By majority appeal against judgment for Mrs Deren dismissed.
Source
Original judgment source is linked above.
Catchwords
By majority appeal against judgment for Mrs Deren dismissed.
Judgment (8 paragraphs)
[1]
Reported Decision : (1999) Aust Torts Reports 81-502
[2]
New South Wales
Court of Appeal
CITATION : STATE OF NEW SOUTH WALES v DEREN & ANOR [1999] NSWCA 22 revised - 03/03/99
FILE NUMBER(S) : CA 40144/98
HEARING DATE(S) : 3; 4; 5 June 1998
JUDGMENT DATE :
25 February 1999
[3]
PARTIES : STATE OF NEW SOUTH WALES v DEREN & ANOR
JUDGMENT OF : Priestley JA at 1; Powell JA at 135; Stein JA at 154
COUNSEL : Appellant - B.R. McClintock SC / L. McCallum
RespondentS - M.G. Sexton / K.T. Nomchong
SOLICITORS : Appellant - L.V. Knight - State Crown Solicitor
Respondents - McGlynn & Partners
CATCHWORDS : CONTEXTUAL IMPUTATION DEFENCE
Crimes Act 1900 ss 61D(1C)
61J
61E(1A)
(1B)
(1C
ACTS CITED : 61M
Defamation Act 1974 ss 9
15
16
Supreme Court Act 1970 s 108
Supreme Court Procedure Act 1900 s 7
DECISION : Appeal against judgment for Mr Deren allowed, new trial ordered; By majority appeal against judgment for Mrs Deren dismissed.
[6]
DEFAMATION ACT SECTIONS 9, 15, 16 - CONTEXTUAL IMPUTATION DEFENCE - The first and second respondent, a kindergarten teacher and her husband were charged with indecent assault of children. Various newspapers published stories about the charges based on what police officers had told reporters. Subsequently, the charges were dismissed and the respondents separately brought defamation proceedings (which were heard together) against the State in respect of the matter published by the police officers to the newspapers. During the trials various rulings were made by the trial judge against the State. Both respondents were awarded damages. The State appealed, questioning the adverse rulings.
On appeal the appellant submitted :
His Honour erred in not allowing evidence to be given by the witness [JM];
his Honour erred in rejecting the appellant's application to strike out the words "attending a Sydney kindergarten" in imputation (a) and the equivalent words in the other imputations on the ground that they were surplusage and irrelevant to the substance or sting of the imputation;
his Honour erred in ruling that the appellant was not entitled to rely on the instance of child molestation and sexual assaults on children admitted by the respondents in justification of imputation (a);
his Honour erred in ruling that the appellant was not entitled to put to the jury the argument that an imputation that "the second plaintiff participated in sexual assaults on young children" was not substantially different from the pleaded imputations and could be justified by the admitted sexual assaults;
his Honour erred in ruling that the contextual imputations were incapable of arising from the matter complained of;
his Honour erred in not leaving the defence of truth (Defamation Act s 15) and contextual truth (Defamation Act s 16) to the jury;
his Honour erred in rejecting the defence of qualified privilege at common law and should have found that the relevant publications were made on occasions of qualified privilege.
In the case of Mr Deren, held :
Pursuant to s 9(2), when considering the meaning of an imputation borne by the publication complained of, the jury were entitled to understand that the plaintiff's imputation (a) directly accused the plaintiff of particular crimes in particular locations during a particular time; the phrase "attending a Sydney kindergarten" was (inter alia) relevant to specify the accusation;
the plaintiff's imputation (a) and the State's contextual imputation (i) said different things about the plaintiff; the former accusing of specific crimes, the latter accusing of a persistent characteristic harmful to his reputation;
the publication complained of was capable of being understood as making the State's contextual imputation (i);
as there was no evidence called by the State concerning the particular accusations in imputation (a), his Honour was not in error in taking away the s 15 defence of truth from the jury and rejecting the evidence of JM in regard to that imputation;
it was open to the judge to rule that evidence of a prior act should not go before the jury if the plaintiff's prior act could not rationally enable a conclusion of fact to be drawn because the time lapse between the act and the defamation indicated there was no relation between that act and the imputation the defendant was seeking to justify; Maisel v Financial Times Limited [1915] 3 KB 336 at 342 per Pickford LJ;
however, the evidence that the State wished to rely on raised a question that the jury, and not the judge, should have been left to decide, namely was the plaintiff a child molester?
the issues arising from the State's s 16(2) defence should have been left for decision by the jury. Had the evidence the State wished to put before the jury been allowed, the public interest element would have been made out and, if the State's contextual imputation (i) was accepted as substantially true, the jury could have determined whether imputations (a) and (b) further injured the plaintiff's reputation;
the appeal against the decision on qualified privilege failed;
the State's appeal succeeded and there should be a new trial, not, however, extending to the qualified privilege defence.
In the case of Mrs Deren, held, by Powell and Stein JJA :
the State's contextual imputation (ii) differed from imputations (a) and (b) of the plaintiff, the former imputing actions of gross irresponsibility and the latter implying serious criminal conduct;
the matter published was not capable of giving rise to contextual imputation (ii) therefore, the trial judge was correct to rule it unavailable for consideration by the jury;
even if contextual imputation (ii) was held to be substantially true, a reasonable jury could not find that the matters complained of would not have further injured the plaintiff's reputation.
the appeal should be dismissed.
Per Priestley JA (contra) :
As in Mr Deren's case, the appeal in regard to grounds 2, 3 and 4 on the notice of appeal must fail;
furthermore, the appeal in regard to grounds 1 and 6 so far as they related to the State's defences of truth to the plaintiff's imputations (a) and (b) must fail;
the evidence was sufficient to make it a question for the jury whether the plaintiff let her husband "have access to young children";
the evidence to support the truth of contextual imputation (ii), although slim, should have been left for consideration by the jury;
as for the public interest element of the State's s 16(2) defence, the result was the same as in Mr Deren's case;
the question whether the jury should have been allowed to consider the further injury limb of s 16(2) was so finely balanced it was preferable for the matter to be left for the jury;
the appeal against the decision on qualified privilege also fails;
the appeal should be held and a new trial ordered subject to the same restriction as in Mr Deren's case.
Per Powell JA (agreeing on this point with Priestley JA) :
assuming that contextual imputation (ii) was available to the appellant, the substantial truth of it should have been left to the jury.
Per Stein JA (contra on this point) :
the evidence relevant to contextual imputation (ii) did not rise above a scintilla and was insufficient to be left to the jury;
even if the evidence relevant to contextual imputation (ii) had been left to the jury, the probability of it affecting the result in respect of the plaintiff is so slight that it would be wrong to order a new trial since there was no substantial wrong or miscarriage.
Crimes Act 1900 ss 61D, 61D(1C), 61J, 61E(1A) (1B) (1C), 61M
Defamation Act 1974 ss 9, 15, 16
Supreme Court Act 1970 s 108
Supreme Court Procedure Act 1900 s 7
Allied Pastoral Holdings Pty. Limited v Commissioner of Taxation [1983] 1 NSWLR 1
Anderson v Mirror Newspapers (No 2) [1986] 5 NSWLR 735
Attorney General (NSW) v TCN Channel Nine Pty Limited (1990) A Def Law & Practice [50080] 40,581
Bulstrode v Trimble [19770] VR 840
Cole v Commonwealth of Australia (1961) 62 SR 700
Davis v Hardy (1827) 6 B & C 225; 108 ER 436
Douglas v Tiernan (1931) 32 SR 149
Ellis v Wallsend District Hospital (1989) 17 NSWLR 553
Giorgianni v The Queen (1984-1985) 156 CLR 473
Harrison v Mirror Newspapers (1982) 149 CLR 293
Hepburn v TCN Channel Nine Pty. Limited [1984] 1 NSWLR 386
Hocking v Bell (1945) 71 CLR 430 and (1947) 75 CLR 125
Holman v Holman (1964) 81 WN (Pt 1) 374
Johns v The Queen (1980) 143 CLR 108
Maisel v Financial Times Limited [1915] 3 KB 336
McPhee v S. Bennett Limited (1935) 52 WN 8
Paric v John Holland Construction Pty. Limited [1984] 2 NSWLR 505
Poricanin v Australian Consolidated Industries Limited [1979] 2 NSWLR 419
Precision Plastics Pty. Limited v Demir (1975) 132 CLR 362
R v Glennan (1970) 91 WN 609
Raul Amon International Pty Limited v Telstra Corporation Limited (Victorian Court of Appeal, 19 September 1997, unreported)
Richards v Jager [1909] VLR 140
Swinburne v David Syme & Co [1909] VLR 550
Taylor v Ellis [1956] VLR 457
Torrealba v District Court of New South Wales (1996) 40 NSWLR 327
Waterhouse v Hickie (1995) Aust Torts Reports [81-347] 62,486
Yorke v Lucas (1985) 158 CLR 661
ORDERS
The appeal against the verdict and judgment in favour of the first respondent dismissed.
(i) The appeal against the verdict and judgment in favour of the second respondent upheld, and the verdict and judgment set aside.
(ii) There be a new trial, other than on the issue of qualified privilege, of the second respondent's claims against the appellant.
The question of the costs of the trial and the appeal reserved to be dealt with on written submissions.
The appellant is to file, and serve on the respondents, written submissions as to orders as to costs which it proposes should be made in the circumstances within seven days of this day, and that the respondents' file, and serve on the appellant, written submissions as to the orders for costs which they propose should be made within seven days thereafter.
THE SUPREME COURT
[7]
PRIESTLEY JA:
Introduction.
1 On 17 February 1998 a Supreme Court jury awarded Mrs D. Deren $450,000 damages and her husband Mr A. Deren $350,000 damages for having been defamed by the State of New South Wales, by the agency of members of the Police Force. Abadee J, who had presided over the trial, which occupied twelve hearing days and covered a wide range of issues, entered judgments against the State for the sums mentioned.
2 Appeals against the judgments were brought by the State to this court.
3 Not all of the matters at issue at the trial need be considered in the appeals and I will only outline sufficient of the facts to enable the matters argued in the appeals to be understood.
Background facts .
4 Mr Deren was twenty-three and Mrs Deren twenty-one when they married in 1964. They had two children. During most of his working life Mr Deren worked as a telephone technician. In 1967 he and his wife went to Papua New Guinea where they lived, in Port Moresby, until 1978. He worked for a telephone company. Mrs Deren from 1968 until 1978 first worked in and then opened and operated a kindergarten.
