Jackson v TCN Channel 9 [2001] NSWCA 108 | Case summary

(a) that he is knowingly involved in the manufacture of illegal drugs; (b) that he is knowingly involved in the distribution of illegal drugs; (c) that he is knowingly involved in illegal arms traffic; (d) that he is willing to murder; (e) that he does not value life; (f) that he is willing to rape; (g) that he willingly associates with people whom he knows to be knowingly involved in the manufacture of illegal drugs; (h) that he willingly associates with people whom he knows to be knowingly involved in the distribution of illegal drugs; (i) that he willingly associates with people whom he knows to be knowingly involved in illegal arms traffic; (j) that he willingly associates with people whom he knows to be willing to murder; (k) that he willingly associates with people whom he knows not to value life; (l) that he willingly associates with people whom he knows to be willing to rape. 5 The issues to be determined by the jury pursuant to s 7A of the Defamation Act were tried before Hulme J who left written questions to the jury based on these imputations. These became Ex G in the trial and the copy on which the jury recorded their verdicts became Ex H. The same two questions were asked in respect of each plaintiff. Question 1 read: "(1) Has this plaintiff … established that the matter complained of ("A Current Affair" programme dated 1 January 1996) conveyed any of the following imputations (or imputations which do not differ in substance from them) to the ordinary reasonable viewer, of and concerning this plaintiff, and if so, which:". 6 Imputations (a) to (l) were then set out. Question 2 was as follows: "(2) If the answer is "Yes" to any imputation in question (1) above: Has this plaintiff … established that the imputation (or imputations) that you have found to be conveyed would have been understood by the ordinary reasonable viewer as defamatory of this plaintiff and, if so, which:". 7 The question again set out imputations (a) to (l). 8 The pleaded imputations fall into two groups, the first comprising imputations (a) to (f) relate to the actions and attitudes of the plaintiff, while imputations (g) to (l) relate to the willingness of the plaintiff to associate with persons who did those acts and had those attitudes. The jury found that both groups were defamatory and were conveyed in respect of each of the male plaintiffs, but that only the second group was conveyed in respect of the female plaintiff. 9 Counsel for TCN moved for judgment notwithstanding the verdicts pursuant to SCR Pt 34 r 8A. Hulme J upheld the motion in part, and entered judgment in favour of TCN in respect of imputations (a) to (f) as pleaded by the nine male plaintiffs. He refused TCN's application with respect to imputations (g) to (l). 10 The male plaintiffs sought leave to appeal from the final judgments in favour of TCN in respect of imputations (a) to (f) presumably because they could not show that each appeal involved at least $100,000. TCN sought leave to cross-appeal from the decision of Hulme J in respect of imputations (g) to (l) as pleaded by all plaintiffs, leave being required because the decision was interlocutory. 11 The parties agreed that the summonses for leave to appeal and cross-appeal should be fully argued so that the proceedings could be disposed of without a further hearing if leave were granted. 12 The Judge said in his ruling on TCN's application: "The conclusion at which I have arrived is that the available evidence does not permit the plaintiffs to succeed in the case of the imputations numbered (a) to (f) but the evidence is sufficient to permit of success in relation to the imputations (g) to (l) … Shortly my reasons for reaching this conclusion are that the relevant defamatory remarks in the programme ... were of … gang membership generally, apart from one or two specific instances which … could not apply to the plaintiffs in any event. Insofar as those remarks were made of … gang membership generally … where they could be properly understood as applying to every single member of … a bikie gang in my view they cannot be regarded as applying to the plaintiffs". 13 His reasons for refusing to reject the verdicts in respect of imputations (g) to (l) were: "The imputations (g) to (l) … are of a somewhat wider nature in their reference to illegal association with people known to be involved in the activities or having the attitudes referred to in imputations (a) to (f). In my view the programme on which the plaintiffs sue does provide evidence upon which a jury would be entitled to find in the plaintiffs' favour on those imputations". 14 The Judge's conclusion with respect to imputations (g) to (l) means that he was satisfied that the contents of the programme enabled the jury to find that each of the plaintiffs had been identified in it. It necessarily follows that identification had also been established for the purposes of imputations (a) to (f). 