John Fairfax Publications Pty Limited v Obeid

Court of Appeal (NSW)|2004-05-14|Before: Sheller JA, McColl JA, Levine J, Coll JA

CITATION: John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60

JUDGMENT OF: Sheller JA at 1; McColl JA at 2; McClellan AJA at 130

DECISION: (1) Grant the appellant leave to appeal subject to filing the Amended Notice of Appeal within 14 days. (2) Dismiss the appeal. (3) Appellant to pay the respondent's costs.

Ainsworth Nominees Pty Limited v Hanrahan [1982] 2 NSWLR 823 Astaire v Campling [1966] 1 WLR 34 Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 Bass v TCN Channel Nine [2003] NSWCA 118; (2003) 60 NSWLR 251 Bass v McDonald & TCN Channel Nine [2001] NSWSC 988 Bik v Mirror Newspapers Limited [1979] 2 NSWLR 679 Buck v Jones [2002] NSWCA 8 Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 Dow v Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575 Emmens v Pottle (1885) 16 QBD 354 Gillespie v Nationwide News Pty Limited [2000] NSWSC 553 Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188 Hassen v Post Newspapers Pty Ltd (1965) 3 SA 562 Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664 Harrison v Mirror Newspapers Ltd [1981] 1 NSWLR 620 John Fairfax Publications Pty Ltd Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408 CASES CITED: Lee v Wilson & Mackinnon [1934] HCA 60; (1934) 51 CLR 276 Lewis v Daily Telegraph [1963] QB 340 Lewis v Daily Telegraph Ltd [1964] AC 234 Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 Mirror Newspapers Limited v Harrison [1982] HCA 50; (1982) 149 CLR 293 Morgan v John Fairfax & Sons Limited (1988) 13 NSWLR 208 Morgan v Odhams Press Ltd [1971] 1 WLR 1239 Nationwide News Pty Limited v Heggie [2001] NSWCA 257 Obeid v John Fairfax Publications Pty Ltd [2003] NSWSC 967 "Truth" (NZ) Limited v Holloway [1960] 1 WLR 997 Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16 Rigby v John Fairfax Group Pty Ltd (New South Wales Court of Appeal, unreported, 1 February 1996) Ronald v Harper [1910] HCA 43; (1910) 11 CLR 63 Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845 Wake v John Fairfax & Sons Ltd [1973] NSWLR 43 Webb v Bloch (1928) 41 CLR 331 Webbie v Nationwide News Pty Ltd (1968) 12 FLR 271 Wheeler v Somerfield [1966] 2 QB 94

John Fairfax Publications Pty Limited (Appellant) PARTIES: Edward Obeid (Respondent)

G O'L Reynolds SC/ K P Smark (Appellant) COUNSEL: B R McClintock SC/M F Richardson (Respondent)

Freehills (Appellant) SOLICITORS: Gilbert & Tobin (Respondent)

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41007/03 SC 20387/02

SHELLER JA McCOLL JA McCLELLAN AJA

Monday, 14 March 2005 JOHN FAIRFAX PUBLICATIONS PTY LIMITED v Edward OBEID On 30 August 2002 the appellant published an article on the front page of the Sydney Morning Herald headed "ALP push for Oasis cash: Obeid accused". Photographs of Mr Obeid and Mr McIntyre appeared in the article with the caption "$1 million fix-it plan alleged … Eddie Obeid and Gary McIntyre". The article reported sources who, in substance, asserted that Mr Obeid had sought a $1 million payment to the ALP in return for solving the Bulldogs' problems with their Oasis development. It also reported Mr McIntyre describing allegations that the club had been pressured into making a donation to the NSW Labor Party in return for a waiver on the poker machine freeze as "absolute garbage". The respondent then commenced defamation proceedings against the appellant in which he complained that the article conveyed a number of imputations which were defamatory of him.

A hearing took place before a jury pursuant to s 7A of the Defamation Act 1974 (NSW) (as amended) to determine whether the article carried the imputations of which the respondent complained. During his address to the jury counsel for the appellant argued that certain imputations (which he described as the "guilt imputations") were not conveyed because the ordinary reasonable reader would have read the article with the presumption of innocence in mind (the "presumption of innocence submission"), because there was no indication that the appellant had adopted the assertions set out in the article (the "adoption submission") and because there was no intention manifested by the appellant to convey the imputations (the "manifest intention submission"). He informed the jury that the trial judge would direct them that that the ordinary reasonable reader is mindful of the principle that a person accused of a crime is presumed innocent until it is proved that he is guilty. At the end of counsel for the appellant's address to the jury the trial judge discharged the jury on the respondent's application on the basis that the presumption of innocence submission was erroneous and that he could not cure the prejudice which flowed from it by direction. He also considered that the adoption and manifest intention submissions were erroneous and compounded the prejudice which flowed from the presumption of innocence submission.

On an application for leave to appeal, the appellant argued the jury should not have been discharged. The appellant argued that presumption of innocence submission had been in accordance with Mirror Newspapers Limited v Harrison [1982] HCA 50; (1982) 149 CLR 293, that the trial judge took the adoption and manifest intention submissions out of context and that his decision that he could not cure any prejudice by direction was manifestly unreasonable. HELD per McColl JA (Sheller JA McClellan AJA agreeing), granting leave to appeal, but dismissing appeal.

The trial judge did not err in exercising his discretion to discharge the jury.

Mirror Newspapers Limited v Harrison did not support the presumption of innocence submission. That case is authority for the proposition that a report that a person has been arrested and charged does not convey an imputation that the person is guilty of the offence the subject of the charge. It could not be presumed that the ordinary reasonable reader would be mindful of the presumption of innocence whenever accusations or allegations are made particularly when the defamatory statements are made in circumstances unrelated to, or remote from, the operation of the criminal justice system. Mirror Newspapers Limited v Harrison [1982] HCA 50; (1982) 149 CLR 293 considered. Lewis v Daily Telegraph Ltd [1964] AC 234; Rigby v John Fairfax Group Pty Ltd (New South Wales Court of Appeal, unreported, 1 February 1996), Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510, Ainsworth Nominees Pty Limited v Hanrahan [1982] 2 NSWLR 823, Gillespie v Nationwide News Pty Limited [2000] NSWSC 553; Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188 referred to.

The trial judge did not take the adoption or the manifest intention submissions out of context.

It was open to the trial judge to conclude that the adoption submission was capable of confusing the jury. Mere republication of defamatory hearsay suffices to attract liability for defamation, although that liability may be qualified by the context in which the defamatory hearsay is republished. Ronald v Harper [1910] HCA 43; (1910) 11 CLR 63; "Truth" (NZ) Limited v Holloway [1960] 1 WLR 997; Wake v John Fairfax & Sons Ltd [1973] NSWLR 43; Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510; Bik v Mirror Newspapers Limited [1979] 2 NSWLR 679; Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845; Ainsworth Nominees Pty Limited v Hanrahan [1982] 2 NSWLR 823 Nationwide News Pty Limited v Heggie [2001] NSWCA 257; Buck v Jones [2002] NSWCA 8; John Fairfax Publications Pty Ltd Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 referred to.

It was open to the trial judge to conclude that the manifest intention submission was capable of confusing the jury. It is the publisher's objective intention rather than subjective intention that is relevant in determining whether an imputation has been conveyed. Lee v Wilson & Mackinnon [1934] HCA 60; (1934) 51 CLR 276; Wake v John Fairfax & Sons Ltd [1973] NSWLR 43; Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 663, Ainsworth Nominees Pty Limited v Hanrahan [1982] 2 NSWLR 823, Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112; Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845; Nationwide News Pty Limited v Heggie [2001] NSWCA 257 referred to.
The trial judge was entitled to conclude that directions to the jury could not cure the prejudice arising from the address to the jury. Morgan v John Fairfax & Sons Limited (1988) 13 NSWLR 208 referred to. ORDERS

(1) Grant the appellant leave to appeal subject to filing the Amended Notice of Appeal within 14 days.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 41007/03 SC 20387/02

SHELLER JA McCOLL JA McCLELLAN AJA

Monday, 14 March 2005 JOHN FAIRFAX PUBLICATIONS PTY LIMITED v Edward OBEID Judgment

1 SHELLER JA: I agree with McColl JA. 2 McCOLL JA: This is an application for leave to appeal heard concurrently with the appeal. As I am of the view that the claimant should be given leave to appeal, I shall refer to the respective parties as appellant and respondent throughout this judgment. 3 The case concerns the question whether the trial judge was correct to accede to the respondent's application that the jury be discharged at the conclusion of counsel for the appellant's address during a hearing pursuant to s 7A of the Defamation Act 1974 (NSW) (as amended). 4 On 30 August 2002 John Fairfax Publications Pty Limited (the "appellant") published an article on Page 1 of the Sydney Morning Herald headed "ALP push for Oasis cash: Obeid accused" (the "matter complained of"). The matter complained of is set out in the Schedule to this judgment. 5 The respondent brought the present proceedings complaining that the matter complained of conveyed the following imputations, each of which was asserted to be defamatory of him:

(a) the plaintiff is a corrupt politician prepared to assist the Bulldogs Leagues Club with a development in return for payment of $1 million to the Australian Labor Party ("ALP");

(b) the plaintiff behaved in such a way so as to give rise to the suspicion that he was a corrupt politician prepared to assist the Bulldogs Leagues Club with a development in return for payment of $1 million to the ALP;

(c) the plaintiff attempted to obtain a bribe, that is a payment of $1 million for the ALP in return for facilitating the completion of the Oasis Development;

(d) the plaintiff behaved in such a way as to give rise to the suspicion that he had sought to obtain a bribe, that is $1 million for the ALP, in return for facilitating the completion of the Oasis Development;

(e) the plaintiff lied when he denied that he had sought a bribe for the ALP in return for facilitating the completion of the Oasis Development;

(f) the plaintiff is a corrupt politician in that he was prepared to evade the legal restriction on licensing poker machines in return for payment of $1 million to the ALP. 6 Mr Reynolds SC, who appeared with Mr Smark for the appellant on appeal and below, referred to imputations (a), (c), (e) and (f) as the "guilt imputations" during the s 7A hearing, while he referred to (b) and (d) as the "suspicion imputations". I shall adopt that terminology in this judgment. Mr Reynolds informed the Court that the appeal related only to the guilt imputations. 7 On 22 October 2003 the s 7A hearing to determine whether the matter complained of carried the imputations of which the respondent complained commenced before Levine J and a jury of four. On 23 October 2003 Levine J discharged the jury on the respondent's application.

