Lee v Fairfax Media Publications Pty Ltd

Imputations (a), (d) and (e) 5The principle issue for determination is whether the publications sued upon carry imputations that the plaintiff murdered the Lin family and/or Mrs Choi, and whether an imputation that the plaintiff is a multiple murderer, mass murderer or serial killer is also capable of being conveyed as the condition relating to such acts (Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980)). 6The principal topic of the matter complained of is the investigation of Mrs Choi's murder; the Lin family murder is referred to only in paragraphs 7 and 18. The opening paragraphs explain that the killer of Mrs Choi left a trail of forensic clues, including "19 fingerprints from the same unidentified person", a palm print, DNA under the victim's fingernails and "several" sock imprints. However, although police identified 17 persons of interest, none of these persons (including the plaintiff) matched the "mystery DNA and prints", leaving police "at a dead end" (paragraph 7), in that this made it impossible for any of these persons to have been the murderer of Mrs Choi. The remaining factual material consists of the movements of the family of the victim on the day in question, police speculation that theft was the motive (the victim was known to keep large amounts of cash in the family home), and information about the inquest and the offering of a reward, without any result; police were at a "dead end". 7Mrs Choi's murder occurred on 12 August 2008, and the Lin family murder not until a year later, but I have to proceed on the basis that the reader of the matter complained of does not have these fine details in mind. Although the matters complained of principally deal with the murder of Mrs Choi, I shall set out the allegations about the Lin family first, as these are the key to the issue of capacity. The connecting factors between the two murders, from the plaintiff's point of view, are that he has been a person of interest in both. In part, this is because the Choi family businesses included a tutoring college for children, because the plaintiff in fact worked for a rival tutoring college, run by his own parents. The plaintiff, according to paragraphs 7 and 18, came "under police gaze" in the Lin family murders due to his having tutored the Lin children. This would be slight evidence of itself, but there were additional reasons for suspecting him. First, the plaintiff had to be "tracked down" by police investigating the Lin murders, because he had "suddenly left" his apartment, taking only his passport, weeks after Mrs Choi's death in August 2008. Secondly, he was one of 17 persons of interest in her murder. 8Nevertheless, the matter complained of goes on to state, in the next sentence, that the plaintiff's DNA and fingerprints "did not match the profile in the Choi case" (paragraph 18), from which the reader would infer that his exclusion from suspicion as the person who murdered Mrs Choi was considered of relevance by the police conducting the Lin investigation. 9This brings me to the principal subject of the article, namely Mrs Choi's murder. The statement at paragraph 18 (concerning the Lin family murder) that the plaintiff's DNA and fingerprints did not match those of Mrs Choi's killer is one of a series of statements that all known persons of interest, including the plaintiff, have been excluded on this basis. This is reinforced by paragraphs 19 - 22, which describe the police as going on to investigate the other 16 persons of interest, such as the "church friends" of the victim who had unsuccessfully asked her for loans (including one churchgoer who threatened another with a similar fate to the victim), looking "further afield" to an offender who had stabbed another woman the following month, and to inquiries made in South Korea, as it was believed the murderer could have fled there. In each case, the DNA and fingerprint evidence was not a match, and the final paragraph notes that despite a coronial inquest and a reward, the family are "still waiting for a breakthrough" in what was called "one of Sydney's greatest murder mysteries". 10The plaintiff's argument is that he is the only person named amongst these 17 persons of interest, and that the greater amount of information (especially the Lin family murder details), and the use of his name, where other suspects are unnamed, are strong hints to the reader (reading between the lines) that despite the total absence of forensic evidence, he is the murderer. Additionally, the plaintiff, who had attended Trinity Grammar School with Peter Choi (the victim's son), was being investigated for fraud, and had asked Peter Choi's wife if he could borrow money from her. Mr Rasmussen submits that this material rises above an imputation of mere suspicion and is capable of conveying an imputation of guilt in relation to both the Lin family murders and Mrs Choi's murder.