5 In Port Moresby in 1972 Mr Deren was charged with two counts of aggravated assault on two females aged between ten and thirteen. Both Mr and Mrs Deren were, at the trial, asked about these charges in examination in chief by their own counsel (Black AB 23 and 113-115). Mr Deren said that he pleaded guilty to the charges and,
"... I was not convicted on those two counts. A fine was imposed of twenty-five kina, equivalent to twenty-five dollars. I was asked to continue with my psychiatric treatment for twelve months and to stay on a good behaviour bond or be on a good behaviour bond for two years." (Black AB 115)
6 Mr and Mrs Deren returned to Sydney in 1978. Mr Deren then had a series of jobs and from 1980 worked principally with Telecom.
7 In 1980 Mrs Deren bought a business called Seabeach Kindergarten at Mona Vale. She needed, and had, a licence to conduct the kindergarten. She conducted it until November 1988.
Publication and republication .
8 On Sunday, 6 November 1988 police officers went to the home of Mr and Mrs Deren with a search warrant. They carried out a search there for about three hours and took away photographs, photograph albums and videos. Mr and Mrs Deren were asked to go to the Mona Vale police station, which they did. They were questioned and records of interview were made. They were then charged.
9 In the course of questioning, Detective Sergeant Fluit said to Mr Deren:
"Do you think the reverse could apply and Satan entered your body and made you assault the children?"
To which Mr Deren answered:
"It is possible." (Black AB 135)
10 Reports of their having been charged appeared in the Sydney Daily Mirror on 7 November 1988, and in the Sydney Morning Herald, the Australian and the Manly Daily, on 8 November 1988. The publications were all based on what police officers had told reporters. They were thus republications of publications first made by police officers (the State).
11 The report in the Sydney Morning Herald was headed "Kindergarten couple on child sex charges". It was said to be "by Connie Levett, Police Reporter". The text was as follows:
"A Sydney kindergarten was suspended yesterday by the NSW Department of Family and Community Services (FACS) after charges of indecent assault on children were laid against the school's woman principal and her husband.
The woman, aged 45, and her husband, 47, have been bailed to appear at Manly Local Court on November 24. A condition of their bail was that they not try to approach or contact any of the children named in the allegations against them.
The couple were arrested when Mona Vale detectives went to their home with a search warrant on Sunday afternoon. Both are charged with five counts of indecent assault on children under 10.
Senior Constable Paul Herring said the woman allegedly took six children of both sexes, aged between 3 and 5, from the kindergarten without their parents' permission, to an unknown location where she introduced them to her husband.
'The children were given toys and sweets to create a party-type atmosphere before they were allegedly assaulted. The alleged assaults were either photographed or videotaped and those tapes and pictures will be presented to the court as evidence,' Senior Constable Herring said.
The assaults are alleged to have taken place on a number of occasions over a period of 10 months from January to November this year.
The detectives began their 10-day investigation after complaints were received from parents with children at the centre."
12 The articles in the other newspapers were to the same effect and in very similar terms.
The charges dismissed .
13 The charges against Mr and Mrs Deren, with some additional ones, were the subject of committal proceedings in July and August 1989.
14 There was a preliminary hearing into the competency of the children to give evidence. (Blue AB 39.) For Mr and Mrs Deren evidence was given by: a clinical psychologist with expertise in child sexual abuse cases; the Associate Professor of Behavioural Sciences at the University of Sydney; and a witness with expertise in child development. Their evidence (Blue AB 40-43) was to the following general effect: children of the age of those allegedly assaulted may be unreliable witnesses; they are very easily influenced in the way they describe events by the way in which questions are asked of them; they "are particularly sensitive to social pressures and look for cues from adults as to the answers they want, as a result of which they are most vulnerable to leading questions" (Blue AB 41); they are very open to suggestion and conforming to parental suggestion; and the questioning of the children concerned had been suggestive of the answers.
15 A paediatric specialist with expertise in child abuse cases, who was called for the prosecution, was more inclined than the other experts to think children of the age in question could retain good memory, but said also that they "are impressed by authoritative figures such as parents and police and if they have any input into the story then the child may learn it more readily" and that "if there was no memory, because there was no event, the process of repetition could be a learning process, and if there was real memory of event, that memory might become obscured by repetition" (Blue AB 42).
16 On 10 August 1989 the magistrate ruled he would not allow any of the children to be called because he was not satisfied the requirements under the Oaths Act had been met. The prosecution then offered no further evidence and all charges were dismissed (Blue AB 43).
Inquiries into the competency of the police investigation .
17 On 24 July 1990 Detective Sergeant L.A. Scott reported to the Commander Internal Police Security Branch upon an investigation which had been requested by the Police Minister into the police investigation into the allegations of the sexual assaults. The subject of the report was whether the police investigation had been adequate.
18 Detective Sergeant Scott's conclusion was that there was no evidence to support a proposition that the police investigation was inadequate. (Blue AB 16.) She commented in a number of places in the report that questions asked of some of the children involved had been leading from the outset; Blue AB 14U, 15D, 15K. The last reference is to par 19 of the report, in which Detective Sergeant Scott said that a very large number of "the statements of the children were not spontaneous and very leading questions were asked by parents or police officers before an acknowledgment was made by the child".
19 Detective Sergeant Scott also said in her conclusions that she did not
"accept the fact that all the alleged victims were sexually abused by the same person, if they were sexually abused at all. There is slight evidence to suggest [one named child] had been interfered with but it is not conclusive in my mind as to who the perpetrator is. This problem is brought about by the manner in which the first disclosure was made by the child and the way in which evidence was adduced by asking leading questions." (Blue AB 17.)
20 The police investigation was again reviewed by the Wood Royal Commission. In its report published in 1997 (Ex F, Blue AB 21-45) the Commission concluded that the investigation had not been adequate and noted that Superintendent Scott (as she had become) in retrospect agreed with this opinion. The Commission then listed eighteen reasons for the inadequacy, many of which centred around the way in which statements had been obtained from the children including lack of people sufficiently trained in the asking of questions of such children, Three of the eighteen points were:
· "the multiple interviews by police and the ODPP, which was only aggravated by the well meaning but inappropriate involvement of the parents in interviewing the children, and in passing on the information each acquired;
· the inappropriate interview techniques used, including the use of leading questions and the inadequate recording of those interviews;
· the interview of children in the company of one another, both by parents and police;"
21 The Commission's final comment was
"... The prosecution was doomed almost from the outset by a series of investigative failures, and by the age of the children.
... It is not now possible to determine whether or not there was any truth in the underlying allegations. The trail is too old, the evidence of the children is too contaminated, and there was nothing which the Commission could find to independently corroborate or disprove the matters raised." (Blue AB 45.)
Statutory provisions important to this case .
22 Some of the more complicated arguments in this case depend upon provisions in the Defamation Act 1974 (the Act). They will be referred to later in these reasons in either abbreviated or paraphrased form. I think it will be useful if I set out the relevant provisions in their precise terms at this stage.
"9. Causes of action
(1) Where a person publishes any report, article, letter, note, picture, oral utterance or other thing, by means of which or by means of any part of which, and its publication, the publisher makes an imputation defamatory of another person, whether by innuendo or otherwise, then for the purposes of this section:
(a) that report, article, letter, note, picture, oral utterance or thing is a matter, and
(b) the imputation is made by means of the publication of that matter.
(2) Where a person publishes any matter to any recipient and by means of that publication makes an imputation defamatory of another person, the person defamed has, in respect of that imputation, a cause of action against the publisher for the publication of that matter to that recipient:
(a) in addition to any cause of action which the person defamed may have against the publisher for the publication of that matter to that recipient in respect of any other defamatory imputation made by means of that publication, and
(b) in addition to any cause of action which the person defamed may have against that publisher for any publication of that matter to any other recipient.
(3) ...
(4) Rules of court may prohibit or regulate the reliance by a plaintiff in proceedings for defamation on several imputations alleged to be made by means of the same matter published by the defendant, where the several imputations do not differ in substance.
(5) Notwithstanding subsection (2), where proceedings for defamation in respect of the publication of any matter are tried before a jury, the jury shall, unless the court otherwise directs:
(a) give a single verdict in respect of all the causes of action on which the plaintiff relies.
(b) (Repealed)
(5A) ...
(6) ..."
(Pursuant to s 9(4), SCR Pt 67 r 11(3) forbids plaintiffs to rely on two or more imputations alleged to be made by the same publication unless the imputations differ in substance.)
23 "15. Truth generally
(1) Notwithstanding section 11, [which preserves common law defences] the truth of any imputation complained of is not a defence as to that imputation except as mentioned in this section.
(2) It is a defence as to any imputation complained of that:
(a) the imputation is a matter of substantial truth, and
(b) the imputation either relates to a matter of public interest or is published under qualified privilege.
16. Truth: contextual imputations
(1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of.
2. It is a defence to any imputation complained of that:
(a) the imputation relates to a matter of public interest or is published under qualified privilege,
(b) one or more imputations contextual to the imputation complained of:
(i) relate to a matter of public interest or are published under qualified privilege, and
(ii) are matters of substantial truth, and
(c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff."
The plaintiffs' proceedings for damages for defamation .
24 Mr and Mrs Deren commenced defamation proceedings against the State in 1990. Mrs Deren was the first plaintiff and Mr Deren the second plaintiff. Although they brought their causes of action in the same proceedings each one's case was legally separate from that of the other.
25 Neither succeeded on the causes of action based on the material republished in the Australian and it need not be mentioned again.
26 In the final version of their statement of claim the plaintiffs alleged that the State by its agents had published to journalists the material subsequently printed in the newspapers. They then referred to the actual publications alleging that the republication by the newspapers of the matter complained of was the natural and ordinary consequence of the publication by the State's servants or alternatively was intended by the State to be so republished or was authorised by it. Some of these matters were in issue at the trial, but are not raised in the appeal.
27 The statement of claim then alleged that the Sydney Morning Herald article gave rise to the following imputations:
"(a) the plaintiffs participated in sexual assaults on young children attending a Sydney kindergarten;
(b) the first plaintiff took advantage of her position as the Director of a Sydney kindergarten to entice young children into a situation where they became victims of sexual assaults;
(c) the plaintiffs took part in the photographing or videotaping of sexual assaults on young children attending a Sydney kindergarten."
28 The statement of claim further alleged that the articles in the Daily Mirror and the Manly Daily gave rise to the same imputations, with the slight variation that the concluding words in imputations (c) were "a Sydney northern beaches kindergarten".
29 At no point did the State attempt to justify imputation (c). The statement in the Sydney Morning Herald article on which the imputation was based and which had been made by police officers to the reporter, namely that "the alleged assaults were either photographed or videotaped and those tapes and pictures will be presented to the court as evidence" was completely wrong. The police had taken away photographs and videotapes from the plaintiffs' home. None of the photographs was in any way incriminating. At the time when police officers had passed on to the press what was published in the Sydney Morning Herald the videotapes had not yet been played. Later, when they were, nothing incriminating appeared on them.