Statement of the case 8 After the jury was empanelled on 22 October 2002 the trial judge, as is customary, addressed some preliminary remarks to its members. He pointed out that they were judges of the questions of fact and he was the judge of the law. He informed them that he would give them directions about the law in due course. He asked the jury to bear in mind "a very fundamental proposition" namely that when they came to consider the matter complained of and the questions they would be required to answer, they were only "concerned with whether the article means [what] it is said to mean and whether the meanings are defamatory". He informed them that they would not "be concerned in any way with whether the article is true or whether the meanings are true". 9 Mr McClintock SC, who appeared with Mr M Richardson on behalf of the respondent below and on appeal, then addressed the jury. The matter complained of was tendered and a copy given to the jurors. Mr McClintock's address concluded shortly after the luncheon adjournment. 10 Mr Reynolds then commenced his address to the jury. He dealt with some general matters. He explained the concept of the ordinary reasonable reader whose views the jury were to regard as typical of the readers of the matter complained of in determining whether or not the respondent's imputations were conveyed. After pointing out that such readers do not have "extreme views", are not "unduly suspicious and don't adopt strained or forced constructions of what is said" and "read it reasonably", he continued: "(T40) Now, the reasonable person, as I said to you is also fair minded and his Honour, I venture to say will direct you that the ordinary reasonable reader is mindful of the principle that a person accused of a crime is presumed innocent until it is proved that he is guilty. Now, that, I suggest to you, is a very, very important part of this case. It is a very important component of the notion of reasonableness, the notion of being fair-minded, of approaching the reading of accusations of criminality in a fair way. It is sometimes called, I am sure you would have heard this said, the presumption of innocence. Each person in the community is presumed innocent of a crime until it is proved in a court of law that they are guilty. As I said to you before, his Honour will give you some instruction about the importance of that particular principle in this case . But I want to stress it early on as an important part of the way a reasonable reader reads a newspaper article of this kind." (emphasis supplied) 11 Mr Reynolds made some further general observations then turned his attention to the question of whether the imputations upon which the respondent relied were conveyed. He divided his address between what he described as the "guilt imputations" and the "suspicion imputations". He explained to the jury that he referred to imputations (a), (c), (e) and (f) as the "guilt imputations" because although the word "guilt" was not used in them, "each of them says that the plaintiff is guilty of something". He elaborated on that proposition in a manner with which it is unnecessary to deal for the purpose of this judgment. 12 Mr Reynolds pointed out to the jury that the respondent's primary case was that the matter complained of conveyed the guilt imputations and that if those imputations were found to arise it was unnecessary for them to deal with the suspicion imputations. He submitted the jury could consider the guilt imputations together because there were a "series of problems" common to them all. 13 First, he submitted "on no view does this article say that Mr Obeid is guilty of anything". He repeated the proposition that the word "guilt" did not appear in the article. Next he said:

"(T43) Secondly, if you look to the headings … you will see that they used the word "accused". … the reason I stress it is that at this stage they are only just that, accusations. And that is in both of the headings, both on Page 1 and Page 4, and, remember the ordinary reasonable reader is aware, is mindful of the presumption of innocence. There is also in the caption under those two photographs the word 'alleged'. Now, every ordinary reasonable reader, I suggest, knows what that means. It means that the allegation has been made but it has not been proved. We hear all the time, don't we, on the radio, or the television or we read it in the newspaper, it is alleged that so and so is guilty of murder. That does not directly say that they are guilty. It simply says that the allegation has been made." (emphasis added) 14 Mr Reynolds then drew the jury's attention to the four denials referred to in the matter complained of and submitted that a fair summary of the article was that it was "a very clear example of allegation of claim and counter claim of one person saying one thing, another person says the opposite". He said: "(T44/44) Now, if you have as I say, claim and counter claim allegation and denial, one person says X, the other person says the opposite and the key ingredient in all of this is whether the allegation is correct, if you are looking, I suggest, to whether or not the article conveys guilt, you need to look to see whether there is any suggestion in the article that the Sydney Morning Herald or John Fairfax or whatever you want to call it, or the journalist actually adopted one side or the other or is it simply a situation where they say one person says this but the other person denies it.

Now, is there, I ask you, anything in this article which tells you that the Herald or the journalist are adopting one side of the debate or the other? I suggest to you that, and I will go into this in a little more detail later, that you can't find any suggestion in this article that the Herald is saying, "one view is correct over the other". Your recollection is what you will have to trust but I don't think Mr McClintock even suggested as much to the contrary. (T45/10) You can't point to any paragraph in this article which says something like this. Well, the sources make the accusation, Mr McIntyre and Mr Obeid deny the accusation, but in the opinion of the Sydney Morning Herald it is clear that the accusations are true. You certainly won't find anything of that kind.

All that the newspaper has done is state the two competing views and that, I suggest to you, does not suggest or the article does not suggest any imputations of guilt, for that reason, and if necessary for that reason alone. Let me give you an example which moves away from the particular detail of this case.

If … just for the sake of illustration, if I said to you, 'Now the Prime Minister, Mr Howard, says that Mr Crean, the opposition leader, is a murderer. Mr Crean says that's absolute garbage.' Does that convey, when I say that to an ordinary reasonable listener and the ordinary reasonable person the imputation that Mr Crean is a murderer? I suggest not, because any ordinary reasonable person hearing that would say, 'Well Mr Howard says one thing, Mr Crean who is the subject of the allegation denies it. How do I know?' You don't know either way.

(T45/36) Putting it another way, if you look at this article, there is no intention on the part of the Herald or the journalist manifest in the article, there is no intention manifest to suggest that Mr Obeid is guilty of anything. Can't point to a single paragraph where such an intention is manifest.

Again, the ordinary reasonable reader is reading this article mindful of the principle that someone accused of a crime is presumed innocent until it is proved that they are guilty. So, as they are reading these words and they hear there is an allegation followed by several denials, they are mindful of the presumption of innocence, that accusations may be made, but until such time as they are proved, the person the subject of the allegations is innocent." [The italicised portions are those to which the trial judge referred specifically when considering whether the references to adoption and intention warranted discharging the jury] 15 Mr Reynolds then addressed the jury on the fact that some of the words in the imputations such as "corrupt", "prepared to assist", "bribe", "attempted to obtain a bribe", "corrupt politician" and being "prepared to evade the legal restriction" were not found in the article and continued: "[T46] So even leaving aside the question of the presumption of innocence and the idea that there is no suggestion of guilt of any kind, other than allegation and counter allegation, there are problems … with the various elements that are in this imputation." 16 After responding to aspects of Mr McClintock's address to the jury, Mr Reynolds said: "The general flavour of it, the gist of it which I suggest the ordinary reasonable reader would get is this: some people say the accusation is true. The people who are accused deny it. How can we tell what the truth is until, as I say, a court of law looks at his issue and decides if the charges are proved?" (emphasis supplied) 17 Mr Reynolds concluded on this issue by submitting to the jury that his "main argument is that there is no suggestion of guilt manifest in this article". He then addressed the jury on the suspicion imputations and finally on the question whether the imputations were defamatory. He conceded that if the jurors found the guilt imputations were conveyed then, in effect, they were defamatory. No such concession was made, however, in respect of the suspicion imputations in relation to which Mr Reynolds put to the jury: "(T52) All it is suggested in those imputations is that there is a suspicion. I suggest that the ordinary right thinking members of the community don't think the less of somebody simply because it is suggested that there is a suspicion about it. It is partly to do with the idea of the presumption of innocence and the fact that, even though there is a suspicion they are entitled to be presumed innocent until it is proven that they are guilty…(T53) the most important thing in looking at these two suspicion imputations is, as I said to you before, this presumption of innocence, that is, the ordinary reasonable reader people are mindful of the principle that a person is presumed innocent until they are proven guilty." 18 Mr Reynolds then addressed the jury at some length further in relation to the suspicion imputations and concluded his address with some summary remarks. 19 As soon as he finished his address Mr McClintock applied for the jury to be discharged.

Application to discharge the jury 20 The application to discharge the jury was primarily based on the proposition that Mr Reynolds had misled the jury in his submissions concerning the presumption of innocence (the presumption of innocence submission"), adoption (the "adoption submission") and the relevance of the publisher's intention (the "manifest intention submission"). 21 Mr McClintock complained about what he referred to as Mr Reynolds "completely illegitimate use of the concept of innocence". He argued that it was not open to Mr Reynolds to put to the jury that in determining whether the imputations were conveyed the ordinary reasonable reader would bear in mind the presumption of innocence. He submitted that the situation was governed by Gillespie v Nationwide News Pty Limited [2002] NSWSC 553 at [9] where Levine J had held that the principle in Mirror Newspapers Limited v Harrison [1982] HCA 50; (1982) 149 CLR 293 ("Harrison") (to which I refer in more detail below) was limited to a publication which stated that a person has been arrested and charged with a criminal offence thus invoking the ordinary reasonable reader's understanding of the presumption of innocence. 22 Mr McClintock also complained that Mr Reynolds had told the jury that it could only find the imputations conveyed if the appellant had adopted what was said by the sources. He submitted the adoption submission was contrary to principle. He argued that it was not the law that a person reporting the defamatory statement of another is only liable if he or she adopts the statement or reaffirms it. Finally, he contended that Mr Reynolds had erroneously referred to the intention of the publisher as being relevant to the question whether the imputations were conveyed. 23 Mr Reynolds argued the presumption of innocence submission was justified by Mason J's statement in Harrison (above, at 300) that: "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." 24 Mr Reynolds contended that all of the imputations encapsulated various offences, such as soliciting a bribe, extortion, official misconduct, wilful abuse of official power and wilful abuse of position. Accordingly, he submitted the appellant was entitled to a jury direction based on Harrison (a "Harrison direction") to the following effect: "I direct you that in determining whether the imputations were conveyed to an ordinary reasonable reader you must assume that 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." 25 Mr Reynolds also submitted that the trial judge might entertain a fallback direction to the following effect: "… if it were the police that had made the allegation then the ordinary reasonable reader would be mindful. (sic) The police did not make the allegation here. It is an accusation made by somebody else … it is a matter for you, members of the jury, as to whether you think the ordinary reasonable reader would have been mindful of that presumption in the circumstances of this publication."

