Rivkin v Amalgamated Television Services Pty Limited

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

BELL J 28 May 2001 20086/98 - Rene RIVKIN v AMALGAMATED TELEVISION SERVICES PTY LTD ACN (000 145 246)

1 These proceedings were listed for trial before a jury pursuant to s 7A(4) of the Defamation Act 1974 on 23 May 2001. Prior to the jury being empanelled on that day Mr Stitt QC, who with Mr Lynch appears on behalf of the defendant, informed me that he sought to challenge each of the four imputations upon which the plaintiff relies. 2 The proceedings were commenced by statement of claim filed on 26 March 1998. On 6 November 1998 the plaintiff filed an amended statement of claim. The defence to that amended statement of claim was filed on 5 August 1999. On 18 August 2000 the matter came before Levine J who directed the separate trial by jury of the issues joined in the amended statement of claim and the defence thereto pursuant to Pt 31 Rule 2 of the Supreme Court Rules 1970. It appears that at no time prior to 23 May 2001 when the matter was listed for jury trial was any challenge mounted either to the form or the capacity of the imputations pleaded by the amended statement of claim. These are not proceedings to which Practice Note 114 applies. It remains unfortunate that the matter was left so late in the day to be argued. 3 By his amended statement of claim the plaintiff contended that the matter complained of, a broadcast on the Channel 7 television program "Witness", in its natural and ordinary meaning contained the following imputations each of which was defamatory of him: "(a) That the plaintiff was a person criminally liable in respect of the murder of Caroline Byrne; (b) That the plaintiff had behaved in such a way as to warrant the well deserved suspicion that he was a person criminally liable in respect of the murder of Caroline Byrne; (c) That the plaintiff had engaged in homosexual intercourse with Gordon Wood; (d) That the police had reason to suspect that the plaintiff had engaged in homosexual intercourse with Gordon Wood.

4 The defendant submits that imputations (a) and (b) are not reasonably capable of arising from the matter complained of. 5 The subject broadcast concerned the death of a young model, Caroline Byrne. Ms Byrne's body was found at the bottom of the Gap at Watsons Bay. The coroner recorded an open finding and is said to have made a number of findings as to credit reflecting adversely on Ms Byrne's partner, Mr Gordon Wood. The program squarely raises the suggestion that Ms Byrne was murdered and, might be thought to convey, that Mr Wood was suspected of having murdered her. In this context the program highlights the relationship between Mr Wood and the plaintiff. Mr Wood is described as having been the plaintiff's driver and, subsequently, his personal assistant. The plaintiff is said to have purchased an apartment, furniture, clothes and a car for Mr Wood. In an interview which was tendered at the inquest Mr Wood is said to have stated that the deceased was suspicious of his relationship with the plaintiff. 6 The presenter of the program, Mr Barry, questions Mr Wood upon the basis that the police had received information that the deceased had arranged for him, Wood, to be placed under surveillance on the afternoon of her disappearance and that she had "sprung" him having homosexual intercourse with the plaintiff. 7 Mr Wood denied any involvement in the death of the deceased and denied that he had been caught by her engaging in homosexual relations with the plaintiff. A stinging attack on Mr Wood's credit is made in the course of the program. 8 Two witnesses are said to have given evidence at the coronial inquiry stating that they had seen the deceased close to the Gap at about 1.00 pm on the day of her disappearance in the company of Mr Wood and another man (not said to be the plaintiff). The viewer is told that Mr Wood gave an account to police that at that time he had been driving the plaintiff in the course of his employment. 9 The program goes on to assert that at around ten minutes to four pm on the day of her disappearance the deceased's cash card was used at a machine near the Gap. At around this time it is said that witnesses observed a green Bentley motor vehicle consistent with the appearance of the plaintiff's vehicle (the inference being that it was seen in the vicinity of the Gap). 10 Mr Stitt drew my attention to Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 167 where Hunt CJ at CL explained the distinction between an implication and an inference and went on to observe: "An inference is drawn from an inference when the reader, listener or viewer draws an inference which is available in the matter complained of and then uses that inference as a basis (at least in part) from which a further inference is drawn. The publisher is held responsible for the first of those inferences but not for the second because - as I have already said - it is unreasonable for the publisher to be held so responsible."

