John Fairfax Group Pty Ltd v Rigby- Amalgamated Television Services v Rigby

[1996] HCATrans 282

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S14 of 1996

B e t w e e n -

JOHN FAIRFAX GROUP PTY LIMITED

Applicant

and

RAYMOND EDWARD RIGBY

Respondent

Office of the Registry
  Sydney  No S15 of 1996

B e t w e e n -

AMALGAMATED TELEVISION SERVICES PTY LIMITED

Applicant

and

RAYMOND EDWARD RIGBY

Respondent

Applications for special leave to appeal

TOOHEY J
GAUDRON J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 13 SEPTEMBER 1996, AT 9.56 AM

Copyright in the High Court of Australia

________________________

MR D.F. JACKSON, QC:   If the Court pleases, I appear with my learned friend, MR A. LEOPOLD, for the applicant, John Fairfax Group.  (instructed by Freehill Hollingdale & Page)

MR J.R. SACKAR, QC:   I appear with my learned friend, MR G.O’L. REYNOLDS, for Amalgamated Television Services Pty Ltd.  (instructed by Mallesons Stephen Jaques)

MR T. MOLOMBY:   May it please the Court, I appear with my learned friend, MR J.B. CONOMY, for the respondent in both matters.  (instructed by Marina Voncina)

TOOHEY J:   Mr Molomby, would it be convenient from your point of view that we hear from counsel for both applicants and then invite you to respond to the two applications?

MR MOLOMBY:   Yes, your Honour.

TOOHEY J:   We will proceed on that footing unless counsel see any reason to proceed otherwise, Mr Jackson.

MR JACKSON:   The application so far as our case is concerned is concerned with two aspects of the law of defamation in so far as the law concerns the imputations to be drawn from publications reporting that, following police investigation, persons

have been charged with criminal offences.  Those aspects, as the material demonstrates - and I will endeavour to give your Honours a short summary of that in a moment - are a regular occurrence.  One of the two aspects concerns imputations of guilt.  That relates, if I can identify an irrelevant imputation, to the imputation which is numbered (c) at page 2, line 6.  May I pause to say, your Honours, there are three relevant imputations.  They may be seen on page 2 and they are those numbered (b), (c) and (d).

TOOHEY J:   When you say relevant, you mean remaining as a result of the proceedings that have taken place?

MR JACKSON:   Yes.  They fall into two categories:  one is that identified in paragraph (c); the second is that identified in paragraph (b), the “conducting himself” and so on; (d) is expressed in the alternative to (c).  I will say something separate about it in a moment, if I may.

Your Honours, if I could turn first to the question of the allegation of guilt imputation.  The view adopted by the Court of Appeal involved, it is submitted, a reading down of the Court’s decision in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293. The Court of Appeal treated that case, to which I will come in just a moment, as deciding that a publication which stated only that a person had been arrested and charged and no more could not convey an imputation of guilt of the offence in question. May I identify where your Honours will see that. It is at page 60, lines 16 to 20. Your Honours will see that is the interpretation placed by the Court on Mirror Newspapers v Harrison and your Honours will see the parts emphasised in that passage.

What had been said by Justice Mason in Harrison, in our submission, was not quite that. Rather, his observation was - and may I take your Honours to 149 CLR at page 300. It is the commencement of the last paragraph on page 300. What his Honour had said was that:

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.....is incapable of bearing the imputation that he is guilty or probably guilty of that offence.

Your Honours, may I say this, that it was quite clear in that case that the Court was conscious that it was not dealing with a report, if I can put it this way, in spare terms saying arrest and charged and no more.  That that is so ‑ and your Honours, if I could say particularly the expression “no more than” in the passage at page 300 appears to be his Honour referring to the effect of the article in toto on the reasonable reader.  That report in that case was not dealing with an article in, as I have used the expression before, spare terms is apparent from the article itself, the terms of which are summarised at page 295 of that case, the bottom of the page, going through to two-thirds of the way down the next page.  Your Honours will see, for example, halfway down page 296:

The arrests are 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. Ferguson, that the culprits be found’.

