A Brisbane jury has today found John William Chardon guilty of manslaughter over his wife’s disappearance in 2013.
Section of 302 the Criminal Code (Qld) provides that:
“if the offender intends to cause the death of the person killed or that of some other person or if the offender intends to do to the person killed or to some other person some grievous bodily harm… is guilty of “murder”.”
In Weissensteiner v The Queen  HCA 65, it was said that:
“in a criminal trial, hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused.”
In R v White  2 SCR 72, in the Supreme Court of Canada, Major J said that:
“As a general rule, it will be for the jury to decide, on the basis of the evidence as a whole, whether the post-offence conduct of the accused is related to the crime before them rather than to some other culpable act. It is also within the province of the jury to consider how much weight, if any, such evidence should be accorded in the final determination of guilt or innocence. For the trial judge to interfere in that process will in most cases constitute a usurpation of the jury’s exclusive fact-finding role.”
In The Queen v Baden-Clay  HCA 35 (31 August 2016), the High Court held that a jury is entitled to take into account the false denials of an accused in involvement in a person’s death to find that they did intend to cause the death and are therefore guilty of murder. That case also confirms that no direct evidence of the element of intent is required.
The four Plaintiffs in this matter were brothers from Toowoomba known as ‘the Wagners’. Through Wagner Investments Pty Ltd, they had purchased a quarry at Grantham in November 1998 which they later sold on 8 December 2011.
The Wagners also owned a large parcel of land (310 hectares) at Toowoomba Cecil Plains Road, Wellcamp and had constructed Toowoomba Airport on that land.
On 10 January 2011, significant flooding occurred in the Lockyer Valley which resulted in 12 people, including young children being drowned.
The second defendant was Alan Jones, a famous radio broadcaster. On radio station 2GB (which was the first defendant) on 28 October 2014, Jones claimed on his radio program that a ‘Grantham cover-up’ had been ‘orchestrated’. He then claimed that the Wagners were in partnership with entities for whose benefit the cover up was for, and asked whether the Wagners were ‘untouchable’. The following day he again spoke of a ‘Grantham cover up’, suggested that the reasons for the cover up included the Wagners, and said that those doing the covering up had a lot to hide.
On 24 February 2015 Jones broadcast the following words on the radio station of the third defendant 4BC:
“So in July/August last year Alex Douglas met with Palaszczuk re- grant them [Grantham] and gave support to Clive Palmer’s federal parliamentary inquiry into Queensland. Palaszczuk reportedly told Dr Douglas she knew all about Grantham, knew it was a cover up but quoted; it didn’t happen on my watch and she wanted to move on. When the Palmer inquiry was passed by the Senate in September last year Palaszczuk told the media yes she’d be happy to appear before it. By November last year she refused to appear. Why? What was going on? Now we hear that Wagner’s people have been visiting Palaszczuk convincing her or trying to that everything about Grantham is a conspiracy. The whole Grantham thing and she needs to lie low and let it pass. And I understand that Stewart the Police Commissioner is terrified that Grantham will be reopened as an inquiry. Annastacia Palaszczuk the new Premier needs to get a judicial inquiry into Grantham up and running immediately.”
Two days later, Jones followed up on 4BC by asserting that the Wagners had ‘mates’ both in town hall and George Street, including Campbell Newman and Jeff Seeney, and implied that the construction of the Toowoomba airport was anything but legal.
On 2GB on 9 March 2015 Jones asserted there was ‘a massive coverup’, suggested that the dam wall on the Wagners’ property had collapsed, linked the construction of the wall to the Wagners doing what they liked and called for a ‘major inquiry’. The following day Jones in an accusatory tone on 2GB stated that:
“Marty Warburton pointed out how it happened. He’d seen 14 floods in 21 years. He said it wasn’t a normal wall of water. He said the water had been diverted out of Lockyer Creek at the Wagners sand plant quarry where a dam wall had been constructed across the creek and the dam wall in the Wagner quarry had collapsed through the force of water.”
On 2GB on 11 March 2015, Jones returned to the Grantham issue and then stated the following:
“This is the airport mob, Wagner used to get his own way, no longer. No admission has been forthcoming from Wagners, the owners of the quarry. As soon as they knew they were in trouble though, they sold it. And that was the quarry – they were the quarry walls that burst and a veritable tsunami ensued…
“You see, the Wagner Brothers are used to getting their own way, doing as they liked. Build an airport – no environmental impact statement, no health impact statement, no community impact statement, no water impact statement, nothing, just build it. No compensation for those living in hopeless proximity to the airport. “As soon as they knew they were in trouble though, they sold it”.
