Rakhimov v Australian Broadcasting Corporation & Anor [2001] NSWSC 10 | Case summary

1 The plaintiff sues in respect of a "Four Corners" program telecast on 4 and 5 September 2000. The matter complained of, as presently pleaded, is described as a "segment", said to have been published by both defendants. It is made up of words spoken by the second defendant. 2 The present pleading is a Further Amended Statement of Claim filed by leave on 7 December 2000. Upon the filing of that pleading the first defendant (Australian Broadcasting Corporation) informed the Court that no objection would be taken to the imputations. The second defendant (Jennings) does object. 3 However, these observations can be made. First, the pleading presently properly alleges publication by both defendants of the "segment". Secondly, if a full transcript of the words spoken in the program is to be sued upon (together, I assume, with visual images and any other material), the next Statement of Claim will no doubt comply with SCR Pt 67 r 12 - that is, inter alia, discriminating as to publication by the second defendant of material attributed to him. Thirdly, if a question of "re-publication" arises it also will have to be properly pleaded. 4 Nonetheless, the nub of the dispute arises from the "segment" which is in the following terms: "The Police are already taking keen interest in some of the Olympic family. When the Prague anti-mafia squad raided this night club, they found a new member partying with his own family. They arrested the cream of the Moscow mafia, in town to mix business with pleasure. Among them was this man, Gafur Rakhimov. He's a senior official of Olympic Amateur Boxing. He claims to be a successful businessman but the FBI think differently. They suspect him of drug trafficking and their list of his associates include some of the most dangerous criminals in the World. The Russian Government's files say he deals heroin and is one the most powerful figures in central Asia. He was expelled from France two years ago because he posed a threat to public safety. Mr Rakhimov is only one of a surprising people who have been offered a sanctuary inside the Olympic family" (sic). 5 The pleaded imputations are (paras 4 and 6): " (a) The plaintiff behaved in such a way as to deserve to be suspected by the FBI of drug trafficking; (b) The plaintiff associates with some of the most dangerous criminals in the world. (c) The plaintiff is a heroin dealer. (d) The plaintiff is a major figure in the Russian mafia ". 6 Thus, pursuant to SCR Pt 31 r 2 and by consent, the question of law for separate determination is whether the matter complained of is "capable" of carrying the first imputation. 7 For the second defendant Mr Wheelhouse submitted that the imputation as framed is directed to "conduct" (behaviour) on the part of the plaintiff, rather than his merely being the subject of suspicion by the FBI. The language of the segment simply cannot support such a meaning. What the matter complained of points to is "suspicion" only and not conduct or behaviour. 8 For the plaintiff it was submitted, first, that the ordinary reasonable viewer could think, by way of drawing a direct inference, that the plaintiff must have done something to deserve to be suspected by the FBI. People "know" it was submitted, that "rational law enforcement agencies, such as the FBI or the NSW Police Service, do not suspect people on no grounds". Insofar as this is really a separate submission, I shall return to it. 9 Secondly, for the plaintiff it was argued that authority supports the availability of, as a matter of "capacity," an imputation in the form pleaded. 10 Jackson v John Fairfax & Sons Limited & Anor [1981] 1 NSWLR 36 may fairly be described as the case in which, by reason of a concession made by counsel for the defendants on 9 March 1981, the "difficulties" with the present form of imputation began. 11 In that case the defendants sought to plead contextual imputations one of which was "that the plaintiff was facing at one time a charge that he conspired to cheat and defraud Computicket Pty Ltd and others". It was then acknowledged by the defendants that they proposed to seek to prove the truth of that contextual imputation merely by proving that earlier in the year the plaintiff was in fact charged with such an offence (p 40-41). 12 Hunt J said (41B): " It is conceded by the defendants (and properly so, in my view) that the assertion, for example, that the plaintiff was suspected of conspiracy to cheat and defraud necessarily implies that he had so conducted himself as to have warranted that suspicion . But the defendants say that proof that the plaintiff's guilt had earlier been so suspected or believed by the police or the Corporate Affairs Commission and that he had earlier been charged with such an offence would necessarily carry with it proof that the plaintiff's conduct had warranted such reactions at that earlier time" (emphasis added) . 13 The significance of that concession and the part that it played in his Honour's judgment is explained by what his Honour further said at 41F: "It was argued by the defendants that to describe a person as a suspect is to attribute to him a condition which may be disparaging, and that nothing more should be required. But to describe him as a suspect is only a compressed way of saying that he is a person who is suspected of something by another person. And, as the defendants have conceded, to say that a person is suspected of something necessarily implies that he has so conducted himself as to have warranted that suspicion. In my view, the question of whether an imputation has correctly captured the act or condition asserted of or attributed to the plaintiff is best resolved by considering what must be proved in order to justify the truth of that imputation so far as it concerns the plaintiff. I have already held, in accordance with Lang's case [1970] 2 NSWR 408, that to prove the reaction of others to the plaintiff's conduct does not prove the conduct itself. This argument of the defendants is rejected". 