The article itself will be seen in the very small ancillary volume which is volume 2 and your Honours will see that it is an article which, in the way perhaps of those days and the nature of the particular matter, put it with some vigour compared with article in the present case which your Honours will see set out at the end of our submissions.

GAUDRON J:   What more did they say of the plaintiffs in that case?  You see there is a difference in this case.  There are statements of and concerning the plaintiffs beyond the fact of their being charged.

MR JACKSON:   There are statements which relate to the plaintiffs - may I turn to this case first of all - but, your Honour, they say in fact very little about them, apart from matters that go to the investigation.  Could I come to that in just a moment, your Honour.  I was going to say in relation to the particular case what your Honours will see is the passage to which I referred earlier, the special investigation was:

“worked around the clock to fulfil a directive from the Deputy Premier, Mr. Ferguson, that the culprits be found”. 

And also one sees the reference on the first page:

One of the men held.....has connections with the Labor Party ‑

the assertion being, of course, that the bashing of Mr Baldwin was connected with events in the Labor Party.  That appears from the last paragraph of the article on the second page, “The attack on Mr Baldwin”.  Your Honours will also see reference to “Hundreds of people including municipal councillors” and so on.  But, your Honours, the most important part of it is the part to which I first referred, the directive from the Deputy Premier.

GAUDRON J:   But that does not relate to the individuals who were charged. 

MR JACKSON:   Your Honour, it does not say them directly, but of course what it is saying is that the investigation which preceded the arrest was an investigation to do just that, to fulfil a directive that the culprits be found.  That was a matter that was, as one sees from the decisions of the two courts below, much urged in that case.

TOOHEY J:   But what is the special leave point here, Mr Jackson?  Presumably it goes beyond to be saying that the Court of Appeal misapplied Harrison.

MR JACKSON:   Your Honour, what we would seek to say about it is this, that the view adopted by the Court of Appeal is one which has had the result that whereas Harrison in the past has been treated as a decision which means that a report of an investigation leading to an arrest and charge would ordinarily be regarded as something that could not convey a defamatory imputation.  The effect of Harrison now is that it has to be read with the decision of the Court of Appeal in this case, and reading the two together has the effect, your Honours, that one looks narrowly to see does it say “arrest and charged” and no more.  If it says more, then one looks to see whether that identifies or says something more about the person in question whereas, we would say, if one looked at the situation before that, the broad position was that one looked at the whole article and looked to see whether the article as a whole did that.

Your Honours, could I just say the understanding before can be seen actually in a decision in which, on another point, the Court has fairly recently given special leave.  That is in Chakravarti.  Could I give the Court a copy of that.

GAUDRON J:   There were other issues in Chakravarti.

MR JACKSON:   I am not suggesting that what was said in this relates ‑ the point I am taking the Court to concerns the issue on which special leave was given, but in Chakravarti v Advertiser Newspapers Limited what your Honours will see is that - the second page of the part I have given your Honours is an extract from Chief Justice Doyle where, towards the bottom of the page, the paragraph commencing “One final point”, and then your Honours will see the third line of that where he is referring to police investigations and laying of criminal charges:

The view has generally been taken that an article reporting such events does not, to the ordinary reader, impute guilt of the matter under investigation and the matter charged.

And then his Honour goes on.  Your Honours, what we would submit in the present case is that if one looks at the articles in a case of this kind, they really do not differ in any material respect from articles of the kind - in fact rather quieter articles, one might think.

GAUDRON J:   That is the point, is it not?

MR JACKSON:   Yes, your Honour.

GAUDRON J:   And on that there is material to suggest otherwise, is there not?  There is the statement that they have been suspended from the school.  One has been removed to a girls’ school.

MR JACKSON:   Your Honour, all that is said in the article - your Honour will see the article at the conclusion of our written submissions.  One has to look at it from the point of view of the ordinary reasonable reader and if one is talking about the question whether anything said in those articles could convey to the ordinary reasonable reader the inference that the respondent is guilty or take the case outside Mirror Newspapers v Harrison, because the imputation is that he is guilty of the offence, all that your Honours will see is that it relates to the events leading to the charges; it alleges they will answer the charges; it says they have pleaded not guilty and all that it says really is, if you take the part about being suspended from teaching duties while the court case continues, that is what one would expect in a case of that kind.  But it does not ‑ ‑ ‑

GAUDRON J:   I do not know that you would.  It sort of runs across the presumption of innocence which featured as an aspect of the reasoning in Harrison.