On 11 March 2015, Jones on 2GB said that:
“… it now appears that the Toowoomba-based Wagners are in the eye of the storm. They thought they could get away with building an airport without seeking proper approvals because they had a gutless council, The Toowoomba Regional Council, and they had the Newman Government’s ear so the community were walked all over. Then the quarry; they created a wall around the Grantham sand quarry. Typically Wagners; what they didn’t need from the process they just parked alongside the quarry and built it up, and up, and up, and up, creating a massive wall. Wagners dishonestly have said it was part of the natural landscape; that’s a lie, it was man made. The quarry then became a bathtub, and at a focal point in the 2011 floods the weight of the water collapsed the embankment wall, and a tsunami happened in seconds.”
On 17 March 2015, Jones had an interview with the fourth Defendant and journalist, Nick Cater on 2GB. Jones largely repeated his comments from 11 March 2015. Cater stated that:
“It never seemed to make any sense at all to me, the line that was being put by the official flood commissions that this was simply an act of God, that nothing could be done to avoid this because when you go there and look at the evidence on the ground, you talk to people, everything points to one thing and that is this massive wall of water two to two-and-a-half metres high that just came sweeping through the town with no warning whatsoever.
“That had to be started by something and all the evidence points as you just said to the wall at the quarry that collapsed. It was like a break in a dam. The water gushes out with huge velocity and huge force and that was in the end what caused the damage, what kills people.
“It’s very hard to escape the conclusion that if it was not for the quarry wall twelve people would not have lost their lives that day and yet it’s taken so long as you know, Alan, more than four years now of battling to try and get close to the truth, to try and establish the truth. I believe that we are close now and that the [DHI] report backs us all the way on this. It’s still a long way to go.”
Jones and Cater then proceeded to make various criticisms of the Queensland Floods Inquiry and cast doubt on the findings of the hydrologist engaged by the Inquiry, Dr Phillip Jordan. Cater concluded the interview with Mr Jones by calling for a fresh inquiry.
On 27 April 2015, Jones interviewed the then newly elected Queensland Premier, Annastacia Palaszczuk on 2GB. In that interview, Jones stated that:
“In Grantham in your state in 2011, 12 people died when the weight of water, allegedly from a quarry owner owned by the Wagners, became a bathtub. And the weight of the water collapsed the embankment, 12 people had no hope. Will you be calling a long overdue inquiry so that these poor people who are the survivors of this massive tragedy at Grantham can have their say?”
On 6 May 2015 on 2GB, Jones interviewed Mr Warburton, and stated during that interview that:
“You said many locals raised the issue regarding Wagner’s dam and its effect at several community meetings after the event but the issue was always dismissed by authorities… “And you’re convinced that it was the result of a man-made construction in a designated water course and you’ll be making those points.”
On 15 May 2015, Jones claimed on 2GB that a discussion about the inquiry into the Grantham floods had recently occurred in Rockhampton between John Wagner, Barnaby Joyce and Warren Truss, I which it was said “that we need to cover each other’s backs in this, you look after us and we’ll look after you”. Jones then claimed they were ‘running scared’.
On 25 May 2015, Jones again claimed on 2GB there was a cover up and suggested it was for the benefit of ‘Wagner and Co’. He also suggested the Wagers were involved in ‘dirty deals’, that crimes had been committed, and that Heather Brown and her husband Dr David Pascoe had been burgled for pursuing the truth.
On 26 May 2015, Jones suggested on 2GB that the approval for the Wagner’s airport involved the stealing of airspace from the Oakey air base which would eventually lead to its closure for their “own selfish, greedy purposes”. Jones also described the Wagers as ‘hypocrites of the year’ who were on “a little comedy routine to convince the poor old Darling Downs punter that they really care” and that “they’ve got as much hide as Jessie the elephant”.
Whilst on Sky News on 2 June 2015, Jones stated that:
“But the big thing that she’s done to date is the whole question of Grantham; the inquiry into the floods, and the feeling by many that the quarry dam wall broke. Well quite extraordinarily I had a call this week from someone who was on the Lockyer Council back in 1989 – I’ve got to be careful in terms of what I say – but he was telling me that if his memory served him correctly Wagner’s were never meant to have any overburden left on the site, let alone use it as a wall. In other words what you didn’t want had to be carted away. And this is of course the wall that broke, and the tsunami that followed. And my caller said that either of two things had occurred; that Wagners deliberately ignored that ruling that they were never meant to leave any overburden on the site, or they had it specially altered or changed with some of their mates in Government.”
