Channel Seven Adelaide Pty Ltd v S, DJ
[2006] SASC 10
•20 January 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
CHANNEL SEVEN ADELAIDE P/L & ANOR v S, DJ
Judgment of The Full Court
(The Honourable Justice Debelle, The Honourable Justice Gray and The Honourable Justice Anderson)
20 January 2006
DEFAMATION - STATEMENTS AMOUNTING TO DEFAMATION - PARTICULAR STATEMENTS - IMPUTATION
Defamation – action for defamation – natural and ordinary meaning – publication by radio, television and internet – meaning of report that plaintiff is a murder suspect – whether meaning plaintiff suspected on reasonable grounds – relevant principles – held, reports capable of bearing meaning plaintiff suspected on reasonable grounds – appeal dismissed.
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; Bennett v News Group Newspapers Ltd [2002] EMLR 39; Brown v Australian Broadcasting Corporation (unreported, Supreme Court of NSW, 4 May 1987, Hunt J); Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Corse v Robinson (unreported, Supreme Court of WA (Full Court), 8 December 1997); Farquhar v Bottom [1980] 2 NSWLR 380; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; 79 ALJR 1716; Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6; Hadzel v De Waldorf (1970) 16 FLR 174; Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36; Jameel v The Wall Street Journal Europe SprL [2003] EWCA Civ 1694; Jones v Skelton [1963] 1 WLR 1362; Lewis v Daily Telegraph Ltd [1964] AC 234; Lim v TVW Enterprises Ltd [2002] WASC 214; Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632; Morgan v Oldham's Press Ltd [1971] 1 WLR 1239; Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418; National Mutual Life Association of Australasia Ltd v GTV Corporation [1989] VR 747; Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10; Random House v Abbott (1999) 167 ALR 224; Ronci v Nationwide News Pty Ltd [2001] WASC 239; Stern v Piper [1997] QB 123; Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148, considered.
WORDS AND PHRASES CONSIDERED/DEFINED
"suspect"
CHANNEL SEVEN ADELAIDE P/L & ANOR v S, DJ
[2006] SASC 10Full Court: Debelle, Gray and Anderson JJ
DEBELLE J. The question in this appeal is whether words to the effect that the plaintiff is a suspect in a murder case are capable of bearing the meaning that there are grounds to suspect him of that crime which are reasonable.
The words complained of were published in separate publications by the first and second defendants who are the appellants. For convenience, I will refer to the parties as the plaintiff, to the first defendant as “Channel Seven” and to the second defendant as the “ABC”.
I take the following summary of the circumstances in which the words complained of were published from the reasons of White J. The facts are not in dispute. On Friday and Saturday, 14 and 15 May 2004, Channel Seven broadcast a promotion for its Today Tonight program in the following week in these terms:
On Today Tonight South Australian Federal MP, her boyfriend and the business trip – disgusted that tax payer funds have been used – the paper trail and the whistle blower – he is a suspect in a murder case.
The promotion included pictures of Patricia Draper, a South Australian Member of the Commonwealth Parliament, of the plaintiff and of a woman called Corrinna Marr.
Corrinna Marr was murdered in South Australia on 4 July 1997. The amended Statement of Claim alleges that the fact that she was murdered is 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 promotions.
On Sunday, 16 May 2004, Ms Draper obtained an interim injunction from a District Court judge preventing Channel Seven from broadcasting the program which had been the subject of the promotion. On Wednesday, 19 May 2004, there were two hearings before the District Court judge during which Channel Seven sought an order revoking this injunction.
In a number of its regular radio news broadcasts on Wednesday, 19 May 2004, the ABC reported the proceedings in the District Court including an application by Channel Seven that the injunction be revoked. The principal focus of each report was the court’s prohibition of Channel Seven reporting that Ms Draper had travelled overseas with the plaintiff at taxpayers’ expense. The plaintiff’s complaint stems from the fact that in the course of each report, the ABC reported an expression of concern by the District Court judge about Channel Seven having mentioned in the promotions that the plaintiff was a murder suspect. The language used in each report varied but one example is sufficient to identify the basis of the plaintiff’s claim. In its 2.00 pm news bulletin the ABC said:
[the judge] said that he would not have imposed an injunction if the story was just about a travel rort. He said he was concerned Channel Seven referred to S as a murder suspect.
In addition, in an article on its website on Wednesday, 19 May 2004, the ABC reported the statement by the District Court judge that he was concerned that Channel Seven had referred to the plaintiff as a murder suspect.
In some of the ABC bulletins it was said that the concern of the judge was that the plaintiff “had been” a murder suspect, that is to say, the past tense was used. It was not submitted that the difference in the tenses used had any significance on the present appeal.
In this action the plaintiff sues both Channel Seven and the ABC for damages alleging that each had defamed him in the separate publications. In his Statement of Claim the plaintiff pleads the promotion by Channel Seven and continues
5.Corrinna Marr was murdered in South Australia on 4 July 1997. The fact that Corrinna Marr was murdered is known to a large but unidentifiable number of persons in South Australia. The picture of Corrinna Marr would have been identified by a large and unidentifiable number of persons in South Australia.
6.The plaintiff would have been identified by a large but unidentifiable number of persons who viewed the promotion.
7.The natural and ordinary meaning of the promotion is:
a) the plaintiff is a suspect in a murder case arising from the death of Corrinna Marr, and
b) there are grounds to so suspect him, which are reasonable.
8.On Wednesday 19 May 2004 the second defendant broadcast by radio in South Australia on its news at 2.00 pm on stations ABC Local Radio, ABC News Radio and ABC Radio National the words which are annexed hereto and marked “B” hereinafter called “the 2.00 pm Words” and on its news at 3.00 pm on stations ABC Local Radio, ABC News Radio and ABC Radio National the words which are annexed hereto and marked “C” hereinafter called “the 3.00 pm Words” and on its news at 4.00 pm on stations ABC Local Radio, ABC News Radio and ABC Radio National the words which are annexed hereto and marked “D” hereinafter called “the 4.00 pm Words”.