26 Mr Reynolds contested Mr McClintock's submission that he had put to the jury that they could not find the guilt imputations conveyed if they found the appellant had not endorsed or adopted the relevant allegations, but, rather, contended he had addressed the jury on the basis that the question whether the appellant had adopted or endorsed the allegations was a relevant consideration. 27 He argued that Nationwide News Pty Limited v Heggie [2001] NSWCA 257 ("Heggie") and Ainsworth Nominees Pty Limited v Hanrahan [1982] 2 NSWLR 823 ("Ainsworth") supported the proposition that in determining whether an imputation was conveyed to the ordinary reasonable reader "regard may be had to adoption, repudiation, discounting, purpose, endorsement of the allegation by the publisher, or whether there was an intention manifested by the publisher". 28 The argument on the discharge application continued on the morning of 23 October 2003. At the conclusion of the argument the trial judge gave an ex tempore judgment and discharged the jury.

Reasons of the trial judge 29 Before considering the substantive application to discharge the jury, his Honour reminded himself of the principles expressed in Morgan v John Fairfax & Sons Limited (1988) 13 NSWLR 208 counselling trial judges against lightly discharging juries. He observed (Obeid v John Fairfax Publications Pty Ltd [2003] NSWSC 967 at [4]) "the step is no less drastic and represents no less a compromise of the administration of justice merely because it is a 7A trial. However, the fact that the 7A trial is of a discrete character and its termination by discharge does not have the extraordinary consequences that used to attend that drastic step is a factor that can reasonably be taken into account". 30 The trial judge identified the principal ground for the discharge application as the presumption of innocence submission. He referred (at [6] - [7]) to the passages of Mr Reynolds' address dealing with the presumption of innocence I have extracted above and continued: "[7] … The proposition that was so important in Mr Reynolds' address and would have been taken by the jury as being so important and would have been so taken by anyone hearing Mr Reynolds' address was, that the jury would be entitled in considering the issue of whether or not the imputations were conveyed, to take into account that the ordinary reasonable reader would be conscious of the presumption of innocence. That was the nub of what I would call the presumption of innocence submission. [8] It was stated in the course of the address to the jury that I would direct the jury that the ordinary reasonable reader is mindful of the principle that a person accused of a crime is presumed innocent until it is proved that he is guilty." 31 He rejected Mr Reynolds' submission that the appellant was entitled to a Harrison direction. In his Honour's view (at [10]) Harrison was "authority for no more than the proposition anchored in the matter complained of with which that Court and antecedent courts were concerned: that a statement that a person has been arrested and charged cannot give rise to an imputation that that person is guilty of that for which he has been arrested and charged", a view of Harrison he noted he had expressed in Gillespie v Nationwide News Pty Limited. 32 Accordingly, he concluded (at [11] - [12]) that as he was not dealing with "a Harrison case" there was no room for a Harrison direction. 33 The trial judge also declined to give Mr Reynolds' fallback direction because, in his view (at [13]), both that direction and the Harrison direction "if given in this type of case, could dangerously divert the attention of the jury to issues of truth and falsity". 34 His Honour's view was that the presumption of innocence submission was sufficient to warrant the discharge of the jury on the basis that no direction could cure the prejudice flowing from it or the prejudice which could arise if he sought to correct. He said (at [14]): "If that was the only ground it would be sufficient because I would be persuaded that what I would have to say to the jury negatives such a substantial component of Senior Counsel for the defendant's address, that prejudice could arise not merely viz à viz the defendant thereby, but by reason of the provocation of a misguided sympathy towards the defendant, also against the plaintiff." 35 The trial judge also dealt with the respondent's complaint concerning the adoption and manifest intention submissions. He referred (at [15]) to the first paragraph in Mr Reynolds' address on this point and said (at [16]) that, in his view, that passage: "… could only be understood as suggesting to the jury that it ' needs' (the word used by counsel) to look to see whether there is any suggestion in the matter complained of that the paper or its publisher or journalists actually adopted it, before the jury could come to the view that the ordinary reasonable reader would understand the posited imputation as being carried." [emphasis in original] 36 His Honour was also of the view (at [17]) that the adoption submission "was reinforced by what was said at line 10 p 45, and compounded in its capacity to confuse, by what was said at lines 35 to 42 on p 45" concerning manifest intention. 37 His Honour noted that the language used by Mr Reynolds in relation to manifest intention coincided with propositions stated by Hodgson JA in Heggie at [20] and " 'resonates' to some extent" with Hunt J's observations in Ainsworth at 830 - 831 but said: "[20] The view I have formed, however, is, if either what Hunt J said in Ainsworth or Hodgson JA said in Heggie, and I stress 'if', stands for a proposition to the effect that regard may be had to adoption, repudiation, discounting, purpose, endorsement of the allegation by the publisher, or whether there was an intention manifested by the publisher, constitutes a legitimate mechanism for the jury to determine whether to the ordinary reasonable reader a meaning was conveyed, the manner in which that language is employed in counsel's address in my view removed it from a mechanism and elevated it to a point where absence of such features would compel and must compel a negative conclusion . [21] To correct that matter in the summing up by itself, but the more so in relation to the presumption point, could only aggravate the danger of prejudice to which I have referred. [22] I would add very briefly the following observations: that both those principal grounds invited my view (sic, this was presumably "in my view") speculation as to knowledge, speculation as to belief, and attention to subjective intention in the publisher, none of which is legitimate and all of which cannot be cured. Accordingly I propose to discharge the jury." (emphasis supplied) 38 His Honour then discharged the jury and ordered that the appellant pay the plaintiff's costs thrown away as a consequence of the discharge and of the discharge application.

Grounds of appeal 39 The appellant relies upon multiple grounds of appeal which, to some extent, can be summarised as follows: 1. that the trial judge was in error in concluding that any of the presumption of innocence submission, the adoption submission and the manifest intention submission warranted the discharge of the jury. 2. that the trial judge erred in failing to hold that any error in counsel for the appellant's address concerning the presumption of innocence submission, the adoption submission and the manifest intention submission could easily be remedied by a direction to the jury.

that the trial judge's decision to discharge the jury was manifestly unreasonable. 40 In relation to the adoption submission and the manifest intention submission the appellant raised the following particular grounds of appeal:

that the trial erred in determining that the adoption submission warranted the discharge of the jury by reason of the following matters: (a) the trial judge's isolation of the portion of the address to the jury by counsel for the appellant, as set out at paragraph 15 of the judgment, did not fairly reflect what counsel for the appellant had said in address on the issue of adoption; (b) the trial judge's construction (in paragraphs 16 and 20 of the judgment) of the address to the jury by counsel for the appellant in relation to adoption by the publisher of the allegations against the respondent was manifestly erroneous; (c) the trial judge erred in failing to hold that the issue of adoption by the publisher of the allegations against the respondent was relevant to the jury's determination of the meaning of the matter complained of especially where that matter substantially comprised claim and counter-claim concerning allegations against the respondent;

