Channel Seven Adelaide Pty Ltd v S, DJ - [2007] SASC 117

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
CHANNEL SEVEN ADELAIDE PTY LTD v S, DJ
[2007] SASC 117
Judgment of The Full Court
(The Honourable Justice Perry, The Honourable Justice Duggan and The Honourable Justice David)
4 April 2007
DEFAMATION - ACTIONS FOR DEFAMATION - PARTICULARS - OF STATEMENT OF DEFENCE OR PLEA - JUSTIFICATION
Action for alleged libellous statements in television broadcast in which the plaintiff/respondent was named as a suspect in a murder case - appeal from interlocutory order of Master striking out defence plea of particulars of justification - held that particulars properly struck out on the ground that they set out the nature and outcome of police investigations, whereas justification must be based on objective and direct evidence of actions or statements by the defendant/appellant - particulars also breached the "repetition" rule - appeal dismissed.

DEFAMATION - FAIR COMMENT - IN GENERAL - DISTINCTION BETWEEN COMMENT AND STATEMENT OF FACT
Cross-appeal by plaintiff/respondent in relation to Master's refusal to strike out defendant/appellant's plea of fair comment - discussion of distinction between comment and statement of fact - held that to say of somebody that they are a suspect in a murder case is to make a straightforward statement of fact which cannot be characterised as a statement of opinion - cross-appeal allowed.
Supreme Court Civil Rules 2006 r 280(2); Criminal Law (Forensic Procedures) Act 1988 s 19, referred to.
Lewis v Daily Telegraph Ltd [1964] AC 234; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; Whelan v John Fairfax & Sons (1988) 12 NSWLR 148; Shah and Anor v Standard Chartered Bank [1999] QB 241; Jackson v John Fairfax & Sons Ltd and Anor (1981) 1 NSWLR 36; Rakimov v Australian Broadcastng Corporation (unreported, Supreme Court of New South Wales, 25 January 2001, judgment no [2001] NSWSC 10), discussed.
S v Channel Seven Adelaide Pty Ltd and Anor (unreported, White J, 24 February 2005, judgment no [2005] SASC 182); Channel Seven Adelaide Pty Ltd and Anor v S, DJ (unreported) Full Court, 20 November 2006, judgment no [2006] SASC 10); S, DJ v Channel Seven Adelaide Pty Ltd and Anor (unreported), Full Court, 8 March 2007, judgment no [2007] SASC 80), considered.

CHANNEL SEVEN ADELAIDE PTY LTD v S, DJ
[2007] SASC 117
Full Court: Perry, Duggan and David JJ

PERRY J. Corrina Marr was murdered on 4 July 1997. Despite an extensive police investigation, no-one has so far been charged with the crime.
In August 2000, Ms Patricia Draper, a member of the House of Representatives, undertook a trip abroad, described as “overseas study travel”.
The plaintiff, as at the time of institution of these proceedings in 2004, was a 34-year old professional photographer. He accompanied Ms Draper on the trip.
On Friday and Saturday 14 and 15 May 2004 Channel Seven Adelaide Pty Ltd (“Channel Seven”) broadcast on television a program described as a “promotion” for it’s Today Tonight program scheduled to go to air the following week. The promotion was in the following terms:
On Today Tonight South Australian Federal MP, her boyfriend and the business trip – disgusted that taxpayer funds have been used – the paper trail and the whistleblower – he is a suspect in a murder case.
The promotion was accompanied by pictures of Ms Draper, of the plaintiff and of Corrina Marr.
The statement of claim alleges that the fact of Corrina Marr’s murder would have been known to a large number of South Australians; that her picture would have been identified by a large number of South Australians; and that the plaintiff would have been identified by a large but unidentifiable number of persons who saw the broadcast.
On Sunday 16 May 2004, Ms Draper obtained an injunction in the District Court preventing Channel Seven from broadcasting the program which was the subject of the promotion. The injunction is still in force.
In the present proceedings, the plaintiff claims that publication of the promotion by Channel Seven defamed him. He claims against Channel Seven damages for libel.
The proceedings include a separate claim against the defendant the Australian Broadcasting Commission, but that is not relevant to this appeal.