The State's defences - the three relied on in the appeal .
30 At the trial the State relied on a number of defences, for example, publication was raised as an issue and it was disputed that the plaintiffs had shown that readers of the republications would identify the plaintiffs as the persons referred to. These and other negative defences all failed and need not be mentioned further.
31 The State also relied on three affirmative defences. It is these with which the appeals are concerned. The first was a plea of justification. That is, relying on s 15 of the Defamation Act (the Act) the State said that each of the imputations (a) and (b) was "a matter of substantial truth" and either related to matters of public interest or was published under qualified privilege or both.
32 The second affirmative defence was based on s 16 which allows a defendant to raise the contextual imputation defence. The section (see par 24) defines an imputation as contextual when it is made by the same publication as makes the imputation complained of by the plaintiff and is "another imputation" than the one complained of by the plaintiff.
33 The contextual imputations which the State alleged were made in each of the newspaper reports were:
(i) the second plaintiff is a child molester;
(ii) the first plaintiff had managed the affairs of the kindergarten of which she was proprietor in a grossly irresponsible manner by permitting a person (the second plaintiff) whom she knew to be a child molester to have access to young children, knowing also that it was likely or possible that he would molest some of those children.
34 The State then alleged the other necessary ingredients in s 16, that is, that both the imputations relied upon by the plaintiffs and the contextual imputations relied upon by the State related to a matter of public interest or were published under qualified privilege, that the contextual imputations were matters of substantial truth and that because they were true the imputations complained of by the plaintiffs did not further injure their reputations.
35 Thus, the State was undertaking to prove the substantial truth of two sets of imputations. To prove its s 15 defences to imputations (a) and (b) which the plaintiffs said were made by the publications, (each imputation being made by s 9 a separate cause of action), the State had to prove, inter alia, the substantial truth of those two imputations.
36 To prove its s 16 contextual imputation defence against each plaintiff the State had to prove, inter alia, the substantial truth of the relevant contextual imputations alleged by the State.
37 In its defence the State set out in six paragraphs (in a document I will call the particulars of truth) the facts and matters upon which it relied to show the substantial truth of the two sets of imputations. Paragraphs 5 and 6 made allegations against the second plaintiff defendant concerning his behaviour between August and October 1988 towards children attending the Seabeach Kindergarten. Before the trial the State gave notice to the plaintiffs that it would not be attempting to prove the allegations in pars 5 and 6 because of difficulties connected with the ages of the children in 1988 and the length of time that would have passed by the date of the forthcoming trial.
38 In the result, the matters which, at the time the trial began, the State had undertaken to prove, were those in the first four paragraphs, as follows:
"1. During the course of an interview played on the Derryn Hinch Show on Channel Seven on 11 August 1989 the second plaintiff said the following words:
'There was an incident in New Guinea where I was charged on an offence on a young female. I think the age of the two girls was between the age of 10 and 13. This happened at a swimming pool playing games with the children and I seemed to have this need to touch young girls in their private parts and on one occasion I was apprehended by the police ...'
2. In 1973, the second plaintiff sexually assaulted a young girl by the name of [JM] by inserting his finger in her vagina.
3. At all relevant times, the first plaintiff was a director of the Seabeach Kindergarten, an establishment licensed by the Department of Family and Community Services; the second plaintiff was frequently at that kindergarten supposedly for the purpose of undertaking maintenance and other work there.
4. The first plaintiff knew the facts stated in paragraphs 1 and 2 above or, alternatively, it may be inferred from the fact that she was the wife of the second plaintiff that she knew or ought to have known of the facts stated in 1 and 2 above."
39 The third affirmative defence relied on by the appellant at the trial was qualified privilege at common law.
40 Stated more shortly the important matters which the State was hoping to prove were substantially true when the trial began on 2 February 1998 were (a) the plaintiffs' imputations that Mr and Mrs Deren had participated in sexual assaults on young children attending a Sydney kindergarten and that Mrs Deren took advantage of her position to entice young children into a situation where they became victims of sexual assaults and (b) the State's contextual imputations, that Mr Deren was a child molester and that Mrs Deren had permitted Mr Deren whom she knew to be a child molester to have access to young children.
The evidence for the plaintiffs .
41 Mrs Deren was the first witness in the cases of herself and her husband. She began to give evidence on 3 February 1998.
42 In her evidence in chief she briefly described what she and her husband had done while living in Port Moresby. She gave her account of becoming aware of the charges against her husband referred to in par 1 of the State's particulars of truth. She told of having been shocked at learning of the charges, of her knowledge of the psychiatric counselling obtained by her husband and of her belief that his problems had been cured. She said she had never seen any signs of such problems again. She gave an account of the way in which the Seabeach Kindergarten was conducted denying any knowledge whatsoever of any of the matters contained in the plaintiffs' imputations.
43 After some other witnesses had been called, Mr Deren gave evidence. He also gave an account of the lives of his wife and himself in Port Moresby and in Sydney after their return. He told of the charges in Port Moresby and his pleas of guilty there.
44 He also gave evidence about his working hours at Telecom and his movements generally during 1988, which, if accepted, showed that it was unlikely for him to have been the Mr Bubbles whom the children had accused of having assaulted them.
45 He was cross-examined about what had happened in Port Moresby and also about what he had said on the Derryn Hinch show on 11 August 1989. In this part of the cross-examination he agreed that he had said "I seemed to have this need to touch young girls in their private parts and on one occasion I was apprehended by the police" and he agreed also that in a sworn written answer to a question put to him before the trial by the State he had said that he had been "apprehended by the police on the last of approximately five or six occasions that occurred during 1972 at the Korobosea Swimming Pool". He said however that the matters with which he had been charged in Port Moresby and to which he was referring in the interview played on the Derryn Hinch show all occurred on one occasion only, within the space of ten or fifteen minutes, and that to the extent that his written answer to the State's question gave a different impression, it was wrong. He was also cross-examined about the question Detective Sergeant Fluit had asked him on 6 November 1988 and his answer to it (see par 9) and agreed that the question had been asked and the answer given.
46 Witnesses called in the plaintiffs' case, including workmates of Mr Deren and staff at the kindergarten, gave evidence to the same effect as he had given concerning his movements. On his evidence and that of these witnesses, he had visited the kindergarten infrequently, to do handyman repairs, usually out of kindergarten hours. Mrs Deren's evidence was similar, although under cross-examination she spoke of a number of occasions when Mr Deren was in the company of young children from the kindergarten in quite ordinary ways. On the whole body of evidence, it was open to the jury to conclude that it was unlikely that the accusations of the children could have related to Mr Deren.
47 Returning to Mr Deren's own evidence, after the cross-examination already referred to, counsel for the State began to question him about the sexual assault alleged in par 2 of the particulars of truth. Cross-examination on the topic was objected to. Argument then took place, which in more detailed form, came up again at a later point in the trial. I will be dealing with this argument subsequently. For the present I need only record that Abadee J decided to allow the cross-examination but indicated that the topic might be re-argued later, with the possible consequence that the evidence would be excluded, in which event it would be necessary for him to give directions to the jury to disregard this part of the cross-examination.
48 Counsel for the State then put a series of questions to Mr Deren about JM, the girl named in the par 2 particulars. He said he remembered her, but he denied each allegation put to him of a succession of actions by him constituting a sexual assault on her.
49 This part of the cross-examination took place on 5 February 1998, the third day of the trial.
50 The trial continued over following days. Evidence was given in the plaintiffs' cases by a number of witnesses on issues which do not arise in the appeal. There was lengthy legal argument on various matters. The cases for the plaintiffs were completed on 9 February 1998.
The State's case: adverse rulings .
51 Counsel for the State then made an opening statement to the jury at the end of which he said he would call his first witness, JM. Counsel for the plaintiffs indicated he would object to any evidence from her. This objection led to a lengthy legal argument on a number of questions upon which Abadee J made rulings on 10 February 1998 which the State submits in this appeal were wrong.
52 The rulings in question were:
· The matters alleged in pars 1 to 4 of the State's particulars of truth were not capable of establishing the truth of the plaintiffs' imputations (a) and (b). (As earlier recorded, they were not relied on in regard to the plaintiffs' imputation (c) which the State at no stage attempted to justify.)
· The State's first contextual imputation ("the second plaintiff is a child molester") could not arise at the same time and in addition to the plaintiff's imputations. Therefore that contextual imputation could not be pleaded back as a general contextual imputation to the plaintiffs' imputation (a).
· Although it does not appear to have been then specifically mentioned, it seems to have been assumed both by Abadee J and counsel that the ruling of the unavailability of the State's contextual imputation (i) necessarily involved the unavailability of the State's contextual imputation (ii) when all the State was relying on to justify that imputation were the allegations in pars 1 to 4 of the particulars of truth.
53 Abadee J did not formally rule at that stage that the State's contextual imputations could not go to the jury, but did rule that JM's evidence was inadmissible. The reasons leading to this result necessarily meant that the evidence concerning the allegations in par 1 of the State's particulars of truth was also inadmissible, at least in respect of the State's attempt to justify the plaintiffs' imputations (a) and (b).
54 On the following day counsel for the State asked the trial judge to strike out of the plaintiffs' imputation (a), the words "attending a Sydney kindergarten". Abadee J took the view that what he had said in his reasons on the previous day led to the result that he should reject the application. The effect of his refusal of the State's application, stated in positive terms, was that the State could not put to the jury that they were entitled to find that alleged sexual assaults on young children (with no reference to the place of the assaults) was not substantially different from the plaintiffs' imputation (a).
55 In a later ruling on the same day the position reached the day before was made explicit; the trial judge rejected the State's submission that its contextual imputation (ii) was capable of being defamatory and that there was evidence capable of establishing its truth. Abadee J said the imputation could not arise at the same time as, and did not arise in addition to, the plaintiffs' imputations, and accepted further arguments excluding this imputation, one being that it was not capable of outweighing or swamping the pleaded imputations and did not meet them and another, that there was no evidence capable of establishing its truth.
What went to the jury .
56 As a result of these rulings the plaintiffs' imputations went to the jury in the form pleaded in the statement of claim (subject to alterations, not presently relevant, which will be mentioned later). The State's contextual imputation defences were not allowed to go to the jury. The State was not permitted to call JM in its case because the judge's rulings were to the effect that her evidence was not relevant to the plaintiff's imputations and could only have been relevant to the now unavailable contextual imputations. Two of the State's three affirmative defences became unavailable to it, these being defences which it would otherwise have been for the jury to consider.
