John Fairfax Publications Pty Ltd v Rivkin

[2003] HCATrans 602

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S353 of 2002

B e t w e e n -

JOHN FAIRFAX PUBLICATIONS PTY LIMITED

Appellant

and

RENE RIVKIN

Respondent

GLEESON CJ
McHUGH J
KIRBY J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 11 MARCH 2003, AT 10.19 AM

Copyright in the High Court of Australia

MR B.W. WALKER, SC:   May it please the Court, I appear with my learned friends, MR T.D. BLACKBURN and MR A.T.S. DAWSON, for the appellant.  (instructed by Freehills)

MR T.E.F. HUGHES, QC:   May it please the Court, I appear with my learned friend, MR T.D.F. HUGHES, for the respondent to the appeal, the plaintiff below.  (instructed by Gilbert & Tobin)

GLEESON CJ:   Yes, Mr Walker.

MR HUGHES:   Before the matter proceeds to argument may I have the Court’s leave to move, very briefly, on a notice of motion filed on 7 March?

GLEESON CJ:   That is about the contention?

MR HUGHES:   Yes.

GLEESON CJ:   Is that opposed, Mr Walker?

MR WALKER:   It is not.

GLEESON CJ:   Yes, you have that leave, Mr Hughes.

MR HUGHES:   Thank you, your Honour.

GLEESON CJ:   Yes, Mr Walker.

MR WALKER:   In the written submissions what may only be a minor point is at issue between the parties:  was this an unexceptionable trial?  At the outset may I take your Honours in the appeal book to page 182, which is towards the end of this trial which we characterise as unexceptionable as to the hearing.  At 182 senior counsel were in the course of addressing her Honour on any further directions and my learned friend, Mr Hughes, rose in his turn to make a point as follows.  At about line 17 or so:

I ask your Honour to direct the jury that if they take the view that the Sydney Morning Herald article of 25 February, either read alone, or read in conjunction with the Australian Financial Review article, invites the ordinary reasonable reader to adopt a suspicious approach and to speculate as to the cause of Caroline Byrne’s death.  The ordinary reasonable reader is entitled to adopt such an approach and thus reach a conclusion compatible with imputation 2(a) . . . 

The same proposition applies to imputation 3(a) –

which is one of those before your Honours today.

Over on page 186, in developing, in response to Mr Nicholas, QC, who then appeared for my client, at line 50 my friend Mr Hughes says:

As to my point –

that is the point I have just taken you to at 182 –

the significance, in our very respectful submission of any reference to what the ordinary reasonable reader may do if invited to adopt a suspicious approach is this:  Your Honour has, again with great respect, very properly told the jury that the ordinary reasonable reader is –

and I think there is a “not” missing in the transcript –

unduly suspicious.  That, as far as it goes, with respect, is perfectly correct.  But in the case of an article like this the jury would be misled, or given incomplete information, if the summing up omits to tell them that if they conclude –

again, I emphasise the “if” –

that the ordinary reasonable reader is invited to adopt a suspicious approach then the ordinary reasonable reader is entitled –

and I think my learned friend was in fact there referring to not only the ordinary reasonable reader but what he had said about the jurors earlier –

to accept the invitation.

At the foot of that page Mr Nicholas responding to that says at 57:

My friend puts it on the basis that they should be directed to accept the invitation.

Then in agreeing with his friend’s proposition, my learned friend Mr Hughes said on page 188 line 15:

Yes, I used the word entitled.

Thereupon, the jury coming back, they were directed further by her Honour as follows in paragraph 162 on page 188, picking it up at about line 29 or so:

if you took the view that that article, either on its own, or in conjunction with the Australian Financial Review, invited the ordinary reasonable reader to adopt a suspicious approach and to speculate about the cause of Miss Byrne’s death, then that reader would be entitled to, would not be obliged to but would be entitled to accept that invitation and to speculate.

Now, the jury, of course, was being asked by counsel and directed by the judge to proceed in accordance with a perfectly orthodox view of the “ordinary reasonable reader” test in ascertaining for themselves, according to what was theirs and uniquely theirs, the answers to the questions they had been asked, there being no complaint in this Court about the fact that questions were asked, what questions were asked or the directions which were given on any of those points.

So that, at the outset of our appeal, we are in the position to point out that this was a trial where, at the urging of counsel for the plaintiff, the judge added to her directions by pointing out what the jury, applying the test of the ordinary reasonable reader, might impute to that ordinary reasonable reader concerning speculation and suspicion, and it was of the essence, both of counsels’ urging and of the direction not objected to and not appealed from, that there was an entitlement but not an obligation, room for the jury to reach its own decision and, your Honours will recall, the whole preceded by an important condition “if” – if you read an invitation to speculate.

