Anthony Samuel Zizza v John Silvester
[2011] NSWSC 631
•14 June 2011
Supreme Court
New South Wales
Medium Neutral Citation: Anthony Samuel Zizza v John Silvester [2011] NSWSC 631 Hearing dates: 14 June 2011 Decision date: 14 June 2011 Before: McCallum J Decision: Each of imputations (b), (d) and (e) may go to the jury. D efendants ordered to pay the plaintiff's costs of the application.
Catchwords: DEFAMATION - whether complained of capable of conveying imputations pleaded by the plaintiff - no question of principle Cases Cited: Favell v Queensland Newspapers (2005) HCA 52 Category: Separate question Parties: Anthony Samuel Zizza (plaintiff)
John Silvester (first defendant)
Leonard Rule (second defendant)
Sly Ink Pty Limited (third defendant)
Floradale Productions Pty Limited (fourth defendant)Representation: K Smark SC (for the plaintiff)
Hardin Law (plaintiff)
Minter Ellison (defendants)
File Number(s): 2010/425718 Publication restriction: None
Judgment
HER HONOUR:
These are proceedings for defamation arising out of the publication of a book entitled "Underbelly - The Golden Mile." The plaintiff sues on the whole of the book but in particular page 192. The imputations alleged to arise from the book, and particularly that part of the book, are:
(a) The plaintiff was a drug dealer.
(b) The plaintiff had conspired with corrupt police to murder Louie Bayeh.
(c) In the alternative (a), above, the plaintiff is a criminal in that he was a drug dealer.
(d) In the alternative (b), above, the plaintiff is a criminal in that he had conspired with corrupt police to murder Louie Bayeh.
(e) In the alternative to (b) and (d), above, the plaintiff is a criminal in that he agreed to kill Louie Bayeh in exchange for drug charges being dropped against him.
The passage relied upon at 192 is relatively short and it is convenient for the purposes of this judgment to set it out in full:
"...the infamously psychotic and violent Lennie McPherson, Sydney's Mr Big.
Corrupt police wanted Louis dead because, like other allegedly tough guys on the streets - including his brother, the drug czar Billy Bayeh - he had cracked under pressure, telling an Independent Commission Against Corruption (ICAC) hearing in the early 1990s the names of officers he paid and how much he paid them.
Hearing whispers on the street that he shouldn't be buying any green bananas, Louie started asking well-informed people's opinions about his life expectancy. The answers weren't reassuring. McPherson, his former partner in crime, sent a chill down his spine by telling him he was the target of a proposed assassination attempt by a drug dealer named Tony Zizza.
McPherson said the deal bent police were offering was that in return for killing Bayeh they would drop drug charges against Zizza. It was a 'win-win' for everyone in the game - except for the now rather rattled Louie. The planned hit was confirmed by senior policeman Merv Schloeffel, who was then working in internal security. Zizza was again named as the likely assassin.
Bayeh contacted Zizza to get it from the horse's mouth. Zizza confirm the deal. His reward for knocking Bayey, he explained, would be to walk away from drug charges scot free. Bayeh didn't like the answer but couldn't fault the logic. He'd do exactly the same thing if the boot were on the other foot.
It was a stunning turnabout for Bayeh: to go from being predator to being the prey, a reversal of the role he had..."
The defendants contend that imputations (b), (d) and (e) are not capable of being conveyed by the matter complained of. It is convenient to begin by considering imputation (e). In short, the argument put in respect of that imputation, as it was paraphrased by Senior Counsel for the plaintiff, was that the agreement reported in the relevant passages was inchoate, that is, that all the matter complained of really described was the deal that had been put on the table by corrupt police. It was further submitted that there was not enough in the matter complained to indicate whether Mr Zizza had, as it were, accepted that offer.
The principles applicable to the consideration of the question whether a publication sued on in an action for defamation is capable of carrying the imputations alleged by the plaintiff are well known, and were summarised relatively recently in the decision of the High Court in Favell v Queensland Newspapers (2005) HCA 52. Ultimately, the question for the Court to determine is what a jury could properly make of the matter complained of bearing in mind the qualities attributed to the ordinary reasonable reader summarised in the joint judgment at [9] to [11].
In the present case, there is in my view sufficient indication in the text of the matter complained of to warrant the conclusion that a jury could properly understand it to mean not only that police had put a proposal on the table for Mr Zizza's consideration, but indeed that he was at least contemplating executing the proposal as put on the table for him. In particular, I note that the matter reports of Mr Bayeh, "he'd do exactly the same thing if the boot were on the other foot." In my view, a jury could properly take those contentions to mean that it was asserted that Mr Zizza was proposing to carry out the deal put before him by police.
As to imputations (b) and (d), a slightly different point was taken. Mr Dawson, who appeared for the defendants, submitted that the proposal as described entailed no involvement by police. He submitted that an ordinary conspiracy involves a number of people in an agreement, for example, one would drive to the scene of the crime, one would dim the lights at the relevant time, one would carry the knife and so on. By contrast, Mr Dawson noted that in the present case the only involvement of police or attributed to them is that if the murder were carried out, they would withdraw pending drug charges against Mr Zizza.
In considering whether the matter is capable of conveying imputations (b) and (d) in the alternative, however, I must of course bear in mind the caution given in the joint judgment in Favell , and in particular I must consider what the ordinary person, and not a lawyer, might understand by the words used. As acknowledged by Mr Dawson, the verb "to conspire" has its etymology in the Latin words for "breathing together". Understood in that sense it conveys a sense of people drawing close together and privately discussing or planning or plotting an event. In my view, the words set out at page 192 of the book are plainly capable of conveying to the ordinary reasonable reader that corrupt police, together with Mr Zizza, planned or plotted the murder of Mr Bayeh.
I do not think I should have resort to the technicalities of the principles as to what would amount at law to a conspiracy, or indeed the technicalities of accessory liability to murder. In my view, the tone and the sense of the words at page 192 are capable of being understood by the ordinary reasonable reader as conveying the meaning that Mr Zizza had conspired with corrupt police to murder Mr Bayeh.
In those circumstances, and noting that there was not otherwise an objection to the form of the imputations, the only ruling I need give is that each of imputations (b), (d) and (e) may go to the jury.
I order the defendants to pay the plaintiff's costs of the application.
(Short Minutes of Order handed up)
I make orders 1 to 4 including 4A in the short minutes of order handed up by Mr Dawson. I grant liberty to the parties to apply on three days' notice. I will initial those orders, date them and place them with the papers.
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Decision last updated: 24 June 2011
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