11 In Mr Stitt's submission the ordinary reasonable viewer might only find imputations 4(a) and (b) conveyed by a process of drawing an inference upon an inference. Indeed, in the way he developed the argument, Mr Stitt contended it would be necessary to draw an inference upon an inference upon an inference so to do. It was Mr Stitt's submission that imputation 4(a) might only be conveyed to the ordinary reasonable viewer by a process of reasoning which involved drawing the following inferences: (i) that the deceased's suspicion as to the existence of a homosexual relationship between Gordon Wood and the plaintiff reflected the truth of the relationship;

(ii) that Gordon Wood was under such domination by the plaintiff that he was prepared to, and did, murder his defacto partner to avoid disclosure of their homosexual relationship;

(iii) the plaintiff perceived the murder of Ms Byrne to be the only effective means to avoid disclosure of his homosexual relationship with Gordon Wood. 12 Mr McClintock SC, who with Mr Richardson appears on behalf of the plaintiff, submitted that the program is one which makes a straight out allegation that Ms Byrne was murdered and invites the viewer to ask "who dunnit?" The only motive identified for her killing is the suggestion that she had "sprung" the plaintiff and Mr Wood having sexual intercourse. The presenter of the program observes that "Gordon Wood wasn't questioned at the inquest about his relationship with Rene Rivkin, nor was Rivkin called as a witness." Mr McClintock submitted that the tone of this observation implied a criticism of the thoroughness of the coronial inquiry. In his submission the program highlights the plaintiff's suggested relationship with Gordon Wood in a sensational manner and invites the viewer to conclude that the plaintiff was involved in her murder. 13 The issue for my determination is whether imputations (a) and (b) are capable of being conveyed to an ordinary reasonable viewer of the program. In Amalgamated Television v Marsden Hunt CJ at CL noted as to this task: "Although 'designed to illuminate a different area' (namely, negligence), the function of both the trial judge and of this Court on appeal in determining whether there is or was a case to go to the jury is well stated in Prosser's Handbook of the Law of Torts 5th ed (1984) by Prosser & Keeton (at 238): 'The most common statement is that if reasonable persons may differ as to the conclusion to be drawn, the issue must be left to the jury; otherwise it is for the court.'"

14 I am required to have regard to the manner of publication in determining whether an imputation is capable of being conveyed. Again, in Amalgamated Television v Marsden Hunt CJ at CL, after collecting the authorities, went on to observe: "All of these considerations, and more, apply to matter published in a transient form - and particularly in the electronic media. Whereas the reader of the written document has the opportunity to consider or to re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity: Gorton v Australian Broadcasting Corporation (1973) 1 ACTR 6 at 11; Brown v Australian Broadcasting Corporation (Hunt J, 4 May 1987, unreported) at 11. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant program, he or she may not have devoted the same degree of concentration, particularly I would say, where it is the radio to each part of the program as would otherwise have been given to the written article (Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 (n at 420), and may have missed the significance of the existence, earlier in the program, of a qualification of a statement made later in the published material: Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413. The trial judge in a transient publication will therefore more readily leave it to the jury to decide whether an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed than he or she would in relation to a written document case: Brown v Australian Broadcasting Corporation (at 12-13).

15 I viewed a substantial portion of the matter complained of in order to determine this application. The piece is presented as an investigative report. The allegations are of a sensational character. The juxtaposition of the photograph of the plaintiff next to that of Mr Wood (in the context of a criticism of the coronial inquiry by its failure to call the plaintiff as a witness) immediately after reference is made to the plaintiff being "sprung" by the deceased on the day of her disappearance together with the shots of the plaintiff's vehicle (apparently in the vicinity of the crime) in the course of a program purporting to be an exercise in serious investigative journalism seem to me capable of conveying the imputation pleaded by the plaintiff. In this regard I take into account the observations of Lord Devlin in Lewis v Daily Telegraph Ltd [1964] AC 234 at 285: "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 of the words conveyed 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."

