Wallace v Alan Jones & Anor

Supreme Court of NSW|2001-11-16|Before: Levine J

CITATION : Wallace v Alan Jones & Anor [2001] NSWSC 1085 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20778 OF 2001 HEARING DATE(S) : 16 November 2001 JUDGMENT DATE : 30 November 2001

DEBORAH WALLACE (Plaintiff)

v PARTIES : ALAN JONES (First Defendant)

S Littlemore Q.C. (Plaintiff) COUNSEL : T Blackburn (Defendants) Walter Madden Jenkins (Plaintiff) SOLICITORS : Corrs Chambers Westgarth (Defendant) CATCHWORDS : Radio broadcasts - imputations - capacity - form - difference in substance - "corrupt" - "dishonestly" - "sincere" Drummoyne Municipal Council v Australian Broadcasting Corporation (1991) 21 NSWLR 135 Krahe v TCN Channel Nine Pty Limited (1986) 4 NSWLR 536 CASES CITED : Ma Ching Kwan v John Fairfax Publications Pty Ltd (Court of Appeal, unreported, 30 July 1998) McCormick v John Fairfax & Sons Pty Limited (1989) 16 NSWLR 485 Morris v Newcastle Newspapers Pty Limited (1985) 1 NSWLR 260 DECISION : See paragraph 40

DLJ: 1 [2001] NSWSC 1085 IN THE SUPREME COURT OF NEW SOUTH WALES common law division Defamation list 20778 of 2001

JUSTICE DAVID LEVINE Friday 30 November 2001 DEBORAH WALLACE (Plaintiff) v ALAN JONES (First Defendant) RADIO 2UE SYDNEY PTY LTD (Second Defendant) Judgment (Radio broadcasts - imputations - capacity - form - difference in substance - "corrupt" - "dishonestly" - "sincere") 1 By a Statement of Claim filed on 14 September 2001 the plaintiff sues the defendants in respect of five broadcasts (the tapes of which I have heard). 2 The first broadcast was at about 7.10am on 2 April 2001; a transcript of it is the First Schedule to the pleading. The subject matter of the broadcast, in general terms, is drug crime at Cabramatta and a change of a computer entry at Cabramatta Police Station. Mr Jones is interviewing a Mr Ross Treyvaud. Some pertinent passages are as follows: "Jones: …..the exact words of it. A copy here of the note written into the system by Bradley Element, a young constable, on February 19, saying the deputy principal of Cabramatta High told police that at 3:00pm five students had warned of a number of males waiting outside the school gates to bash them. So if someone is denying this has happened, surely they are telling lies? Treyvaud: Yes there seems to be something sinister going on here Alan. Jones: Well. Let me take that point of sinister. The day after I raised this on my program, the entry on the police computer system was quote/unquote updated by the 2IC out there, Detective Inspector Deborah Wallace. And my information is the purpose of updating the narrative on the police computer system, and putting in her interpretation, was that her version of events would supercede the original documentation. And I am asking you as the crime fighter out there, what chance have you got of succeeding at Cabramatta if police and others, even their superiors, are prepared to lie about facts? Treyvaud: Well unfortunately, that is often the case out here Alan. And I don't say that lightly. We have seen it time and time again. That the truth that we have tried to get to the public has been twisted, has been outright denied by senior police. Not the juniors working the street. Not the guys that attend to the crimes. But these people in the offices, the superintendents, the inspectors, the assistant commissioners have lied about the situation here constantly. Have left the public exposed to a level of crime this country hasn't seen before. Jones: My information is, talking about lying, that the Police Association are going to make a submission to this Upper House inquiry on the 23rd of April on this whole issue and they are likely to say, my information is, that certain people in high places have done just that. Have been telling lies about the situation in Cabramatta". 3 The plaintiff contends that this first matter complained of carries the following defamatory imputations of her: " 4(a) That she, a Detective Inspector, lied about the facts of an incident at the Cabramatta High School on 19th February 2001, robbing crime fighters of any chance to succeed against drug crime at Cabramatta;

