The capacity issue - consideration
30 A television broadcast is a continuous stream of sounds and images that, usually, the ordinary reasonable viewer will see once, in a situation, probably at home, where he or she is not concentrating intently: cf Marsden 43 NSWLR at 165G-166E. He or she ordinarily will not play the program back or take it in slowly, as might occur reading a newspaper, book or an online written publication. Thus, although he or she must be treated as having seen and heard the whole of the broadcast, the ordinary reasonable viewer can have a greater capacity to draw inferences when viewing a television broadcast than in the case of a less transient form of publication.
31 The matter complained of centred on the role of Mr Adeang in numerous events that occurred in Nauru. Ms Alberici's introduction (in par 1 of the annexure to these reasons) set the scene by, first, referring to Mrs Adeang having been found burnt to death in the garden of their home and, secondly, stating that:
The circumstances surrounding her shocking end remain unexplained and the apparent absence of a thorough investigation has raised serious concerns about Nauru's commitment to the rule of law.
32 That invited the viewer to approach what followed in the broadcast with an enquiring mind as to why his wife's shocking death in the garden of their home had not been thoroughly investigated when Mr Adeang, the Minister for Justice, held so much power in Nauru. Indeed, the whole tone of the matter complained of was capable of being understood to suggest that Mr Adeang had a motivation to abuse his powers because he had something to hide about his own responsibility in how his wife died.
33 The journalist, Ms Stein, described Mr Adeang as holding "the reins of power", and reinforced that with statements by both Mr Bliim, the former Solicitor-General of Nauru, and the Hon Geoffrey Eames, the former Chief Justice of Nauru (pars 2-9). Mr Bliim said that Mr Adeang "didn't want anyone on the island to hold he [sic] or others accountable" (par 8). The broadcast then moved through how Mr Adeang caused each of the Republic's former Director of Police, Richard Britten, the former resident magistrate and coroner, Peter Law, and Mr Eames to be either suspended or removed from or to be unable to perform the duties of their official positions once each had fallen out of favour or crossed swords with Mr Adeang in some way.
34 The broadcast could be thought to suggest a connection between the difficulties encountered by Mr Law and Mr Eames, when Mr Law granted an injunction interfering with Mr Adeang's desire to deport Rod Henshaw, a person connected to the previous government (pars 8-23). Mr Henshaw's own wife had died one month before his deportation and he briefly described his grief about her death (par 20). Ms Stein asserted that after Mr Law had granted the injunction against Mr Henshaw's deportation, he had called for police "to investigate further the shocking death of Madelyn Adeang, the wife of justice minister David Adeang" (par 24).
35 The matter complained of then showed Mr Henshaw describing an occasion when Mrs Adeang came into his bar to celebrate her birthday shortly before her death (par 25). This was the only other footage in which Mr Henshaw spoke in the matter complained of and he did so about Mrs Adeang, rather than the circumstances of his own deportation. Immediately after this footage, Ms Stein returned to comment on the uncertainty surrounding Mrs Adeang's death and how Mr Britten had found out about it after which he had to step in to order a full investigation (pars 26-27).
36 Mr Law then said that Mr Adeang had told people what to say in three or four paragraphs of a document that he said had stated (pars 28-32):
… simply that there had been an accident and that the late Mrs Adeang had left the house and was carrying a bucket of petrol to carry out a burn-off; and that, somehow, an accident occurred whereby that bucket of petrol became alight and she was burnt to death.
There must have been neighbours and other people, perhaps, around who may or may not have witnessed; that were near to the scene of Madelyn Adeang's death.
37 Ms Stein and Mr Eames then appeared to conclude that a coronial inquest should have been held (pars 33-34) after which Ms Stein said the following, on which the ABC relied as a disclaimer (par 35):
While it's not suggested that David Adeang was involved in the death of his wife, the Nauru police investigation was proving difficult. (emphasis added)
38 Next, the matter complained of reported Mr Britten as saying that most people were refusing to talk to the police and that it was highly likely that Mr Adeang's standing in the community had influenced some of them. Mr Britten said that no proper investigation or inquest had occurred while he had been on Nauru and that some neighbours in their statements had "reported a heated argument between a male and female just prior to Madelyn's death" (pars 36-38). Mr Bliim then is shown saying that no-one knew whether Mr Adeang was in the vicinity or present at the time "or what his position was", but that in a "normal police investigation" he should have been questioned (pars 39-44).
