JABBIE -v- GBANGAYE [2025] WASC 73

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : JABBIE -v- GBANGAYE [2025] WASC 73

CORAM : TOTTLE J

HEARD : 7 – 8 OCTOBER 2024

DELIVERED : 7 MARCH 2025

FILE NO/S : CIV 1942 of 2022

BETWEEN : CHARLENE EMINATA JABBIE
Plaintiff

    AND

    SUSANNA GBANGAYE
    Defendant

Catchwords:

Defamation – Podcast livestreamed on Facebook page – Recordings of podcast uploaded onto Facebook page – Podcast conveyed defamatory imputations including imputation plaintiff complicit in murder – Podcast published extensively to community of which the plaintiff a member – Justification defence unsuccessful – General and special damages awarded – Injunction granted to restrain further publication – Turns on own facts
Defamation – Defences – No defence that imputations repeat allegations or rumours circulated by third parties

Legislation:

Defamation Act 2005 (WA)

Result:

Judgment for the plaintiff

Category: B

Representation:

Counsel:

Plaintiff : In Person
Defendant : In Person

Solicitors:

Plaintiff : In Person
Defendant : In Person


Cases referred to in decision:

Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9
Armstrong v McIntosh [No 4] [2020] WASC 31
Associated Newspapers Ltd v Dingle [1964] AC 371
Bristow v Adams [2012] NSWCA 166
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] UKHL 3; AC 1027
Cerutti v Crestside Pty Ltd [2014] QCA 33; [2016] 1Qd R 89
Costello & Abbott v Random House Australia Pty Ltd (1999) 137 ACTR 1
Crampton v Nugawela (1996) 41 NSWLR 176
Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254
John Fairfax Publications Pty Ltd v O’Shane (No 2) [2005] NSWCA 291
King v Telegraph Group Ltd [2004] EWCA Civ 613
Lazos v West Australian Newspapers Ltd [2024] WASC 238
March v E & MH Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460
Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500
Selecta Homes & Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd [2001] SASC 140; (2001) 79 SASR 451
Stocker v Stocker [2020] AC 593
Triggell v Pheeney (1951) 82 CLR 497
Trkulja v Google [2018] HCA 25; (2017) 263 CLR 144
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Webb v Bloch (1928) 41 CLR 331
Wilson v Bauer Media Pty Ltd [2017] VSC 521
Wright v De Kauwe [No 2] [2024] WASCA 51