15 While the Judge was correct in holding that "the relevant defamatory remarks … were of … gang membership generally" (emphasis supplied), he also held (if he was correctly reported) that "they could be properly understood as applying to every single member of .. a bikie gang", of the type targeted by the programme. He held nevertheless that "they cannot be regarded as applying to the plaintiffs" on the principle applied by Willes J in Eastwood v Holmes (1858) 1 F & F 347, 349 [175 ER 758, 759] that the statement "all lawyers are thieves" would not be actionable at the suit of all lawyers or any particular lawyer. 16 The first difficulty with the Judge's conclusion that the relevant defamatory remarks were about gang membership generally is that the programme contained the film showing bike riders in a disciplined formation which the jury found identified each of the plaintiffs. The second problem is that the ordinary reasonable member of the public is entitled "to read between the lines" so that liability for defamation is not limited to the words actually used by the defendant. See Lewis v Daily Telegraph Limited [1964] AC 234, 258 per Lord Reid. The tribunal of fact is not confined to the text but can also consider implications in it and inferences which the ordinary reasonable reader would draw from it. 17 This principle applies with added force to a television programme, especially one which includes film footage. In Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158, 165-6 Hunt CJatCL said: "Whereas the reader of the written document has the opportunity to consider or to re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity. … Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant programme, he or she may not have devoted the same degree of concentration … to each part of the programme as would otherwise have been given to the written article … The trial Judge in a transient publication case will therefore more readily leave it to the jury to decide whether an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed, than he or she would in relation to a written document case". 18 The statement of claim annexed a transcript of the programme which was viewed by the Court. It is not necessary to set out the whole of the transcript or to attach a copy to these reasons. The text directly supports each of the imputations (a) to (f) in respect of "outlaw bikie gangs", and in particular the Rebels, said to be Australia's biggest and most feared gang. 19 The text also supports these imputations in respect of the general membership of the "outlaw bikie gangs". Thus (4) "they hold life quite cheaply" supports imputation (e) "that he does not value life", and imputation (d) "that he is willing to murder" is supported by the same statement read with (2) "very dangerous groups", (12) "they front people and blatantly slay them … dispose of them", (16) "carry secret insignias indicating the wearer has committed a murder", (28) which refers to a pay back murder for disloyalty, and (47) "the only way you can get domination is to take away your competitor and they do that". 20 Imputation (f) "that he is willing to rape" is supported by (12) "they front people and … rape them", and (16) "secret insignias indicating the wearer has committed … a rape". 21 One of the submissions of Mr McClintock SC for TCN was that the statements referred to could not reasonably be understood as applying to all members of these "outlaw bikie gangs". The trial Judge held otherwise and in my judgment the text alone, without any implications or inferences, would convey to the ordinary reasonable viewer that the pervasive culture of these "outlaw" gangs was as pleaded in these imputations, including those relating to willingness to murder or rape. 22 Mr McClintock's principal submission was that this was a typical case of group defamation which conferred no right of action on any individual member of the group. He relied on the well known example: "all lawyers are thieves" already referred to, and Knupffer v London Express Newspaper Ltd [1944] AC 116. 23 While "all lawyers" are members of the same profession, they are not members of a cohesive and disciplined group with a command structure such as a gang. The statement about "all lawyers" is an obvious over-generalisation which no reasonable reader or listener would understand applied or was intended to apply literally to every single member of the group. 24 On the other hand outlaw bikie gangs of the type described in the programme would only attract and retain members who accepted and were willing to conform to the prevailing culture and ethos of the gang. In my judgment the statements made in this programme are akin to statements about organised groups such as the SS, the Klu Klux Klan or the Mafia, rather than statements such as: "all lawyers are thieves". It would be well open to a jury to conclude that general statements made about groups such as those applied, and would be understood to apply, to every member of those groups. In Knupffer Lord Atkin said at 122: "There can be no law that a defamatory statement made of a firm, or trustees, or the tenants of a particular building is not actionable if the words would reasonably be understood as published of each member of the firm or each trustee or each tenant. The reason why a libel published of a large or indeterminate number of persons described by some general name generally fails to be actionable is the difficulty of establishing that the plaintiff was, in fact, included in the defamatory statement, for the habit of making unfounded generalisations is ingrained … [and] the words are occasionally intended to be a facetious exaggeration". 