9.The second defendant also posted the Article which is annexed hereto and marked “A” hereinafter called “The Article” on its website on the 19 May 2004.
10.The 2.00 pm Words, the 3.00 pm Words, the 4.00 pm Words and the Article were heard and or read by a large and unidentifiable number of persons.
11.The natural and ordinary meaning of the 2.00 pm Words, the 3.00 pm Words, the 4.00 pm Words and the Article are:
a) the plaintiff is and was a person suspected of murder, and
b) there are grounds to so suspect him which are reasonable.
The issue in this appeal is whether the words used in the Channel Seven promotion and in the ABC News articles are capable of bearing the meaning pleaded in paras 7(b) and 11(b) of the Statement of Claim. Channel Seven does not complain of the plea in para 7(a) and the ABC does not complain of the plea in para 11(a). The only issue is whether the natural and ordinary meaning of the words used in the Channel Seven promotion and in the ABC News articles is that there are grounds to suspect the plaintiff of the crime of murder which are reasonable. Neither appellant argued the question whether the words were capable of a defamatory meaning.
Nothing is to be gained by examining the procedural issues which led to this appeal. It is sufficient to note that White J held that the words complained of were capable of bearing the meanings alleged in paras 7(b) and 11(b).
It is desirable for the plaintiff to plead the defamatory meaning alleged to be contained or implied by the words of which the plaintiff complains. In this respect a defamation action does not differ from any other action: Hadzel v De Waldorf (1970) 16 FLR 174 at 177. The plaintiff should give particulars of his case so that the defendant knows the case it has to meet. There is no rule which expressly requires the plaintiff to give particulars when the plaintiff simply relies on the “ordinary meaning” of the words complained of, but particulars will define the issues where the plaintiff intends to rely on the ordinary meaning of the words complained of and more than one meaning may be inferred from those words: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at [14] – [15] per Brennan CJ and McHugh J and per Gaudron and Gummow JJ at [52] – [53].
Some words do not have a precise meaning. Others have a wide connotation. In addition, as Lord Reid noted in Lewis v Daily Telegraph Ltd [1964] AC 234 at 258, while it is somewhat unnecessary to go beyond the words themselves, more often the sting is what the ordinary man will infer from the words and that is also regarded as part of their natural and ordinary meaning. This in turn leads to the further difficulty identified by Lord Reid that ordinary men and women will have different perceptions of the words used: see Lewis v Daily Telegraph Ltd at 259. So, if a plaintiff relies on the most damaging meaning or meanings, it is, generally speaking, necessary for the plaintiff to provide particulars of the meaning or meanings on which reliance will be placed: Chakravarti at [16] where Brennan CJ and McHugh J said:
As “the most damaging meaning” or meanings may be a matter in dispute, it is oftentimes necessary for a plaintiff to provide particulars of the meaning or meanings on which reliance will be placed. The necessity arises because the defendant must be able to plead not only a denial of the defamatory meaning assigned by the plaintiff but (if so advised) a plea of confession and avoidance (fair report, justification or qualified privilege). By requiring the plaintiff to plead meaning or meanings upon which the plaintiff relies, the defendant is enabled to plead a defence to the particular defamation that is alleged. Then, when the action comes to trial, the meanings assigned by the plaintiff may be needed to allow the judge to identify the issues for determination: first, whether evidence is relevant to and admissible on an issue for determination and, secondly, whether the article pleaded by the plaintiff is capable of bearing the defamatory meanings which the plaintiff has assigned and which the jury is asked to find. Unless particulars be given of the meanings on which the plaintiff intends to rely, a bare pleading of the words complained of may prejudice or be embarrassing to the defendant in pleading a denial of the defamation or a plea of confession and avoidance and may prejudice the trial judge’s ability to determine objections to evidence or to rule effectively on the meanings which may be put to, and be found by, the jury.
However, the practice of pleading some specific meaning or meanings does not alter the position at law that the judge is to decide what meanings are fairly open and leave to the finder of fact all such meanings: National Mutual Life Association of Australasia Ltd v GTV Corporation Pty Ltd [1989] VR 747 at 768, approved in Chakravarti at [55] and at [139].
The question whether the words complained of are capable of bearing a defamatory meaning is a question of law: Jones v Skelton [1963] 1 WLR 1362 at 1370 to 1371; [1964] NSWR 485 at 491; affirmed in Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 at [9]. If the words are so capable then it is a question for the finder of fact (in this State the trial judge) to decide whether the words do in fact convey a defamatory meaning: Jones v Skelton (ibid) and Favell (ibid). In this appeal, the issue is not whether the words complained of are capable of bearing a defamatory meaning but whether the words are capable of bearing the meanings pleaded in paras 7(b) and 11(b). That too is a question of law to be decided according to the principles in Jones v Skelton.
The expression “natural and ordinary meaning” as used in the law of defamation has a special and somewhat larger content than it has in the sphere of legal interpretation: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 641 per Mason and Jacobs JJ. It includes inferences and conclusions which the ordinary person draws from the words used. Lord Morris expressed the principle in these terms in Jones v Skelton at 1371:
The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the Court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.
The question is what the words would convey to the ordinary man or woman; it is not one of construction in the legal sense: per Lord Reid in Lewis v Daily Telegraph Ltd at 258. See also Lord Devlin in Lewis v Daily Telegraph Ltd at 277. It also includes what Lord Reid described in Morgan v Odham’s Press Ltd [1971] 1 WLR 1239 at 1245 as “a certain amount of loose thinking”.
The task for the court when determining the natural and ordinary meaning of the words complained of is to consider how the ordinary reasonable person, be that person a reader, listener or viewer, would understand them. As Lord Reid said in Lewis v Daily Telegraph Ltd at 260, what the ordinary man would read into the words complained of must be a matter of impression. The ordinary reasonable person has a number of attributes. I list some of them.
