Malcolm v Nationwide News Pty Limited

Court of Appeal (NSW)|2007-08-22|Before: Beazley JA, Basten JA, McClellan CJ, Simpson J, Clellan CJ

Background to the proceedings 2 On 29 June 2005, the Daily Telegraph published the news article complained of by the appellant. The news article consisted of a photograph of the appellant taken by a railway station security camera and the following material which was published under the photograph: "[Caption] Pounced … this man is wanted for attacking and abducting a boy, 7, in Homebush

This man is suspected of abducting and indecently assaulting a seven-year-old boy in Sydney's west.

The attacker pounced as the boy walked along The Crescent in Homebush, about 9:30pm on Friday, April 1.

The victim was forced into the front yard of a unit block near the intersection of Hampstead Rd and then indecently assaulted. Police said the man ran from the scene after being disturbed by a passer-by.

Strike force Creasey has been established to investigate the assault.

Detectives believe this man, captured on CCTV at Flemington railway station on the night in question, may be the person they are looking for.

He is Caucasian, aged in his 20s, weighs 80-85kg, is 180-183cm tall with a slim build, fair skin, short brown hair and is clean-shaven.

He was wearing dark trousers, white runners and a dark jumper, possibly with a hood and a USA insignia on the breast pocket.

He also wore a white shirt with a black skull and cross bones design on the front.

Anyone who might know the man's identity, or who has information about the incident, can call Crime Stoppers on 1800 333 000." 3 The appellant commenced defamation proceedings alleging, so far as is relevant to the appeal, that the news article conveyed the imputation that "the [appellant] had abducted and indecently assaulted a 7 year old boy". As that is the only imputation in issue on the appeal I will simply refer to it as the imputation. 4 The respondent filed a notice objecting to the appellant's Statement of Claim, alleging that the imputation was not reasonably capable of conveying the imputation. It contended that, at its highest, the article suggested that the person was only suspected of committing the acts set out in the article and that there was a long line of authority that said a statement that a person was suspected of committing an offence was not capable of carrying a defamatory imputation: see Mirror Newspapers Limited v Harrison (1982) 149 CLR 293; [1982] HCA 50; Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52. 5 The application came before Simpson J on 13 September 2006 for the determination, by way of a separate question whether the news article was capable of conveying the imputation: see Rule 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) (the UCPR). 6 Her Honour considered that when regard was had to the entirety of the news article, it was clear "beyond reasonable doubt" that what was being reported was a suspicion that the person depicted in the photograph was the person who committed the offence outlined. There were at least three different references in the item which, in her Honour's opinion, made it clear that what was being reported was that the person in the photograph was the person suspected of the attack. As her Honour was satisfied the news article was not capable of conveying the imputation, the imputation was struck out.