25 Moreover in Eastwood v Holmes (above) Willes J said that the principle about group or class defamation did not apply where "there is something to point to the particular individual", and in Knupffer at 119 Viscount Simon agreed. The plaintiff failed in Knupffer because there was nothing in the article, in the words of Lord Porter at 125, which supported "an inference that he was the person aimed at" and Viscount Simon said at 121 that there was nothing "in the article itself which ought to suggest even to [the plaintiff 's] friends that he is referred to as an individual". The other Law Lords applied the same test. Lord Russell said at 123: "When the construction of the matter complained of comes under consideration, there may be something in the defamatory matter or in the circumstances in which it is published, which indicates, and enables a jury to find, that particular individuals are defamed although they are not named". 26 Lord Porter said at 124: "The true question always is: 'Was the individual, or were the individuals, bringing the action personally pointed to by the words complained of '." 27 There can be no doubt that there was something in this programme which pointed to these plaintiffs as individuals. They were identifiable in the film and each of them was identified by witnesses. 28 The significance of this was a matter for the jury. The ordinary reasonable viewer may have thought that the film sequence had simply been used as background and had nothing to do with the rest of the programme. However the jury could "read between the lines" and find that the use of the film footage, without any disclaimer, at that point in the programme implied that the riders were members of one of the outlaw bikie gangs. The jury could also find that the ordinary reasonable viewer would have inferred this. 29 In my judgment therefore it was open to the jury to find that the programme conveyed the imputations pleaded in respect of the plaintiffs who were identified from the film footage, and the trial Judge should not have entered judgment for TCN on imputations (a) to (f). Leave to appeal should be granted and the plaintiffs' appeal allowed. 30 TCN's summons for leave to appeal challenged the trial Judge's decision that the jury's verdicts on imputations (g) to (l) should not be disturbed. The relief sought was the entry of judgment for TCN on those imputations or, in the alternative, a new trial. 31 TCN submitted that these imputations were ambiguous and therefore embarrassing and should have been struck out under SCR Pt 15 r 26. One of the difficulties with this submission is that an application by TCN in respect of the pleadings had been heard and determined by Levine J prior to the trial but we were not provided with a copy of his judgment. Any order made on such an application would be interlocutory and open to review on an appeal from the final judgment (Crowley v Glissan (1905) 2 CLR 402), but there has been no final judgment in respect of these causes of action. 32 If TCN raised the present question before Levine J and failed, its application for leave to appeal on this issue is really an application for leave to appeal out of time from Levine J's decision. The Judge's reasons might also have revealed that this point was not taken, or was conceded, or that the pleading was amended to overcome some other objection without the present objection being raised. This submission therefore fails on procedural grounds, but in my judgment it also fails on the merits. 33 Mr McClintock's point is that imputations (g) to (l) are ambiguous, particularly those parts which state that the plaintiffs "willingly associate with people whom he (she) knows to … ". He illustrated this ambiguity with the example of a barrister who appeared for persons such as those described in the imputations who, in one sense, might be said to willingly associate with them. He also submitted that the meaning of these imputations accepted by the jury could not be known and the Judge conducting the rest of the trial might adopt a different meaning when dealing with the defences or awarding damages. 34 This submission fails because the meaning of the pleaded imputations was a question of law to be decided by the trial Judge and not by the jury. See Singleton v Ffrench (1986) 5 NSWLR 425, 428, 435. Any dispute about the meaning of these imputations had to be resolved by the Judge. If the Judge rejected the plaintiffs' construction, counsel for the plaintiffs would have to accept the ruling or seek leave to amend. If the Judge rejected the defendant's construction, counsel for the defendant would have to accept the ruling, or apply for an adjournment or an amendment. 