publication of the allegations which are the basis for these imputations. 2. I said that I would later publish written reasons for my decision. I do so now. CONTEXTUAL TRUTH 3. Paragraph 9 of the defendants' defences (as amended) is as follows: "If, which is denied, the words and pictures broadcast by the second defendant do bear the meanings pleaded in paragraph 6 or some of them and are defamatory of the plaintiff, (the defendants) say that by virtue of the truth of the meanings pleaded in paragraph 6(a), (c), (d), (e), (f), (g), (h), (i) and (j), or some of them, the publication of the meanings pleaded in paragraphs 6(b), (k), (l), (m), (n) and (o) did not further injure the reputation of the plaintiff." 4. The plaintiff had pleaded that the broadcast contained 15 imputations which were defamatory of him. The defendants pleaded justification in relation to 9 of those imputations. The purpose of paragraph 9 is to provide a complete defence to those imputations to which justification has not been pleaded. 5. The law of defamation in the Northern Territory is primarily the common law, save for a few exceptions effected by the Defamation Act (N.T). At common law, truth or justification, is a complete defence: it is not necessary for the defendants to prove also that it was for the benefit of the public that the imputations were published. 6. For the defendants to succeed, they must establish the truth of the precise charges brought against the plaintiff. If the broadcast contains two or more separate and distinct allegations, the plaintiff is entitled to select some one or more of them for complaint, and the defendants are not entitled to assert the truth of the others by way of justification: see for example Plato Films Ltd and Others v Speidel (1961) AC 1090. But the apparent rigour of this requirement has been relaxed in a number of ways. First, the defendants may raise partial justification in mitigation of damages: see for example Plato Films Ltd and Others v Speidel (1961) AC 1090 at 1141-2 per Lord Denning. Secondly, the defendants are entitled to succeed if they can justify the "sting" of the libel: see for example Sutherland and Others v Stopes (1925) AC 47 at 78-79 per Lord Shaw of Dumfermline. However, this concept cannot be taken too far. As was pointed out in Potts v Moran (1976) 16 SASR 284 at 305- 306 per Bray CJ: "There are two ways, however, in which what has been called "the sting of the libel" can be justified so as to be a complete answer. One is where all the defamatory allegations of fact are proved to be true and all that remains are general rhetorical expressions of disapproval or denunciation which do not contain in themselves any additional allegations of fact. So in Morrison v. Harmer [1837] EngR 179; (1837) 3 Bing (NC) 759 (132 ER 603), where the defendant had referred to the wholesale system of poisoning pursued by certain sellers of medicines and had described them as scamps and rascals, it was held that by proving that the plaintiff's medicines had indeed killed two people, as a

result of which they had been convicted of manslaughter, the defendants had justified the libel and that they did not have to prove more specifically that the plaintiffs were scamps or rascals. It was said by Tindal CJ that: "If these terms of invective and reproach contain any ground of charge or imputation against the Plaintiffs, substantially distinct in its nature or character, from that which forms the main charge, or gist, of the libel, and the truth of which has been justified by the plea, the consequence above contended for on the part of the Plaintiffs (that the plea was bad) would justly follow;--for the plea, upon that

supposition, would not contain an answer to so much of the declaration, as by the commencement of the plea it expressly undertakes to justify." (1837) 3 Bing (NC), at p.766 (132 ER, at p.606). The second is that slight inaccuracies of detail which do

not affect the substance of the charge will not prevent the success of the plea. Thus it was held a sufficient answer to a charge of libel in stating that the plaintiff had been convicted of riding in a train without an appropriate ticket and fined pounds 1 or three weeks' imprisonment in default to prove that he had been so fined pounds 1 but only sentenced to fourteen days imprisonment in default; Alexander v. North Eastern Railway Co. (1865) 6 B and S 340; [1865] EngR 378; (122 ER 1221)." 