Coull v Nationwide News Pty Ltd
[2008] NTCA 10
•23 October 2008
Coull v Nationwide News Pty Ltd [2008] NTCA 10
PARTIES:COULL, RAYMOND PATRICK
v
NATIONWIDE NEWS PTY LTD
(ACN: 008 438 828)
TITLE OF COURT: COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION: CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:AP 13 of 2007 (20528121)
DELIVERED: 23 October 2008
HEARING DATE: 23 June 2008
JUDGMENT OF: Angel ACJ, Mildren & Southwood JJ
APPEAL FROM: Coull v Nationwide News [2007] NTSC 47
CATCHWORDS:
DEFAMATION – whether words used in newspaper articles capable of bearing defamatory meanings complained of – whether material complained of would have conveyed defamatory meanings complained of to ordinary reasonable reader
DEFAMATION – qualified privilege – fair and accurate report of legal proceedings – Defamation Act 1989 (NT), s 5 – whether privilege lost
DEFAMATION – damages – defamatory meaning not sued upon – whether mitigatory
DEFAMATION – damages – prior convictions – admissibility in reduction of damages
DEFAMATION – damages – appeal – whether award manifestly inadequate – whether entitled to award for exemplary damages
Statutes:
Defamation Act 1989 (NT) s 5
Supreme Court Act 1979 (NT) s 84References:
Gatley on Libel and Slander, 8th ed, Sweet & Maxwell, London, 1981
Gatley on Libel and Slander, 10th ed, Sweet & Maxwell, London, 2004
Odgers on Libel and Slander, 2nd ed, Stevens, London 1887
Tobin & Sexton, Australian Defamation Law and Practice, Butterworths, Sydney 1991Citations:
Ainsworth Nominees Pty Ltd v Hanrahan [1982] 2 NSWLR 823
Associated Newspapers Ltd v Dingle (1964) AC 371
Astaire v Campling [1966] 1 WLR 34
Australian Newspaper Co Ltd v Bennett [1894] AC 284
Bank of New South Wales v O’Connor (1889) 14 App Cas 273
Bik v Mirror Newspapers Ltd [1979] NSWLR 663
Burstein v Times Newspapers Ltd [2000] All ER [D] 2384; [2001] 1 WLR 579
Capital and Counties Bank Ltd v George Henty and Sons (1882) 7 App Cas 741
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Cook v Alexander (1974) 1 QB 279
Farquhar v Bottom [1980] 2 NSWLR 380 at 385 to 386
Favell & AnothervQueensland Newspapers Pty Ltd & Another (2005) 221 ALR 186
Goody v Odhams Press Ltd [1967] 1 QB 333
Gumina v Williams & Anor (1990) 3 WAR 351
Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 664
House v The King (1936) 55 CLR 499
John Fairfax Publications Ltd v Rivkin (2003) 77 ALJR 1657
John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485
Jones v Skelton [1964] NSWR 485
Lee v Wilson & MacKinnon (1934) 51 CLR 276
Lewis v Daily Telegraph Ltd [1964] AC 234
Love v Mirror Newspapers Ltd [1980] 2 NSWLR 112
Manock v Advertiser News – Weekend Publishing Co Ltd (2004) 88 SASR 495
MBP (SA) Pty Ltd v Gogic (1991) 171 CLR 657
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Monte v Mirror Newspapers Ltd; Sub nom [1979] 2 NSWLR 663
Nationwide News Pty Ltd v Heggie [2001] NSWCA 257
Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314
Pamplin v Express Newspapers Ltd (1988) 1 WLR 116
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Rosecrance v Rosecrance (1998) 8 NTLR 1
Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd [1980] 2 NSWLR 845
Scott v Sampson (1882) 8 QBD 491
Sim v Stretch [1936] 2 All ER 1237
Speidel v Plato Films Ltd [1961] AC 1090
Templeton v Jones [1984] 1 NZLR 448
Turner v News Group Newspapers Ltd [2006] 1 WLR 3469
Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118
Wake v John Fairfax and Sons Ltd [1973] 1 NSWLR 43
Yoon Shin Lee v Bob Chae–Sang Cha [2005] NSWCA 279REPRESENTATION:
Counsel:
Appellant/Cross–respondent: T Molomby SC
Respondent/Cross–appellant: N Swan
Solicitors:
Appellant/Cross–respondent: Povey Stirk
Respondent/Cross–appellant: Minter Ellison
Judgment category classification: A
Number of pages: 58
IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINCoull v Nationwide News Pty Ltd [2008] NTCA 10
No. AP 13 of 2007 (20528121)
BETWEEN:
RAYMOND PATRICK COULL
Appellant/Cross–respondent
AND:
NATIONWIDE NEWS PTY LTD
(ACN: 008 438 828)
Respondent/Cross–appellant
CORAM: ANGEL ACJ, MILDREN & SOUTHWOOD JJ
REASONS FOR JUDGMENT
(Delivered 23 October 2008)
ANGEL ACJ:
This is a plaintiff’s appeal and a defendant’s cross–appeal against an award of damages for defamation held to have been occasioned by articles published by the respondent in the Centralian Advocate newspaper and the Northern Territory News newspaper on 7 December 2004. In his statement of claim the appellant says the two articles, which were not materially different, conveyed the defamatory imputation that he had “brutally bashed Lenny Frank on the face with a rock, causing gruesome injuries”. In this Court the appellant complains inter alia that the award of damages was manifestly inadequate.
Whilst not disputing that it had published the articles the respondent in its defence denied that the articles bore or were understood to bear or were capable of bearing the imputation complained of by the appellant and inter alia pleaded that the articles constituted a fair and accurate report of legal proceedings both pursuant to s 5 Defamation Act 1989 (NT) and at common law.
The learned trial Judge did not expressly find that the articles in fact conveyed of the appellant the defamatory imputation pleaded, nor ruled that at law that they were capable of giving rise to that imputation. Indeed the trial Judge said the “legal issue” for decision was whether the respondent’s publications constituted a fair and accurate report of the criminal proceedings against the appellant. The learned trial Judge held they were not fair and accurate reports of the proceedings, not on account of what was said but on account of what was not said, and gave judgment for the appellant.
The respondent cross–appeals on the ground that, inter alia, the learned trial Judge erred in law in her conclusion that the newspaper articles did not constitute a fair and accurate report of the hearing. There is no ground of cross–appeal to the effect that the respondent’s publications were not defamatory of the appellant.
Notwithstanding the issues on the pleadings as to whether the respondent’s publications were reasonably capable of conveying the defamatory meaning attributed to them by the appellant, or in fact did so, the whole trial appears to have been conducted on the assumption that the respondent’s publications were defamatory of the appellant. The learned trial Judge said:
“The legal issue before the Court is whether the articles represented a fair and accurate report of the evidence given in Court on 1 December 2004 in the prosecution of Raymond Coull for an offence of aggravated assault upon Lenny Frank”.
The respondent in its first written submissions on the appeal said the learned trial Judge “correctly recorded” the issue.
When the question of whether the articles were defamatory was raised with counsel for the parties during the appeal this Court was informed that no point was taken on the issue. However after reserving our decision and considering the matter we invited written submissions as to whether the defendant’s publications were capable of bearing the imputation complained of by the plaintiff. We received those submissions on 1 September.
Notwithstanding the way the matter was conducted in the court below by the parties and on the appeal and cross–appeal, the first question for decision in the case is a question of law, namely, whether the words sued upon are capable of having the defamatory meaning alleged. As Lord Atkin said in Sim v Stretch:[1]
“It is well settled that the judge must decide whether the words are capable of a defamatory meaning. That is a question of law: is there evidence of a tort? If they are capable, then the jury is to decide whether they are in fact defamatory”.
The respondent’s defence of fair and accurate report was only to be considered once it was decided as a matter of law that the words complained of were capable of the defamatory meaning alleged and there was a finding that the words were in fact defamatory. As was explained, correctly, if I might say so, with respect, by Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd:[2]
“[2] … in our view, where a defendant pleads a defence of fair and accurate report in answer to an action for defamation, it is necessary for the tribunal of fact to determine what meanings the publication has before it determines the fairness of the report. The reason for that is that, until the defamatory meaning of the publication is determined, it is not possible to know whether the report is an answer to the plaintiff’s claim … A plea of fair and accurate report is a plea in confession and avoidance of the plaintiff’s claim. Until the plaintiff’s claim is defined, the tribunal of fact cannot know what the plea confesses and avoids. Nor can the Court determine whether the report in defaming the plaintiff is nevertheless fair.”
Contrast, per Gaudron and Gummow JJ;[3] per Kirby J.[4]
This Court on appeal can not countenance a departure from settled principle because of the way the case has been conducted by the parties: Bank of New South Wales v O’Connor.[5] The parties can not concede the law to be what it is not. They are not able to agree that the written publications of the respondent are defamatory if as a matter of law they are incapable of being defamatory.
I have reached the conclusion that the respondent’s publications in their context and in the circumstances of publication were not capable of conveying the defamatory imputation that the appellant “brutally bashed Lenny Frank on the face with a rock, causing gruesome injuries”. I am unable to see anything libellous in the respondent’s publications when they are fairly read having regard to the purpose for which they were written.
