Ahmed v News Digital Media Pty Ltd

[2010] NSWDC 184

CITATION:	Ahmed v News Digital Media Pty Ltd [2010] NSWDC 184 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	20 August 2010
JUDGMENT DATE:	20 August 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Subject to order 2, application to strike out imputations (a) – (f) dismissed. (2) The plaintiff is to file and serve by 4 p.m. Wednesday 25 August 2010 an amended statement of claim pleading imputations (c) and (d) as alternatives. (3) The defendant is to pay the plaintiff’s costs. (4) Defence to the amended statement of claim to be filed and served by 4 p.m. Thursday 9 September 2010. (5) These proceedings to be listed for directions for the hearing of the consolidation motion and the Court’s own motion to dispense with the jury at a time convenient to the Defamation List Judge. (6) Note that the Notice of Motion is, at the request of the parties, technically part heard before Gibson DCJ but that any consolidation argument may not be brought for some time and the parties have liberty to apply before any other judge of this court as they see fit.
CATCHWORDS:	TORT - defamation - imputations - form and capacity
LEGISLATION CITED:	Defamation Act 2005 (NSW)
CASES CITED:	Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 Ahmed v Nationwide News Pty Ltd [2010] NSWDC 183 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 Forrest v Askew [2007] WASC 161 Hill v Westfield [2003] NSWSC 437
PARTIES:	Plaintiff: Rafiq Ahmed Defendant: News Digital Media Pty Ltd
FILE NUMBER(S):	111367 of 2010
COUNSEL:	Plaintiff: Mr R Rasmussen Defendant: Mr D Sibtain
SOLICITORS:	Plaintiff: Juris Australia Defendant: Blake Dawson

Judgment

[1] The plaintiff commenced proceedings for defamation by statement of claim filed on 5 May 2010 for publications by the defendant on the internet on or about 8 November 2009 “and thereafter” (paragraph 2 of the statement of claim). Particulars of the persons who downloaded the matter complained of from the internet are set out in paragraph 5 of the statement of claim. The matter complained of is set out, although not in the same form as that in which it appears on the internet, as a schedule to this judgment.

[2] This is an application by the defendant to challenge the form and/or capacity of each of the imputations pleaded by the defendant. The following imputations are pleaded by the plaintiff as being conveyed:

(a) The plaintiff is a rogue.
(b) The plaintiff is one of the most corrupt cops in NSW.
(c) The plaintiff was convicted of a home-loan mortgage scam.
(d) The plaintiff is guilty of a home-loan mortgage scam.
(e) The plaintiff had an improper association with criminals.
(f) The plaintiff engaged in corrupt activities.

[3] The text of the matter complained of is almost identical to the newspaper article about which the plaintiff sues in proceedings no 99482 of 2010 and about which the plaintiff complains. There are, however, differences:

(a) The text which appears underneath the plaintiff’s photograph in the newspaper does not appear on the internet version. This means there is no reference to the plaintiff’s sentence “with no conviction recorded”.

(b) There is an additional paragraph (numbered 5a in the court document) referring to an “Internal investigation: Top cop probed for ‘urinating’”. This makes no difference to the issues of form and capacity before me.

(c) A section at the end, headed “More related coverage”, includes six other stories upon which the reader can click. These make little or no difference to the issues of form and capacity before me.

[4] The argument before me proceeded upon the basis that my findings in the proceedings against Nationwide News Pty Ltd would apply in these proceedings. However, the plaintiff submits that the absence of the explanatory material underneath the plaintiff’s photograph means that the defendant’s argument that the conduct of the plaintiff “would be viewed as a minor infraction” (principally concerning imputations 3(c) and (d)) is considerably less, and I should deal with that submission in relation to all the imputations.

[5] The defendant submitted that the fact that the sentencing of the plaintiff resulted in a good behaviour bond meant that, even if the ordinary reasonable reader did not know that no conviction resulted, the plaintiff’s conduct would still be regarded as a minor infraction.