Various arguments have been raised as to the pleadings. Several judgments of the court, including the Full Court, have been delivered dealing with those arguments.[1]
[1] See, for example, S v Channel Seven Adelaide Pty Ltd and Anor (unreported, White J, 24 February 2005, judgment no [2005] SASC 182), Channel Seven Adelaide Pty Ltd and Anor v S, DJ (unreported, Full Court, 20 November 2006, judgment no [2006] SASC 10), S, DJ v Channel Seven Adelaide Pty Ltd and Anor (unreported, Full Court, 8 March 2007, judgment no [2007] SASC 80).
This appeal concerns contentions which have arisen as to the terms of Channel Seven’s defence.
The plaintiff contends that particulars given in support of pleas of justification and fair comment should be struck out, as should additional pleas of justification and fair comment based on alternative alleged meanings of the impugned publication.
A Master granted almost all of the orders sought by the plaintiff, as a result of which the particulars of the plea of justification were struck from the defence.
However, the Master did not accede to the plaintiff’s request to strike out a plea advanced by the defendant of fair comment on a matter of public interest.
The plaintiff appeals against the orders made by the Master, save for the last-mentioned order, against which Channel Seven cross-appeals.
A Judge referred the appeal and cross-appeal to the Full Court. The reference to the Full Court was made under r 280(2) of the Supreme Court Civil Rules 2006.
The relevant paragraph of the statement of claim in its present form reads:
The natural and ordinary meaning of the promotion is:
(a)the plaintiff is a suspect in a murder case arising from the death of Corrina Marr,
(b)there are grounds to so suspect him, which are reasonable.
Mr Houghton QC for the defendant conceded, as is alleged by the plaintiff, that the meaning embodied in that plea is a composite meaning, and that for the defendant to establish justification it must establish both the fact that the plaintiff is a suspect and that there are reasonable grounds for the suspicion.
The defendant’s plea as to justification appears in par 7.2 of the defence.
The first few sub-paragraphs allege that the South Australian Police (“the police”) commenced an investigation into Corrina Marr’s death, and that during the course of the investigation a number of matters emerged. Those matters are then pleaded in the following terms:
7.2.1.4the police obtained evidence from a forensic pathologist that Corrina Marr died as a result of gun shot wounds between about 2.30 pm and 3.30 pm on Friday 4 July 1997;
7.2.1.5the police interviewed three witnesses (one of whom was unknown to the other two) who stated that the plaintiff had been involved in a sexual relationship with Corrina Marr;
7.2.1.6as a result of those interviews the police did not discount the possibility that the plaintiff had a motive for the murder of Corrina Marr in that she had broken off a sexual relationship with him;
7.2.1.7the police were contacted by a person who stated that he or she had heard the plaintiff say that he had contacted Corrina Marr by telephone on the day of her death;
7.2.1.8the police took statements from two witnesses who stated that:
7.2.1.8.1the respondent was not in the dark room at his place of work on the afternoon of the death of Corrina Marr until some time between 3.30 pm and 4.00 pm;
7.2.1.8.2the plaintiff could not be found at his workplace early on the afternoon of the death of Corrina Marr and the plaintiff’s car was missing from his workplace on that afternoon;
7.2.1.9the plaintiff was interviewed by SA Police in respect of the Corrina Marr murder in August 1997 and in the course of the said interview, the plaintiff:
7.2.1.9.1denied ever having a sexual relationship with Corrina Marr;
7.2.1.9.2said that he had last spoken to Corrina Marr several days before her death; and
7.2.1.9.3said that on the afternoon of Corrina Marr’s death, he was present at the offices of Messenger Press;
7.2.1.10the plaintiff was interviewed by SA Police in respect of the Corrina Marr murder in October 2002 and in the course of the said interview, the plaintiff:
7.2.1.10.1denied ever having a sexual relationship with Corrina Marr;
7.2.1.10.2could not give a response that was satisfactory to SA Police to an allegation that he was not at the offices of Messenger Press on the afternoon of the death of Corrina Marr;
7.2.1.11as a result of the conflicting content of the interviews referred to in paragraphs 7.2.1.5, 7.2.1.7, 7.2.1.8m 7.2.1.9 and 7.2.1.10 herein the police did not discount the possibility that the plaintiff was not truthful in his responses to questions put to him by the police and that a possible motive for untruthfulness was his involvement in the death of Corrina Marr;
7.2.1.12on 2 March 2004, the Adelaide Magistrates Court heard an application under the Criminal Law (Forensic Procedures) Act 1988 (SA) and determined that the plaintiff was a suspect on reasonable grounds of involvement in the murder of Corrina Marr;
7.2.1.13on 2 March 2004, the police obtained evidence that the DNA and fingerprint samples taken from the plaintiff did not match DNA and fingerprint samples taken from the murder scene and concluded that the said evidence was not exculpatory of the plaintiff and did not justify discounting him as a suspect;
7.2.1.14as at the date of publication complained of, the police had obtained no information or evidence to justify discounting the plaintiff as a suspect;
Channel Seven goes on to allege that by reason of the matters referred to in that passage of pleading, the plaintiff was at the time of the broadcast of the promotion “a suspect in the murder case arising from the death of Corrina Marr”; that there were grounds to so suspect the plaintiff which were reasonable; and that the standard of reasonableness was that of an ordinary and reasonable member of the police charged with the duty of exhaustively investigating the death.