7. Thirdly, the defendants may dispute the meanings which the plaintiff asserts the words and pictures bear, and assert that the words and pictures bear a different meaning when looked at in the context of the whole broadcast, and seek to justify that different meaning: see, for example, Polly Peck (Holdings) PLC and Others v Trelford and Others (1986) 1 QB 1000 at 1032; (1986) 2 WLR 845 at 868-869; (1986) 2 All ER 84 at 102. Fourthly, if there are several defamatory allegations in the broadcast which, in context have a "common sting" to them, the allegations are not to be treated as separate and distinct, and the defendants are entitled to justify the common sting: Polly Peck (Holdings) PLC and Others v Trelford and Others, supra. This arises where the sting lies in the totality of the allegations made: see Polly Peck (Holdings) PLC and Others v Trelford and Others (1986) 1 QB especially at 1029-1030 where O'Connor LJ cites with approval a passage from the unreported judgment of Bridge LJ in Stonor v Daily Telegraph Ltd, decided on 19 July 1976. But it is not enough merely that a common meaning (or several common meanings) may be spelt out. The common meanings must meet the sting (hence the use of the expression "common sting") in the same way as the defendants must meet the sting of several and distinct imputations if the defence of justification is to succeed. Thus, in Khashoggi v IPC Magazines Ltd and Another (1986) 3 All ER 577, the plaintiff sued the proprietors of a magazine in which it was alleged that she had had affairs with a number of different men including a certain foreign head of State. The plaintiff complained only of the alleged affair with the foreign head of State. The defendants claimed that the common sting of the article was that the plaintiff was generally promiscuous, and sought to justify the sting, although they could not prove the affair with the head of State. Sir John Donaldson MR said, at 580-581, after referring to Polly Peck (Holdings) PLC and Others v Trelford and Others and the passage in the judgment of O'Connor LJ dealing with the justification of a common sting which I have cited above: "What is said here is that that principle can be applied and the sting of the article is promiscuity generally. It is submitted that it would be very difficult for the plaintiff, when her statement of claim comes to be prepared, to make any complaint about this particular allegation which could not equally be made about the other allegations contained in the same article. In those circumstances the Polly Peck principle applies and, notwithstanding that the defendants may not be able to prove the particular affair complained of, they will be able to adduce evidence which will justify the sting of the article and the sting of that statement on the footing, I suppose, that it is not more defamatory to have an extra-marital affair with one person rather than another in the circumstances of this case." 8. In other words the allegations concerning the foreign head of State could be treated as "slight inaccuracy of detail not affecting the substance of the charge", to adopt the words of Bray CJ in Potts v Moran, supra p.306; but it would obviously be otherwise if the particular head of State had been an anti-semitical genocidal maniac. In such a case the common sting would not merely be promiscuity generally because the article would have also conveyed the imputation that the plaintiff was prepared to associate herself intimately with an anti-semitical genocidal maniac. 9. In New South Wales, s16 of the Defamation Act substantially altered the common law to introduce what is called a defence of "contextual truth". The section is in the following terms: "16 (1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of. (2) It is a defence to any imputation complained of that (a) the imputation relates to a matter of public interest or is published under qualified privilege; (b) one or more imputations contextual to the imputation complained of - (i) relate to a matter of public interest or are published under qualified privilege; and (ii) are matters of substantial truth; and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff." 10. In Jackson v John Fairfax and Sons Ltd (1981) 1 NSWLR 36 at 39, Hunt J described this defence as follows: "The defence of contextual truth accepts that the matter complained of conveys the imputation pleaded by the plaintiff and that no other defence has been established in relation to that imputation; it asserts that the imputation pleaded by the defendant is also conveyed by the matter complained of (such imputation being called the contextual imputation); the defence then asserts that, even though the plaintiff's imputation is otherwise indefensible, such is the effect of the substantial truth of the defendant's contextual imputation upon the plaintiff's reputation that the publication of the imputation of which he complains did not further injure his reputation." 11. It is clear that this statutory defence does significantly alter the common law. First, it abrogates entirely the rule that prohibits a defendant from pleading justification to a separate and several imputation of which the plaintiff does not complain as a defence to another imputation in the same broadcast of which the plaintiff does complain: see Becker v Smith's Newspapers Ltd [1929] SAStRp 66; (1929) SASR 469 at 471. Secondly, it establishes a new exception to the principle that where the defendant has published a libel, damage to the plaintiff's reputation is presumed and the plaintiff's cause of action is complete: see Ratcliffe v Evans (1892) 2 QB 524 at 528 per Bowen L.J. In Potts v Moran, supra at p308 Wells J rejected a submission based on the same general idea. See also Bray CJ, (with whom Sangster J concurred), at p305. 