Trindall v Nationwide News Pty Limited

TEXTS CITED : "Abolishing Child Sex Tourism: Australian's Contribution" [2002] AUJIH Rights 17; (2002) 8 Australian Journal of Human Rights 101

Darrell Trindall (Plaintiff) PARTIES : Nationwide News Pty Limited (1st Defendant) James Hooper (2nd Defendant)

COUNSEL : M Richardson (Plaintiff/Respondent) A Leopold SC/ L Brown (Defendants/Applicant)

SOLICITORS : Kennedys (Plaintiff) Blake Dawson (Defendants)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

2010/29548 TRINDALL v NATIONWIDE NEWS PTY LIMITED & ANOR

JUDGMENT 1 HIS HONOUR: On 10 January 2010 the first and second defendants published an article in NSW and in other States and Territories of Australia in the Sunday Telegraph. The article was headed "Tricky's Thailand Troubles" and read as follows: "Tricky's Thailand troubles The family of former rugby league player Darrell "Tricky" Trindall claims he has been arrested by Thai police and accused of sexually assaulting a teenage boy. Trindall's ex-wife, Belinda, said he had been on holidays in the resort city of Pattaya. Thai officials contacted her early yesterday, saying he had been questioned and charged. She confirmed to the Sunday Telegraph that Trindall had been detained but said she was uncertain what he had been charged with. 'I had a call at five o'clock this morning from the police to say he was in custody, but I don't know too much.' Ms Trindall and the retired South Sydney halfback ended their marriage more than a year ago but are understood to remain close friends. The Australian Federal Police and The Department of Foreign Affairs and Trade said yesterday they had no record of Trindall's arrest, or any request for assistance on his behalf. Trindall has been in Thailand for more than two weeks and has posted regular updates about his vacation on the Internet. He had been due to return several days ago but delayed his flight after losing his passport. Yesterday Trindall's Facebook page was updated with a message attempting to quash the news of his arrest. 'What about the story going around that I got locked up in a Thailand jail last night that's the best ever, lol, I'm off 2 to the beach c ya (sic)', the update read Sources close to Trindall's family believe the comment was written by one of his two sons, Jordan and Jake, who have access to the site." 2 The plaintiff has commenced defamation proceedings in which he pleaded that the article was defamatory of him. The statement of claim pleads that the article conveys various defamatory imputations including four which are challenged. They are as follows:

(a) the plaintiff sexually assaulted a teenage boy.

(e) the plaintiff behaved in such a way as to give rise to the suspicion on the part of Thai police that he was a child sex tourist.

(f) the plaintiff attempted to cover up the fact that he was facing child sex charges in Thailand by having his teenage sons post a false message on his Facebook page. 3 The defendants submitted that none of these imputations are reasonably capable of being conveyed. Further specific objections are made in relation to imputation 5(d) and 5(e) which I shall discuss later. 4 The principles which must be applied by this Court when objection is made to a pleaded imputation are well known. They were most recently discussed by the Court of Appeal in Malcolm v Nationwide News Pty Ltd [2007] NSWCA 254 where Beazley JA referred to the decision in Griffith v John Fairfax Publications [2004] NSWCA 300 in which Tobias JA said (at [19]): "The principles applicable to the correct approach of the primary judge and this Court to the issue [whether the matter complained of is reasonably capable of carrying the imputations pleaded] … may be summarised as follows:

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

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

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

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

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

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

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

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

(i) There is a distinction to be drawn in the test of reasonableness which guides any court in its function of determining whether the matter complained of is capable of conveying any of the imputations pleaded. The distinction is between what the ordinary reasonable reader (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of and the conclusion which the reader could reach by taking into account his or her own belief which has been excited by what was said: it is the former approach, not the latter, which must be adopted." 5 Justice Beazley continued with consideration of issues of relevance to the present proceedings: "15 In Favell v Queensland Newspapers Pty Ltd , Gleeson CJ, McHugh, Gummow and Heydon JJ explained at [6] that in an application to strike out an imputation in a Statement of Claim the question for decision was whether the material published was capable of giving rise to the alleged defamatory imputations. Their Honours further stated: '[9] In Jones v Skelton [1964] NSWR 485 at 491, the Privy Council said: 'It is well settled that the question as to whether words which are complained of are capable of conveying a defamatory meaning is a question of law, and is therefore one calling for decision by the Court. If the words are so capable then it is a question for the jury to decide as to whether the words do, in fact, convey a defamatory meaning. In deciding whether words are capable of conveying a defamatory meaning the Court will reject those meanings which can only emerge as the product of some strained, or forced, or utterly unreasonable interpretation … The test of reasonableness guides and directs the Court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.' [10] In determining what reasonable persons could understand the words complained of to mean, the Court must keep in mind the statement of Lord Reid in Lewis v Daily Telegraph Ltd [1964] AC 234 at 258: 'The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.'