In Mirror Newspapers Ltd v Harrison[6] a newspaper had reported that the plaintiff and others had been arrested in connection with the bashing of a Member of Parliament. The arrests were said to have followed a month of “intensive investigation by a special squad of detectives” who had “worked around the clock to fulfil a directive from the Deputy Premier, Mr Fergusson that the culprits be found”. The plaintiff’s statement of claim alleged inter alia that the publication imputed that the plaintiff was directly or indirectly involved in the vicious bashing and that the plaintiff was guilty of a criminal offence in connection with the bashing. Hunt J held that the matter complained of was not capable of bearing either of the two imputations. An appeal to the NSW Court of Appeal was allowed. The order of Hunt J was restored by the High Court. Mason J said:[7]
“Sugerman ACJ [in another earlier NSW case] was correct also in stating that a case of this kind is to be distinguished from the “rumour” cases. The essence of those cases is that the defendant gives his imprimatur to the rumour; by passing it on he gives it credence, implying that it is well founded or that it may be so.
As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.”
A report of part heard court proceedings dealing with a criminal charge may or may not carry the imputation that the person is guilty of the charge. That the ordinary reasonable person is mindful of the presumption of innocence is a highly relevant consideration. Particularly is this so in relation to a publication made in circumstances closely related to the operation of the criminal justice system, cf. John Fairfax Publications Pty Ltd v Obeid.[8]
In determining whether the respondent’s publications are capable of conveying the defamatory meaning attributed to them by the appellant the court’s task is to determine what reasonable persons could understand the words complained of to mean. As Gleeson CJ, McHugh, Gummow and Heydon JJ said in Favell & Anor v Queensland Newspapers Pty Ltd & Anor:[9]
“[9] In Jones v Skelton,[10] the Privy Council said:
‘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.’
[10] 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:[11]
‘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.’
[11] Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd,[12] 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:[13]
‘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.’”
Lord Reid also said in Lewis v Daily Telegraph Ltd:[14] “What the ordinary man, not avid for scandal, would read into the words complained of must be a matter of impression.”
It is of course necessary to consider the respondent’s publications as a whole. The defamatory imputation alleged by the appellant must be gathered, if at all, from the whole of what was published having regard to the circumstances in which it was published and the apparent purpose for which it was published. That the publications are to be read as a whole is particularly important where the publications report a defamatory statement by a third party: John Fairfax Publications Ltd v Rivkin.[15] The circumstances in which the publications took place are relevant to the imputations which may be conveyed: Capital and Counties Bank Ltd v George Henty and Sons;[16] Australian Newspaper Co Ltd v Bennett;[17] Ainsworth Nominees Pty Ltd v Hanrahan.[18] The apparent purpose of the publications has a significance bearing on the imputation conveyed: Wake v John Fairfax and Sons Ltd;[19] Astaire v Campling;[20] John Fairfax Publications Pty Ltd v Obeid.[21]
The articles republish what Frank said the plaintiff did to him. Whilst the question is not whether the respondent is, in the articles, itself making the statements relied upon as defamatory, but whether, by publishing the articles, it has published material defamatory of the plaintiff, the context in which this “defamatory hearsay” is republished may effect the question of the capacity of the publication to convey a defamatory imputation: John Fairfax Publications Pty Ltd v Obeid;[22] Yoon Shin Lee v Bob Chae–Sang Cha.[23]
Whilst as a general rule a defamatory imputation is made by being published, even if it is published as having been made by someone else, Mirror Newspapers Ltd v Harrison[24] is an exception to that general rule: John Fairfax Publications Pty Ltd v Obeid.[25] This point is of particular significance in the present case.
It is convenient now to set out the article published by the respondent in the Centralian Advocate.
“‘DEAD’ MAN FLEES WHEELIE BIN GRAVE
Bash victim overhears horror plan
By REBECCA FALCONER
A WOMAN and her lover discussed dumping her brother’s battered body in a wheelie bin, unaware he was listening to them, a court heard.
Wendy Nicole Frank told the Alice Springs Magistrates Court that she and Raymond Patrick Coull discussed how to dispose of her brother Lenny’s body as he lay on the floor.
Ms Frank said: “We thought he was dead.
“We thought to dispose it, we’d put Lenny’s body into a wheelie bin, then put the body into one of the utes that we had outside and then dispose that into a well.
“But we argued the fact that he’s my brother and how would I know if he’s dead yet.”
Mr Frank earlier told the court he was left laying on the floor of his mother’s Tennant Creek flat after Coull repeatedly bashed him with a rock.
But he said after hearing the couple’s conversation, he mustered the strength to flee, before collapsing in the street outside. Mr Frank told the court that he heard Coull suggest to his sister that they grab his body, chuck him in the car and throw him down a mine shaft.
Investigating officer Senior Constable Robert Day described in court Mr Frank’s injuries as gruesome.
He said: “Mr Frank had extensive facial injuries, the like of which I have never seen before or since.
“There was blood and skin flaps hanging down his face in various locations.”
The court heard the incident happened after Mr Frank, who admitted to being drunk, began arguing with the pair over the state of his mother’s house.
Argument
The defence also alleged that Mr Frank smashed a window on a door and that there was a further argument that he caused Ms Frank to miscarry after he attacked her.
Alice Springs-born Ms Frank admitted in court that she had lied in her police statement.
Although on the record of interview she denied it, she claimed in court she was drunk and that she lied for several reasons, including because she wanted to take the blame for the attack.
She also said: “I was just trying to make a good name for myself with the police because the police that was interviewing me, I had a crush on him.”
Magistrate John Birch adjourned Coull’s hearing last Wednesday to January 11 next year.
He faces the charge of aggravated assault.”
As I have said I am unable to see anything libellous in that publication when it is fairly read. It is plainly a report of a yet to be concluded contested criminal proceeding in court. It involved the criminal prosecution of the appellant upon a charge of aggravated assault of Lenny Frank. The appellant’s defence was yet to be heard. The case was adjourned for further hearing. The article tellingly concludes that the appellant “faces the charge of aggravated assault”. The article does not assert that the appellant repeatedly bashed Frank with a rock but that Frank had given evidence in the court case that he had. The article reports some of the prosecution evidence against the appellant. It does not give, or purport to give, any imprimatur or credence to that evidence. A fair reading of the report does not give rise to the inference that the author of the report was of the view the appellant was guilty. Rather, as I have said, the publication was a report of a contested court case in which the question whether the appellant had “brutally bashed Lenny Frank on the face with a rock causing gruesome injuries” remained to be determined by the Court at the conclusion of the trial and only after it had heard all the evidence. Whether the appellant was guilty as charged or not was for the Court, not others, to decide. The ordinary reasonable reader of these articles would be mindful of the presumption of innocence, that the Crown bore the onus of proving the guilt of the accused, that the guilt or otherwise of the appellant remained to be determined, that many persons charged with a criminal offence are ultimately convicted, that guilt or no guilt is a question to be determined by a Court and that not infrequently persons charged are acquitted.[26]
In my opinion the articles published by the respondent were not capable of being understood by reasonable and fair minded readers in the sense the appellant says was defamatory of him.
The appeal should be dismissed, the cross–appeal should be allowed, the judgment for the appellant against the respondent should be set aside, the order for costs below should be set aside, and judgment should be entered for the respondent against the appellant.
In the circumstances it may be there ought to be no costs on either side and no costs of the appeal, as in Bank of New South Wales v O’Connor.[27] I should like to hear the parties on the question of costs.
MILDREN J:
Background
The appellant sued in the Supreme Court seeking damages for defamation. The claim was in respect of an article published in the Centralian Advocate newspaper and in the Northern Territory News newspaper on 7 December 2004. The respondent was the publisher of both newspapers. In respect of both articles, the appellant complained that the articles conveyed the defamatory imputation that the appellant had brutally bashed Lenny Frank on the face with a rock causing gruesome injuries. By reason of the publications of the matters complained of, the appellant complained that he had been subjected to hatred, ridicule and contempt and suffered distress and damage to his reputation. The appellant claimed damages as well as aggravated and exemplary damages, interest pursuant to s 84 of the Supreme Court Act 1979 (NT), and costs.
It was not in dispute that the respondent published the articles in both newspapers on 7 December 2004. The respondent denied that the articles bear the imputations complained of or that the appellant had been subjected to hatred, ridicule and contempt or had suffered distress and damage to his reputation.
By its amended defence, the respondent pleaded that it would rely on the failure of the appellant to sue on other imputations arising from the publication, namely:
(1)That the appellant was an active participant in a violent assault on Lenny Frank in the course of which Frank was bashed in the face with a rock and suffered facial injuries; and
(2)That the appellant conspired with Wendy Frank secretly to dispose of the body of Lenny Frank, whom the appellant and Wendy Frank believed to be dead as a result of the violent altercation in which the appellant and Wendy Frank were both active participants, by putting it in a wheelie bin and throwing it down a mineshaft in Tennant Creek and not reporting the death to the authorities.
In the alternative the respondent by its defence pleaded that in mitigation of any damage the appellant may be entitled to the respondent said that the appellant had at the time of the publication of the articles and has at the present time a reputation for violent behaviour and in support of that the respondent intended to give evidence that the appellant had been convicted of a number of offences.
Further the respondent pleaded that the matters complained of were fair and accurate reports of legal proceedings pursuant to s 5 of the Defamation Act 1989 (NT) and at common law, namely the criminal prosecution of the appellant for the aggravated assault of Lenny Frank. Section 5 of the Act relevantly provided:
“A fair and accurate report of proceedings publicly heard before any court exercising judicial authority shall, if published contemporaneously with the proceedings, be privileged…”
It is not in dispute that this section is no different from the defence at common law.
The article published on the front page and page 2 of the Centralian Advocate was as follows:
“‘DEAD’ MAN FLEES WHEELIE BIN GRAVE
Bash victim overhears horror plan
By REBECCA FALCONER
A WOMAN and her lover discussed dumping her brother’s battered body in a wheelie bin, unaware he was listening to them, a court heard.