Channel Seven then sets out a statement of the alleged duties of the police to investigate, obtain statements and so on.
Put shortly, the reasons adopted by the Master in striking out that pleading were that where an allegation is made that the plaintiff is suspected of having committed a criminal offence, justification must focus on the conduct of the plaintiff and not on the conduct and beliefs of others. To advance the plea, as it were, vicariously in the manner in which the plea in question was put forward, not only breaches that rule, but also what is described as the “repetition” rule.
To understand the argument, it is necessary to have regard to a number of authorities.
A convenient starting point is the speech of Lord Devlin in Lewis v Daily Telegraph Ltd.[2] His Lordship was there dealing with the meanings which should be attributed to a statement that a person is the subject of a police inquiry into the commission of a criminal offence. The case is authority for the proposition that such a statement might mean:
·that there were grounds for the inquiry;
·that there was a reasonable suspicion in respect of the person’s guilt;
·that the person the subject of the statement was actually guilty of the criminal offence.
[2] [1964] AC 234 at 282.
As it was put by Lord Devlin:
I do not mean that ingenuity should be expended in devising and setting out different shades of meaning. Distinct meanings are what should be pleaded; and a reasonable test of distinctness would be whether the justification would be substantially different. In the present case, for example, there could have been three different categories of justification – proof of the fact of an inquiry, proof of reasonable grounds for it, and proof of guilt.
Although some of the authorities go so far as to suggest that a statement that a person is suspected of a crime necessarily conveys that there are reasonable grounds for the suspicion,[3] a statement of suspicion is at least “capable of suggesting that the suspicion is warranted”.[4]
[3] See Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 per Mason J as 301.
[4] See Channel Seven Adelaide P/L & Anor v S, DJ (unreported, Full Court, 20 January 2006, judgment no [2006] SASC 10) per Debelle J at [23] citing Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 160.
However, the point is of no relevance in this matter, in that, as I have pointed out, Mr Houghton QC for Channel Seven has conceded that in order to justify the alleged libel, given the composite manner in which the innuendo is pleaded, it is necessary for Channel Seven to establish that the plaintiff is a suspect and that there are reasonable grounds for the suspicion.
The main issue raised in the case is a further question, namely whether in a case such as this, the reasonable grounds for suspicion must arise from the objective conduct of the plaintiff. Effectively, the Master whose decision is under appeal, held that the particulars did not focus on the conduct of the plaintiff, (contrary to what has been described as the “conduct rule”) but rather on the police investigations, including information obtained in those investigations and the views formed by the police. He held that that was not enough to make out a plea of justification.
Clearly, when one looks at the particulars, that they focus in the main on the police investigations rather than the plaintiff’s conduct, is certainly so.
For example, particular 7.2.1.4 simply refers to evidence obtained by the police from a forensic pathologist; 7.2.1.5 states hearsay evidence obtained by the police from interviewing three witnesses; 7.2.1.6 states a view formed by the police, having regard to the nature of their investigations; 7.2.1.7 repeats hearsay evidence from a witness who said that he had contacted Corrina Marr on the day of her death.
Other particulars refer to what was stated by the plaintiff in interviews with the police and opinions formed by the police as to his truthfulness and a possible motive on his part to be involved in Corrina Marr’s death.
Particular 7.2.1.12 refers to the outcome of an application in the Adelaide Magistrates Court for an order under the Criminal Law (Forensic Procedures) Act 1988.
If there is what has been described as a “conduct” rule, the particulars given would not satisfy it.
