Former Kiwi diplomat who sued Ian Wishart loses 3-zip
SUPREME COURT THROWS OUT DEFAMATION VERDICT AGAINST JOURNALIST
AUCKLAND, 18 December 2015 — “Two weeks of their lives wasted” – a Wellington High Court jury that found journalist Ian Wishart guilty of defamation in 2013 have had their verdict thrown out by the Supreme Court.
The jury verdict had originally been quashed by the High Court judge who sat through the trial, and the decision to overturn the $270,000 ruling against Wishart and three others was also backed up by the Court of Appeal earlier this year.
Now, plaintiff Lindsay Smallbone – a former kiwi diplomat named a fraudster by Britain’s highest courts for his role in a $150 million theft – has been told by the Supreme Court he has no chance of getting his defamation win reinstated, when the Court refused to give him leave to make any further appeal.
“He may have been able to charm a jury,” Ian Wishart said today, “but Smallbone has failed to convince a total of seven judges in three separate courts that his defamation win should be allowed to stand after we uncovered explosive new evidence. I feel sympathy for the jury – that’s two weeks of their lives wasted reaching a verdict they should never have reached. We always argued the jury got it wrong on the original evidence, but the new evidence made the verdict absolutely untenable.”
Despite being deeply implicated in a massive European fraud case, Smallbone claimed his reputation had been harmed when his ex-wife made comments about his sexual antics in a book about her life called “The Hunt”.
The original High Court trial was a “he said/she said case” where the jury had to toss a coin over who they ultimately believed. They chose to believe Lindsay Smallbone. But soon after the trial another woman, Witness Z, came forward with highly credible evidence that she too had suffered similar things to Smallbone’s ex-wife.
The first to rule against Smallbone was the High Court judge who had led the two week trial in July and August 2013. He called the new evidence “a game-changer” and he threw out the jury verdict and quashed the $270,000 damages award, ordering a full retrial – almost unprecedented in New Zealand defamation history.
Smallbone appealed, arguing the High Court had no power to overrule a jury verdict, but lost when three senior judges of the Court of Appeal blasted him and his legal team this year over the way he had conducted his case. The Court of Appeal described the new evidence as potentially powerful and said that in a “he-said, she-said case, where the only two eyewitnesses to an encounter give conflicting evidence about what passed between them, evidence of a third person that established a relevant propensity is unquestionably capable of satisfying the jury”.
Now, three Supreme Court judges have upheld the two lower court rulings by refusing Smallbone leave to make a final appeal. The Supreme Court commented:
“Even if Williams J should not have recalled his judgment and there was no jurisdiction to order a retrial, there would have been a right of appeal against the judgment. The issue of new evidence could have been raised on appeal. It is implicit in the Court of Appeal’s finding that the evidence of Witness Z was sufficiently credible, fresh and cogent that the appeal would have been allowed. Given this, there would be no practical benefit in an appeal to this Court on the question of jurisdiction.
“Further, the Court of Appeal’s findings relating to Witness Z were concurrent findings with those of the High Court. They are factual findings relevant to the particular circumstances of this case.”
The Supreme Court ruling means Lindsay Smallbone has now lost his defamation case three-zip, says Wishart.
“The High Court threw out the jury verdict and ordered a full retrial, so officially Smallbone never won the High Court case. That decision has now been upheld by all the appellate courts. Whether Smallbone chooses to go through a new trial and any appeal process that follows, we will have to wait and see, but certainly the defendants are prepared for it,” Wishart says.
The case sets an important precedent on the power of judges to overturn jury verdicts in defamation cases.
Lindsay Smallbone was represented by top defamation lawyer Peter McKnight and barrister Ali Romanos. Defendants George and Paulette London were represented by barrister Chris Tennet and Wanganui lawyer Stephanie Burlace, and Ian Wishart represented himself.
Publicly available court rulings are:
Supreme Court: http://www.nzlii.org/nz/cases/NZSC/2015/192.html
Court of Appeal: http://www.nzlii.org/nz/cases/NZCA/2015/391.html