… [12] A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that point towards a likelihood of guilt, then the position may be otherwise. There is an overlap between providing information and entertainment, and the publishing of information coupled with a derogatory implication may fall into both categories. It may be that a bare, factual, report that a house has burned down is less entertaining than a report spiced with an account of a suspicious circumstance. At this preliminary stage of the proceedings, the respondents have not yet had an opportunity to indicate why it was considered relevant to the story about the fire to link it with the development application. For that matter, the occasion has not yet arisen for a jury to decide what meanings the article would convey. We are concerned only with the anterior question of what the article is capable of conveying.'

16 The question whether a statement of suspicion imputes guilt was considered in Lewis v Daily Telegraph Ltd [1964] AC 234, where Lord Devlin stated at 285: 'It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.'

17 Lewis was referred to by Mason J in Mirror Newspapers Limited v Harrison , where his Honour, at 300, observed that there was a strong current of authority supporting the view that a report which did no more than state that a person had been arrested and charged with a criminal offence did not bear an imputation that the person was guilty or probably guilty of the offence. As his Honour pointed out, at 301, in the passage quoted above at [12], it was necessary to draw a distinction between what the reader understood the newspaper to be saying and the person's own judgment or conclusion drawn from that person's beliefs and prejudices. The Court is concerned with the former rather than the latter.

18 Notwithstanding that the article has to be read as a whole, it is recognised that the ordinary reasonable reader may not give " equal weight to every part of the publication ": see John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 at 1662; [2003] HCA 50 at [26] per McHugh J. The emphasis that the publisher gives to the article by way of headlines, headings and captions, are legitimate matters that readers are entitled to take into account.

19 Notwithstanding that s 7A(1) of the Defamation Act 1974 (NSW) (as in force at the time of the trial) provides that it is for the court and not the jury to determine whether the matter complained of is reasonably capable of conveying the imputation pleaded, the authorities have placed particular emphasis on the role of the jury in determining whether a pleaded imputation is conveyed by the matter complained of.

20 Thus, in Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669, Glass JA at 674 stated that the question whether the imputation was conveyed should go to the jury unless it was blindingly obvious that no other conclusion was reasonably open. In Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158, Hunt CJ at CL (Mason P and Handley JA agreeing) stated at 164-165 that if reasonable persons may differ as to the conclusion to be drawn from the matter complained of, the issue as to whether the imputation was in fact conveyed must be left to the jury."

Imputation 5(a) 6 In the present case it was submitted by the defendants that imputation 5(a) was not reasonably capable of being conveyed. It was submitted that the imputation conveys an allegation that the plaintiff was guilty of an offence which was not capable of being understood from the published article. It was submitted that the article is confined to a report that the plaintiff may have been arrested and charged which is not sufficient to convey an allegation of guilt in relation to the offence with which he or she has been charged (see Mirror Newspapers and the discussion in Malcolm). 7 On the other hand the plaintiff submitted that the reference in the article to the plaintiff's "troubles" and to him being held in custody overnight in addition to his being arrested and charged, was sufficient to justify the pleaded imputation. It was accepted that the ordinary reasonable reader would understand that a person who had been arrested and charged and released on bail may not be guilty of any offence. However, when the person is said to have been held in custody overnight it was submitted that the effect of the publication extends beyond a mere report of the making of the laying of the charges and is reasonably capable of carrying the imputation of guilt pleaded by the plaintiff. 8 I have been uncertain as to whether this imputation should be left to the jury. Although it is plain that a mere statement that a person has been charged may not be enough to impute guilt (Favell at [12] citing Mirror Newspapers) if a published article contains further information capable of arousing suspicion it may be otherwise. In the present case the matter complained of referred to the plaintiff's arrest and charge but "coloured" the article with reference to the plaintiff's nickname of "Tricky" and made reference, not only to his arrest and charging but also to the fact that he had been detained and was in custody. In addition the reader is told that an attempt was made, although said to have been by one of the plaintiff's children, to "quash" the news of his arrest. These additional matters could bear upon the mind of the ordinary reasonable reader who may understand that the plaintiff had actually committed the offence with which he was charged. 9 Although I accept that a jury may find that the pleaded imputation is not conveyed, it is not "blindingly obvious" that no other conclusion is open (Sergi at 674). The defendants' challenge to this imputation fails.