On 4 June 2015, Jones stated on 2GB that:
“… I made this point on television the other night but with this Grantham inquiry in Queensland being all the talk in that part of the world.I was talking to someone who was on the Lockyer Council back in 1989. And he told me that if memory served him correctly, Wagners were never meant to have any over-burden left on the site – let alone used as a wall. This, of course, is the wall that the locals argued broke and the tsunami followed and people were dead.And my informant told me that either of two things have occurred: Wagners deliberately ignored the ruling that they were never meant to leave any overburden on the site, or some of the mates changed the rules. Either way, it starts to explain why people are running for cover. And why in fact there may have been a cover up.”
On 16 June 2015, Jones stated on 2GB that:
“So how many sweetheart deals are this mob worried about that will be unearthed by the Grantham Inquiry? Mr Sofronoff will be examining everything. Might it extend to the Wagner Airport, and how they were given the airspace over Oakey for nothing – national air space? I’m telling you they’re all in this, and there’s Federal money. And who is picking over the Federal money to look after themselves? There was a conference in Canberra yesterday, big money being talked, big gifts, big money to hand out. Who’s going to get it? As was said at Beef Week we need to cover each other’s backs, you look after us and we’ll look after you. Well I for one will be watching closely where this Federal Government money goes. Does Mr Wagner have his hand out again? Mr Truss yesterday in Canberra was talking about planned beef roads and dams; who’s going to build them? Where’s the money going to go? Is that what was meant by we need to cover each other’s backs, you look after us and we’ll look after you? Well I’ve got news for all of them; whether in Canberra or not these sweetheart deals with Wagner or anybody else will be closely examined in the light of the Grantham Inquiry and they will be revealed. And if the boys are in on the deals then the deals and the boys will be made public.”
On 22 June 2015, Jones stated on 2GB that:
“Just on the Grantham inquiry, I won’t go into detail of the unspeakable cover ups that have occurred in relation to the tragedies of 2011… all withheld evidence. I mean you’ve started with Golder Associates undertaking this geotechnical work on the Wagner quarry. Interesting the geotechnical investigation has the full cooperation of Boral to whom Wagner sold the quarry in a hurry after the flood, so it will be interesting…”
On 20 July 2015, Jones on 2GB referred to the Toowoomba-based company, Wagners, as “the darlings of the Coalition in Queensland and in Canberra” who built the airport in Toowoomba, remember, without seeking proper approvals.” With a particular vocal emphasis, he asserted the Wagers were “gifted Oakey air space”. Jones went on to suggest that over burden had created a massive wall along the quarry which had collapsed due to the weight of water, and that an inquiry was commencing that day “to end the cover up”.
On 21 July 2015, Jones had an interview with Cater on 2GB concerning the first day of hearings of the Grantham Floods Inquiry. Jones once again referred to a ‘cover up’ and quoted Sault Holt QC saying that “the suggestion that the quarry wall, the Wagner quarry, didn’t have a substantial impact on the behaviour of the flood waters is something that at least on its face may not pass the sanity test”.
On 22 July 2015 on 2GB, Jones was effusive in his praise of the inquiry’s’ witnesses and the Commissioner, whilst directing derogatory comments and tone for the Wagners, including references to Denis Wagner “covering his face” and the Wagners being “finished”.
On 24 July 2015, Jones among other statements again asserted on 2GB that there was ‘a cover up at Grantham’ which was related to an alleged conversation in Rockhampton between John Wagner and Warren Truss.
On 28 July 2015, Jones, in a sensationalist tone, suggested on 2GB that the Wagners had intimidated potential witnesses and referred to Wagner’s account of the wall being part of the landscape as “rubbish”.
On 29 July 2015, Jones again discussed the inquiry on 2GB and made numerous remarks, including the following:
“Yesterday it was quite clear from all the aerial footage, the pictures, and the verbal descriptions that the quarry wall held back a massive amount of water. When the wall collapsed the water went straight across the full quarry and cannoned north east, hit Tommy Friend’s house, Johnny Sippel’s house, and then cannoned down to Grantham… It’s down to one question that now hangs over the whole thing; did Wagners build the wall by not taking the rubbish away? Clearly the eye witnesses who’ve testified believe that they did. Wagners will now say it was there when they bought the quarry. Someone’s not telling the truth. Denis Wagner’s in the dock today, this is straight out of MGM.”