The relevant principles 11In Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 the High Court stated at [6]: "Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken." [Emphasis added]. 12See also Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158. 13I note the warning by the NSW Court of Appeal in Corby v Allen & Unwin [2014] NSWCA 227 at [135] - [136] that the determination of capacity is an issue of generosity and not of parsimony and a "matter of impression ... the impression is not of what the words mean but of what a jury could sensibly think they meant" (Berezovsky v Forbes [2001] EWCA Civ 1251 at [16]). Mr Rasmussen submits that the plaintiff should therefore be given wide latitude, but Mrs Barnett submits that the word "sensibly" in Favell at [6] must be given its full import. 14McColl JA outlined the correct approach by the judge at the capacity stage of determining the imputations (at [133]) as being: "[133] The judge's function at the capacity stage is to determine "the outside boundaries of the possible range of meanings and [set] the 'ground rules' for the trial": P Milmo and WVH Rogers, Gatley on Libel and Slander (11th ed 2008, Sweet & Maxwell) ("Gatley"), at [3.13] (see also [32.5]) citing Mapp v News Group Newspapers Ltd [1998] QB 520." 15The reasons for such caution being required at the capacity stage are explained at [136]: "[136] One reason "great caution" is mandated at the capacity stage, is because the conclusion which necessarily underpins a determination that the matter complained of is not capable of conveying the pleaded imputations is that "no reader could reasonably understand the words to bear any meaning outside the range delimited ... by the judge; and that it would be 'perverse' for any jury to do so": Jameel v Wall Street Journal Europe SPRL [2003] EWCA Civ 1694 ; [2004] EMLR 89 ("Jameel") (at [9]) per Simon Brown LJ (Mummery and Mance LJJ agreeing)." 16In Corby v Allen & Unwin, the Court considered that imputations of guilt were conveyed; the first instance judge erred in failing to find certain of those imputations were conveyed but, more importantly, in holding that where imputations were conveyed, the antidote could outweigh the bane. 17The question for determination here is not whether the bane outweighs the antidote, but the more commonly encountered problem of whether a publication relating to police investigation identifies the plaintiff not just as a person under suspicion (or even the prime suspect) but the person who actually committed the crime. 18Care must be taken, even at the capacity stage, to ensure that these questions are addressed to the imputations that are actually pleaded, and not to other imputations which might be available. The contested imputations here are two specific acts (that the plaintiff murdered Mrs Choi and the Lin family) and a condition (that the plaintiff is a multiple murderer). These are Chase level 1 imputations (Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772 ; [2003] EMLR 11 ("Chase") at [45]) of outright guilt (see R Parkes QC; Professor A Mullis; G Busuttil; A Speker; A Scott; C Strong, Gatley On Libel and Slander (12th ed, 2013, Sweet & Maxwell) at [11.13]), and the question is whether they, or alternatively a Chase level 2 imputation of reasonable grounds for suspicion, arise: see the discussion of such imputations at the capacity stage in Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 at [32]). 19I shall deal first with imputation (a).

Imputation (a) (as redrafted): the plaintiff murdered the Lin family 20As is noted above, the matter complained of states that the plaintiff first came "under police gaze" in this inquiry because he had tutored two of the Lin children. Additionally, he had to be "tracked down". The facts relied upon are the reference to the plaintiff being "tracked down" because he left his Newington apartment the year before the Lin murders and taking only his passport. Finally, and most importantly, he had been a person of interest in relation to the murder of Mrs Choi, which the ordinary reasonable reader would read between the lines as being a violent murder similar to that of the Lin family, and which similarly occurred in the victim's home. 21This is not a publication where the "whole tenor" (Corby at [154]) is that the plaintiff is guilty of the murder of the Lin family. He only came to police attention because he tutored the Lin children. The other suspicious circumstances, such as his leaving his apartment suddenly the year before the Lin murder and the fact that he was under suspicion in Mrs Choi's murder, are stated in paragraph 18 as having been matters which aroused police suspicion, which suspicion was allayed because "his DNA and fingerprints did not match the profile in the Choi case". 22The question is whether these statements take the imputation beyond mere suspicion and amount to an allegation that the plaintiff was in fact the murderer of the Lin family. As is set out above, Mr Rasmussen relies upon: (a)The fact that there is a reference to both murders "makes the inference very strong" (outline of submissions, at 1.3). (b)No other suspects are named in relation to the Lin family or Mrs Choi murders. (c)He had been in hiding since shortly after the murder of Mrs Choi in 2008 and this meant that the Lin investigators had to track him down in 2009. 23Mr Rasmussen's submissions on this issue elided the imputations in relation to both murders. Each imputation needs to be considered separately. 24Mrs Barnett submits that it would be perverse for the ordinary reasonable reader to conclude that these statements conveyed an imputation that the plaintiff had murdered the Lin family and that although the bar for capacity of imputations is set low, this imputation clearly is not conveyed. 25Grounds of suspicion may range from the slight to the strong (Rakhimov v Australian Broadcasting Corporation [2000] NSWSC 10 at [27]; Channel Seven Adelaide Pty Ltd and Anor v S, DJ [2006] SASC 10 at [24]), but for a Chase level 1 imputation of murder, such shades of meaning are unavailable. The plaintiff either committed the murder, or he did not. Mr Rasmussen conceded it was not possible to plead an imputation that the plaintiff "may have murdered" the Lin family, not only because "may" is impermissible (Christiansen v Fairfax Media Publications Pty Ltd [2012] NSWSC 1258 at [33]; Alex v Gridneff [2013] NSWSC 2035) but also because these shades of meaning elide the concepts of reasonable suspicion and actual performance of the deed. However, the solution is not to replace the current imputation with its defective plea of "may" by a stronger imputation of guilt, but to accept that suspicion is all that is conveyed. 26The matter complained of states only that the plaintiff was located by police and interviewed in relation to the Lin family in his capacity as the children's tutor, the murder of Mrs Choi having been discounted as an indicator of guilt for lack of forensic evidence. In other words, he came "under police gaze", but was discounted, not least because he was excluded on forensic grounds in relation to Mrs Choi's murder (paragaph 18). The matter complained of is accordingly incapable of giving rise to an imputation that the plaintiff murdered the Lin family.

