Vella v TCN Channel 9 P/L

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

20340/96 - ALEX VELLA v TCN CHANNEL NINE PTY LIMITED

1 HIS HONOUR: This is an application by the plaintiff to strike out imputations relied upon by the defendant in support of a defence of contextual truth (s16 Defamation Act, 1974). 2 On 1 January 1996, TCN Channel Nine Pty Limited broadcast a programme, "A Current Affair". The programme was introduced by Mr Mike Munro with these words: "First up though Australia's biggest criminal investigation of this or any other year. Every major law enforcement agency you can think of is involved from State and Federal Police to the Tax Department, Customs and Immigration. Their target is not one organisation but many. Outlaw bikie groups who control a huge slice of our illegal drug trade as well as gun running." 3 Mr Munro then interviewed Mr Peter Cleland, a Federal Member of Parliament. Mr Cleland was a member of a committee briefed by the National Crime Authority ("NCA") on the investigation. The segment also included a former member of a motorcycle gang, who was assisting the National Crime Authority. This person was introduced with these words: "MUNRO: The NCA is now targeting the bikie gangs' major form of income, drugs. CLELAND: They're primarily responsible for the amphetamine trade, both manufacture and distribution of amphetamines. MUNRO: The major producers. CLELAND: The major producers in Australia. MUNRO: That's big money. CLELAND: Oh, it's huge money." 4 The programme, at this point, showed the plaintiff, Mr Alex Vella, and his wife, outside the Campbelltown Court House, and their home. An unidentified voice said this: "Here's Alex." 5 The programme continued with these words: "MUNRO: In October last year Alex Vella, president of Australia's biggest and most feared gang, the Rebels, was found guilty of possessing fifteen thousand dollars worth of marijuana found in his home here outside Sydney. The forty two year old millionaire was ordered to serve eighteen months periodic detention. MAURICE MAY: Mister Vella's proud of the support which his friends and the community have shown to him. He had fifty nine testimonials which were obviously listened to very attentively by the Judge. (Vision - Vehicles, bikes) MUNRO: But once Vella was convicted that meant the National Crime Authority could raid his properties and restrain his assets until he proves they were not the proceeds of crime. Seized by the National Crime Authority were forty four Harley Davidsons, two Rolls Royces, four Corvettes, a Mercedes and a Bentley, total value of the raid three million dollars. MUNRO: How important is legislation to restrain all assets? CLELAND: One of the greatest things we've done. So when you get them and you convict them take it all away and that's a very powerful lesson and it helps us get money also to fight them. (Vision - Rifles, hand guns, explosives) " 6 The plaintiff relies upon a number of imputations. The capacity of the programme to give rise to these imputations was considered by Levine J. On 17 October 1996 his Honour determined that they were capable of arising. As a consequence of that judgment, the plaintiff has refined the wording of the imputations. They are to be incorporated in an Amended Statement of Claim. The imputations, as amended, are as follows: "(a) that he controls a substantial part of the illegal manufacture and distribution of amphetamines in Australia. (b) that he controls a substantial part of illegal arms trafficking in Australia. (c) that he engages in the illegal manufacture and distribution of amphetamines in Australia. (d) that he engages in illegal arms trafficking in Australia. (e) that he is willing to murder to advance his criminal purposes of illegal manufacture and distribution of amphetamines and illegal arms trafficking. (f) that he is willing to rape. (g) that he has derived assets worth millions of dollars from illegal activity such as trafficking in illegal drugs and arms." 7 The defendant has filed an Amended Defence. There is no plea of justification (s15). There is, however, a plea of contextual truth (s16). The contextual imputations, said to arise from the natural and ordinary meaning of the word, are as follows: "(i) the plaintiff is the leader of a bikie gang; (ii) the plaintiff is a criminal; (iii) the plaintiff is a convicted drug dealer; (iv) the plaintiff has been convicted of dealing in one kilogram of illegal drugs; (v) the plaintiff has been convicted of dealing $15,000 worth of illegal drugs; (vi) the plaintiff has been convicted of dealing a commercial quantity of illegal drugs; (vii) the plaintiff has behaved in such a manner as to give rise to the reasonable suspicion on the part of the National Crime Authority that he has committed serious criminal offences; (viii) the plaintiff has behaved in such a manner as to cause the National Crime Authority to restrain the plaintiff's property and seize 40 motorcycles, 2 Corvette cars, 2 Rolls Royce cars, 1 Mercedes car and 1 Bentley car from the plaintiff as suspected proceeds of crime." 8 The plaintiff challenges each contextual imputation. It is convenient to deal first with imputation (ii). Others will be dealt with in groups, since they give rise to common issues.