MR JACKSON:   If I may say so, your Honour, one would expect school authorities to be themselves the subject of very adverse criticism in circumstances where persons were charged with offences of this kind and were allowed to remain teaching.  Your Honour must have seen that, if I may say so with respect, in relation to the allegations about various Orders of Brothers and so on.

TOOHEY J:   That may or may not be right as between the authority and the person in question.  It is the reporting of the fact, is it not, that along with other facts is said to carry these imputations.

MR JACKSON:   It is simply, in our submission, something giving information without suggesting any view about their guilt on the question at all.

TOOHEY J:   If you go on:

Rigby had been transferred from a Sutherland area boys’ school to a girls’ school after the allegations were made.

MR JACKSON:   It is the same thing, with respect, your Honour.

TOOHEY J:   It is hard to see what would be gained by a grant of special leave.  Harrison is not under challenge.  These cases clearly depend upon the contents of the report and what can be distilled from them.

MR JACKSON:   What one sees, we would submit with respect, is that whilst the difference may not be great, the approach that has been taken by the Court of Appeal is one which very significantly waters down the view adopted by the Court in Harrison.  It waters it down, your Honours, because instead of one looking to the whole article in the first place to see whether it conveys anything more than a report of the investigation and the charge, what one looks to see is, does it say arrest and charge and no more, that is the first inquiry, rather than looking to see the whole of the matter.

GAUDRON J:   But you have to face up to the fact it does deal with things besides the arrest and charge.  It deals with “complaints from several students” and not just the two with respect to whom the gentlemen were charged.

MR JACKSON:   What your Honour will see is that there were two persons charged.  The particular applicant was charged with one offence.  It is not saying complaints about him.  It is not saying that about him really.  It is saying, as one expects in a case of this kind, of course there are complaints.  That is the thing that ‑ ‑ ‑

GAUDRON J:   From several students.

MR JACKSON:   Your Honour will see that the other person was charged with four counts and one has to read that in the context in which it appears.  So far as the other aspect of the case is concerned, what your Honours will see is that there are two imputations concerning the conduct of the respondent.  They are at page 2, lines 5 to 10, the two, (b) and (d).  Could I say first that (d) is an alternative to (c), the imputation of guilt, and in the way in which (d) is expressed it is very difficult, if I may observe in passing, to see how (d) could be other than an imputation of guilt in the way in which it is expressed.

But if I could move from that to imputation (b), that is a form of pleading which appears to have become more or less standardised, as your Honours will see from the ‑ and perhaps I can just give your Honours a document which summarises from the material in the papers the importance of the matter.  It contains the various extracts.

GAUDRON J:   Just starting there: 

The submissions.....concern the question of whether or not the publications conveyed imputations -

Is not the question whether they are capable of conveying the imputations?

MR JACKSON:   Yes, your Honour.

GAUDRON J:   And we are, in this case, concerned purely with a question which may or may not be decided in your favour on a hearing of the matter.

MR JACKSON:   Well no, your Honour, the parties had a separate hearing of this question whether the material was capable of conveying the imputation.  That would bind the trial, of course.

GAUDRON J:   But I had always understood there were two distinct processes in defamation, so that when you go to the trial there is still a question whether they do bear that imputation.

MR JACKSON:   Indeed, your Honour.  I was not intending to convey otherwise.

TOOHEY J:   Would the 1994 Act control the trial?

MR JACKSON:   No, your Honour, I do not think so.

TOOHEY J:   It would be under the earlier procedure, would it?

MR JACKSON:   Yes.  If I could just go to the second group of imputations and say another thing about it.  The bases on which the Court of Appeal allowed the imputation case appear at page 65 and the relevant one is the second reason at line 17.  Now, your Honours, the essence of the imputation is that the respondent “had so conducted himself”.  We would

submit if one goes to the terms of the article it really says nothing about how he had conducted himself.  All that one sees from the article, if one goes to it, is a series of contentions about various events that had occurred, but it says really nothing about him conducting himself in such a way as to give rise to these imputations.