Wendy Nicole Frank told the Alice Springs Magistrates Court that she and Raymond Patrick Coull discussed how to dispose of her brother Lenny’s body as he lay on the floor.
Ms Frank said: “We thought he was dead.
“We thought to dispose it, we’d put Lenny’s body into a wheelie bin, then put the body into one of the utes that we had outside and then disposed that into a well.
“But we argued the fact that he is my brother and how would I know if he’s dead yet.”
Mr Frank earlier told the court he was left laying on the floor of his mother’s Tennant Creek flat after Coull repeatedly bashed him with a rock.
But he said after hearing the couple’s conversation, he mustered the strength to flee, before collapsing in the street outside. Mr Frank told the court that he heard Coull suggest to his sister that they grab his body, chuck him in the car and throw him down a mine shaft.
Investigating officer Senior Constable Robert Day described in court Mr Frank’s injuries as gruesome.
He said: “Mr Frank had extensive facial injuries, the like of which I have never seen before or since.
“There was blood and skin flaps hanging down his face in various locations.”
The court heard the incident happened after Mr Frank, who admitted to being drunk, began arguing with the pair over the state of his mother’s house.
Argument
The defence also alleged that Mr Frank smashed a window on a door and that there was a further argument that he caused Ms Frank to miscarry after he attacked her.
Alice Springs-born Ms Frank admitted in court that she had lied in her police statement.
Although on the record of interview she denied it, she claimed in court she was drunk and that she lied for several reasons, including because she wanted to take the blame for the attack.
She also said: “I was just trying to make a good name for myself with the police because the police that was interviewing me, I had a crush on him.”
Magistrate John Birch adjourned Coull’s hearing last Wednesday to January 11 next year.
He faces the charge of aggravated assault.”
The same article appeared on pages 1 and 2 of the Northern Territory News on 7 December 2004 except that the headline read ““DEAD” MAN HEARD BURY PLAN” and the third and fourth last paragraphs of the article in the Centralian Advocate were omitted. Mr Molomby SC on behalf of the appellant submitted in the Court below that the omission of these two paragraphs in the Northern Territory News report made no difference to the appellant’s claim.
On 11 January 2005, further evidence was called from Wendy Frank and evidence was given by Raymond Coull before the learned Stipendiary Magistrate. The matter was adjourned to 4 February 2005 for decision. On that date the learned Stipendiary Magistrate acquitted Mr Coull of the offence of aggravated assault upon Lenny Frank.
On Tuesday 10 May 2005, the following article appeared on page 9 of the Centralian Advocate and on page 4 of the Northern Territory News:
“Tennant assault accused acquitted
ON December 1, 2004, Raymond Coull appeared in the Alice Springs Magistrates Court charged with the aggravated assault of Lennie Frank at Tennant Creek some four years earlier.
The Centralian Advocate published details of some of the evidence presented against Mr Coull in a report published on December 7, 2004.
Brother
In this report, we failed to make reference to conflicting evidence by Wendy Frank, who had originally accused Mr Coull of the assault, but who admitted in court on December 1, 2004 it was she rather than Mr Coull who had struck Lenny Frank, her brother.
Mr Coull was acquitted of the charge of aggravated assault in February this year.”
The Findings in the Court Below
There was no specific finding that the articles conveyed of the appellant the defamatory imputation pleaded. Nevertheless the judgment proceeded upon the basis that that imputation had been made out and that it was defamatory. The learned trial Judge found that the articles were not a fair and accurate report of the proceedings in Court. Further, the fact that an unfair and inaccurate report was given prominent headlines on the front page of two newspapers must aggravate the damages to be awarded; that the failure by the respondent to publish an apology and to publish the fact of the acquittal until some months after the publication was relevant to the question of damages, but that there were matters that both aggravate and mitigate the damages. One of the matters which her Honour took into account in mitigation of the damages was that the appellant had not complained of the other matters referred to in the articles, especially the evidence given by Wendy Frank as to the discussion between herself and Raymond Coull about the disposal of Lenny Frank’s body and the evidence given by Lenny Frank that Raymond Coull had struck him with a rock. There was no specific finding that the imputations pleaded in the Defence had been made out. The learned trial Judge also took into account the appellant’s prior convictions as being relevant to mitigating his damages to some extent. However, notwithstanding the prominence given to both articles, the learned Judge found that the imputation sued upon would not linger for any length in the minds of the general reader; that the appellant’s own circle of family, friends and acquaintances were no doubt informed by the appellant that he had been acquitted; that there was no evidence that the appellant had any difficulty obtaining employment following the publications; that there was no credible evidence that anyone had shunned the appellant because of the articles; and that, although the appellant felt distressed and humiliated, the Court was not satisfied that his reputation was affected beyond a very limited time after publication. The Court assessed damages in the sum of $12,000 with interest from 7 December 2004 to the date of judgment calculated at four per cent. Judgment was entered in favour of the appellant in the sum of $13,344.
Grounds of Appeal
The appellant appealed on a number of grounds:
(1)First it was submitted that the learned trial Judge erred in law in taking into account the fact that the appellant had not complained of other defamatory matters contained in the article in mitigation of damages.
(2)Second that the award of damages was manifestly inadequate.
(3)Third that the Court erred in law in failing to consider the appellant’s claim for exemplary damages.
(4)Fourth that the Court erred in failing to consider whether the appellant’s convictions pleaded in mitigation had taken place within a relevant period so as to affect his current reputation or were in the relevant sector of his life.
(5)Fifth that the Court erred in concluding that the police and other law enforcement personnel, court staff and persons present in Court would have known of the appellant’s convictions without taking into account that such persons see so many cases that after a short while they are unlikely to remember, and that in any event the question is not whether they once knew them, but whether they recalled them at the date of the publication sued upon.
(6)Sixth that her Honour erred in law in taking into account as mitigation that the appellant informed his own circle of family members, friends and acquaintances of his acquittal.
(7)Seventh that the Court erred in law in finding that there was no credible evidence that two persons referred to in the evidence of Mr Coull shunned him because of the article, was not credible.
The Cross Appeal
The respondent in its cross–appeal also appealed from the whole judgment of the Court below on the ground that the Court erred in law by concluding that the report did not constitute a fair and accurate report of the hearing and in relation to the factors that the Court considered aggravated the damages, the Court erred in concluding that:
(1)the journalist would have seen Mr Coull in court;
(2)the respondent must have decided that it could get away with flouting the appellant’s rights because the appellant did not have the means to seek recourse;
(3)either consciously or unconsciously it would be easy to assess the appellant as a person unlikely to pursue a defamation claim and that it was more probable than not that more care would have been taken if the appellant had been a person of a different status in the community;
(4)the headlines of the reports aggravated the damages in circumstances where there was no unfairness or inaccuracy in relation to the matters referred to in the headlines; and
(5)ought to have found that the appellant left the Northern Territory to live in Adelaide, and therefore had no significant concern as to fear of retaliation subsequent upon the publication.
Was the imputation made out and defamatory?
There is no appeal against the implicit finding of the learned trial Judge that the defamatory imputations pleaded by the respondent were made out, nor is there any cross–appeal against the implicit finding of the learned trial Judge that the articles bore the imputations pleaded by the appellant and that they were defamatory. Notwithstanding the lack of any complaint by the respondent in its cross–appeal, the presiding Judge raised with counsel during the hearing of the appeal whether or not the imputation as pleaded had been made out, and if so whether it was defamatory. Despite this, no application was made during the hearing to amend the notice of cross– appeal.
After the Court reserved its decision the Court thought it desirable to seek written submissions from the parties which we have now received on these issues.
It is well settled that whether the words complained of are capable of a defamatory meaning is a question of law for the trial Judge. If they are so capable then whether the words are in fact defamatory is a question of fact.
In my opinion the meaning as pleaded by the appellant is made out and is plainly defamatory. If Mr Frank had stood out in the middle of the street and said that the appellant had repeatedly bashed him with a rock and caused him to have extensive facial injuries, there would be no doubt that such statements would be defamatory. Because the words complained of were spoken in court by Mr Frank and by the prosecutor, they are subject to absolute privilege. But this does not protect a re-publisher who publishes the defamatory words. A re-publisher of a privileged article is not entitled to rely on the fact that the original article was privileged: see Gatley on Libel and Slander, 8th Edition para 274.
In his written submissions counsel for the respondent submitted that in determining what meaning was conveyed, it is important to look at the full context of the publication and that in this case the context makes it clear in each publication that what is being reported on, is evidence given in the course of a trial and the specific evidence of specific witnesses. Consequently, so it was submitted that a reader of the newspaper, starting mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty, would take the publications as doing no more than reporting what was in truth portion of the prosecution case which had not yet been accepted by the Court.
I am unable to see how this alters the meaning in any material way, nor how it results in the meaning not being tortious.
Reliance was placed upon the decision of the High Court in MirrorNewspapers Ltd v Harrison.[28] In that case the Court held that a report which does no more than state that a person has been arrested and charged with a criminal offence is not capable of bearing an imputation that he is guilty or probably guilty of the offence charged. Strictly speaking that case is not relevant to the circumstances of this case. The question decided by Mirror Newspapers Ltd vHarrison was whether or not the words complained of carried the imputation pleaded, not whether such imputation was defamatory.
The passage in the judgment of Mason J upon which the respondent relies appears at pages 300 – 301 where Mason J said:
“The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted”.
But that statement has to be read in context. Later in his Honour’s judgment he said:[29]
“Although Sugarman ACJ in Rochfort stated that a report of the kind discussed is incapable of bearing an imputation other than what it actually states, namely that the plaintiff has been arrested and charged with an offence, I think that it is capable of bearing the imputation that the police suspected him of having committed the offence and that they had reasonable cause for doing so. That in my opinion was what the ordinary reasonable reader would understand to be conveyed by such a report”. [Footnotes omitted.]