that the trial judge erred in determining that the address to the jury by counsel for the appellant in relation to intention on the part of the publisher manifest in the matter complained of warranted a discharge of the jury by reason of the following matters: (a) the trial judge's construction (in paragraph 20 of the judgment) of the portion of the address to the jury by counsel for the appellant on the issue of manifest intention was manifestly erroneous; (b) in particular, the trial judge's construction (in paragraph 20 of the judgment) of the portion of the address to the jury by counsel for the appellant on the issue of manifest intention was erroneous by reason of his Honour's failure to construe this portion of counsel's address by reference to the whole of counsel's address on the issue of adoption when counsel's address on the issue of manifest intention was expressly stated to be another way of putting his address on the issue of adoption; (c) His Honour erred in failing to hold that the issue of intention on the part of the publisher manifest in the matter complained of was substantially relevant to the jury's determination of the meaning of the matter complained of especially where that matter comprised claim and counter-claim concerning allegations against the respondent; Submissions on appeal 41 Mr Reynolds argued that the decision in Harrison was central to the application for leave. He submitted that Harrison was not confined to a report of an arrest and charge as the trial judge had held, but was authority for the proposition that part of the knowledge which the ordinary reasonable reader would bring to bear to the reading of an article such as the matter complained of was knowledge of the presumption of innocence. He argued that it was sufficient for an article or the imputations it was said to convey to carry accusations of criminality for the presumption to be invoked. He contended that he had correctly characterised imputations (a), (c), (e) and (f) as guilt imputations and that justified the presumption of innocence submission. 42 The appellant also contended that the article in Harrison bore some similarity to the matter complained of. Thus the appellant's written submissions asserted that the article in Harrison "involved statements that the investigating police had arrested and charged Mr Harrison with various crimes (i.e. stated he was guilty of criminal conduct) (and) the [matter complained of] involves statements by persons who have personal knowledge of the facts that [the respondent] is guilty of criminal conduct". 43 Turning to the trial judge's criticism of the adoption submission, Mr Reynolds argued by reference to Ronald v Harper [1910] HCA 43; (1910) 11 CLR 63 at 77, Wake v John Fairfax & Sons Ltd [1973] NSWLR 43 ("Wake") at 49, Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845 at 848 ("Ross McConnel") and Heggie (at [20], [22]) that the issue of adoption was both relevant and important, particularly in a case of claim and denial. 44 Mr Reynolds conceded that in the case of a publication reporting a third party statement, a submission to the jury that the law required it to find that the publisher had adopted the third party's statement before the publication was found to have conveyed an imputation was impermissible, but argued that that was not what he had done. He submitted that the trial judge took his address concerning the adoption submission out of context. He contended that he had "suggested" to the jury that in considering whether the imputations were conveyed, the fact that the appellant had not adopted the allegations adverse to the respondent was a "relevant matter". 45 Mr Reynolds also argued that the trial judge misconstrued the portion of his address set out in his judgment. He argued that even viewed in isolation, that passage was not erroneous but should be read as a legitimate suggestion that in a publication involving allegation and denial when the jury was determining whether the imputation was conveyed it needed to look to see whether the publisher has adopted the statement or whether it was simply a case of claim or denial. 46 Mr Reynolds accepted that if the adoption submission was a sufficient basis for the discharge of the jury it was unnecessary for this Court to deal with the trial judge's criticism of the manifest intention submission. He argued, however, that this part of his address to the jury had not been erroneous, but had been supported by passages in Ainsworth (at 831), Wake (at 49), Ross McConnel (at 848) and Heggie at [20] which referred to the significance of the purpose of a publication as having a bearing upon the meaning it conveyed. 47 On this basis, Mr Reynolds submitted that there could be no doubt that the question of whether there was any intention manifest in the article to convey particular meanings was relevant. Accordingly he argued that he was entitled to put to the jury that the fact that the appellant had not manifested any intention to say the respondent was guilty meant the guilt imputations were not conveyed. He argued that this was another way of putting the suggestions he made to the jury about adoption. 48 Mr Reynolds also submitted that the trial judge had misconstrued his manifest intention submission as amounting to the proposition that if the jury found there was no manifest intention to convey the imputations, then that compelled the conclusion that they were not conveyed. Secondly, he contended that the trial judge had taken his remark concerning manifest intention out of the context of the overall adoption submission. Thirdly, he submitted that the trial judge erred in failing to hold that the publisher's intention was relevant. 49 Mr Reynolds submitted that if his address had been erroneous in any of the respects the trial judge identified the errors could easily have been cured by direction. Finally, Mr Reynolds submitted that the decision to discharge the jury was manifestly unreasonable. 50 Mr McClintock submitted that the presumption of innocence, adoption and the question of the appellant's intention were wholly irrelevant to the s 7A hearing. 51 Mr McClintock argued that Mr Reynolds had put to the jury in mandatory terms that it must be directed that the ordinary reasonable reader was reading the matter complained of mindful of the presumption of innocence. 52 Mr McClintock conceded that the presumption of innocence was part of ordinary people's general knowledge, however he submitted that Mr Reynolds' argument misinterpreted Harrison. He submitted Harrison was authority only for the proposition that a report which states only that a person had been arrested and charged was incapable of carrying an imputation of guilt. He argued that the presumption of innocence had no role to play in the context of the matter complained of which made no reference to an arrest, a charge or an investigation. 53 Mr McClintock submitted that the presumption of innocence submission was put to the jury in a manner which was highly prejudicial to the respondent and that the trial judge had correctly concluded that it was an error which could not be cured fairly to both parties. 54 Mr McClintock argued that the adoption submission would have left the jury with the impression that if a publisher did not adopted the allegations he or she had published, then the imputations were not conveyed. He submitted that that was directly contrary to the authorities including Heggie at [7] and [21] and Bass v TCN Channel Nine [2003] NSWCA 118 insofar as Handley JA endorsed Sperling J's reasons in Bass v McDonald & TCN Channel Nine [2001] NSWSC 988; (2003) 60 NSWLR 251. Appellate review of decision to discharge a jury 55 A decision to discharge a jury involves the exercise of judicial discretion in an area of practice and procedure. Appellate review of a decision to discharge a jury must be approached with particular caution: Morgan v John Fairfax & Sons Ltd (1998) 13 NSWLR 208 ("Morgan") at 221 per Samuels JA, at 237 per Clarke JA. The principles governing appellate review of such a decision were outlined in Morgan (at 214 - 215) by Kirby P who said: "1. Where a trial judge has discharged a jury on the ground of misconduct or serious error by counsel, an appellate court should be extremely slow to interfere in the exercise of such a discretion. The reasons for such reluctance are obvious. They include: (a) the advantages which the trial judge has in seeing the suggested offences in the context of the entirety of the trial: see Street CJ in R v George (at 533-534); citing R v Smith (Court of Criminal Appeal, 8 October 1982, unreported) [reported on other grounds [1982] 2 NSWLR 608]; (b) the advantages which the trial judge has in perceiving factors that may never be fully apparent to an appellate court and which may be specially relevant in the evaluation of alleged misconduct: see, eg, Brereton J in Wishart v Mirror Newspapers Ltd (at 751; 1571; 236); (c) the recognition of the inescapably opinionative nature of the discretion which the trial judge is called upon to exercise, such decisions being evaluative and not normative in character; and

(d) the particular restraint which is generally exercised by appellate courts in reviewing decisions which may be characterised as concerned with matters of practice or procedure: see Jordan CJ in Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323; 63 WN (NSW) 176 at 179; approved in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177. 2. These considerations, and doubtless others, provide the basis for the repeated expressions of restraint that appear in judgments of appellate courts called upon to review a decision to discharge or to refuse to discharge a jury for misconduct or serious error by counsel. The formulae differ but the instruction remains the same. The language ranges from the injunction that the discretion is 'so wide that it would be very difficult indeed for this Court to interfere:' see Taylor (at 389; 691) to the suggestion that the court will intervene only 'with reluctance and anxiety': see Wellington v Lake George Mines Pty Ltd (at 328; 75; 629). It is variously stated that the appellant must provide a clear and distinct demonstration that the 'order was wrongly made' (see Wishart v Mirror Newspapers Ltd (at 757; 1576; 242) or that the appellate court will hesitate before taking the 'grave step' to 'stigmatise as plainly unjust and unreasonable' the exercise of a discretion by a trial judge: see Atkinson v Atkinson [1969] VR 278 at 279; (1968) 13 FLR 322 at 323; see also Wake v John Fairfax & Sons Ltd (Court of Appeal, 27 February 1973, unreported) (reported on another point [1973] 1 NSWLR 43); and Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 237. Even in the case of criminal appeals, where liberty is at stake and different ultimate criteria apply, the Court of Criminal Appeal has suggested that such applications will 'rarely succeed' and this even in the case of a 'gross' situation: see R v George (at 534). 3. Nevertheless, there will be cases where an appellate court, with the benefit of more time for reflection, a transcript and the opportunity to stand back from the whole case and to see the conduct complained of 'against the entire canvass of the trial', will be in a better position than the trial judge to evaluate the prejudice complained of: cf Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294; Varga (at 18). 4. If the appellate court concludes that the trial judge's discretion has indeed miscarried and that there is a real possibility that an injustice has occurred, that court, notwithstanding the inhibitions previously stated, may set aside the order complained of and do so not only to ensure justice to the parties before the court but also to uphold the integrity of the legal process." 56 Similar observations were made by Samuels JA (at 221 - 222) and by Clarke JA (at 237).