On 31 July 2015, Jones asserted on 2GB that Denis Wagner “was admitting everything he’d previously denied” and that the Wagners had dumped overburden along the creek “contrary to the conditions which allow them to mine the quarry” and that Wagners were at their very, very worst”. Jones also ridiculed Denis Wagner’s assertion that the flood had impacted on their business and asked of the Wagners “What kind of selfish, insensitive grubs are these people?”.
On 4 August 2015, Jones provided commentary on 2GB about Denis Wagner’s evidence at the flood inquiry, claiming that “it wasn’t a pretty sight” and asserting that Wagner had now admitted on oath what he had previously denied. Jones asserted that there was footage which showed what happened at Grantham and again spoke of a cover up in which people were being protected.
On 11 August 2015, Jones spoke with Amanda Gearing on 2GB about her submission to the flood inquiry and her view that the Wagners’ quarry exacerbated the flood, a view that Jones explicitly endorsed.
On 18 August 2015, Jones, after reading various opening statements from the flood inquiry, opined on 2GB that it was:
“… inevitable that 12 people would be killed. There have been floods of that kind in Grantham before, no one died. But here was this wall, massive wall – it shouldn’t have been built – illegal. The water, water, building up, billions of litres of water, the wall cracks goes whoosh, bang, nowhere to go, heads towards the railway line, nowhere to go, but the wall, the water wouldn’t have been near the railway line if it hadn’t been banked up behind the quarry wall. We’ve had similar floods in Grantham, of the same dimension, no one lost their life. But of course, the defence that the wall didn’t contribute to the flooding reminded me of Mandy Rice-Davies, way back in the 60s, in the famous Profumo affair, when she said oh Profumo, well he would say that, wouldn’t he. And they would say that.”
On 20 August 2015, Jones discussed the hydrology report and evidence given by Dr John Macintosh to the Grantham Floods Inquiry on 2GB. Jones opined that “you put in a levee bank to solve one problem, and you can cause another”, and that Dr Macintosh’s report “didn’t pass the sanity test”, among other things.
The Wagners sued Jones, 2GB, 4BC and Cater in respect of the above broadcasts.
In order to establish that they have been defamed, a plaintiff must prove the following three elements:
Once a plaintiff has established these three elements, the defendant must in order to successfully defend the claim establish one of the available defences under the Defamation Act 2005 (Qld).
Section 18 of the Defamation Act provides as follows:
“Effect of failure to accept reasonable offer to make amends
(1) If an offer to make amends is made in relation to the matter in question but is not accepted, it is a defence to an action for defamation against the publisher in relation to the matter if—
(a) the publisher made the offer as soon as practicable after becoming aware that the matter is or may be defamatory; and
(b) at any time before the trial the publisher was ready and willing, on acceptance of the offer by the aggrieved person, to carry out the terms of the offer; and
(c) in all the circumstances the offer was reasonable.”
Section 25 of the Defamation Act provides as follows:
“Defence of justification
It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.”
Section 29 of the Defamation Act provides as follows:
“29 Defences of fair report of proceedings of public concern
(1) It is a defence to the publication of defamatory matter if the defendant proves that the matter was, or was contained in, a fair report of any proceedings of public concern.
(2) It is a defence to the publication of defamatory matter if the defendant proves that –
(a) the matter was, or was contained in, an earlier published report of proceedings of public concern; and
(b) the matter was, or was contained in, a fair copy of, a fair summary of, or a fair extract from, the earlier published report; and
(c) the defendant had no knowledge that would reasonably make the defendant aware that the earlier published report was not fair.
(3) A defence established under subsection (1) or (2) is defeated if, and only if, the plaintiff proves that the defamatory matter was not published honestly for the information of the public or for the advancement of education.
(4) In this section –
proceedings of public concern means –
(f) any proceedings in public of an inquiry held under the law of any country or under the authority of the government of any country …”
Of the 32 matters complained of, Justice Flanagan determined that 76 of the pleaded imputations were conveyed from the abovementioned broadcasts, including the following:
Whilst Justice Flanagan determined that many of the imputations alleged by the Wagners were made out, some were not made out. Furthermore, with respect to the broadcast of 27 April 2015, Justice Flanagan held that it did not contain any defamatory imputations.