Contextual Imputation (ii) 9 The defendant's contextual imputation (ii) is that "the plaintiff is a criminal". The plaintiff maintains that such an imputation does not specify the act or condition attributed to the plaintiff. The defendant must express each contextual imputation with the same precision as the plaintiff is obliged to exercise in the formulation of imputations. In Marsden v Amalgamated Television Services Pty Limited (unreported, 4 May 1998) Levine J said this: (at 22) "The word 'imputation' in s16 has no different meaning to the word 'imputation' in s9. The word 'specify' in Pt67 r11(2) can have no different meaning to the word 'specify' in SCR Pt67 r15(b)." 10 To specify is "to state categorically, explicitly or particularly the defamatory meaning" (per Samuels JA in Feros v West Sydney Radio Pty Limited (C of A, unreported, 22 June 1982)). On the plaintiff's argument there is no such specification in an assertion that the plaintiff is a criminal. Crime, like corruption, covers many different forms of conduct. The defendant, therefore, must specify (as the plaintiff has done) the sense in which it employs the term "criminal". 11 As I understand the plaintiff's submission, I am not being asked to determine whether the imputation is capable of arising from the matter complained of. Rather, the issue is whether the pleading should be struck out under Pt15 r26(1)(b) of the Rules, as tending to cause prejudice, embarrassment or delay in the proceeding (cf Priestley JA in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 154). The plaintiff asserts that the defendant is obliged to specify the precise meaning for which it contends, and, if more than one meaning, each such meaning. 12 My attention was drawn to the remarks of Gleeson CJ in Drummoyne Municipal Council (supra). Although speaking of imputations pleaded by the plaintiff, the comments of the Chief Justice have application to contextual imputations. He said this: (at 137) "The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology." 13 The Chief Justice then made it clear that the manner in which the defendant had expressed the defamatory publication was relevant to a determination of the requirement for specificity. The test to be applied is whether the formulation chosen by the plaintiff (in the case of an imputation), or by the defendant (in the case of a contextual imputation), is likely to be a source of confusion. Gleeson CJ (at 138) agreed with the following formulation of that test by Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155: "… The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends." 14 The plaintiff argued that the programme itself was quite specific. It did not resort to generalities to describe the plaintiff (which might, in other circumstances, justify a contextual imputation that the plaintiff was a criminal). The plaintiff, indeed, has taken up the specific matters conveyed by the telecast, and incorporated them into his imputations. 15 Before the defendant can rely upon contextual imputations, they must each satisfy the test, as formulated by Hunt J in Hepburn v TCN Channel 9 Pty Limited (1984) 1 NSWLR 386, including the following requirement: (at 400) "Is the defendant's contextual imputation (or the combined effect of those contextual imputations where more than one, and where appropriate to be so combined) capable of being conveyed by the matter complained of at the same time as and in addition to the plaintiff's imputation to which it is or they are pleaded as a defence?" (emphasis added) 16 The defendant responded to these arguments by asserting that the plaintiff had misunderstood what was being said by the Court in the Drummoyne Municipal Council v Australian Broadcasting Corporation (supra). It is perfectly permissible for both the plaintiff and the defendant to plead either, or both, general and specific imputations, arising out of the same material (Hunt J, Singleton v John Fairfax & Sons Ltd (unreported, 20 February 1980); cf Hunt J Hepburn v TCN Channel 9 Pty Limited at 397, 398). 17 The issue, according to the defendant, is not whether a general imputation is permissible. It is. The issue is whether the formulation chosen by the defendant in its contextual imputation is likely to cause confusion. Confusion, on the defendant's argument, can only arise where there is ambiguity. Here, the defendant asserts there is no such ambiguity. The ordinary reasonable viewer would understand Mr Vella to be a criminal. 18 I believe, however, that the word "criminal", like the word "corrupt", is capable of a number of different meanings. A person may, on one view (and I am dealing with the issue of capacity), be described as a criminal if he or she has been convicted of a criminal offence. There is room for an alternative view that, before a person can be so described, the conviction must be for a serious criminal offence. I believe that the term may also be employed to describe someone who makes his or her living from crime. I am sure that there are many other meanings besides. Indeed, the meaning may turn upon the nature of the crime committed. Some people may hesitate to call a tax evader a criminal, whereas others may not. The defendant must specify precisely what meaning it contends the ordinary reasonable viewer would have understood upon viewing the programme. Not to do so may, in my view, lead to confusion. For instance, in establishing the substantial truth of the contextual imputation, what evidence could the defendant introduce? How remote might such evidence be from what is asserted in the programme? The contextual imputation (ii), in its present form, may, I believe, simply provide a vehicle for the defendant to mitigate damages. Hunt J, in NRMA Insurance Limited v Amalgamated Television Services Pty Limited (unreported, 14 July 1989) said this: "What must be emphasised is that this defence of contextual truth provides a defence to the plaintiff's causes of action. It does not provide the defendant with the opportunity of being able to do what it used to be able to do before, to put before the jury evidence which establishes in effect no more than that it almost got it right, with the object of reducing the amount of damages awarded. It is clear (for example, from s47 of the Act) that a defendant is not entitled to lead such evidence merely in mitigation of damages. The only evidence of truth which it may lead for that purpose is evidence of the truth of the imputation or imputations pleaded by the plaintiff." 19 I therefore strike out imputation (ii). 20 Should the defendant be given liberty to re-plead imputation (ii)? The programme, to my mind, is not speaking of trivial crime, nor isolated behaviour. The plaintiff has chosen, in his imputations, to take up the specific crimes referred to in the programme. It is open to the defendant, if it chooses, to plead a contextual imputation which is more general, and yet specifies the criminal behaviour or characteristic attributed by the telecast to the plaintiff. I therefore give liberty to re-plead imputation (ii).