TOTTLE J:
Introduction
1 In this defamation action the plaintiff claims she was defamed in a podcast livestreamed on Facebook by the defendant, a self‑styled ‘talk‑show host’. The podcast concerned the murder of Ms Janet Dweh. It was livestreamed on 30 October 2021. Some three weeks earlier the plaintiff’s husband, Mr Hassan Jabbie (from whom the plaintiff was separated) had been arrested and charged with Ms Dweh’s murder. In June 2024, after a trial before a judge and jury, Mr Jabbie was convicted of murdering Ms Dweh. He has been sentenced to life imprisonment.
2 The plaintiff, the defendant and Ms Dweh came to Australia as part of a group of 376 refugees from Liberia resettled by the United Nations High Commissioner for Refugees in January 2005.
3 In the podcast the defendant made statements about the plaintiff including statements to the effect that the plaintiff was complicit in the murder of Ms Dweh, that she was a violent person, that she had harassed Ms Dweh during her lifetime, that she was evil and had engaged in witchcraft. The statements were grossly defamatory of the plaintiff. They were indefensible and constituted a vicious attack on the plaintiff’s reputation. The defamatory statements were calculated to vilify the plaintiff.
4 The murder of Ms Dweh shocked the Liberian community in Australia and, understandably, was the subject of considerable interest in the community. The livestreamed podcast and recordings of it posted to the defendant’s Facebook page were widely viewed.
5 The plaintiff has represented herself throughout the action. The defendant’s defence was prepared by a lawyer but otherwise she has represented herself. As explained in the next section of these reasons the defendant raised several matters in her defence but none of them had any merit. There will be an award of general damages in the plaintiff’s favour in the sum of $325,000 and an award of special damages in respect of economic loss of $70,400.
An outline of the issues
6 The podcast was divided into two parts and generated two recordings. In the statement of claim the plaintiff treated the two parts of the podcast as separate defamatory matters.
7 The defendant admitted livestreaming the podcast. There is no issue that the livestreaming constituted a publication of the words spoken by the defendant during the podcast for the purposes of the law of defamation. The defendant denied however that she uploaded the recordings of the podcast to her Facebook page.
8 The defendant denied that the most serious imputations pleaded by the plaintiff were conveyed by the podcast. Relatedly, she also contended the recordings of the podcast tendered by the plaintiff had been edited to delete her use of the words ‘allegedly’ and ‘I believe’ to qualify the comments she made about the plaintiff.
9 The defendant admitted a number of imputations and sought to justify them. In particular, she sought to justify that the plaintiff was a violent person. She contended the plaintiff had cut or bitten off the ear of a woman when she lived in the Laine refugee camp in Guinea. This allegation occupied a disproportionate amount of time at trial.
10 The defendant also contended some of her comments did not relate to the plaintiff.
11 In response to the plaintiff’s claim that she suffered emotional and psychological distress as a result of the comments made about her and the reaction of the Liberian community to those comments, the defendant says that the plaintiff was referred to in mainstream media articles in the period following the murder and those references and the reaction they generated among the Liberian community were the cause of the plaintiff’s distress.
The evidence
12 The plaintiff gave evidence on her own behalf. Allowing for the difficulties inherent in giving evidence‑in‑chief as a self‑represented litigant, the plaintiff gave a coherent account of the circumstances in which she became aware of the podcast, the distress it caused her when she viewed it on Facebook and the consequent effect on her life. She was cross‑examined by the defendant. Nothing raised in cross‑examination gave me cause to doubt the plaintiff’s evidence. I accept the plaintiff was an honest witness and her evidence was reliable.
13 The plaintiff also called her mother, Ms Hawa Siah Toweh. The primary purpose of calling Ms Toweh appears to have been to deal with the circumstances of the assault the defendant alleges the plaintiff committed in the Laine refugee camp. Ms Toweh also gave evidence about the effect on the plaintiff of the statements made in the podcast.
14 The plaintiff tendered two recordings of the podcast that corresponded with two parts of the podcast. The plaintiff also tendered a bundle of documents comprising comments made by third parties in response to the podcast, documents relevant to the extent of the publication and the damage she suffered as a result.
15 The defendant gave evidence on her own behalf. Her approach to the evidence was disorganised. She was cross‑examined by the plaintiff. Nothing of substance turned on the cross‑examination. The impression I gleaned from the defendant’s evidence and her approach to the trial generally was that she had no appreciation of the consequences of making such serious allegations about the plaintiff. My impression was the defendant thought it acceptable for her to repeat rumours and gossip in the Liberian community. This was illustrated by the extent to which she was prepared to attempt to justify the statement that the plaintiff had cut or bitten off the ear of a woman in the Laine refugee camp even though she was unable to adduce any direct evidence that the statement was true. As noted earlier, the defendant asserted that the recordings tendered by the plaintiff had been edited but she did not support the assertion with any evidence. That the defendant made the assertion and that she seemed to attach such significance to her use of the word ‘allegedly’ and the phrase ‘I believe’ only served to emphasise that the defendant did not understand that she was not protected from liability for defamation merely by attempts to make it appear that she was repeating what others had told her.
16 Other for one issue – whether the defendant received a concerns notice from the solicitors instructed by the plaintiff – no issue turns on my assessment of the defendant’s credit or the reliability of her evidence but I view her evidence generally with considerable caution and, as I explain later, I do not accept her denial of receipt of the concerns notice.
17 The defendant called three other witnesses, Mr Darius Dweh (Ms Dweh’s brother) Ms Masalam Kakia, and Ms Beatrice Wantee. Mr Dweh gave evidence about his knowledge of the relationship between the plaintiff and Ms Dweh. His evidence was to the effect that they were not friends. Mr Dweh’s evidence was not challenged by the plaintiff and I have no difficulty in accepting it. Ms Kakia was also a refugee who had spent time in the Laine refugee camp. It was not clear why the defendant called her as a witness because the defendant adduced no relevant evidence from her. Ms Wantee’s evidence was to the effect that she had known the plaintiff and her mother in the Laine refugee camp and she had accompanied Ms Toweh to a meeting with the woman, whom the plaintiff was alleged to have assaulted, to offer a chicken as compensation. In this respect Ms Wantee’s evidence conflicted with Ms Toweh but for the reasons explained below it is not necessary for me to attempt to resolve that conflict.