12. In Hepburn v TCN Channel Nine Pty Ltd (1984) 1 NSWLR 386, Hunt J accepted (at 396-397) (with one qualification) that where more than one contextual imputation has been pleaded, the section required the jury to consider the combined effect of all the defendant's contextual imputations when considering whether, by reason of their substantial truth, the plaintiff's imputation (s?) to which truth has not been established has/have further injured his reputation. The qualification he placed upon this statement was that it would not always be appropriate to combine contextual imputations; and if the contextual imputations were contradictory or but different gradations of seriousness of the same basic assertion, it would be inappropriate to so combine them: see pps 397-398. Further, Hunt J held, at 405, that the phrase "does not further injure the reputation of the plaintiff" in s16(2)(c) should be construed in the sense of "does not cause additional injury to the reputation of the plaintiff." 13. At 399 of the judgment, Hunt J said that a defendant is entitled to plead one or more of the plaintiff's own imputations as contextual imputations to other imputations pleaded by the plaintiff, which must, by definition, differ in substance from that which the defendant has adopted as his contextual reputation or imputations. The defendants relied upon this passage to support the wording of the plea in paragraph 9 of their defences and which I have set out above. Counsel for the plaintiff, Mr Reeves, did not accept that the passage referred to did support the wording of the pleas, but I do not have to decide that issue. I mention it only to show how it is that the defendants put this defence. 14. So far, the defence would seem to be based on a statutory provision not available in this jurisdiction; but the defendants assert that the defence has now been recognised by the common law. The mainstay of this submission is the judgment of Miles CJ in Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1. In that case, the learned Chief Justice held, at 24, that the defence applied in the Australian Capital Territory. Mr Reeves submitted that that decision was wrongly decided. But there is also at least one other decision of the Supreme Court of the Australian Capital Territory which appears to support the same view, viz T.W.T. Ltd v Moore (Higgins J. 31/10/91, unreported). Mr Reeves submitted that that case was also wrongly decided. 15. In T.W.T. Ltd v Moore, the defendant had, it would appear, broadcast on television a news program in both the Australian Capital Territory and in New South Wales. The defendant sought leave to amend its defence to insert a new paragraph 7. Paragraph 7(a) dealt with the publication in the ACT., and paragraph 7(b) dealt with the publication in N.S.W. Paragraph 7(a) raised a "common sting" plea which the defendant sought to justify. Paragraph 7(b) raised contextual truth based on s16 of the N.S.W. Defamation Act. The Master had refused leave to amend, and the defendant unsuccessfully appealed. Higgins J described the "common sting" defence in these terms: "(i) The `Polly Peck' defence: Proposed para 7(a) seeks to invoke the defence that was acknowledged to exist at common law in Polly Peck (Holdings) PLC and Others v Trelford and Others (1986) 1 QB 1000. That defence will arise if, apart from the imputations alleged by the plaintiff to arise from the matter complained of, another substantially different but at least equally damaging imputation arises therefrom so that the plaintiff's reputation is not further damaged by reason of the imputation of which the plaintiff justifiably complains. The need for a least an equal `sting' in the proposed contextual imputation was acknowledged in Kelly v Special Broadcasting Service [1990] VicRp 5; (1990) VR 51. It is not enough to preclude such a defence that some of the imputations contended for by the plaintiff will not be over