Contextual Imputation (i) 21 Returning to contextual imputation (i), it will be remembered that it is in these terms: "(i) the plaintiff is the leader of a bikie gang" 22 The plaintiff makes two complaints about this contextual imputation. First, the generality of the imputation makes it objectionable upon the same basis as imputation (ii) above. It does not specify the act or condition attributed to the plaintiff. According to the plaintiff, the phrase "leader of a bikie gang" is as general or non-specific as "leader of a dissident sect". The plaintiff asserts that it is inherently oppressive, unless there is specification of the conduct or quality which leadership of the group is said to imply. 23 Secondly, if all that is meant is that the plaintiff is the head of a group of motorcycle riders, then the contextual imputation is not defamatory. To be defamatory there must be some disparaging element. But what is it? The plaintiff asks, "Would ordinary decent people think the less of a person because he is the leader of a gang of motorcycle riders?" The plaintiff says that, because the meaning is unclear, the imputation is oppressive. 24 The defendant responded by asserting that the meaning was clear. The programme was about bikie gangs. It made a distinction between "bikers" and "bikies". The presenter, in his concluding remarks, said this: (p 5, para 50) "MUNRO: And of course the great majority of Australians who ride motorcycles are bikers, law abiding citizens, not bikies. It's only the outlaw gangs who have anything to fear from that investigation. …" 25 The defendant says that a "bikie gang" is an ordinary everyday expression. The dictionary makes it clear that it is a disparaging expression. The Macquarie Dictionary (2nd Ed), includes the following definitions: " biker : noun a person who rides a motorbike but who is not a member of a motorbike gang. Cf bikie. bikie: noun colloq. A member of a gang of motorcycle riders. Cf biker. " 26 The same dictionary defines "gang" in these terms: " gang : noun 1. a band or group: a gang of boys. 2. a group of persons working together, squad; shift: a gang of labourers; iron gang; road gang. 3. Aust Hist. a party of convicts employed on public words: road gang; wood cutting gang. 4. a group of persons, usu. Considered disreputable, violent or criminal, associated for a particular purpose: a gang of thieves. " 27 The defendant, relying especially upon the last of these meanings, asserts that it is defamatory to say of someone that he was a member of a bikie gang. It would be even more defamatory to suggest that he was a leader of such a gang. There are, on the defendant's argument, shades of meaning of the word "gang". However, since the issue is the capacity of the programme to give rise to a disparaging meaning, the threshold is undemanding. In the defendant's submission, contextual imputation (i) satisfies that test. 28 However, I believe the word "gang" is essentially neutral. To be disparaging it must be coupled with some other word which is disreputable. In other words, the occupation, or preoccupation, of those who are members of the gang give the gang its character. Hence, it is not defamatory to refer to a gang of coal miners or other workmen. A gang of thieves, on the other hand, is disreputable because being a thief is disreputable. Some groups, by their nature, are so notoriously disreputable that membership of them (without any definition of their activities) would suggest a defamatory meaning (for example, the Mafia or the Triads). I do not believe that either membership or leadership of a bikie gang has that notoriety. I am therefore inclined to the view that leadership of a bikie gang is not capable of being defamatory. 29 Even if that view were wrong, I do not believe that such an imputation specifies the precise meaning (which is disparaging) upon which the defendant seeks to rely. It should do so. What is the disparaging element? It will be noticed that the programme does not employ the term (except on one or two occasions) "bikie gang". It uses the expression "outlaw bikie groups" (p 1, para 1), "outlaw motorcycle gangs" (p 2, para 9), "crime gang" (p 3, para 26), "outlaw gang" (p 5, para 50). There is one reference to "bikie gang" on page 3 (para 29), and another to "bike gangs" (p 2, para 11). However, the context makes it clear in each case that the reference is to an outlaw bikie gang. I believe that the disparaging element arises, not from membership (or leadership) of the gang of motorcyclists, but rather from the activities of the gang, namely their involvement in crime. That aspect is not incorporated in the contextual imputation as pleaded. I believe, therefore, that it is defective. It should be struck out, with liberty to re-plead.