His Honour then went on to say:[30]
“The consequence is that the publisher, if he wishes to justify, will plead that the imputation is a matter of substantial truth and that it relates to a matter of public interest (see s 15 of the Defamation Act 1974 (NSW)). To establish this defence it will be sufficient if the defendant proves arrest, that a charge has been laid and that the plaintiff was suspected by the police, with reasonable cause, of having committed the offence”.
A similar question arose in Favell & AnothervQueensland Newspapers Pty Ltd & Another.[31] In that case the first respondent was the publisher of a newspaper in which an article by the second respondent appeared. The article, entitled “Development site destroyed – Fire guts riverside mansion”, reported that a house owned by the appellants which was the subject of a controversial development application had been destroyed by fire. In an action for defamation it was alleged that a number of imputations could be drawn from the article including that the appellants committed arson and that they were reasonably suspected by the police of having committed arson.
The High Court held that the article was capable of conveying the imputations that the appellants had committed arson and that they were reasonably suspected by the police of having committed arson. In the joint judgment of Gleeson CJ, McHugh, Gummow and Heydon JJ, their Honours said:[32]
“A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interest of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise. There is an overlap between providing information and entertainment, and the publishing of information coupled with a derogatory implication may fall into both categories. It may be that a bare, factual, report that a house has burnt down is less entertaining than a report spiced with an account of a suspicious circumstance”. [Footnotes omitted.]
I do not consider that the observations of Mason J, taken out of context concerning the role of the presumption of innocence has any significance in the circumstances of this case: see the discussion in John Fairfax Publications Pty Ltd v Obeid.[33] Were it otherwise, a re-publisher could escape liability without having to prove truth or rely upon qualified privilege merely by asserting that he was repeating what was said in court in a criminal matter.
Reliance is also placed by the appellant upon the decision in Bik v Mirror Newspapers Ltd,[34] but that is a very different case from this. In that case a newspaper report contained an allegation that the plaintiff had designed a faulty crane which led to a fatality. There was however also a statement by the Minister of Justice that the plaintiff was “completely cleared”. Two members of the Court of Appeal said:[35]
“From beginning to end, the article sued upon sets out to destroy any suggestion that the plaintiff was guilty of any act or omission which led to the death of the deceased man, Ross. The whole tenor of the article is to inform the reader that Mr Bik was wholly cleared, and no fair–minded reader could imply that Mr Bik bore any responsibility for the fatality.”
I accept the submission of counsel for the appellant that what is relevant is not the presence or absence of adoption of the imputation but the presence or absence (expressly or implicitly) of disavowal. Republication of defamatory hearsay constitutes an adoption of the defamatory statement for which the re-publisher is liable as if the re-publisher were the author of the defamatory hearsay.[36]
I would therefore conclude that the articles bore the imputations pleaded by the appellant and that they were defamatory.
The Defence of a Fair and Accurate Report of the Proceedings
The learned trial Judge, although conceding that the case was a difficult one for a journalist to report because at times the evidence was difficult to follow and the evidence given by Wendy Frank was sometimes illogical, concluded that the report was not fair and accurate. First her Honour held that whilst the report did state that Lenny Frank had admitted to being drunk and arguing with the pair over the state of his mother’s house, it failed to state that the evidence of Lenny Frank was that after he got into the house he started arguing with his sister and that when the appellant came into the room he started to “have a go at Raymond and punched him”. The evidence of Wendy Frank was to the effect that Lenny Frank was the aggressor who forced his way into their flat late at night, commenced arguing with Wendy Frank and then turned on Raymond Coull. In fact, Mr Frank’s evidence went even further than her Honour mentioned in that he conceded not only did he have “a go at” the appellant after he had come into the room, but that he had punched Coull, that Coull had been putting up his hands in order to grab him, that they then fell over and all three of them were lying on the floor, and that he bit the appellant on the leg and would not let him go. The evidence of Wendy Frank was to the effect that Lenny Frank had broken into the house by smashing a window to the door out of its frame, burst in complaining about the cleaning with her and then attacked the appellant whom she said was acting in self-defence.
The learned trial Judge also found that the report was not a fair and accurate report of the proceedings in that no mention was made of Wendy Frank’s evidence that it was she who dropped a rock ten times on Lenny Frank’s head. Her evidence was that the rock was a large river rock weighing about five kilograms, “bigger than a footy but the same thickness”. She agreed that she had given a different version of events at the time of her interview with the police, but said that this was because she wanted to put “the weight” onto the appellant. Further according to her evidence the appellant did not pick up the rock at all. On the other hand it is to be noted that counsel for Mr Coull had cross examined Lenny Frank on the basis that he had picked up the rock whilst Mr Frank had been biting him on the leg and hit him in the face with it in order to get him to desist.
The principles to be applied in deciding whether or not the defence of fair and accurate report of court proceedings is made out was discussed by Brennan CJ and McHugh J in Chakravarti v Advertiser Newspapers Ltd:[37]
“[2]The first matter is that, in our view, where a defendant pleads a defence of fair and accurate report in answer to an action for defamation, it is necessary for the tribunal of fact to determine what meanings the publication has before it determines the fairness of the report. The reason for that is that, until the defamatory meaning of the publication is determined, it is not possible to know whether the report is an answer to the plaintiff's claim. A defendant does not lose a defence of fair and accurate report because it is inaccurate in respect of a distinct defamatory imputation which the plaintiff does not sue upon. A plea of fair and accurate report is a plea in confession and avoidance of the plaintiff's claim. Until the plaintiff's claim is defined, the tribunal of fact cannot know what the plea confesses and avoids. Nor can the Court determine whether the report in defaming the plaintiff is nevertheless fair. As Herron CJ and Ferguson J pointed out in Thom v Associated Newspapers Ltd:
“The report need not be verbatim, but to be privileged it must accurately express what took place. Errors may occur; but if they are such as not substantially to alter the impression that the reader would have received had he been present at the trial, the protection is not lost. If, however, there is a substantial misrepresentation of a material fact prejudicial to the plaintiff's reputation, the report must be regarded as unfair and the jury should be so directed (emphasis added).”
[3]In Anderson v Nationwide News Pty Ltd, Asprey JA pointed out:
“A report which contains an untrue statement in a material particular of the result of judicial proceedings prejudicial to a plaintiff's reputation must be regarded as an unfair report of those proceedings as far as that plaintiff is concerned (emphasis added).” [Footnotes omitted.]
In the same case,[38] Gaudron and Gummow JJ said:
“It is well settled that to be fair and accurate, a report need not be a complete report of the proceedings in question. Nor need it be accurate in every respect. It must, however, be substantially accurate. And the question whether it is substantially accurate is a question of fact.” [Footnotes omitted.]
Kirby J said:[39]
“The following principles may be derived from a consideration of the purpose of the statutory provisions and from decisions in the relevant cases:
1.It is not enough that the challenged report be generally fair. It must also be accurate. …
2.It has never been necessary that the report should be a verbatim record of the proceedings reported. A report will ordinarily be abridged or condensed. However, it must not be biased or garbled. In considering whether a publication was a fair report it is proper to take into account any omission from the discussion. A summary of the proceeding is acceptable as long as it retains “substantial accuracy in all material aspects”. The emphasis upon “substantial” is important. The reason for affording the privilege is the public benefit to be derived from reports of the privileged kind. Some recognition may be given of the conditions of urgency in which reports are often compiled and then published. Nit-picking over trivial inaccuracies will not take a report outside the privilege of the section. …
3.Where there is a dispute as to whether a report is fair and accurate, that dispute must be resolved as a factual question by comparing the relevant record of the proceedings with the matter complained of. The test has been expressed in terms of whether the report substantially alters the impression which its recipient would have gained had he or she been present during the proceedings. The issue is not what a trained lawyer would make of the comparison. Nor is it what a particular person with particular knowledge would think.” [Footnotes omitted.]
In my opinion, an ordinary reader would have gained the impression upon reading the report as a whole including the headlines, that the appellant, having unlawfully bashed Mr Frank over the head with a rock a number of times and causing him to suffer gruesome injuries to his face, then entered into a plan with Wendy Frank to dispose of Lenny Frank’s body by dumping it into a wheelie bin and then disposing of the bin in a well.
I think that the learned trial Judge was right to conclude that the report was neither fair nor accurate and that the privilege had been lost. Whilst it is true that Mr Frank had made the allegations complained of in court, the account given by Wendy Frank put an entirely different complexion on the matter in that it showed that she was the one who caused the injuries by dropping the rock on his face a number of times and that, to the extent that Mr Coull was involved, he was acting in self-defence against a drunken and abusive man who had forced his way into the flat by breaking a window to the door and attacking Mr Coull first.
As was said by Steytler J, as he then was, in Nationwide News Pty Ltd v Moodie:[40]
“A one sided report, or one with material omissions such as to give a misleading impression of what was said, will not constitute a fair and accurate report: McGrath v Wellington Publishing Co Ltd [1932] GLR 181 at 182; Bunker v James & Download Publications Ltd (1980) 26 SASR 286; and Chakravarti at 587. So, for example, if a comment critical of the plaintiff, was to be made in the course of parliamentary or judicial proceedings, or the like, and that comment was to be published without any reference to some later qualification, retraction or rebuttal made in the same proceedings, the report could hardly be described as fair as it would not be “a substantially accurate summary of the proceedings” (Anderson v Nationwide News Pty Ltd at 323 per Mason JA) or of the material part of those proceedings.”