-reached or equalled by the sting of the contextual imputation. The defendant may contend that the pleaded imputations more serious than the contextual imputations do not arise leaving only lesser imputations that are then equalled or over-reached by the contextual imputations. Justification of the contextual imputations could then be a defence. As Murphy J pointed out in Kelly (supra) at p74, a defendant who seeks by amendment to raise such a plea must satisfy the court that the proposed amendment is not demurrable. It is, therefore, necessary to enquire whether the meaning contended for by the defendant is capable of being conveyed by the matter complained of and, if so, whether that meaning is defamatory. A further question will then arise as to whether it is capable of over-reaching or equalling the defamatory sting of those imputations which are found to, or are conceded to, arise from the matter complained of. If it does not, the existence of a contextual imputation not relied on by the plaintiff with a lesser `sting' may go to damages but will provide no defence." 16. I respectfully differ from Higgins J as to the effect of the decision in Polly Peck, if what His Honour there said is to be taken literally; in particular, I am unable to find anything in the judgment of O'Connor LJ which is similar to the second sentence of the passage I have quoted above. The nub of the decision in Polly Peck is the need for a common sting to be found in the several defamatory allegations in their context which are then to be treated as no longer separate and distinct allegations. That is quite a different thing from another substantially different imputation but equally damaging imputation, (which is the process envisaged by s16 of the N.S.W. Act) where no common sting is required at all. 17. It is clear also, from my reading of the judgment in that case, that Higgins J did not consider that the common sting defence and the defence of contextual truth established by s16 of the N.S.W. Act were to all intents and purposes identical. 18. In Woodger, Miles CJ was unable to see any difference in principle between the defence of contextual truth in New South Wales and the principles that lie behind Polly Peck (see 107 ACTR at 23) and thought Higgins J to be of the same opinion. I have tried to demonstrate those differences in legal theory, but there are also considerable practical differences, not the least of which is that because contextual truth enables the defendant to prove the truth of a severable assertion of which the plaintiff does not complain, longer (and more expensive) litigation is the inevitable result. As Miles CJ himself recognized, this defence is "capable of converting a modest and narrow claim by a plaintiff into a wide-ranging expansive and expensive inquiry, the limits of which are set by the defendant's capacity to pay for it." (p21). 19. Given that the defendants most likely to be sued have deeper pockets than most plaintiffs are likely to have, I would question the justice of introducing via the "development" of the common law that which parliament has so far not sought fit to introduce in this Territory despite recent legislative attention to the Defamation Act (NT), and despite the fact that the so-called defence of contextual truth has been legislated for in a number of other jurisdictions. 20. The other reasons mentioned by Miles CJ as justifying the development of the defence of "contextual truth" in the ACT. have no parallel in this Territory. In Woodgar, at 23, Miles CJ referred to "English rules of practice which inhibit a defendant pleading or calling evidence on the truth of the publication which do not apply in the Australian Capital Territory" and that because of this he was unable to see any objection to the defendant raising the same matters that are permitted to be raised in N.S.W. by s16 of the Defamation Act. Apparently in the ACT., where truth alone is not a defence unless public benefit is also established, a defendant may plead truth in mitigation of damages, (despite it would appear, the judgment of the N.S.W. Court of Appeal to the contrary in Cohen v Mirror Newspaper Ltd (1971) 1 NSWLR 623 at 629, 636): see Woodger, at p21. In the Northern Territory, no such considerations arise: truth may be pleaded either as a partial defence going to damages (a situation which arises where the defendant seeks to justify some, but not all, of a number of separate and distinct defamatory imputations) or as a complete defence. In no common law jurisdiction of which I am aware may a defendant plead to an imputation that it is true unless he also asserts that it is true in substance and in fact (which encompasses the idea that the sting of the libel is true). The defendant cannot plead that a particular imputation is partly true. 21. Be that as it may, I do not consider that it is appropriate to develop the common law, which is supposed to be uniform throughout Australia, by reference to legislative changes or matters of practice and procedure, where those changes or matters are of a purely local character. 22. Finally, so far as "contextual truth" is concerned, none of the leading Australian text book writers suggest that it is a defence at common law: see for example Fleming, Law of Torts, 8th Edition, p555; Balkin and Davis, Law of Torts, p583-4. 