Contextual Imputations (iii) to (vi) 30 It is convenient to deal with contextual imputations (iii) to (vi) as a group, since they give rise to common issues. The imputations, it will be remembered, are in these terms: "(iii) the plaintiff is a convicted drug dealer; (iv) the plaintiff has been convicted of dealing in one kilogram of illegal drugs; (v) the plaintiff has been convicted of dealing $15,000 worth of illegal drugs; (vi) the plaintiff has been convicted of dealing a commercial quantity of illegal drugs;" 31 The defendant relies upon the natural and ordinary meaning of the words used. There is no reference in the matter complained of to "one kilogram" (imputation (iv)), nor to "a commercial quantity of illegal drugs" (imputation (vi)). These imputations should be struck out. 32 The defendant raised the possibility of pleading extrinsic facts. It did not suggest that it had evidence to support such imputations based upon extrinsic evidence. I do not believe that liberty to re-plead is appropriate simply to raise a possibility which may have no relevance to the trial when it proceeds. 33 Both the remaining contextual imputations (contextual imputations (iii) and (v)) incorporate a reference to drug dealing. The plaintiff asserts that such imputations involve two problems. 34 First, there is a difference between the concept of possessing drugs, and the concept of dealing in drugs. The programme is careful, according to the plaintiff, to say that Mr Vella had been found guilty of "possessing" $15,000 worth of marijuana found at his home. There is no reference to "dealing". 35 Secondly, the contextual imputation refers to drugs without specifying the nature of the drugs. The conviction of Mr Vella was in respect of a specific drug, marijuana. There are a number of references to bikie gangs being associated with amphetamines. Indeed, the plaintiff's imputation complains of such a meaning. However, the contextual imputations, according to the plaintiff, which arise from the programme, must be limited either to marijuana or amphetamines, or both. It could not be suggested, for instance, that Mr Vella may have an association with heroin, or cocaine, or other illegal drugs. 36 The defendant says, however, that the whole of the programme is about drug dealing. The ordinary reasonable viewer is invited to adopt a suspicious approach. Such a viewer would draw, or could draw, an inference that the plaintiff was dealing in drugs, generally, and not simply those which are discussed. 37 I believe contextual imputations (iii) and (v) are capable of arising. First, the subject matter of the programme is announced by Mr Munro as concerning "outlaw bikie gangs who control a huge slice of our illegal drug trade …" (p 1, para 1). There are other references, of a general kind, to dealing in drugs. The informer who provided the National Crime Authority with information uses the expression, "traffic drugs" (p 2, para 12), without identifying the drugs. 38 Secondly, although lawyers make a distinction between the possession and supply of drugs, which is relevant to the nature of the charges preferred, or the penalties that may be imposed, I do not believe that such distinctions are fixed in the minds of ordinary reasonable viewers. Very little loose thinking is required to transform drug possession of large quantities of drugs, to drug dealing. 39 Thirdly, there are a number of aspects which suggest drug dealing. Mr Vella was convicted of possession of a sizeable amount of marijuana ($15,000 worth). The quantity suggested something more than personal use. Mr Vella, moreover, is described as a "bikie", and yet a "multi-millionaire". He has assets which included two Rolls Royces and a Bentley, not to mention forty motorcycles. The description of his assets is provided in the context of a programme which describes "bosses" of these "organised criminal groups" who take huge profits (p 3, para 24; p 4, para 33, 34). 40 Nor do I believe, in the context of the programme as a whole, that the imputations should be confined to marijuana or amphetamines. It will be noticed that the plaintiff's own imputation (g) is not so confined. I believe that contextual imputations (iii) and (v) are capable of arising.