In the alternative (b) That she, a Detective Inspector, claimed merely to have 'updated' a police computer entry about an incident at the Cabramatta High School on 19th February 2001, but had lied about the facts of that incident". 4 The second broadcast was on or about 7.10am on 3 July 2001. The words relied upon were spoken by Mr Jones and were as follows: "Now remember, only some months ago, I talked about the Cabramatta business. This was the Aqualina affair, whether or not there had been problems at Cabramatta High School. And I said, at that time, there was an entry on the computer, the police computer machine - that's called COPS. And an entry by a police person onto COPS is called an event. And so, to verify the fact that something has happened, even though there were denials that is hasn't - that it hadn't happened - there was proof of an entry on the COPS, the computer system, there was an event recorded by the police involved. Well after the controversy, that event was altered in relation to Cabramatta High School. That is, an entry of police activity on the computer system was changed. It was changed by a police person out there, Deborah Wallace. Deborah Wallace also is a person who had trained in Internal Affairs. I would have thought that if a police person, or woman or man, altered the truth about a police activity then they should be sacked. And I regret to say in relation to all of this it appears that there is more to come". 5 The plaintiff contends that this matter carries the following defamatory imputations: " 6(c) That she dishonestly altered an official police record relating to the Cabramatta High School in such a way that she deserved to be sacked from the New South Wales Police Service; (d) That she had acted so dishonestly as a serving police officer that the first defendant would later reveal further wrongdoing than her falsification of an official police record relating to the Cabramatta High School". 6 The third broadcast complained of was at the same time but on 17 July 2001. Part of that broadcast was as follows: "I was informed at the weekend that Inspector Deborah Wallace, the crime manager at Cabramatta who, through her ability to change entries on the police computer, has brought new meaning to the job description of crime manager. Deborah Wallace has been promoted to acting superintendent in charge of the Gladesville Police Station. So if Gladesville has any form of gang activity then Miss Wallace will soon prove there is none. She will simply tell the community of Gladesville they are either gone or don't exist, as she tried to famously do at Cabramatta. This is the woman, Miss Wallace, who appeared before the Parliamentary Committee inquiring into Cabramatta in relation to the harassment and intimidation of four police who gave evidence in support of the now vindicated detective sergeant Tim Priest. Ms. Wallace and two other senior police may well find themselves before a parliamentary ethics committee in the very near future who may not be as impressed with her actions as much as seen to be her extremely grateful superiors. There are now many police questioning the rapid rise of this blindly ambitious and ruthless woman. One would have thought that the sensational revelations of this whole sorry mess in Cabramatta, that senior police might finally have come to their senses in relation to the promotions fiasco which is about to blow up. But no, once again, we see the nepotism and networking in full view when it comes to police promotions. Whatever fool has rubber stamped the promotion of Deborah Wallace within the police service had better reach for the Zantax (sic) because shortly that empty feeling in the pit of their stomach won't be butterflies. This outrageous promotion has ensured now that only a total clean out of the top echelons of the police service will enable some semblance of integrity to return to the service. I just wonder whether commissioner Ryan, who is today saying he is being misled, well I wonder whether he knew anything about this rapid rise of this woman and the message that it is sending to police, not only at Cabramatta but elsewhere". 7 The plaintiff contends that this matter conveys the following imputations: " 8(e) That she, an Inspector of Police, acted criminally in changing entries on the police computer while working as the Crime Manager at Cabramatta police station; (f) That she, an Inspector of Police, lied to the community, telling it that there was no form of gang activity at Cabramatta; (g) That she, in discharging the duties of the office in charge of the Gladesville Police Station, is a person who is prepared to lie routinely to the community. (h) That she, an Inspector of Police, lied when she appeared before the Parliamentary Committee enquiring into Cabramatta; (j) That her dishonesty in the Parliamentary Committee enquiring into Cabramatta warranted investigation by a further committee of the Parliament; (k) That she is a despicable person; (l) That she, a person holding the rank of Acting Superintendent, will soon be exposed as a sickeningly corrupt police officer; (m) That she, a person holding the rank of Acting Superintendent, must be dismissed from the Police Service before it can hope to restore any integrity to its name". 