Channel Seven, through its counsel, contends that the so-called conduct rule is not a rule at all, but only a “general guideline”.[5] I would agree with that proposition to the extent that regard may be had in some cases to circumstantial evidence and background facts which may not flow directly from conduct on the part of the plaintiff.
[5] Appellant’s outline of argument, par 10.
In Shah and Anor v Standard Chartered Bank[6] Hirst LJ said:
For these reasons I consider Mr Browne’s submission is correct, and that it is an essential requisite of a defence of justification of reasonable suspicion that it should focus on some conduct on the plaintiff’s part giving rise to reasonable suspicion.
I choose the word “focus” advisedly, in order to avoid any implication that such a defence must be exclusively confined to allegations of such conduct. Clearly it will be necessary, particularly in a complicated case like the present, for the defendant to portray in some detail the relevant background, and also to set out material which connects together the main facts relied upon. (emphasis added)
[6] [1999] QB 241 per Hirst LJ at 261.
In Chase v Newsgroup Newspapers,[7] Lord Justice Brook observed:
[50]I would accept, however, Mr Spearman’s further submission that the language used by the members of this Court in Shah should not be treated as if they were the words of a statute. There may be cases, of which this is unquestionably not one, in which, depending on the terms of its publication, a defendant may rely on matters which do not directly focus on some conduct on the plaintiff’s part giving rise to a relevant suspicion.
[51]A defendant may, for example, rely on strong circumstantial evidence implicating the claimant which might amount, objectively speaking, to the requisite grounds for reasonable suspicion. It is not, however, necessary to explore this possibility on the present appeal.
[7] [2003] EMLR 218 at [50]-[51]].
In Jackson v John Fairfax & Sons Ltd and Anor,[8] Hunt J observed:
It is conceded by the defendants (and properly so, in my view) that the assertion, for example, that the plaintiff was suspected of conspiracy to cheat and defraud necessarily implies that he had so conducted himself as to have warranted that suspicion. But the defendants say that proof that the plaintiff’s guilt had earlier been so suspected or believed by the police or the Corporate Affairs Commission and that he had earlier been charged with such an offence would necessarily carry with it proof that the plaintiff’s conduct had warranted such reactions at that earlier time.
The mere fact that the plaintiff had been charged with such an offence, however, does not and cannot of itself justify the imputation made by the statement that he had been so charged.[9]
[8] (1981) 1 NSWLR 36 per Hunt J at 41.
[9] Citing Lang v Australian Consolidated Press Ltd [1970] 2 NSWLR 408 at 415, and see the decision of the Full Court in this action, Channel Seven Adelaide P/L & Anor v S, DJ (unreported Full Court, 20 January 2006, judgment no [2006] SASC 10) per Debelle J at [23].
Counsel for Channel Seven also referred to the decision of Levine J in Rakimov v Australian Broadcasting Corporation.[10] He suggested that in that case Levine J took a more lenient view of the “conduct” rule. However, in my view, the case was correctly distinguished by the Master on the ground that it was a decision that concerned the question of what the impugned words were capable of meaning, as opposed to the adequacy of the particulars to support a plea of justification in that case.
[10] (Unreported, Supreme Court of New South Wales, 25 January 2001, judgment no [2001] NSWSC 10).
I accept that it may be pitching the matter too high to suggest that the so-called “conduct rule” is a rule as opposed to a principle to be brought to bear in an appropriate case. It seems to me, however, that it identifies an approach which has long been adhered to, for good reason, and that there is no reason to depart from it, as an approach to be adopted, now.
It seems to me right in principle that the defence of justification should proceed on an objective view of the facts which are offered in support of the plea, and if the plea is in response to an accusation that a person is under suspicion, what has been held to be the necessary implication that the plaintiff has been guilty of conduct giving rise to the suspicion can only properly be proved by objective evidence of conduct on the part of the plaintiff, rather than by evidence of what others might have said or observed.
Another aspect of the matter is that if it were to be otherwise, there would be a clear breach of the “repetition” rule.
A claim that the plaintiff has been defamed can never be answered by an assertion that the defendant is only repeating what others have said. The authorities on this topic are amply canvassed in the decisions of the Full Court in this case, to which reference has already been made, and no useful purpose would be served by repeating them here.
Pleading alternative meanings

The Master appealed from also dealt with arguments relating to par 8-par 11 (inclusive) of the defence. Those paragraphs plead an alternative meaning as to which defences of justification and fair comment on a matter of public interest are advanced.
