Allegations of Guilt
8 The defendant contends that the publication is incapable of giving rise to imputations (a), (c), (e) and (g) because they impute guilt to the plaintiff. The defendant says that the article, at its highest, gives rise to a suspicion of guilt. The cornerstone of that argument is, of course, the judgment of Mason J in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300/301.
9 In support of its contention, the defendant drew attention to a number of matters. First, the test is one of reasonableness. It assumes the reader has examined the whole publication, and is a person not avid for scandal. An imputation of guilt, in the context of an investigation which has not yet concluded, could only be the consequence of prejudice. It is, therefore, not to be attributed to the ordinary reasonable reader (see Harrison per Mason J at 301).
10 Secondly, in Mr Keating's case, on the defendant's argument, the position is even stronger than it was in Harrison. The case of Harrison concerned a police investigation, and a criminal charge. Here the publication was concerned with allegations by a student, and a Departmental investigation. The ordinary reasonable reader, in that context, would be even less ready to infer guilt.
11 Thirdly, the defendant points to the inclusion of material which, it suggests, directly contradicts the notion of guilt. The allegations are denied by Mr Keating. Their revelation had been made with an obvious political motivation, which the editorial roundly condemns.
12 The plaintiff responded by drawing attention to the terms of the article, and its sensational presentation. It went well beyond the mere reporting of an arrest and charge.
13 The principle in Harrison has been considered in a number of authorities. In Rigby v John Fairfax Group Pty Limited (unreported, C of A, 1 February 1996), Kirby P said this (referring to "the fact of arrest and charge": (at 3)
"To the extent that the publisher goes beyond such a factual report, it permits a finding that the imputation of its publication is not just that the accused has been arrested and is a suspect but that he or she is also guilty of the offence charged.
The more melodrama and sensation, or prejudicial comment, in a news report, the more ready will the court be to permit the plaintiff to plead an imputation of guilt."
14 Priestley JA, made the following comment, referring to aspects of the judgment of Mason J in the Harrison case: (at 8)
"The first, second and third portions italicised show how careful Mason J was 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."
15 See also Dunsec Pty Limited v Nationwide News Pty Limited [2000] NSWCA 155, per Mason P (paras 17 to 20); cf Levine J Brogan v Brammer [2000] NSWSC 613.
16 Here, I believe that the article is capable of imputing guilt. It goes well beyond the mere reporting of a person being charged with misconduct, and being under investigation.
17 First, the allegations are displayed in a sensational way. As mentioned, the headline occupies one third of the front page, treatment more appropriate to a matter of national importance than the subject of the article.
18 Secondly, the article repeats a number of times (including in the minor headline, which is given some prominence) that Mr Keating had defended himself against the claims of sexual harassment made by a number of students.
19 Thirdly, there are a number of references to the Departmental investigation being delayed. The article reports the suggestion that such delay is politically inspired, implying that revelations are likely which will damage Mr Keating politically, and harm his chances of being elected Mayor.
20 Fourthly, even the terms of the editorial, which purport to condemn Mr Lynn MP (who raised the issues in Parliament), underline the gravity of what is being suggested. It speaks of the stain on a person's character arising from the allegations. The newspaper claimed that it was giving Mr Keating the chance to defend himself.
21 I believe that, subject to questions of form, these imputations should go to the jury.