8 The fourth broadcast occurred at about 7.15am on 1 August 2001. Mr Jones is speaking with a Dr Richard Basham about the police. Two passages are noteworthy: "Jones: You have made this point many times to me before. You have told our listeners that the Government is not about getting crime down but about getting crime statistics down. Basham: Absolutely! It is really all gloss and no substance in terms of the way they have operated. The most effective way of course is to get people discouraged, to discourage them from reporting crime and I think that is one thing they have been very effectively doing. Jones: So you can get reporting of crime down by discouraging people from reporting it, especially crimes that really rack up the numbers like break and enter, steal, drug offences and so on. Basham: Exactly. Jones: So drug offences you get down by not arresting drug dealers. Basham: Exactly. Jones: So tell police not to go out of the station in a target rich environment like Cabramatta. That's happening. … Jones: So in Cabramatta for example, where that is the problem, by as you know and you have said on this problem there are Cabramattas all over the state. You have got a bunch of junior people like Deborah Wallace who are careerists, they are not policemen. Basham: Yeah, although I think Debbie has moved on now and is now a superintendent at Gladesville….. Jones: She continues to get promoted ….. Basham: Yes, yeah. Jones: So, I mean that is the way to get your career on the go? Attach yourself to somebody senior, give them what they want - in this case reduce crime stats". 9 The plaintiff contends that this fourth broadcast carried the following defamatory imputations: " 10(n) That she is not a sincere police officer, but a self-serving person, concerned only with her own advancement in the Police Service; (o) That she has won promotion to Superintendent in the Police Service, not on merit, but by exploiting cronyism and by falsifying crime statistics". 10 At about 6.45am on or about 8 August 2001 the fifth matter complained of was broadcast. It is set out in what is described as the Sixth Schedule to the Statement of Claim. One part of that broadcast is in the following terms: "Well we all know that he was attacked by government and the upper echelons of the police service. In particular, commander Clive Small made many critical remarks about detective sergeant Priest in the evidence he gave. We all know now that Tim Priest was completely vindicated and in fact the Helen Sham Ho report based most of its findings directly on the submission and the evidence given by Tim Priest. You can't speak highly enough about Priest in the presence of Sham Ho and other members of the committee but within days, we had assistant commissioner Clive Small and the redoubtable Deborah Wallace, the crime manager at Cabramatta, they were telling all and sundry and there were no gangs in Cabramatta. That there was no evidence to support these assertions. In fact, the gangs were just grounds of youths handing around (sic). All that sort of garbage. Well, many of us are no wiser because, lo and behold, there is assistant commissioner Clive Small large as life if you please at a media conference yesterday, delivering a report into gangs in Sydney which, listen to this, details more than 20 gangs of which 6 are based where - Cabramatta. Deborah Wallace, now in charge of the Gladesville Police Station, will no doubt be horrified, but not as horrified as many other police are at the moment. You see, front line police have known about the existence of these gangs for ages. But like the drug problem in Cabramatta, they couldn't get anyone in authority to get interested. With Commander Clive and Miss Deborah at the helm, it is any wonder. In the wash up from the Cabramatta report just what has happened to those responsible for this dreadful news? Well, in the next few days I will detail how all the senior police at Cabramatta who were responsible for the deception, the lies and the cover ups - they have been promoted". 11 The plaintiff contends that this broadcast carries the following defamatory imputations: " 13(p) That she is a person of no significance; (q) That she, the police officer serving as the Crime Manager at the Cabramatta Police Station, asserted to the community that there were no gangs in Cabramatta, which was a lie; (r) That she won promotion to the rank of acting Region Commander in the New South Wales Police Service because she told lies, covered up crime, and surrendered her integrity and self-respect". 12 In relation to the highlighted imputations above, the defendant has taken some objections as to form. Further, by consent and pursuant to SCR Pt 31 r 2, argument was heard on the question of whether or not, as a matter of law, the respective broadcasts are capable of carrying the relevant imputations and whether the imputations are capable of being defamatory.