Counsel for the respondent submitted that the report did not distort the impression a hearer of the evidence in Court would have had, because the readers’ attention would have been taken by the body disposal plans which were the matters of interest the article concentrated upon. It was put that as Lord Justice Lawton said in Cook v Alexander:[41]
“It is the memorable events which are able to the reported.”
It was put that what a reasonable member of the public would have remembered and noted in respect of these Court proceedings was the discussion of the body disposal plans and the fact that those plans were discussed whilst Mr Frank was lying on the floor after he had asserted that he had been repeatedly bashed with a rock by Mr Coull.
With respect to this argument I think that it confuses what might be interesting and newsworthy from the point of view of a journalist and what is necessary in order for a report to be protected by qualified privilege.
Ground 1 of the Appellant’s Appeal
The appellant submitted that her Honour erred in treating as mitigating the damages that the appellant had not sought to sue upon so much of the report which referred to a discussion about the disposal of the body. Her Honour adopted what fell from Besanko J in Manock v Advertiser News – Weekend Publishing Co Ltd:[42]
“It has long been the position that the plaintiff is able to sue on defamatory imputation in a publication and not another. A good example of the application of this principle is found in the decision of the New Zealand Court of Appeal in Templeton v Jones [1984] 1 NZLR 448. It was said of the plaintiff in that case that he was “a man who despised bureaucrats, politicians, women, Jews and professionals.” The plaintiff complained only of the allegation that he despised Jews. The defendant pleaded justification and provided particulars of the criticisms of the plaintiff in addition to the allegation that he was anti-Semitic. The additional particulars were struck out because the plaintiff was entitled to restrict his plea to the allegation that he was anti-Semitic, and accordingly, the additional particulars were irrelevant. Cook J said (at 451):
‘It is elementary that a defendant may not justify – that is to say, prove the truth of – that of which the plaintiff does not complain. If an article or speech or a broadcast makes several charges against the plaintiff, he is entitled to sue on one charge only. The defendant may then justify that charge if he can, but he is not allowed to confuse the issue by bringing evidence that the other charges are true. He is fully entitled to point out to the tribunal of fact, usually a jury in defamation cases, that the plaintiff has not complained of the other charges made at the same time. But that goes only to damages.’”
It was submitted that the last sentence in the quote from the judgment of Cook J, as he then was, and relied upon by Besanko J and by the learned trial Judge is not the law in Australia. In Chakravati v Advertiser Newspapers Ltd,[43] Gaudron and Gummow JJ said:
“[93]In Dingle, Lord Radcliffe observed that the trial Judge’s task of assessing damages in that case had not been simple because “[h]e had first to eliminate from his mind that small part of the imputation that he found to be justified… [and n]ext [he] had to eliminate that part of the article which consisted of extracts from the select committees report, since under the Act of 1840 such extracts could not in law be treated as a libel.” That approach would have been permissible in this case if the Advertiser had justified one or more of the imputations upon which Mr Chakravarti relied or established that some discreet part was fair comment or was privileged on some basis other than fair report of the proceedings of the Royal Commission. But that approach has no justification where the issue is simply one of fair report of particular proceedings.
[94]A report is either fair or it is not. Where privilege attaches, it attaches because it is in the public interest to publish a fair report of the proceedings in issue. It is not in the public interest to publish a report that is unfair, even if the report is accurate in part. Thus, it is inaccurate to speak of parts of an unfair report which are privileged or non-actionable unless, as earlier indicated, they are privileged on some other basis, are fair comment or have been justified.” [Footnotes omitted.]
In this case there is no plea of justification to any parts of the report nor is fair comment or privilege on some other basis made out.
The situation in Chakravati v Advertiser Newspapers Ltd[44] was not quite the same as the case as pleaded by the appellant. In this case the appellant did not allege that the whole of the article was defamatory of him, but confined his case to the defamatory imputation that he brutally bashed Lenny Frank on the face with a rock causing gruesome injuries. Does this mean that his failure to sue for the other matters referred to in the article are able to be taken into account in mitigation of damages?
In Associated Newspapers Ltd v Dingle[45] the “Daily Mail” and other newspapers published a report of the Select Committee of Parliament containing matter defamatory of the respondent. Subsequently the Daily Mail published an article relating to the same matter in an unprivileged form. In assessing the damages for the libel contained in the latter article, the Judge mitigated the amount awarded by taking into consideration the effect on the respondent’s reputation of the same libel appearing in a privileged form previously to or contemporaneously with the publication of the libel in the suit and which had been put in evidence by the appellants to refute malice. The House of Lords held that the Judge had wrongly taken into account the effect of the other publications of the libel and that the damages should not be reduced on the grounds that the respondent had acquired a tarnished reputation by reason of the publication of the select committee’s report. The report of the select committee was published on an occasion protected by absolute privilege so that any extract or quotation from the document which appeared in a newspaper would be immune from libel proceedings if published bona fide and without malice. However, the reason why the defendant was not able to rely on the other material as having tarnished the plaintiff’s reputation in that case is because of a well understood rule of law that a defendant who has not justified his defamatory statements cannot mitigate the damages for which he is liable by producing evidence of other publications to the same effect as his. I do not consider that that principle is of relevance in this case.
In my opinion the matter should be tested this way. Suppose the appellant had attempted to rely upon the whole of the publication as defamatory of him, the respondent could have pleaded the truth of that portion of the publication relating to the discussion concerning the disposal of the body. If that plea had succeeded the respondent would have been entitled to rely upon the success of that plea in mitigation of damages.[46]
Thus it seems to me that the correct principle to be applied in this case is that relied upon by the learned trial Judge and supported by the decision of the Court of Appeal of New Zealand in Templeton v Jones[47] and by the observations of Lord Denning in Speidel v Plato Films Inc.[48] In other words if admissible evidence has been put before the jury or, in a case such as this, before a Judge sitting alone, of matters which go to a plaintiff’s reputation, those matters may be relied upon in mitigation of damages. It is in this context that it must be remembered that most of the cases which deal with the rule in Scott v Sampson[49] including the later case of Burstein v Times Newspapers Ltd[50] were cases which dealt with the admissibility of evidence and of pleadings and as such, in my view, irrelevant to a case such as this.
I would therefore dismiss this ground of appeal.
Ground 4
The appellant complains under this ground that her Honour erred in law in failing to consider whether the appellant’s convictions pleaded in mitigation had taken place within a relevant period such as to effect his current reputation or were in the relevant sector of his life. In this case the defendants were permitted to plead in mitigation of damages a number of prior convictions extending from 3 December 1986 to 4 February 2005. It is not denied that, as an exception to the general rule, that evidence of past instances of misconduct cannot be given in support of mitigation of damages, the defendant to a libel suit can plead and prove a plaintiff’s prior convictions provided they bear some connection to the subject of the defamatory material and are not too distant in time to affect the plaintiff’s reputation. The principal authority in this area is Goody v Odhams Press Ltd,[51] but as was said in that case the convictions must be in the relevant sector of the plaintiff’s life and have taken place within a relevant period such as to affect his current reputation.
The record of convictions indicates that the majority of them were minor summary offences dealt with in the Alice Springs Court of Summary Jurisdiction with some being dealt with in the Tennant Creek Court of Summary Jurisdiction and others in the Yulara Court of Summary Jurisdiction.
The learned trial Judge said:
“Mr Coull does have prior convictions in the Northern Territory that are relevant. There is no evidence these convictions were ever published or were the subject of any report. However, the Northern Territory is a small community. There must have been a number of people aware of the charges and subsequent convictions, including but not limited to the victim/s, members of the victims’ family, police and other law enforcement personnel, court staff, persons present in the court on the respective dates, and others to whom those persons may have spoken. How widely known these convictions were is difficult to ascertain but there would be persons in the Northern Territory who had a knowledge of them. From his prior convictions it is obvious Mr Coull is no stranger to court proceedings. His attendances at court and subsequent convictions must have been known to some in the community. He was not a person with an unblemished record. This must mitigate damages to some extent.”
Counsel for the appellant submitted that there was no consideration whether the convictions were sufficiently recent and no consideration of whether they were in the relevant sector of the appellant’s life so as to affect his current reputation at the time of the trial. I consider that this ground of appeal is made out. Apart from three convictions for aggravated assault, none of the other convictions were in the relevant sector of personal violence and the three convictions for aggravated assault were respectively 10, 15 and 18 years prior to the publications. Two of those aggravated assaults were in the Tennant Creek Court of Summary Jurisdiction and one at Yulara. In my opinion, these convictions were so long ago as to be irrelevant and that the Judge was wrong to take any of the convictions into account as mitigating the damages in any way. I would therefore allow the appeal on this ground.
Ground 5
This ground criticises a finding made by her Honour in concluding that the police and other law enforcement personnel, court staff and persons present in court would have known of the appellant’s convictions. As in my opinion the convictions are not relevant it is not necessary to deal with this ground. In any event I do not think it is necessary for a Judge to conclude whether or not the convictions are known to the general public. There is nothing in Goody v Odhams Press Ltd[52] to suggest that this must be so.
Ground 6 – Her Honour erred in law in taking into account as mitigation that the appellant no doubt informed his own circle of family members, friends and acquaintances of his acquittal
It was submitted that this matter had not been raised on the pleadings nor had it been raised with the appellant during cross-examination.