·The ordinary person is of fair average intelligence who is neither perverse nor morbid or suspicious of mind nor avid for scandal: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 per Hunt J at 165 and the cases there cited.
·The ordinary person does not live in an ivory tower and is not inhibited by a knowledge of the rules of construction. He or she can or does read between the lines in the light of the general knowledge and experience of human affairs: per Lord Reid in Lewis v Daily Telegraph Ltd at 258; Favell v Queensland Newspapers Pty Ltd at [10].
·Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning they would put on the words in question: per Lord Reid in Lewis v Daily Telegraph Ltd at 259.
·The ordinary person is understandably prone to engage in a certain amount of loose thinking, particularly if the article complained of is sensational: per Lord Reid in Morgan v Odham’s Press Ltd at 1245; Amalgamated Television Services Pty Ltd v Marsden at 165.
When determining meaning, the guiding principle is reasonableness: Jones v Skelton at 1377. The court will reject those meanings which are the product of some strained, or forced, or unreasonable interpretation: Jones v Skelton (ibid).
When considering the meaning which is capable of being conveyed, it is relevant also to consider the manner in which the words complained of were published. The principles were expressed in these terms by Hunt J in Amalgamated Television Services Pty Ltd v Marsden at 165:
The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed: Capital and Counties Bank Ltd v George Henty & Sons (at 744, 771); English and Scottish Co‑operative Properties Mortgage and Investment Society Ltd v Odham’s Press Ltd [1940] 1 KB 440 at 452 – 453. The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book (Morgan v Odham’s Press Ltd (at 1254, 1269)), and the less the degree of accuracy which would be expected by the reader: ibid at 1270; Steele v Mirror Newspapers Ltd (at 373). The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking: Lewis v Daily Telegraph Ltd (at 277); Morgan v Odham’s Press Ltd (at 1245); Steele v Mirror Newspapers Ltd (at 373); Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 641; Parker v John Fairfax & Sons Ltd (at 8). There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual: Lewis v Daily Telegraph Ltd [1963] 1 QB 340 at 374. The principles stated in these last two paragraphs – as encapsulated in Farquhar v Bottom (at 385 – 386) – have been adopted in this Court: see, eg, John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 at 719; Crampton v Nugawela (1996) 41 NSWLR 176.
These considerations apply to what is published in a transient form such as in a television broadcast or radio program. The ordinary reasonable listener or viewer does not have the opportunity available to the reader of a written document to consider or to re‑read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message is being conveyed: Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6 at 11; Brown v Australian Broadcasting Corporation (unreported, Supreme Court of NSW, 4 May 1987, Hunt J) at 11 and Marsden’s case per Hunt J at 166. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard or seen the whole of the relevant program, he or she may not have devoted the same degree of concentration (particularly in the case of radio) to each part of the program as would have otherwise have been given to the written article: Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 at 420; Marsden’s case per Hunt J at 166, and may have missed the significance of the existence, earlier in the program, of a qualification of a statement made later in the published material: Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413; Marsden’s case per Hunt J at 166. Thus, where the publication is transient, the trial judge will more readily leave it to the jury to decide whether an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed, than he or she would in relation to a written document: Brown v Australian Broadcasting Corporation at 12 – 13; Marsden’s case at 166. In this case the publications by both appellants were in the main of a transient nature, being a television broadcast in the case of Channel Seven and a radio program in the case of the ABC. The only exception was the article on the ABC’s website.
Returning to the issue of reasonableness, it is important to note the remarks of Hunt J in Marsden at 166 - 167:
What must be emphasised is that it is the test of reasonableness which guides any court in its function of determining whether the matter complained of is capable of conveying any of the imputations pleaded by the plaintiff. In determining what is reasonable in any case, a distinction must be drawn between what the ordinary reasonable reader, listener or viewer (drawing on his or her own knowledge and experience of human affairs) could understand from what the defendant has said in the matter complained of and the conclusion which the reader, listener or viewer could reach by taking into account his or her own belief which has been excited by what was said. It is the former approach, not the latter, which must be taken: Livingstone‑Thomas v Associated Newspapers Ltd (1969) 90 WN (Pt 1) 223 at 235; [1969] 1 NSWR 771; Mirror Newspapers Ltd v World Hosts Pty Ltd (at 641 ‑ 642); Mirror Newspapers Ltd v Harrison (at 301); Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 at 677; John Fairfax & Sons v Foord (1988) 12 NSWLR 706 at 719; Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 455. The publisher is not held responsible, for example, for an inference which the ordinary reasonable reader, listener or viewer draws from an inference already drawn from the matter complained of, because it is unreasonable for the publisher to be held so responsible: Lewis v Daily Telegraph Ltd (at 259 – 260, 274, 286); Mirror Newspapers Ltd v Harrison (at 299 ‑ 300). That is an issue which has assumed some importance in this case.
I note also what Hunt J observed at 167 as to the important difference between an implication and an inference in the law of defamation.