The facts
18 The plaintiff and the defendant were forced to leave their country of origin, Liberia, by civil war. With their families they lived and worked in the Laine refugee camp in Guinea, West Africa until 2005.
19 In about 2003, when the plaintiff was about 18 years old and the defendant was nine years old, the plaintiff was involved in a physical altercation with a woman named Martie. Evidence was given about the cause of the altercation but it is not material to any issue in this action. It is sufficient to say I am satisfied the plaintiff was not the aggressor. During the altercation the plaintiff caused an injury to Martie’s ear. This was admitted by the plaintiff though she denied cutting Martie’s ear with a knife or biting Martie’s ear. The altercation was not witnessed by the defendant, Ms Toweh, Ms Wantee or Ms Kakia. The defendant’s evidence was to the effect she was playing nearby and she and her friends were attracted by the noise to the fracas that surrounded the altercation. She said she saw blood on Martie’s neck and was traumatised. As I explain below Ms Wantee says she saw Martie later that day and she had described Martie having a plaster on her ear lobe.
20 I am not satisfied the plaintiff either cut Martie’s ear or that she bit it. Martie’s ear was injured by the plaintiff during the physical altercation between the two women.
21 There was conflicting evidence given about what occurred in the aftermath of the altercation. In particular, there was a conflict about whether Ms Wantee accompanied Ms Toweh to see Martie and offer her a chicken as compensation. Ms Toweh denied that any such event occurred. Ms Wantee was firm in her evidence that it did occur. It is unnecessary for me to resolve this conflicting evidence as nothing turns on it. I accept, however, that Ms Wantee did see the injury done to Martie’s ear and I accept her description of having seen a plaster on Martie’s ear lobe.
22 In 2005 the plaintiff and the defendant and their respective families arrived to live in Perth. They arrived on the same flight. They settled in the same neighbourhood. The defendant attended Balga Senior High School with the plaintiff’s stepson. Each were members of their local Liberian community and would, on occasion, interact with each other within that community. It was apparent though from the defendant’s remarks in opening her case that she believed the plaintiff disliked her. The defendant contended the plaintiff had behaved in an insulting manner towards her parents.
23 The defendant moved to Victoria sometime between 2020 and 2021 and she remains a resident of that state.
24 In this action it was not in dispute that in 2021 Mr Jabbie and Ms Dweh were involved in an intimate relationship. Nor was it in dispute that at the date of her death, 4 October 2021, Ms Dweh was heavily pregnant.
25 Further, it was not in dispute that the plaintiff and Ms Dweh had communicated with each other by text message among other methods.
26 The plaintiff and Mr Jabbie had separated by the time of the murder. There was limited evidence about the marital relationship between the plaintiff and Mr Jabbie but I infer from the plaintiff’s reference to counselling that the relationship had been difficult for some time.
27 The defendant is the host of an online talk show called ‘The Gees’ in which she discusses social and political issues within the Liberian community. On her Facebook page the defendant describes herself as a ‘public figure’ and, in October 2021 was followed by 32,711 people.
28 The Gees podcast is livestreamed. The format of the podcast on 30 October 2021 involved the defendant talking and members of the public calling in to comment on what the defendant was saying. The podcast was in two parts because the defendant was interrupted by a telephone call after approximately 70 minutes. The second part continued for approximately 58 minutes. After the livestreaming, recordings of the two parts of the podcast were posted on the defendant’s Facebook page as separate audio‑visual recordings.
29 Mr Jabbie had been arrested approximately three weeks before the podcast.
30 The defendant’s introductory remarks on the podcast were as follows:
I’m going to stay calm and just give you guys all the full story of what happened to [Ms Dweh] and the individual that killed her and the people that are also attached to her as well … Other people are involved. Other names are in heading and because of my safety and the safety of my friends and family I’m not going to go so much into it. But I will try my best and give you guys as much information as I can.
31 The defendant then showed a video clip on her phone of a Channel 10 news story reporting a ‘breakthrough’ in Ms Dweh’s murder case.
32 In the statement of claim the plaintiff set out extracts of the podcast on which she relied as conveying the imputations she alleged were defamatory. There were some inaccuracies in the extracts as reproduced in the statement of claim. I set out below an accurate reproduction of those parts of the first part of the podcast relied on by the plaintiff:
Charlene cut somebody’s ear in Liberia … it has been alleged.
… this same woman they say, according to Liberian people, she went and took knife and cut the woman’s ear off on the camp.
… this wicked woman they say she even wasted acid on her husband’s private parts.
… she didn’t just cut the woman’s ear with knife. She cut the woman’s ear with her mouth. With her teeth.
this wife to Hassan has constantly call [Agnes], she been calling [Agnes], she been cursing [Agnes], she been sending [Agnes] threats.
she Charlene went over to [Agnes’] house and she even threatened this girl she has been very insulting they been doing a whole lot of things to [Agnes].
Apparently Charlene and Hassan been going to [Agnes’] workplace, they have been attacking her, even at her house … can you imagine … people still go to people’s house to send them threat.
… this woman the information I been getting is that she play with Medicine too much.
is it the same Juju business that people are talking about behind closed door because a woman that plays with Juju is a woman that is capable of doing anything.
Agnes is no more. Who is the cause? Hassan killed Agnes. We all know that Hassan killed Agnes but there is more to the death of Agnes. I want to believe that there is more to it and everybody … We are all out here, we are all saying the same. One way or the other if Hassan is to be in jail I want to believe that the law in this country that they can push to every extent to find out about the wife too … she’s not innocent … Charlene is not innocent … she is not innocent … and I just want to take this time to implore everybody, everyone of you guys from WA getting it out there, standing for this because if we do not stand up, our Liberian people … our Liberian women out here will think its ok to kill people. They will think its ok … Charlene if you come across this video I am here to clearly tell you that you Charlene will not go free. I don’t care how long it is or how long it takes in this system, you Charlene will never go free … your hands are behind the death of [Agnes] … one way or the other I want to believe that you actually put peer pressure on Hassan because knowing Hassan … you never liked me anyway Charlene … this woman will see me and walk pass me she hated me like crazy … Who knows what you have in mind for everyone of us? You could even kill me too! … You are an evil woman … And the law, wherever you are, the Medicine people saying you Charlene learn, because people are saying you learn medicine, that’s the information we getting, that medicine, it will never work.