Counsel for the respondent submitted that the appellant had misconceived the way in which her Honour referred to this issue. Whilst her Honour did comment that the appellant no doubt informed his circle of family members, friends and acquaintances that he had been acquitted of the charges that had been brought against him, it was submitted that this was said in the context of dealing with Mr Coull’s evidence as to his brother telephoning him about the correction. It was submitted that there was no evidence one way or the other as to the effect on members of Mr Coull’s circle of family members, friends and acquaintances other than his brother who did not believe that he was guilty. This was therefore a completely neutral matter and the learned trial Judge could as easily have said that there was no evidence that the circle of family members, friends and acquaintances were in any way affected by the publication.
I think there is force in the respondent’s submission. If there was no evidence that any of these people were even aware of the publication or in any way affected by it the matter is no doubt completely neutral.
However, the appellant gave evidence that his friends generally had shunned him after the article and that he had noticed a lot of change in a lot of people since this came out.
I do not think therefore that it can be said that the matter was completely neutral. Nevertheless, the evidence was that the Northern Territory News subsequently published the fact that the appellant had been acquitted of the aggravated assault charge on 10 May 2005 so that to that extent it may be inferred that a number of persons who knew the appellant eventually became aware of that fact. Certainly on the evidence the appellant’s brother was aware of it and it would be surprising indeed if other members of the appellant’s family did not come to be aware of it. I do not think that there is any substance to this ground of appeal and therefore I would dismiss it.
Ground 3 – Her Honour erred in law in failing to consider the appellant’s claim for exemplary damages
Counsel for the appellant submitted that the appellant’s case contained a claim for exemplary damages, but the learned trial Judge, although recording that fact in her judgment, did not deal with it. It was put that the particulars relied on for the claim for exemplary damages were the same as for aggravated damages. Amongst the matters relied upon in support of a claim for exemplary damages was the following:
“The misrepresentations of the evidence were so clear and fundamental and the damage to the plaintiff’s reputation by the article so serious and obvious, that the defendant must have decided that it could get away with flouting the plaintiff’s rights with such contempt because he would not have the means to seek recourse.”
The learned trial Judge came to the conclusion that there was merit in this ground but failed to deal with the question of exemplary damages entirely.
Counsel for the respondent submitted that the findings that her Honour made on this issue were not supported by the evidence. In particular her Honour relied upon a finding that the journalist who wrote the article would have seen the appellant in court which combined with the evidence given would have enabled the journalist to make an assessment of the appellant’s background and circumstances. Her Honour found that:
“… from his appearance and with some knowledge of the circumstances in which he lived he would not be expected to be a person who would pursue a defamation action. Either consciously or unconsciously it would be easy to assess Mr Coull as a person unlikely to pursue a defamation claim. Whilst this may not be a factor that the journalist or the respondent particularly turned their mind to, it is more probably than not that more care would have been taken in the report of the court proceedings if the subject of the charges had been of a different status in the community.”
In fact there was no evidence as to whether or not the journalist was present in Court. The journalist may have relied upon a transcript of the evidence. In any event there is no finding of a conscious wrongdoing in contumelious disregard of the appellant’s rights[53]. Indeed her Honour’s finding is that whether or not the journalist or the respondent particularly had turned their minds to the possibility that the appellant would not have the means to seek recourse may not have been a factor which the journalist or the respondent particularly turned their minds to.
In my opinion the claim for exemplary damages was not made out and I would therefore dismiss this ground of appeal.
Ground 2 – The award of damages was manifestly inadequate
The test for whether or not the damages awarded were manifestly excessive or manifestly inadequate in defamation cases invokes the last of the bases for a review of an exercise of discretion identified in House v The King.[54] If the award is said to be manifestly inadequate it is said that whilst no specific error of principle or fact can be identified, the result which the primary Judge reached is evidently wrong and that although the nature of the error may not be discoverable there must have been a failure to properly exercise the discretion in fixing the amount so awarded.[55] In this case because error has been demonstrated it is not strictly necessary to consider this ground of appeal, but it is my opinion that even if the learned trial Judge was right to give some weight to the appellant’s prior convictions the quantum of the damages awarded was so small as to indicate error.
As was said in Carson v John Fairfax & Sons Ltd:[56]
“Specific economic loss and exemplary or punitive damages aside, there are three purposes to be served by damages awarded for defamation. The three purposes no doubt overlap considerably in reality and ensure that “the amount of a verdict is the product of a mixture of inextricable considerations. The three purposes are consolation for the personal distress and hurt caused to the appellant by the publication, reparation for the harm done to the appellant’s personal and (if relevant) business reputation and vindication of the appellant’s reputation. The first two purposes are frequently considered together and constitute consolation for the wrong done to the appellant. Vindication looks to the attitude of others to the appellant: the sum awarded must be at least the minimum necessary to signal to the public the vindication of the appellant’s reputation. “The gravity of the libel, the social standing of the parties and the availability of alternative remedies” are all relevant to assessing the quantum of damages necessary to vindicate the appellant.” [Footnotes omitted.]
In the same case,[57] Brennan J said:
“The consequences of publication include not only the insult publicly inflicted on the plaintiff but also the effect of the defamation on those to whom it is published, any diminution in the regard in which the plaintiff is held by others, any isolation produced (causing the plaintiff to be “shunned or avoided” is the traditional formula) and any conduct adverse to the plaintiff engaged in by others because of the publication of the defamatory matter. Damages are awarded also for the plaintiff’s injured feelings, including the hurt, anxiety, loss of self-esteem, the sense of indignity and the sense of outrage felt by the plaintiff. Indeed, all those objective consequences and those subjective reactions which flow naturally from the publication of the defamatory matter are relevant factors. Of course, the subjective reactions are often produced by the objective consequences of the publication. The two categories are not cumulative heads of damage but descriptions of kinds of intangible factors which must be taken into account in assessing damages.
Damages may be aggravated or mitigated by the manner in which the defamatory matter was published and by the subsequent conduct of the defendant. Conduct of the defendant from the time of publication until verdict (including conduct at the trial, to which reference will presently be made) is relevant.” [Footnotes omitted.]
His Honour also said:[58]
“Damages by way of vindication of reputation are not added to the damages assessed under other heads. Although an award of damages operates “as a vindication of the plaintiff to the public and as consolation to him for a wrong done”, as Windeyer J said, the dual operation of an award does not require cumulative components of damages. The same sum can operate as vindication, compensation and solatium, for “the amount of a verdict is the product of a mixture of inextricable considerations”. The amount assessed under other heads may itself be sufficient in aggregate to provide the vindication required. The extent of the overlap depends on the circumstances. But the award in total must be sufficient to satisfy the purposes for which damages for defamation are awarded: vindication of reputation, compensation for injury to reputation and solatium for injured feelings.” [Footnotes omitted.]
In this matter the learned trial Judge found that there were matters which aggravated the damages as well as those which mitigated. On the findings of the learned trial Judge the appellant felt distressed and humiliated at the time of the publication and at the time of trial still had such feelings, but her Honour was not satisfied that his reputation was affected beyond a very limited time after publication. She also accepted the report caused him hurt and distress and that he had some reason to fear retaliation. Indeed her Honour accepted the evidence of the appellant that the relatives of Lenny Frank attended at the flat shortly after the date of the alleged assault and the appellant was assaulted by them. The next day the appellant left for Adelaide and did not return to the Northern Territory for four years. Since his return to Alice Springs in 2005 there is no evidence that he or his family had been threatened with retaliation.
The learned trial Judge also found there was potential for the report to have an affect on the appellant’s future employment prospects at the time the report was published, but the evidence was that he did secure employment with a person who had read the article and had been in that employment for two years.
Further there was no apology in this matter although the appellant did seek an apology from the respondent by letter dated 19 April 2005. The solicitors for the respondent responded on 9 May 2005 and agreed to the publication of a correction, but refused to publish an apology. In consequence the respondent published the fact of the acquittal. The learned trial Judge found that the failure to publish an apology and the failure to publish the fact of the acquittal until some months after the publication of the defamatory material was relevant to the question of damages.
As was submitted by Mr Molomby SC, the article sued on could not have been more prominent being on the front page of the Northern Territory News which was read by some 50 per cent of people over the age of 14 in the Darwin and Alice Springs areas, the other being on the front page of the Centralian Advocate read by some 75 per cent of those persons over the age of 14 in Alice Springs.
Counsel for the respondent made some point that the main thrust of the story in each case was the discussion between Wendy Frank and the appellant concerning the dumping of Lenny Frank’s body in a wheelie bin and disposing of it in a mineshaft. In fact the article was the main article on the front page of the Centralian Advocate and continued over for a full column on page two. Similarly the article was the lead story on the front page of the Northern Territory News and also continued over onto page two. The articles could not have been more prominent.
I agree with the submission of Mr Molomby SC that it is difficult to see how even if the mitigating factors were given the maximum possible weight, the award could conceivably have been so low. In my opinion the award is manifestly inadequate and I would allow the appeal on this ground as well.
Ground 7
It was submitted by counsel for the appellant that her Honour erred in law in finding that the appellant’s evidence of two people whom he had met who had made reference to the publications was far from convincing in that her Honour gave no reasons for that finding and that the respondent had not put in issue the appellant’s account of those incidents.
The appellant gave evidence in chief of two instances. In one, a man whom he knew named John Beard said to him in a hotel that he thought he would be in prison for what he had done; in the other a man named Andrew Age called him the ‘wheelie bin murderer’. He was cross-examined in relation to these but only as to whether the article had been mentioned (as to which he said the first man had, but it was only his own assumption that the second had read it). There was no suggestion that the incidents had not occurred as he had testified.
