Hrdavec v Fairfax Media Publications Pty Ltd

The relevant principles

1. As to issues of capacity, there are two relevant lines of authorities to consider. The first of these is the test to be applied, in an application under r 28.2 UCPR, for the striking out of an imputation on the basis that the matter complained of is not reasonably capable, at a threshold level, of being conveyed. That test is set out in Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 at [135]-[136]: "[135] Accordingly, the capacity determination is "an exercise in generosity not parsimony"; while it involves a "matter of impression … the impression is not of what the words mean but of what a jury could sensibly think they meant": Berezovsky (at [16]) per Sedley LJ delivering the judgment of the court. Implicit in Sedley LJ's observation, is that the question of course is "what a jury could sensibly think [the words] meant" to the ordinary reasonable reader. [136] One reason "great caution" is mandated at the capacity stage, is because the conclusion which necessarily underpins a determination that the matter complained of is not capable of conveying the pleaded imputations is that "no reader could reasonably understand the words to bear any meaning outside the range delimited … by the judge; and that it would be 'perverse' for any jury to do so": Jameel v Wall Street Journal Europe SPRL [2003] EWCA Civ 1694; [2004] EMLR 89 ("Jameel") (at [9]) per Simon Brown LJ (Mummery and Mance LJJ agreeing)."
2. The second line of authority relates to the circumstances in which an imputation of guilt, as opposed to reasonable suspicion, will apply. The test traditionally applied is set out in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300-301 as follows: "As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted. In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such 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. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader."
3. As to imputations that a plaintiff has been arrested and charged with an offence, the High Court noted at 301: "Although Sugerman ACJ in Rochfort stated that a report of the kind discussed is incapable of bearing an imputation other than what it actually states, namely that the plaintiff has been arrested and charged with an offence, I think that it is capable of bearing the imputation that the police suspected him of having committed the offence and that they had reasonable cause for doing so. That, in my opinion, is what the ordinary reasonable reader would understand to be conveyed by such a report."
4. More recently, Australian courts have adopted the terms used in English decisions to differentiate between imputations of guilt ("Chase level one" and "Chase level two" imputations: Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 ("Chase") at [45]) of outright guilt as opposed to suspicion (see R Parkes QC; Professor A Mullis; G Busuttil; A Speker; A Scott; C Strong, Gatley on Libel and Slander (12th ed, 2013, Sweet & Maxwell) at [11.13]). There is a helpful discussion of such imputations at the capacity stage in Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 at [32].
5. As to objections taken by the defendant to the form of the imputations, the only issue of substance was the complaint that imputations (b) and (d) did not differ in substance. The relevant principles are set out in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135.

Imputation (e) - Guilt, or merely suspicion?

1. The matter complained of in these proceedings differs from the matter complained of in Mirror Newspapers Ltd v Harrison in significant ways.
2. First, the statement that the plaintiff has been charged with offences occurs in the context of an article headlined by the announcement of the guilt of one of the four co-accused, who is about to be sentenced, followed by the information that the other two (one of whom is in custody while the other of whom is on bail) are "due to face Penrith Local Court on Friday".
3. Second, while there was no suggestion that there had been a plea of guilty, the guilt of the plaintiff's co-offenders is a matter of record (as to the offender Alcazar) and clearly inferred (as to the other two offenders, one of whom is in gaol and the other on bail). To add to this impression of guilt, the matter complained of concludes with the statement that "[t]he maximum sentence for gang rape is life imprisonment".
4. This is thus that rare example of an imputation where, on a capacity basis, the statement that the plaintiff has been charged occurs in a context where it is arguable, on a capacity basis, that the plaintiff has not merely been charged but guilty of the offences with which he is charged.
5. It is in this context that paragraphs 11 and 14 concerning the plaintiff appear. These paragraphs refer to the plaintiff being charged with three offences and facing a hearing in Penrith Local Court in June. His photograph appears at paragraph 13 under the caption that he "has also been charged with gang-raping a teenager at a party in Blacktown".
6. When determining whether an imputation of guilt is reasonably capable of being conveyed, some importance should be placed upon the setting out of the matter complained of, including the headline, the photograph of the plaintiff and the caption for the photograph.
7. The role of a headline is such that it can, at times, prevail over inferences that might otherwise be drawn from the matter complained of, particularly where the contents of that matter complained of are not to the contrary of the headline: see Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at [134]; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646; Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245 and 1470. In Chakravarti v Advertiser Newspapers Ltd, consideration was given to the role of a headline where a meaning to the contrary was set out in the matter complained of, with particular regard to Charleston v News Group Newspapers Ltd [1995] 2 AC 65.
8. However, no meaning to the contrary is capable of arising from the matter complained of here. The matter complained of in the headline, as in the body of the text, indicates that the plaintiff is one of four men charged where the headline says that one man has pleaded guilty and paragraph 10 is reasonably capable of giving rise to an imputation that the others were about to plead guilty to the same offence of gang-rape as that with which the plaintiff has been charged.
9. A comparison of the headline in these proceedings and the headline in Mirror Newspapers Ltd v Harrison demonstrates the differences between guilt and suspicion. By coincidence, the matter complained of in Mirror Newspapers Ltd v Harrison also involved the arrest of four persons engaged in a common criminal enterprise, namely the assault of a member of parliament. The matter complained of said that a fourth man may be arrested and that "all five [sic] are expected to appear in court later that day, to be charged with 'conspiracy and fraud'" (at 296). However, the headline in that case was "BALDWIN - 4 ARRESTED", not a statement that one of the four had pleaded guilty and that two of the remaining three were in jail or on bail in similar circumstances. The photograph of the plaintiff and the apparent likely similar fate of his co-accused add to this impression.
10. The test set out in Corby v Allen & Unwin Pty Ltd could not be clearer. "Great caution" is mandated at the capacity stage in circumstances such as these, where the whole thrust of the matter complained of is that there was an aggravated sexual assault committed "in company" (paragraph 11) where the guilt of the other offenders was either acknowledged or likely and where the manner of presentation of the photograph and details of the plaintiff shortly before the statement as to the maximum sentence might reasonably be capable of conveying that he was similarly guilty.
11. Accordingly, imputation (e), which has been renumbered to become imputation (a), is reasonably capable of being conveyed.