Your Honours, the forensic course of this trial, unexceptionable as we say it was, included another matter which your Honours are aware forms part of the appeal before you.  In the Court of Appeal, there was, by a most curious concatenation of reasoning, that is the different conclusions of the three judges, a decision to overturn a discretionary judgment of her Honour made at the outset of the hearing by way of a foreshadowed application, foreshadowed in correspondence, by my learned friend that he have a right of reply as well as starting.

KIRBY J:   But the point had been raised.  It was reserved at the trial and then argued in the Court of Appeal.  What is so unusual about that?  It was a matter, as I understand, upon which different views had been expressed, although the rule, as I remember it, says that it is in the discretion of the judge.

MR WALKER:   I have not said there was anything wrong with what was done.  The trial, I stress, was unexceptionable in the way it was conducted.

KIRBY J:   It is accepted too by the respondent.

MR WALKER:   Exception is taken to the outcome of that discretionary decision.  When your Honour says the point was reserved, it is of some importance to note - and your Honours will have seen the reference in our written submissions ‑ ‑ ‑

KIRBY J:   Reasons were not sought at the time, but that is a sensible course, is it not?

MR WALKER:   There is no question of criticism, your Honour, none at all.  However, in our submission, it certainly does not assist and does something to retard the prospects of an attack on discretionary judgment where the most usual attacks have to do with wrong reasoning to dispense the judge, as your Honour, with respect, puts it – sensibly and courteously did on page 91 of the record in this Court, at line 40, where her Honour at line 33 has asked, “which of the ruling they would like to have reasons for”, bearing in mind that they had been well and truly argued, and my learned friend says, “I don’t think we will be troubling your Honour”.  Absolutely no criticism, far from it, but, as I say, it does rather ‑ ‑ ‑

KIRBY J:   That is just counsel being charming to the judge.

MR WALKER:   Part of our function, at least at trial, your Honour, but what it does do is deprive the party with a grievance about that ruling of the opportunity to say there was something wrong about the reasoning or that there was a misdirection.  Perhaps it leaves you with simply the last category in House v The King, something so shocking in the result that, though you cannot locate or describe why it turned out wrong, it was wrong.

KIRBY J:   Could I just ask, to get it clear in my mind, is it your understanding of the respondent’s argument that the course taken in this case was wrong in the peculiar circumstances of this case, or that it was a wrong understanding of the proper procedure in the conduct of a defamation trial?  In other words, it was infected by some general error, as distinct from an error because of the peculiar circumstances of this case? 

MR WALKER:   I must let my friend put his own argument, but my understanding, which your Honour asks me about, is as follows, that, in the circumstances of this particular case, there was a wrong exercise of discretion – wrong in the sense that it was susceptible to appellate overturning – because there are general matters arising from the peculiarities of section 7A of the Defamation Act and the trials they require before a jury of such a kind as to impel – in what I will call the usual case, or prima facie ‑ the right, so‑called, which was sought by my learned friend on behalf of his client, namely, a right of reply. 

Now, I am conscious that your Honour has put to me a contrast or choice between a particular case and a general rule, and I have answered by combining the two, because that is how I understand the argument to be. 

KIRBY J:   I suppose, if it is a discretion in the judge, it would depend a bit on whether evidence was called in a case.  There may be a whole multitude of factors that are relevant. 

MR WALKER:   That is no doubt why my friend calls in aid the nature of a 7A trial, where, practically always, one would expect it is the matter complained of only which will be the evidence. 

KIRBY J:   Well, we know that, but I wonder if juries sitting there think it is a bit odd that the plaintiff is not called to say how awful this has all been, and the defendant has not called its journalist and other people to say, “Well, we did our best”.  We know how these things run, but I wonder what juries make of it. 

MR WALKER:   Your Honour, that may be a law reform consideration, indeed, it is a perennial one in this area.  Section 7A is the law, was the law at the relevant time, and nothing has been ventured in the Court of Appeal, indeed, nothing was ventured at trial, suggesting that anything over and above what was said to the jury about their distinct function at this stage of the defamation proceedings should have been put differently or should not have been put. 

So that issue, though it may well raise a question as to whether section 7A is out of step with people’s expectation of how a defamation case should be run, that is a matter for the legislature and those who lobby the legislature and it was not a matter which became in any sense an issue in the argument in this case.