[6] The question of what the ordinary reasonable reader makes of the technicalities of sentencing and criminal offences was considered by Simpson J in Hill v Westfield [2003] NSWSC 437 at [13], where her Honour made the following finding about whether the ordinary reasonable reader would know that insider trading was a criminal offence:

“11 The substance of the argument was that the concept of the criminal offence of insider trading is not one sufficiently familiar to the ordinary reasonable reader to enable that reader to derive the imputation from the matter complained of. There is no reference in the article to insider trading, although, to those in the know, it is clear that such an imputation may be conveyed.

12 In written submissions presented on behalf of the plaintiff, and in response to the defendants’ submissions, it was asserted that the matter complained of appeared in the financial pages of the newspaper. Whether or not that is so I do not know; there is no evidence and no pleading to that effect. For the purposes of the argument I am prepared to assume that it is the case. But it advances the plaintiff’s case not at all. The capacity of a publication to convey imputations in its natural and ordinary meaning does not depend upon the identity of recipients, or a specific class of recipient, but is to be determined by the application of an objective test: see Reader’s Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 505-506.

13 It may well be the case that many members of the public are aware, in some sense at least, of the concept of insider trading, and even that it constitutes a criminal offence. However, I am not satisfied that the level of public understanding of the concept is such as to warrant the conclusion that, from the factual matters asserted in the article, the ordinary reasonable reader would draw the conclusion that the assertions amounted to an accusation of insider trading.”

[7] In Forrest v Askew [2007] WASC 161 Newnes J, in the course of holding that an imputation of insider trading was conveyed, took a different view:

“I do not consider that Hill v Westfield (supra) assists the defendants. In that case two articles fell for consideration. In the first there was no reference in the words complained of to "insider trading". Simpson J said (at [13]) that it may well be the case that many members of the public are aware, in some sense at least, of the concept of insider trading, and even that it constitutes a criminal offence, but her Honour was not satisfied that the public understanding was such as to warrant the conclusion that, from the factual matter in the article, the ordinary reasonable reader would understand that the assertions amounted to insider trading. In respect of the second article there was an express reference to insider trading but it did not identify it as a criminal offence nor explain the concept. Simpson J concluded that the concept of insider trading was not sufficiently widely known in the public arena, and the ordinary reasonable reader was not aware that it was a criminal offence, so her Honour struck out an imputation that the plaintiff had committed the criminal offence of insider trading.

[63] In the present case, in my view, it is arguable that the article makes sufficiently clear what the concept involves and the reference to charges makes it clear that it is an offence. I would, in any event, respectfully disagree with Simpson J that it is clear that the concept is not sufficiently understood in the community so that such an imputation should be struck out at an interlocutory stage.”

[8] A judge should not be too ready to trespass into the domain of the jury and to make assumptions about what the ordinary reasonable reader may or may not know concerning the principles of sentencing. Accordingly, excercising the caution urged upon me by the High Court (Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716) and the court of appeal (Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 at [17] per McColl JA) I propose to leave imputations 3(c) and (d) to the jury as alternatives, and to make the same orders in these proceedings as in Ahmed v Nationwide News Pty Ltd [2010] NSWDC 183.

(1) Subject to order 2, application to strike out imputations (a) – (f) dismissed.
(2) The plaintiff is to file and serve by 4 p.m. Wednesday 25 August 2010 an amended statement of claim pleading imputations (c) and (d) as alternatives.
(3) The defendant is to pay the plaintiff’s costs.
(4) Defence to the amended statement of claim to be filed and served by 4 p.m. Thursday 9 September 2010.
(5) These proceedings to be listed for directions for the hearing of the consolidation motion and the Court’s own motion to dispense with the jury at a time convenient to the Defamation List Judge.
(6) Note that the Notice of Motion is, at the request of the parties, technically part heard before Gibson DCJ but that any consolidation argument may not be brought for some time and the parties have liberty to apply before any other judge of this court as they see fit.