The presumption of innocence submission 57 Harrison concerned a defamation action brought by the plaintiff against Mirror Newspapers Ltd in respect of a report in it published the substance which was that the plaintiff and others had been arrested in connexion with the bashing of a member of Parliament, Peter Baldwin. It said that the arrests followed a month of "intensive investigation by a special squad of detectives". It also stated that a fourth man might be arrested and that all five were expected to appear in Court later that day, to be charged with "conspiracy and fraud". 58 The plaintiff contended that the report was capable of conveying the imputations "(i) That the plaintiff was directly or indirectly involved in the vicious bashing of Mr. Peter Baldwin on the night of 17th July 1980 whereby Mr. Baldwin suffered shocking facial injuries and a fractured skull, required treatment consisting of more than fifty stitches in his wounds and spent almost two weeks in hospital; (ii) That the plaintiff was guilty of a criminal offence in connection with the said bashing". 59 The plaintiff's argument (as explained by Mason J at 297) was based upon the proposition that as the police officer who lays a charge is required by law to have an honest belief in the guilt of the person charged, it followed that the publication of a report of the fact of arrest and charge imputed that in the opinion of the police concerned the plaintiff was guilty of the crime charged. 60 Hunt J held, applying Rochfort v John Fairfax & Sons Ltd [1972] 1 NSWLR 16, that the matter complained of was not capable of bearing either of the two imputations. The Court of Appeal reversed that decision: Harrison v Mirror Newspapers Ltd [1981] 1 NSWLR 620. Glass JA (with whose judgment Reynolds and Samuels JJA) agreed, thought that Rochfort wrongly decided that a statement that a person has been charged can never support an imputation of guilt and that it should not be followed. 61 Mason J (with whose reasons on this point Gibbs CJ and Brennan J agreed) said (at 298) the case concerned the question whether "a mere newspaper report of the fact of arrest and charge is capable of bearing an imputation of guilt of the offence charged". 62 His Honour then referred to Lewis v Daily Telegraph Ltd [1963] 1 QB 340 (affd. [1964] AC 234), Lang v Australian Consolidated Press Ltd [1970] 2 NSWR 408, Rochfort, Webbie v Nationwide News Pty Ltd (1968) 12 FLR 271 and Hassen v Post Newspapers Pty Ltd (1965) 3 SA 562. Each of those cases concerned publications which reported in substance that a person had been either charged with an offence or that police were conducting an inquiry into the plaintiff's affairs in connexion with fraud. The publications had been held not to be capable of conveying an imputation that the plaintiff was guilty of the offence charged or the crime being investigated. He noted Fox J's statement in Webbie (above, at 281) that "… I believe that the community in general has a broad understanding of the more commonplace processes of criminal proceedings and that it would be recognized that although the plaintiff was charged, he may or may not have committed the offence". He also referred to Colman J's statement in Hassen v Post Newspapers Pty Ltd (above, at 564) that the ordinary reasonable reader of a newspaper report that the plaintiff has been arrested and charged with a crime would conclude that the charges "are not ordinarily laid without grounds, and that many of the people charged with crimes are guilty" and observed (Harrison, above at 299) that "[t]he reader, though withholding final judgment, would attach importance to the fact that the police have concluded that there are grounds to support the charge and would accordingly view the plaintiff with suspicion as a person who may be found guilty of the crime charged". 63 Mason J concluded (at 300 - 301) that: "… 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 … 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." (emphasis supplied) 64 Mason J added (at 301 - 302) that a report of the fact of arrest and charge: "… 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. His understanding would, as it happens, reflect the conditions according to which in New South Wales a constable is empowered to arrest without a warrant. By s. 352(2) of the Crimes Act 1900 (N.S.W.) a constable is entitled to apprehend without warrant "any person whom he, with reasonable cause, suspects of having committed" an offence. The provisions of the Justices Act 1902 (N.S.W.) regulating the laying of information for indictable offences, which must be on oath, and the laying of informations or complaints for summary offences, which need not be on oath, as a preliminary to the issue of a warrant or summons, do not speak of reasonable cause. But there can be no doubt there must be reasonable cause for the informant's belief that the plaintiff has committed the offence. When the plaintiff is arrested pursuant to a warrant under s. 23 or s. 59 of the Justices Act, the issue of the warrant is a consequence of the exercise of a judicial discretion by the justice or magistrate issuing the warrant ( Ex parte Qantas Airways Ltd.; Re Horsington …, at pp. 301, 305-306; Halsbury's Laws of England, 4th ed. (1976) vol. 11, par. 95). But the ordinary reasonable reader, unaware of this refinement, will still conclude that it is the informant who suspects, with reasonable cause, that the plaintiff has committed the offence ." (emphasis supplied) 65 This observation, as his Honour made plain (at 302) was obiter. Gibbs J and Brennan J, who, as I have noted, otherwise agreed with Mason J's reasons, expressly reserved their positions on this proposition (at 295, 303 - 304). 66 The decision in Harrison, as can be seen from this account, was squarely based on a consideration of what the ordinary reasonable reader would infer from the publication of a report of an arrest by police and impending charges. All of the authorities to which Mason J referred as rebutting the proposition that an imputation of guilt was capable of arising in such circumstances concerned reports of police investigations, arrests and/or a criminal charge preferred by the police. It was in that context that his Honour concluded that the ordinary reasonable reader's understanding of the processes of the criminal justice system, particularly the presumption of innocence precluded an inference of guilt being conveyed. 67 Subsequent authorities have held, correctly in my opinion, that the decision in Harrison has limited operation. In Rigby v John Fairfax Group Pty Ltd (New South Wales Court of Appeal, unreported, 1 February 1996) ("Rigby") Kirby P described (at 3) the legal principle for which Harrison stood as being that a report of "the fact of arrest and charge" did not convey imputations of guilt. His Honour noted (at 5) that "[i]t is to permit redress of the wrong that is then done to the individual (by the publication of a report which goes beyond a report of arrest and charge) that the law confines quite strictly its effective immunity from defamation imputing guilt to the reportage of an actual arrest and charge." Priestley JA (with whom Meagher JA agreed) observed (at 8) that Mason J was careful in Harrison "to make clear that what he was saying applied to a publication which stated only that a person had been arrested and charged and no more. A publication so limited could not in his opinion impute guilt". 68 In Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510 ("Comalco") Pincus J noted (at 589) that "the High Court did not suggest [in Harrison] that the same rule would apply to allegations published as having an unofficial source". 69 In Ainsworth Hunt J considered what imputations were capable in law of arising in the context of a telephone report that allegations had been made that the plaintiff had committed a criminal offence that the police were conducting a criminal investigation into those allegations, and that there was a strong possibility that criminal charges against the plaintiff would be filed shortly. Hunt J concluded (at 829 - 830) that if the matter complained of would have been interpreted as if the defendant had said that "allegations have been made that the plaintiffs are guilty, but the truth of those allegations is still being investigated although we suspect they are guilty and there is a strong possibility that we will shortly conclude that charges should be laid", then "the result of the decision in [Harrison] … appears to me to be that the ordinary reasonable listener (or reader) must be assumed to be mindful of the presumption of innocence, that the Crown bears the onus of proving the guilty of the accused and that the guilt of the plaintiffs remains to be determined at the eventual trial". If so understood his Honour said (at 829) "then nothing more than conduct on the part of the plaintiffs warranting suspicion of (or belief in) their guilt can be read into it". 70 It might be accepted that the presumption of innocence is, as Mr Reynolds, submitted, as much a notorious fact as the fact that the sun rises in the east and the identity of the current Prime Minister of Australia. It is, in my opinion, a pious presumption to conclude that the ordinary reasonable reader is mindful of the presumption of innocence whenever accusations or allegations are made particularly when the defamatory statements are made in circumstances unrelated to, or remote from, the operation of the criminal justice system. Indeed doubts have been expressed about the proposition that the ordinary reasonable reader would be mindful of the presumption of innocence even in the context of a report of police charges. In Lewis v Daily Telegraph Ltd [1964] AC 234 at 285, Lord Devlin observed that a simple statement the "the plaintiff's affairs are being inquired into" would not injure the plaintiff's reputation "if everybody bore in mind, as they ought to, that no man is guilty until he is proved so but unfortunately they do not". 71 And in Rigby, Kirby P said (at 2): "There may be reasons of legal policy, grounded in our history, past practice, modern communications technology and the open administration of justice, to exempt from liability in defamation the publication of the simple fact that a person named has been charged and brought before a court. But to say that in every case, such information is incapable of bearing the imputation that the person charged is guilty or probably guilty of that offence is a conclusion which rests more on judicial thinking, lawyerly refinement and, perhaps, defence of open justice than it does upon a real description of what the average Australian citizen probably thinks when he or she reads, hears or sees a report of that fact . If well informed about the justice system, with a lot of time to think about the matter, that citizen may indeed consider the legal presumption of innocence the instances of police and prosecution mistakes and the accused's chances of acquittal. But the citizen will also know that an expert professional police and prosecution service will ordinarily not cause a person to be charged unless they have what they feel is sufficient evidence to support proof of the charge, that the whole weight of the State is then pitched against the accused and that the overwhelming majority of people charged either plead guilty or are found guilty." (emphasis supplied) 72 Similar reservations about the ordinary reasonable reader's understanding of the criminal justice system were, in my opinion, implicit in Levine J's decision in Gillespie v Nationwide News Pty Ltd. The defendant argued that an article published in "The Australian" was not capable in law of conveying the imputation "that the plaintiff committed crimes by exaggerating C & W Optus' earnings" because that there was "nothing in the matter complained of about criminal proceedings having been taken and concluded adversely to the plaintiff." His Honour rejected that submission and said (at [9]): "In my respectful view, it is not appropriate in seeking to answer the question could the ordinary reasonable reader understand a piece such as this as meaning "x", involving notions of criminality, to bring to bear the lawyer's particular knowledge of terms and principles that apply within the administration of the criminal justice system. This is by no means a case comparable to Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 where the High Court did attribute to the ordinary reasonable reader awareness of the fundamental presumption of innocence (per Mason J at 300). That however was a case concerned with a statement in the article itself that a person had been arrested and charged with a criminal offence." 73 Mr Reynolds argued that it was unnecessary that an allegedly defamatory article refer to a formal charge before the presumption of innocence assumed importance. He pointed out that the presumption of innocence operated in the absence of charge in civil disputes: see Halsbury (4th edition, Volume 17, Evidence, para 114). 74 There is no doubt that jurists give weight to the presumption of innocence in the civil as well as the criminal context, a matter to which Campbell J referred in Gonzales v Claridades [2003] NSWSC 508; (2003) 58 NSWLR 188. His Honour pointed out (at [34] - [35] that the presumption of innocence can operate: "… when an issue arises in civil litigation as to whether a criminal, or seriously wrongful, act has occurred" so that "the onus of proving that a criminal or seriously wrongful act has occurred lies on the party who asserts that such an act has occurred."

75 However, I would also note Hunt J's observation in Ross McConnel (at 850): "I am of the opinion that there is no difference in principle between the report of a charge in criminal proceedings and the report of a charge or allegation in the pleadings of a civil action. I recognize that at least one basis upon which Mason JA rejected the imputation of probable guilt in Lang v Australian Consolidated Press Ltd … was that in relation to criminal proceedings the ordinary reasonable reader is mindful of the presumption of innocence and that the Crown bears the onus of proof of guilt. Such a consideration may not necessarily be so apparent to the ordinary reasonable reader in all cases in relation to civil actions, even where the allegation in the pleading is, as here, one of a conspiracy to cheat and defraud. 76 I accept that Harrison is, as the trial judge held, confined to a report of the fact of arrest and charge. Mason J said as much (at p 298). Such a report one might hope, despite the judicial reservations to which I have referred, bring the presumption of innocence to the mind of the ordinary reasonable reader.

77 Furthermore it is plain that Harrison turned upon the proposition that it was the fact of being charged with a crime by police with the concomitant connotation of setting the wheels of the administration of criminal justice in motion that would conjure up the presumption of innocence in the mind of the ordinary reasonable reader. 78 The same cannot be said, however, about the matter complained of. It does not invoke the notion of the wheels of criminal justice being set in motion in the manner to which Mason J alluded in Harrison. While it is headed "Obeid accused", the accusations are attributed to unofficial sources. It would be, to paraphrase Kirby P in Rigby, an exercise in "lawyerly refinement" to conclude that the ordinary reasonable reader would read such an article with the presumption of innocence in mind. 79 The effect of the presumption of innocence submission, in my view, was to put to the jury not only that the appellant argued the ordinary reasonable reader would read the matter complained of with the presumption of innocence in mind, but that the proposition was so indubitably correct that the trial judge would direct the jury in those terms. The frequency with which Mr Reynolds referred to the presumption of innocence could only have served to entrench that proposition in the jury's mind. 80 The course counsel took was a dangerous one, particularly in the light of the trial judge's decision in Gillespie. It was a matter for the trial judge to determine the content of his directions to the jury - not for counsel to presume that they would accord with his address to the jury. 81 In my view, the trial judge was correct in his conclusion (at [11]) that "there is no room in relation to the article with which we are presently concerned for the jury to be directed compulsorily … in terms of the direction outlined by Mason J". 82 The trial judge was also correct in my view in rejecting the fallback direction Mr Reynolds sought. That direction would have required the trial judge to explain why the primary position Mr Reynolds had taken concerning the presumption of innocence was not acceptable but, nevertheless, explain in terms which still invoked references to police charges, why the ordinary reasonable reader may have been mindful of the presumption of innocence". Such a direction would have distracted the jury from the terms of the matter complained of to considerations of police involvement. 83 Once the trial judge had determined counsel's address was erroneous and capable of misleading the jury, his Honour was required to consider the extent of any prejudice done and it could be cured by appropriate directions: Morgan, above, at 211 - 212. 84 In this essentially evaluative exercise (Morgan at 214) his Honour was entitled to take into account, as he clearly did, the overall impression the presumption of innocence submission would have had on the jury. It was the warp and the weft of counsel for the appellant's address to the jury - both in relation to the suspicion imputations as well as the guilt imputations and had been woven, too, into the adoption and manifest intention submissions. 85 If the trial judge had directed the jury to ignore the presumption of innocence submission, the jury would have been left substantially in the dark as to the appellant's argument. Further, in my opinion, the trial judge was entitled to form the view that attempting to cure the prejudice flowing from the presumption of innocence submission could give the appellant an underdog status and operate unfairly to the respondent. His Honour was justified in concluding that, in this case, "the remedy might well be worse than the disease": Morgan above at 219 per Samuels JA. 86 Accordingly, I conclude that the trial judge did not err in exercising his discretion to discharge the jury.