14 Jackson's case is authority - in the sense that it contains an authoritative statement, that an imputation that a person is suspected of certain conduct implies that the plaintiff had so conducted himself as to give rise to the suspicion. It is to be noted that in Jackson's case it was not argued that the matter complained of was incapable of conveying an imputation as formulated by his Honour (p 42G). 15 Here, as I understand the submissions for the second defendant, it is argued that the matter complained of is capable of carrying the imputation of suspicion only and no viewing of that matter would lead, in itself, to the intrusion of any notion of "conduct" or "behaviour" founding that suspicion. Certainly no such concession here is made as was made in Jackson's case. 16 Counsel for the defendant in Jackson's case appeared as counsel for the plaintiff's in the second authority referred to by Mr McClintock S.C., namely, Ainsworth Nominee's Pty Limited & Anor v Hanrahan [1982] 2 NSWLR 823. In that case a report stated 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 held (at 829G) that if the report be understood in the following sense - that the allegations had been made that the plaintiffs are guilty of a criminal offence, the police are investigating whether criminal charges against them can be proved and there is a strong possibility that they will shortly conclude that they can prove those charges against him - then the report was capable of carrying the imputation that the plaintiff was guilty of that offence. On the other hand, if the report was understood only in the following sense - that allegations had been made that the plaintiffs are guilty of a criminal offence but the truth of those allegations is still being investigated, the police suspect they are guilty and there is a strong possibility that the police will charge him with that offence, then the report is not capable of conveying an imputation of guilt. It was however capable of conveying an imputation that the plaintiff had so conducted himself as to be suspected by police of being guilty of that criminal offence. 17 This decision of his Honour followed the then recent of the High Court in Mirror Newspapers Limited v Harrison (1982) 149 CLR 293. 18 In Ainsworth an imputation was pleaded that the plaintiffs had so conducted themselves in connection with political contributions as to be suspected of illegal conduct in that regard. His Honour had expressed the view in Jackson, and repeats it in Ainsworth, that it is at the very least desirable that an imputation be cast in the active voice rather than the passive voice; the imputation so framed in Ainsworth and in this litigation is in the active voice and thus accommodates the view his Honour held as to what is "involved" in the otherwise "passive" voice imputation that a person was suspected of illegal conduct. 19 It is in Whelan v John Fairfax & Sons Limited [1988] 12 NSWLR 148 that his Honour confirmed (at 160E) his view that where a matter complained of states or implies that the police suspected the plaintiff had committed a crime, that matter is capable of conveying the imputation that the plaintiff has so acted as to warrant that suspicion. In Whelan at 160C his Honour said: "The defendants in Jackson's case had conceded that an assertion of such a suspicion by the police necessarily implied that the plaintiff had so conducted himself as to have warranted that suspicion. (The concession is recorded at 41.) In Sergi v Australian Broadcasting Commission (at 677), Glass JA said that it was possible to accompany a statement of that suspicion with such a disavowal of its reasonableness as to leave the statement of suspicion standing without any suggestion that it was warranted. I agree that that is so, although such a line of reasoning to my mind clearly supports the proposition that a statement of such suspicion without more is at least capable of suggesting that the suspicion is warranted. I now accept that it does not necessarily convey that suggestion (as had been conceded in Jackson v John Fairfax & Sons Ltd). But it is obviously capable of conveying the suggestion that the plaintiff had so conducted himself as to have warranted that suspicion . In Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301-302, Mason J (with whom Wilson J agreed) accepted that, if a charge is said to have been laid against the plaintiff, the ordinary reasonable reader may conclude that the police suspected, with reasonable cause, that he is guilty; but Gibbs CJ (at 295) and Brennan J (at 303-304) each preferred to reserve his opinion upon that question. That case neither confirms nor denies the proposition as I now state it - that the statement or implication that the police suspected that the plaintiff had committed a crime is capable of conveying the imputation that the plaintiff had so acted as to have warranted that suspicion" (emphasis added). 