33 I reproduce below the extracts from the recording of the second part of the podcast on which the plaintiff relies to establish the further and less serious imputations she contended were conveyed by the podcast:
Charlene no matter what you do, the people say you can play with whatever you can play with, that’s what we’ve been hearing but whatever it is that you have been doing.
Charlene this time around it is not going to work, you will not go free from this.
… how you find another woman when his woman put him in juju pot?
Charlene you are not going free. I believe that the Australians, the people here, they got their law, they will work around this and you will come out.
If you got your wife and your wife put so much pressure on you.
Would you stay in a home where the woman … she waste hot water on you … As a man’s standpoint, would you stay in that home?
I’m not trying to shift this on the wife either I’m just saying her hands are not clean.
There is more to her death and we are definitely sure that other people are attached to it and definitely it’s going to come out.
Since I talk on this case I been getting a lot of personal attacks.
I had a dream day before yesterday late night in my room somebody actually threw snake on me.
I believe that juju can work to be honest with you because people are doing it, so if they’re out there and thinking that they’re going to shut our mouths thinking it will make us weak on the internet not to speak on these things they are lying.
If you doing something behind closed doors you think you want to attack some of us that are coming out here to speak on this, well go ahead and attack us … our grandmothers and grandfathers are from Nimba County too. So if y’all doing anything, it will never work.
The police they will check Agnes’ phone they will see all the messages that you guys sent to [Agnes].
34 The recording of the first part of the podcast was viewed approximately 3,700 times across not only the defendant’s page but across several public and private Facebook pages and groups to which the defendant had shared the video. These included Joy FM Liberia, Liberia Today, Liberia News, Across Liberia, The Costa Show, Freedom FM Fan, Classic Dee, and Christopher Sunday. Many of the groups had followings of over 25,000 members with the highest having approximately 45,000 members.
35 The recording of the second part of the podcast was viewed approximately 3,600 times, however, it appears as though it was not shared across other public profiles to the extent the recording of the first part of the podcast had been.
36 The defendant ‘tagged’ Ms Dweh’s Facebook account in her posts with the consequence that anyone who had access to Ms Dweh’s Facebook page would have a link to the recordings of the podcast.
37 In her evidence the plaintiff explained the circumstances in which she became aware of the podcast and her immediate reaction to it:
On the day of the recording, I was at my mum’s house, and my sister, Mandu Fofana, was watching the video, watching it live, and she called me and said,
‘Sister, there’s a girl in Melbourne that is saying things about you.’ But at the time, I had chosen not to go on Facebook, so I said, ‘Well, let her say what she wants to say,’ but I didn’t know the extent of it. And then – little did I know I had people or friends – while she was live, there was actually – they had clicked on download. So immediately once she had finished the video recording, I had family that had downloaded straight away onto their devices.
…
I did not view it at the time because I was completely shattered, to be honest, and when I – I only heard a few details of it, but I didn’t know the extent, and then my mother was the one that played a section, the first 24 minutes of it, and I started crying, and I said I don’t want them to go into the details any further because right now, it is – you know, what she has said, let’s see what people – whether people will believe it. But then my sister went online, started monitoring her page and saying, ‘This is what people are saying,’ sending me screenshots.
And by that time, the public had believed what she had said. And next thing, my children were attacked. There was picture on Snapchat of me, the video she has shown, that pictures of my children calling, ‘Your dad is this. Your mum is a killer,’ being attacked, referring to words that she used in the first 24 minutes in – they used that as a caption of the picture, which was sent to me by friends and family as well. And there was another follower of Ms Gbangaye that is called Fatima, who took upon herself to just pretty much post – since she posted the video, the pictures, started posting my picture, calling me names, went into my brother’s message, and they went – they had a discussion there.
38 The plaintiff described the effect of the podcast on her as follows:
I was so depressed, to the extent that I was – just cried all of the time. I wasn’t eating. My mum had to literally force me to eat. I wasn’t sleeping. To this day, I rarely go out because people see you and judge you based on what they have heard about you, not based on the fact, and some of them don’t put their foot in your shoes to understand, well, there is always multiple sides to the story. There is the – my version, your version, and the truth, my mum – my mum would say. But these defamatory imputations by the defendant travel across the globe. It travel at least five different continents. I would say the – that’s Asia, Australia, which is the continent, Oceanic, which is the Australian one. You got the – the North America. You got Europe. You got Africa, plus as I said, Asia, the whole publication travelled. And, not only that, my family were – I would literally have family member calling me saying – because I was in the – US or in Minnesota for some time. And based on those publication, I get people calling me, ‘Is it true you killed this girl? We saw it on Susan’s page.’ These people are not in Australia. Regardless of the publication in Australia, whatever it is, they may not have access to it. But her video travelled over five different continents, at least, that I’m aware of, because my cousins in – in Philippines and the one in Thailand called me saying, ‘I’m not watching this video. Is it what you actually did? Of course. Is that true? I didn’t know. She said, you’re a violent person. She said, you did this, you did that’. And I’m like, because you know that’s not me. Why would I walk – why I would be passing the street and be causing violence. So that’s just confirmation that it reached Asia because my cousins called me. So it has had a very – a toll on my life, and I understand that nothing can repair the damage because it has already been caused, but my aim is to ensure that my standing is restored.
One [cousin] is in Thailand, Bangkok and the other one is in the Philippines.
…
And then, I have family from Minnesota, New York, New Jersey, from – what’s this state – Atlanta, Georgia, that called me about this publication. And then, I had Liberia and I have a friend in Toronto that called.