Your Honours, as you have seen from our written submissions, we have to challenge the approach taken in the Court of Appeal to what I will call the unreasonable decisions of the jury according to the Court of Appeal.  I do that because, as your Honours have seen from the first of the annexures to our written submissions, annexure A sets out in four tables the imputations which were the subject of jury answers and which were then the subject of argument in the Court of Appeal.  A glance at the Court of Appeal column, the right‑hand column in each of those tables, will have informed your Honours that by no means did the Court of Appeal find that every one of these 17 answers “No” was beyond the bounds of rationality or reasonableness, which was the very wide realm within which the jury operated.  Your Honours will see the legends “Unreasonable” and “Upheld” respectively in relation to those imputations as they are set out.  Something just under half were held to be unreasonable in the label that we are using for the sake of argument.

What we have to do in this appeal is to seek to persuade your Honours that the approach taken by the Court of Appeal was wrong.  So far as that approach is concerned, as your Honours have again seen from the written submissions, it is to be found in Justice Grove’s reasons.  In our submission, without embarking upon any lengthy quotation from them from the Bar table, which would be otiose, particularly as they were all fully addressed in the combination of written submissions before your Honours, our general characterisation of that approach which appears from his Honour’s, with respect, useful adoption of a standard approach to each of the imputation as he dealt with them in turn, was to compare what was said according to the transcript by respective counsel to the jury in argument about those matters.  It is of course correct, as my learned friends have put in writing, that it is of very considerable importance in an appellate court seeking to assess what happened in order to see what might have gone wrong before a jury to see what the jury was told, is of the first importance.

Apart from what was told to them by the judge, about which relevantly no objection is taken in this case, what was said to them by counsel, however experienced, eminent and eloquent that counsel, represents argument put by parties to the tribunal of fact, the question of fact being in this case what was conveyed by the matter complained of by comparison with the imputations which were the causes of action pleaded.

In that exercise it can only be if the arguments of counsel provide exclusively and precisely the universe of considerations which the jury was entitled within the limits of rationality and reasonableness to take into account, that one could regard as an adequate or proper foundation for disturbing the jury finding, that an appellate judge prefers one set of arguments to the other and sees the exercise as one which involves a comparison anew on the transcript by a judge in the same way as, at least in theory, the jurors must severally have done it as they sat there listening and perhaps as they sat later in the privacy of their deliberations, discussing the effect upon them of the arguments.

But there is a fallacy underlining that approach at the outset and, in our submission, it needs only to be stated to be spotted.  The notion that a jury is disentitled to choose not one or other, holus‑bolus, the whole package of counsel’s submissions, but to take some from one, some from the other, to think up their own points, excited either by reverie or by actual intellectual response to argument, along the lines of, “Counsel says X, but I think X plus Y would be more reasonable”.  There is nothing whatever in the constant admonitions to juries that, “Ladies and gentlemen, this is a matter for you”, for example, in the standard directions of which there were copious examples in this case, to suggest that they must not have an idea original to themselves, that it must be an idea sourced in one or other of the arguments put to them.

For those reasons, bearing in mind the inscrutability of the jury as well, it was never appropriate for the intermediate appellate court to speculate that there must have been a form of preference for one set of semantic arguments over another set of semantic arguments put to them by counsel on the basis of which the appellate court by asking itself, “Which preference would we have formed?”, may then overturn the jury decision.  It is for those reasons, and with great respect, that the argument against us that some of the points we are about to raise and which we have raised in our written submissions about the so‑called unreasonable imputations represent ingenious afterthoughts is beside the point and misplaced because the question before the Court of Appeal was not who should have won the argument but whether what the jury did was beyond the limits of rationality and reasonableness in the sense which the cases we have both cited on the point make clear and, in our submission, for the following reasons which I will briefly develop on the basis of the written submissions commencing on page 11, paragraph 34 that we have put to your Honours, the imputations in questions, the so‑called unreasonable ones, could not be said to be beyond those limits of rationality and reasonableness.

Your Honours, for this exercise, which I shall try to keep as brief as possible, bearing in mind that your Honours are not a jury and that your Honours, asking what the Court of Appeal should have done, should not, in our respectful submission, compound the error we locate in their approach, namely, simply forming a preference for one set of arguments about imputations over another, nonetheless you will need the matter complained of.

My learned friend has commissioned a supplement to the appeal book, which I think your Honours have, which has two advantages:  first, it has the advantage of the actual thing in simulacrum rather than the typescript to which we have given references in our written submissions; second, it is in much larger print than is contained in the appeal book whereby it has a greater chance of being comfortably used.  Could I take your Honours in that supplementary appeal book first to the Financial Review article.  The foldout page is headed “Perspective” and has one of those outline bodies and the headline, “It’s a Bad Business”.  In the actual book it is the third page; that is, there is the index on page 1, it has page 2 on the top right-hand corner, but it needs to be folded out.