20 Thus it is argued for the plaintiff that the first basis is supported by the authorities referred to in respect of the second basis that where a matter complained of, as in this case, states that the "FBI suspect the plaintiff of drug trafficking" the ordinary reasonable viewer could understand that matter as imputing that the plaintiff had behaved in such as a way as to deserve to be suspected by the FBI of drug trafficking. The observations of Hunt J were founded in the concession made in Jackson and the attempt on the part of the defendant to seek to prove conduct by proof of the suspicion (reaction) - the latter properly being rejected by his Honour in the light of Lang's case. 21 Without the concession, I do not agree that the "compressed" statement of suspicion is "obviously capable" of conveying the suggestion as to conduct as a fixed rule of universal application. Certainly it cannot apply in the instant case. Indeed, I am not persuaded that in the face of the clear words of the segment, that the ordinary and reasonable viewer could imply the conduct on the basis asserted by Mr McClintock S.C. 22 A particular publication could be understood as stating specified conduct on the one hand and the existence of suspicion arising therefrom on the other; or sufficient material that identifies the conduct or behaviour or the basis for the suspicion (for example, here: "associates with most dangerous criminals" … "suspected by FBI of being a drug trafficker"). 23 The evolution of the imputation in the form here pleaded or in a similar form (the plaintiff so conducted himself/so misconducted himself) has in my respectful view been the result of a preoccupation with technical matters of form (active/passive voice) and with the application of a test ("the real test") namely, what would the defendant have to prove, which test, in my view, is not a sole test but no more than an available test. The evolution has been at been the expense of common sense in regard to the fundamental question of what the matter complained of "means". 24 Indeed, this evolved imputation as a matter of form, one would think, would be amenable to challenge on the basis of lack of precision. What precisely does it mean to say "a plaintiff has so conducted himself…"? 25 The evolved imputation also of course, in my respectful view, cannot reflect the thinking, the conclusion reached, by the ordinary reasonable reader/viewer/listener. Such ordinary and reasonable people simply do not think in those terms. The evolved imputation is not precise, "crisp", clear or ordinary reasonable English. 26 I am satisfied that a statement in a publication that "Mr Rakhimov is suspected by the FBI of drug trafficking" is a statement which can be pleaded in the passive voice and contain the substance of the sting ,namely, that he is suspected by the FBI of drug trafficking - that is the condition captured by the imputation founded quite fairly and properly in the language of the matter complained of. 27 I do not accept the proposition encapsulated in the first basis argued for the plaintiff that the ordinary reasonable reader as a matter of direct inference from the statement of the fact of the FBI's suspicion could conclude that suspicion is based on conduct. When one thinks about it, it is pure speculation and not a matter of natural inference. An ordinary reasonable viewer could consider any number of bases upon which the FBI harboured its suspicion of the plaintiff: intelligence gathering based upon multiple layers of hearsay, for example. I am not persuaded that in every case the statement in the passive voice that someone is suspected cannot constitute a properly formed imputation by reason of not attributing a "condition" I am not persuaded that someone being "suspected" leads inevitably and always to an inference that the object of the suspicion had conducted himself or "behaved" in a way that leads to it. There could be many reasons why that person is suspected. 28 The matter complained of here is perfectly clear in its terms which can be captured in an imputation proper in form (irrespective of the passive voice and the use of the language in the matter complained of), and capable of arising in the minds of the ordinary reasonable viewer namely: "the plaintiff is suspected by the FBI of drug trafficking". That is a statement of a condition of the plaintiff which could lower him in the estimation of ordinary right thinking members of the community. 29 That is the language the matter complained of uses; that is language with which both the plaintiff and the defendant are "stuck". It does not permit of what, in my respectful view, is a speculative gloss of the additional component, by conversion to an active voice, that the suspicion was based upon the plaintiff's conduct. This, in my view, is a clear case of where the ordinary reasonable viewer would understand nothing more than what is being said: that the plaintiff was suspected by the FBI of being a drug trafficker. 30 I will not remark upon the extraordinarily interesting questions as to the practicalities of the defendant justifying an imputation so framed or the evidentiary difficulties that might confront a plaintiff in asserting that it was false. 31 Accordingly, I hold as a matter of law that imputations 4(a) and 6(a) are incapable of being carried by the matter complained of and in respect of each of those causes of action pleaded in the Further Amended Statement of Claim there will be a verdict for the defendant. 32 The other imputations were not in issue and I formally find that they are capable of arising, capable of being defamatory and will go to the jury. 33 However, I grant leave to the plaintiff to plead an imputation in the passive voice based upon the plaintiff being suspected by the FBI of being a drug trafficker or any other cause of action considered to be available on bases other than those which I have rejected. 34 The formal orders are:

Rakhimov v Australian Broadcasting Corporation & Anor

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Judgment (16 paragraphs)

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