Contextual Imputations (vii) and (viii) 41 They are in these terms: "(vii) the plaintiff has behaved in such a manner as to give rise to the reasonable suspicion on the part of the National Crime Authority that he has committed serious criminal offences; (viii) the plaintiff has behaved in such a manner as to cause the National Crime Authority to restrain the plaintiff's property and seize 40 motorcycles, 2 Corvette cars, 2 Rolls Royce cars, 1 Mercedes car and 1 Bentley car from the plaintiff as suspected proceeds of crime." 42 The plaintiff asserts that imputation (vii) is incapable of arising. The imputation involves the concept of the National Crime Authority harbouring a reasonable suspicion that Mr Vella's assets were the proceeds of crime. The text of the programme, on the other hand, makes it plain, according to the plaintiff, that the seizure of assets was the automatic consequence of having been convicted of a drug offence. 43 The defendant says, in response, that the broadcast uses terms which suggest that the National Crime Authority had a discretion whether or not to seize assets. It exercised that discretion in Mr Vella's case. The defendant emphasises the word "could" in the following passage from the programme (p 4, para 38): "But once Vella was convicted that meant the National Crime Authority could raid his properties and restrain his assets until he proves they were not the proceeds of crime." 44 The defendant, in written submissions, added this: "Moreover, the matter complained of itself refers to the possibility of the plaintiff's proving his assets 'were not the proceeds of crime' (para 38). In other words, at the moment of seizure the question whether or not the plaintiff's property truly was the proceeds of crime had not been finally determined. Since it was open to the plaintiff to prove otherwise, yet in the meantime the NCA was empowered to seize the property, the seizure could only be on the basis that the NCA suspected that the property was the proceeds of crime." 45 Further, the ordinary reasonable viewer would presume that crime fighting authorities would only act upon reasonable grounds. 46 However, I accept the plaintiff's argument. The programme, to my mind, does not suggest a discretion. It suggests a right, triggered by conviction of a serious drug offence. I, therefore, do not believe contextual imputation (vii) is capable of arising. 47 I believe, however, contextual imputation (viii) is capable of arising. Mr Vella had in his possession a substantial quantity of marijuana for which he was convicted of a crime. That conviction enabled the National Crime Authority to restrain his property. He was then obliged (the onus being upon him) to prove that such property was not the proceeds of crime. As a matter of inference, the legislation giving that right, and reversing the normal onus, is based upon an assumption that such property may reasonably be suspected as being the proceeds of crime. That suspicion arises from the terms of the legislation. It is not a suspicion which the National Crime Authority need entertain (unlike imputation (vii)). 48 As a consequence of these reasons, I make the following orders:

1. I strike out contextual imputations (i) and (ii), and give the defendant liberty in each case to re-plead.

2. I strike out contextual imputations (iv) and (vi).

3. I hold that contextual imputations (iii) and (v) are capable of arising.

5. I hold that contextual imputation (viii) is capable of arising.

6. I believe, overall, the plaintiff has succeeded in rather more of the application than the defendant. I believe the appropriate order is that the defendant should pay two-thirds of the costs of the plaintiff in respect of this application.

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