Cheikho v Nationwide News Pty Ltd (No 5)

[2016] NSWSC 29

Supreme Court

New South Wales

• Summary available
• Amendment notes

Medium Neutral Citation:

Cheikho v Nationwide News Pty Ltd (No 5) [2016] NSWSC 29

Hearing dates:

21, 22, 24, 25, 28, 29, 30 September;1, 2, 7 October 2015.

Date of orders:

05 February 2016

Decision date:

05 February 2016

Jurisdiction:

Common Law

Before:

McCallum J

Decision:

Verdict for the plaintiff in the sum of $100,000

Catchwords:

DEFAMATION - defences - defence of qualified privilege at common law - where Commissioner of police agreed with editor of major newspaper that it would be useful to have photographs of persons involved in a protest published in the newspaper to assist police to identify those persons - whether article including photographs was published on an occasion of qualified privilege

 

DEFAMATION - damages - defamatory imputation that plaintiff as one of an angry mob took part in a riot - whether damages mitigated by truth of imputation that plaintiff participated in a violent protest - whether damages mitigated by other conduct in evidence at the trial - assessment of damages

 

DEFAMATION - defences - defence of contextual truth - whether a plaintiff's imputation proved substantially true at trial must be available to be relied upon by a defendant as a contextual imputation - where no defence of contextual truth pleaded prior to commencement of trial

  PROCEDURE - mode of trial - where defendant elected to have action for defamation tried by jury - application by plaintiff for a jury of twelve - rejection of assumption that jurors will not give Muslims a fair trial - rejection of assumption that risk of prejudice or bigotry is diluted in a larger group of jurors

Legislation Cited:

Defamation Act 1974 (NSW)
Defamation Act 2005 (NSW)
Jury Act 1977 (NSW)
Summary Offences Act 1988 (NSW)
Summary Offences Regulation 2000 (NSW)

Cases Cited:

Adam v Ward [1917] AC 309
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Andreyevich v Kosovich (1947) 47 SR (NSW) 357
Balzola v Federal Capital Press of Australia Pty Ltd [2015] NSWDC 23
Balzola v Federal Capital Press of Australia Pty Ltd (No 2) (District Court, Gibson DCJ, 27 August 2015, unreported)
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366
Besser v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157
Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474
Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369
Burstein v Times Newspapers Ltd [2001] 1 WLR 579
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] AC 1027
Cheikho v Nationwide News Pty Ltd (No 3); Haddad v Nationwide News Pty Ltd (No 3) [2015] NSWSC 146
El-Mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816
Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89
The Federal Capital Press of Australia v Balzola [2015] NSWCA 285
Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290
Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699
Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254
John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227
Joseph v Spiller [2012] EWHC 2958
Lange v Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520
McMahon v John Fairfax Publications Pty Ltd (No 6) [2012] NSWSC 224
Mizikovsky v Queensland Television Ltd [2013] QCA 68; [2014] 1 Qd R 197
O’Shaughnessy v Mirror Newspapers Ltd [1969] 1 NSWR 421
Pamplin v Express Newspapers Ltd [1988] WLR 116
Prince v Malouf [2014] NSWCA 12
Ra v Nationwide News Pty Ltd [2009] FCA 1308
Rose v Allen & Unwin Pty Ltd [2015] NSWSC 991
Toogood v Spyring (1834) 1 CR M&R 183
Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 WLR 3469
Wood v Channel Seven Sydney Pty Ltd; Wood v National News Pty Ltd [2014] NSWSC 1527

Category:

Principal judgment

Parties:

Wisam Haddad (Plaintiff)
Nationwide News Pty Ltd (Defendant)

Representation:

Counsel:
T Molomby SC with R Rasmussen (Plaintiff)
T Blackburn SC with L Barnett (Defendant)

  Solicitors:
Lighthouse Law Group Pty Ltd (Plaintiff)
Ashurst Australia Lawyers (Defendant)

File Number(s):

2013/280743

Publication restriction:

None

Judgment

1. HER HONOUR: Mr Hamza Cheikho brought proceedings for defamation in respect of four articles published in The Daily Telegraph. The case was tried with a jury commencing on 21 September 2015 and continuing over eight days. On the ninth day, the jury returned with answers to the questions posed for their determination. The effect of the jury’s answers was that, subject to one further issue (to be determined by the Court rather than the jury), Mr Cheikho was successful in respect of one of the four articles sued on.

2. The articles related to a protest in the central business district of Sydney in response to the release of a video on YouTube called "Innocence of Muslims". The video was perceived to ridicule the Prophet of Islam and was met with outrage in Muslim communities. The Sydney protest was one of a number of protests throughout the world. Some protesters in Sydney carried placards calling for the beheading of the person who made the video. During the protest, violence erupted between some protesters and police. Unsurprisingly, aspects of those events shocked the Australian community and attracted a great deal of media attention.

3. The article in respect of which Mr Cheikho was successful was the first matter complained of, an article entitled “Faces of Rage” published on the front page of the newspaper on 18 September 2012 (a Tuesday). The article occupied almost the whole of the page and consisted mainly of 15 photographs of young men who participated in the protest. The jury found that the article conveyed the single imputation specified by Mr Cheikho, “that as one of an angry mob he took part in a riot”. The jury found that that imputation was defamatory and that the newspaper had failed to establish the defence of truth.

4. As to the second matter complained of, the jury found that the article did not convey either of the two imputations specified by Mr Cheikho.

5. As to the third matter complained of, the jury found that the article conveyed one of three imputations specified by Mr Cheikho. The imputation found conveyed was “that the plaintiff helped organise a riot”. The jury found that that imputation was defamatory and that the defendant had failed to establish the defence of truth. However, the jury found that the defendant had established the defence of honest opinion in respect of that article.

6. As to the fourth matter complained of, the jury found that the article conveyed one of four imputations specified by Mr Cheikho. The imputation found conveyed was “that the plaintiff took part in a violent protest”. The jury found that that imputation was defamatory but that the defendant had established the defence of truth to that imputation. In the case of that article, the jury found that the defendant had not established the defence of honest opinion.

7. The issue which remains to be determined in respect of the newspaper’s liability for the first matter complained of is the defence of qualified privilege at common law. The question whether the article was published on an occasion of qualified privilege at common law is one for the Court, not the jury. The determination of the amount of damages (if any) to be awarded is also a task for the Court rather than the jury: see s 22(3) of the Defamation Act 2005 (NSW).

8. This judgment determines those issues. For the reasons set out below (commencing at [55]), I have determined that the defence of qualified privilege at common law pleaded in respect of the first matter complained of must fail and that Mr Cheikho should be awarded damages in the sum of $100,000.

9. This judgment also publishes my reserved reasons in respect of a number of interlocutory rulings given during the proceedings. Those matters are addressed first.

Application to have the proceedings tried with a jury of 12

10. Mr Cheikho made an interlocutory application to have the proceedings tried without a jury. The basis for the application was the contention that there is “overwhelming emotional and persistent prejudice” arising from the manner in which the events of the protest and other events involving the Muslim community have been reported in the press in Australia.

11. I refused that application: see Cheikho v Nationwide News Pty Ltd (No 3); Haddad v Nationwide News Pty Ltd (No 3) [2015] NSWSC 146. Mr Molomby SC, who appears with Mr Rasmussen for Mr Cheikho, subsequently reminded me that I had omitted to determine his alternative application that, if the proceedings were to be tried with a jury, it should be a jury of 12 persons rather than four. I also refused that application but did not at that time record my reasons for doing so.

12. Where civil proceedings are to be tried with a jury, the jury ordinarily consists of four persons: see s 20(1) of the Jury Act 1977 (NSW). The Act confers power on this Court to order that the jury shall consist of 12 persons: s 20(2) of the Act. Factors relevant to the exercise of that discretionary power have been considered in a number of decisions. In Ra v Nationwide News Pty Ltd [2009] FCA 1308, Rares J expressed the view that the status of a person as “a contentious figure or one with a prominent public role” may “cause concern about its effect on a jury of four persons”. His Honour expressed the view that such a person is “more likely to be given a dispassionate and fair trial by a jury of 12” because “a larger jury is more likely to dilute the influence of any single juror whose passions or antipathies are aroused for or against one of the parties”. Rares J noted, however, that that concern must be balanced against the recognition that jurors are presumed to obey the direction customarily given by a trial judge that they must put aside any personal feeling or prejudice (at [37]).