Imputation (c)

1. Imputation (c) is, however, a fall-back imputation. Mr Rasmussen conceded it was not possible for the matter complained of to convey both guilt and reasonable suspicion at the same time and accordingly imputation (c) will be pleaded as a fall-back imputation to the newly renumbered imputation (a).

Objections as to form: imputation (a)

1. Ms Barnett submitted that imputations (a), (b) and (d) were defective in form in that they did not differ in substance from an imputation of reasonable suspicion.
2. As to imputation (a), thanks to the care taken by most newspapers, a complaint of being charged with an offence is rarely pleaded as an imputation. However, the imputation in question in these proceedings again falls into the exceptional category of being a crime committed in company, where at least one and possibly three of the other three co-accused are guilty. In those very unusual circumstances, the imputation of being charged with an offence may differ in substance from both guilt and reasonable suspicion by the police.
3. The real difficulty for Ms Barnett was in identifying which of the imputations it did not differ in substance from: an imputation of guilt or an imputation of suspicion? In Mirror Newspapers Ltd v Harrison the imputation of being charged and of suspicion were effectively the same because guilt was not implied. In the present case, I am satisfied that, on the capacity test basis, an imputation of guilt is reasonably capable of being conveyed.
4. Applying the test set down by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation at 137, this imputation should be allowed to go to the tribunal of fact as it genuinely differs from mere suspicion and/or outright guilt in a publication where the fact that he has been charged along with three other certainly (or, in two cases, probably) guilty co-offenders really is the sting of the libel.

Imputations (b) and (d)

1. For reasons indicated in argument I struck out imputations (b) and (d) on the basis that they do not differ in substance. Mr Rasmussen has not asked for reasons in relation to this ruling.

Costs

1. This argument related almost in its entirety to imputations (a) and (e), and whether guilt or mere suspicion arose. The argument about failing to differ in substance of imputations (b) and (d) took only a few minutes.
2. Although substantial surgery is required in relation to the imputations, the plaintiff achieved a significantly greater success in that imputation (e) is reasonably capable of being conveyed. The costs should be the plaintiff's costs in the cause.

Orders 1. Imputation (e) is reasonably capable of being conveyed when pleaded as follows "the plaintiff is guilty of gang raping a teenage girl at a Blacktown house party"; imputation (c) ("the plaintiff is reasonably suspected by the police of gang raping a teenage girl at a Blacktown house party") is to be pleaded as a fall-back imputation. These imputations are to be renumbered imputations (a) and (b). 2. Imputation (a) (which is to be repleaded as imputation (c)) is reasonably capable of being conveyed, but is amended as "the plaintiff is charged with aggravated sexual assault in company, deprive liberty and aggravated indecent assault in company". 3. Imputations (b) and (d) are struck out. 4. Amended Statement of Claim in 14 days. 5. Defence by Friday 27 January 2017. 6. Reply 14 days thereafter. 7. Matter stood over for further directions on Thursday 16 February 2017. 8. Costs be the plaintiff's costs in the cause.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 December 2016