39 Nothing in the matter complained of suggested that Mr Adeang had given a statement to, or been questioned by, any authorities in Nauru about his wife's death or his whereabouts at the time of its occurrence. But, Ms Stein next described the difficulties she had in getting answers to her questions. The program shows her sticking a note, apparently asking Mr Adeang questions, on the gate of the consular residence in Brisbane. She said that Mr Adeang's response the next day was to refuse to answer a list of questions. The matter complained of reported that he said that those questions were "outrageous and deeply offensive" but that he wanted "it on record for clarification purposes that Nauru rarely if ever has coronial inquests" (pars 45-59).
40 Next, Ms Stein reported that Mr Law agreed that inquests were rare but that they were called when police investigations had failed to indicate the cause of death and that Mr Adeang had missed the point. The matter complained of concluded with Mr Law saying while Mrs Adeang's photograph appeared on screen (pars 50-51):
It's very disappointing that it would happen to anyone: that there wouldn't be a proper explanation about someone's death. It might very well be the circumstances that the late Mrs Adeang committed suicide: that could be. But there needs - or should have been - some proper investigation by the police. (emphasis added)
41 In my opinion, the ordinary reasonable viewer could have understood the matter complained of to invite him or her to speculate why the death of Mrs Adeang had not been properly investigated. In that context the viewer was invited to ask why her husband, a man who not only possessed, but also had exercised, the power to suspend or prevent the Director of Police, the magistrate (who was also the coroner) and the Chief Justice from exercising their functions, had not (according to what was broadcast) given, or even been asked to give, any explanation of where he was or what he was doing when his wife was burnt to death in the garden of their home, just after neighbours had heard a heated argument between a male and a female there.
42 Although Ms Stein said (in par 35) part way through the broadcast that it was "not suggested that David Adeang was involved in the death of his wife", the thrust of the matter complained of was capable of conveying that there was good reason to suspect that he was. The broadcast told the viewer that neighbours had heard a male and female having had a heated argument just prior to Mrs Adeang's death in the couple's garden and that Mr Adeang had not given a statement to police, that his whereabouts at the time of the death were not known and that although the former Chief Justice said that there should have been an inquest (par 34), at which the viewer was invited to think Mr Adeang would be required to answer questions, he, the Minister for Justice, could, and had removed, any official who might try to hold him to account (par 8). The viewer could also consider that the former coroner, Mr Law, was saying that Mr Adeang had spoken to witnesses about what they had then told the police (pars 28-30).
43 Thus, the matter complained of was capable of being understood by the ordinary reasonable viewer as suggesting that Mr Adeang should be looked at with suspicion or that he had something to hide in connection with his wife's death. As Lord Devlin said in Lewis [1964] AC at 285, in a passage approved in Favell 221 ALR at 190 [11], and equally apposite to this case:
A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded. (emphasis added)
44 The Privy Council said in Jones [1963] SR (NSW) at 651, in a passage later applied by Lord Keith of Kinkel (on behalf of himself and Lords Elwyn Jones, Roskill and Griffiths) in Lloyd v David Syme & Co Ltd [1986] AC 350 at 363H-364A:
The reader, a jury might conclude, was invited to adopt a suspicious approach and so to be guided to the real explanation of what had taken place - an explanation which the writer ... did not care or did not dare to express in direct terms. (emphasis added)
45 Lord Keith found, overturning the Court of Appeal (David Syme & Co Ltd v Lloyd [1984] 3 NSWLR 346), that an article in The Age newspaper conveyed imputations that the captain of the West Indies cricket team, Clive Lloyd, was suspected of, first, having committed a fraud on the public by, in effect, fixing the result of a World Cup Cricket match for financial gain and, secondly, of being prepared to do the same in the future for final gain. His Lordship rejected the publisher's argument that the article contained a disclaimer of those imputations (of suspicion by an unnamed person) saying that the words relied on to disclaim "would rather convey the impression that the author is anxious to wound but fearful to strike too obviously" (Lloyd [1986] AC at 363G-H).