13. The authorities reviewed by Rares J in Ra reveal a range of approaches to that issue. His Honour noted that, in O’Shaughnessy v Mirror Newspapers Ltd [1969] 1 NSWR 421, Taylor J ordered that a jury of 12 try a defamation action brought by a well-known actor and producer who sued on a theatre review which asserted that his production of Shakespeare’s “Othello” was “dishonest”; whereas Hunt J refused Bob Hawke (before he was the Prime Minister of Australia but still at a time when he was well known) a jury of 12 in respect of the publication in a country newspaper of an allegedly defamatory letter: Hawke v Tamworth Newspaper Co Ltd [1983] 1 NSWLR 699 at 706E to 707B.

14. In Wood v Channel Seven Sydney Pty Ltd; Wood v National News Pty Ltd [2014] NSWSC 1527, I ordered that a defamation action in which the defence of truth was pleaded to an imputation that the plaintiff murdered his girlfriend be tried by a jury of 12, primarily owing to the seriousness of the issue the jury would have to determine (whether the plaintiff murdered his girlfriend).

15. The application in the present case rested on the difficult assumption that New South Wales jurors might succumb to the prejudices expressed in some media reporting of matters concerning the conduct of Muslims and might for that reason fail to bring impartial judgment to the issues in the proceedings. The application also proceeds on the assumption that those risks would be diluted by the selection of a larger group. A similar argument was put, and rejected by me, in El-Mouelhy v QSociety of Australia Inc (No 4) [2015] NSWSC 1816. In that case, I said at [45] to [46]:

45   In the absence of any specific evidence as to the position of the plaintiff, the argument reduced to the proposition that New South Wales jurors may not like Muslims and may not be able to be trusted to give them a fair hearing. Even leaving aside the obvious proposition that Muslims are potential jurors too, I reject each of those propositions.

46   The argument also proceeded on the difficult assumption that those risks are diluted by the selection of a larger group. There is some (scant) mathematical warrant for that submission in the provisions dealing with majority verdicts. If the occasion for taking a majority verdict arises, with a jury of four, the decision of three can be taken as a verdict whereas with a larger jury, the decision of eight can be taken from a jury of twelve, eleven, ten or nine (noting that there is greater scope for attrition in the case of a large civil jury, which may by the end of the trial have reduced to eight). However, the submission otherwise makes social assumptions which may not be warranted. In my view, the randomness of jury selection (and of the human condition) precludes any assumption one way or the other as to the likely diluting effect on any bigot of any number of impartial jurors.

16. I rejected the present application for substantially the same reasons.

Defendant’s application to rely on the defence of contextual truth

17. As at the date on which the trial of these proceedings commenced (21 September 2015), the defendant had pleaded a defence of truth but had not pleaded or foreshadowed reliance upon any defence of contextual truth under s 26 of the Defamation Act 2005. On 22 September 2015 (day 2 of this trial), the Court of Appeal published a judgment which prompted the defendant to make an application invoking that section: The Federal Capital Press of Australia v Balzola [2015] NSWCA 285. That was a decision refusing leave to appeal. Whilst acknowledging that the decision was accordingly not one which states any binding ratio, the defendant submitted that the Court’s reasons provide support for a narrow view as to the effect of the decision of the Court of Appeal in Besser v Kermode [2011] NSWCA 174; 81 NSWLR 157. It was submitted that, on the strength of that narrow view, the defendant should now be permitted to rely upon a defence of contextual truth under s 26 of the Defamation Act relying upon any plaintiff’s imputation found by the jury to be substantially true as a contextual imputation.

18. The defendant’s application was first notified to Mr Cheikho in written submissions dated 23 September 2015. The Court did not sit that day, owing to the illness of a juror’s child. The application was accordingly not made to the Court until the following day (T170-172). The written submissions sought “a preliminary ruling that, in principle and depending on the jury’s particular verdicts, it may at that time rely upon a defence of contextual truth based upon the “Justified Imputations” (a term defined in the submissions to mean any imputation pleaded by the plaintiff found by the jury to be substantially true).

19. I rejected the application, reserving my reasons (T393.32). These are my reasons for refusing the application.

20. The application raised the vexed question of the interaction between the defence of truth (called “justification”) under s 25 of the Defamation Act and the defence of contextual truth under s 26 of the Act.

21. Sections 25 and 26 of the Defamation Act 2005 provide:

25 Defence of justification

It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are substantially true.

26 Defence of contextual truth

It is a defence to the publication of defamatory matter if the defendant proves that:

(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations ("contextual imputations") that are substantially true, and

(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

22. The reference in s 25 to “the defamatory imputations carried by the matter of which the plaintiff complains” has been understood to refer to the defamatory imputations of which the plaintiff complains (that is, the words “of which the plaintiff complains” qualify the imputations, not the matter complained of). On that understanding, a defence of justification under s 25 is directed and confined to the imputations specified by the plaintiff in his or her pleading (to which I will refer as “the plaintiff’s imputations”).

23. For the purpose of a defence of contextual truth under s 26, a defendant must specify “other imputations”. The issue which arose for determination by the Court of Appeal in Kermode was whether the defence permits a defendant to "plead back" any or all of a plaintiff's imputations: at [15]. The Court held that it does not. Kermode is binding authority for the proposition that an imputation that has been pleaded by a plaintiff cannot be “pleaded back” by a defendant as a contextual imputation.

24. In argument in Kermode the publisher had resisted that construction of the section, noting a way in which it could operate (unfairly) to defeat the defence. Mr McHugh SC, who appeared for the publisher, argued (appeal judgment at [88]):

"... in any case where a defence of contextual truth is pleaded by a defendant, a plaintiff may defeat that defence by simply adopting the contextual imputations as imputations of which he or she complains. In doing so, a plaintiff would lose nothing, because, by pleading the imputations as contextual imputations, the defendant has signalled an intention to prove their truth. By adopting (or, put more pejoratively, 'appropriating') the contextual imputations pleaded by the defendant, the plaintiff could deprive the defendant of a defence under s 26."

25. The Court accepted that the section could operate in that way but concluded that that could not dictate the proper approach to the construction of the section.

26. Undoubtedly with gratitude to the author of that submission, Mr Balzola did just that. The defendant had pleaded a defence of contextual truth specifying a number of contextual imputations. Two survived challenge by Mr Balzola. Having been unsuccessful in his challenge to those two contextual imputations, he then sought leave to adopt them as imputations specified in his own pleading, the course acknowledged to be permissible (depending on the circumstances of the individual case) in Kermode at [88]-[89]. The District Court granted leave to Mr Balzola to adopt the contextual imputations: Balzola v Federal Capital Press of Australia Pty Ltd [2015] NSWDC 23 per Mahony DCJ.

27. Once Mr Balzola had “pleaded back” the contextual imputations as allowed by that ruling, it followed in accordance with the binding principle stated in Kermode that it was no longer open to the defendant to rely upon those imputations to sustain its defence of contextual truth. The contextual imputations were accordingly struck out of the defence: Balzola v Federal Capital Press of Australia Pty Ltd (No 2) (District Court, Gibson DCJ, 27 August 2015, unreported).

28. Federal Capital Press sought leave to appeal against each of those decisions, seeking to challenge the correctness of the decision in Kermode. In refusing leave to appeal, the Court suggested a narrow view of the ratio in Kermode which would confine it to a decision about pleadings and would not preclude the defendant, at trial, from relying on the truth of any of the plaintiff’s imputations “as ‘overwhelming’ any imputations not proved to be true”: at [25].

29. The question raised by the application for leave in Balzola is one that has vexed courts and remains unresolved. It concerns the position where, at trial, some but not all of the plaintiff’s imputations are found to be substantially true. For convenience, I will refer to plaintiff’s imputations which are proved to be substantially true as “true imputations” and plaintiff’s imputations which are not proved to be substantially true as “untrue imputations”.