Imputation (e) (as redrafted): The plaintiff murdered Joo Won Choi 27I have dealt with this imputation out of turn because it raises the same issue as imputation (a). 28The matter complained of categorically states in the two headlines, paragraphs 6 - 7 and paragraphs 18 - 22 that the significant DNA and fingerprint evidence found at the murder scene cannot be matched with any of the persons of interest, and specifically with the plaintiff, which cannot give rise to an imputation that the plaintiff physically performed the act of murdering Mrs Choi. Police are "baffled" (Headline 2) by "one of Sydney's greatest murder mysteries" (paragraph 6) and "at a dead end" (paragraph 7) despite a coronial inquest and a $100,000 reward; the family are still waiting for a breakthrough in this "unsolved" (paragraph 24) six-year-old murder. 29Mr Rasmussen relies upon the same factual nexus as for the imputation that the plaintiff murdered the Lin family. The same (or perhaps greater) problems apply, because the matter complained of refers to police investigation of a series of other persons of interest such as the local break-and-enter offender, church friends who had unsuccessfully asked the victim for loans, a man heard to make a threat concerning the circumstances of the victim's death, a mentally-ill man who stabbed a prostitute the following month, and inquiries of Interpol in South Korea, none of the results of which matched the extensive DNA and fingerprint evidence. All these persons (including the plaintiff) were therefore deemed not to be the murderer. The allegations about the plaintiff take up four paragraphs, and he is the only person named, but the whole tenor of the publication is that police are at a dead end, because they cannot find the person matching the killer's DNA and fingerprints. 30Mr Rasmussen submitted that, on the low level of a capacity hearing, I should take into account that a person reading between the lines would assume that the police were incompetent, or that the DNA and fingerprint evidence could be wrong. However, that is the sort of perverse conclusion that a person avid for scandal would draw. The evidence of suspicion against the plaintiff may be strong rather than slight (Rakhimov, supra, at [27]), but that is insufficient to convert a Chase level 2 into a Chase level 1 imputation, even at the capacity stage. 31This imputation is not capable of being conveyed.

Imputation (b): The plaintiff was tracked down by police as part of the Lin family murder investigation 32The NSW Court of Appeal has recently explained the nature of ambiguous imputations in Fairfax Media Publications Pty Ltd v Alex [2014] NSWCA 273 at [19] - [24], and I respectfully adopt their Honours' statements of the relevant principles. This imputation is a good example of the sting of the libel not being captured by the mere repetition of the matter complained of. This sentence in the matter complained of goes on to state that he was tracked down "because he tutored the Lin children", this being the reason the police wished to interview him, but the real sting is in the previous paragraph. 33The defendants submit that the imputation is ambiguous as it fails to distil a clear defamatory act or condition of the plaintiff. The statement that police have had to track someone down may not, by itself, distil a defamatory meaning, as police have to find many potential witnesses or persons of interest whose whereabouts are unknown to them. The defendants submit, and I agree, that what the plaintiff intends to convey is an imputation based upon the reference to the circumstances in which the plaintiff "suddenly left" (paragraph 17) his Newington apartment in the weeks following Mrs Choi's murder, and that this is what should be pleaded. 34This imputation is struck out with leave to replead.