The appeal as it concerns Mr Deren .
57 The jury verdicts. As mentioned earlier, although they brought their proceedings against the State by the one statement of claim, Mr and Mrs Deren had separate causes of action and were, for convenience, conducting what were two different cases simultaneously. At this point it becomes necessary to deal with them separately. Most of the argument was put by reference to the State's appeal against Mr Deren's judgment, so I will deal with his proceedings first.
58 Typed forms were prepared containing questions concerning his case based on the publications in the Sydney Morning Herald, the Daily Mirror, and the Australian, and were handed to the jury. I reproduce below only the form concerning his case based on publication in the Sydney Morning Herald. Also shown are the jury's answers to the questions (by underlining), and the amount they awarded in response to question 6.
"deren v state of new south wales
jury questions
form 2 - the sydney morning herald and anthony deren
note: please complete by circling the answer intended .
Has the second plaintiff, Anthony Deren, established that the defendant, the State of New South Wales, through a member of the NSW Police Service, said words to a representative of the Sydney Morning Herald the substance of which was republished by the Sydney Morning Herald in the first matter complained of (Exhibit A1), the Sydney Morning Herald article of 8 November 1988)?
yes/no
Note: If you have answered this question no do not proceed further. If you have answered this question yes proceed to Question 2.
Has the second plaintiff, Anthony Deren, established that one or more readers of the article in the Sydney Morning Herald identified him as the Sydney kindergarten principal's husband referred to in that article?
yes/no
Note: If you have answered this question no do not proceed further. If you have answered this question yes proceed to Question 3.
Has the second plaintiff, Anthony Deren, established that the Sydney Morning Herald article conveyed the following imputations (or any imputations not substantially different from them) to the ordinary reasonable reader who knew that he was the Sydney kindergarten principal's husband referred to in that article:
(a) that the second plaintiff, Anthony Deren, participated in sexual assaults on young children attending a Sydney kindergarten/
yes/no
(b) that the second plaintiff, Anthony Deren, took part in the photographing or videotaping of sexual assaults on young children attending a Sydney kindergarten?
yes/no
Note: If you have answered no in respect of all imputations do not proceed further. If you have answered yes to any part of Question 3 proceed to Question 4.
Has the second plaintiff, Anthony Deren, established that any of the imputations which you have found to be conveyed by the Sydney Morning Herald article (that is, those to which you have answered yes in question 3) would have been understood by the ordinary reasonable reader as being defamatory of him? Please answer in relation to each such imputation:
(a) yes/no
(b) yes/no
Note: If you have answered no in respect of all imputations do not proceed further. If you have answered yes to any of these imputations proceed to Questions 5 and 6. Answer question 6 whether you answer question 5 yes or no.
Has the second plaintiff, Anthony Deren, established that the defendant was actuated by malice towards him in the publication of the words said to the relevant journalist representative of the Sydney Morning Herald?
yes/no
If you find for the second plaintiff, what amount to you award by way of compensatory damages in respect of the article in the Sydney Morning Herald ?
amount: $50,000 "
59 Form 4 asked essentially the same set of questions in respect of the article in the Daily Mirror, with the exception that the imputations in par 3 ended with the words "a Sydney northern beaches kindergarten".
60 The answers were the same, except that the amount awarded was $150,000.
61 Form 8 asked the same questions in respect of the article in the Manly Daily as form 4 had asked in respect of the article in the Daily Mirror, and again the answers were the same. The amount awarded was $150,000.
62 I mentioned earlier that the plaintiffs' imputations in their statement of claim (set out in par 27 of these reasons) were put in a somewhat different form to the jury. Paragraph 3 of form 2 reproduced above shows the imputation which went to the jury in Mr Deren's case. The difference from the imputation in the statement of claim recognises the fact that each of the plaintiffs was separately bringing proceedings in respect of defamation independent of the other's. So, the imputation relied upon by Mr Deren was that he, not he and his wife together, participated in sexual assaults on young children attending a Sydney kindergarten.
63 The questions in the forms which went to the jury were in words agreed between the parties in light of the trial judge's rulings. The State, although joining in the formulating of the questions, did so without prejudice to any rights it had to contend on appeal that rulings made by the trial judge were wrong.
64 The first part of the State's appeal against the judgment in favour of Mr Deren consisted of argument that certain of the trial judge's rulings were wrong.
65 The judge's decision on qualified privilege. Once the jury had found that the State was not actuated by malice towards Mr Deren in making available to the various journalists the information which was republished in the three newspapers, it became the trial judge's task to consider whether the elements of the defence of qualified privilege had been made out.
66 After extensive argument, the trial judge made the following findings. The State was liable for publication of the articles in the three newspapers on the basis that the substance in those articles was supplied to the newspapers by police officers the day after the plaintiffs were charged. Parts of the articles stated or suggested the existence of various items of evidence incriminating of the plaintiffs including videos and photographs which never existed. The imputations found by the jury to have been conveyed by the articles arose from those parts. The publication of the articles, including the references to videos and photographs was unreasonable and unfair.
67 The trial judge then said that he did not think the publications fell into either of the two general categories recognised as covered by qualified privilege.
68 Alternatively and additionally to the opinion just stated, the trial judge accepted that the reported cases showed that for a defence of qualified privilege to succeed "the scope of the defamatory matter must not exceed the exigency of the occasion". He then held that because in a number of respects the matter published by the State and republished by the newspapers went much further than the occasion warranted and fell outside the area covered by qualified privilege, the State could not establish the defence against either of the plaintiffs.
69 The second part of the State's appeal concerned the defence of qualified privilege.
70 Grounds of appeal - as affecting Mr Deren. The State's notice of appeal contained eleven grounds. Grounds 7, 8, 10 and 11 were not proceeded with. The grounds relied upon were as follows:
[8]
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.
His Honour erred in rejecting the evidence of [JM].
His Honour erred in rejecting the appellant's application to strike out the words "attending a Sydney kindergarten" in imputation (a) and the equivalent words in the other imputations on the ground that they were surplusage and irrelevant to the substance or sting of the imputation.
His Honour erred in ruling that the appellant was not entitled to rely on the instance of child molestation and sexual assaults on children admitted by the respondents in justification of imputation (a).
His Honour erred in ruling that the appellant was not entitled to put to the jury the argument that an imputation that "the second plaintiff participated in sexual assaults on young children" was not substantially different from the pleaded imputations and could be justified by the admitted sexual assaults.
His Honour erred in ruling that the contextual imputations were incapable of arising from the matter complained (sic).
His Honour erred in not leaving the defence of truth (Defamation Act s 16) and contextual truth (Defamation Act s 16) to the jury.
His Honour erred in rejecting the defence of qualified privilege at common law and should have found that the relevant publications were made on occasions of qualified privilege.
71 The arguments for the State - grounds of appeal 1-6. Although I am here still dealing only with the State's appeal against the judgment in favour of Mr Deren, much of what I say will later be applicable to the appeal against the judgment for Mrs Deren.
72 Grounds 1 to 6 are so intertwined that I will deal with them all under the one heading.
73 The starting point in the State's arguments was that the words "attending a Sydney kindergarten" in imputation (a) were surplusage. Authority was cited for the view that it was the gist, substance or sting of any imputation that mattered, and that anything unnecessary for the statement of that gist, substance or sting was surplusage and should be struck out.
74 Accepting (without deciding) that these propositions are accurate, I would nevertheless think that one way of testing whether words should be struck out of an imputation is by asking whether the imputation with the disputed words differs in substance from the imputation without them.
75 If there is a difference in meaning, as distinct from a difference in the form of expression, and if the publication complained of may reasonably be understood as making the imputation and if the imputation may reasonably be understood as being defamatory of the plaintiff, then it would seem to me to follow that the gist or sting must likewise be different. I would then see no reason why the question whether the publication in fact makes that imputation and the further question whether that imputation is in fact defamatory of the plaintiff, should not be left to the jury.
76 Section 9(2) gives a cause of action against the publisher of any matter in respect of a defamatory imputation made "by means of that publication". This means that a jury when deciding whether an alleged imputation was made must decide whether the publication made the imputation. A jury in deciding whether the publication made the imputation, must necessarily understand the meaning of words in the imputation in the light of the text of the publication itself. Thus, it seems to me the jury must be taken to know when considering imputation (a) in the present case, that the sexual assaults alleged in the imputation were five in number, committed in the ten months before publication, at a particular kindergarten.
77 Counsel for the State submitted that the last matters I have mentioned were extraneous to the imputation and the jury should have been directed to focus on the imputation alone. I do not see how this can be right when the jury was bound to consider whether the publication made the imputation relied on by the second plaintiff as a cause of action. Additionally, to direct a jury in the absolute form asserted by the State as necessary would be as useful as Canute's ironical orders to the tide.
78 The plaintiff's imputation (a) understood as, in my opinion the jury must have understood it, and were entitled to understand it, directly accused Mr Deren of particular sexual assaults on particular young children coming from a particular location during a particular time. The accusation is one of particular crimes. The State's imputation (i) accused the second plaintiff, in my opinion, of being a person one of whose characteristics was to molest children in ways not specified but harmful. The accusation was one of the second plaintiff's having a persistent characteristic which if generally known would be harmful to his reputation.
79 The two imputations seem to me to say different things about the first plaintiff. It may be that the State's imputation (i) could be derived from the plaintiff's imputation (a). Even if that were right however it would not follow that the meaning of the two imputations was the same.
80 It may be that the words I have used in describing the two imputations are not fully accurate; my view however is that any accurate rendering of the sense of the two imputations would show the same kind of difference in meaning as that shown by the words I have used.
81 The submission for the State was directed to the words "attending a Sydney kindergarten". I think they are a relevant part of the accusation against the first plaintiff contained in imputation (a). They make the accusation a more specific one than if they were omitted. For the State it was submitted that the sting of the imputation lay in the accusation of the sexual assaults and that that sting was the same no matter where they were committed. I do not think this argument can be fully correct.
82 The words said to be surplusage seem to me in fact to contribute to the sting in the defamation. The words "young children" in my opinion describe, or at the very least may be regarded as capable of describing, a wider set of children than the set of children who attend a kindergarten. Children at kindergarten are often spoken of as infants and in my understanding are frequently thought of as being the youngest group amongst young people within the general description of young children, that is, young children at kindergarten are a subset of the set of young children. So, it seems to me that one way of reading imputation (a) that would at least have been open to the jury would have been that it was saying that the second plaintiff not only participated in sexual assaults on young children but moreover they were very young children. This is a different meaning and arguably a more defamatory meaning than imputation (a) would have if the words "attending a Sydney kindergarten" were not in it.