30. The issue which arises in that circumstance is the role of any true imputation in the determination of the claim. If all of the plaintiff’s imputations are proved to be substantially true, there is a complete defence under s 25. In that event, there is no occasion to consider any defence under s 26. If none of the plaintiff’s imputations is found to be substantially true, there could still be a complete defence under s 26 but only if there were contextual imputations which were found to be substantially true and the “defamatory imputations” (which, on this scenario, would all be untrue) did not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

25. The debate that has arisen in the authorities concerns the proper treatment of what I will call “a split result”, that is, where some of the plaintiff’s imputations are proved to be substantially true and others are not. In that situation, a plaintiff would wish to argue that he or she was entitled to damages for the harm caused by the untrue imputations and that any true imputation could only mitigate those damages but could not be relied upon as the basis for a defence of contextual truth under s 26.

26. Conversely, a defendant would wish to argue that any true imputation could be relied upon by the defendant as a contextual imputation to sustain a defence of contextual truth under s 26 (potentially affording or supporting a complete defence to the plaintiff’s claim, resulting in a verdict for the defendant).

27. The distinction between the two positions might appear to be theoretical or illusory but it has at least one important practical implication for the trial (and must accordingly be determined by the trial judge, preferably before the case is opened to the jury). On the defendant’s view (which would allow true imputations to be adopted as contextual imputations), the impact of the true imputations in the assessment of the harm to reputation caused by the untrue imputations would be a matter for the jury (being an aspect of a defence); on the plaintiff’s view, the mitigating impact of any true imputation would be a matter going only to damages, which are determined by the judge: see s 22 of the Defamation Act 2005.

28. The contest is arguably resolved by the decision of the Court of Appeal in Kermode. As already noted, that decision is unarguably authority for the proposition that the defence of contextual truth under s 26 does not permit a defendant to “plead back” any or all of the plaintiff’s imputations. However, subsequent decisions have questioned whether the authority of Kermode is confined to a pleading point and whether it still remains open to a defendant to rely on any true imputation as a contextual imputation at trial.

29. The decision in Kermode did not expressly consider the implications of a split result at trial. The decision was concerned with a strike-out decision and is, strictly speaking, a decision about pleadings. But it is the pleadings that generally inform the course of trials. Further, the conclusion in Kermode was reached on the strength of a careful and comprehensive review of the law concerning the defences of truth available to a defendant under the common law, under the Defamation Act 1974 (NSW) and under the Defamation Act 2005. McColl JA, with whom Beazley and Giles JJA agreed, summarised the position under the 2005 Act as follows (at [86]):

In summary, a defendant seeking to justify the defamatory matter under the 2005 Act may take the following courses of action, some statutory, some based on the common law:

(a) prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true: s 25;

(b) prove that rather than the defamatory imputations pleaded by the plaintiff, the defamatory matter carries nuance imputations which are substantially true;

(c) to the extent that the defendant fails to establish all the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, rely on those proved to be true in mitigation of the plaintiff's damages: partial justification; and

(d) to the extent the defendant can not prove that the defamatory imputations carried by the defamatory matter of which the plaintiff complains are substantially true, prove that it carries contextual imputations that are substantially true, by reason of which the defamatory imputations do not further harm the reputation of the plaintiff: s 26.

36. I would understand the reference to the course of “seeking to justify the defamatory matter” to refer only to truth defences. Justice McColl plainly did not purport in that paragraph to provide an exhaustive list of all defamation defences but, with respect, I do think her Honour meant exhaustively to list the courses available by way of defence of truth or “justification” as it is called in the Defamation Act 2005: but cf Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 at [83]. For completeness, it should be noted that the proposition stated in (b) above is now qualified by the decision of the Court of Appeal in Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154.

37. The decision in Kermode has been applied by the Queensland Court of Appeal (in a context that undoubtedly endorses a broad view of the proposition for which it stands) in Mizikovsky v Queensland Television Ltd [2013] QCA 68; [2014] 1 Qd R 197. That case was concerned (among other things) with the proper direction to the jury, in the case of a split result, as to the second element of the defence of contextual truth (identified in s 26(b)). That element requires the defendant to establish that “the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations”.

38. Counsel for the defendants had in his closing address said to the jury that, in answering the question directed to that element of the defence, they were to compare the contextual imputations “with such of the plaintiff’s defamatory imputations which were not proved to be substantially true” (that is, they were to exclude from consideration in that task any plaintiff’s imputation they found to be substantially true). The trial judge directed the jury that that was an incorrect statement and “that the question for their determination was, having regard to the substantial truth of all the contextual imputations, was there any further harm done to the plaintiff’s reputation in publishing all the plaintiff’s imputations which they found conveyed and defamatory, regardless of whether or not they found some of them were true”: Mizikovsky v Queensland Television Ltd (No 3) [2011] QSC 375 at [39].

39. The Queensland Court of Appeal upheld the correctness of that direction: at [17]-[19]

40. For completeness, I should record that I had previously come to the opposite conclusion on that issue, in McMahon v John Fairfax Publications Pty Ltd (No 6) [2012] NSWSC 224. The Queensland Court of Appeal in Mizikovsky referred to one of my earlier judgments in McMahon but does not appear to have been taken to my decision in McMahon (No 6). However, as I observed in Rose v Allen & Unwin Pty Ltd [2015] NSWSC 991 at [19], the decision of the Court of Appeal in Mizikovsky nonetheless stands as authority which must be regarded as binding on that issue (that is, the issue of the proper direction to be given to the jury for the purpose of determining a defence of contextual truth under s 26 in the case of a split result: the jury must be directed to take into account all of the defamatory imputations complained of by the plaintiff including any true imputations).

41. The narrow view of the ratio in Kermode (that it may have been confined to a pleading point which did not address the use a defendant could make of a true imputation at trial) appears first to have been expressed by Basten JA in Born Brands at [82] (Meagher JA and Tobias AJA agreeing at [116] and [117] respectively). The trial judge in that case had preferred the construction of s 26 adopted by me in McMahon (No 6) to the later decision of the Queensland Court of Appeal in Mizikovsky. In Born Brands in the Court of Appeal, Basten JA observed at [80] that that was not a course which would normally be available to a trial judge dealing with national uniform legislation.

42. The defendant argued in the present case that a trial judge is entitled to depart from the decision of an intermediate appellate court on a question of construction of national uniform legislation if the trial judge is convinced that the decision is “plainly wrong”, citing the decision of the High Court in Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; 230 CLR 89. In that case, the High Court said at [135]:

Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.

43. Those words, in terms, suggest that it is open to a trial judge to depart from the decision of an intermediate appellate court in another jurisdiction if convinced that the interpretation placed on uniform national legislation by that intermediate appellate court is plainly wrong. Accepting (since the High Court says so) that that is right as a matter of strict precedent, it is a course which I would think would rarely be taken by a puisne judge. The conclusion that the intermediate appellate court of another jurisdiction is “plainly wrong” is one more appropriately reserved for an appellate court in a later case. I am fortified in that view by the remarks of Basten JA in Born Brands at [80] referred to above.

44. The defendant relied upon the decision in Born Brands for a different purpose, submitting that, enjoying the endorsement of a differently constituted bench in Balzola, it affords a proper basis for my departing from Mizikovsky. There is undoubtedly a degree of tension between Mizikovsky and the decision of the Court of Appeal in Born Brands. In Born Brands the Court said at [86]:

The reasoning in Kermode and Mizikovsky (which may not be entirely consistent with each other) appears to assume that the defences in ss 25 and 26 are to be applied sequentially and (at least in the case of Besser) in the order in which they appear in the Act. However, there is an alternative reading of the legislation, namely that the tribunal of fact must consider holistically the effect of the defamatory matter on the reputation of the plaintiff, deciding at the end of the day whether, by reference to the imputations pleaded by both plaintiff and defendant, any imputations which have not been shown to be substantially true cause any further harm to the reputation of the plaintiff once the effect of the substantially accurate imputations has been assessed.

45. However, the Court in Born Brands expressly declined to resolve any inconsistency in the authorities: at [88].

46. I do not think it is appropriate in the circumstances for me to attempt to resolve those inconsistencies. In any event, even assuming that the approach taken in Mizikovsky is inconsistent with the alternative reading of the legislation suggested in Born Brands at [86] and that Born Brands is correct and Mizikovsky is wrong, it would not follow that the defendant’s application in the present case must be granted.

47. McMahon and Mizikovsky were each cases in which a defence under s 26 had been pleaded. The jury in each case was to be directed to answer the question posed by s 26(b); the contest in each case related to the role in that determination of any true imputation. In McMahon, I was of the view that the plaintiff could not have the benefit of any true imputation in the “weighing” exercise required by s 26(b); Dalton J and the Queensland Court of Appeal in Mizikovsky reached the opposite conclusion.