The noun “suspect” is not a word of precise meaning. It is capable of conveying a number of meanings according to context. A suspect is a person who is suspected of something, a person regarded with suspicion or distrust or who is an object of suspicion: Oxford English Dictionary and Macquarie Dictionary. The variety of the meanings of “suspect” is emphasised when regard is had to the meaning of the verb “to suspect”. It may include imagining something wrong or evil or undesirable in a person on slight or on no evidence, or believing something wrong or evil or undesirable in a person on insufficient proof or evidence. It also includes believing that a person has committed an act, lawful or unlawful, where the grounds for that belief may range from mere gossip through a belief on slight or insufficient proof or evidence to a belief reasonably grounded on evidence, even to a belief on strong grounds. Generally speaking, dictionaries define a suspect in the context of a person suspected of a crime as a person imagined to be guilty on insufficient or no proof: see Oxford English Dictionary and Macquarie Dictionary. With respect that is too narrow a meaning. The frequency of press reports of criminal investigation and of court proceedings have made the ordinary man and woman familiar with the fact that the grounds on which a person may be suspected of a crime may range from slight to reasonable, if not also to strong grounds, depending upon the state of the evidence. As Lord Hodson said in Lewis v Daily Telegraph Ltd at 275, a statement that a person is under suspicion of guilt implies that there are reasonable grounds for the suspicion. Recent decisions in Australia and in England re‑inforce the conclusion that in ordinary usage suspicion may be based on reasonable grounds. Those decisions include Ronci v Nationwide News Pty Ltd [2001] WASC 239 and Jameel v The Wall Street Journal Europe SprL [2003] EWCA Civ 1694.
In reaching this conclusion, I have had regard to the fact that the words complained of in this case merely asserted that the plaintiff was a suspect in a murder case without any other words to qualify that expression. In other words, I approach the issue on the footing that there was a mere assertion of suspicion unaccompanied by any words that the plaintiff had been charged or any words qualifying the nature or quality of the suspicion and accompanied by any words as to the existence or otherwise of grounds for the suspicion. In the case of Channel Seven I note also that there were no images which qualified the suspicion in any way.
I do not, therefore, accept the submissions of Channel Seven and the ABC that the word “suspect” is entirely neutral as to the quality of the suspicion. Instead, it is a word of imprecise meaning capable of conveying to different viewers or listeners different perceptions as to the quality of the suspicion, ranging from slight through reasonable to strong grounds.
It was also submitted that to conclude that a bare and unqualified statement that a person is a murder suspect means, not only that the person is suspected of the crime of murder, but also that reasonable grounds exist, is to engage in impermissible reasoning by piling inference upon inference. I do not agree. Instead, it is no more than a conclusion as to one possible basis on which the suspicion is founded.
For these reasons, one of the ordinary and reasonable meanings of “suspect” is that a person is suspected of a crime on grounds which are reasonable. Thus, the expression “he is a suspect in a murder case” is capable of meaning that there are reasonable grounds to suspect him of the crime of murder. There will be some viewers or listeners who will not distinguish between suspicion on slight or insufficient evidence and suspicion on reasonable grounds. However, that fact only serves to emphasise the range of meanings. The plaintiff has, in short, pleaded the most dangerous of the defamatory meanings and for the reasons expressed above, it is a meaning which the words used in the promotion are capable of conveying.
In Favell v Queensland Newspapers Pty Ltd at [6] the majority of the High Court approved the approach of McPherson JA in the court below. McPherson JA said:
Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.
The issue in this appeal is, at worst, from the plaintiff’s standpoint an example of a case where reasonable minds may differ on whether or not words convey a particular meaning. That is a further reason for not exercising a discretion to strike out the pleas in paras 7(b) and 11(b) of the Statement of Claim and, instead, leave the question whether the words do in fact convey a defamatory meaning to the trial judge as the finder of fact.
This conclusion is consistent with the reasoning of Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 160 where His Honour was discussing, among other things, a concession made in Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 that the assertion that a plaintiff was suspected of a crime necessarily implies that he has so conducted himself as to have warranted that suspicion. Hunt J said:
The defendants in Jackson’s case had conceded that an assertion of such a suspicion by the police necessarily implied that the plaintiff had so conducted himself as to have warranted that suspicion. (The concession is recorded at 41.) In Sergi v Australian Broadcasting Commission (at 677), Glass JA said that it was possible to accompany a statement of that suspicion with such a disavowal of its reasonableness as to leave the statement of suspicion standing without any suggestion that it was warranted. I agree that that is so, although such a line of reasoning to my mind clearly supports the proposition that a statement of such suspicion without more is at least capable of suggesting that the suspicion is warranted. I now accept that it does not necessarily convey that suggestion (as had been conceded in Jackson v John Fairfax & Sons Ltd). But it is obviously capable of conveying the suggestion that the plaintiff had so conducted himself as to have warranted that suspicion.
In Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301 – 302, Mason J (with whom Wilson J agreed) accepted that, if a charge is said to have been laid against the plaintiff, the ordinary reasonable reader may conclude that the police suspected, with reasonable cause, that he is guilty; but Gibbs CJ (at 295) and Brennan J (at 303 – 304) each preferred to reserve his opinion upon that question. That case neither confirms nor denies the proposition as I now state it – that the statement or implication that the police suspected that the plaintiff had committed a crime is capable of conveying the imputation that the plaintiff had so acted as to have warranted that suspicion.
I respectfully agree with Hunt J’s conclusion that a statement of a suspicion without more is, at least, capable of suggesting that the suspicion is warranted. The question whether it necessarily conveys that suggestion is, of course, a matter for the finder of fact. I respectfully agree also that the division of opinion in Mirror Newspapers Ltd v Harrison neither confirms nor denies the validity of that proposition.
The reasoning of Hunt J was criticised by Levine J in Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10, a criticism on which both counsel for Channel Seven and for the ABC heavily relied. In Rakhimov Levine J held that the expression “they suspect him of drug trafficking” in an article in which the word “they” was identified as being the FBI did not convey the imputation, as had been pleaded, that the plaintiff behaved in such a way as to deserve to be suspected by the FBI as drug trafficking. The decision is to be distinguished on the ground that the pleaded imputation is different from the imputation pleaded in this action. More importantly, the reasons of Levine J at [27] expressly state that there could be any number of reasons why a person might be suspected and an ordinary reasonable viewer would consider any number of bases on which the FBI harboured its suspicion of the plaintiff. That reasoning only serves to emphasise that grounds of suspicion may range from the slight to the strong, so that some of the ordinary reasonable viewers or listeners could conclude that the plaintiff was suspected of the crime of murder on reasonable grounds. The decision in Rakhimov does not assist the appellants.