83 In my opinion therefore the State's grounds of appeal 2 and 4 fail. It follows that ground 3 also fails.
84 The contextual imputation relevant in the second plaintiff's case was contextual imputation (i). It follows from what I have said concerning the plaintiff's imputation (a) that in my opinion contextual imputation (i) has a materially different meaning from imputation (a). That means that contextual imputation (i) should have been left to the jury pursuant to s 16 if it was made by the publication complained of by the second plaintiff and if the conditions of s 16(2) were fulfilled.
85 In the appeal, it was argued for the second plaintiff that the publication complained of was not capable of being understood as making the contextual imputation (i). In my opinion it is so capable. It seems to me that the words of the publication are quite capable of bringing to the mind of the reasonable reader two ideas, one being that the first plaintiff had committed five indecent assaults on very young children from a Sydney kindergarten in the last ten months and the other that such a man must be a habitual molester of children. Of course, the two ideas have much in common but they nevertheless seem to me to be distinct ideas generated by the same matter.
86 In my opinion therefore the State's ground of appeal 5 should be upheld.
87 The next matter to consider is ground 6. The first part of this ground raised the question whether the trial judge erred in not leaving the s 15 defence of truth to the jury. The second part raised the question whether the judge erred in not leaving the s 16 defence of contextual truth to the jury. The two questions are quite separate. Each is separately related to ground 1.
88 So far as concerns the first part of ground 6, it seems to me to follow from the form of imputation (a) and the State's decision not to call any evidence, and the absence otherwise of any evidence concerning the particular accusations in that imputation, that there was no evidence to go to the jury which could support its truth. A possible exception to this is the second plaintiff's admission of his answer to Detective Sergeant Fluit on 6 November 1988 set out in par 9. I do not think this alone could warrant leaving the defence to the jury.
89 In my opinion his Honour was not in error in taking that defence away from the jury. It follows that he was not in error either in rejecting the evidence of JM, in regard to that imputation.
90 This leaves for consideration the second part of ground 6, the question whether the contextual truth defence should have been left to the jury and the connected ground 1 question whether the evidence of JM would be admissible for purposes of that defence.
91 In the appeal, counsel for Mr Deren submitted that even if, contrary to his earlier submissions, the State's imputation (i) was available in the sense of being an imputation different from the plaintiffs' imputation (a) and made by the matter by complained of at the same time as and in addition to the plaintiffs' imputation against which it is used as an element of a s 16 defence, nevertheless the evidence which the State had wished to rely on in support of its contextual imputation simply could not rationally be capable of supporting that imputation. First, reliance was placed upon a passage in the 9th edition of Gatley on Libel and Slander (at p 240) that a "charge ... of general bad conduct cannot be justified by proof of a single act or instance". Second, it was submitted that for the State to rely on the proposed evidence would really be a reliance upon propensity evidence. Third, it was submitted that distance from the time of publication was a disqualifying factor.
92 The first of these submissions is not really appropriate to the available evidence in this case. Also, the paragraph in Gatley relied on by the second plaintiff ends, (at 241) with what seems to me to be the proposition relevant to the present case:
"... each case depends very much on its own facts because the question whether a particular charge of wrongdoing carries a general charge may depend on the context in which the words are used ..."
93 The second submission does not appear to me to be fully appropriate. The evidence relied on does not seem to me to be propensity evidence, but direct evidence, when the general nature of the charge is kept in mind. This is shown by setting out what the question for the trial judge would have been, had he been treating the State's contextual imputation (i) as relevantly made by the matter complained of, namely, "Is the evidence upon which the State relies sufficient for it to be open to the jury, upon consideration of all the evidence, to find the description of Mr Deren as a 'child molester' made out?".
94 It was upon the third submission that most emphasis was placed by counsel for Mr Deren. Very little authority was available relevant to the submission. I conjecture that that is because it must always involve factual assessments, as to which no more precise rule can be stated than the one I have just mentioned. The two cases which were referred to the court, Maisel v Financial Times Limited [1915] 3 KB 336 and Raul Amon International Pty Limited v Telstra Corporation Limited (Victorian Court of Appeal, 19 September 1997, unreported) both dealt with the length of time between happenings after the date of publication and the date of publication. Probably counsel for Mr Deren is right in contending the same considerations must apply to the length of time between events before publication and publication. However, if a real rule appears from those cases, I do not think it helps the second plaintiff's argument.
95 The best statement of the "rule" from the second plaintiff's point of view was made by Pickford LJ in Maisel at 342, when he said:
"It may be that the act which he did was so long after the libel that it would have no relevance at all having regard to the time of the libel. If that were so, it would not be admissible."
96 Putting this into terms more familiar in regard to jury questions in New South Wales, Pickford LJ's proposition was that it is open to a judge to rule that evidence of an act or acts by a plaintiff could not rationally enable a conclusion of fact to be drawn and therefore should not as a matter of law be allowed to go before a jury considering that issue of fact when the time between the act or acts the defendant wished to rely on and the defamation was such that there was no relation between that act or acts and the imputation the defendant was seeking to justify.
97 Accepting that as an applicable rule, it becomes necessary to consider whether it applies in light of the evidence the State wished to rely on in this case. Further, in considering what the State wished to rely on, it must for this purpose be looked at in the most favourable light the jury could reasonably have seen it in.
98 The matters the State wished to rely on were:
(a) the incidents which gave rise to the guilty pleas in Port Moresby in 1972;
(b) in relation to those incidents, a further question for the jury would be whether as Mr Deren claimed in his evidence he had only committed sexual assaults on children in the Port Moresby swimming pool on one day, or whether, as was open to conclude from his own statements, also on other days before the day of the incidents with which he was charged; I have earlier set out the material which was available for the jury to take into account in considering whether there were a number of earlier occasions;
(c) the evidence of JM. Although her evidence (which was available in the appeal papers in the form of a statement which had been marked for identification (Blue AB 64-66)) related only to one occasion, it was evidence of a specific and unambiguously sexual molestation;
(d) the statement made by Mr Deren in the Derryn Hinch Show interview about a "need to touch young girls in their private parts";
(e) the answer which in cross-examination he admitted giving to Detective Sergeant Fluit on 6 November 1988 about Satan possibly having urged him to assault children (see par 9).
99 In my view these matters in combination raised a question for the jury, namely, on the foregoing material, was Mr Deren a child molester? Counsel for the State conceded it would be open for the jury to find against the State on that question but submitted, correctly in my opinion, that the strength of the State's case on the question was not relevant; if there was a case, then it was for the jury to decide it, not a judge. I agree with this.
100 In reaching this conclusion I have in mind also that it is well established that when a publication makes a general imputation evidence in justification can be led of facts not mentioned in the publication, but relevant to the general imputation: see Anderson v Mirror Newspapers (No 2) [1986] 5 NSWLR 735 and 737 and Attorney General (NSW) v TCN Channel Nine Pty Limited (1990) A Def Law & Practice [50080] 40,581 at 40,598.
101 The opinion I have thus far reached does not of itself mean that the State's s 16(2) defence to the second plaintiff's causes of action had to be left to the jury. The State also had to be in a position at the trial to put material forward upon which the other matters in s 16(2) could be found: one being public interest and the other that because the contextual imputation was a matter of substantial truth the imputation complained of did not further injure the reputation of the second plaintiff.
102 The first of these matters could not be decided until the evidence was complete. Had the evidence which the State wished to put before the jury in support of its contextual imputation been allowed to be put before the jury, as in my opinion it should have been, then in my view the matter of public interest would have been made out. However, I do not think it is possible to state this in any more binding way, since the evidence was not before the jury. I do not understand it to have been argued in the appeal that if the State were otherwise to succeed in regard to its contextual defence in the appeal, that the public interest aspect could have stood in the way of this appeal ground being upheld.
103 In regard to the question whether the second plaintiff's imputations did not further injure his reputation because of the truth of the contextual imputation, it is necessary to recall here the precise situation created by the interaction of s 9(2) and s 16 of the Defamation Act. This is stated in some detail in Waterhouse v Hickie (1995) Aust Torts Reports [81-347] p 62,486. It is sufficient to note here that the contextual imputation defence is one, which if it succeeds, is a defence to each of a plaintiff's imputations to which it is pleaded as a defence. This means that when the further injury question (see s 16(2)(c)) is being considered, it is the injury caused to the plaintiff's reputation by the single imputation relied on as a cause of action which is to be measured against the effect of the defendant's contextual imputation or imputations.
104 So here, had the contextual imputation defence been allowed to proceed, two further jury questions would have arisen pursuant to s 16(2)(c). One would have been whether the second plaintiff's imputation (a) as it went to the jury (see par 57) further injured the second plaintiff's reputation if the jury had found that the State's contextual imputation (i) was substantially true and the second question would have been whether the second plaintiff's imputation (b) as it was left to the jury (see par 57) further injured the second plaintiff's reputation if the jury accepted that contextual imputation (i) was substantially true. The relevant provisions of the Defamation Act operate to prevent the question being whether the combined effect of the second plaintiff's imputations (a) and (b) further injured his reputation if the jury accepted the State's contextual imputation (i) as substantially true.
105 Except in very clear cases the question of "further injury" is a matter for the jury: see Waterhouse at 62,494, where the authorities are referred to.
106 In my opinion the question in the present case would plainly have been one for the jury.
107 The result is that in my opinion, first, grounds 1 and 6 of the State's notice of appeal should be upheld, to the extent that they relate to the State's contextual imputation (i) and, second, the State's contextual imputation (i) defence to the second plaintiff's imputations (a) and (b) should have been left for decision by the jury.
108 Qualified privilege. In pars 64-67 I summarised Abadee J's reasons for finding the defence of qualified privilege was not available to the State. I agree with those reasons and do not wish to add to them.
109 In my opinion the State's appeal against the decision on qualified privilege fails.
110 Result of findings. I will deal with what I think should be the consequences of the opinions I have formed concerning the State's appeal against Mr Deren's judgment after I have considered the grounds of appeal against Mrs Deren's judgment.
Mrs Deren's case .
111 The jury verdicts. Typed forms of questions, similar to those in Mr Deren's case, directed to the publications in the Sydney Morning Herald, the Daily Mirror and the Australian were handed to the jury in Mrs Deren's case also. Again I reproduce only the form concerning her case based on publication in the Sydney Morning Herald. As before the jury's answers are shown (by underlining) and the amount they awarded in response to question 6.