Appellant's argument 7 The appellant's case is that the article contains two allegations of guilt and two allegations of police suspicion of guilt. The two allegations of guilt were contained in the caption, "Pounced … this man is wanted for attacking and abducting a boy, 7, in Homebush" and the headline, "Sex attacker caught on camera" immediately under the appellant's photograph. The two allegations of suspicion of guilt were identified as the portions of the article which stated, "[t]his man is suspected of abducting and indecently assaulting a seven-year-old boy in Sydney's west" and "[d]etectives believe this man, captured on CCTV at Flemington railway station on the night in question, may be the person they are looking for". 8 The trial judge did not make any finding as to whether the two references relied upon by the appellant as being references to guilt were capable of conveying an imputation of guilt. Rather her Honour held that the article as a whole was not capable of conveying that imputation. The respondent, both at trial, and in its argument on the appeal, adopted the same approach. Senior counsel for the respondent accepted, however, that the headline, taken on its own, conveyed that imputation, although he did not make the same concession in relation to the caption underneath the photograph. Nonetheless, I am of the opinion that the caption is capable of conveying an imputation of guilt. The statement makes a direct assertion - the man is wanted for doing something - that is, attacking and abducting the young boy. Taken on its own, it does not contain any qualification, such as that the man is wanted for questioning in respect of the attack. 9 The appellant contended that contrary to her Honour's finding, the matter complained of was reasonably capable of conveying the imputation, namely, that the appellant was guilty of abducting and indecently assaulting a seven year old boy and for that reason the imputation should not have been struck out. Counsel for the appellant submitted that an imputation of police suspicion, following an imputation of guilt, did not qualify or attenuate the imputation. 10 It was common ground between the parties that in determining whether a matter complained of is reasonably capable of conveying the imputation alleged, regard must be had to the whole of the published matter: see Charleston & Anor v News Group Newspapers Ltd & Anor [1995] 2 AC 65, where Lord Bridge of Harwich (Lord Goff of Chieveley, Lord Jauncey of Tullichettle and Lord Mustill agreeing) at 70, cited with approval the passage from the judgment of Alderson B in Chalmers v Payne (1835) 2 CM & R 156, 159: "But the question here is, whether the matter be slanderous or not, which is a question for the jury; who are to take the whole together, and say whether the result of the whole is calculated to injure the plaintiff's character. In one part of this publication, something disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and the antidote must be taken together." 11 The appellant's submissions on the appeal were confined to two propositions. First, that the question whether an imputation was conveyed should be put to the jury in all but the clearest of cases. Secondly, the imputation complained of by the appellant in this case was not in the category where it could be said that, taken overall, the defamatory imputation was not capable of being conveyed. In putting the case in this way, the appellant did not adopt the language of "bane and antidote" used by Alderson B in the passage set out above, (and which had dominated much of the discussion on the application for leave to appeal). Rather, the thrust of the argument on the appeal was that given that some statements were made in the article that clearly imputed guilt, it was a matter for the jury to determine whether the imputation was conveyed and was defamatory. 12 The respondent's position was that the article, read as a whole, was to the effect that the police suspected the person pictured to have abducted and indecently assaulted the young child. It was submitted that the fact that other statements were made in the article were not to the point. It was the overall effect of the article that was relevant. In this respect, reliance was placed upon the distinction drawn in Mirror Newspapers Limited v Harrison where Mason J said at 301 that: "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." 13 Apart from the differing emphases that the parties gave to the authorities, there was no difference in point of principle in the arguments each advanced. It is thus convenient to turn to the authorities before dealing with the question whether her Honour erred in concluding that the article did not have the capacity to carry the imputation alleged. In reviewing the authorities I do not propose to deal with all of the authorities cited, as the principles are settled and the statements therein draw heavily on each other. 14 In Griffith v John Fairfax Publications [2004] NSWCA 300, Tobias JA (with whom Sheller JA and Young CJ in Eq agreed) set out at [19] the principles that govern the issue in question here in the following terms: "The principles applicable to the correct approach of the primary judge and this Court to the issue [whether the matter complained of is reasonably capable of carrying the imputations pleaded] … may be summarised as follows:

(a) Section 7A(1) of the [ Defamation Act 1974 (NSW)] is declaratory of the common law, namely, that the issue of the capacity of the matter complained of in a defamation action was properly described as the task of deciding whether it would be open to the jury in the particular case to find that ordinary reasonable readers would have understood the matter complained of, when read as a whole, in the defamatory sense pleaded.

(b) On any appeal, this Court is required to independently come to the conclusion as to whether there is a case to go to the jury.

(c) If reasonable persons may differ as to whether the matter complained of was capable of carrying the imputation pleaded, then the issue must be left to the jury; otherwise, it is a matter for the court.

(d) The ordinary reasonable meaning of the matter complained of may be either the literal meaning of the published matter, or what is inferred from it; in deciding whether any particular imputation is capable of being conveyed, the question is whether it is reasonably so capable; accordingly, any strained or forced or utterly unreasonable interpretation must be rejected.

(e) The ordinary reasonable reader is a person of fair average intelligence who is neither perverse, morbid, suspicious of mind nor avid for scandal. However, that person does not live in an ivory tower but can and does read between the lines in the light of that person's general knowledge and experience of worldly affairs.

(f) The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed. The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely it is that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book and the less the degree of accuracy which would be expected by the reader.

(g) The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking.

(h) There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual.

(i) There is a distinction to be drawn in the test of reasonableness which guides any court in its function of determining whether the matter complained of is capable of conveying any of the imputations pleaded. The distinction is between what the ordinary reasonable reader (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of and the conclusion which the reader could reach by taking into account his or her own belief which has been excited by what was said: it is the former approach, not the latter, which must be adopted." 15 In Favell v Queensland Newspapers Pty Ltd, Gleeson CJ, McHugh, Gummow and Heydon JJ explained at [6] that in an application to strike out an imputation in a Statement of Claim the question for decision was whether the material published was capable of giving rise to the alleged defamatory imputations. Their Honours further stated: "[9] In Jones v Skelton [1964] NSWR 485 at 491, the Privy Council said: 'It is well settled that the question as to whether words which are complained of are capable of conveying a defamatory meaning is a question of law, and is therefore one calling for decision by the Court. If the words are so capable then it is a question for the jury to decide as to whether the words do, in fact, convey a defamatory meaning. In deciding whether words are capable of conveying a defamatory meaning the Court will reject those meanings which can only emerge as the product of some strained, or forced, or utterly unreasonable interpretation … The test of reasonableness guides and directs the Court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.'