35 The Judge is bound, if necessary, to direct the jury as to the proper meaning of the pleaded imputations but would not have to do this if their meaning was clear and not in dispute. Any ruling or direction as to the meaning of the imputations would be a final decision binding on the Judge conducting the later stages of the trial, unless the jury's verdict were set aside in the meantime. See Hunter v Chief Constable of the West Midlands Police [1982] AC 529, 542 and Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630, 642. The Judge did direct the jury on the meaning of "willingly associates" and TCN did not seek a new trial on the ground of error in those directions. In any event they were clearly correct. 36 Pleaded imputations must be interpreted in the light of the surrounding circumstances which include the publication complained of. When these imputations are read with the programme there is no possible ambiguity. The willing association referred to is that involved in continuing membership of a voluntary association. 37 TCN's second point was that these imputations could not arise from the matter complained of. This fails for the reasons already given for holding that imputations (a) to (f) were capable of arising. 38 TCN's final point was that the Judge misdirected the jury and this Court should order a new trial. The relevant direction was as follows: "[Counsel for TCN] made a suggestion to the effect … that to succeed any particular plaintiff had to be identifiable and identified by a witness from A Current Affair programme considered alone. As a direction of law by which you are bound, I tell you that is wrong and it does not matter whether a plaintiff was identified or identifiable in that fashion or as a result of both A Current Affair and the Weddings programme or knowledge that the plaintiff was on the Weddings programme and thus one of the people depicted on A Current Affair". 39 Mr McClintock's argument in this Court was that he had not made any such submission and this was therefore a serious misdirection. He did not contend that it was erroneous in law, but simply that it was wrong in fact. In General Motors-Holden's Pty Limited v Moularas (1964) 111 CLR 234, 255, Menzies J approved the distinction drawn in Holford v Melbourne Tramway & Omnibus Co Limited [1909] VLR 497 between a misdirection on the law and one on the facts. In that case Cussen J said at 527: "In the latter case [a misdirection as to the facts] there may be no substantial wrong or miscarriage, unless it appears affirmatively from the verdict or otherwise that the misdirection has led to injustice, which generally is the same in effect as saying that the verdict is against evidence. It is assumed in most cases that the jury, who have or ought to have heard the evidence, will probably correct any mistake of mere fact". 40 In the same case Windeyer J said at 259: "An erroneous direction of law, if on a material matter and capable of affecting the result of a trial, will, generally speaking, be a ground for a new trial as of right. But a new trial is not necessarily ordered because of the way the trial Judge has discussed the facts. There is then a wider discretion". 41 The transcript of the relevant portions of Mr McClintock's address to the jury included the following: "… if you think that the ordinary reasonable viewer would not have recognised the people in question, once again the answer to this question will be no because it won't be about this plaintiff. Put another way Channel 9 has to have shown the person in a recognisable way. If they are covered up or obscured it is not about them" (T 18 41-49). "That is what happens here. Some were not shown but some people knew they were there from the Weddings programme before. If the reason they knew they were there is only because of the Weddings programme and not what they saw about that person, again it is not about that person, it is not of and concerning, they have not been identified" (T 19 15-20). "I can give you an example about this. Remember Mr Fielding [the third plaintiff] … Now some people … say they recognise him on the ride. In fact he can't be recognised when you look at it … The reason no-one recognised him is because no-one can say they recognised him, and people who say they recognised him … what they were actually doing was remembering that programme which had been on, the Weddings programme, and knew he was either the father of the bride and knew that he was in the footage because they had seen it in different circumstances before. Now if you can't see them on the programme, they are not identified, and if you can't see them recognisably they are not identified, and it is not of concern" (T 20 1-31). 42 These submissions amounted in substance to the submission which the Judge attributed to Mr McClintock that "to succeed any particular plaintiff had to be identifiable and identified by A Current Affair programme considered alone". Accordingly this point also fails. 43 I would propose the following orders:

Jackson v TCN Channel 9

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Judgment (19 paragraphs)

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Cases Cited (4)

Cited By (2)