"deren v state of new south wales
jury questions
form 1 - the sydney morning herald and dawn deren
note: please complete by circling the answer intended
Has the first plaintiff, Dawn Deren, established that the defendant, the State of New South Wales, though a member of the NSW Police Service, said words to a representative of The Sydney Morning Herald the substance of which was republished by the Sydney Morning Herald in the first matter complained of (Exhibit A, the Sydney Morning Herald article of 8 November 1988)?
yes/no
Note: If you have answered this question no do not proceed further. If you have answered this question yes proceed to Question 2.
Has the first plaintiff, Dawn Deren, established that one or more readers of the article in the Sydney Morning Herald identified her as the Sydney kindergarten principal referred to in that article?
yes/no
Note: If you have answered this question no do not proceed further. If you have answered this question yes proceed to Question 3 .
Has the first plaintiff, Dawn Deren, established that the Sydney Morning Herald article conveyed the following imputations (or any imputations not substantially different from them) to the ordinary reasonable reader who knew that she was the Sydney kindergarten Principal referred to in that article:
(a) that the first plaintiff, Dawn Deren, participated in sexual assaults on young children attending a Sydney kindergarten?
yes/no
(b) that the first plaintiff, Dawn Deren, took advantage of her position as the director of a Sydney kindergarten to entice young children into a situation where they became victims of sexual assault?
yes/no
(c) that the first plaintiff, Dawn Deren, took part in the photographing or videotaping of sexual assaults on young children attending a Sydney kindergarten?
yes/no
Note: If you have answered no in respect of all imputations do not proceed further. If you have answered yes to any part of Question 3 proceed to Question 4 .
Has the first plaintiff, Dawn Deren established that any of the imputations which you have found to be conveyed by the Sydney Morning Herald article (that is, those to which you have answered yes in question 3) would have been understood by the ordinary reasonable reader as being defamatory of her? Please answer in relation to each such imputation:
(a) yes/no
(b) yes/no
(c) yes/no
Note: If you have answered no in respect of all imputations do not proceed further. If you have answered yes to any of these imputations proceed to Questions 5 and 6. Answer question 6 whether you answer question 5 yes or no.
Has the first plaintiff, Dawn Deren, established that the defendant was actuated by malice towards her in the publication of the words said to the relevant journalist representative of the Sydney Morning Herald?
yes/no
If you find for the first plaintiff, what amount do you award by way of compensatory damages in respect of the article in the Sydney Morning Herald ?
amount: $100,000"
112 Form 3 asked essentially the same set of questions in respect of the article in the Daily Mirror, with the exception that the imputations in par 3. ended with the words "A Sydney northern beaches kindergarten".
113 The answers were the same, except that the amount awarded was $150,000.
114 Form 7 asked the same questions in respect of the article in the Manly Daily as in form 3. Again the answers were the same. The amount awarded was $200,000.
115 There was the same difference as in Mr Deren's case between the imputations of the two plaintiffs in their statement of claim and the imputations relied on by Mrs Deren as put to the jury by the form, in her separate case.
116 Again, the first part of the State's appeal against the judgment in favour of Mrs Deren consisted of argument that certain of the trial judge's rulings were wrong and the second part that the trial judge's decision on qualified privilege was wrong. The same arguments were put in regard to qualified privilege as in the appeal against Mr Deren's judgment and for the same reasons as in his case I think the State's arguments fail. I therefore need only deal with the grounds of appeal bearing on the jury's verdicts. These are grounds 1-6, set out in par 69.
Grounds of appeal 1-6 : as affecting Mrs Deren's case .
117 It follows from what I have said in regard to Mr Deren's case that the State must fail entirely in regard to grounds 2, 3 and 4 of its notice of appeal in Mrs Deren's case. It also follows that the State must fail in regard to grounds 1 and 6 insofar as those grounds relate to the State's defences of truth to the first plaintiff's imputations (a) and (b). (As with Mr Deren, there was no attempt by the State to justify the first plaintiff's imputation (c).) That leaves for consideration ground 5, concerning contextual imputation (ii) against Mrs Deren and grounds 1 and 6 so far as they concerned that contextual imputation.
118 The same two questions must be considered in regard to the State's imputation (ii) (against Mrs Deren) as were considered concerning its imputation (i) (against Mr Deren), that is, (a) was the imputation made by the published matter and (b) was there evidence to go to the jury upon which the truth of the imputation could, depending upon the jury's view of all the evidence, be made out.
119 Defamatory meaning. As to question (a) mentioned in the preceding paragraph, my opinion is that the published matter makes contextual imputation (ii). It also seems to me that contextual imputation (ii) differs in substance from each of the first plaintiff's three imputations. It is close to the substance of the first plaintiff's imputation (b) but differs materially from it in that it does not allege that the second plaintiff actually molested any of the children attending the kindergarten; rather, the sting of the allegation is that knowing her husband was a child molester, the first plaintiff let him have access to young children, that is, she created a risk of molestation. It therefore could be pleaded as part of a s 16 defence to each of the three causes of action comprised by the first plaintiff's three imputations
120 Was there any evidence to go the jury upon which it would be open to the jury to find that contextual imputation (ii) was established? The answer to that question seems to me to depend upon the answer to the question whether there was material upon which it was open to the jury to find that the first plaintiff knew the second plaintiff to be a child molester.
121 Although the evidence obtained by the State by cross-examination of the plaintiffs' witnesses about the second plaintiff's presence at the kindergarten was scanty, there was some evidence that he was at the kindergarten from time to time. In my opinion this evidence was sufficient to make it a question for the jury whether the first plaintiff had let her husband "have access to young children". If the jury came to the view that she did this knowing her husband was a child molester then I think it would have been open to the jury to find the contextual imputation proved.
122 The question therefore is, to my mind, whether there was evidence upon which it was open to the jury to find the first plaintiff knew that her husband was a child molester. This is a different question from the one the jury should in my view have had to consider in regard to Mr Deren, namely was he a child molester? In regard to that question I listed five items which in my view combined to make the State's contextual imputation (i) a jury question. Those items are set out in par 96.
123 The only one of these items available to the State as evidence upon which the State would argue the jury could find that Mrs Deren knew her husband was a child molester was the first of those items. In addition Mrs Deren had in cross-examination agreed that the matters to which her husband had pleaded guilty were instances of child molesting (Black AB 51, 55).
124 When evidence to support a particular issue is slim it can be a difficult matter of judgment to decide whether it is so slim that it does not furnish a jury question at all. Guidance to judges can only be of a general kind. That kind of guidance was given both by the High Court and the Privy Council in Hocking v Bell (1945) 71 CLR 430 and (1947) 75 CLR 125. The Privy Council approved of what Latham CJ had said on the subject when the case was in the High Court. After remarking they did not understand what Latham CJ had said to have been disputed their Lordships continued:
"... in any case their Lordships consider that these observations were perfectly correct. The passage is as follows: -
'After a trial by jury the Full Court' (of New South Wales) ' upon appeal has no power to draw inferences of fact; and though it may order a new trial where the verdict is against evidence and the weight of evidence, it cannot order a verdict to be set aside and judgment to be entered for the party against whom the verdict was given unless the conditions prescribed by the Supreme Court Procedure Act 1900, s 7, are satisfied. Section provides that:- "In any action, if the Court in Banco is of opinion that the plaintiff should have been non-suited, or that upon the evidence the plaintiff or the defendant is as a matter of law entitled to a verdict in the action or upon any issue therein, the Court may order a non-suit or such verdict to be entered." Thus, in the present case the Full Court could properly order a verdict to be entered for the defendant only if the defendant is "as a matter of law entitled to a verdict." If there is evidence upon which a jury could reasonably find for the plaintiff, unless that evidence is so negligible in character as to amount only to a scintilla, the judge should not direct the jury to find a verdict for the defendant, nor should the Full Court direct the entry of such a verdict. The principle upon which the section is based is that it is for the jury to decide all questions of fact, and therefore to determine which witnesses should be believed in case of a conflict of testimony. But there must be a real issue of fact to be decided, and if the evidence is all one way, so that only one conclusion can be said to be reasonable, there is no function left for the jury to perform, so that the court may properly take the matter into its own hands as being a matter of law, and direct a verdict to be entered in accordance with the only evidence which is really presented in the case.' (1945) 71 CLR at 441-442.
The Chief Justice's application of the section is, as it seems to their Lordships, perfectly in point. If, at the end of the hearing of witnesses, the evidence is all one way, so that no jury can reasonably find for the plaintiff, and a verdict and judgment in favour of the plaintiff are nevertheless given, it is within the competence of the Supreme Court to direct that verdict and judgment should be entered for the defendant." (at 130-131)
125 Hocking v Bell is still regarded as authoritative in New South Wales, although s 108 of the Supreme Court Act 1970, which is the successor section to s 7 of the Supreme Court Procedure Act 1900, has a somewhat different form from its predecessor.
126 Applying the test to the evidence available to the State, the first thing that seems to me to be clear is that there is some evidence to support the truth of contextual imputation (ii); the second thing is that there is not much evidence. Should the available evidence be described as a scintilla only and thus not sufficient to leave to the jury? For me, this is a difficult question of judgment. Upon consideration, it seems to me that the evidence should have been left for the jury to consider.
127 This leaves again, as with Mr Deren, the question whether the public interest and no further injury elements of the s 16(2) defence could have been made out by the State in regard to the first plaintiff's imputations (a), (b) and (c) (causes of action) as left to the jury (see pp 37-38).
128 As to the public interest ingredient, the answer must be the same as in Mr Deren's case. The no further injury ingredient is more difficult. At first sight, it may well seem obvious that when the State's imputation (ii) is compared individually with each of the first plaintiff's three imputations, that each one of them makes a worse charge about the first plaintiff than does the State's contextual imputation (ii). However, the precise question posed by s 16(2) is whether in the case of each of the first plaintiff's imputations taken separately the making of that imputation by the publication injures the reputation of the first plaintiff further than contextual imputation (ii). While I can see that reasonable jurors might very readily conclude that in the case of each imputation relied on by the first plaintiff as a cause of action, the imputation did further injure the reputation of the first plaintiff, it also seems to me reasonably conceivable that reasonable jurors could consider that contextual imputation (ii) could so have injured the reputation of the first plaintiff that, notwithstanding each of the imputations she relied on might seem worse accusations than that contained in the contextual imputation (ii), nevertheless her reputation was already so irretrievably damaged by contextual imputation (ii) that no further damage could relevantly be done to it.
129 In considering the reality of these contrasting possibilities, it must be remembered that it is only if the answer is so clearly in favour of the first plaintiff's contentions that a jury could not rationally conclude otherwise, that the court is entitled to make a decision for itself rather than leave it to the jury to decide. It may be that the answer to the question is fairly obvious. Even so, that does not mean the court should answer the question rather than the jury.