39 Ms Toweh’s description of the effect of the podcast on the plaintiff corroborated the plaintiff’s account:
Well, knowing you, you were – I didn’t know you to be depressed. I didn’t know you to be very anxious. I didn’t know you to be teary. But from the video, when I witnessed it, I called. I said, ‘Charlene, do you want to listen to this?’ And she said, ‘No. I don’t want to listen to it. It’s making me very emotional.’ And after a couple of days, I noticed – I went to pick her up from the car – from the parking, and she opened the car door to jump outside. She was anxious. She even had to be hospitalised in the mental – at Joondalup, in the – on the mental ward for two nights and three days …
She was – she was very depressed, and sometimes she would call me at night and say, ‘Mum, nobody will think – somebody will think that I did something like this, but now my name is everywhere.’ And even the friends were also attacking the family, those that were following her. There’s a particular girl called Fatima. She attacked me and attacked my son and supported her video.
40 The plaintiff gave the following account of an encounter in Joondalup Shopping Centre which occurred sometime during in November 2021:
I went to Joondalup Shopping Centre. There was a lady who came up to me and said, ‘You’re a killer. You are a killer. You deserve to go to jail. No wonder why Susanna say you are a killer. You went and cut someone ear off with a knife in Liberia. You cut a lady ear off with your teeth in Guinea and now you have killed Janet.
41 Two or three days later the plaintiff was admitted to Joondalup Hospital.
42 The plaintiff’s evidence was to the effect that after the incident at the Joondalup Shopping Centre she was afraid to go out. She said that was when her depression and post‑traumatic stress disorder started.
43 The plaintiff gave evidence that in mid‑November 2021 a wooden effigy ‘with the likeness of a demonic figure’ was found in her backyard.
44 In 2021 the plaintiff was employed as a team coach at Australian Super that was part of the Link Group. Her employment involved her coaching, listening to call recordings, ‘taking escalations’, and organising training and inductions. She had 15 full‑time equivalent employees in her team. The plaintiff took unpaid leave from her employment with effect from 6 December 2021. Her employment was terminated with effect from 31 October 2022. In a letter of termination dated 31 October 2021 her employer explained that it was unable to hold her role open indefinitely. The plaintiff’s oral evidence was that her annual salary was $85,610.76 and she had an entitlement to superannuation at the rate of 9.5% of her salary.
45 Independent evidence of the plaintiff’s medical condition was limited but she tendered a certificate from her medical practitioner that described her symptoms as including ‘worsening major depression with PTSD; coping difficulties’. I accept the plaintiff’s evidence that she had been diagnosed with depression and post-traumatic stress disorder. I also accept the plaintiff was prescribed medication for depression. She has been taking the medication since November 2021 at a monthly cost of $35.
46 In August 2022 the plaintiff instructed solicitors to send a concerns notice to the defendant. A concerns notice was sent on 26 August 2022. The plaintiff received confirmation from Australia Post that the concerns notice was delivered on 1 September 2022 and delivery was acknowledged by signature and the signatory name was ‘S Gbangaye’. The defendant denied she received the concerns notice and denied the signature on the electronic delivery docket was hers. I do not accept the defendant’s denial. The delivery docket is a business record produced contemporaneously with delivery. Although the signature is no more than a squiggle the docket bears the defendant’s name and in the circumstances the squiggle is sufficient to verify receipt by the named recipient, that is the defendant, of the concerns notice. I find the defendant received the concerns notice.
47 By the concerns notice the plaintiff sought deletion of the recordings of the podcast from the defendant’s Facebook page. The defendant did not delete the recordings from her Facebook page. They remained on the Facebook page after the commencement of the action (7 September 2022). Subsequently, the recording of the second part of the podcast was deleted and the recording of the first part of the podcast was deleted at a later date. The exact dates on which the recordings were deleted was not apparent on the evidence.
Publication
48 As noted earlier in her defence the defendant admitted she livestreamed the podcast, but she denied that she uploaded the two recordings of the podcast to her Facebook page. In her evidence she provided no explanation of how the recordings were uploaded to her Facebook page and it is difficult to understand how this could have occurred without her knowing and acquiescing in the process. There is, however, no dispute that the recordings were uploaded. Comments on the defendant’s Facebook post establish that the livestream of the podcast was viewed in real time and the recordings were downloaded by viewers. Social media posts are published when downloaded.
49 In defamation law a person may be a publisher of defamatory matter if they contribute to its creation. Though I have reservations about the defendant’s denial that she uploaded the recordings to her Facebook page, the fact that she was the creator of the original podcast is sufficient to establish that she was a publisher (as that term is understood in the law of defamation) of the recordings uploaded onto her Facebook page.
50 As noted earlier the defendant contended the two recordings of the podcast tendered by the plaintiff had been edited, but she did not identify the edits that had been made. No edits are apparent to me.
The defamatory imputations
The applicable principles
Determination of the meaning of the words used
51 The question whether the podcast conveyed the defamatory meanings pleaded by the plaintiff involves two subsidiary questions: ‘the meaning of the words used (the imputation) and the defamatory character of the imputation’. Both questions are to be assessed by reference to the standard of the ordinary, reasonable viewer.
52 The standard of the ordinary, reasonable person is a single standard that will yield a single meaning from competing possible meanings. As the High Court said in Trkulja v Google, the ‘exercise is one in generosity and not parsimony’:
The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to ‘read between the lines in the light of his general knowledge and experience of worldly affairs’, but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd, ‘[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject’.
53 In this case there can be little doubt that if conveyed the imputations pleaded by the plaintiff were defamatory. In this respect it is sufficient to refer to the general test for determining what is defamatory which is whether a person’s standing in the community, or the estimation in which people hold that person, has been lowered or the imputation is likely to cause people to think the less of a plaintiff.
The pleaded imputations
54 The plaintiff’s pleaded case in relation to the first part of the podcast is as follows.