TOOHEY J:   It may, may it not?

MR JACKSON:   If one looks at it and said, “What part of it relates to him so conducting himself as reasonably to give rise to the imputation, to the suspicion by the police?”, it simply does not emerge, in our submission.

TOOHEY J:   Except there is reference to complaints being made by students.

MR JACKSON:   That is all that there is.  It said:

Police allege that complaints from several students ‑ ‑ ‑

TOOHEY J:   Yes, but we are  not concerned with the sufficiency of the imputations, we are looking at the footing upon which the case is appropriate for a grant of special leave.

MR JACKSON:   Your Honour, I see that my time has expired.

TOOHEY J:   Yes, thank you, Mr Jackson.

MR JACKSON:   Your Honour, may I just say one thing in response to what your Honour said and it is I am conscious of that, but may we just say that the court had to decide whether the material was capable of giving rise to the imputations, and that was something that was a critical issue in the trial.

TOOHEY J:   Yes, thank you.  Mr Sackar.

MR SACKAR:   If the Court pleases.  We substantially adopt what my learned friend has said in respect of matters of principle.  Could I just add one or two comments.  First, factually at page 89 of the application book are the two imputations that concern Amalgamated Television Services.  They are (c) and (d), and again your Honours will see that they conform, I think, with the imputations that Mr Jackson has addressed you on.

Your Honours, we do say this, that when Sir Anthony Mason said in Harrison at page 300 :

that a report which does no more than state that a person has been arrested and has been charged -

et cetera, he was clearly not meaning literally “no more”.  What he had in mind, in our respectful submission, is, is there sufficient material in the matter complained of to suggest that the ordinary reasonable reader should reject, as it were, the presumption of innocence which is ever present.  What Justice Priestley and Justice Kirby did ‑ ‑ ‑

GUMMOW J:   Part of the problem is the use of the word “state” in that passage by Justice Mason; “no more than state”.

MR SACKAR:   At page 300?

GUMMOW J:   Yes, page 300.

MR SACKAR:   What his Honour, we say, had in mind there is simply a form of imputation which would be extracted from the material complained of but what Justice Priestley and what Justice Kirby appear to have done is to have somewhat artificially said, “No more simply means a discussion of the arrest and the charge”.  They forgot, with respect, the distinction that Sir Anthony Mason made which it is clear from page 303 of the judgment in Harrison where his Honour said:

Glass J.A. was right in saying that any publication which goes on to say or suggest that the charge was well founded, i.e., that the plaintiff was guilty, carries the further imputation of guilt.

GUMMOW J:   The phrase there is “say or suggest”, you see.

MR SACKAR:   Quite, but his Honour was dealing with a New South Wales cause of action and we say, with respect, that he had in mind what we say to be the form of the imputations, but neither Justice Priestley nor Justice Kirby deal with the issue, we say with respect, of what material there was in the matters complained of such as to cause the ordinary reasonable reader to ‑ ‑ ‑

GAUDRON J:   In the case of your client it is fairly clear, is it not?  The statement in the case of your client says that the offences occurred.

MR SACKAR:   That will be so, with respect, or capable or being inferred merely by reason of the fact of the charges laid.

GAUDRON J:   No, but your broadcast went further, did it not, and referred to the place where the offences took place.

MR SACKAR:   Assaults.

GAUDRON J:   Yes.  That goes a bit beyond ‑ ‑ ‑

MR SACKAR:   It might go a bit beyond a mere allegation ‑ ‑ ‑

GAUDRON J:   It goes a fair bit beyond, I would have thought.

MR SACKAR:   May I remind your Honour how far beyond the article in Harrison went because in Harrison, apart from the get-up of the front page and the material including the photographs of persons whose faces were blanked out, is this passage on page 2 of the photocopy, and it is in the second column under the rubric ‑ ‑ ‑

TOOHEY J:   “The special investigators” ‑ ‑ ‑

MR SACKAR:   Yes:

The special investigators, led by Detective Inspector Wal Cooper, worked around the clock to fulfil a directive from the Deputy Premier, Mr Ferguson, that the culprits be found.