Imputation (d): The plaintiff is a mass murderer/multiple murderer/serial killer 35This imputation relies upon the acts in each of the matters complained of as creating a condition, namely the plaintiff is a person who, having murdered more than one person, is either a mass murderer, or a multiple murderer, or a serial killer. Mr Rasmussen was uncertain which of these terms should be used. 36If imputations of murdering more than one person had been conveyed, the plaintiff would, additionally to imputations of committing the murders, be entitled to plead an imputation of condition, namely that he is a murderer or a multiple murderer. However, as I have found that neither of the Chase level 1 imputations of murder are conveyed, this imputation cannot be conveyed.

Imputations (c) and (f): reasonably suspected by the police as having murdered the Lin family/Joo Won Choi 37For the reasons set out above, and discussed in the course of argument, the matter complained of is capable of conveying these two Chase level 2 imputations that the plaintiff was reasonably suspected by the police as having committed each of these murders.

Costs 38The plaintiff's submissions were not available until this morning, at the hearing, and Mr Rasmussen has effectively sought to replead and reorganise the imputations. I am grateful to Mrs Barnett for dealing with these changes "on the run". As the plaintiff has been substantially unsuccessful, even in relation to the proposed amendments, the plaintiff should pay the defendants' costs.

Orders (1)Strike out the imputations currently pleaded as imputations (a), (b), (d) and (e), with leave to replead imputation (b). (2)Plaintiff to file an amended statement of claim in 7 days. (3)Matter stood over for further directions to Friday 31 October 2014. (4)Plaintiff to pay the defendants' costs of the argument today.

Annexure A (1)No arrests yet, despite killer's trail of clues (2)The torture and murder of a kind, generous woman continues to baffle police. (3)writes Rachel Olding (4)The killer of well-known business owner Joo Won Choi did not leave the scene without a trace. (5)Around the blood spattered through her family's neat Croydon home were crucial clues: 19 fingerprints from the same unidentified person, a palm print on the front verandah, unknown DNA under Mrs Choi's fingernails and several sock imprints on the bathroom floor only visible under special lighting. (6)But, nearly six years on, the stabbing of the popular, generous mother remains one of Sydney's greatest murder mysteries. (7)Police have identified 17 persons of interest - from a local break-and-enter offender to a man who came under police gaze during the Lin family murder investigation - but none matches the mystery DNA and prints, leaving police at a dead end. (8)Mrs Choi, 56, and her husband Suk Bong Choi, 63, worked seven days a week in their four businesses - a neon sign business in Marrickville, a bag shop in Roselands Shopping Centre and two James An tutoring colleges. (9)Tuesday mornings were Mrs Choi's only time off and her son Peter, 33, was the last to see her on August 12, 2008, as he ran out the door of their Fitzroy Street bungalow, late for work at Suncorp in the city. (10)Mr Choi was due to meet his wife for lunch in Marrickville but when she did not arrive, he went home and found her lying in a pool of blood in the hallway, stabbed eight times. (11)A bloodied knife was on the bench. A box containing the traditional dress she wore to her other son David's wedding was open on the bed. Blood trailed through the bathroom and bedrooms, indicating someone tortured her for an extended period. (12)Mrs Choi would pay her employees in cash and sometimes had up to $20,000 in the pockets of her clothes at home, leading police to believe theft was the motive. (13)The Chois were a generous and successful couple who played at Strathfield Golf Club every weekend and were heavily involved in the local Sydney Full Gospel Church. (14)But they lived modestly and gave discreet loans to those in need, Detective Senior Constable Danielle Rogerson said in a statement tendered at Mrs Choi's inquest. (15)''However, to persons outside the family, it appears that [Mrs Choi] was well-off and looked up to for having several businesses,'' she said. (16)Among the persons of interest identified by Detective Rogerson was Albert Lee, an old school mate of Peter Choi's from Trinity Grammar School, who was being investigated for fraud and had asked to borrow money from Peter's wife. (17)Detective Rogerson said Mr Lee's parents ran training colleges that competed against James An and, weeks after Mrs Choi's death, he suddenly left his Newington apartment, taking only his passport. (18)In 2009, he was tracked down as part of the Lin family murder investigation because he tutored the Lin children. His DNA and fingerprints, however, did not match the profile in the Choi case. (19)Police investigated church friends who had unsuccessfully asked Mrs Choi for loans. One man was heard threatening another churchgoer who owed him money, ''Do you know what happened to that lady at Croydon? Those are the sort of things that happen.'' However, no one matched the mystery profile. (20)Investigators looked further afield to a serial break-and-enter offender and a mentally ill man who stabbed a prostitute in September 2008. Once again, there was no DNA match. (21)Fearing the attacker fled to South Korea, Interpol was contacted but it had no fingerprint matches. (22)After a coronial inquest and a $100,000 reward announced in December, the Choi family are still waiting for a breakthrough. (23)[Picture of Joo Won Choi] (24)[Caption] Unsolved: Joo Won Choi was killed in her home.