The meaning of the word “suspect” has been considered in three recent decisions of the Supreme Court of Western Australia. In Corse v Robinson (unreported, Full Court of Supreme Court of WA, 8 December 1997), the Full Court had to decide whether words used in a letter gave rise to an imputation, among others, that in the past, the plaintiff had a case to answer for criminal misconduct. In the course of its reasons, the Court considered the question whether an imputation of mere suspicion was defamatory. The Court was, however, considering a different issue from the present issue which, I repeat, is only to determine what the word “suspect” is capable of meaning. This Court does not have to consider whether an allegation of mere suspicion is defamatory. Corse v Robinson was considered in Ronci v Nationwide News Pty Ltd [2001] WASC 239 and in Lim v TVW Enterprises Ltd [2002] WASC 214. Both decisions concerned defamatory statements in different terms from those in this case. The issue in this appeal did not arise. For these reasons the decisions in Western Australia do not assist the appellants. In Ronci v Nationwide News Pty Ltd Hasluck J observed:
Different interpretations can be placed upon the statements that a person has been charged with or is suspected of a crime. Such a statement might or might not carry the additional imputation that reasonable grounds exist for suspecting that the person committed the offence, or the even more damaging imputation that the charge or allegation of complicity is well founded.
I respectfully agree with those observations.
Mr Whitington QC for the ABC contended that, as the news articles published by the ABC were no more than reports of court proceedings involving Channel Seven, it was the more difficult to conclude that the words used conveyed that the suspicion was based on reasonable grounds, especially as the reports by the ABC did not in any way adopt what Channel Seven had published. I do not agree. The issue which now falls to determination is a question of law, namely, what the words are capable of meaning not what they in fact meant to the ordinary reasonable listener. Mr Whitington’s submission is directed to the question of fact for ultimate determination, not the question of law which must now be decided.
For these reasons, the words the plaintiff is a “murder suspect” are reasonably capable of having the meaning that there are reasonable grounds to suspect the plaintiff of that crime. I would dismiss the appeal of each appellant.
GRAY J.
Introduction
At issue on this appeal is the question of whether words published are capable of carrying the pleaded meaning.
Channel Seven ran promotions for an upcoming feature on its popular prime time current affairs program. The feature was promoted as an investigation into travel rorts said to have been committed by a Member of Parliament. During the promotion, the plaintiff was named as the boyfriend of the Member of Parliament. The promotion also identified the plaintiff as being suspected of the murder of Corinna Marr.
An injunction prohibiting Channel Seven from broadcasting the feature was granted in the District Court. During the course of his remarks, the District Court Judge commented that his primary concern regarding the feature was the fact that it named the plaintiff as a murder suspect. The Australian Broadcasting Corporation (ABC), in a report of the District Court proceedings, reported the Judge’s concern regarding Channel Seven’s naming of the plaintiff as a murder suspect.
The plaintiff issued proceedings against Channel Seven and the ABC, suing for damages arising out of defamation.
Channel Seven and the ABC made an application to strike out the relevant parts of the statement of claim on the ground that the words published were not capable of conveying the pleaded meaning. A Master of this Court upheld this submission and struck out that part of the statement of claim. The plaintiff appealed to a Judge of this Court, who allowed the appeal and restored the pleading. In addition, the Judge, White J, allowed what have been described as “further cosmetic amendments”.
In his reasons for judgment, White J set out in some detail the background circumstances, a description of the proceedings, a summary of the proceedings before the Master, and a summary of the principles applicable to a strike-out application.[1] These matters were not challenged on appeal. The background circumstances and the terms of the pleading have also been summarised by Debelle J in his reasons for judgment. I respectfully adopt that summary and refer to the facts only as is necessary to understand these reasons.
[1] S v Channel Seven Adelaide Pty Ltd and Australian Broadcasting Corporation [2005] SASC 182.
The Strike-Out Test
Subsequent to the publication of the decision of White J, the High Court in Favell v Queensland Newspapers Pty Ltd[2] considered the proper approach to be taken to an application to strike out parts of a statement of claim alleging a defamatory imputation. The issue before the High Court was whether the words allegedly published were capable of bearing the pleaded defamatory meanings. Gleeson CJ, McHugh, Gummow and Heydon JJ considered the test to be applied:[3]
Bearing in mind the dual nature of the application to Helman J, seeking both a striking out of certain paragraphs in the Amended Statement of Claim, and the entry of summary judgment for the respondents, on the ground that the pleading disclosed no reasonable cause of action, the question for decision was whether the material published was capable of giving rise to the defamatory imputations alleged. In the Court of Appeal, McPherson JA correctly said:
“Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.”
Kirby J agreed with the reasons of the majority on this point. In substance, White J approached the matter in accordance with the test as propounded in Favell. That is the test that is to be applied by this Court.
[2] Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 176.
[3] Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [6].
Meaning of “suspect”
The primary submission made by both Channel Seven and the ABC was that the words: “He is a suspect in a murder case” were not capable of being understood to mean: “There were grounds to so suspect [the plaintiff] which were reasonable”.
White J concluded that the words were capable of conveying that the plaintiff was on reasonable grounds a suspect of the police in the murder case arising from the death of Corinna Marr. White J observed:[4]
Given the various judicial statements to which I have referred, I do not consider that it can be held that the words published by Channel Seven are not capable, on any reasonable view, of conveying the imputation pleaded by [the plaintiff].
[4] S v Channel Seven Adelaide Pty Ltd and Australian Broadcasting Corporation [2005] SASC 182 at [35].