48. None of those decisions answers the question whether, where no defence under s 26 has been pleaded or foreshadowed in advance of the trial, a true imputation can (or, as the defendant contended in this case, must) be available to a defendant to sustain a defence of contextual truth under s 26. The defendant went so far as to submit that a plaintiff’s imputation carried by the matter complained of and found to be true “must” be a contextual imputation for the purposes of s 26. It was submitted that, “if this is incorrect, a substantially true imputation effectively falls away and has no role to play in the assessment of the effect of the publication on the plaintiff’s reputation”. I do not think that is correct. As already explained, a substantially true imputation plays a role in mitigating the damages to be awarded to the plaintiff. The defendant’s contention that it is entitled to rely on justified imputations as contextual imputations (in effect, automatically) ignores the role of pleadings and other notice requirements as an aspect of fairness in litigation.

49. In Rose, I acknowledged the possibility that a defendant might be permitted to take the course now proposed but that was on the basis that the plaintiff was well on notice of the construction of the Act contended for by the defendant. In the present case, the plaintiff had no notice of this argument until the third day after commencement of the trial. Mr Cheikho is an individual, not an experienced corporate litigant. Contrary to the submissions put in the defendant’s supplementary written submissions, I took the view that the absence of notice was critical in the present case. I note in that context that Mr Cheikho was under cross-examination when the application was made (meaning that the ability of his counsel to take instructions was constrained).

50. I considered that a plaintiff in the position of Mr Cheikho should not have to face, after the commencement of the trial of his action with a jury, the prospect of a complete defence not previously raised and potentially prompting the need for a revised assessment of the risk of a verdict for the defendant.

Questions for the jury as to the defence of honest opinion

51. After considerable debate, the parties were ultimately in substantial agreement as to the form of the questions to be put to the jury to determine the defence of honest opinion. It may be helpful, for future reference, to record two aspects of the debate.

52. First, the parties drew my attention to the decision of the Court of Appeal in Harbour Radio Pty Ltd v Ahmed [2015] NSWCA 290, published on 24 September 2015 (day 3 of this trial). In that case, the questions to the jury concerning the defence of honest opinion under s 31 of the Defamation Act 2005 treated the imputations, rather than the matter complained of, as the matter which must be identified as an expression of opinion or fact. The Court of Appeal noted that authorities since the commencement of the Defamation Act 2005 on 1 January 2006 have not treated that distinction as significant but expressed a preference for an approach which treats the matter complained of rather than the imputation as the subject of that inquiry: at [43] to [44] (per McColl, Basten and Meagher JJA). The parties agreed in the present case that, in accordance with s 31, the question should be directed to the matter complained of, not the imputations (at T393).

53. Secondly, Mr Molomby submitted that the form of the questions should reflect a requirement that the proper material for comment must be the entire basis for the comment. He submitted that s 31(6) of the Defamation Act 2005 makes that clear. Separately, Mr Molomby put submissions as to the test for determining the material on which the opinion was based. Mr Molomby drew my attention to the decision of Hunt J in Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 492A where his Honour said:

All parties are agreed that the material upon which a comment is based is that upon which it purports to be based, in the sense of that which the ordinary reasonable reader would have understood from the matter complained of to have been intended by the author to be considered as the basis of his comment.

54. Hunt J recorded his view that the proposition agreed by the parties accorded with authority and correctly stated the appropriate test.

55. Those matters were reflected in the questions for the jury in these proceedings. In each case, paragraph (a) of the relevant question asked whether the defendant had established that certain matters were substantially true facts as at the time of publication. The questions proceeded as follows:

(b)   Has the defendant established that the matter complained of would have been understood by the reader as expressions of opinion of the defendant based on facts stated in the matter complained of?

(c)   Has the defendant established that the reader would have understood those expressions of opinion to be based on the matters set out in (a) and no other material in the matter complained of?

(d)   [answer this question only if you have answered “no” to any part of question (a) or “no” to question (c)].

Has the defendant established that those expressions of opinion might reasonably be based on the matters in (a) to which you have answered “yes”?

Defence of qualified privilege

56. I turn now to record the reasons for my determination that the defence of qualified privilege at common law is not established.

57. The principles to be applied in determining whether a defamatory article was published on an occasion of qualified privilege were considered by the High Court in Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 218 CLR 366. In the judgment of Gleeson CJ, Hayne and Heydon JJ, it was observed that those principles, and the authorities that state them, are well- known. Their Honours cited the statement of Parke B in Toogood v Spyring (1834) 1 CR M&R 183 at 193:

"In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits."

58. After noting that reciprocity of duty or interest is essential, the judgment continued at [10] to acknowledge the difficulty of applying those well-known principles (citations omitted):

These principles are stated at a very high level of abstraction and generality. "The difficulty lies in applying the law to the circumstances of the particular case under consideration". Concepts which are expressed as "public or private duty, whether legal or moral" and "the common convenience and welfare of society" are evidently difficult of application. When it is recognised, as it must be, that "the circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact", it is clear that in order to apply the principles, a court must "make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication".

59. As already noted, the first matter complained of in the present case was published following an assembly of people in the central business district of Sydney protesting against the publication of a video which was perceived to have insulted the Prophet of Islam. The video prompted protests in many cities around the world. There was a great deal of evidence in the trial as to the course of the protest in Sydney including a large number of photographs and film clips portraying various aspects of the conduct of the protestors. For present purposes it is enough to record that parts of the protest clearly involved violent clashes with police, assaults on police and unlawful damage to property. Other parts of the protest involved the expression of extreme views and the chanting of slogans, particularly including one group (alleged to include Mr Cheikho) chanting “Obama, Obama, we love Osama”.

59. The defendant’s original defence apparently contended for the existence of a reciprocal duty owed by The Daily Telegraph and interest on the part of all of its readers to have disseminated information relating to the following subjects of public interest (specified in paragraph 16 of the defence):

1. the assembly;

2. the circumstances surrounding the assembly;

3. law and order in New South Wales;

4. the extreme views during the assembly.

61. That contention was not developed in oral submissions and, in my respectful opinion, is untenable. As reiterated by the High Court in Lange v Australian Broadcasting Corporation, it is only in exceptional cases that the common law has recognised an interest or duty to publish defamatory matter to the general public: [1997] HCA 25; 189 CLR 520 at 570.2.

62. However, by an amendment made on the first day of the hearing, the defendant put a narrower case which was the focus of the submissions in support of the defence. The amendment was contained in paragraph 17(e) of the further amended defence filed in Court on 21 September 2015, as follows:

The first matter complained of was published pursuant to an encouragement from New South Wales police, in substance, that it would be beneficial to their investigation of the assembly if photographs of persons associated with the assembly could be published and the public asked for help identifying them.

63. In support of the defence, the defendant called the Commissioner of the New South Wales Police, Mr Andrew Scipione.

64. The Commissioner gave evidence that he became aware of the protest as it was unfolding. He said that there had been no application to police for permission or authority for a public assembly at that time. He said it was an unauthorised gathering that was not covered by “a schedule 1 application under the Summary Offences Act” and accordingly that police had no traffic plan or crowd management plan in place. The Commissioner was evidently referring to the provisions of Part 4 of the Summary Offences Act 1988 (NSW) which make provision for the authorisation of a public assembly. The reference to “schedule 1” appears to be a reference to the prescribed form set out in schedule 1 to the Summary Offences Regulation 2000 (NSW). The defendant did not contend that any person might have committed an offence merely by participating in an assembly that had not been authorised.

65. The Commissioner said that some 300 people were involved in the protest at one stage. Approximately 100 police officers were deployed as events escalated and the event became violent. Police were brought from adjoining districts and from specialist squads including the public order riot squad. A number of police were injured, as were two police dogs.

66. A strike force was established to investigate the events of the protest. On the morning after the protest, 16 September 2012, the Commissioner held a press conference. During the press conference the Commissioner stated that police had received a lot of material in respect of the protest and that it wold be appropriate for people to come forward and talk to police. He said that all people who were involved in the protest were of interest to police at that stage, whether they may have been involved in acts which may have involved criminality or as witnesses. He said (at T326.13):

So for a whole host of reasons it would have been that we would have been looking to talk to as many people as we could and that’s why we made it a very public request that those that were involved come forward and talk to us. Whether it was on the basis of some discussions that might inculpate them or some discussions that may exculpate them or in fact they just had some general knowledge. So all that were involved were of interest.