6. In its natural and ordinary meaning the First Matter was defamatory of the plaintiff and carried the following defamatory imputations (or imputations that do not differ in substance):
   (a) The plaintiff was complicit in the murder of Ms Dweh;
   (b) The plaintiff coerced her husband to kill Ms Dweh;
   (c) The plaintiff killed Ms Dweh;
   (d) The plaintiff physically attacked Ms Dweh;
   (e) The plaintiff verbally abused Ms Dweh;
   (f) The plaintiff stalked Ms Dweh at her workplace and home;
   (g) The plaintiff threatened Ms Dweh;
   (h) The plaintiff is a violent person who frequently perpetuates violence;
   (i) The plaintiff spilled acid on her husband’s private parts;
   (j) The plaintiff intentionally cut off someone’s ear with a knife and by using her teeth;
   (k) The plaintiff is an evil witch; and
   (l) The plaintiff is an evil person.
   55 The defendant admits that the words spoken by her conveyed the imputations pleaded in subparagraphs 6(d), (e), (g), (h), and (j). She denies the imputations pleaded in subparagraphs 6(a), (b), (c), (f) and (k) and does not admit or deny the imputations pleaded in subparagraphs 6(i) and (l).
   56 The plaintiff’s pleaded case in relation to the second part of the podcast is as follows:
7. In its natural and ordinary meaning the Second [podcast] was defamatory of the Plaintiff and carried the following defamatory imputations (or imputations that do not differ in substance):
   (a) The Plaintiff spilled hot water on her husband;
   (b) The Plaintiff had consistently sent abusive and threatening messages to Ms Dweh;
   (c) The Plaintiff engages in witchcraft practices; and
   (d) The Plaintiff had applied demonic attack on the Defendant.
   Imputations conveyed
   57 Independently of the defendant’s admissions I am satisfied the imputations pleaded in subparagraphs 6(d), (e), (g), (h) and (j) were conveyed by the words spoken by the defendant in the first part of the podcast. As to the other imputations my findings are as follows.
   58 I have no hesitation in finding that the imputation that the plaintiff was complicit in the murder of Ms Dweh is conveyed. The imputation is conveyed unequivocally by the words:
   We all know that Hassan killed Agnes but there is more to the death of Agnes. I want to believe that there is more to it and everybody … We are all out here, we are all saying the same. One way or the other if Hassan is to be in jail I want to believe that the law in this country that they can push to every extent to find out about the wife too … she’s not innocent … Charlene is not innocent … she is not innocent…Charlene if you come across this video I am here to clearly tell you that you Charlene will not go free. I don’t care how long it is or how long it takes in this system, you Charlene will never go free … your hands are behind the death of [Agnes].
   59 I find the imputation the plaintiff coerced her husband to kill Ms Dweh is conveyed. Three elements of the words spoken in the first part of the podcast combine to convey this imputation. First, the description of the plaintiff cursing, insulting, threatening and attacking Ms Dweh. Second, the repeated references to the plaintiff not being innocent and the statement that ‘your hands are behind the death of Agnes’. Third, the statement, ‘I want to believe that you actually put peer pressure on Hassan’. I note that the last statement included the qualification ‘I want to believe’ but in the context of the unequivocal and repeated statements ‘Charlene is not innocent’ the ordinary reasonable viewer of the podcast would not attach any significance to the qualification.
   60 The imputation the plaintiff killed Ms Dweh is not conveyed.
   61 The imputation the plaintiff stalked Ms Dweh at home and at her workplace is conveyed by the references to the threats, attacks, insults and curses directed by the plaintiff to Ms Dweh.
   62 The imputation the plaintiff is an evil witch is conveyed by the combination of the references to ‘juju business’ and ‘medicine’ and the defendant’s reference to the plaintiff as ‘an evil woman’.
   63 The imputation the plaintiff spilled acid on her husband’s private parts is conveyed by the words used by the defendant, ‘this wicked woman wasted acid on her husband’s private parts’.
   64 Likewise the imputation the plaintiff is an evil person is conveyed by the words used by the defendant, ‘you are an evil woman’.
   65 As noted earlier part of her overall case the defendant submitted that she prefaced her remarks about the plaintiff with the word ‘allegedly’ or ‘I believe’. Two things may be said about this, first the vehemence with which the defendant attacked and denounced the plaintiff was overwhelming. In the context of a publication on social media the ordinary reasonable viewer would not have attached any significance to the words ‘allegedly’ or ‘I believe’. Their use would not have prevented the imputations I have found were conveyed from being conveyed. Secondly, and of more general significance, publishing a defamatory statement about a person prefaced by the word ‘allegedly’ or some cognate term or phrase does not protect the publisher from liability for defaming that person. A person who repeats a defamatory statement about another can only succeed in justifying the statement by proving the truth of the underlying allegation not merely the fact the allegation has been made. The applicable principle was expressed in characteristically evocative terms by Denning LJ in Associated Newspapers Ltd v Dingle:
   At one time in our law it was permissible for a defendant to prove, in mitigation of damages, that, previously to his publication, there were reports and rumours in circulation to the same effect as the libel. That has long since ceased to be allowed, and for a good reason. Our English law does not love tale-bearers. If the report or rumour was true, let him justify it. If it was not true, he ought not to have repeated it or aided its circulation. He must answer for it just as if he had started it himself.
   66 In the extract cited above Denning LJ was stating the position in English law but, relevantly, the law is the same in Australia.
