Solicitors:
Mark O'Brien Legal (plaintiff)
MK Law (defendants in proceedings 2016/304794)
Banki Haddock Fiori (defendants in proceedings 2016/304799
Australian Broadcasting Corporation (defendant in proceedings 2016/304800)
File Number(s): 2016/3047942016/3047992016/304800
[2]
Judgment
HER HONOUR: Before the Court are three separate proceedings commenced by Sun McKay against various media entities arising out of the publication of a series of newspaper articles. Broadly speaking, the articles relate to allegations that the plaintiff had been detained over "the shooting death of a colleague at the Baghdad Embassy", reporting concerns as to potential contamination of the investigation of the circumstances of the death, including the allegation that the plaintiff had been allowed to shower before he was detained and that his room had been "partially cleaned, potentially destroying evidence".
The proceedings are before the Court today for the first listing. The defendants, all represented by Ms Barnett of counsel, have taken a small number of objections to the form of the pleading. This judgment determines those objections. It is possible in this case to state my reasons in short form, as contemplated by the practice note (SC CL 4, cl 20).
As to each of the matters complained of, the plaintiff pleads the following imputations:
(a) The plaintiff murdered Chris Betts.
(b) The plaintiff carelessly discharged a firearm so as to kill Chris Betts.
(c) The plaintiff had been detained on suspicion of murdering Chris Betts.
(d) The plaintiff had been detained on suspicion of discharging a firearm so as to kill Chris Betts.
McKay v Nationwide News Pty Ltd; McKay v Fairfax Media Publications Pty Ltd;... [2016] NSWSC 1719 | Case summary | Zoe
The two imputations relating to discharging a firearm are pleaded as fall-back imputations to the two murder imputations. In each case, in response to an objection taken by the defendants, the plaintiff has agreed to amend the fall-back imputations. Imputation (b) will be amended so as to read, "The plaintiff carelessly discharged the firearm which killed Chris Betts". A corresponding amendment is proposed to imputation (d).
The first objection is that the first matter complained of in the Fairfax proceedings is incapable of conveying the fall-back imputation that the plaintiff carelessly discharged the firearm (as opposed to the imputation that he murdered Chris Betts). Broadly speaking, the basis for the objection is that, whereas murder necessarily entails an element of intention or other mental state, careless discharge of a firearm involves no such intention or mental state. Ms Barnett submitted that the first matter complained of in the Fairfax proceedings unequivocally points, in effect, to murder or nothing and that there is nothing in the matter complained of to convey any suggestion or notion of carelessness.
Whilst that is an argument which could respectably be put to the jury, I am not persuaded that this is a case in which the imputation can be taken from the jury pre-emptively. The matters which, in my view, are capable of pointing to the lesser meaning are, first, references to the plaintiff's having threatened people. The ordinary reasonable reader might well understand those references to indicate the prospect that the plaintiff threatened the deceased with a gun and accidentally discharged it without any intention to kill or cause grievous bodily harm. Separately, there is a reference in paragraph 13 to the plaintiff's being "eccentric", together with vague references to the employer security company perhaps having inadequate checking systems in respect of the security staff they retain. Those references are sufficiently vague that I think a jury could draw the lesser meaning. That imputation will go to the jury in the Fairfax proceedings.
A second capacity objection is taken in respect of schedule D to the statement of claim in the ABC proceedings. That article, apart from including similar references to the plaintiff's having a history of threatening people, also includes at paragraph 31 references to "alcohol and illicit drug use among URG employees and a lack of mental health screening." As with the previous objection, I consider those references to be at least capable of supporting the conclusion that the matter complained of conveys the lesser imputation of carelessness resulting in death as opposed to murder. That imputation will go to the jury in the ABC proceedings.
The next objection relates to the use, in a number of imputations, of the phrase "the plaintiff had been detained on suspicion of". Ms Barnett submitted that the appropriate formulation of an imputation of that kind should be in accordance with the discussion of Hunt J in Jackson v John Fairfax & Sons [1981] 1 NSWLR 36, so that the imputation should either be that the plaintiff had so conducted himself as to have warranted the suspicion referred to or else identify the authority by which or by whom the plaintiff had been detained, allowing an assessment of the reasonableness of his having been detained by reference to the holder of the suspicion in question.