46 I reject the ABC's argument that an imputation of suspicion must itself identify a person or authority who held it. In my opinion, the conclusion to the contrary of the Court of Appeal in Sergi [1983] 2 NSWLR at 671C-D, 679C-D and 680G is plainly wrong in principle. The defamatory capacity of any publication depends on what the publication conveys, or is capable of conveying, to an ordinary reasonable viewer. Their Honours cited no authority for their assertion that an imputation of suspicion had to identify a person or authority who held that suspicion. It is contrary to a long line of authority. In Hough v London Express Newspaper Ltd [1940] 2 KB 507 at 515, Goddard LJ explained the principle saying:
In the case of words defamatory in their ordinary sense the plaintiff has to prove no more than that they were published: he cannot call witnesses to prove what they understood by the words; nor will it avail the defendant to call any number of witnesses to say that they did not believe the imputation. The only question is, might reasonable people understand them in a defamatory sense? ... If words are used which impute discreditable conduct to my friend, he has been defamed to me, although I do not believe the imputation, and may even know that it is untrue. So if it be said of A. that he is a forger, no witnesses are necessary or can indeed be called to say that they believed the charge … (emphasis added)
47 If the publication complained of conveys a defamatory meaning that the viewer knows to be untrue, the mud can still stick. The identity of a person who holds a suspicion may or may not be an element of a sufficiently precise pleaded imputation - but the sufficiency of such an imputation necessarily is a reflex of the matter complained of. As Lord Devlin emphasised, you cannot make a rule about the fundamental question of what meaning the words, in the context in which they were published, convey to the ordinary reasonable viewer: Lewis [1964] AC at 285. And, the Privy Council had no difficulty in Lloyd [1986] AC 350 in concluding that the jury had been entitled to find that the article complained of conveyed imputations of suspicion that did not include the identity of anyone who held the suspicion.
48 If a publication conveys only that the plaintiff has been charged with a criminal offence, it is capable only of conveying an imputation that the police or prosecutor had reasonable grounds to suspect that the plaintiff had committed the offence alleged and cannot convey an imputation of guilt: cf Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293. There, Mason J held (149 CLR at 301) that the defamatory quality of a publication had to be determined by how the ordinary reasonable viewer would understand it, drawing on his or her own knowledge and experience of human affairs. He held, however, that it was not permissible to reason that a publication was capable of conveying an imputation "merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff".
49 An imputation pleaded in the form that the plaintiff, by his or her conduct, has brought suspicion on himself or herself, without the inclusion of a person or authority who held the suspicion, has been accepted as being capable of being found to have been conveyed by the Privy Council in Lloyd [1986] AC at 363-364, the Court of Appeal of England and Wales in Shah v Standard Chartered Bank [1999] QB 241 at 258B-C, 260E-261C per Hirst LJ, with whom May LJ at 266A-D and Sir Brian Neill at 270D agreed, and the Supreme Court of New Zealand in APN New Zealand Ltd v Simunovich Fisheries Ltd [2010] 1 NZLR 315 at 334-335 [35] per Tipping and Wilson JJ (for themselves and Elias CJ, Blanchard and McGrath JJ).
50 In Shah [1999] QB at 269G-H, May LJ said that a defendant may justify a defamation by pleading and proving that "there are objectively reasonable grounds to suspect the plaintiff" of some act or condition and Hirst LJ said (with his Lordship's emphasis at 261C-D) that it is an essential requisite of such a defence "that it should focus on some conduct on the plaintiff's part giving rise to reasonable suspicion". Indeed, Hirst LJ drew (at 260F-H) on what Hunt J had held in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 160D-E, that a statement of suspicion, without more, "is obviously capable of conveying the suggestion that the plaintiff had so conducted himself as to have warranted that suspicion" (with his Honour's emphasis). McClellan CJ at CL followed this line of authority in Greig v WIN Television NSW Pty Ltd [2009] NSWSC 632 at [79]-[84], as had Nicholas J earlier when refusing to strike out imputations that the plaintiff had pleaded in that form: Greig v WIN Television NSW Pty Ltd [2007] NSWSC 1118 at [10]-[15]. Indeed, Nicholas J said that Sergi [1983] 2 NSWLR 669 was "a case of limited application" relating to the need for an imputation to identify an accuser, if it were pleaded in the passive voice ([2007] NSWSC 1118 at [16]). And, in giving the Supreme Court's reasons in APN [2010] 1 NZLR at 334-335 [35], Tipping and Wilson JJ said that a defendant could rely on strong circumstantial evidence implicating the plaintiff, as grounds for reasonable suspicion, adding: "The circumstantial evidence could hardly have any value unless it 'implicated' the plaintiff by means of an available inference as to the plaintiff's conduct".
