent to deceive the recipient); and

• persuaded people to go off properly prescribed medication.

Reeves defended his publications on the basis that they were:

• true; or

• fair comment made in good faith and without malice on a matter of public interest; or

• published on an occasion of common-law qualified privilege.

Trial

Saxon called evidence from previous clients—including a lawyer—who stated their satisfaction as to her claims of psychic powers.

Reeves called a number of witnesses, including university lecturers as expert witnesses, who all suggested Saxon had employed fraudulent techniques, such as ‘cold reading’ – a technique whereby spirit mediums claim they can see or hear spirits of deceased relatives, while in fact giving only vague general statements that could apply to anyone.

Judgment at trial

Justice Williamson held the words published were defamatory of Ms Saxon, and that Mr Reeves had not succeeded with any of his defences.

Williamson J was not convinced that Saxon had psychic powers, though he was impressed with her as a witness.  The Judge stated his impression of her that she was “a forthright, no nonsense, outspoken, talkative person of moderate, although not great, intelligence … [who] certainly did not appear to be well educated”. The judge was unimpressed with the inconsistency between Saxon’s poor record-keeping in respect of her psychic-reading clients, and yet her ability to apply for a benefit correctly.  Most importantly, though, the judge stated that there was nothing in her evidence to suggest any doubt or insincerity as to her claims that she was able to receive communications from spirits.

The Judge was unimpressed with Mr Reeves’ evidence.  The judge described Mr Reeves as an “evasive” witness, and as someone who enjoyed gossiping about Saxon.

The Judge held the defence of truth was not made out – essentially because he did not believe that Ms Saxon had deliberately set out to deceive clients.  The defence of fair comment failed because the Judge found the material parts of the publications were allegations of fact and not expressions of opinion.

The Judge held that the occasion of publication—reporting suspected crime—was clearly an occasion of qualified privilege.  However, he also held that Reeves’ statements were actuated by malice—which defeated the privilege—on the basis that Mr Reeves’ gratuitously attacked Ms Saxon’s personal integrity: “playing the man and not the ball”.

Williamson J fixed damages at $6,000 (about $11,000 today).

Reeves appealed.

Judgment on appeal

The Court of Appeal, comprising Cooke P, and Gault and Thomas JJ, overturned the High Court judgment in several respects, though Saxon’s claim survived in material respects.

First, the Court of Appeal found that the meaning that Saxon obtained a benefit fraudulently was true because she had failed to report her income properly to the tax authorities.

Secondly, it held that in respect of the publications made to the Police and the Social Welfare Department, insufficient evidence of malice had been presented in order to rebut the privilege attaching to these publications.

Thirdly, for the existing publications which were defamatory and for which no defence was available, the Court reduced the damages to $4,500 (about $7,250 today).

Comment

While this case is obviously interesting for its peculiar factual basis, the Court of Appeal made important comments on the issue of malice, which helped to inform the law as understood today.

Centrally, the Court of Appeal held that malice stood or fell on the basis of whether the privileged motivation for publishing the matter complained of was the dominant motive.  In this case, the Court held that Reeves’ dominant motivation for publishing the matters to Police and the Social Welfare Department was the reporting of suspected crime—a privileged motivation—and that he was not out predominantly to cast aspersions on Saxon.  Therefore, the privilege survived in respect of these two publications.

The material difference between the trial judge’s findings and those of the Court of Appeal, was the emphasis placed on the issue of “dominant motive” in respect of malice.  This case predates the Defamation Act 1992, which has since clarified what is required to displace qualified privilege. Section 19(1) provides:

In any proceedings for defamation, a defence of qualified privilege shall fail if the plaintiff proves that, in publishing the matter that is the subject of the proceedings, the defendant was predominantly motivated by ill will towards the plaintiff, or otherwise took improper advantage of the occasion of publication.

Interesting fact

Only a few years after case, both the trial judge (Williamson J) and the plaintiff’s counsel (Jim Conradson) were involved in the first Bain murder trial.  Williamson J was the trial judge in Bain; and Mr Conradson was the Dunedin coroner at the time of the murders.