67. The following Monday, 17 September 2012, the editor of The Daily Telegraph called the Commissioner. In his evidence before the jury, the Commissioner said:

By way of context we on that very day sought assistance from all of the media in Sydney … with a view to getting as many images as we could that had been gathered by reporters and by cameramen and photographers on the day.

68. The purpose of that request was to give the strike force access to “absolutely everything”. The Commissioner said that the editor, Mr Whittaker, asked him “whether it would be of any benefit for the newspaper to publish a number of these images”. The Commissioner indicated to Mr Whittaker that it would. He said in his mind that would be “a most useful and appropriate law enforcement task”.

69. The Commissioner said that it happens “almost every day” where police have footage or images of someone they are trying to identify that they provide that material to the media to ask the media to publish the material and “get the information back”. He said that was a very common law enforcement task.

70. Mr Blackburn SC, who appears with Ms Barnett for the defendant, submitted on the strength of that evidence that the first matter complained of was published on an occasion of qualified privilege because “it was of benefit to society and the community generally to assist the police in performing their task of law enforcement”. He submitted that was a fortiori “in consideration of the shocking events of that day” (T3.33 of 7 October 2015). Mr Blackburn submitted that, having regard to the number of people involved in the protest and “the impossibility of investigating”, the occasion arose for publication of their photographs on the front page of The Daily Telegraph not by way of identification of the wrongdoers but so that they could “either be exculpated or otherwise or in some way be of assistance” (T4.15).

71. Mr Molomby submitted that there was not in this case a sufficient level of need to establish the necessary reciprocity of duty and interest. He reminded me of the words of Jordan CJ in Andreyevich v Kosovich (1947) 47 SR (NSW) 357 at 363 that in order for the defendants to succeed in the defence of qualified privilege:

It was necessary that they should show by evidence that both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter, of such a kind that it was desirable as a matter of public policy, in the general interests of the whole community of New South Wales, that it should be made with impunity, notwithstanding that it was defamatory of a third party.

72. That passage was cited with approval in Bashford by both Gummow J (who formed part of the majority) and McHugh J (who formed part of the minority) at [140] and [55] respectively.

73. I am not persuaded that the circumstances established by the evidence in the present case constituted a privileged occasion for the publication of defamatory matter. As submitted by Mr Molomby, the evidence established no more than that, in response to a call from the editor of The Daily Telegraph, the Commissioner accepted that it would be “useful” to have photographs of the participants in the protest published in the newspaper. Mr Molomby submitted, and I accept, that that was a conclusion that could readily have been drawn without the need for a call from the editor to the Commissioner. The usefulness to police of information identifying participants in the protest cannot be doubted. The footage tendered at the hearing established that, at some times and in some respects, the protest entailed unlawful behaviour. But I do not think that is enough to establish the existence of a special and reciprocal duty or interest in The Daily Telegraph and its readers of such a kind that it was desirable as a matter of public policy that information about those participating in the protest should be published with impunity by the newspaper notwithstanding that it was defamatory.

74. The evidence of the Commissioner reveals that it was the editor of the newspaper who contacted the Commissioner. As submitted by Mr Blackburn, that is not determinative but in my view it is a relevant circumstance. This is not a case in which police held a photograph or footage of a particular person of interest whom they wished to identify and made an approach to the media to publish that image.

75. Secondly, it is undoubtedly a relevant circumstance that The Daily Telegraph is published for profit. The relevance of profit was considered at length in a number of the judgments in Bashford. It is not determinative and, in some circumstances, might be the reason the duty to publish certain information exists (as the majority held in Bashford). However, in rejecting the proposition that the receipt of a fee is determinative against the existence of an occasion of qualified privilege, the High Court acknowledged the relevance of that consideration, always depending upon the circumstances of the case (at [16] per Gleeson CJ, Hayne and Heydon JJ; at [143] per Gummow J; at [189] per Kirby J).

76. The Daily Telegraph is not a special interest subscription newsletter of the kind considered in Bashford or in the cases concerning mercantile references considered in Bashford at [14] and following. It is a daily newspaper of popular and populist appeal. The nature of the publication and the breadth of its readership in my view militate against the existence of a privilege to publish defamatory matter.

77. A further relevant circumstance, in my view, is the nature of the information conveyed in the first matter complained of and the manner of its collection: cf Bashford at [20]. To a degree, this consideration is related to the first (the fact that there was no request by police for the publication of any particular image but rather a general statement to the effect that it would be useful to have photographs obtained by journalists published in the press). The images published in the first matter complained of were photographs evidently collected by the newspaper. There is no evidence to suggest any likely connection between any individual photograph included in the article and any particular conduct during the protest or any particular aspect of the police investigation. So far as one can infer from the content of the matter complained of itself, the photographs were chosen to suit the sensational headline “Faces of Rage” as much as anything else.

78. Finally, perhaps related to the second point (the fact that The Daily Telegraph is a newspaper of broad circulation and popular appeal), I do not think the evidence establishes reciprocity of duty and interest, which has always been regarded as being essential. Mr Blackburn submitted that the existence or otherwise of a duty could not logically be informed by the extent of publication, since the very purpose of publishing the photographs was “to get them before as many members of the public as possible” (T23.48). In a case where there was a compelling duty to publish a particular photograph, such as a photograph of a person suspected to have abducted a child who was still missing, there would be force in that argument. Consideration of the requirement of reciprocity must have some regard to the proportionality of the content of the duty to the size of the audience. The fact that The Daily Telegraph is a mass media publication militates against a finding of reciprocal duty and interest so as to give rise to a privileged occasion for the publication of defamatory matter.

79. For those reasons, I am not persuaded that the first matter complained of was published on an occasion of qualified privilege.

Relevance to the occasion

80. In case that conclusion is wrong, it is necessary to consider the second issue raised by the defence, namely, whether the publication exceeded the occasion. Mr Blackburn accepted that it is for the defendant to show that the publication was germane and reasonably appropriate to the occasion.

81. There was some discussion at the hearing as to whether that issue is to be tested by reference to the matter complained of or the imputation. The discussion arose from the decision of the Court of Appeal in Prince v Malouf [2014] NSWCA 12 at [129] where the Court said (citations omitted):

To establish the defence, it is necessary, as Jordan CJ explained in Andreyevich v Kosovich at 363, that a publisher should demonstrate by evidence "that both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter, of such a kind that it was desirable as a matter of public policy, in the general interests of the whole community of New South Wales, that it should be made with impunity, notwithstanding that it was defamatory of a third party". (This passage was cited with approval in Bashford v Information Australia (Newsletters) Pty Ltd at [140] (Gummow J) and, albeit in dissent, by McHugh J at [55].) It is also necessary that the defamatory imputations be "sufficiently connected to the privileged occasion" (Bashford at [27]) or "germane and reasonably appropriate to the occasion" (Adam v Ward [1917] AC 309 at 321). As the latter case demonstrates, however, it is not essential that the imputations be central to the matter being communicated: see Cush v Dillon; Boland v Dillon at [20]-[21].

82. In that passage, the Court of Appeal has formulated the test as being whether “the defamatory imputations” are sufficiently connected to the privileged occasion. The authority cited for that principle is Bashford at [27]. However, in that passage of Bashford, the test was posed in the following terms:

Whether the matter which defamed the appellant was sufficiently connected to the privileged occasion to attract the defence.

83. That was in the judgment of the plurality (Gleeson CJ, Hayne and Heydon JJ). In the separate judgment of Gummow J, who also formed part of the majority, his Honour said (at [135]):

The defence of qualified privilege is a plea in confession and, as such, is predicated upon the existence of a defamatory imputation to which the privilege attaches. To speak of qualified privilege attaching to a non-defamatory statement is to ignore this fundamental characteristic. It follows that questions of relevance, in the sense in which that term was used by the judges below, will ordinarily only arise where two or more defamatory imputations are published on a single privileged occasion. In such circumstances, it will be necessary to determine whether each imputation falls within the umbrella of the applicable privilege or whether one of the imputations is not relevant and, therefore, not covered by the defence. In the present case, only one defamatory imputation has been found to have been conveyed. It is therefore necessary to consider whether that imputation was made on an occasion giving rise to a defence of qualified privilege arising out of a reciprocal duty or interest.