   67 The imputations I have found to be conveyed by the first part of the podcast were plainly defamatory of the plaintiff.
   68 Turning to the imputations the plaintiff pleads were conveyed by the second part of the podcast. The imputation that the plaintiff spilled hot water on her husband is conveyed by the words used by the defendant. The imputation the plaintiff engages in witchcraft practices is also conveyed by the words used by the defendant. The defendant says that the references to witchcraft were not directed towards the plaintiff but the ordinary reasonable viewer of the podcast would understand the references to juju and witchcraft to refer to the plaintiff.
   69 I am not satisfied that the imputation the plaintiff had consistently sent abusive and threatening messages to Ms Dweh was conveyed by the words spoken by the defendant in the second part of the podcast if those words are considered in isolation from the words spoken in the first part of the podcast which is the way in which the plaintiff has pleaded her case.
   70 I am not satisfied that the imputation the plaintiff had applied a ‘demonic’ attack on the defendant arises from the words used by the defendant. I have two concerns, first, whatever concept is intended to be captured by the term ‘demonic attack’, in my judgment, the ordinary reasonable viewer would not interpret what was said by the defendant about being attacked by a snake in those terms. Second, and relatedly, the ordinary reasonable viewer would not relate the defendant’s account of being attacked by a snake to the statements to the effect that the plaintiff engaged in juju or witchcraft, and I have reservations as to whether the demonic attack imputation constitutes a separate defamatory sting.
   71 The imputations I have found to have been conveyed by the second part of the podcast were defamatory.
   Defences
   72 As already noted the defendant attempted to establish that the plaintiff had cut or bitten off the ear of the woman named Martie in the Laine refugee camp in about 2003 but the evidence established there was no more than a physical altercation between the plaintiff and Martie in which the latter’s ear lobe was torn, a matter that was never in dispute. The sensationalised account of the incident given by the defendant in the podcast was untrue. The defendant did not witness the incident and none of the witnesses she called to give evidence did so either. She was never able to establish the truth of the imputation.
   73 Although the defendant attempted to portray the plaintiff as a violent person she was unable to identify any episode of violence on the plaintiff’s part other than her involvement in the altercation with Martie in the Laine refugee camp.
   74 The defendant did not attempt to justify the imputation the plaintiff was complicit in the murder of Ms Dweh or any of the imputations relating to the murder that I have found conveyed.
   Damages
   75 The principles relating to the assessment of damages, in an action for defamation, are well established. In the following paragraphs I repeat the summary of the applicable principles in Lazos v West Australian Newspapers Ltd.
   76 There are three purposes to be served by damages awarded for defamation. They are consolation for the personal distress and hurt caused to the plaintiff by the publication, reparation for the harm done to the plaintiff’s personal and, if relevant, business reputation, and vindication of the plaintiff’s reputation. The first of these two purposes are often considered together and constitute consolation for the wrong done to the plaintiff. Vindication looks to the attitude of others to the plaintiff. The three purposes overlap and ensure that the amount awarded is ‘the product of a mixture of inextricable considerations’.
   77 Damages for injured feelings, however innocent the publication by the defendant may have been, form a large element in the assessment. The harm caused to plaintiffs by defamatory material often lies more in their own feelings about what others are thinking of them than in any actual change manifest in the attitude of others towards them. A person publishing defamatory imputations must take plaintiffs as they find them. Accordingly, it is appropriate to have regard to the individual sensitivities of a plaintiff.
   78 The sum awarded must be at least the minimum necessary to signal to the public the vindication of the plaintiff’s reputation. The gravity of the libel and the social standing of the parties are relevant to assessing the quantum of damages necessary to effect vindication of the plaintiff. Damage to reputation need not be proved as it is presumed. The level of damages should reflect the high value which the law places upon reputation and, in particular, upon the reputation of those whose work and life depends upon their honesty, integrity and judgment.
   79 The circumstance that a respondent has not provided any apology is pertinent.
   80 Damages are ‘at large’ in the sense that they cannot be arrived at through calculation or the application of a formula, and are therefore necessarily imprecise.
   81 In Wilson v Bauer Media Pty Ltd, Dixon J, in outlining the relevant principles, noted that:
   In determining the damage done to a plaintiff’s reputation, the court should also take into account the ‘grapevine’ effect arising from the publication of the defamatory material. This phenomenon is no more than the realistic recognition by the law that, by the ordinary function of human nature, the dissemination of defamatory material is rarely confined to those to whom the matter is immediately published. It is precisely because the ‘real’ damage cannot be ascertained and established that damages are at large. It is often impossible to track the scandal and to know what quarters the poison may reach. The award of damages must be sufficient to ensure that, the damage having spread along the ‘grapevine’, and being apt to emerge ‘from its lurking place at some future date’, a bystander will be convinced ‘of the baselessness of the charge’.
   82 While damages are awarded to vindicate the plaintiff’s reputation, they are not awarded as compensation for the loss in value of that reputation as though it were a tangible asset or physical attribute which, once damaged, is worth less than it was before.