The adoption submission 87 That conclusion is sufficient to dispose of the appeal however the adoption and manifest intention submissions should also be considered as they also influenced the trial judge's decision to discharge the jury. 88 The law of defamation is concerned with damage to reputation: Dow v Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575 ("Dow Jones") per Gleeson CJ, McHugh, Gummow and Hayne JJ at 600 [25]; per Kirby J at 630 [124]; per Callinan J at 649 [184]). The cause of action in defamation accrues when a defamatory imputation of and concerning the plaintiff is published to a third party. "Liability depends upon mere communication of the defamatory matter to a third person": Lee v Wilson & Mackinnon [1934] HCA 60; (1934) 51 CLR 276 at 288 per Dixon J.

89 All those who might be described as in "any degree accessory" to the publication are liable in defamation: see Webb v Bloch (1928) 41 CLR 331 at 363 - 366. Thus, liability falls upon the printer and distributor of defamatory material, albeit that distributors have the benefit of a defence of innocent dissemination: see Emmens v Pottle (1885) 16 QBD 3539 90 As it is "the publication, not the composition of a libel, which is the actionable wrong (Dow Jones at 600 [25]), the republication of the statements of a third party ("defamatory hearsay") even as part of a larger publication "…is a new libel and, each [republisher] is liable as if the defamatory statement had originated with [that person]": Gatley on Libel and Slander [Sweet & Maxwell, 10th Ed, at 6.31]. This statement, (in the form it appeared in the fourth edition of Gatley) was approved by the Privy Council in "Truth" (NZ) Limited v Holloway [1960] 1 WLR 997 ("Truth"). 91 The tort of defamation, accordingly, is a tort of strict liability. A defendant may be liable even though no injury to reputation was intended and the defendant acted with reasonable care: Dow Jones at 600 [25] per Gleeson CJ, McHugh, Gummow and Hayne JJ. In the case of the republication of defamatory hearsay, the republisher will be prima facie liable in defamation without any requirement that the defamatory hearsay was adopted. That liability may be qualified by the context in which the defamatory hearsay was republished. 92 In "Truth" (NZ) Limited v Holloway, above, the Privy Council approved a direction to a jury to the effect that the publication by the appellant newspaper of an article which included a third party's statement to "see Phil and Phil would fix it" ("Phil" being understood to mean the plaintiff, a Government Minister) was properly to be dealt with as if the defendant itself said "see Phil and Phil would fix it". In approving the direction, Lord Denning (who delivered the judgment of the Judicial Committee) observed (at 1102 - 1103) that the case on appeal was a "good instance of the justice of this rule" that being that it would be unjust that the newspaper was not liable for republishing the defamatory hearsay because its publication had the effect of broadcasting it "to the people at large". 93 Truth was referred to with approval in the unanimous decision of this Court in Wake. In Wake a newspaper reported a statement by a stipendiary steward which included the words "Details of how bookmakers Wake and Field knew Amerigo Lady was 'dead' will come out in either their appeals to the Greyhound Control Board or in possible later court action". The plaintiff pleaded that the matter complained of conveyed the defamatory imputation that "the plaintiff knew that Amerigo Lady was 'doped' and had taken dishonest advantage of that knowledge". 94 The appellant/defendant complained that that imputation ought not have been left to the jury on the basis that the "publication [was] not equivalent to passing on a rumour or embracing or adding weight to a defamatory outcome by a third party … but [was] merely reporting what a steward had said". The appellant sought to support that submission by reference to Ronald v Harper at 77 where Griffiths CJ (with whom O'Connor J agreed) said: "… It is said that when a person repeats a slander he adopts it as his own. That is a very good general rule, but I decline to adopt it as a rule of invariable application. Words injurious to another may be used under such circumstances as to show that the person who has repeated them gives them his own authority. It is entirely a matter of fact …" 95 The Court of Appeal said of that passage (Wake at 49 - 50): "The Chief Justice cannot be understood to be asserting in the passage quoted that the publisher of defamatory hearsay is in some special position if he does not adopt the imputation or reaffirm it. There can be little doubt that the nature and quality of the defamatory publication may vary, dependent upon whether it is a report of what another has said and whether it is adopted, repudiated or discounted . The purpose of the republication will have a significant bearing … there can be no such general rule as was submitted to us that the repeater or reporter of the defamatory statement of another is not liable as for defamation unless he adopts or re-affirms it. Principle and authority both lead in a different direction. Lord Devlin said in Lewis v Daily Telegraph Ltd [1964] AC 234 at 284: 'For the purpose of the law of libel the hearsay statement is the same as a direct statement, and that is all there is to it'. Bell v Byrne (1811) 13 Best 554; 104 ER 486 is authority for the proposition that if one asserts defamatory matter as from himself or says that it was asserted or written by another, it is equally the subject of an action. When a defamatory publication purports to repeat or report the defamatory statement of another it is an essentially different libel from one where the same imputation is conveyed directly. It may require to be charged or defended differently, but it is nonetheless libel." (emphasis supplied) 96 Thus, while the republisher of defamatory hearsay is liable for the repetition of the defamatory hearsay, the nature of that liability will turn upon the context in which the republication occurred. The nature of the republisher's liability will be resolved by the decision as to whether, and what, defamatory imputations were conveyed having regard to the publication as a whole. This invokes the traditional test that the question whether a publication would be understood to convey defamatory meanings is determined objectively by reference to the standards of the ordinary reasonable reader and whether that person "would be likely to understand [the publication] in a libellous sense": Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741 at 745. 97 The jury is required to approach the exercise by considering "what the words of the publication would mean 'to ordinary men and women going about their ordinary affairs'" as McHugh J explained in John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 at 1660 [18] ("Rivkin"). McHugh J described the approach taken by the ordinary reasonable reader (at 1661 - 1662) saying: "[26] … although a reasonable reader may engage in some loose thinking, he or she is not a person "avid for scandal" ( Lewis v Daily Telegraph [1964] AC 234 at 260). A reasonable reader considers the publication as a whole ( Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646; Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510; Morosi v Broadcasting Station 2GB [1980] 2 NSWLR 418(n)). Such a reader tries to strike a balance between the most extreme meaning that the words could have and the most innocent meaning ( Lewis v Daily Telegraph [1964] AC 234 at 259-260). The reasonable reader considers the context as well as the words alleged to be defamatory ( Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68 at 72, 78; English and Scottish Co-operative Properties Mortgage & Investment Society Ltd v Odhams Press Ltd [1940] 1 KB 440 at 452). If '[i]n one part of [the] publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and antidote must be taken together.' ( Chalmers v Payne (1835) 2 Cr M & R 156 at 159 [150 ER 67 at 68]; Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 at 682, 683-684; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 671) But this does not mean that the reasonable reader does or must give equal weight to every part of the publication ( Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646). The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account ( Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 646). Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article ( Savige v News Ltd [1932] SASR 240; Hopman v Mirror Newspapers Ltd (1960) 61 SR (NSW) 631; Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669). [27] The rule that the publication must be read as a whole is particularly important where the publication reports a defamatory statement by a third party. The general rule is that a person who publishes the defamatory statement of a third party adopts the statement and has the same liability as if the statement originated from the publisher ( "Truth" (NZ) Ltd v Holloway [1960] 1 WLR 997 at 1002-1003). Accordingly, it is not the law that a person reporting the defamatory statement of another is only liable if he or she adopts the statement or reaffirms it ( Wake v John Fairfax & Sons Ltd [1973] 1 NSWLR 43 at 49-50). But, as Griffith CJ pointed out in Ronald v Harper (1910) 11 CLR 63 at 77, although as a general rule a person who repeats a defamation adopts it as his or her own statement, it is not "a rule of invariable application". The context of the statement may show that it is refuted or undermined by other parts of the publication. In Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679, the plaintiff claimed that he was defamed by a report of parliamentary proceedings that disclosed that a witness at a coronial inquiry had alleged that the plaintiff had designed a faulty crane that led to a fatality. But the report also stated that, in answer to a question, the Minister of Justice "completely cleared" ([1979] 2 NSWLR 679 at 681) the plaintiff. The New South Wales Court of Appeal unanimously held that the report was incapable of a defamatory meaning concerning the plaintiff." (footnotes included, emphasis supplied) 98 It will be apparent from this recitation of the authorities that the question whether the publisher of defamatory hearsay has "adopted" the defamatory hearsay is, irrelevant to the question whether the republisher is liable for defamation. Mere publication suffices to attract liability. However the context in which the defamatory hearsay was published, including whether it was in fact "adopted" by the republisher may be relevant to the nature and quality of the republisher's liability: see Wake; Ross McConnel (above, at 848, per Hunt J), Ainsworth (above, at 831 per Hunt J); Astaire v Campling [1966] 1 WLR 34 at 40 per Davies LJ, at 41 per Diplock LJ (but see also Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1244, 1259); Wheeler v Somerfield [1966] 2 QB 94 at 108 - 109 per Winn LJ. 99 It is important to understand the two senses in which the concept of adoption is employed. Griffiths CJ in Ronald v Harper and McHugh J in Rivkin refer to the concept to explain that the mere publication of defamatory hearsay amounts, without more, to an "adoption of that statement". I refer to that use of the word "adoption" as the "primary sense". In its primary sense adoption connotes strict liability for the publication of defamatory hearsay in the sense referred to in Dow Jones. 100 However as is apparent from Wake, Ross McConnel and Ainsworth the concept of adoption is also used in a secondary sense as being one of the matters relevant to determining what, if any, defamatory imputations were conveyed by a publication which includes defamatory hearsay. Thus, in Wake, as I have earlier noted while reaffirming the proposition that the publisher of defamatory hearsay is not in a special position if the imputation is "not adopted", the Court said that the nature of the libel conveyed by the reporting of defamatory hearsay may depend (inter alia) upon "whether it is adopted, repudiated or discounted". 101 When the concept of adoption is invoked in the secondary sense it is because it is, or may be, relevant to determining "the nature and quality of the defamatory publication". In the same vein, the question whether the republisher has repudiated or discounted the defamatory hearsay and the purpose of the republication will all be relevant to whether the imputations conveyed by the defamatory hearsay viewed in isolation are also conveyed in the context of the whole publication: Ross McConnel (above, at 848, per Hunt J). 102 To avoid confusion arising from the use of the concept of adoption in the two senses to which I have referred, it would be preferable, in my view, if the question asked when determining the relevance of the context of the publication was (inter alia) whether the defamatory hearsay had been approved, reaffirmed or endorsed by the republisher. 103 Bik v Mirror Newspapers Limited [1979] 2 NSWLR 679 ("Bik"), to which McHugh J referred in Rivkin, is a singular illustration of how the context in which defamatory hearsay is republished may affect the question of the capacity of the publication to convey a defamatory imputation. In Bik a first instance decision directing that the declaration for defamation be struck out was upheld in relation to a report of parliamentary proceedings. The report disclosed that a witness at a coronial inquiry had alleged that the plaintiff had designed a faulty crane that led to a fatality but also said that the Minister of Justice "completely cleared" the plaintiff. In concluding that the report was incapable as a matter of law of conveying a defamatory meaning of and concerning the plaintiff Herron CJ (with whom Manning JA agreed) said (at 682): "… from beginning to end, the article sued upon sets out to destroy any suggestion that the plaintiff was guilty of any act or omission which led to the death of the deceased man, Ross . The whole tenor of the article is to inform the reader that Mr. Bik was wholly cleared, and no fair-minded reader could imply that Mr. Bik bore any responsibility for the fatality. He would read that an injustice had been done by having had for eight years wrongful acts attributed to him, and now he has been cleared of it. So far from being defamatory, the article is laudatory of the plaintiff." (emphasis supplied) 104 Taylor J observed (at 683) that: "… ordinary, reasonable, fair minded men reading this article as a whole would conclude that it was being published to remedy the injustice that had been done to the plaintiff . The Minister's object in making the statement was to clear the plaintiff of the injustice of having attributed to him without any foundation, wrong doing, and to ensure that wide publicity be given to his statement so that the wrong done to the plaintiff might be put right and there should be an end to his having without reason and without justice been the target of rumour and suspicion." (emphasis supplied) 105 There was no issue in Bik as to the newspaper's liability for publishing the defamatory hearsay. The Court's conclusion that the imputations of which the plaintiff complained were not capable of being conveyed having regard to the publication as a whole was clearly influenced by the Court's perception that that the purpose of the publication was to give wide airing to the Minister's statement that the plaintiff had been "completely cleared". 106 Wake was applied in Comalco (above) which concerned a broadcast on the ABC's "Four Corners" programme. The programme consisted of an introduction by a Four Corners presenter to a film made by Granada dealing with the effect on the aboriginal population at Weipa in Queensland of the conduct of open-cut bauxite mining by Comalco, followed by a studio debate. Comalco successfully sued the ABC at first instance for defamation. 107 The ABC sought to argue on appeal that in the context in which it had broadcast the Granada film it should be regarded merely as having provided a forum through which others put forward their view so that it was not liable for the defamatory hearsay. It relied upon the passage in Ronald v Harper to which I have already referred. Smithers J (at 518) rejected that submission as inconsistent with Wake. His Honour was also of the view (at 519 - 521) that, as a matter of fact, the ABC could not be said merely to have provided a forum for others to air their views. 108 Neaves J (at 571) regarded the appellant's argument as misconceived saying, "[t]he question is not whether the appellant is, in the programme itself making the statements relied upon as being defamatory but whether, by its telecast, it has published material defamatory of Comalco". 109 Pincus J (at 588) accepted that Griffith CJ's observations in Ronald v Harper appeared to "imply that one who repeats defamatory words may not be liable unless the person repeating the words gives them his own authority or reaffirms the charge", but pointed out, referring to Wake, that "the judgment appears not to have been regarded as proper authority for any such rule". His Honour accepted (at 590) that "[o]rdinarily it appears a publisher of an accusation made by another must defend himself against a defamation suit as if he made the accusation himself". 110 These principles were affirmed recently in this Court in Heggie - an appeal challenging the trial judge's decision to discharge a jury after a s 7A hearing because of the manner in which counsel for the defendant addressed the jury. 111 The matter complained of included the statement, "Mr Watkins also accused Mrs Heggie of having double standards, saying he would 'love to know what the real deal is, what's in it for you'." The judgment does not set out the balance of the matter complained of or any detail of counsel's address which led to the jury being discharged. It is plain that counsel's address dealt with the intention of the publisher to convey the imputations (see [6]) as well as the relevance of adoption in the context of publication of defamatory hearsay. Hodgson JA said (at [22]) that "a fair reading [of counsel for the defendant's] address to the jury did convey the impression that an imputation is not made by merely publishing an allegation, particularly if both sides of the question are published; and that an imputation is not made if there is no endorsement of the allegation by the publisher".