84. Mr Blackburn submitted that I am bound by the decision of the plurality in Bashford and that the Court of Appeal in Prince v Malouf could not be taken to have been saying anything different. In other words, the contention was that the second element of the defence is directed to the defamatory matter, not the imputation (T9.43).

85. Mr Molomby submitted that it does not matter, in this case, whether the test of relevance is considered by reference to the defamatory matter or the imputation on which Mr Cheikho succeeded since, either way, the Court would conclude that the occasion of qualified privilege was exceeded.

86. I accept Mr Molomby’s submissions on that issue. Taking the defendant’s case at its highest, the occasion arose for the publication of images for the purpose of assisting the police to identify persons involved in the protest (whether as offenders, potential witnesses or otherwise). The defamatory imputation on which Mr Cheikho has succeeded is that as one of an angry mob he took part in a riot. That attribution was the entire focus of the matter complained of. As submitted by Mr Molomby, the defamation of Mr Cheikho by that imputation went well beyond the subject of publishing images for the purposes of identification so as to assist a police investigation. It trespassed into the territory of condemnation and denunciation.

87. For those reasons, the defence of qualified privilege at common law must be rejected.

Assessment of damages

88. The principles applicable in the assessment of damages for defamation are helpfully summarised in the decision of the Court of Appeal in Ali v Nationwide News Pty Ltd [2008] NSWCA 183 at [70]-[78] (general damages) and [79]-[85] (aggravated damages). An award of damages for defamation serves three purposes: consolation for the personal distress and hurt caused to the plaintiff by the publication, reparation for the harm done to the plaintiff’s reputation and vindication of the plaintiff’s reputation: Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44. The Court in Ali observed that the harm caused to the plaintiff by the publication of defamatory matter often lies “more in his own feelings, what he thinks other people are thinking of him, than in any actual change made manifest in their attitude towards him”: at [72]. For that reason, consolation for personal distress forms “a large element” of an award.

89. The award should reflect the high value the law places upon reputation and be such as to enable the plaintiff to point to the sum awarded as being “sufficient to convince a bystander of the baselessness of the charge”: Ali at [75], citing Cassell & Co Ltd v Broome [1972] AC 1027.

90. The assessment should have regard to “the mode and extent of the publication, that the defamatory statement was never retracted, that no apology was ever offered to the respondent, and that the statement had been persisted in to the end”: Ali at [76], citing Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254 at 263 per Knox CJ, Gavan and Starke JJ.

91. The defendant must take the plaintiff as it finds him: Ali at [77]. The significance of that principle in the present case lies primarily in the issue of Mr Cheikho’s youth at the time of publication.

92. The assessment of damages must also be undertaken in accordance the provisions of division 3 of part 4 of the Defamation Act 2005.

93. The size and prominence of the matter complained of in the present case are significant. The article was a full-page piece on the front page of The Daily Telegraph. Its prominence as a newspaper article could scarcely have been greater. The article featured photographs of the faces of 15 men in three rows of five. As noted by Mr Molomby, the attention of the reader would naturally have been drawn to the photograph of Mr Cheikho, which appears in the middle of the top row. He would have been easily recognisable by anyone who knew his appearance.

94. Featured prominently between the rows of photographs was a headline in the familiar large font of the front page, “FACES OF RAGE”. In smaller but still prominent font were the additional words “SYDNEY RIOT” and “Police hunt angry mob”.

95. Those headlines and the photographs occupied most of the page and were its most prominent features. The text of the article appeared in the lower right corner, as follows:

They were all photographed during the protest that turned ugly in the heart of Sydney on Saturday – and police want to talk to them.

NSW Police Commissioner Andrew Scipione last night urged these men to come forward with any information they may have about who was involved in the violence, so each can be either cleared or “held accountable” for their actions.

“It may be someone who lives in your street – in your house. It may even be you,” Mr Scipione said.

96. Mr Molomby submitted that the defamatory imputation found by the jury, “that as one of an angry mob he took part in a riot”, whilst not the most serious, is “not in the minor league”. He submitted that it is the sort of imputation that is likely to lead people, as it is classically put, to “shun and avoid” Mr Cheikho. It attributes him with conduct which strikes at the heart of social relations and is such as to prompt fear and distrust. I accept those submissions.

96. The readership of The Daily Telegraph was proved by the tender of an admission by the newspaper (exhibit N). The newspaper admitted that the total net circulation for the paper on 18 September 2012 was 319,783 with by far the most of those copies being circulated in New South Wales (302,483). The estimated daily readership of the newspaper during the relevant period was 783,000. It is significant also (in the assessment of hurt to feelings) that Mr Cheikho believed The Daily Telegraph to be a "very popular, very influential newspaper” (T55.5–T55.12).

97. Mr Cheikho gave evidence as to the impact of the articles on him. In that context, I must have regard to the fact that he sued on four articles and has succeeded in respect of only one. He did not purport to differentiate with any precision as between his response to each individual article. Although it is a difficult task, it is necessary for me to attempt to make that differentiation myself so as to ensure that the damages awarded do not extend to harm for which the defendant is not liable.

98. Confining my attention to the first matter complained of, I am satisfied that Mr Cheikho was very shocked and worried by the defamation and that it caused him considerable hurt (T55–57).

99. Mr Cheikho was aged only 19 as at the date of publication. I am satisfied, as contended by Mr Molomby, that the hurt to feelings suffered by Mr Cheikho was probably greater because of his youth and relative vulnerability on that account.

100. Whilst there is no evidence that Mr Cheikho requested an apology I accept, as submitted by Mr Molomby, that the harm he has suffered was prolonged and intensified by the absence of an apology: cf Ali at [82]. The failure to apologise was not relied upon as a factor aggravating damages but is relevant in the assessment of general damages.

Impact of the true imputation

102. Mr Blackburn addressed four topics on the question of damages. First, he submitted that the Court should find that, in the circumstances of this case, Mr Cheikho has not suffered any appreciable further injury to his reputation by the publication of the untrue imputation (that as one of an angry mob he took part in a riot) by reason of the truth of the imputation that he took part in a violent protest.

103. Mr Blackburn submitted that the untrue imputation must not be taken in isolation but must be considered in the context of the circumstances that gave rise to it. In a related submission (which was Mr Blackburn’s third topic), Mr Blackburn relied upon the principle stated in the decisions of the English Court of Appeal in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 and Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 WLR 3469. In short, those authorities hold that, even where there is no plea of justification, a defendant may rely in reduction of damages on evidence as to the background context directly relevant to the damage the plaintiff claims has been caused by the defamatory publication: at [47] of Burstein; at [50] of Turner.

104. Mr Blackburn submitted, by reference to the evidence in the proceedings as to what occurred at the protest (including extensive video footage) that the true imputation (that Mr Cheikho took part in a violent protest) is in fact more serious than the untrue imputation (that as one of an angry mob he took part in a riot). He submitted that a riot might not be understood to entail violence and that it may just be an event “where people fling things and break things”. I do not accept that submission. In my view, the notion of an angry mob taking part in a riot would necessarily entail a degree of violence that would be confronting to the general public.

105. My findings on that issue must of course be consistent with the jury’s verdicts. As already noted, the jury found that the defendant had failed to establish the truth of the imputation that as one of an angry mob Mr Cheikho took part in a riot, while they found proved substantially true the imputation that Mr Cheikho participated in a violent protest. The most logical resolution of those verdicts is that they regarded the latter to be a different imputation posing a lower threshold of proof.

106. The evidence at the hearing established that the conduct of various participants in the protest was not homogenous. In Martin Place, a large crowd gathered more or less peacefully; impassioned speeches were made and slogans were chanted. Some of the footage shows a relatively thin crowd moving at a leisurely pace along Elizabeth Street. In Market Street, an aggressive crowd tried to push through a barrier of police: at that point there were acts of violence against police and the conduct of some of the protestors plainly amounted to what in legal terms would be called riot or affray, but there is no suggestion that Mr Cheikho was involved in that conduct. In Hyde Park there was a variety of different kinds of conduct ranging from people standing or wandering peacefully to outbursts of violence.