Imputation 4(a) "That she, a Detective Inspector, lied about the facts of an incident at the Cabramatta High School on 19th February 2001, robbing crime fighters of any chance to succeed against drug crime at Cabramatta". 13 The defendant submits that this imputation suggests that the single act alleged against the plaintiff itself robbed crime fighters of any chance of succeeding against drug crime in Cabramatta. It is contended that what the defendant is publishing is a general charge or comment by reference to "Police and others, even their superiors" in the plural. What is submitted is that there is no suggestion that the single act alleged against the plaintiff, by itself, was such as to rob crime fighters of all chance of succeeding against drug crime in Parramatta. Such a meaning would reflect an utterly unreasonable interpretation of the matter complained of. 14 This submission in my respectful view involves a strained interpretation of the imputation. The imputation is quite clear. The sting of it is that by lying she stood in the way of crime fighters having any chance of succeeding against drug crime at Parramatta. Bearing in mind that this was a radio broadcast, on a capacity argument, the concluding words of the segment sued upon are available clearly to give rise to this meaning. 15 I hold that 4(a) is capable of being carried by the first matter complained of and is capable of being defamatory.

Imputation 6(c) "That she dishonestly altered an official police record relating to the Cabramatta High School in such a way that she deserved to be sacked from the New South Wales Police Service". 16 The defendant attacks this imputation as bad in form. The submission is made that the use of the words "dishonestly" does not give any real indication of the nature of the act or condition which the plaintiff says is alleged against her. It is argued that the word "dishonestly" is akin to "wrongfully" and "improperly," the former of which was proscribed by the decision of the Court of Appeal in Ma Ching Kwan v John Fairfax Publications Pty Ltd (unreported, 30 July 1998); Morris v Newcastle Newspapers Pty Limited (1985) 1 NSWLR 260 at 271F; Krahe v TCN Channel Nine Pty Limited (1986) 4 NSWLR 536 at 546-547; McCormick v John Fairfax & Sons Pty Limited (1989) 16 NSWLR 485 at 493-495. 17 Whilst I accept, as I am bound to do, that the words "wrongfully" and "improperly" can be inherently ambiguous (see Handley JA p 5) I am not persuaded that in terms of the imputation or in the context giving rise to it that the same flaw attends the word "dishonestly". There can be no issue as to what is to be understood by "dishonestly" by reference to the last paragraph extracted from the second matter complained of. 18 Accordingly, I hold that imputation 6(c) is good in form; it is also capable of arising and capable of being defamatory.

Imputation 6(d) "That she had acted so dishonestly as a serving police officer that the first defendant would later reveal further wrongdoing than her falsification of an official police record relating to the Cabramatta High School". 19 I leave to one side the distant thunder of the dispute between counsel that the imputation is ungrammatical. 20 It is contended that this imputation is bad in form and incapable of arising. I have no difficulty with it as a matter of form. It is said that there is no necessary or even available connection between the fact of the plaintiff's alleged dishonesty and the further revelations Mr Jones chooses to make. The connection is clear on the face of the words used by Mr Jones "in relation to all of this" (emphasis added). 21 The matter complained of is capable of conveying, in addition to the link and contrary to the submission of the defendant, that it will be the defendants, in relation to all of this, who will reveal more that is to come. That there is "more to come" is "apparent" ("it appears"). Minds may differ about this and could; however, I am not persuaded on any basis that the imputation should be struck out or should not go to the jury. 22 I hold imputation 6(d) to be good in form; I hold also that it is capable of being carried by the matter complained of and is capable of being defamatory.

Third Matter Complained Of Imputation 8(e) "That she, an Inspector of Police, acted criminally in changing entries on the police computer while working as the Crime Manager at Cabramatta police station". 23 Shortly stated, the plaintiff relies upon what I gather to be a sense of paradox, irony or sarcasm in the words set out, inter alia, in the first paragraph of the extracted part of the matter complained of. 24 It was sought to amplify the submission by comparison with a statement to the effect that a lawyer who specialises in criminal work who stole from his client gave a new meaning to the expression "criminal lawyer". The defendant's response to that proposition was that people would know that to steal from a client is a crime but would not be able to form that view as to the conduct of the plaintiff (as alleged) in changing entries on the police computer. This, to my mind, misses the point. It is not the ready characterisation generally within the broadcast of changing entries in the police computer that enables the listener to understand the conduct to be criminal, it is the words of Mr Jones which, the plaintiff contends could be understood as so characterising that conduct. The conduct described does not have to be understood as being criminal itself; it is Mr Jones' remarks in relation to it that are capable of giving rise to the meaning in the manner suggested by the plaintiff. 25 I hold imputation 8(e) to be capable of arising and capable of being defamatory.

Imputation 8(h) "That she, an Inspector of Police, lied when she appeared before the Parliamentary Committee enquiring into Cabramatta". 26 This contains a very serious charge: namely that she committed perjury before a Committee of Parliament. Nowhere in Mr Jones broadcast is there an indication of the nature of the evidence that the plaintiff gave before the Parliamentary Committee. All that Mr Jones refers to is that the plaintiff appeared before the Committee which was inquiring into Cabramatta in relation to the harassment and intimidation of four police officers who gave evidence in support of the now vindicated Detective Sergeant Priest. There is nothing in that relevant paragraph from which an inference can be drawn as to anything that Ms Wallace might have said to that Committee on that subject. What is particularly relied upon by the plaintiff however is the reference in the next extracted paragraph to the "Ethics Committee" of Parliament (whatever that is). That paragraph goes on to talk about her actions which have impressed her grateful superiors. Mr Jones whether deliberately or not is unknown, of course, certainly could be considered as being somewhat opaque in what he is here talking about. What he could be understood as talking about is questioning the plaintiff's "ethics" not in relation to any evidence, whatever it was, she gave before the Parliamentary Committee, but by reference to the changing of the police computer entry and her rapid rise as a blindly ambitious and ruthless woman. 27 In this instance I accept the submissions of the defendant. It strikes me as being an unacceptably strained and forced interpretation of the words founded upon a mere reference to the ethics committee, in the whole of the context, to extract a meaning that she lied to the Parliamentary Committee. 28 I hold that imputation 8(h) is incapable of arising.