Imputation 5(d) 10 The defendants submitted that this imputation was both bad in form, because it is imprecise, and was not reasonably capable of being conveyed. It was submitted that the pleaded imputation "alleges guilt, of the subject matter of the imputation, on the part of the plaintiff." It was further submitted that apart from the fact that the matter complained of does not allege guilt it makes no allegation capable of being understood as imputing that the plaintiff was a "child sex tourist". It was submitted that although the article refers to an allegation that the plaintiff assaulted a teenage boy, there is no allegation of an assault upon a child. The defendants submitted that the imputation was not available because "the word 'teenager' is not a synonym for the word 'child'." 11 As I have indicated I am satisfied that a jury could find the imputation that the plaintiff was guilty of an offence, ie that the plaintiff assaulted a teenage boy is conveyed. The question is whether the imputation that the plaintiff engaged in behaviour which would fall within the description of "child sex tourism" is available. 12 Although I accept that the words "teenager" and "child" are not synonyms, I am satisfied that they overlap. The Macquarie Dictionary defines "teenager" as "a person in his or her teens", ie between the ages of 13 and 19. Legal and popular definitions of "child" are significantly more varied (see eg Crimes Act 1914 (Cth) s 15YA cf Crimes Act 1900 (NSW) s 43A). However to my mind a satisfactory definition is "a person aged 16 years or less." A fifteen year-old boy may be appropriately described both as a "teenager" and a "child." 13 The article's content and headline contain references to "Thailand" and "Thai." Thailand is a destination renowned for child sex tourism (see eg M Brungs, "Abolishing Child Sex Tourism: Australia's Contribution" [2002] AUJIH Rights 17; (2002) 8 Australian Journal of Human Rights 101). The ordinary Australian reader would be well aware of this. To my mind, pairing the term "Thailand"/"Thai" with the expression "sexually assaulting a teenage boy" has the consequence that the pleaded imputation is capable of being conveyed. 14 Accordingly I find that the defendants' challenge to this imputation fails.

Imputation 5(e) 15 The defendants challenged this imputation as being imprecise and not being capable of being conveyed. I do not accept the submission. As I am satisfied that the imputation that the plaintiff was a child sex tourist is available, an imputation which pleads that the police who have arrested him hold that suspicion is also capable of being conveyed. The defendants' challenge to this imputation also fails.

Imputation 5(f) 16 The defendants challenged this imputation as not being reasonably capable of being conveyed. Although the defendants accepted that the article refers to sources close to the plaintiff's family who allegedly believed that the comment on the plaintiff's Facebook page was written by one of his two sons, it emphasised that there is no suggestion that the plaintiff had himself attempted to cover up the alleged charges. It was submitted that there is no suggestion in the article that the plaintiff had been in contact with his sons and nothing to suggest that he had told them to update his Facebook page. 17 To my mind a jury could conclude that the published article carried an imputation that the plaintiff was responsible for the attempt to cover up the fact that he had been arrested and charged. The inclusion of the plaintiff's nickname "Tricky" in the headline and the fact that it was the plaintiff's Facebook page which carried the rebuttal could lead the ordinary reasonable reader to conclude that it was the plaintiff who prompted his sons to make the particular entry. 18 I have already determined that an imputation that the plaintiff is a child sex tourist is capable of arising. The pleaded attempt said to be "to cover up the fact that he was facing child sex charges in Thailand" is, in my opinion, also capable of being conveyed. Accordingly, the challenge to this imputation fails. 19 For these reasons the defendants' motion must be dismissed with costs. **********

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