Annexure B (1)Joo Won Cho'si [sic] murder in Croydon continues to baffle police (2)The torture and murder of a kind, generous woman continues to baffle police. (3)Rachel Olding Reporter (4)The killer of well-known business owner Joo Won Choi did not leave the scene without a trace. (5)Around the blood spattered through her family's neat Croydon home were crucial clues: 19 fingerprints from the same unidentified person, a palm print on the front verandah, unknown DNA under Mrs Choi's fingernails and several sock imprints on the bathroom floor only visible under special lighting. (6)But, nearly six years on, the stabbing of the popular, generous mother remains one of Sydney's greatest murder mysteries. (7)Police have identified 17 persons of interest - from a local break-and-enter offender to a man who came under police gaze during the Lin family murder investigation - but none matches the mystery DNA and prints, leaving police at a dead end. (8)Mrs Choi, 56, and her husband Suk Bong Choi, 63, worked seven days a week in their four businesses - a neon sign business in Marrickville, a bag shop in Roselands Shopping Centre and two James An tutoring colleges. (9)Tuesday mornings were Mrs Choi's only time off and her son Peter, 33, was the last to see her on August 12, 2008, as he ran out the door of their Fitzroy Street bungalow, late for work at Suncorp in the city. (10)Mr Choi was due to meet his wife for lunch in Marrickville but when she did not arrive, he went home and found her lying in a pool of blood in the hallway, stabbed eight times. (11)A bloodied knife was on the bench. A box containing the traditional dress she wore to her other son David's wedding was open on the bed. Blood trailed through the bathroom and bedrooms, indicating someone tortured her for an extended period. (12)Mrs Choi would pay her employees in cash and sometimes had up to $20,000 in the pockets of her clothes at home, leading police to believe theft was the motive. (13)The Chois were a generous and successful couple who played at Strathfield Golf Club every weekend and were heavily involved in the local Sydney Full Gospel Church. (14)But they lived modestly and gave discreet loans to those in need, Detective Senior Constable Danielle Rogerson said in a statement tendered at Mrs Choi's inquest. (15)''However, to persons outside the family, it appears that [Mrs Choi] was well-off and looked up to for having several businesses,'' she said. (16)Among the persons of interest identified by Detective Rogerson was Albert Lee, an old school mate of Peter Choi's from Trinity Grammar School, who was being investigated for fraud and had asked to borrow money from Peter's wife. (17)Detective Rogerson said Mr Lee's parents ran training colleges that competed against James An and, weeks after Mrs Choi's death, he suddenly left his Newington apartment, taking only his passport. (18)In 2009, he was tracked down as part of the Lin family murder investigation because he tutored the Lin children. His DNA and fingerprints, however, did not match the profile in the Choi case. (19)Police investigated church friends who had unsuccessfully asked Mrs Choi for loans. One man was heard threatening another churchgoer who owed him money, ''Do you know what happened to that lady at Croydon? Those are the sort of things that happen.'' However, no one matched the mystery profile. (20)Investigators looked further afield to a serial break-and-enter offender and a mentally ill man who stabbed a prostitute in September 2008. Once again, there was no DNA match. (21)Fearing the attacker fled to South Korea, Interpol was contacted but it had no fingerprint matches. (22)After a coronial inquest and a $100,000 reward announced in December, the Choi family are still waiting for a breakthrough. (23)[Picture of Joo Won Choi] (24)[Caption] Unsolved: Joo Won Choi was killed in her home.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2014