White J summarised the relevant principles as follows:[5]
[5] S v Channel Seven Adelaide Pty Ltd and Australian Broadcasting Corporation [2005] SASC 182 at [30]-[33]. (footnotes omitted)
The meaning of a statement that a person is suspected, or its equivalent, has been considered in a number of cases. In several, it has been held that a statement that someone is suspected of something does imply that there are reasonable grounds for the suspicion. In Lewis v Daily Telegraph, Lord Hodson said:
It may be defamatory to say that someone is suspected of an offence, but it does not carry with it that that person has committed the offence, for this must surely offend against the ideas of justice which reasonable persons are supposed to entertain. If one repeats a rumour one adds one’s own authority to it and implies that it is well founded. That is to say, that it is true. It is otherwise when one says or implies that a person is under suspicion of guilt. This does not imply that he is in fact guilty but only that there are reasonable grounds for suspicion, which is a different matter.
In the same case, Lord Devlin said:
But a statement that an enquiry is on foot may go further and may positively convey the impression that there are grounds for the enquiry, that is, that there is something to suspect. Just as a bare statement of suspicion may convey the impression that there are grounds for belief in guilt, so a bare statement of the fact of an enquiry may convey the impression that there are grounds for suspicion.
Earlier, Lord Devlin had held that a statement of suspicion, as a matter of law, does not convey an imputation of guilt. In the course of his reasoning on that topic, his Lordship said:
One always gets back to the fundamental question: what is the meaning that the words conveyed to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.
In Australia, in Whelan v John Fairfax & Sons Ltd, Hunt J held that a statement that the police suspected that the plaintiff had committed a crime was capable of conveying the imputation that the suspicion was warranted.
To these authorities should be added the observations of Lord Reid in Lewis v Daily Telegraph Ltd: [6]
Ordinary men and women have different temperaments and outlooks. Some are unusually suspicious and some are unusually naïve. One must try to envisage people between these two extremes and see what is the most damaging meaning that they would put on the words in question.
[6] Lewis v Daily Telegraph Ltd [1964] AC 234 at 259.
In Favell, the members of the High Court in the joint judgment adopted and applied the following statements from earlier authorities: [7]
[7] Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [9]-[11]. (footnotes original)
In Jones v Skelton,[8] the Privy Council said:
[8] Jones v Skelton [1964 NSWR 485 at 491.
“It is well settled that the question as to whether words which are complained of are capable of conveying a defamatory meaning is a question of law, and is therefore one calling for decision by the Court. If the words are so capable then it is a question for the jury to decide as to whether the words do, in fact, convey a defamatory meaning. In deciding whether words are capable of conveying a defamatory meaning the Court will reject those meanings which can only emerge as the product of some strained, or forced, or utterly unreasonable interpretation … The test of reasonableness guides and directs the Court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.”
In determining what reasonable persons could understand the words complained of to mean, the Court must keep in mind the statement of Lord Reid in Lewis v Daily Telegraph Ltd:[9]
“The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.”
Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd,[10] that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. That is an important reminder for judges. In words apposite to the present case, his Lordship said:[11]
“It is not … correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded.”
[9] Lewis v Daily Telegraph [1964] AC 234 at 258.
[10] Lewis v Daily Telegraph [1964] AC 234 at 277.
[11] Lewis v Daily Telegraph [1964] AC 234 at 285.
The meaning that the ordinary person will attribute to words will often be a first impression. As such, when attempting to discern the meaning conveyed by words courts should avoid subjecting text to an “over meticulous scrutiny”.[12] In Lewis v Daily Telegraph, Lord Reid observed that meaning attributed to words “must be a matter of impression”[13], and Lord Morris commented that it should not rest “upon any technical process of analysis or construction, nor upon a process of analysis or construction, nor upon a process of critical reading”.[14]
[12] Random House v Abbott (1999) 167 ALR 224 at 257.
[13] Lewis v Daily Telegraph [1964] AC 234 at 260.
[14]Lewis v Daily Telegraph [1964] AC 234 at 266. The same point is made in the interchange between Humpty Dumpty and Alice,
Where “men of reasonable intelligence may differ as to the conclusion to be drawn” as far as the capacity of the matter to carry an imputation pleaded by a plaintiff, then, as a matter of law and logic, the matter is so capable of conveying that imputation.[15]
[15] Farquhar v Bottom [1980] 2 NSWLR 380 at 386-7.
Where the publication is in “transient” form, for example, a short television or radio broadcast, the ordinary reasonable viewer can be expected to engage in a greater degree of loose thinking, and this is all the more so where a transient publication is both short and sensational.
The allegation that a person is a suspect in a murder case is clearly sensational. Great care will have to be taken by a publisher who wishes to make public such an allegation. This is especially so where the publication is not only sensational, but is itself also both transient and brief. It is appropriate to recall the observation of Lord Devlin in Lewis v Daily Telegraph:[16]
… the layman’s capacity for implication is much greater than the lawyer’s. The lawyer’s rule is that the implication must be necessary as well as reasonable. The layman reads in an implication much more freely; and unfortunately, as the law of defamation has to take into account, is especially prone to do so when it is derogatory.
[16] Lewis v Daily Telegraph [1964] AC 234 at 277. Reconfirmed in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at [11].
The principles applicable to the determination of the existence of defamation were discussed by Kirby J in Chakravarti v Advertiser Newspapers.[17] Relevant to the issue in the present case, Kirby J observed:[18]
The matter complained of should be considered in the way that a reasonable person, receiving it for the first time, would understand it according to its natural and ordinary meaning. The recipient has been variously described as a "reasonable reader", a "right‑thinking [member] of society", or an "ordinary man, not avid for scandal". Sometimes qualities of understanding have been attributed, such as the "reader of average intelligence". The point of these attempts to describe the notional recipient is to conjure up an idea of the kind of person who will receive the communication in question and in whose opinion the reputation of the person affected is said to be lowered. Special knowledge is excluded. So are extremes of suspicion and cynicism (on the one hand) or naivety and disbelief (on the other). The basic question which is posed is whether the matter complained of, understood in its natural and ordinary meaning, would tend to lower the subject in the estimate of such an evocation of the ordinary, reasonable, member of society. In practice, the tribunal of fact, judge or jury, will ask itself about its own response to the matter complained of. To a very large extent that response will be impressionistic, subjective and individual to the decision-maker. The point of the invocation of the hypothetical reasonable person is to remind decision-makers that they may, or may not, reflect the response of the average recipient of the communication and should make allowance for that possibility.