23. Accordingly the pleas contained in paragraph 9 of the defences are bad in law and are struck out. COMMON STING 24. The defendants conceded that the common meanings pleaded in paragraph 11, of the defences, as presently framed, did not, and could not on any view of the facts, meet the sting of the defamatory allegations contained in the broadcasts. Accordingly they sought to amend paragraph 11 to raise a further common meaning which did, or at least arguably could, meet the sting of the defamatory allegations. Mr Reeves did not dispute that the further common meanings arguably could meet the sting of the defamatory allegations. Accordingly, I consider that the defendants should be permitted to amend paragraph 11 of the defences to raise the new common meaning, but that so much of paragraph 11 as originally pleaded other common meanings should be struck out. Further, the plea of justification to that common meaning was poorly drafted, and I indicated that paragraph 11 of the pleadings should be further amended so as to properly raise that plea. JUSTIFICATION 25. Mr Reeves submitted that there was no evidence fit to go to the jury to support the pleas of justification in relation to paragraphs 6(a) and 6(e) of the Statement of Claim. The imputation pleaded in paragraph 6(a) is that the plaintiff was corrupt: the imputation in paragraph 6(e) is that the plaintiff was dishonest. 26. Mr Lynch submitted that there was evidence fit to go to the jury for two reasons. First, both paragraphs 6(a) and 6(e) were inferences to be drawn from certain incidents referred to in the broadcast the truth of which incidents the defendants had sought to justify. Secondly, Mr Lynch submitted that the incidents referred to in the broadcast, if true, demonstrated that the plaintiff was a hypocrite, and it was open to the jury to find that this was a form of dishonesty. Thirdly, Mr Lynch submitted that the imputations which the plaintiff alleged in paragraph 6(c) and 6(d) and which the defendants had sought to justify, viz., that the plaintiff had conspired to arrest the first defendant on false charges, and had conspired to pervert the course of justice, arguably demonstrated that the plaintiff was corrupt in the sense of lacking in integrity. Mr Lynch submitted that it was for the jury to decide the sense in which the plaintiff established the imputations pleaded in paragraphs 6(a) and 6(e) (if at all), and that it was open to the jury to find that the sense in which the plaintiff was corrupt and dishonest was in the senses of lacking in integrity and in his being a hypocrite. 27. Mr Reeves submitted that the plaintiff relies upon other matters in the broadcast to support paragraphs 6(a) and 6(e) which the defendants had not sought to justify; but I consider that it is open to the jury to find that the matters upon which the defendants seek to rely, if proven, could meet the sting of the imputations pleaded in paragraphs 6(a) and 6(e). Mr Reeves submitted that "corrupt" implied abuse of power for personal gain, and "dishonest" implied a disposition to cheat, lie or steal for self gain. It is for the jury to find what imputations the broadcast conveyed and I consider that it is open to the jury to find that the meanings did not imply more than that which the defendants assert. THE FIRST DEFENDANT'S SUBMISSIONS 28. Mr Wrenn submitted that was no evidence fit to go to the jury that he was responsible for the publication of so much of the broadcast as supported the imputations pleaded in paragraphs 6(a), (e), (k), (l), (m), (n) and (o) of the Statement of Claim. Mr Wrenn, who appeared in the broadcast, submitted that as he did not say anything in the broadcast which supported these imputations, he could not be held responsible for them. 29. The plaintiff's particulars of the imputations in each of the paragraphs of the Statement of Claim indicate as follows: (1) imputation 6(a) does rely in part on words which the first defendant spoke in the program. It also relies upon words spoken in the program by a reporter and by words spoken by another person known by the pseudonym "Rhonda". However, I consider that the words spoken by the first defendant are sufficient for this issue to be left to the jury; (2) imputation 6(e) relies in part on words spoken by the first defendant in the program. I consider that the words spoken by the first defendant are also sufficient for this issue to be left to the jury. 30. It is true that in neither instance did the first defendant say, in so many words, that the plaintiff was corrupt or dishonest. The plaintiff submits that these meanings are inferences to be drawn from what the first defendant did say. I consider that these inferences are open to be drawn. An inference to be drawn from the words used is part of the natural and ordinary meaning of the words: Gatley in Libel and Slander, 8th Edition, paragraphs 93 and 97; (3) imputation 6(k) (that the plaintiff had a corrupt relationship with a Darwin night club owner) relies in part upon words actually spoken by the first defendant in the program. Once again I consider that the words spoken by the first defendant in the program may give rise to this inference; (4) imputation 6(e) (that the plaintiff tipped off suspects of planned drug searches) is in the same position as imputation 6(k). 