The Master struck out those paragraphs, and there is no appeal from that decision.
The plea of fair comment
In its defence, the defendant pleads that the publication constituted fair comment on a matter of public interest. The defence is raised in par 7.2.2:
The promotion in that meaning constituted fair comment on a matter of public interest.
Channel Seven then goes on to set out what it alleges to be particulars of public interest, and separately, particulars of facts upon which the comment is based.
The words “that meaning” in 7.2.2 track back to the meaning alleged in the defence to which the plea of justification was directed. That was the meaning alleged in par 7, namely:
(a)the plaintiff is a suspect in a murder case arising from the death of Corrina Marr; and
(b)there are grounds to so suspect him, which are reasonable.
The defendant then goes on to plead in 7.2.2.1 and 7.2.2.2 alleged particulars of public interest.
In the first of those sub-paragraphs Channel Seven repeats the matters pleaded in par 7.2.1.1 to par 7.2.1.14 of the defence, which are the particulars of justification which the Master ordered to be struck out of the defence and with which order I agree.
The next sub-paragraph alleges by way of particulars of public interest:
The death of Corrina Marr and the investigation into her murder being a subject of substantial and ongoing publicity and media reporting and public comment and discussion.
I think that it is at least arguable that the pleaded particulars are adequate to identify a matter of public interest. Of course, a number of the sub-paragraphs referred to have been struck out. But the fact that the death of Corrina Marr and the police investigation into the circumstances of her death are matters of public interest do not depend upon whether the impugned particulars stay in or go out of the defence. The Corrina Marr murder was a matter of public notoriety and its investigation was a matter of public interest irrespective of the matters pleaded.
The plea by Channel Seven of the “facts upon which comment is based” is more difficult to deal with.
In par 7.2.2.3, Channel Seven repeats a reference to the matters pleaded. In par 7.2.1.1 to 7.2.1.17 of the amended defence, which are the pleas which deal with all of the circumstances of the inquiry and the material turned up by the police during the course of the investigation, Channel Seven goes on to refer to an affidavit sworn by an officer of the Major Crime Investigation Branch deposing to the fact that the plaintiff is suspected of the murder of Corrina Joanne Marr, that the investigation has been going on for some years, and that the plaintiff remained a suspect.
Further, it is alleged that there was a media release published in March 2004 by the police stating that the plaintiff would remain a suspect until the matter was cleared up, and that up until the time of the broadcast of the promotion there had been no suggestion by the police that the plaintiff was no longer considered a suspect.
In my opinion, the plea as to the facts upon which the comment is based is excessive and identifies facts far beyond those which could be accepted as a proper basis for the comment:
Proper material for comment is the factual material or other material upon which the comment is based. The material must be stated expressly or impliedly in the publication complained of or must constitute a matter of contemporary history or general notoriety and thus in one way or another must be made known to the persons to whom the publication was made. A statement could not reasonably be understood as comment if the statement could not possibly be an opinion based on the indicated material.
It is necessary for the publisher to identify the facts upon which the comment is made, that is, that the reader should be in a position to judge for himself or herself how far the comment or criticism about the plaintiff was well founded by those facts (not to judge whether the opinion itself is well founded); …[11]
[11] George P, Defamation Law in Australia (LexisNexis Butterworths) (2006) at 341.
In a case there referred to, Sims v Wran,[12] Hunt J put it in this way:
Material is proper material for comment in accordance with the common law; … At common law … a statement may be defended as comment only if the material upon which that comment is based was stated expressly or impliedly in the matter complained of or constituted a matter of contemporary history or general notoriety and thus, in one way or another, was made known to the person to whom the publication was made to enable those persons to judge for themselves whether they agree with the opinion published by the defendant and based upon that material: Myerson v Smith’s Weekly Publishing Co Ltd,[13] Goldsbrough v John Fairfax & Sons Ltd,[14] Kemsley v Foot[15] and Orr v Isles.[16]
[12] [1984] 1 NSWLR 317 at 322.
[13] (1923) 24 SR (NSW) 20 at 27; 41 WN 5 at 7.
[14] (1934) 34 SR (NSW) 524 at 531, 532; 51 WN 178.
[15] [1952] AC 345 at 356.
[16] (1965) 83 WN (Pt 1) (NSW) 303 at 321, 329, 330.