51 Moreover, Lord Devlin explained why the identification of a person holding a suspicion cannot always be an essential requirement to plead an imputation. He said in Lewis [1964] AC at 284 (and see per Lord Reid at 260), in a longer passage that repays consideration but is not necessary to set out fully here:
Equally, in my opinion, it is wrong to say that, if in truth the person spoken of never gave any cause for suspicion at all, he has no remedy because he was expressly exonerated of fraud. A man's reputation can suffer if it can truly be said of him that although innocent he behaved in a suspicious way; but it will suffer much more if it is said that he is not innocent. (emphasis added)
52 That is how imputations (e) and (f) are framed, namely they assert that the matter complained of conveyed that Mr Adeang had behaved in such a way so that he deserved to be reasonably suspected of either involvement in his wife's unlawful killing or her murder or manslaughter. In my opinion, for these reasons it was open to Mr Adeang to plead those two imputations in that form and they are capable of being the subject of defences, as the authorities to which I have referred show.
53 In Zeccola [2015] NSWCA 329 at [103]-[107], McColl JA, with whom Macfarlan JA agreed, upheld the decision of the primary judge to strike out an imputation framed in terms that "there are reasonable grounds to suspect that the [plaintiff] permitted Palace Films to trade when it was insolvent", but which did not name any person or authority by whom that suspicion was held. McColl JA held that it had been open to the primary judge to find that the matter complained of there did not convey that imputation ([2015] NSWCA 329 at [107]). Her Honour distinguished Nicholas J's decision in Greig [2007] NSWSC 1118 and Kirby J's decision in Purcell v Cruising Yacht Club of Australia [2003] NSWSC 245, on the basis that in each of those cases "it was clearly arguable from the matter complained of that someone held such a suspicion" ([2015] NSWCA 329 at [105]). She held that in such a case the pleaded imputation was not defective in form.
54 In my opinion, Zeccola [2015] NSWCA 329 at [107] simply decided that it had been open to the primary judge to strike out the pleaded imputation because it was not capable of being conveyed by the matter complained of. McColl JA did not formulate or apply a principle that it was necessary for an imputation that a plaintiff was suspected of some act or condition either itself to identify, or be grounded in the publication complained of which identified, a person or authority who held that suspicion.
55 If the matter complained of conveys such a suspicion without identifying by whom it is held, it is still defamatory, as Lord Devlin demonstrated in Lewis [1964] AC at 284: see too Lloyd [1986] AC at 363-364. If a defendant is to justify such an imputation, he, she or it must prove the facts from which any asserted suspicion arises as the inference to be drawn, that objectively such a suspicion is reasonable based on those facts and also, but only where that state of mind is relevant, that the defendant or some person or authority held it: cf George v Rockett (1990) 170 CLR 104 at 115-116 where Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ discussed what suffices to establish the state of mind of having reasonable grounds to suspect. They adopted what Lord Devlin said in Hussein v Chong Fook Kam [1970] AC 942 at 948 that in its ordinary meaning suspicion "is a state of conjecture or surmise where proof is lacking" (170 CLR at 115).
56 Obviously enough, the use of an imputation of suspicion cannot be available to circumvent the principle that the repetition of another's defamatory statement or of a rumour requires the republisher to defend the original publication. It is no defence to plead that the matter complained of simply repeated an earlier publication. The defendant must prove that what he, she or it repeated is defensible as if the defendant had been the originator of the matter complained of. That is, as Mason J said in Harrison 149 CLR at 300, the defendant gives his (her or its) imprimatur to the rumour because, by passing it on, the defendant gives it credence, implying that it is, or may be, well-founded.
57 A bare attribution of suspicion, without identifying an objective basis from which a reasonable inference warranting that suspicion can be drawn, is no different from a statement that the person is guilty of the subject, disguised by use of the word "suspicion". That is why, as Lord Devlin observed in Lewis [1964] AC at 285 that talking about smoke very often suggests a fire, but it is possible to exclude the suggestion.