112 The Court was unanimous in concluding the appeal should be dismissed. Meagher JA referred to the statement in Gatley on Libel and Slander (6th ed 1967) that "[e]very republication of a libel is a new libel", Wake and Comalco and remarked that "[counsel for the defendant's] fixation on 'adoption' of the libel, and his obdurate refusal to recognise that the newspaper article was republishing Mr Watkins' libel, in the light of those authorities, was thus demonstrably provocative". 113 Hodgson JA said (at [15]): "Where the publication is of an assertion that certain words were spoken by another person, the general rule is as stated by Lord Devlin in Lewis v Daily Telegraph Limited [1964] AC 234 at 284: 'For the purpose of the law of libel, a hearsay statement is the same as a direct statement, and that is all there is to it.' See also Wake v John Fairfax & Sons Limited [1973] 1 NSWLR 43 at 49 and Australian Broadcasting Commission v. Comalco Limited (1986) 68 ALR 259. It is generally irrelevant whether the publisher would be understood as itself intending to make the imputation or endorsing it in any way. As a general rule, the imputation is made by being published, even if it is published as an imputation made by someone else. " (emphasis supplied) 114 His Honour accepted (at [16]) that there were exceptions to the general rule, such as Harrison and Bik. In his view, the identity of the third party and the circumstances in which that person's original statement was made as reported in the publication complained of may be relevant. He gave the following illustration (at [20]), in a passage upon which Mr Reynolds placed considerable weight: "More relevantly to the present case, a report that an opposition politician A accused a government politician B of deceiving the public, in relation to a particular action of the government, would not necessarily be understood as making the imputation that B acted dishonestly and deceitfully, or the imputation that B is a dishonest and deceitful person. Furthermore, if B sued A and the publisher in respect of the publication of that accusation, a finding that A made the imputation would not, as a matter of absolute necessity, require a finding that the publisher also made that imputation. In a case such as that, in my opinion it might be relevant to consider whether the claimed imputation was an allegation made by a person who had an interest in making such allegations and who regularly made them, whether the other side of the picture was published, whether there was any endorsement of the allegation by the publisher or any other suggestion that it was true, and whether there was any intention manifested by the publisher itself to make the allegation. However, all those considerations would only be as matters relevant to the question, does the published material, considered fairly and as a whole, make the claimed imputation." 115 After giving this illustration Hodgson JA continued (at [21]): "21 However, in my opinion, it would be quite wrong to suggest that published material, setting out an imputation made by another person, does not itself make the imputation if it merely publishes an allegation, or if both sides of the picture are published, or if there is no endorsement of the imputation by the publisher, or if no intention of the publisher to make the imputation is manifested . Certainly it would be an error to suggest that, because all that is published is an allegation, the publication does not make an imputation. There is in fact no sharp distinction between an allegation and an imputation: an imputation simply is an assertion concerning a person, or a charge or accusation: see Petritsis v Hellenic Herald Pty Limited (1978) 2 NSWLR 174 at 183, 189 and 197; Monte v Mirror Newspapers Limited [1979] 2 NSWLR 663 at 677-8. 22 In my opinion, on a fair reading, Mr. Hale's address to the jury did convey the impression that an imputation is not made by merely publishing an allegation, particularly if both sides of the question are published; and that an imputation is not made if there is no endorsement of the allegation by the publisher. Although questions concerning the circumstances of the original making of the allegation, the publication of both sides of the matter, and the lack of endorsement by the publisher, are matters which might be relied on, if carefully put as part of a submission that the published words did not make the imputation complained of , such matters were in this case used in a way which was both erroneous and liable to confuse the jury." (emphasis supplied) 116 Fitzgerald AJA held (at [28]) that "If the Councillor's accusation and quoted statement were defamatory of the respondent and that was all that the article relevantly contained, the article also defamed the respondent". His Honour also accepted, referring to Bik, that if, as the appellant contended, "the article also contains other relevant passages, the words complained of by the respondent must be considered in context to ascertain whether the appellant, by the article, made the defamatory imputations alleged by the respondent. He said (at [29]) that the appellant was entitled to seek to persuade the jury that, when the passages complained of by the respondent were read in context, the article did not defame the respondent. However, he also said (at [30]) that the appellant was not entitled to misinform or confuse the jury by its submissions and concluded (at [31] - [32]) that the trial judge's conclusion that that was the effect of counsel's address was correct.