16 I am of the view that imputations 4(a) and (b) are capable of being conveyed and, accordingly, I ruled that they would go to the jury. 17 Mr Stitt challenged imputations 4(c) and (d) upon the basis that in neither case were they capable of being defamatory of the plaintiff. Mr Stitt submitted that in order to be defamatory an imputation must tend to lower the plaintiff in the estimate of "right thinking members of society generally". To publish an assertion which would disparage an individual in the eyes of a section of the community was not sufficient unless the views of that group happened to correspond with those of right thinking members of the society generally. 18 I took Mr Stitt to acknowledge that until relatively recent times the charge that a man had had homosexual intercourse with another would, without more, have been capable of being defamatory of him. However, he submitted that there had been a change in the social and moral standards of the community such that, as a matter of law, it could not be said that right thinking members of the society generally would hold that the mere fact of homosexual intercourse lowered a man in their estimate. 19 In support of his submission Mr Stitt drew attention to a framework of legislation at the State and Federal level which he contended reflected the change in community attitudes on the topic of homosexuality. He commenced by noting that the former proscription of homosexual conduct between consenting male adults had been abolished by amendment to the Crimes Act 1900 introduced in 1984. He drew attention to the provisions of the Anti-Discrimination Act 1977 which render it unlawful to discriminate against a person on the grounds of homosexuality in a wide range of contexts including employment, the provision of goods and services and education. He noted in particular the Anti-Discrimination (Homosexual Vilification) Amendment Act 1993 which inserted a provision into the Act making it unlawful, by a public act, to incite hatred towards, serious contempt for or severe ridicule of a person upon the grounds of homosexuality. He pointed to the Property (Relationships) Legislation Amendment Act 1999 which amended the De Facto Relations Act 1984 (now the Property Relations Act 1984) to broaden the definition of "de facto relationship" so as to include homosexual relationships thus providing for court orders adjusting property rights as between homosexual couples upon the termination of a domestic relationship. 20 Mr Stitt also referred to a number of Federal enactments including the Migration Act 1958 with the provision made in the Regulations thereunder for the issue of visas to permit the entry into Australia of persons who are in interdependent relationships, including homosexual relationships, and to the objects of the Workplace Relations Act 1996 which include eliminating discrimination upon the basis of sexual preference. 21 Mr McClintock submitted that the legislative provisions to which I had been taken were not relevant to the determination of the issue. In his submission the fact that Parliaments at both the State and Federal level may have legislated with a view to eliminating some forms of discrimination against homosexuals did not speak to the question of whether ordinary right thinking members of the community might not entertain an adverse reaction to a man who had homosexual intercourse. 22 Mr McClintock drew attention to the fact that many reasonable persons holding religious convictions would consider engagement in homosexual sexual relations to be a sin. 23 In Mr McClintock's submission the question of whether the bare assertion that a man has had homosexual intercourse with another is defamatory is a matter for the jury. The jury is peculiarly well placed to determine the content of current community standards on moral and social questions. It flowed from Mr McClintock's submission there is little, if any, room for holding that as a matter of law an imputation is not capable of being defamatory when it relates to a moral or social issue. 24 In Reader's Digest Services Propriety Limited v Lamb (1981 - 1982) 150 CLR 500 Brennan J (in a judgment with which the other members of the Court agreed) observed at p 506: "Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation (Byrne v Deane [1937] 1 KB 818 at 833) being a standard common to society generally (Miller v David (1874) L.R. 9 C.P. 118; Myroft v Sleight (1921) 90 L.J.K.B. 883; Tolley v JS Fry & Sons Ltd [1930] 1 KB 467 at 479).

25 His Honour in that case went on to observe: "The defamatory nature of an imputation is ascertained by reference to general community standards, not by reference to sectional attitudes" (at 507).