58 A publication raising suspicion usually has other content from which the ordinary reasonable viewer may conclude that it is conveying guilt. Indeed, the identity of a person who is said to entertain or communicate that he or she suspects the plaintiff of some act or condition can be, depending on the actual publication, as irrelevant as that of a person who is the source of a rumour. If the defendant wants to justify an imputation of a suspicion, the defendant must prove the truth of the facts on which the suspicion is based and that the state of mind (of suspicion) is the only reasonable inference to draw from those facts. Anything less, leaves open the inference that the suspicion (just as a rumour) is well founded. In the end, the question is what does the matter complained of convey to the ordinary reasonable viewer. Once the meaning conveyed is ascertained, the issue of how that meaning is to be defended or attacked in the litigation becomes clear.
59 If the matter complained of were not suggesting, as Ms Stein said (in par 35), that Mr Adeang was involved in the death of his wife, it was capable of conveying to the ordinary reasonable viewer that the reason why it had raised a list of questions that Mr Adeang had refused to answer was that, as imputation (f) alleged, he had behaved in such a way as to deserve to be reasonably suspected of the murder or manslaughter of his wife.
60 The matter complained of was capable of being understood as inviting the ordinary reasonable viewer to look at Mr Adeang's silence in the face of all of the circumstances, including his speaking to witnesses and potential to influence persons responsible for investigating deaths as Minister for Justice, as raising a reasonable suspicion of his having been the man whom his neighbours had heard arguing with a woman, being his wife, just before she burnt to death in their garden. Of course, the matter complained of stopped short of a direct accusation of guilt, as the ordinary reasonable viewer would understand. That viewer could appreciate that the matter complained of suggested that other possible causes of death were open, including suicide and the act of a third person. But the viewer could understand that the broad impression conveyed was that Mr Adeang had so acted as to raise reasonable grounds to suspect that he had committed murder or manslaughter in all of the circumstances disclosed.
61 For these reasons, I am of opinion that imputation (f), was capable of being conveyed by the matter complained of. The process by which an ordinary reasonable viewer assesses a television program's presentation of circumstantial material will be looser than the process of reasoning that a jury may adopt in a criminal trial. The latter process involves the jury weighing all the circumstances. Each of those circumstances, taken individually, might be a very weak reed for an inference of guilt or might also support an inference of innocence, but when all of the circumstances are considered together, they can cohere into proof of guilt beyond reasonable doubt, as Gummow, Hayne and Crennan JJ explained in R v Hillier (2007) 228 CLR 618 at 638-639 [48]-[49].
62 It also follows, that imputation (e) is an inference open to be drawn from the matter complained of. It is grounded on a lesser apparent connection between Mr Adeang and his wife's death, namely involvement, in some way or other, with an unlawful act that caused her to die. This inference is be reasonably open, given the indefinite, but suspicious, circumstances of the death.
63 Imputation (h) requires the ordinary reasonable viewer to conclude that Mr Adeang acted in his official capacity to cover up his own role in his wife's death. It is difficult to see what this imputation asserts to distinguish it from the acts or conditions alleged in imputations (a)-(d). If the ordinary reasonable viewer understood the matter complained of to convey that Mr Adeang did any of the things asserted in one or more of the matters in imputations (a)-(d), then he would have acted corruptly as the justice minister. However, the matter complained of, while being capable of being understood as raising reasonable grounds for suspicion that Mr Adeang had a role in his wife's death does not go sufficiently further to support the availability of imputation (h). The matter complained of did not set out a basis on which an ordinary reasonable viewer could reasonably infer that it was conveying that Mr Adeang actually had a role in his wife's death, even allowing for a degree of loose thinking and its recounting of the circumstances.
64 In my opinion, the ABC is correct to say that the broad impression that the matter complained of was capable of conveying to the ordinary reasonable viewer fell short of any inference, far less an accusation, that Mr Adeang actually had a role in his wife's death. At most, as I have explained the matter complained of was capable of conveying that there were reasonable grounds to suspect that he did have a role, but that is as far as an ordinary reasonable viewer would understand the insinuation to go. As Mr Law said at the end of the broadcast, the cause of death may have been suicide
65 I am satisfied that the matter complained of could not reasonably be understood as conveying that Mr Adeang actually had a role in his wife's death, however assiduously it may have conveyed that he had acted suspiciously. For these reasons, I will not permit Mr Adeang to amend the statement of claim by adding imputation (h).