The argument raises a vexed question which has been the subject of consideration with different emphasis in a number of authorities I have had occasion to consider recently in the defamation list. Mr Richardson, who appears for the plaintiff, reminded me of the discussion by Kirby J in Purcell v Cruising Yacht Club [2003] NSWSC 245, particularly at [28] to [31], as follows:
28 A plaintiff, in framing an imputation, or a defendant in framing a contextual imputation, may, according to the defendants, formulate the imputation in one of two ways. Either the suspicion must be attributed to an authority figure, such as the police, or the imputation (as here) must be framed in terms of "reasonable grounds to suspect", or the plaintiff having acted in such a way as to warrant suspicion. To say that the police "suspect" a person of murder is defamatory. It is also defamatory to say that there are reasonable grounds for suspecting that person committed murder.
29 I accept the defendants' argument. That, however, is not the end of the matter. The issue must ultimately be determined by reference to the words published. In the context of those words, is the defendants' contextual imputation conveyed? In that context, is there a need to identify the person who held the suspicion? It is suggested that different issues arise, depending upon the level of detail provided by the publication. If the publication, to use the defendants' example, simply makes a bold allegation that there are reasonable grounds for suspecting a particular person of murder, then the imputation (without identifying the person who had the suspicion) would be carried. If, however, the publication provided an explanation for the suspicion, and it plainly depended upon matters of expertise, then the position, it was suggested, may be different. The message to the ordinary reasonable listener, in those circumstances, would be that there were reasonable grounds in the minds of experts to suspect that a particular person had committed the crime of murder.
30 Here, the publication, according to the plaintiffs, did not simply say that the Cruising Yacht Club had sufficient evidence of gross misconduct on the part of Margaret Rintoul II, in not going to the aid of the Sword of Orion, when dismasted, to refer the issue to the Protest Committee. Rather, a description was provided of the extreme nature of the conditions. The storm was at its peak. Conditions were atrocious. The race was "a stark reminder of the unpredictable and awesome force of the sea". A journalist was prompted to ask the following question, which was then answered by the Commodore, which, for convenience, I repeat: (lines 204-208)
" Question : So would it have been safe and would it have been advisable to go round at a time like that to try and get close to a boat that was in distress?
Commodore : I would be speculating in terms of what the conditions were on Margaret Rintoul or the other boat as to whether that was an option that was available or in fact a safe or prudent option that was available to them."
31 The ordinary reasonable listener is assumed to be an intelligent and fair minded person. He or she is assumed to be capable of a certain amount of loose thinking. However, the test for capacity is undemanding. Although many listeners may recognise that the suspicion of misconduct depended upon the views of experts, others may not. On balance, I believe that the imputation is not defective in form. It does not require an identification of those who held the reasonable suspicion.
The difficulty for the plaintiff in the present case is that the matters complained of do not identify the authority reported to have detained the plaintiff. Notwithstanding the absence of that information, as submitted by Mr Richardson, the fact of the plaintiff's having been detained on suspicion of the murder of the deceased is an important, if not the primary, emphasis of the matters complained of. The criticism of the failure to preserve the integrity of the evidence suggests that he was detained according some formal process. In that circumstance, the absence of any identification of the person or authority by whom the plaintiff was detained gives rise to a difficulty of the kind considered in Drummoyne and triggers the principle approved in that case which might be summarised in the loose statement that the plaintiff can only do the best he or she can do having regard to the content of the matter complained of.
Mr Richardson further submitted that the imputation in the form in which it appears is as clear as any imputation that the plaintiff had so conducted himself as to warrant being detained, and is sufficiently clear to enable the defendants to respond to it and for it to be justified, if the defendants choose to embark upon that task.
The issue is not without difficulty. I accept that the plaintiff could possibly, in respect of some of the matters complained of, have provided more context in the imputation, such as by reference to the place where the plaintiff was detained, or the context in which he was detained, evidently being in the course of his employment as a security guard. However, Mr Richardson's submissions have persuaded me that the imputation in the form in which it appears in each matter is sufficiently clear and not liable to be struck out as being bad in form.
For those reasons, the defendant's objections are rejected.
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: 05 December 2016