26 I accept that reasonable members of the community by reason of religious belief may think the less of a man who engages in homosexual intercourse. However, the test enunciated in Lamb posits a hypothetical audience of ordinary reasonable persons who hold a standard common to society generally (Mr McClintock did not submit it to be otherwise). 27 In John Fairfax Publications v Rivkin (NSWSC, 18 April 2001, Simpson J) an imputation in like terms to imputation (c) was allowed to go to the jury. I was informed that no challenge as to the capacity of that imputation had been taken before her Honour. 28 Mr Stitt referred me to the decision of Levine J in Horner v Goulburn City Council (NSWSC, 5 December 1997). In that case his Honour held that an imputation that the second plaintiff was engaging in a homosexual relationship with the second plaintiff was capable of being defamatory. Mr Stitt submitted that it did not appear that the submissions which he was advancing had been argued before his Honour in that case. 29 Mr Stitt sought to support his submission by reference to Quilty v Windsor (1999) SLT 346 a case in which an employee of the Scottish Prison Service sought damages for allegedly defamatory statements made about him in a letter written by an inmate. The letter contained allegations, including that the officer was a homosexual. Submissions were advanced on behalf of the defendant contending that to refer to another person as a homosexual could no longer be said to be defamatory of him. Lord Kingarth accepted this submission observing: "I am inclined to agree with counsel for the first defender that merely to refer to a person as being homosexual would not now generally at least be regarded - if it ever was - as defamatory per se" (p.354).

In that case the publication was capable of conveying the imputation that the plaintiff's homosexuality interfered with his work in that he had displayed favouritism in relation to young offenders. It was accepted that such an imputation was capable of being defamatory. 30 I did not understand Mr Stitt to submit that the various legislative provisions to which he took me determined the content of the common standards held by the hypothetical audience of ordinary reasonable viewers. However, he submitted that such a framework spoke strongly of the change in recent years in social and moral values concerning homosexuality. In his submission it is no longer open to contend that the shared social and moral standards with which the ordinary reasonable member of the community is imbued include that of holding homosexual men (or men who engage in homosexual sex) in lesser regard on account of that fact alone. I accept that submission. This is not to say that the assertion that a man is a homosexual (or that he has engaged in homosexual sex) may not give rise to a defamatory imputation such as hypocrisy, the abuse of a position of power or trust, infidelity, or the like in the context of the publication or by way of true innuendo. 31 In this case Mr McClintock drew attention to the content of the matter complained of which included material capable of conveying that the plaintiff, a wealthy, middle aged man, had used his position of relative power (he being the employer of Mr Wood a younger man engaged as his chauffeur) and wealth to procure Mr Wood's sexual services by lavishing gifts upon him. An imputation which captured these qualities seemed to me to be capable of being defamatory of him. For these reasons I struck out imputations 4(c) and (d) but gave the plaintiff leave to re-plead. 32 The plaintiff sought to plead the following imputations following my grant of leave: "(c) That the plaintiff engaged in homosexual intercourse with Gordon Wood, a man who was an employee of his, much younger than him, who viewed him as a father figure, upon whom he lavished gifts and who was engaged to be married; (d) That the police had reason to suspect that the plaintiff engaged in homosexual intercourse with Gordon Wood, a man who was much younger than him, an employee of his, who viewed him as a father figure, upon whom he lavished gifts and who was engaged to be married; (e) The plaintiff procured a male employee to have sexual intercourse with him by lavishing presents on him; an abuse of his wealth and power."

33 Mr Stitt objected to each of these imputations. He contended that imputations (c) and (d) did not differ in substance from one another. He also submitted that these imputations failed to identify with precision the act or condition of the plaintiff said to convey an imputation defamatory of him. Finally he contended that they were not capable of being defamatory of the plaintiff. 34 The plaintiff proposes to plead imputation (d) as an alternative to imputation (c). It is a fallback imputation which pleads suspicion in the event that the jury were not persuaded that imputation (c) had been conveyed. I consider this disposes with the submission that the two imputations do not differ in substance. 35 I consider that the imputations (c) and (d) are not bad for want of precision and are capable of being defamatory and I propose to leave them to the jury. 36 Imputation (e) was submitted to not differ in substance from imputation (c). There is a significant degree of overlap between the two. However, I accept Mr McClintock's submission that imputation (e) takes up the concept of procuring sexual services from an employee by bestowing lavish gifts while imputation (c) is directed to a number of circumstances including the disparity in age in combination with the relationship of employer and employee. I propose to leave imputation (e) to the jury.

Last Modified: 05/28/2001 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.