Gair v Greenwood (No 2)

[2018] NSWSC 947

Supreme Court

New South Wales

Medium Neutral Citation:	Gair v Greenwood (No 2) [2018] NSWSC 947
Hearing dates:	1 June 2018
Decision date:	22 June 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	The contextual imputations that the plaintiff is a criminal will go to the jury
Catchwords:	DEFAMATION – contextual imputations – whether reasonably capable of being conveyed by the matter complained of – satirical song posted on YouTube – where performance illustrated by images depicting gangsters and firearms
Cases Cited:	Gair v Greenwood [2017] NSWSC 1652
Category:	Procedural and other rulings
Parties:	Thomas Duncan Gair (first plaintiff) Garry Maurice Turland (second plaintiff) Adam Haig Greenwood (defendant)
Representation:	Counsel: D Woods (plaintiffs) S Chrysanthou (defendant)   Solicitors: Malcolm Murray & Associates (plaintiffs) Banki Haddock Fiora (defendant)
File Number(s):	2016/369778
Publication restriction:	None

Judgment

1. HER HONOUR: These are proceedings for defamation arising from the publication of a satirical piece on YouTube. The defendant has pleaded defences of truth and contextual truth. In an earlier judgement in the proceedings, I ruled on a number of objections taken by the plaintiffs to those defences: see Gair v Greenwood [2017] NSWSC 1652. There is one remaining objection which I was unable to determine at that time. This judgment determines that objection.

2. The defence of contextual truth includes a contextual imputation in respect of each plaintiff “that the plaintiff is a criminal”. The plaintiffs submitted that the matter complained of was not reasonably capable of conveying that imputation. However, at the time that argument was heard, the parties were unable to provide a recording of the matter complained of as posted on YouTube. Rather, the argument was made solely by reference to a transcript of the recording. I took the view that it was not appropriate to determine the question of capacity by reference to the transcript alone.

3. The plaintiffs have since located a recording of the matter complained of. On 1 June 2018, they sought leave to reopen the capacity question and tender a copy of that recording (the recording was delivered to chambers on 6 June 2018 and has been marked exhibit A).

4. Having viewed the recording, contrary to my preliminary impression based on the transcript alone (noted at [43] of my earlier judgment), I am not persuaded that the matter complained of is incapable of conveying the general imputation that each plaintiff is a criminal.

5. The recording includes opening credits which do not appear in the transcript, including attribution to “TISS”, standing for “this is satire, Stupid”. I had previously understood that the matter complained of was presented as a poem. In fact, it was performed as a song illustrated by a continual stream of photographs. The effect is twofold. First, the words are sung quickly, giving individual phrases less prominence than appears on the face of the transcript. Secondly, the images inform the overall impression conveyed by the words.

6. Three passages of the audio-visual recording in particular are important for present purposes. First, the words recorded at line 15 of the transcript ("they've all been railroaded because they're such a bunch of crooks") are illustrated by a collection of "mugshots" having the appearance of a photo-board of the kind used by police when witnesses are asked to identify persons suspected of criminal offences.

7. Secondly, the words recorded at line 29 of the transcript ("they've put a stop to Duncan because he is such a racketeer") are illustrated by a photograph of a gangster type smoking a cigarette and holding a gun.

8. Thirdly, the words recorded at line 33 of the transcript ("what a sook and such a crook, looks like he won't become a squillionaire") are illustrated by two images: first, an image set against a cityscape of the shadows of three tall gangsters holding large automatic firearms and, secondly, a photograph of a handshake in which one person is handing a large sum of cash to the other. The significance of those images and the openly satirical nature of the performance is a judgment more appropriately left to the jury.

9. Having viewed the video, and mindful of the high bar that applies in determining questions of capacity, I consider that the matter complained of is reasonably capable of conveying the contextual imputation that each plaintiff is a criminal. Those imputations will go to the jury.

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