And a little higher up:

He suffered shocking facial injuries and a fractured skull and required more than 50 stitches in his wounds.

So no doubt the article is asserting very clearly that assault took place and a vicious assault took place.  Further, in the column to the left:

The arrests follow almost a month of intensive investigation by a special squad of detectives.

When one reads the article, it is clear that there was a great deal of information concerning both the intensity of the investigation, the shocking injuries sustained and the fact that would clearly give rise, we would say, from the article that the police had got their culprits. 

Now, at the end of the day, what kept Harrison from giving rise to imputations of guilt was the fact that the ordinary reasonable viewer or reader would have in mind the presumption of innocence.         In our broadcast we end the broadcast - or virtually end the broadcast by saying that he had pleaded not guilty, that is that these particular persons had pleaded not guilty and got bail.  Now, one could not think of anything which could keep alive more directly in the minds of the ordinary reasonable viewer the fact that the presumption of innocence is there. 

What the Court of Appeal has done, in my respectful submission, had applied a very artificial test.  Instead of looking at the content of the material to determine whether the ordinary reasonable viewer is being urged to reject the presumption of innocence, they have not, with respect, dealt with that issue at all because they have read down far too narrowly the words of Sir Anthony Mason at 303 “and no more”.  This raises very important questions for the media because broadcasts of this kind or reports of this kind are very commonplace and it will mean ‑ ‑ ‑

GUMMOW J:   What do you mean “of this kind”

MR SACKAR:   Of police proceedings or of investigations or of persons being charged.  It is a common occurrence in the daily press.  That the business of the administration of justice in so far as it deals with crime is a matter which occurs on a very regular basis and it will mean, with great respect, if the Court of Appeal decision remains, that anything a little more, perhaps, than the mere allegation of arrest and charge would be, on the basis of that decision, sufficient to support an imputation of guilt.  We say that is not the issue.

So far as the second point we make as the fall-back imputation argument, we say that what Sir Anthony Mason said at 303 about it may be that the article suggests “that the charge was well founded”, that the imputation pleaded here as the fall back, namely the “conducting himself so as to warrant” et cetera, a proper analysis of that imputation by reason of the use of the words “conducted himself”, “warrant”, thereby meaning justification, and “reasonable suspicion” is indistinguishable, we submit, from an assertion of guilt. 

This raises a further and very important matter, not, I confess, on its own perhaps worthy of leave, but as part of an overall consideration of the Harrison principle we say is worthy of leave in the circumstances.  The problem that arises, if one looks at those words, is how a trial judge could explain to a jury why that is an imputation of only suspicion and not of guilt by reason of the words that are used and what the difference between the two would be.  The term “well founded”, used by Sir Anthony Mason, means that he must have had in mind that you could have an imputation which said no more than suspicion but went on in some way or other to

suggest that in fact the suspicion was well founded.  Here, we say the words used clearly give rise to that.  They are our submissions, if the Court pleases.

TOOHEY J:   We need not trouble you, Mr Molomby.

In the case of the first application, the issues raised concern the decision of this Court in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293. The decision itself is not sought to be challenged. The argument is that the Court of Appeal misconstrued the decision or, in effect, failed to follow it. This is not an argument likely to attract a grant of special leave to appeal, particularly when the newspaper report contains references to the respondent which arguably take it beyond the report which was considered in Harrison.  In the view of the Court an appeal is not likely to enjoy sufficient prospects of success to warrant a grant of special leave.  Accordingly the application is refused.

In the case of the second application, Amalgamated Television Services Pty Ltd, what we have just said in dismissing the application in John Fairfax Group Pty Limited v Rigby applies at least with equal force here.  The television broadcast went beyond the matters contained in the newspaper report.  This application for special leave to appeal must also be refused.

MR MOLOMBY:   I seek an order for costs, your Honour.

TOOHEY J:   Is there any reason why costs should not be awarded?

MR JACKSON:   No, your Honour.

MR SACKAR:   No, Your Honour.

TOOHEY J:   In each case the application is refused with costs.

AT 10.28 AM THE MATTER WAS CONCLUDED