Criminal Law (N.S.W.)—Convicted felon—Sentence of death—Commuted to life imprisonment—Capacity to commence civil action while serving sentence—Attainder—Common law—Application to colony of New South Wales—Whether law of attainder suitable to condition of colony in 1828—Statute 9 Geo.IV c.83 (Imp.)—Crimes Act, 1900 (N.S.W.), ss. 459, 467, 469.
Decisions
Dec. 19. The following written judgments were delivered:- BARWICK C.J. The applicant for special leave, having been convicted of wounding with intent to murder, was at the date of the commencement of an action at law brought by him against the respondent, and still is, in prison serving a sentence of penal servitude for life, being a sentence into which the sentence of death for his capital felonious offence had been commuted. The action he commenced was for defamation of him by the respondent during the period of his sentence. (at p585)
2. The respondent pleaded the abovementioned facts as a defence to the action. The Supreme Court of New South Wales decided, both at first instance (1976) 1 NSWLR 403 and on appeal, that the plea is an answer to the applicant's claim: that a prisoner serving a life sentence for a capital felony could not sue for a wrong done him whilst under that sentence. (at p585)
3. The applicant is also serving a concurrent sentence of fourteen years with hard labour for a felony committed by him at a time when he was at large on licence. (at p585)
4. The sole question raised on behalf of the applicant is whether the law of England as it stood in 1788 and in 1828 disabled a prisoner serving such a sentence as I have firstly described suing for a wrong claimed to have been done to him and became part of the law of the colony of New South Wales at those times. (at p586)
5. It was faintly suggested at one stage of the argument that, even if that law then became operative in the colony, the Court should now decide that such a law is inappropriate to the conditions of today. The Court can, of course, decide what the common law always has been: and, if earlier judicial decision is not to that effect, overrule or depart from such a decision: and the Court can, as it were, extend the principles of the common law to cover situations not previously encountered, or not as yet the subject of binding precedent. If the Court decides that the common law of England, properly understood, did deny a prisoner in the situation of the applicant the right to sue during the currency of the sentence and that that law was introduced into and became part of the law of the colony, there is no authority in the Court to change that law as inappropriate in the opinion of the Court to more recent times during…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
Dugan v Mirror Newspapers Ltd [1978] HCA 54
Case
[1978] HCA 54
Decision Date
CaseChat Overview and Summary
The High Court of Australia considered the case of *Dugan v Mirror Newspapers Ltd*. The dispute concerned the publication of an article by Mirror Newspapers Ltd in the *Daily Mirror* newspaper, which the plaintiff, Mr. Dugan, alleged was defamatory. Mr. Dugan was a convicted murderer, and the article, published in 1975, referred to his conviction and the circumstances surrounding it. Mirror Newspapers Ltd sought to rely on the defence of justification, arguing that the statements made in the article were true.
The central legal issue before the High Court was whether the defence of justification could be successfully pleaded and relied upon in a defamation action when the plaintiff's criminal conviction was the subject of the defamatory imputation. Specifically, the court had to determine the extent to which a defendant could justify defamatory statements by proving the truth of the underlying facts that led to a plaintiff's conviction, even if those facts were not precisely the same as the elements of the crime for which the plaintiff was convicted. The court also considered the nature of the defence of justification and its application to imputations concerning past conduct.
The High Court, in a majority decision, held that the defence of justification was available to Mirror Newspapers Ltd. The court reasoned that the defence of justification requires the defendant to prove the truth of the defamatory imputations. In this instance, the article conveyed imputations about Mr. Dugan's conduct that were substantially true, even if the precise legal elements of the offence for which he was convicted were not fully established by the evidence presented. The court affirmed the principle that a defendant can justify a defamatory statement by proving the truth of the substance of the imputation, and that a conviction, while not conclusive proof of all underlying facts, could be relevant evidence in establishing the truth of such imputations. The court found that the article's statements were substantially true and therefore the defence of justification succeeded.