130 It seems to me the question for this court to decide (whether the jury should be allowed to consider this last element of the State's defence) is rather finely balanced. That being so, it seems to me to be preferable for the matter to be left to the jury, subject to the ultimate right of the first plaintiff, should the jury's verdict be against her at a new trial, to take the opinion of the court on the sufficiency of any evidence left to the jury, it being possible that that evidence will be different from the evidence that I have been considering.
Conclusions.
131 For the reasons I have given, I have concluded that ground 5 and grounds 1 and 6 so far as they relate to the State's defences of contextual truth should be upheld, in regard both to the first and second plaintiff's judgments.
132 It follows that the verdicts and judgments should be set aside and new trials granted.
133 On the question whether the new trials should be on limited issues, I do not see how the position concerning qualified privilege could change. I do not think the State should have another opportunity to raise that defence against either of the plaintiffs. However, two considerations lead me to think that with the exception of the qualified privilege issue, there should be no other restriction on the issues which may be raised at the new trials. The first consideration is that had the contextual imputation defences been available to the State at the trial, the jury's verdicts may have been different in ways, because of the way the verdicts were taken, impossible now to dissect; the second is that although it seems probable that evidence at the new trials will be substantially the same as at the first, there is no way of being completely sure of that, and the new trials will have to be decided on the evidence before the jury in its final state, which cannot now be foretold with complete certainty.
134 In my opinion therefore, the orders the court should make are:
Verdicts and judgments in the cases of both the first plaintiff and the second plaintiff set aside.
New trials granted in each case.
The State should not be permitted to raise the qualified privilege defence at the new trials; otherwise there should be no limitation on the issues.
The costs of the first trials should abide the event of the new trials.
The plaintiffs should bear the costs of the State of the appeals.
The plaintiffs should have Suitors Fund Certificates.
135 POWELL JA: I have read in draft the Judgment which has been prepared by Priestley JA in this matter, in which Judgment his Honour has recorded the facts which gave rise to these proceedings and which have led ultimately to this appeal. Insofar as, in his Judgment, Priestley JA has dealt with the appeal as it relates to Mr. Deren, I agree with his Honour's conclusions and with the orders which he proposes and would not wish to add anything further for myself.
136 However, I regret that I am unable to agree with his Honour's conclusions as to the appeal insofar as it relates to Mrs. Deren.
137 It is to be recalled that, reduced to their ultimate essentials, the three imputations the subject of Mrs. Deren's claim (paragraphs 4, 8, 12 and 16 of the Amended Statement of Claim) were:
a. that Mrs. Deren participated in sexual assaults upon young children attending the kindergarten;
b. that Mrs. Deren took advantage of her position as the director of the kindergarten to entice young children into a situation where they became victims of sexual assault; and
c. that Mrs. Deren took part in the photographing or videotaping of sexual assaults on young children attending the kindergarten.
138 If she had, in fact, been guilty of conduct of the type the subject of imputations (a) or (c), Mrs. Deren, as it seems to me, would have been liable to be dealt with at least in relation to (a) as a principal in the first degree in the felony of sexual assault category 3 (Crimes Act 1900 s.61D - see now aggravated sexual assault Crimes Act 1900 s.61J), and, in relation to (c), as a principal in either the first or second degree in the felony of sexual assault category 3, or as a principal in what would, in the circumstances, then have been the felony of sexual assault category 4 (Crimes Act 1900 s.61E (1A), (1B) - see now aggravated indecent assault which is a misdemeanour (Crimes Act 1900 s.61M). If she had, in fact, been guilty of conduct of the type the subject of imputation (b), then, as it seems to me, depending upon her state of knowledge (Giorgianni v. The Queen (1984-1985) 156 CLR 473; Yorke v. Lucas (1985) 158 CLR 661) Mrs. Deren would, or, at least, may have been, liable to be dealt with as a principal in the felony of sexual assault category 4. The distinction between principals in the first and second degree - and, for that matter between principals, on the one hand, and accessories before the fact and aiders and abettors on the other - now generally has no legal significance, for both principal offenders and secondary participants in a crime - whether felony or misdemeanour - are liable to the same penalty (Johns v. The Queen (1980) 143 CLR 108; Crimes Act 1900 ss 345, 346, 351) - in the case of sexual assault category 3 in similar circumstances, penal servitude for 14 years (Crimes Act 1900 s.61D (1C) - see now aggravated sexual assault, penal servitude for 20 years (Crimes Act 1900 s.61J)) - and in the case of sexual assault category 4 in similar circumstances penal servitude for 8 years (Crimes Act 1900 s.61E(1C) - see now aggravated indecent assault, imprisonment for 10 years (Crimes Act 1900 s.6(M).
139 Given that ground 6 in the Appellant's Notice of Appeal was:
"6. His Honour erred in not leaving the defence of truth (Defamation Act s.15) and contextual truth (Defamation Act s.16) to the jury."
it is as well to set out the terms of the relevant defences as pleaded. They were as follows:
"TRUTH - DEFAMATION ACT, SECTION 15
In answer to the whole of the Second Amended Statement of Claim, to the extent that it is found that the matters complained of conveyed any of the imputations pleaded by the plaintiffs in paragraph 4, 8, 12 and 16 thereof and that those imputations are defamatory of the plaintiffs (which is denied), the defendant says that each of the imputations pleaded in paragraphs 4(1), 4(b), 8(a) and 8(b), 12(a) and 12(b) and 16(a) and 16(b) of the Second Amended Statement of Claim (these imputations are hereinafter referred to as 'the justified imputations') was a matter of substantial truth and:
(a) related to matters of public interest and/or
(b) was published under qualified privilege.
CONTEXTUAL TRUTH - DEFAMATION ACT, SECTION 16
In further and alternative answer to the whole of the Second Amended Statement of Claim, to the extent that it is found that the matters complained of conveyed any of the imputations pleaded by the plaintiffs and that those imputations are defamatory of the plaintiffs (which is denied), the defendant says as follows:
(a) Each of the justified imputations was published contextually to the imputations pleaded in paragraphs 4(c), 8(c), 12(c) and 16(c) of the Second Amended Statement of Claim and to such of the justified imputations as are not found to be matters of substantial truth and to the following imputations:
i. the second plaintiff is a child molester;
ii. the first plaintiff has managed the affairs of the kindergarten of which she was proprietor in a grossly irresponsible manner by permitting a person (the second plaintiff) whom she knew to be a child molester to have access to young children, knowing also that it was likely or possible that he would molest some of those children.
(These imputations are hereinafter referred to as 'the contextual imputations').
(b) Each of the imputations pleaded by the plaintiffs which is found to be matter of substantial truth, each of the imputations pleaded by the plaintiffs which is not found to be a matter of substantial truth and each of the contextual imputations:
i. related to matters of public interest and/or
ii. was published under qualified privilege.
By reason of the substantial truth of the justified imputations and of the contextual imputations or, alternatively, such of those imputations as are found to be matters of substantial truth, publication of such of the imputations pleaded by the plaintiffs as are not found to be matters of substantial truth did not further injure the reputation of the plaintiffs."
140 As will be apparent, the Appellant, while seeking to justify imputations (a) and (b), did not seek to justify imputation (c). In the event, at trial, the defendant - as Priestley JA has recorded in his Judgment - did not tender any evidence, nor was there any other evidence, which would have supported a finding by the jury that either of imputations (a) or (b) was substantially true, in consequence of which Abadee J - in my view rightly - withdrew the defence of justification from the jury.
141 This being so, the only defences which were potentially open to the defendant in respect of Mrs. Deren's claim were the contextual imputation advanced in paragraph 4(a)(ii) of its Defence, and the defence of qualified privilege, the latter of which - as Priestley JA has recorded in his Judgment - Abadee J, again, in my view rightly, held not available to the defendant.
142 In the second of the rulings made by Abadee J on 11 February 1998 (RAB 210-211) Abadee J held that contextual imputation (ii) was not available to go to the jury, his grounds for so ruling being, first, that the imputation was not capable of being conveyed; second, that it could not arise at the same time as, and in addition to, the imputations relied upon by Mr. and Mrs. Deren; and, third, that it was not capable of "outweighing any of the pleaded imputations as they (then stood) and (did not) meet the imputations".
143 That contextual imputations (ii) differs from the imputations pleaded by Mr. and Mrs. Deren is clear enough, for, whereas the burden of the latter imputations, insofar as they related to Mrs. Deren, was that she had consciously and deliberately acted in a way which was criminal in nature, the burden of contextual imputation was, not that Mrs. Deren had been guilty of criminal behaviour, but that she had acted in a way which was grossly irresponsible. This being so, I find it difficult to agree with Priestly JA that the published matter gave rise to contextual imputation (ii).
144 The distinction between the imputations - and, particularly (b) - relied upon by Mr. and Mrs. Deren and contextual imputation (ii) is not merely a matter of words, but one of substance. As Gibbs CJ put it in Giorgianni v. The Queen ((supra) at 482):
"………
Numerous other cases, including in Australia, Blackmore v. Linton ([1961] VR 374, 377) and Wilson v. Dobra ((1955) 57 WALR 95,97) (a case under the Criminal Code (W.A.)), accept that the general principle is that a person can be convicted as a secondary party only if he had knowledge of the essential circumstances. Further, as has already been indicated, the person charged must have intended to help, encourage or induce the principal offender to bring about the forbidden result. In other words, both knowledge of the circumstances and intention to aid, abet, counsel pr procure are necessary to render a person liable as a secondary party: cf. National Coal Board v. Gamble [1959] 1 QB 11,20].
However, some cases suggest that some qualifications should be admitted to the general principle that a person cannot be found guilty of having aided, abetted, counselled or procured an offence unless he had actual knowledge of all the essential matters which made the act done a crime. One qualification that must be accepted is that wilful blindness, the deliberate shutting of one's eyes to what is going on, is equivalent to knowledge. In R. v. Antonelli and Barberi ((1905) 70 J.P. 4), where A was indicted for publishing a criminal libel, and B, who had sold copies of the pamphlet containing the libel, was charged with aiding and abetting him, Phillimore J., in summing up to the jury, said ((1905) 70 J.R. at 6):
'If you think he knew what was in the document, or deliberately shut his eyes to what was in it, then you must find him guilty of aiding and abetting.'