[17] Chakravarti v Advertiser Newspapers (1998) 193 CLR 519. (footnote omitted)
[18] Chakravarti v Advertiser Newspapers (1998) 193 CLR 519 at 572 [134].
White J rejected a submission put by Channel Seven and the ABC that he should follow a decision of a single Judge in Rakhimov v Australian Broadcasting Corporation.[19] White J pointed out that Rakhimov was concerned with a different question, namely whether the statement that a plaintiff was a suspect conveyed an imputation that there were aspects of the plaintiff’s own conduct which warrant that suspicion. White J took the view that in the present proceedings, a different question arose for determination, namely whether the statement that a person is suspected of something conveys an imputation that there are reasonable grounds for that suspicion.
[19] Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10.
The meaning of words may vary. The clarity of the analysis in Lewis remains persuasive four decades on. To say that a person is suspected of a crime has the capacity to convey that there are reasonable grounds for that suspicion. I agree with the conclusions reached by White J that the words are capable of conveying the imputation pleaded by the plaintiff.
The Repetition Rule
Counsel for the ABC accepted the existence and general operation of the general repetition rule. In substance, the ABC’s publications were in the following terms:
[The Judge] said that he would not have imposed an injunction if the story was just about a travel rort. He said he was concerned Channel Seven referred to [the plaintiff] as a murder suspect.
Counsel for the ABC submitted that the repetition rule has no application in certain circumstances. These circumstances occurred when a report of an allegation had been made in inter partes court proceedings, where it was clear that the report was merely repetition of the allegations made by one side to the dispute, and where the reporter does not adopt those allegations as its own. Counsel further submitted that even if the repetition rule was capable of having application to allegations made in court proceedings, it should nevertheless not apply in the present proceedings, given the ABC’s reference to the Judge’s concerns about the reference to the plaintiff as a murder suspect.
White J dealt with the repetition rule in the following terms:[20]
[Counsel for the plaintiff] relied on the so-called repetition rule. Persons who report defamatory statements made by another do themselves make a defamatory statement, even though the report of what was said by the other is factually accurate. Further, it is no defence for the defendant to prove that it was merely repeating what had been said by another. The basis for the rule was stated succinctly by the Court of Appeal in Bennett v News Group Newspapers Ltd as “repeating someone else’s libellous statement is just as bad as making the statement directly”.[21] The rule was stated more fully in Stern v Piper in the following terms:
The repetition rule … is a rule of law specifically designed to prevent a jury from deciding that a particular class of publication – a publication which conveys rumour, hearsay, allegation, repetition, call it what one will – is true or alternatively bears a lesser defamatory meaning than would attach to the original allegation itself. By definition, but for the rule, those findings would otherwise be open to the jury on the facts; why else the need for a rule of law in the first place?[22]
As I understood the [plaintiff’s] submission, even though the ABC was reporting what the Judge said, and indeed a statement of concern by the Judge about the Channel Seven promotions, it had repeated the defamatory imputation contained in those promotions. It was therefore capable of bearing the same meaning as the promotions themselves.
White J rejected the submission put by counsel for the ABC. He reasoned:[23]
I consider that there is some force in the ABC submission that the content and circumstances of its publications make a defamatory meaning in those publications less obvious. However, I am satisfied that the ABC publications are reasonably capable of conveying the imputation pleaded by the plaintiff. Despite the fact that the statement that the [plaintiff] is a suspect is prefaced by a statement of the concern of the District Court Judge, and the fact that the apparent purpose was to communicate to its listeners the reason for the imposition of the injunction, the ABC has nevertheless repeated the statement made by Channel Seven, which I have found is capable of bearing a defamatory meaning.
[20] S v Channel Seven Adelaide Pty Ltd and Australian Broadcasting Corporation [2005] SASC 182 at [55]-[56]. (footnotes original)
[21] Bennett v News Group Newspapers Ltd [2002] EMLR 39 at [20].
[22] Stern v Piper [1997] QB 123 at 135-6 (Simon Brown LJ).
[23] S v Channel Seven Adelaide Pty Ltd and Australian Broadcasting Corporation [2005] SASC 182 at [60].
In Stern v Piper,[24] the court was concerned with a publication that reported what had been said in court proceedings and in particular published allegations sworn in an affirmation in the court proceedings. In this respect, Hirst LJ observed:[25]
It is, I think, very important to appreciate the weight of authority behind the repetition rule, which was well established throughout most of the 19th century, which was given unqualified endorsement as settled law by the Privy Council in “Truth” (NZ) Ltd v Holloway [1960] 1 WLR 997, and which gained the final seal of approval from the House of Lords in Lewis v Daily Telegraph Ltd [1964] AC 234.
In the present case we are concerned with a report of statements in an affirmation, which palpably falls directly within the rule, since it is essentially hearsay.
[Counsel] seeks to escape from this difficulty by means of his “second order” theory. I am bound to say I find that theory very difficult to grasp. What, one asks, is the basis for a material distinction between the newspaper reporting what Judd said in “Truth” (NZ) Ltd v Holloway [1960] 1 WLR 997, and the “Mail on Sunday” reporting what Mr Gorman said in the present case? I can see none. Furthermore, why should the reader be more sceptical about the validity of an allegation sworn in an affirmation in court proceedings than about the validity of a village rumour? I can see no good reason, and would incline to think that it was more likely to be the other way round.
[24] Stern v Piper [1997] QB 123.