   83 It is well established, and the defendant accepted, that a plaintiff need only show that the relevant defamatory statement was a cause of his loss, rather than the cause.
   84 Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by subsequent conduct of a defendant. Damages may be increased if there is ‘a lack of bona fides in the defendant’s conduct or it is improper or unjustifiable’. Aggravated damages are compensatory in nature.
   85 The failure to publish a retraction or an apology may make an award of aggravated damages appropriate if it amounts to a continuing assertion of the defamatory imputations.
   86 Section 34 of the Defamation Act 2005 (WA) provides:
   In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
   87 The maximum amount of damages to be awarded for non‑economic loss, pursuant to s 35, has been fixed at $478,500.
   Disposition
   88 The defendant’s comments about the plaintiff during the podcast constituted an attack calculated to destroy the plaintiff’s reputation in the Liberian community in Australia and cause the community to reject her. The community was mourning the loss of Ms Dweh and the imputations the plaintiff was complicit in the murder of Ms Dweh and coerced her husband to commit the murder could not have been more serious. The imputations were expressed in inflammatory and highly emotive language that amplified the messages conveyed by the defendant’s comments. The language was calculated to excite condemnation of the plaintiff. The defendant made no attempt at balance or restraint.
   89 The defendant’s comments were widely published to members of the Liberian community. And, it is worthy of emphasis that the defendant personally took steps to ensure this occurred.
   90 I infer from the circumstances in which the plaintiff and defendant were resettled in Australia and from the evidence generally that the Liberian community in Australia is a tightly‑knit one. In such a community the grapevine effect is particularly significant. I infer the plaintiff’s reputation was damaged not only among those who watched the livestreamed podcast or the recordings but among those with whom the viewers either discussed what had been said by the defendant about the plaintiff or those to whom the viewers forwarded the recordings.
   91 Moreover, in addition to the evidence of the comments on the defendant’s Facebook page and the number of views, the calls received by the plaintiff from friends and relatives overseas indicate the wide extent of the publication.
   92 The effect of the defamatory comments on the plaintiff was both immediate and devastating. A dramatic illustration of the effect on the plaintiff’s reputation is provided by the incident in which she was accosted in public and accused of killing Ms Dweh following which the plaintiff was admitted to hospital for three days. Unsurprisingly she suffered from depression and was subsequently diagnosed with post‑traumatic stress disorder.
   93 I am satisfied the deterioration in the plaintiff’s health led to her prolonged sick leave and ultimately to the loss of her employment with the Link Group.
   94 The defendant’s conduct in publishing her defamatory comments about the plaintiff was unreasonable and indefensible. Equally indefensible was the defendant’s conduct in failing to remove the recordings of the podcast from her Facebook page when asked to do so by the plaintiff, her failure to apologise and her attempt to justify some of the imputations made about the plaintiff in the podcast. The defendant’s conduct has greatly aggravated the injury caused to the plaintiff by the defamation.
   95 In my judgment given the very serious nature of the defamatory statements, the circumstances in which they were made, the community to which they were addressed and the plaintiff’s membership of that community, the effect of the publication of the statements on the plaintiff and the circumstances of aggravation to which I have referred the appropriate award of general damages is $325,000.
   96 The plaintiff claimed damages for the financial loss consequent on her inability to work. In this respect the plaintiff’s evidence was somewhat unclear. Although she did not say so in her evidence, I infer that the figure she gave for her annual salary was her salary before deduction of tax. She did not give evidence of her salary net of tax. Her evidence of the period during which she was unable to work and was without a salary was unclear. The letter terminating her employment recorded she was on unpaid leave between 6 December 2021 and 31 October 2022. Rather confusingly, in her evidence she said her claim related to the period between 1 November 2022 and 30 April 2023. Using the income tax rates for the tax years ending June 2022 and June 2023 I calculate the plaintiff’s annual salary net of tax to be $67,320 and her annual entitlement to superannuation to be $8,132. Her net monthly benefit from her employment was thus $6,287. Doing the best I can with the evidentiary material I would assess the plaintiff’s financial loss suffered from her inability to work as $69,157 representing 11 months lost income and superannuation benefit in respect of the months of December 2021 to October 2022 inclusive.
   97 The plaintiff is also entitled to recover her expenditure on medication for the depression suffered by her. I calculate this expenditure as follows: $35 x 36 = $1,260.
   98 I would round the award of damages for economic loss down to $70,400.
   99 The plaintiff seeks an injunction restraining the defendant from any repetition of the defamatory imputations. I infer from the nature of the defendant’s attack on the plaintiff that unless restrained there is a real possibility that she will repeat the imputations that I have found were conveyed by the podcast or imputations to a like effect. This is an appropriate case in which to grant injunctive relief.
   100 The plaintiff is entitled to interest on the damages awarded in her favour. The appropriate interest rate is 3% from 30 October 2021.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

CD
Associate to the Honourable Justice Tottle

7 MARCH 2025