It was put that her Honour’s findings on these incidents do not quite match the evidence and that she said without giving any specific reason that the appellant’s evidence “was far from convincing”. Perhaps what followed was intended as a reason: “There is no credible evidence they, or anyone else, have shunned him because of the articles”. Mr Molomby SC submitted that there were several problems with this. The purpose of the evidence was to demonstrate the damaging effect of the article; shunning is only one such effect. The appellant’s evidence was that Mr Age abused him in the street and that he was “screaming at his sister to stay away from me, I’m the wheelie bin murderer”. This may not be shunning, but it is certainly incitement to shun and clear evidence of damage, so it was put. It was submitted also that the appellant gave evidence that his friends generally had shunned him after the article and that he had said, “I’ve noticed a lot of change in a lot of people since this came out.” Her Honour made no reference to these aspects of the evidence although they were noted in the judgment and as they were not put in issue by the respondent it was submitted that this should have been accepted.
In my opinion it was the function of the learned trial Judge to assess the credibility of the evidence given by the appellant. Her Honour did not find the evidence to be credible. This Court ought not to interfere with that finding unless some error is shown. The suggested error is that her Honour overlooked part of the appellant’s evidence which was not put in issue by the respondent. In the absence of any reasons given by her Honour as to why that evidence should not have been accepted, I consider that the evidence must have been overlooked. In my opinion, therefore, this ground is also made out.
Interest
The appellant in the cross appeal has appealed her Honour’s award of interest at the rate of four per cent from the date of publication until the date of judgment relying on MBP (SA) Pty Ltd v Gogic.[59] The submission was put that if there is any variation to the award of damages then it would be appropriate to take into account that damage was suffered over a period and the rate should therefore be halved. It has never been the practice in this jurisdiction to halve the rate of interest. In Rosecrance v Rosecrance[60] this Court held that the settled practice in the Northern Territory of an interest rate of four per cent on non-economic loss items over the whole period has been consistently applied in the Northern Territory and before changing what has become that settled practice the Court should hear evidence.
I would, therefore, not consider it is appropriate to award interest at a different rate.
Conclusion
As the appellant has succeeded in this appeal, the parties have agreed that this Court should assess for itself the appropriate award of damages. Dealing with this question I think some further comment is necessary upon the extent to which allowance in mitigation of damages should be made for the fact that the appellant confined the defamatory imputation upon which the appellant sued to the imputation that the appellant brutally bashed Lenny Frank on the face with a rock causing gruesome injuries and made no complaint about that portion of the article which reported that the appellant and Wendy Frank had discussed how to dispose of Lenny’s body. As to this I consider that even if it were the appellant who suggested disposing of the body in this manner as reported in the article, it one thing to say that he brutally bashed a person on the face with a rock causing gruesome injuries and suggested that the body be disposed of in this manner and it is quite another thing to say that the suggestion was made in the context of injuries being caused by Wendy Frank, the appellant’s then lover. Whilst both no doubt are discreditable, one is far more discreditable than the other.
Having regard to the fact that the appellant is entitled to aggravated damages, in my opinion an appropriate award in all the circumstances is $80,000. I would therefore allow the appeal and dismiss the cross–appeal and substitute for the award made, an award of $80,000 plus interest thereon at the rate of four per cent until the date of judgment of this Court.
SOUTHWOOD J:
For the reasons which Mildren J has given, I agree that the appellant’s appeal in relation to damages should be allowed and that the respondent’s cross–appeal should be dismissed.
There is one issue that was raised during the course of the appeal about which I wish to give some further reasons. The issue is whether the articles that were published by the respondent in the Centralian Advocate newspaper and the Northern Territory News newspaper on 7 December 2004 (the articles) were reasonably capable of conveying the defamatory imputation that the appellant “brutally bashed Lenny Frank on the face with a rock, causing gruesome injuries” and, if so, were the articles in fact defamatory.
The article that was published in the Centralian Advocate is reproduced in para [18] of the Reasons for Decision of Angel ACJ and in para [29] of the Reasons for Decision of Mildren J. The article that was published in the Northern Territory News is substantially the same as the article published in the Centralian Advocate.
The articles contain a report about some of the evidence that was tendered during the course of a criminal proceeding in the Court of Summary Jurisdiction in Alice Springs in which the appellant was summarily tried and ultimately acquitted of the crime of aggravated assault of Lenny Frank. At the time that the articles were published the trial of the appellant was part heard by the presiding magistrate. The articles do not report on all of the evidence that was tendered in the Court of Summary Jurisdiction before 7 December 2007.
Before the articles were published Wendy Frank, who is Lenny Frank’s sister, gave the following evidence in chief in the Court of Summary Jurisdiction:
Prosecutor:Wrestling. Okay, they were wrestling and you said that [the appellant] was defending himself. Can you just tell us what you did then?
Wendy Frank: I went to break them up but because they were both heavier that I was at that time and then we all tumbled to the ground. And then Lennie [sic] latched onto my arm and then all of a sudden he let go and then latched onto my breast.
Prosecutor:You say ‘latched on’ can you tell us just how he latched on?
Wendy Frank: Biting me with his teeth.
Magistrate:So you are saying that he was biting your arm too by latching on?
Wendy Frank: Before my breast, yes.
Prosecutor:And you have mentioned that the three of you went to the ground, were you still on the ground when he did this?
Wendy Frank: Yes.
Prosecutor:And what happened then?
Wendy Frank: Um, he let go. I picked up the rock and then stand on top of him and then continually picking up the rock and letting it down to his face.
Prosecutor:Okay?
Wendy Frank: But without force.
Prosecutor:All right. When you say he let go are you talking about Lennie?
Wendy Frank: Yes, Lennie.
Prosecutor:And when he let go were you able to see what had happened to [the appellant] at that time?
Wendy Frank: As I could picture that [the appellant] was in the room at that time. I don’t know if it did happen or what. I think he pushed the rock towards me or maybe I just got near the rock, but yes, [the appellant] was near us at the time when me and Lennie was wrestling or Lennie was on top of me.
Prosecutor:And in your mind why did Lennie detach himself from your breast?
Wendy Frank: Well I assume that [the appellant] hit him.
Magistrate:If you don’t know, if you didn’t see it …
Wendy Frank: No.
Magistrate:I don’t want you to assume anything. I just want you to tell me about what you saw or heard.
Wendy Frank: I heard screaming and I heard [the appellant] saying, ‘Get off her. Let her get up. Stop biting her.’ And then, ‘Deal with this’ or something like that, I can’t remember, sorry.
Prosecutor: Okay. So you heard him say, ‘Deal with this,’ and then?
Wendy Frank: ‘Deal with this,’ I am not too sure about that.
Prosecutor:Something like – was it something like that or was it …?
Wendy Frank: Something like that, yes.
Prosecutor:Was it something else?
Wendy Frank: I don’t know if Lennie said, I don’t know if [the appellant] said it. I am not too sure.
Prosecutor:Okay, so then after he detaches himself from the breast and you pick up the rock what position is Lennie in then?
Wendy Frank: On his back on the floor.
Prosecutor:You said that you dropped the – could you describe the rock?
Wendy Frank: River style. It was a large river style and about five kilos.
…
Prosecutor:How many times do you think you dropped the rock on his head?
Wendy Frank: I think around 10 times. I can’t say.
Prosecutor:And was this continuous, did you stop at any point or what happened?
Wendy Frank: Continuous until [the appellant] said that was enough.
Neither of the articles reported that Ms Frank had given the above evidence. Nor did they report that there was an issue in the trial as to whether it was Ms Frank and not the appellant who had caused the injuries to Lenny Frank.
The appellant claims that both of the articles conveyed the defamatory imputation that the appellant “brutally bashed Lenny Frank on the face with a rock, causing gruesome injuries”. The appellant does not claim that the articles conveyed the imputation that he was guilty of the crime of aggravated assault.
There are two principal steps involved in determining whether the articles convey a defamatory imputation. The first step is to determine whether the articles are capable of conveying the imputation pleaded by the appellant and whether the imputation is capable of being defamatory. This is a question of law. The second step is to determine whether in fact the publication conveys a defamatory imputation.
The first step involves the application of the following test: what would the ordinary reasonable reader understand by the matter complained of? What meaning would they consider was conveyed by the words used by the respondent in the articles? In Farquhar v Bottom[61] Hunt J stated that:
“In deciding whether the matter complained of is capable of
conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of
reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation: Jones v Skelton. I must proceed upon
the basis that the ordinary reasonable reader is a person of fair, average intelligence: Slatyer v Daily Telegraph Newspaper Co Ltd ; who is neither perverse: ibid; nor morbid or suspicious of mind: Keogh v Incorporated Dental Hospital of Ireland; nor avid for scandal: Lewis v Daily Telegraph Ltd.
This ordinary reasonable reader does not, we are told, live in an
ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd; Jones v Skelton; Lang v Australian Consolidated Press Ltd. It is important to bear in mind that the
ordinary reasonable reader is a layman, not a lawyer, and that his
capacity for implication is much greater than that of the lawyer: Lewis v Daily Telegraph Ltd; Morgan v Odhams Press Ltd; Lang v Australian Consolidated Press Ltd; Middle East Airlines Airliban SAL v Sungravure Pty Ltd.”