31. I should add that both imputations 6(k) and 6(l) also rely upon statements made by the reporter, the source of which he attributed to Wrenn, in the program itself. That reporter has not given evidence. Mr Wrenn was not cross examined upon, and nor did he give direct evidence of, all of the information he passed on to the second defendant's reporter. The context of the program suggests that much of what the reporter said on this topic in the program was said in the first defendant's presence at the time that part of the program was recorded and, as Mr Wrenn did not correct the reporter, it would be open to the jury to infer that he was indeed the source;

(5) imputation 6(m) (that the plaintiff conspired with others to unlawfully grow and sell a prohibited drug) depends upon what the reporter says in the program was information he received from the first defendant who in turn obtained it from a Dean Richardson in the form of a taped interview. There is evidence that the first defendant gave to the second defendant a copy of a statement he made to the police (Ext D15). This statement refers to a statement from Mr Richardson. Mr Richardson's statement was not tendered, and the first defendant said, in cross-examination, that the statement contained no information as to that allegation (Tr.1839). It is not clear whether or not the first defendant gave the second defendant a copy of Richardson's statement. Whether or not the first defendant passed on the Richardson statement, and whether or not the statement did contain this information, it is a reasonable inference that the information must have been given to the second defendant by Wrenn. 32. I consider therefore that there is evidence fit to go to the jury on this issue. The first defendant is responsible for the publication of whatever information he gave to the second defendant if he authorised the publication of that information either expressly or impliedly, and it is not necessary that the plaintiff prove that the second defendant published the first defendant's precise words, so long as the sense of what was published was not altered: see Parkes v Prescott (1869) 4 LR Exch 169 at 178-179; Cooke v The South Australian Trotting Association (1920) SASR 166 at 168-169; Webb v Bloch [1928] HCA 50; (1928-1929) 41 CLR 331 at 364-365 per Isaacs J. I consider that there is ample evidence from which the jury might infer that Wrenn authorised the second defendant to publish whatever information be passed on to them: see Tr pps 1872-1873; (6) imputations 6(n) and 6(o) are, respectively, that the plaintiff placed the life of a police informer in danger, and threatened the life of a police informer. The informer was a person known by the pseudonym "Rhonda", and the segments of the program relied upon by the plaintiff do not involve the first defendant, but are taken from an interview with "Rhonda", and also a reconstruction, using actors to play the roles of the plaintiff, "Rhonda" and other police (except Wrenn). Although Wrenn knew "Rhonda" (and there are other allegations made concerning the plaintiff involving Wrenn and "Rhonda") there is nothing in the program to suggest that Wrenn was the source of these particular allegations. Mr Reeves submitted that it could be inferred from the evidence that Wrenn gave about his association with "Rhonda" and meetings he had with her before the broadcast, that Wrenn knew of "Rhonda's" allegations and passed that information onto the second defendant's reporters, but I do not think that there is any evidence capable of supporting either inference. There is no evidence that Wrenn had any discussions with "Rhonda" about these matters: nor does the

evidence go so far as to make such a possibility more than mere speculation. There is no evidence as to what Wrenn told the second defendant about "Rhonda", if anything. Mr Reeves submitted that the inference could be drawn from lies told by Mr Wrenn to the jury under cross-examination, but I reject this submission. It was not put to Mr Wrenn in cross-examination that he was the source of these imputations so Mr Wrenn was not given any opportunity to admit or deny that allegation, let alone lie about it. It could not be suggested that he lied about any matter central to this issue. Even if the jury were to find that Mr Wrenn had lied about other matters, (a matter concerning which I make no comment), that would not form a proper basis for concluding that, because of those lies, an inference could be drawn he was the source of this information: see Edwards

v The Queen [1993] HCA 63; (1993) 178 CLR 193 at pps 208-209; 210-211. 33. Accordingly, it is my opinion that there is no evidence fit to go to the jury that Wrenn authorised the publication of those imputations.