Public performances, such as of a dramatic production or a game of sport, may be a proper source of material upon which a comment can be based, as the public may be taken to know the facts or may establish them by seeing the performance themselves.
But as I have said, the matters pleaded in this case as material upon which the comment was based extend far beyond what an ordinary viewer of the broadcast could possibly be aware of.
Although Pervan v North Queensland Newspaper Co Ltd[17] turns substantially upon the construction of various sections of the relevant statutory provisions applicable in Queensland, the following statement of principle remains true as identifying the common law principle:
… the facts may not be stated in the defamatory publication. Nevertheless, the excuse which the subsection affords the publication of a defamatory fair comment is not lost by the absence of a statement of the facts on which the comment is based provided the jury is satisfied that the facts on which the comment is based are sufficiently indicated or notorious to enable persons to whom the defamatory matter is published to judge for themselves how far the opinion expressed in the comment is well founded.[18]
… the reader must be able to judge for himself or herself whether it is fair.
[17] (1992-1993) 178 CLR 309 at 327.
[18] Citing Kemsley v Foot [1952] AC at 356.
To the same effect is the observation by Sugerman JA in Uren v Australian Consolidated Press Ltd[19] when he said:
It is of the essence of comment that it should be comment upon facts. These may be, but need not necessarily be, stated in the matter sued upon; it is sufficient that the facts upon which the comment is made should be notorious or sufficiently indicated … But a substratum of fact there must be. If a matter is to be classified as comment the reader must be put into a position in which he is enabled to judge for himself whether the comment is well founded …
[19] (1968-1970) 71 SR (NSW) 29 at 42.
It remains to deal with the question whether the impugned words are arguably capable of being regarded as statements of opinion as opposed to statements of fact.
In dealing with the application by the plaintiff to strike out the defendant’s plea of fair comment, the Master made the following observations:
[56]Mr Doyle submitted that it was at least arguable that the statement “he is a suspect in a murder case” should be characterised as comment for the purposes of the defence of fair comment because the imputation contended for by the plaintiff included the implied meaning that there were grounds for the suspicion which were reasonable. In those circumstances, Mr Doyle submitted that the defendant should not be confined to the words themselves in making out a defence of comment. The defendant should be able to rely upon an implied comment arising from the imputation of reasonableness contended for by the plaintiff.
[57]As to the submission of the plaintiff that the facts upon which the comments were not set out or referred to in the impugned statement, Mr Doyle submitted that it was sufficient that the relevant subject matter was identified. He relied upon Pervan v North Queensland Newspaper Company Limited[20] and Kemsley v Foote [sic].[21]
[58]Given that my function in this application is to determine whether or not an arguable point arises out of the pleading the subject of the strike out application, I consider that both points made by Mr Doyle are arguable and that accordingly the defence of fair comment ought to be allowed to stand.
[20] (1993) 178 CLR 309 at 336-340 (per McHugh J).
[21] [1952] AC 345 at 345-362.
It is axiomatic that to qualify for the protection afforded by the defence of fair comment what is said:
… must be expression of opinion and not allegation of fact. Fair comment cannot be made a cloak for defamatory misstatements of fact. Moreover it must be clear that the defamatory criticism is by way of expression of opinion upon the facts and does not purport to state the facts.[22]
[22] Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175 per King CJ at 191.
In yielding to the submission put by Mr Doyle in the passage which I have just quoted, in my view, the Master erred.
The mere fact that the imputation contended for by the plaintiff included an implied meaning that “there are grounds to so suspect [the plaintiff] which are reasonable” does not necessarily entitle the defendant to go outside the words it has used and characterise them as comment.
To say of somebody that they are a suspect in a murder case is to make a straightforward statement of fact. An athletic attempt such as that mounted by Channel Seven to convert it into a “comment” rather than a statement of fact simply because it is accompanied by the suggestion that there are grounds for the suspicion which are reasonable, is not a sound process of reasoning in this context, and is not reasonably arguable.
Conclusion
I would dismiss the appeal by Channel Seven. I would allow the plaintiff’s cross-appeal and substitute for the order of the Master an order that the plea by Channel Seven advanced in par 7.2.2 be struck out.
DUGGAN J. I agree with the orders proposed by Perry J. I also agree with the reasons he has prepared.
DAVID J. I agree with the orders of Perry J and with his reasons.