107. At one point in Hyde Park a member of the public called out to the protestors “shame on you for advocating murder in the name of religion”. The footage is unclear but it appears that some of the protestors reacted by running towards that man. Mr Cheikho identified himself on that footage standing in front of police. Mr Molomby submitted to the jury that the clip shows Mr Cheikho “in front of the line of police with other protestors with his arms linked holding people back” in such a way as to indicate that he made a choice at that point to side with police rather than with any violent protestor. I was persuaded by that evidence and Mr Molomby’s submission that Mr Cheikho was indeed at that point one of a group of protestors seeking to discourage violence rather than condoning or participating in it.

108. In summary, the evidence established that parts of the protest involved violent, riotous conduct while other parts of the protest were peaceful. My assessment of the evidence is that, although it must be accepted that Mr Cheikho participated in the protest and that aspects of the protest entailed violence, Mr Cheikho himself was not shown to be angry or violent at any point. In my view, the jury’s determinations are consistent with that analysis. I would interpret the jury’s answers to indicate that, taking a literal interpretation of the imputations, they accepted that Mr Cheikho participated in the protest and they accepted that aspects of the protest became violent but they did not consider that Mr Cheikho was one of the violent protestors. In my assessment, the imputation proved true (that the plaintiff participated in a violent protest) is considerably less serious than the imputation for which damages are to be awarded.

Other matters relied upon in mitigation of damages

109. The second topic addressed by Mr Blackburn was the principle that a defendant is entitled to rely, as evidence in mitigation of damages, on any material that was properly before the Court for another purpose. The relevant authority is the decision of the English Court of Appeal in Pamplin v Express Newspapers Ltd [1988] WLR 116. Neill LJ said at 120D:

There may be many cases, however, where a defendant who puts forward a defence of justification will be unable to prove sufficient facts to establish the defence at common law and will also be unable to bring himself within the statutory extension of the defence contained in s 5 of the Defamation Act 1952. Nevertheless the defendant may be able to rely on such facts as he has proved to reduce the damages, perhaps to almost vanishing point. Thus a defence of partial justification, though it may not prevent the plaintiff from succeeding on the issue of liability, may be of great importance on the issue of damages.

110. That principle was approved by the Court of Appeal in John Fairfax Publications Pty Ltd v Zunter [2006] NSWCA 227 at [48]-[50] per Handley JA, Spigelman CJ and McColl JA agreeing at [1] and [54] respectively.

111. Mr Blackburn provided a “schedule of facts relevant to mitigation of damages”. He relied first on the jury’s finding that the imputation that the plaintiff took part in a violent protest was substantially true. For the reasons explained above, I regard that conduct to be considerably less serious than the conduct attributed to Mr Cheikho by the imputation on which he has succeeded. In the absence of any suggestion that Mr Cheikho himself participated in the violence, his participation in a protest in which others were violent affords slender mitigation of the damage suffered by the attribution to him of the conduct described in the defamatory imputation.

112. Secondly, Mr Blackburn relied upon the jury’s answer to question 11(a)(iv) (one of the facts relied upon as proper material for comment). The finding was that on social media Mr Cheikho was talking about the protest with ASWJ members stating:

There’s a protest in the city tomorrow 1 pm at Town Hall. Be there to support Mohamed if you truly believe.

113. It is difficult to understand the defendant’s reliance on that finding. I do not accept that the preparedness of a young Muslim man to participate in a protest to support the prophet Mohamed reflects adversely on his reputation or can be said in any way to mitigate the damages to which he is entitled. There is no suggestion that Mr Cheikho had any knowledge, the day before the protest, as to whether the protest had been authorised under the Summary Offences Act or what kind of conduct it might entail. To the extent that the submission implicitly assumed that participation in any protest by Muslims to support the Prophet of Islam is inherently discreditable, I reject that premise.

114. Thirdly, Mr Blackburn relied upon video footage depicting Mr Cheikho standing among a group of protestors who were chanting “Obama, Obama, we love Osama” (exhibit 9, clip 7).

115. Mr Cheikho denied that he was chanting those words. I do not accept his evidence on that issue. The video footage is relatively clear. At the critical moment (where the word “Osama” is said), Mr Cheikho’s face is obscured when another person moves in front of him but I am nonetheless satisfied that he joined in that chant, at least briefly. Before considering the significance of that finding, it is appropriate to consider the entirety of the matters relied upon in this context.

116. The fourth matter relied upon was the fact that Mr Cheikho repeatedly chanted “takbir” which means “raise the name of Allah” after another protestor made a speech. The defendant submitted that the speech was inflammatory. The word “takbir” shouted by Mr Cheikho invited the crowd to respond “Allahoo Akbar” which means “Allah is the greatest”.

117. Plainly there could be no criticism of that exchange on its own. It is no different from the exchange of blessings in the Christian faith, “may God be with you” met with “and also with you”. The defendant submitted, however, that in the context in which those words were shouted by Mr Cheikho, the effect of his conduct was that “it roused an already angry crowd”.

118. The content of the speech made by the other protestor was transcribed in the defendant’s submissions as follows (exactly as transcribed by the defendant):

Speaker: We will only offer that which our enemies so desperately desire. I say to you this, when the authority of Islam returns, and insh’Allah it will return [indistinct]. The response of Sultan Abdul Hamid and [indistinct], that dressed in an army uniform declaring that he will go to war whole the whole of Europe if display preceded.

Crowd: Allahoo Akbar

Speaker: But there is a point, that we are being attacked on every front: it is ideological, it is political, it is economic and it is military, and it occurs in both the East and the West, let there be no doubt about this point, but let us also be clear, that the manner in which we respond has to be through the example of the Prophet alayhi as-salam. Organised under the banner of one leader, one Caliph that will deal with all these matters once and for all, we should not be surprised for they have attacked, the enemies of Islam have attacked more than the honour of the Prophet alayhi as-salam. They’ve attacked the honour of our sisters, of our brothers, of our mothers and our children and they continue to do that every single day. We should realise the words, the heavy words, of the Prophet alayhi as-salam. The man we all love. When he says [indistinct], the Caliph, is nothing but a shield over the Muslims behind which they fight and behind which they protect themselves. So let it not be a surprise that we are confronted with tragedy after tragedy of which this latest example is but one in a very long and ugly line of attacks on Islam. But the day will come Insh’Allah, sooner rather than later and we see the great signs, that they will come, when the army of the Caliph, the army of the Ummah, will respond in the only fitting way Insh’Allah.

Plaintiff: Takbir

Crowd: Allahoo Akbar

Plaintiff: Takbir

Crowd: Allahoo Akbar

Plaintiff: Takbir

Crowd: Allahoo Akbar

119. It is difficult to know what the crowd was to make of the speaker’s Delphic rhetoric. I accept that it advocated a united response to perceived threats to Islam; whether what was foreshadowed or condoned was a violent response is less clear but I accept that it is at least a possible interpretation of the speech.

120. Next, the defendant relied on evidence that, at the protest, Mr Cheikho “associated with” a man he knew to be a convicted terrorist, Khaled Sharrouf, together with the fact that, in Hyde Park, Mr Cheikho responded to a speech by Mr Sharrouf (delivered in Arabic) by “repeatedly responding ‘Allahoo Akbar’ (“Allah is the greatest”) and waving his finger in the air”.

121. Finally, the defendant relied upon the fact that Mr Cheikho did not leave the protest even though it involved people holding signs saying “behead those who insult Islam”, “behead those who insult the prophet” and “Our dead are in paradise. Your dead are in hell”; people wearing t-shirts with the words “sixth pillar”, allegedly a reference to jihad or holy war and the fact that the protest was violent. The defendant submitted that the Court should infer from the fact that Mr Cheikho did not leave the protest in those circumstances that “he shares the views and ideologies expressed at the protest”.

122. There was no evidence that Mr Cheikho held any such placard. However, the defendant also relied in this context on the content of an interview given by Mr Cheikho to an ABC journalist the day after the protest in which, so it was submitted, Mr Cheikho indicated his agreement with the proposition that the man who made the video which gave rise to the protest should be beheaded.

123. There was a contest at the hearing as to what Mr Cheikho meant in that interview. The relevant exchange with the journalist was in the following terms:

Journalist:    So you agree that the person who made that video should be beheaded?

Mr Cheikho:    Yeah.