117 A recent illustration of the proposition referred to in Wake that the repetition of defamatory hearsay may be a different libel from that conveyed by the original statement can be seen in Buck v Jones [2002] NSWCA 8 which concerned the publication on a talkback radio broadcast of an allegedly defamatory statement made by a caller. The broadcast provoked several people to sue Mr Alan Jones, the presenter of the radio program, the radio station and the caller claiming damages for defamation. The appeal concerned, in part, one of the plaintiff's complaint that the jury's conclusion that the caller's statement conveyed an imputation but that the same imputation was not conveyed by Mr Jones and the radio station were "necessarily and irreconcilably inconsistent". The appellant contended that the trial judge ought to have directed the jury that "if it found any of the imputations to have been conveyed by [the caller], those imputations must also have been conveyed by [Mr Jones and the radio station]".

118 Giles JA (with whom Meagher JA and Grove J agreed) referred (at [61]) to Hodgson JA's judgment in Heggie and said: "62 Where the matter published by Mr Jones and 2UE was not coextensive with the matter published by [the caller], even though the matter published by Mr Jones and 2UE was more extensive than the matter published by [the caller], it can not be said that as a matter of law the finding of imputation 6(b) against [the caller] required a finding of the same imputation against Mr Jones and 2UE. The greater publication included the lesser, but what was conveyed by the greater publication was not necessarily the same as what was conveyed by the lesser publication . " (emphasis supplied)

119 This review of the authorities demonstrates that:

(a) Republication of defamatory hearsay constitutes adoption of the defamatory statement - using "adoption" in the primary sense;

(b) As a general rule the republisher is liable in defamation as if the author of the defamatory hearsay;

(c) To determine what, if any, defamatory imputations are conveyed by the publication in which the defamatory hearsay appears, the matter complained of must be viewed as a whole. Relevant indicia will include whether the defamatory hearsay is approved, reaffirmed and/or endorsed (adopted in the secondary sense), repudiated or discounted and the purpose of the republication. 120 In my opinion the trial judge's conclusion that the adoption submission was erroneous was correct. The jury could only have understood that submission as meaning that the question whether the matter complained of conveyed the guilt imputations, turned on whether the appellant had actually adopted the sources' accusations i.e. adopted, in the primary sense, the defamatory hearsay. This was precisely the submission Hodgson JA had said in Heggie (at [21]) was impermissible. 121 I cannot accept Mr Reynolds' submission that, when viewed in context, what he had put to the jury was that the question whether the appellant had adopted the defamatory hearsay was relevant rather than determinative of whether the guilt imputations were conveyed. The use of the words "I suggest" did not, in my opinion, in any way dispel the force of the adoption submission that the guilt imputations were not conveyed by the matter complained of if the appellant had merely republished the defamatory hearsay. The manifest intention submission

122 It is because the damage done to a plaintiff's reputation by a defamatory publication stems from the effect it has upon those to whom it is communicated that there is a "rigorous application to libels of the rule that the meaning of a document should be determined independently of the actual intention which the writer entertained": Lee v Wilson & Mackinnon, (above, at 287) per Dixon J. 123 That is not to say that intention is entirely irrelevant. But it is the publisher's objective rather than subjective intention which may bear upon the meaning the ordinary reasonable reader would attribute to the allegedly defamatory publication. Hunt J said in Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112 at 124 that "the defendant's intention is irrelevant to the meaning in fact conveyed". His Honour elaborated on that proposition in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664 at 667 saying: "The plaintiff in the present case argues that the repetition by the defendant of part of its previous telecast could have been understood by the ordinary reasonable viewer as a repetition by implication of the whole of it. I do not see how it is capable of having been understood in that way. That viewer, in my opinion, must have understood that such was the defendant's intention. That is not to suggest that the defendant's intended meaning has any relevance to the question of what meaning was in fact conveyed. Clearly it does not; the authorities are collected in Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112, at 124. But, in deciding what meaning was in fact conveyed by what the defendant published, it is in my view relevant for the jury to consider how the ordinary reasonable reader would have understood from what was published what the defendant had intended to mean. That this is correct in principle is made clear in the cases dealing with statements made in jest. The fact that a defamatory statement was intended by the defendant as no more than a joke is no answer to an action for defamation unless that statement was understood by those to whom it was published as having been so intended: Donoghue v Hayes (1931) Hayes (Ir Ex) R 265, at 266, 267. The important distinction which must be kept in mind is that the issue is not what the defendant in fact intended, but rather what intention should be inferred from what he said …" (emphasis supplied) 124 Mr Reynolds sought to support the manifest intention submission by passages in Wake (at 49) Ainsworth (at 831) and Ross McConnel (at 848) which referred to the apparent purpose of the republication as having a bearing on the imputation conveyed. It was also, I note, the apparent purpose of the publication which exonerated the publisher in Bik as I have earlier explained. 125 These passages do not support Mr Reynolds' submission to the jury which could only have been understood to mean that the absence of any "manifest intention" on the appellant's part to "suggest that Mr Obeid is guilty of anything" led to the conclusion that the guilt imputations were not conveyed. That submission, albeit rather obscurely expressed, could have conveyed to the jury that the guilt imputations were not conveyed unless there was an express statement that the appellant and/or its reporter had that intention. In other words the jury should seek to determine the appellant's subjective intention. As is apparent from the authorities to which I have referred liability in defamation does not turn upon the publisher's subjective intention. 126 Nor does Heggie assist the appellant. In that case, Hodgson JA referred (at [20]) to "whether there was any intention manifested by the publisher itself to make the allegation" in the context of his example of an opposition politician A accusing a government politician B of deceiving the public, in relation to a particular action of the government. I understand his Honour to have been referring to the "intention manifested" by the publisher in the same sense as the concept of apparent purpose was used in Wake, Ainsworth and Ross McConnel. In his Honour's example, it was possible that a jury would conclude that the ordinary reasonable reader would read the publication, for example, as one whose apparent purpose was to demonstrate the depth to which political mudslinging had sunk. Certainly it is plain from paragraph [21] of his Honour's judgment that he was not suggesting that the publisher's subjective intention was relevant to the question whether the imputations were conveyed. 127 I agree with the trial judge that the manifest intention submission exacerbated the error in the adoption submission. 128 In my opinion the trial judge was correct to conclude that the errors in the adoption submission and the manifest intention were additional matters supporting his decision to discharge the jury. It is unnecessary to consider whether, standing alone, those matters would have supported that conclusion. His Honour did not treat them in isolation, but in the context of the erroneous presumption of innocence submission.

(1) Grant the appellant leave to appeal subject to filing the Amended Notice of Appeal within 14 days.

(3) Appellant to pay the respondent's costs. 130 McCLELLAN AJ: I agree with McColl JA.

ALP push for Oasis cash: Obeid accused [Photographs of Mr Obeid and Mr McIntyre appear above the words "$1 million fix-it plan alleged … Eddie Obeid and Gary McIntyre"] Kate McClymont and Anne Davies

The state Fisheries Minister, Eddie Obeid, has denied attempting to seek a $1 million payment to the ALP in return for solving the Bulldogs' problems with their Oasis development.

Several sources have told the Herald that the then president of the Bulldogs Leagues Club, Gary McIntyre, discussed with them Mr Obeid's offer to help get the crucial piece of Crown land needed for the development as well as smooth any licensing problems relating to the number of poker machines the club was seeking.

In turn, $1 million had to be handed to the ALP. This was to be done by Mr Obeid nominating the companies to work on the project, and those companies would then inflate their prices, with the excess to be paid back to the ALP as donations.

A political lobbyist, Mark Wells, previously employed to run the Bulldogs' media strategy, told the Herald he had dinner with Mr McIntyre at the Bulldogs Leagues Club on November 21 last year.

Mr McIntyre had told him of the conversation with Mr Obeid. According to Mr McIntyre, Mr Obeid had said: "If you make a million-dollar payment to the ALP, it'll [the development] go straight through."

Mr McIntyre also explained that the payments were to be hidden through donations from various suppliers and that Mr Obeid had said they would tell him which suppliers would be used.

Mr Wells said Mr McIntyre had said: "I wish I'd paid it."

Another source, who did not wish to be named, said that 18 months ago Mr McIntyre had told him he thought the ALP was being too greedy and he did not want to pay.

This person said Mr McIntyre had told them that Mr Obeid said "if he [McIntyre] used a particular building company [named the company], that company would increase its contract price by $2 million, which would find its way into the ALP coffers."

When Mr Obeid was asked in writing why Mr McIntyre would say these things, the minister would not elaborate except to say that he had met Mr McIntyre on only a handful of occasions, the most recent of which was at a public function at the Bulldogs Leagues Club on August 7.

When Mr McIntyre was asked whether the club had been pressured into making a donation to the NSW Labor Party in return for a waiver on the poker machine freeze, he replied: "That's absolute garbage."

So there wasn't a meeting with Eddie Obeid where he had suggested that?

Mr McIntyre: "I have never had a meeting with Eddie Obeid. Oh, sorry, I have recently. Look, I don't want to comment on this because I am just giving oxygen to something that doesn't have legs at all. Look, this club has never been involved in any impropriety at all."

In response to questions in Parliament yesterday about the meetings Mr Obeid had attended in regard to the Oasis development, the minister said he had only been to one presentation on the project and that was 2 ½ years ago.

The Treasurer, Michael Egan, told Parliament he had had a meeting in his office with Liverpool Council representatives in which he said they would not get "a brass razoo" from the Government.

The Premier, Bob Carr, has been steadfast in his opposition to the number of poker machines the Bulldogs have been seeking for their new club and, to date, Continued Page 4

the Government has not handed over a piece of Crown land central to the Oasis development in Woodward Park, Liverpool.

In other developments yesterday, it appears that Mr McIntyre, who stood down as president of the leagues club last week, has been endorsed to stay on as the Bulldogs' official representative on the Oasis project, a move that is said to have incensed Liverpool Council.

The Herald has also learnt that Mr McIntyre does not have a fully independent practising certificate, meaning he can work as a salaried solicitor but cannot charge costs for his legal work or practise other than as an employee.

However, the Bulldogs Leagues Club annual report says Mr McIntyre's private company has sent a bill for "legal and consulting services to the company". Last year it was $114,975, compared with $197,000 in 2000.

Meanwhile, the former state minister for health Kevin Stewart is expected to be the new president of Bulldogs Leagues Club, following a meeting yesterday at the club's Belmore headquarters.

Mr Stewart is part of an ALP dynasty that included his brother Frank, a sports minister in the Whitlam government.

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.

Defamation Act 1974(NSW)

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