The Wagner’s claim against Cater was dismissed as Justice Flanagan found that he did not expressed agreement nor conduce with Jones’ defamatory statements.
Of the imputations concerning claims that the Wagners had constructed a dam wall which had exacerbated the floods and caused/were responsible for the deaths of 12/13 people, 2GB and Jones pleaded a defence of justification under section 25 of the Defamation Act. Justice Flanagan rejected the conclusions of the expert evidence led for the defendants at trial and determined that the defendants had failed to establish the substantial truth of these imputations.
Of the imputations concerning claims that the Wagners had engaged in a cover up, 2GB and Jones again pleaded a defence of justification under section 25 of the Defamation Act. Justice Flanagan found Denis Wager to be a reliable and honest witness and determined that 2GB and Jones had failed to establish the substantial truth of these imputations.
Similarly of the imputation concerning claims that the Wagners had engaged in bullying and intimidation, 2GB and Jones again pleaded a defence of justification under section 25 of the Defamation Act. Justice Flanagan accepted the evidence of John and determined that 2GB and Jones had failed to establish the substantial truth of this imputation.
Of the imputations concerning claims that the Wagners had built an airport illegally or otherwise improperly, 2GB and Jones again pleaded a defence of justification under section 25 of the Defamation Act. Justice Flanagan once again determined that 2GB and Jones had failed to establish the substantial truth of these imputations.
Of the imputations concerning claims that the Wagners were selfish and greedy, 2GB and Jones again pleaded a defence of justification under section 25 of the Defamation Act. Justice Flanagan once again determined that 2GB and Jones had failed to establish the substantial truth of these imputations.
The defendants also sought to rely on the defence of fair report of proceedings of public concern under section 29 of the Defamation Act for 10 of the defamatory imputations, however Justice Flanagan held that they had failed to establish this defence with respect of any of the 10 defamatory imputations in question.
The defendants also sought to rely on the defence of failure to accept reasonable offer to make amends under section 18 of the Defamation Act. The offer in question was to apologise to the Wagners, pay them $50,000 each and pay their reasonable expenses. Justice Flanagan determined that the sum of $50,000 for each of the Wagners was ‘wholly inadequate’ and therefore this defence failed.
As a result of the above findings, the amount of damages to be awarded to the Wagners was the remaining question which had to be determined. Justice Flanagan found that the publican of the defamatory matters was ‘very extensive’, based on the audience figures (which only included city listeners) and the evidence of the ‘grapevine effect’ resulting in the Wagners being regularly asked about the matters concerning the defamatory publications. Justice Flanagan also found that “The 80 imputations conveyed are, in my view, extremely serious and of the gravest kind”. Justice Flanagan also observed that the Wagners’ evidence concerning their hurt feelings, including humiliation and feelings of helplessness were not challenged by the defendants.
Justice Flanagan determined that Jones had engaged in unjustifiable conduct and was motivated by a desire to damage the plaintiff’s reputation. In particular, Jones had acted with wilful blindness to the truth or falsity of what was broadcast, and the tone of the matters and their content were self-evidently vicious and spiteful. He had also failed to make any inquiry of the Wagners, to ascertain responses or to inform the Wagners. Jones’ conduct in repeating a number of defamatory assertions in the course of his evidence was also found to be unjustifiable. For these reasons, the awarding of aggravated damages was appropriate.
As a result of these factors, the court ordered that:
This matter arose out of Alan Jones’ apparent conviction that a wall on the Wagners’ quarry had caused the deaths of 12 people and that a high-level cover up had occurred to hide this (among other claims). The problem for Jones, 2GB and 4BC was that there was insufficient evidence to support these claims, and in fact two flood inquiries had found that the Wagners property had not exacerbated the flood at Grantham. Compounding this were the gratuitous and unfair attacks on the Wagners’ characters, as well Justice Flanagan’s findings that Jones was motivated by malice and had shown wilful blindness to the truth or falsity of what was broadcast. All of these factors contributed to a substantial sum in damages being awarded in favour of each of the Wagners.
2GB and 4BC were vicariously liable for Jones’ conduct whilst broadcasting on their radio stations. This case is a good example of how serious allegations should be made and presented as fact by publishers when there is little or no evidence to support them. Such conduct can destroy the reputation of others, as it did in this case. The Wagners had little other recourse than to sue for defamation in order to salvage their reputations. Because the allegations turned out to be untrue and/or unproven, liability was established.