Could I take your Honours to the right-hand column on that page - it is numbered 17 for convenience.  I do not want to read these passages to your Honours; that would be a bad use of time.  I do want to emphasise matters upon which we draw for our argument, an argument which does not require the formation of any preference by the Bench; indeed it may be the best approach by the Bench is resolutely not to form an opinion, but simply to answer the question:  was there in material here, is there argument by which, within the limits of rationality and reasonableness, a jury could have answered no, as it did?

In paragraph 17 you will notice that this particular aspect of the matter starts with Mr Rivkin’s fortunes being described as being on the rise during Gordon Wood’s employment.  Your Honours will recall that the dramatis personae are of course Mr Rivkin, who might be called in the stories the businessman, Mr Wood, who might be called the chauffer or personal assistant and fiancé of the third player, namely Caroline Byrne, the unfortunate model, whose body was found at the foot of The Gap in 1995.

So, in paragraph 17 Mr Rivkin’s fortunes have been described during the period, which includes the period of the death, as being “on the rise” and there is reference to control, I stress control, of Offset Alpine.  Over the page in paragraph 20 comes that part of it which is at the heart of imputation 1(a), which was that his reputation had been diminished, his reputation as a sagacious and astute stockbroker, by his participation in the affairs of Offset Alpine Press group.  In paragraph 20 one sees that his reputation “as a canny and astute broker” have taken “a battering” at a particular time, May 1995:

when the ASC took legal action to freeze a major part of Offset Alpine’s share register.

It need hardly be said that the ownership of shares in a company was quite distinct according to an ordinary understanding of it from the internal management of the company.

In paragraph 21, I wish to draw to attention that what was immediately explained in relation to that action by the ASC was that there were two Swiss companies who had ignored Australian law and had secretly owned 38 per cent of the company, that that had been hidden in nominee companies who, like Mr Rivkin – so something was said about Mr Rivkin here – “were unaware of the size of the total holding”.  Mr Rivkin is scarcely participating or involved at that point one might think, indeed, in our submission, well within the realm of reasonableness.

Paragraph 23 continues that theme, line 3, these are “mystery owners”.  At the foot of that the Federal Court had ordered a freeze and a sale.  Then 25:

It was not suggested at Byrne’s inquest that the ASC matters were in any way linked with her death.

Could I ask your Honours, as it were, to park that one because it is an important one for the last of the imputations to which I will be coming.  Paragraph 30, one sees again the theme of Mr Rivkin being, apart from this delinquent conduct of Swiss companies, lines 4 and 5 one sees a reference to “unbeknownst to Rivkin, his company had had a covert takeover”.  Then in relation to the ASC interest in Mr Rivkin, that is explained in the same paragraph as being the result of “Mr Croll’s misunderstanding”, something which had been corrected by this newspaper.  The previous column, at paragraphs 27 and 28 shows what happened as a result of that misunderstanding.

Now, as we put in our written submissions, which of course I do not wish to read, the fact is that it was a possible reading – it does not have to be the preferred reason, simply a possible reading by the jury that these were not words that said that the reputation had diminished.  Something resilient after all can take a battering and the quality of resilience is demonstrated by the fact that it is not damaged or diminished thereafter.  What we do know is that his fortunes were on the rise.  What we do know as well, and the jury knew, if you turn over the page to paragraph 55, is that even the Federal Court decision in relation to these shares ended, in paragraph 55, with an eventual order by Justice Sackville:

that the shares be sold into a current takeover bid, and the money released to the Swiss companies –

quite different of course from possible forfeiture.

CALLINAN J:   What are we supposed to take from that, that his reputation suffered a deserved battering or an undeserved battering, or is it equivocal?

MR WALKER:   It may well be equivocal, and being equivocal, in our submission, gave the jury the rational scope to operate by giving the answer, “No”.  The imputation does not in terms – I think this is 1(a) – we are coming to another one soon – add the important sting “a deserved battering”.  Indeed, your Honours ‑ ‑ ‑

GLEESON CJ:   The jury never got to the stage of answering the question whether the imputation was defamatory.

MR WALKER:   No, that question never came out because the “No” is to the first question and, accordingly, not proper to answer the second.  So the question was, “Was the imputation conveyed?”  The imputation that the plaintiff’s participation in the affairs of Offset Alpine Press Group had diminished his reputation as a sagacious and astute stockbroker is not one which, in answer to your Honour Justice Callinan, involved picking between deserved or undeserved batterings.