[10] In determining what reasonable persons could understand the words complained of to mean, the Court must keep in mind the statement of Lord Reid in Lewis v Daily Telegraph Ltd [1964] AC 234 at 258: 'The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.'

[12] A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that point towards a likelihood of guilt, then the position may be otherwise. There is an overlap between providing information and entertainment, and the publishing of information coupled with a derogatory implication may fall into both categories. It may be that a bare, factual, report that a house has burned down is less entertaining than a report spiced with an account of a suspicious circumstance. At this preliminary stage of the proceedings, the respondents have not yet had an opportunity to indicate why it was considered relevant to the story about the fire to link it with the development application. For that matter, the occasion has not yet arisen for a jury to decide what meanings the article would convey. We are concerned only with the anterior question of what the article is capable of conveying." 16 The question whether a statement of suspicion imputes guilt was considered in Lewis v Daily Telegraph Ltd [1964] AC 234, where Lord Devlin stated at 285: "It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded." 17 Lewis was referred to by Mason J in Mirror Newspapers Limited v Harrison, where his Honour, at 300, observed that there was a strong current of authority supporting the view that a report which did no more than state that a person had been arrested and charged with a criminal offence did not bear an imputation that the person was guilty or probably guilty of the offence. As his Honour pointed out, at 301, in the passage quoted above at [12], it was necessary to draw a distinction between what the reader understood the newspaper to be saying and the person's own judgment or conclusion drawn from that person's beliefs and prejudices. The Court is concerned with the former rather than the latter. 18 Notwithstanding that the article has to be read as a whole, it is recognised that the ordinary reasonable reader may not give "equal weight to every part of the publication": see John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at 1662; [2003] HCA 50 at [26] per McHugh J. The emphasis that the publisher gives to the article by way of headlines, headings and captions, are legitimate matters that readers are entitled to take into account. 19 Notwithstanding that s 7A(1) of the Defamation Act 1974 (NSW) (as in force at the time of the trial) provides that it is for the court and not the jury to determine whether the matter complained of is reasonably capable of conveying the imputation pleaded, the authorities have placed particular emphasis on the role of the jury in determining whether a pleaded imputation is conveyed by the matter complained of. 20 Thus, in Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669, Glass JA at 674 stated that the question whether the imputation was conveyed should go to the jury unless it was blindingly obvious that no other conclusion was reasonably open. In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, Hunt CJ at CL (Mason P and Handley JA agreeing) stated at 164-165 that if reasonable persons may differ as to the conclusion to be drawn from the matter complained of, the issue as to whether the imputation was in fact conveyed must be left to the jury. 21 The appellant also submitted that the statements of Lord Devlin in Lewis v Daily Telegraph Ltd were particularly apt here, as the respondent's "loose talk" in the caption and the headline caused the matter complained of to be reasonably capable of conveying the imputation that the appellant was guilty of abducting and indecently assaulting a seven year old boy as well as imputing that the police suspected him of so doing. 22 Senior counsel for the respondent submitted that in order to ascertain whether an imputation was capable of being conveyed by the matter complained of, the essential point to be determined was: "[W]hether it is or was open to the jury in the particular case to find that ordinary reasonable readers … would have understood the matter complained of in the defamatory sense pleaded": see Amalgamated Television Services Pty Ltd v Marsden at 164.