The same principles apply in a case such as the present case which involves the publication of defamatory hearsay. It is also necessary to take into account the following matters when deciding whether the hearsay complained of is capable of conveying the defamatory imputation relied on by the appellant. Republication of defamatory hearsay constitutes adoption of the defamatory statements; as a general rule the republisher is liable in defamation as if the republisher was the author of the defamatory hearsay, mere publication attracts liability; to determine what, if any, defamatory imputations are conveyed by the publication in which the defamatory hearsay appears, the matter complained of must be viewed as a whole: John Fairfax Publications Pty Ltd v Obeid.[62]
The whole context in which the defamatory hearsay was published, including whether the defamatory hearsay is approved, reaffirmed and/or endorsed, repudiated or discounted and the purpose of the republication, may be relevant to determining what, if any, defamatory imputations are conveyed in a publication which includes the defamatory hearsay such as the articles that were published in this case: John Fairfax Publications Pty Ltd v Obeid;[63] Wake v John Fairfax & Sons Ltd;[64] Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd;[65] Ainsworth Nominees Pty Ltd v Hanrahan.[66] It is necessary to consider whether the defamatory imputation relied on by the appellant is conveyed in the context of the whole of each of the articles in which the defamatory hearsay has been published: Ross McConnel Kitchen & Co Pty Ltd v John Fairfax & Sons Ltd.[67]
In order for the respondent to be found liable it is not necessary for the appellant to establish that the respondent has in someway endorsed the defamatory hearsay contained in the articles. The question whether the articles approved or endorsed the defamatory hearsay that they contain may be relevant to the issue as to whether the defamatory imputation relied on by the appellant was conveyed by the articles. However, the respondent’s approval or endorsement of the defamatory hearsay is not a determinative precondition of the respondent’s liability. Nor is it necessary for the appellant to establish that the articles manifest an intention on the respondent’s part to suggest that the appellant was guilty of the crime of aggravated assault: John Fairfax Publications Pty Ltd v Obeid;[68] Lee v Wilson & MacKinnon.[69] The respondent’s intention is irrelevant to the meaning in fact conveyed by the articles: Love v Mirror Newspapers Ltd.[70] The important distinction which must be kept in mind is that the issue is not what the respondent in fact intended, but rather what intention should be inferred from what the respondent said: Hepburn v TCN Channel Nine Pty Ltd.[71] Nor can the respondent avoid liability merely because both sides of the picture are published. As a general rule an imputation is made by being published, even if it is published as an imputation made by someone else: Nationwide News Pty Ltd v Heggie.[72]
The question for the trial judge, in the first instance, was to determine whether in the context of each article as a whole there was a sufficiency of material to determine that it could reasonably be concluded by an ordinary reasonable reader that each of the articles conveyed the defamatory imputation that the appellant “brutally bashed Lenny Frank on the face with a rock, causing gruesome injuries”.
In my opinion the following statements in the article that was published in the Centralian Advocate are capable of conveying the imputation relied on by the appellant. First, the subheading, “Bash victim overhears horror plan”; the subheading contains a conclusion, which is expressed by the writer of the article, that there is a person who was the victim of a bashing. Secondly, the statements attributed to Wendy Nicole Frank that she and the appellant discussed disposing of Lenny Frank’s body; these statements, independently of Lenny Frank, put the appellant at the same location as Lenny Frank while he lay injured on the floor and are information which tends to show that the appellant had a consciousness of guilt. Thirdly, Lenny Frank’s statement that the appellant repeatedly bashed him with a rock. Fourthly, the statements attributed to Senior Constable Robert Day about Lenny Frank’s injuries; these statements are information, independent of Lenny Frank, which shows that Lenny Frank sustained gruesome injuries consistent with his story that he had been bashed numerous times with a rock. The subheading, the statements of Wendy Nicole Frank and the statements of Senior Constable Robert Day all tend to support the allegation of Lenny Frank that the appellant repeatedly bashed him. The balance of the article does not diminish or detract from this primary allegation. It simply provides a background to the incident. The reported background to the incident opens up the possible defences of self defence and provocation but it does not in anyway allude to the possibility that the appellant did not repeatedly bash Lenny Frank with a rock. The final part of the article about the inconsistencies in the evidence of Wendy Nicole Frank is quite meaningless. The article reaffirms the Crown case that the appellant “brutally bashed Lenny Frank on the face with a rock, causing gruesome injuries”. The article that was published in the Northern Territory Newspaper is to the same effect.
Even if it was the intention of the reporter to present the information contained in the articles in the following context - ‘here for your information and entertainment are some alarming and frightening allegations that have been made and are in issue during a court case that is being heard in the Court of Summary Jurisdiction’, that context and flavour are not conveyed by the whole of the articles. The parts of the evidence reported are reported as if the evidence conveys in truth what happened. Even having had regard to the presumption of innocence, the ordinary reasonable reader would be capable of coming to the conclusion that there was no issue in the criminal proceeding about who bashed Lenny Frank and caused his injuries, it was the appellant.
In my opinion the articles published by the respondent are capable of and do convey the defamatory imputation relied on by the appellant. The fact that the articles are a report on a part heard criminal proceeding and refer to some of the evidence in the proceeding does not alter the substance and effect of the defamatory hearsay contained in the articles even when that material is read in the context of the whole of the article.
I agree with the orders proposed by Mildren J.
------------------------------
[1] [1936] 2 All ER 1237 at 1240.
[2] (1998) 193 CLR 519 at 525–526 [2].
[3] Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 536–537 [33], [34].
[4] Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 566 [121].
[5] (1889) 14 App Cas 273 at 281 (PC).
[6] (1982) 149 CLR 293.
[7] Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300–301.
[8] (2005) 64 NSWLR 485 at 500 [70].
[9] (2005) 221 ALR 186 at 189–190 [9], [10], [11].
[10] [1964] NSWR 485 at 491.
[11] [1964] AC 234 at 258.
[12] [1964] AC 234 at 277.
[13] Lewis v Daily Telegraph Ltd [1964] AC 234 at 285.
[14] [1964] AC 234 at 260.
[15] (2003) 77 ALJR 1657 at 1661 [26], [27].
[16] (1882) 7 App Cas 741 at 744, 771.
[17] [1894] AC 284 at 287, 288.
[18] [1982] 2 NSWLR 823 at 830.
[19] [1973] 1 NSWLR 43 at 49, 50.
[20] [1966] 1 WLR 34 at 40, 41.
[21] (2005) 64 NSWLR 485 at 511 [123].
[22] (2005) 64 NSWLR 485 at 507 [103].
[23] [2005] NSWCA 279 at [6], [96].
[24] (1982) 149 CLR 293.
[25] (2005) 64 NSWLR 485 at 508 [113], [114].
[26] Ainsworth Nominees Pty Ltd v Hanrahan [1982] 2 NSWLR 823 at 829–830; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 300–301.
[27] (1889) 14 App Cas 273 at 285.
[28] (1982) 149 CLR 293.
[29] Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301.
[30] Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 302.
[31] (2005) 221 ALR 186.
[32] Favell & AnothervQueensland Newspapers Pty Ltd & Another (2005) 221 ALR 186 at 190 [12].
[33] (2005) 64 NSWLR 485 at 498-502; para 63-81, per McColl JA, with whom Sheller JA and McGlennan AJA agreed.
[34] [1979] 2 NSWLR 663.
[35] Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 682D.
[36] See John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485 at 510 [119].
[37] (1998) 193 CLR 519 at 525–526 per Brennan CJ and McHugh J.
[38] Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 540 [42].
[39] Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 587 [153].
[40] (2003) 28 WAR 314 at 333 [79].
[41] [1974] 1 QB 279 at 219 E-F.
[42] (2004) 88 SASR 495 at [33].
[43] (1998) 193 CLR 519 at 557 [93]-[94].
[44] (1998) 193 CLR 519.
[45] (1964) AC 371.
[46] See Tobin & Sexton, Australian Defamation Law and Practice, para 25,130, fn 1; Pamplin v Express Newspapers Ltd (1988) 1 WLR 116 at 120 and 129; Gumina v Williams & Anor (1990) 3 WAR 351; Odgers on Libel and Slander, 2nd edition, at p 312; Gatley on Libel and Slander, 10th edition, para 11.16 fn 49 citing Berezovsky v Forbes Inc [2001] EWCA.CIV.1251; 2001 EMLR 45 at [15]; Whelan v John Fairfax Publications Pty Ltd (2002) 56 NSWLR 89 at 108.
[47] [1984] 1 NZLR 448 at 451.
[48] [1961] AC 1090 at 1142-1143; see also Lord Radcliffe at pg 1127.
[49] (1882) 8 QBD 491.
[50] [2000] All ER [D] 2384; [2001] 1 WLR 579 and Turner v News Group Newspapers Ltd [2006] 1 WLR 3469 as well as Speidel v Plato Films Ltd [1961] AC 1090.
[51] [1967] 1 QB 333 at 340-341 per Lord Denning MR and at 344 per Salmon LJ.
[52] [1967] 1 QB 333.
[53] See Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 at 154 per Windeyer J.
[54] (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ.
[55] See Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 62 per Hayne J; at 118 per Heydon J.
[56] (1993) 178 CLR 44 at 60-61 per Mason CJ, Deane, Dawson & Gaudron JJ.
[57] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 71.
[58] Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 72.
[59] (1991) 171 CLR 657.
[60] (1998) 8 NTLR 1 at 7.
[61] [1980] 2 NSWLR 380 at 385–386.
[62] (2005) 64 NSWLR 485 per McColl JA at para [119].
[63] (2005) 64 NSWLR 485 per McColl JA at paras [98], [99], [100] and [119].
[64] [1973] 1 NSWLR 43.
[65] [1980] 2 NSWLR 845 at 848.
[66] [1982] 2 NSWLR 823 at p 831.
[67] [1980] 2 NSWLR 845 per Hunt J at 848.
[68] (2005) 64 NSWLR 485 [122].
[69] (1934) 51 CLR 276 per Dixon J at 287.
[70] [1980] 2 NSWLR 112 per Hunt J at 124.
[71] [1983] 2 NSWLR 664 pare Hunt J at 667B.
[72] [2001] NSWCA 257 per Hodgson JA at para [15].
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