[25] Stern v Piper [1997] QB 123 at 134.
Simon Brown LJ, addressing the same topic, observed:[26]
[26] Stern v Piper [1997] QB 123 at 136.
The policy underlying and justifying the rule is that stated by Lord Reid in Lewis v Daily Telegraph Ltd [1964] AC 234, 260:
“I can well understand that if you say there is a rumour that X is guilty you can only justify it by proving that he is guilty, because repeating someone else’s libellous statement is just as bad as making the statement directly.”
In such a case as the present the justification for the rule is more obvious still. As Lord Denning said in “Truth” (NZ) Ltd v Holloway [1960] 1 WLR 997, 1003:
“if the words had not been repeated by the newspaper, the damage done by [the maker of the allegation] would be as nothing compared to the damage done by this newspaper when it repeated it. It broadcast the statement to the people at large…”
The essence of [counsel’s] argument is that the rule has no application to what he calls “second order” allegations, the reporting of allegations made in particular in the context of the administration of justice. In considering that argument, however, one must note that in this very context the strict operation of the repetition rule is tempered in two important respects: first, by the law of absolute and qualified privilege; second, by the courts’ decisions in cases such as Cadam v Beaverbrook Newspapers Ltd [1959] 1 QB 413.
In the present proceedings, at issue is the capacity of the words published to carry the meaning pleaded. For reasons earlier expressed, it is my view that the words published by the ABC do have that capacity. It will be for the trial Judge to determine whether in fact the words did carry the imputation.
Lack of Particularity
Counsel for Channel Seven made submissions in the alternative. Counsel contended that if the words were capable of carrying the pleaded meaning, further particularity was required before Channel Seven was obliged to plead. In particular, counsel submitted that there was a live issue between the parties. This issue referred to whether the alleged imputation indicates (for the purpose of the defence of justification to imputation) that the plaintiff has conducted himself in such a way as was capable of warranting the suspicion. Counsel submitted that it was incumbent on the plaintiff to specify whether such an imputation was alleged. White J addressed this submission in the following terms:[27]
My decision on this aspect is not to be understood as indicating acceptance of the submission of [counsel for the plaintiff], who appeared for the [plaintiff], that the words published by Channel Seven do mean, or in the alternative, are capable of meaning, that the [plaintiff] has engaged in conduct which is capable of warranting the suspicion. I have not had to determine that question because that is not the pleading of the [plaintiff]. As already noted, the promotions were expressed in the passive voice. They do not on their face allege any conduct of the [plaintiff]. Furthermore, the [plaintiff] himself has not pleaded an imputation to the effect that he has engaged in conduct which is capable of warranting the suspicion. If the pleading had been in that form, it would have given rise to the very issue which was considered by Levine J in Rakhimov v Australian Broadcasting Corporation to which I have referred above.
I do not wish to be understood as expressing any view at all on the question of whether a defence of justification based on reasonable grounds for suspicion must focus upon some conduct of the [plaintiff] which it is said gives rise to the suspicion. The question of whether the statement may be justified by reference to the [plaintiff’s] own conduct, or by reference to circumstances independent of the [plaintiff’s] own conduct which appear to implicate him, or by reference to information supplied to the police (whether substantiated or not), or some combination of these matters, is one which may arise later in these proceedings. I think it undesirable for me to be expressing a view about that at this stage.
[27] S v Channel Seven Adelaide Pty Ltd and Australian Broadcasting Corporation [2005] SASC 182 at [41]-[42].
It was appropriate for White J to adopt this approach. The issue before White J was the capacity of the published words to carry the pleaded meaning. It is for Channel Seven to determine whether it will plead justification and, if so, to formulate its plea in the terms considered appropriate. What may follow from such a plea and any subsequent pleadings are matters for later consideration.
Error of Fact
Counsel for Channel Seven made further complaint that White J had had regard to factual matters that were not established by the evidence before him. In particular, counsel drew attention to the following:[28]
Quite apart from authority, the circumstances of the Channel Seven promotions support the conclusion that they were reasonably capable of conveying the meaning that reasonable grounds for the suspicion of the [plaintiff] did exist. The death of Corinna Marr by murder has been a matter of great notoriety in this State. The fact of an extensive and continuing police investigation into that murder has also been a matter of notoriety. It is reasonable to suppose that many of those who saw the Channel Seven promotions would have been aware of the death and of the police investigation. In those circumstances, a statement that the [plaintiff] is a suspect in relation to the death of Corinna Marr is, in my opinion, capable of conveying to the reasonable observer the meaning that, after its intensive investigations, the police did have material on which reasonably to suspect the plaintiff of involvement in her death.
Counsel for Channel 7 submitted that the evidence before White J did not support the following interlocutory findings:
The death of Corinna Marr by murder has been a matter of great notoriety in this State. The fact of an extensive and continuing police investigation into that murder has also been a matter of notoriety.
These interlocutory findings did not form any part in the critical reasoning of White J in reaching his conclusions. Even assuming that White J had made interlocutory findings not supported by the evidence, those findings did not lead to any error in legal reasoning. Insofar as White J may have had regard to irrelevant considerations, these considerations were of no consequence. White J’s ultimate conclusions remained appropriate. In any event, the evidence justified the first of the above interlocutory findings, and by inference the second.
[28] S v Channel Seven Adelaide Pty Ltd and Australian Broadcasting Corporation [2005] SASC 182 at [39].
Conclusion
For these reasons, both appeals should be dismissed.
ANDERSON J. I have had the opportunity of reading the draft reasons of Debelle and Gray JJ. I agree that both appeals should be dismissed for the reasons given by each of their Honours.
‘When I use a word,’ Humpty Dumpty said, in a rather scornful tone, ‘it means just what I choose it to mean, neither more nor less.’
‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’
‘The question is,’ said Humpty Dumpty, ‘which is to be master – that’s all.’
12
18
0