He submitted that the 'glosses' placed upon this concept in the authorities relied upon by the appellant, such as stated by Glass JA in Sergi v Australian Broadcasting Commission were not of much assistance. Rather, the question whether an imputation was capable of being conveyed was to be determined on the basis of whether it was " reasonably so capable ". In determining that question, it was necessary to reject any " strained or forced or utterly unreasonable interpretation ": see Marsden per Hunt CJ at CL at 165. 23 As I have already indicated, the question for determination in this case is within a very limited compass. It is whether the article has the capacity to convey the imputation that the appellant was guilty of the offence. That question has to determined by asking whether it would be open for a jury to find that ordinary reasonable readers would have understood the article, read as a whole, as conveying the imputation that the appellant was guilty of indecently assaulting and abducting the child. The determination of that question requires not only that the article be taken as a whole but that regard is to be had to the emphasis that the ordinary reader would place upon the manner in which the article is set out, including, in this case, the heading, the caption to the photograph and, in particular, the proximity of the heading to the opening sentence of the article. 24 The photograph and headline are prominent and it would be open to the ordinary reasonable reader, considering them in isolation from the rest of the news article, to treat them as being unequivocal, that is, as meaning that the person pictured had committed the offence. Likewise, the caption, for the reasons I have already given, was also unequivocal. However, the very first sentence of the news item proper states that the person pictured is suspected of having committed the crime. That statement could be understood in one sense only and its positioning as the first sentence of the news article gives it a prominence which is important for the overall understanding that the ordinary reasonable reader would have of the published material. 25 Thereafter, there are a number of factual and descriptive references: for example, a statement as to how the crime was committed, a description of the attacker, and the fact that a crime task force had been set up. In the middle of the article, there is a statement that the police "believe the man pictured may be the person they are looking for". There is then a plea at the end of the news article that any person who "might know the man's identity" contact the police. 26 The reference to "the man" in this last sentence is equivocal. The ordinary reasonable reader might have understood it as a reference to the person in the photograph, or as a reference to the person described in the body of the article. Alternatively, and equally possible, the ordinary reasonable reader could have understood it as a reference to the person described in the body of the article, who was the person in the photograph. 27 The overall effect of the news article may thus be summarised in this way. First, there is the attention-grabbing headline and photograph, together with the caption, all of which impute guilt. Within the body of the article, save potentially for the last sentence, there is no imputation of guilt. Rather, the statements are of police suspicion. The prominence of the statement of suspicion as the first sentence in the news article is relevant to the understanding that the ordinary reasonable reader would gain from the article. 28 However, the last sentence of the news article is equivocal and could be understood in at least one of three ways. The potential for this sentence to be understood in the third of the ways that I have indicated gives rise to the possibility (which is a real possibility and not merely an hypothetical or far fetched one) that the ordinary reasonable reader would understand the statements in the body of the article to be linked back to the headline. 29 Having regard to the layout of the article, the emphasis given to the statement of guilt in the article and the potential for the material in the body of the article to be linked back to the headline, I am not satisfied that the ordinary reasonable reader would necessarily understand from the article as a whole that the man in the photograph was merely a suspect. As Lord Devlin emphasised in Lewis v Daily Telegraph Ltd, there is no specific rule as to the meaning the ordinary reasonable reader would understand an article to convey and that where statements are made about "suspicion", it is still possible for an imputation of guilt to be conveyed if the language used is not carefully chosen. 30 The function that the court exercises in determining whether a matter complained of has the capacity to convey a defamatory imputation is evaluative and one where judicial minds may differ. An appellate court will not interfere with a trial judge's decision unless it was of the opinion that the decision was wrong. I have come to that conclusion in this case. Notwithstanding the primacy of the principle that the article must be read as a whole and the clear statement of suspicion in the opening sentence, I am of the opinion that this is one of those cases where reasonable persons may differ as to whether the news article was capable of conveying the defamatory imputation. In circumstances where reasonable persons may differ as to their understanding of the article, the matter is one that must, in accordance with authority, be left to the jury. 31 Accordingly, I would allow the appeal with costs. 32 BASTEN JA: I agree with Beazley JA that the appeal should be allowed and the order striking out imputation 4(a) should be set aside. The Respondent should pay the Appellant's costs in this Court. 33 It would be open to a jury to find that the headline and the caption to the photograph, taken with the photograph but in isolation from the rest of the article, conveyed the imputation: cf [24] and [34]. That, of course, is not the question which will be left to the jury: the proper question will be whether the imputation was conveyed by the article, including those parts, read as whole. That question should be left for them to determine. 34 McCLELLAN CJ at CL: I have the benefit of reading Beazley JA's judgment in draft. As her Honour identifies, the headline photograph and caption are powerful and carry, to my mind unequivocally, an imputation of guilt. Although in the body of the article there is a discussion of police suspicions this does not in my judgment have the consequence that, read as a whole, a jury properly instructed could not find that the pleaded imputation was conveyed. 35 I agree with the orders her Honour proposes. **********

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Defamation Act 1974(NSW)

CITATION: Malcolm v Nationwide News Pty Limited [2007] NSWCA 254

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Chalmers v Payne (1835) 2 CM & R 156 Charleston & Anor v News Group Newspapers Ltd & Anor [1995] 2 AC 65 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52 CASES CITED: Griffith v John Fairfax Publications [2004] NSWCA 300 John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at 1662; [2003] HCA 50 Lewis v Daily Telegraph Ltd [1964] AC 234 Mirror Newspapers Limited v Harrison (1982) 149 CLR 293; [1982] HCA 50 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669

(2) In determining whether a matter complained of was capable of conveying the imputation alleged, regard must be had to the whole of the published matter: [10] Charleston & Anor v News Group Newspapers Ltd & Anor [1995] 2 AC 65 (cited) (3) Notwithstanding that the article has to be read as a whole, it is recognised that the ordinary reasonable reader may not give equal weight to every part of the publication. The emphasis that the publisher gives to the article by way of headlines, headings and captions, are legitimate matters that readers are entitled to take into account: [18] John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; [2003] HCA 50 (cited)

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