Annexure – Matter complained of

Rogues gallery of corrupt cops

· By Yoni Bashan

· From: The Sunday Telegraph

· November 08, 2009 12:00AM

NSW POLICE DEALING ON THE DARK SIDE

- [picture] RAFIQ AHMED

- [picture] CHRISTOPHER WALKER

- [picture] SUPPRESSED

- [picture] NASSER BATTAL

- [picture] CHRISTOPHER LAYCOCK

- [picture] MARK JOSEPH SMITH

- [picture] SUPPRESSED

CORRUPT COPS

THEY'RE the most corrupt cops in NSW. They perform their duties while secretly dealing drugs, tipping off bikie gangs and accepting bribes.

Their names, contained in the Police Integrity Commission's annual report, provide an insight into the corruption and misconduct hidden in our police force.

Internal investigation: Top cop probed for 'urinating'

The issue of improper associations between police and criminals tops the list of complaints to the PIC - the much-maligned agency regarded as the State's police corruption watchdog.

In one of the most alarming cases, a junior officer, whose identity is suppressed, leaked sensitive information to a bikie-gang member before a murder trial.

The trial was over the murder of Ashur Audisho, a 21-year-old Sydney DJ who was allegedly gunned down by Assyrian gang members at Fairfield Heights in April, 2006.

It was feared the information was being used to threaten witnesses preparing to give evidence at the trial of Audisho's killers.

The leak sparked a full-scale investigation that began in May last year. It resulted in the officer resigning in disgrace, but no charges were laid over the breach.

The case of Nathan McCulloch, 39, shows even long-serving officers can be lured to the “dark side'”.

The report, tabled in parliament last week, says the Tamworth senior constable with at least 15 years' experience was investigated as part of a secret PIC operation code-named Operation Oklahoma.

McCulloch was under scrutiny over his links with members of an outlaw bikie gang and claims that he imported anabolic steroids and sold them to fellow officers.

He and his wife, Elisa McCulloch, 40, also a Tamworth senior constable with 20 years' experience, pleaded guilty on June 19 this year to involvement in the drug ring.

Elisa McCulloch escaped conviction but her husband, who admitted to several charges of supplying and possessing steroidal agents, paid a hefty fine.

Almost 3000 complaints have been made to the PIC in the past year concerning activities including protecting drug dealers, bribery and sexual assault.

Unauthorised disclosures of information, as in the Audisho case, were the second-biggest problem with 174 complaints lodged, according to the report.

Despite the extraordinary number of corruption allegations, only nine people - five of them serving police officers - were charged in 2008 and 2009.

Senior police say the vast majority of officers uphold their oath to the community every day. Professional Standards commander Paul Carey said overt and covert investigations were conducted into police officers suspected of having fallen victim to the temptation of corruption.

He said he was encouraged by the fact that investigations often followed complaints made by serving officers against their colleagues.

“A lot of those investigations have grown out of information from our own audits or, particularly, from information provided by police officers, their peers or their supervisors who see the wrong thing is going on,” Mr Carey said.

He pointed to the uncovering of corrupt Liverpool detectives “LP1” and Nasser Battal, who allegedly stole and extorted money from tobacconists, as examples.

Mr Carey conceded officers of all rank and experience could become susceptible to corruption and misconduct, attributing the problem to changes in their private lives.

One detective, George Kahila, is facing an extraordinary 89 charges over an alleged mortgage-fraud racket in which hundreds of thousands of dollars were scammed from civilians.

The Merrylands man is alleged to have produced false tax returns and group-certificate documents over the past seven years in a bid to extract money from the ANZ bank and other financial institutions.

Kahila's case will return to court in December for mention.

A second fraud matter finalised this year involved specialist officer Rafiq Ahmed, a fraud squad detective who was given a 12-month good-behaviour bond over a separate home-loan scam.

In another case, Barry Blanchette, a senior police officer, was charged with theft and aggravated break and enter.

His case is awaiting a fitness hearing in the District Court.

Although The Sunday Telegraph was refused access to Blanchette's court files, it is understood his case relates to the alleged theft of gold bullion and jewellery from a robbery carried out in 2002.

Blanchette is the father of Andrew Blanchette, the high-school sweetheart of Caroline Byrne and a one-time suspect in her murder. He has denied any involvement.

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21/09/2010 - Typographical errors - Paragraph(s) [4] and [8]