………"
and, later ((supra) at 487) after referring to the decision of the Court of Criminal Appeal in R. v. Glennan ((1970) 91 WN 609, 614):
"Suspicion of the existence of facts, although relevant when the accused has deliberately shut his eyes, does not by itself amount to or take the place of knowledge for present purposes. Further, it is not correct to say that a person may be convicted of aiding, abetting, counselling or procuring the commission of an offence simply because he has acted recklessly. Dr. Edwards, in Mens Rea in Statutory Offences (1955), pp. 196-205, asserts that a person who deliberately closes his eyes to what is going on connives at it and that there is a close analogy between connivance and recklessness. However connivance, or wilful blindness, is only relevant to the liability of a secondary party to an offence between it virtually amounts to knowledge. Recklessness, in the sense of not caring whether the facts exist or not, would be relevant only if it too was virtually equivalent to knowledge, in other words only if it amounted to wilful blindness."
145 However, assuming, for the moment, that the published matter was capable of giving rise to contextual imputation (ii), and - a matter to which I will return later - that there was evidence which could support a finding that it was substantially true, the question remains whether, even if the jury were to find the contextual imputation to be substantially true, it would be open to the jury to find that the imputations relied upon by Mr. and Mrs. Deren did not further injure Mrs. Deren's reputation.
146 Although I accept that one ought not too readily to conclude that, even if a contextual imputation were held to be substantially true, a reasonable jury could not find that the matters complained of would not have further injured the plaintiff's reputation, it seems to me that, insofar as concerns Mrs. Deren, this is such a case. With great respect to Priestley JA, I am quite unable to see how an imputation of conscious, and deliberate, activity constituting criminal conduct and involving sexual assaults on young children could reasonably be held to be outweighed by an imputation of conduct which, even if irresponsible, did not amount to criminal conduct, and which, while creating a risk, was not shown to have facilitated, and led to, sexual assaults on young children (see, for example, Hepburn v. TCN Channel Nine Pty. Limited [1984] 1 NSWLR 386, 405-6).
147 Against the possibility that Stein JA will share Priestley JA's view, that it is reasonably conceivable that contextual imputation (ii) could so have damaged Mrs. Deren's reputation that it was not possible that the imputations relied upon by Mr. and Mrs. Deren could further injure Mrs. Deren's reputation, I return to the question whether there was any evidence to go to the jury upon which it would be open to the jury to find that contextual imputation (ii) was substantially true.
148 This is a very difficult question for, as a result of the defendant's decision not to tender evidence, the only evidence going to the issue of the substantial truth, or otherwise, was that given by Mr. and Mrs. Deren, and the other witnesses tendered on their behalf, which evidence, although some of it was subjected to cross-examination, was not opposed by evidence to the contrary. That evidence, as Priestley JA has noted, was to the effect that Mr. Deren visited the kindergarten but infrequently, and usually out of kindergarten hours, to carry out repairs and other handyman tasks, and that the few occasions on which Mr. Deren was in the company of the children from the kindergarten were innocuous (see, for example, WAB 39, 53, 55).
149 Although there may be found in some of the older cases (see, for example, Davis v. Hardy (1827) 6 B & C 225, 231; 108 ER 436, 438 per Abbott CJ; Richards v. Jager [1909] VLR 140, 147 per Madden CJ; Swinburne v. David Syme & Co [1909] VLR 550, 565 per Madden CJ) statements to the effect that, as a general rule, where a witness is unimpeached in his general character and his evidence is probable and uncontradicted by evidence on the other side, that evidence should be accepted, more recent authority makes it clear that there is no rule of law that a tribunal of fact - whether judge or jury - must accept evidence because it is all the one way (see, for example, McPhee v. S. Bennett Limited (1935) 52 WN 8) and that, while the absence of cross-examination enables a tribunal of fact to regard the relevant evidence with a greater assurance than might otherwise have been the case, it does not require the acceptance of that evidence (see, for example, Douglas v. Tiernan (1931) 32 SR 149, 153 per Harvey J; Taylor v. Ellis [1956] VLR 457; Cole v. Commonwealth of Australia (1961) 62 SR 700; Bulstrode v. Trimble [1970] VR 840; Poricanin v. Australian Consolidated Industries Limited [1979] 2 NSWLR 419; Allied Pastoral Holdings Pty. Limited v. Commissioner of Taxation [1983] 1 NSWLR 1; Paric v. John Holland Constructions Pty. Limited [1984] 2 NSWLR 505); Ellis v. Wallsend District Hospital (1989) 17 NSWLR 553) although, where the evidence is rejected by a judge, the reasons for it being rejected should be stated, in default of which it might be held that there has been a mistrial (see, for example, Holman v. Holman (1964) 81 WN (Pt 1) 374; Torrealba v. District Court of New South Wales (1996) 40 NSWLR 327) and, if it appears that the evidence may have been rejected by a jury, the jury's verdict may, in the light of all the circumstances, be held to have been unreasonable and be set aside (see, for example, Precision Plastics Pty. Limited v. Demir (1975) 132 CLR 362, 370-1 per Gibbs J (as he then was)).
150 It seems to me that, reduced to its essentials, contextual imputation (ii), read in the light of the particulars of truth which were persisted in, involved the following:
that Mr. Deren was "a child molester" at least in the sense that, in 1972, in Port Moresby, he committed the offences in respect of which he was charged and to which charges he pleaded guilty;
that Mrs. Deren was at all times aware of that fact;
that, Mrs. Deren appreciated, or, at the least, ought to have appreciated, that, if he were permitted to have access to young children, Mr. Deren might re-offend in the future;
that this notwithstanding, Mrs. Deren did so act as to enable Mr. Deren to have access, which access was at times unsupervised, to young children attending the kindergarten,
that her conduct in so doing was irresponsible.
151 The evidence given by Mr. and Mrs. Deren clearly established the matters in 1 and 2. Mrs. Deren's evidence (see WAB 55) that, following Mr. Deren's treatment, she had been assured by a psychiatrist that Mr. Deren would not reoffend, and that, in the intervening years, "everything (had) been fine" although open to be, need not have been, accepted by the jury if it had been left to them to determine. The evidence - at least that given by Mr. and Mrs. Deren - as to Mr. Deren's infrequent attendances at the kindergarten and the innocuous nature of the occasions on which he had access to children attending the kindergarten was challenged in cross-examination and, while, in the light of the evidence of other witnesses, the jury may well have accepted it if it were left to them to decide, they would not have been obliged to do so. Whether or not, in the circumstances, Mrs. Deren's conduct could be regarded as irresponsible would, in the event that the matter were left to them to determine, have depended on the view which the jury took of all the evidence.
152 In the light of what I have written, it seems to me that, although, as Priestley JA has rightly described it, the evidence going to the question of the substantial truth of contextual imputation (ii) was scanty, or slim, that evidence nonetheless was more than a bare scintilla. This being so, it follows that, if I be held to be in error in the view which I have earlier expressed as to the capacity of that contextual imputation to outweigh the damage caused to Mrs. Deren's reputation by the imputations relied upon by Mr. and Mrs. Deren, the question of the substantial truth of the contextual imputation should have been left to the jury.
153 For these reasons, I would propose the following Orders:
ORDER that, insofar as it relates to the verdict and judgment in favour of the First Respondent, the appeal be dismissed.
ORDER that, insofar as relates to the verdict and Judgment in favour of the Second Respondent, the appeal be upheld and that the verdict and Judgment be set aside.
ORDER there be a new trial, other than on the issue of qualified privilege, of the Second Respondent's claims against the Appellant
RESERVE the question of the costs of the trial and the appeal to be dealt with on Written Submissions.
DIRECT that, within seven days of this day, the Appellant file, and serve on the Respondents, Written Submissions as to the orders as to costs which it proposes should, in the circumstances, be made, and that, within seven days thereafter, the Respondents' file, and serve on the Appellant, Written Submissions as to the orders for costs which they propose should be made.
154 STEIN JA : I agree with Priestley JA in relation to the appeal concerning Mr Deren and having nothing to add. However, after much reflection, I am unable to agree with his conclusions on the appeal with regard to Mrs Deren.
155 I have also had the benefit of reading the draft judgment of Powell JA. I agree with it except in one respect, which I will come to in a moment. In particular, I agree with Powell JA that the appellant's contextual imputation 4(a)(ii) differs from imputations (a) and (b) of Mrs Deren.
156 The plaintiffs' imputations are clearly that they had participated in conscious and deliberate criminal behaviour. In particular, imputation (b) maintains that Mrs Deren took advantage of her position as director of the kindergarten 'to entice' young children into a situation where they would be sexually assaulted by Mr Deren. In my opinion, the imputations of serious criminal conduct are quite different from the gravamen of contextual imputation (ii), which is one of gross irresponsibility. This distinction is one of substance and not a matter of mere words. Accordingly, I do not accept that the matter published was capable of giving rising to contextual imputation (ii). I so conclude bearing in mind the distinction made by Mason J, as he then was, in Harrison v Mirror Newspapers (1982) 149 CLR 293 at 301:
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.
157 In my opinion, Abadee J was correct to rule that it was not available for consideration by the jury.
158 Against this conclusion, I also agree with Powell JA that a reasonable jury, properly instructed, could not find that the matters complained of would not have further injured Mrs Deren's reputation. I agree that the imputations of conscious and deliberate criminal conduct of the nature here involved, could not be outweighed by a contextual imputation of grossly irresponsible behaviour, falling short of criminal conduct and not shown to have lead to any sexual assaults on children.
159 It follows that I agree with the orders proposed by Powell JA.
160 Since both Priestley and Powell JJA are of the opinion that, assuming contextual imputation (ii) was available to the appellant, the substantial truth of it should have been left to the jury, I will state my reasons for disagreeing with their conclusions in brief form only.
161 Mrs Deren's evidence (and that of Mr Deren) make it clear that she was aware of Mr Deren's offences in Port Moresby in 1972. As Powell JA observes, she was assured by a psychiatrist that her husband would not re-offend and, in the intervening 16 years between 1972 and 1988, 'everything [had] been fine' and she had never seen any sign of any such problem. Mr Deren's attendances at the kindergarten had been infrequent and innocuous. I do not see that the evidence relevant to contextual imputation (ii) rises above a scintilla. Using the words in Hocking v Bell (1947) 75 CLR 125 at 130-131 there must be a real issue of fact to be decided by the jury. On my view of the evidence, only one conclusion can be said to be reasonable. While I accept that the issue is most difficult, and one which has caused me to agonise long and hard, I have concluded that the available evidence was insufficient to leave to the jury. It is not, in my assessment, so finely balanced that it would be preferable to leave to the jury. Moreover, I am unpersuaded that there has been a substantial wrong or miscarriage occasioned to the appellant to justify a new trial. It seems to me that even if the issue had been left to the jury, on the state of the evidence it is difficult to see that it would have affected the result regarding Mrs Deren. The probability is so slight that it would in my view be wrong to order a new trial.