Imputation 8(j) "That her dishonesty in the Parliamentary Committee enquiring into Cabramatta warranted investigation by a further committee of the Parliament". 29 Again, I am not persuaded that the disparaging comments which Mr Jones undoubtedly makes about the plaintiff can give rise to anything that could characterise her conduct before the Parliamentary Committee as "dishonest". It would be the unduly suspicious listener or one avid for scandal who would extract such a meaning. 30 I hold that imputation 8(j) is incapable of being conveyed by this matter complained of.

Imputation 8(k) "That she is a despicable person". 31 The defendant, rightly, in my view, attacks this imputation as "rhetorical" (see Morris v Newcastle Newspapers (1985) 1 NSWLR 260 at 272). It is a pleader's flourish that adds nothing to such imputations that are, in fact, conveyed. There might well be another imputation arising from the trenchant language used by Mr Jones and more particularly flowing from it. The present imputation is bad in form by reason of its quality as a rhetorical imputation and I strike it out.

Imputation 8(l) "That she, a person holding the rank of Acting Superintendent, will soon be exposed as a sickeningly corrupt police officer". 32 With respect to this imputation I am persuaded by the clever argument for the plaintiff that an imputation to this effect is available insofar as it contains the notion of "sickeningly". This is clearly capable of arising from that part of the extracted material that refers to that "empty feeling in the pit of the stomach won't be butterflies". The real problem with the imputation, as Mr Littlemore Q.C. acknowledged, is the use of that very troublesome word "corrupt" (see Drummoyne Municipal Council v Australian Broadcasting Corporation (1991) 21 NSWLR 135). 33 With respect to this imputation I will grant the plaintiff leave to replead.

The Fourth Matter Complained Of Imputation 10(n) "That she is not a sincere police officer, but a self-serving person, concerned only with her own advancement in the Police Service". 34 With respect to this imputation, the defendant first contends that it is bad in form in the sense that no real meaning, of the imputation, can be gleaned. Secondly, dependent upon what it means, really cannot differ in substance from imputation 10(o). 35 As to the first component of the defendant's position, the sentence "you have got a bunch of junior people like Deborah Wallace who are careerists, they are not policeman" could have the effect of inducing in the ordinary reasonable listener the meaning of the substance of imputation 10(n). The fact that a word such as "sincere," detached from the context might, upon the consultation of a Dictionary, have several meanings, the fact that five different pleaders might use five different words does not preclude the sting being captured in the context of the language used by the publisher. 36 I hold imputation 10(n) to be good in form. It differs in substance from 10(o) on the basis that the former attributes a condition and the latter attributes acts. It is capable of arising and of being defamatory.

The Fifth Matter Complained Of Imputation 13(p) "That she is a person of no significance". 37 The defendant contends that this imputation "plainly (is) bad in form". It is said to attribute to the plaintiff no definite act or condition. I reject this submission. It is perfectly clear what this imputation is saying and it is captured in the very words of the imputation itself. The defendant then proceeds to argue that it cannot be defamatory if it merely means that the plaintiff is an "unremarkable" person. It is said that that would describe most of humankind and ordinary decent folk in the community would not think less of a person because that person was of "no significance". One could embark upon interesting questions to the effect that a person's sense of self-esteem is the other side of the coin to good name. But that would not be quite to the point. Speaking for myself, to say of a person that that person is of "no significance" says as much about that person as it does of the publisher - it is disparaging of both. 38 This imputation however is one that should be determined by the jury. In respect of whether the matter complained of carries it and whether it is in fact defamatory, context and a tone voice, the juxtaposition of "you can't speak highly enough about Priest" with "the redoubtable Deborah Wallace" can be the subject of argument to that tribunal. 39 I hold that imputation 13(p) is capable of being carried by the matter complained of and is capable of being defamatory. 40 The formal orders are:

Imputations 4(a), 6(c), 6(d), 8(e), 10(n) and 13(p) are capable of being carried by the respective matters complained of and are capable of being defamatory.

Imputations 8(h) and 8(j) are incapable of being carried by the relevant matter complained of.

Imputation 8(k) is struck out as bad in form without leave to replead.

Imputation 8(l) is struck out as bad in form with leave to replead.

The plaintiff is to file her Amended Statement of Claim within 21 days and the defendants their Defence thereto in respect of issues for the jury, within 21 days thereafter.

The defendants are to pay the plaintiff's costs.

Pursuant to SCR Pt 31 r 2 I direct the trial by jury of the issues joined between the parties in the pleadings referred to in Order 5.

I direct that the matter be placed in the List for Call-Up for the allocation of a date for trial by a jury pursuant to s 7A of the Defamation Act 1974. **********

Last Modified: 12/03/2001 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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