124. It is plain that the segment shown was not the complete interview. Mr Cheikho explained:

Q. You agree that he should be beheaded because he had made this film that insulted the religion of Islam?

A. No.

Q. Did you think that he should be beheaded for insulting the prophet of Islam?

A. No.

Q. But you did think he should be beheaded?

A. No. Can I explain?

Q. Yes, yes. By all means.

A. Okay. I'm assuming that the camera was off when I was explaining his question in regards to the placards and where they'd arrived from. And I was explaining that not in Australia or America, but under an Islamic law that the Islamic ruling on a person that curses the prophet or swears at the prophet in whatever he does, the ruling is - Islamic law, the ruling is that his head be decapitated. That's what I was explaining to that person, to the camera man.

Q. All right. Well, I think we can - correct me if I'm wrong, Mr Cheikho, but I think we can take it then that you do have the view and you held the view then that people who egregiously insult the prophet of Islam should be beheaded.

A. No.

Q. I see. Well, you have the view that people who - I think the word you used was curse the prophet of Islam should be beheaded.

A. No, I was explaining the placard.

125. I understood from that exchange that, in his answer to the journalist, Mr Cheikho was focussed on what Islamic law says as to the penalty for insulting the Prophet and did not intend to express his personal agreement as to the appropriateness of that penalty.

126. It is difficult to know what to make of Mr Cheikho’s evidence on that issue. I accept his evidence that he did not mean, in terms, to call for the beheading of the maker of the video and that his answer was rather directed to an explanation of the teaching of his faith. Without seeing the whole interview, it is difficult to judge whether he endorsed that teaching or was merely providing information. The defendant’s submission would treat that snapshot of the interview as the portrait of Mr Cheikho’s character. I do not think that is fair. Conversely, however, the proposition that any person should be beheaded for insulting the prophet of any faith is disturbing. The fact that Mr Cheikho evidently confirmed the correctness of that proposition as a tenet of his faith apparently without seeking to distance himself from is also disturbing. Upon careful reflection, however, I have concluded that, without the footage of the whole video, I should not judge Mr Cheikho by reference to that remark alone. In particular, I am concerned at the risk that, stripped of its context, the remark may not fairly reflect what Mr Cheikho was endeavouring to convey.

127. Separately, the defendant relied upon the content of material posted by Mr Cheikho on his publicly-available Facebook page which it was submitted indicates that he is a person who supports groups and persons engaged in extremist activity, including the Islamic State. The defendant further submitted that the Facebook postings reveal that Mr Cheikho’s motivations for his views include “sectarian hatred for sects of Islam other than his own”. From all those matters, the defendant submitted that the Court should infer that Mr Cheikho is a Muslim extremist.

128. Finally, the defendant submitted “it is notorious that there is a problem in Australia (and elsewhere) of impressionable young people, teenagers in particular, being radicalised and adopting extreme and violent interpretations of Islam”. On that basis and having regard to all the other matters relied upon, the defendant submitted that Mr Cheikho is a sinister and dangerous person. Although Mr Cheikho himself was only 19 at the time of his participation in the protest, the submission implicitly excludes him from the category of “impressionable young people”, placing him rather in the classification of a Muslim extremist responsible for doing the radicalising rather than being one of those vulnerable to it.

129. The matters relied upon by the defendant raise complex issues which, in my respectful opinion, are not amenable to the dualistic (“good or evil”) analysis implicit in the defendant’s submissions. Whilst I appreciate that the submissions rely on a collection of considerations to be taken together it is, frankly, alarming to see included in that list the fact that Mr Cheikho encouraged others to attend a protest to support the Prophet or the fact that he responded to a speech (the content of which is not known) by shouting “Allah is the greatest” and waving his finger in the air. Aspects of the submission tended to equate adherence to the Muslim faith with extremism. Mr Blackburn submitted that the whole raison d’etre of the protest was extremist views. There is some force in Mr Molomby’s submission that that in itself is an extremist view.

130. I have a more benign and, dare I say, less alarmist view of Mr Cheikho, perhaps reflecting a broader view as to the relevant context. Protest is the resort of the exasperated. From the Boston Tea Party of 1773 to the Suffragettes to the thousands of men who took to the beaches of Sydney in 1907 in feminine dress to protest the proposed introduction of an ordinance regulating swimwear for men, protesters have used assemblies both lawful and unlawful to achieve a change of ideas. Mr Cheikho was one of a large number of Muslims who, in a response to an attack on their religion, took to the streets to voice their devotion to their Prophet. Those who became violent or incited violence are to be condemned but that is a condemnation of individual acts, not ideas. The fact that large numbers of Muslims felt free to express their devotion to their faith with such passion is a mark of the health of our democracy, not a threat to it.

125. Mr Cheikho’s age is an important consideration in assessing the nature of his views. His Facebook postings were examined at length during the hearing and I have revisited that evidence carefully. On the strength of those postings, there can be little doubt that Mr Cheikho is interested and engaged in the discussion of extremism. He participates in that discussion, not covertly but in an open forum and in a spirit of animated discourse. That, again, is a mark of the health of our democracy, not a threat to it. Mr Cheikho is not the first Australian teenager to have boasted an interest in dangerous ideas and he will not be the last.

126. I do not think it follows that Mr Cheikho is a Muslim extremist or a sinister and dangerous person, as contended by the defendant. His evidence persuaded me to the contrary. He presents as a thoughtful young man deeply engaged with the issues that concern his generation and his faith. I do not share his appetite for news of shocking acts but I do not condemn it and, more importantly, I do not think it diminishes the worth of his reputation. For those reasons, I am not persuaded that the matters relied upon by the defendant should mitigate the damage to which Mr Cheikho is entitled for the imputation on which he has succeeded.

127. The final topic addressed by Mr Blackburn was the principle stated in Joseph v Spiller [2012] EWHC 2958. In that case Tugendhat J, accepting that the Court should have regard to all of the evidence properly before the Court on any issue in assessing damages, held that the plaintiff should be awarded only nominal damages on the grounds that he had deceived the Court in his evidence. His Honour described Mr Joseph’s conduct as “a sophisticated deception of the court” which involved putting forward a witness statement to support a claim for special damages which was known to be false and relying on a false document to mislead the court: at [155].

128. Justice Tudendhat found that Mr Joseph had “abused the process of the court by deliberately pursuing a false claim for special damages”: at [177]. That deception, “massive as it was” did not affect the whole claim but his Honour was persuaded that adequate vindication of reputation was given in the reasons for judgment and that an award of nominal damages would entail no injustice in the circumstances.

129. Mr Blackburn submitted that Mr Cheikho has given false evidence in pursuing his claim for general damages in the present case and that the Court should take that into account in the assessment of damages in the manner adopted by the Court in Joseph v Spiller. He submitted that Mr Cheikho “has lied shamelessly to the Court about the chant, about the ABC interview and about his views”.

130. I am not persuaded that there is anything in Mr Cheikho’s conduct of these proceedings to warrant such an approach. As revealed in the foregoing reasons, I have not accepted Mr Cheikho’s evidence on every issue. However, I do not accept that Mr Cheikho lied about the ABC interview or about his views.

131. Probably the most significant finding is my rejection of Mr Cheikho’s denial that he participated in the chant “Obama, Obama, we love Osama”. I would not, however, classify his evidence on that issue as a “massive” deception amounting to an abuse of the process of the court of the kind seen in Joseph v Spiller. That was a case of a plaintiff deliberately coming to court with false evidence to support a claim for special damages.

132. In my assessment, Mr Cheikho denied participating in the “Obama” chant out of embarrassment. In this context I have regard, again, to his youth. I think in hindsight he could scarcely believe that he would say such a thing and he could not bring himself to accept that he did, even in the face of relatively clear video evidence. A refusal to accept a proposition put by an experienced cross-examiner during the course of a robust cross-examination is, in my view, well short of the kind of deception perpetrated by Mr Joseph.

133. Mr Blackburn’s submissions have not persuaded me that Mr Cheikho perpetrated any deception on the Court or that his damages should be reduced on account of any aspect of his evidence in the proceedings.

134. Taking into account the factors recited in Mr Molomby’s submissions summarised above, I consider the defamatory imputation on which Mr Cheikho has succeeded to be one which warrants a substantial award of damages which I would assess in the sum of $100,000.

**********

Amendments

12 February 2016 - typographical error on coversheet