CALLINAN J:   You would have to select deserved, would you not, to understand whether the imputation was conveyed or not?  Is that not really a part of the imputation?

MR WALKER:   It cannot be now, that is one cannot read 1(a) in that fashion.

CALLINAN J:   It becomes irrelevant unless it is capable of being defamatory.

MR WALKER:   Yes.  Will your Honour however excuse me from answering the hypothetical question, “What should the jury have done if they had answered ‘Yes’ to the question they did answer and then moved to the second question?”, partly because that is pure speculation and mostly because it does not advance my appeal.

CALLINAN J:   I am just not entirely sure at the moment that the question of the nature of the imputation can be divorced here from the question whether the imputation was conveyed, because the imputation alleged really assumes, does it not, if you like, deserved battering?

MR WALKER:   It is equivocal.  It may assume that there is fairness in the market or the populus regarding him less well in his role as a stockbroker because of his participation in the affairs of that company.  There may be that suggestion.  The imputation does not choose.  After all, one would have thought that particularly in relation to the stock market and, if your Honours will forgive me the local reference, business in Sydney, one could be forgiven for thinking that one cannot necessarily assume that it is only by fair processes of reasoning that reputations may truly factually be diminished and that “guilt by association”, being “tarred with the same brush” and similar clichés may operate quite unfairly whereby it is not clear that by framing an imputation in terms of the diminution of reputation you could ever be saying that means fairly or properly or reasonably or deservedly so.

CALLINAN J:   That really lowers the threshold as to the question whether the imputation is conveyed or not because you do not have to look at any question of moral opprobrium, intentional or not.

MR WALKER:   I am faced with that, yes, your Honour, and our argument has been put, as I say, in writing.  The simple point we wish to emphasise is that one sees that in relation to these mystery people whose actions he was unaware of, covert takover unbeknownst to him, inquiries of him by the ASC triggered by a misunderstanding from a member of staff, which misunderstanding the newspaper clears up for the reader.

GLEESON CJ:   It was not his reputation as a good person that was in question here.  It was his reputation as a sagacious and astute stockbroker, a reputation that might be important if you are inviting other people to deal with you.

MR WALKER:   Absolutely.  The first thing to be said in relation to stockbroker, of course, is that nothing is said here about stockbroking, nothing in the passage to which I have taken you to.  Nothing is said here about his ability to pick a winner, for example.  To the reverse, his fortunes improved, the company went well.  It was a shareholding in the company by others, not the internal management of that company, that with which he participated by reason of what the newspaper describes as his control and, in our submission, the jury was well within its rights to say that imputation is not conveyed.  The battering is clear.  The word is there, but it is not the case that everything which is battered is thereby diminished.

GLEESON CJ:   But if you say of a person who has a reputation as being a smart stockbroker that he was taken for a ride by somebody, that might diminish his business reputation even though it does not suggest that he is a worse person.

MR WALKER:   It might.  Much would depend upon the wording and much would depend upon the impression the jury forms.  For example, even a small word like “even” might draw all the sting of such a thing.  “Even someone as canny as Mr X was taken in by this superb conman”.  Two things are being said in such an utterance, that Mr X is the highest standard for canniness, but that this conman is, if you like, the lowest or highest standard of skill at his nefarious trade.

So that would be a jury question and, in our submission, it would never follow as a matter of law and certainly would not follow as a matter of the outer bounds of rationality that a statement to the effect that someone had been taken in by a fraud necessarily lowers the reputation.  That is for the jury and it is all the nuances that they are entitled to take into account.

Could I then move to imputation 1(b).  Imputation 1(b) is in the same realm, and this is coming rather closer to the matters that your Honour Justice Callinan has asked me about: 

That in May 1995 the Australian Securities Commission had reason to suspect that the Plaintiff –

Mr Rivkin –

had engaged in unlawful conduct in connection with the affairs of Offset Alpine Press Group; 

Little more need be said, apart from what I already have said.  It is clear in the article that there was contact made of an investigative kind by the ASC with Mr Rivkin.  That is overtly described as having been due to a misunderstanding by Mr Croll – see paragraphs 27 and 28 – a misunderstanding which was not simply left to be the words of Mr Croll, but is accepted, apparently, by the author at paragraph 30: 

but also thanks to Croll’s misunderstanding, Rivkin himself had become a major focus of the ASC inquiry. 

Focuses of inquiry need not, of course, to a reasonable juror, be other than a major source of information.  This man controlled a company, and the jury had read that the ordinary reasonable reader would have read that Mr Rivkin had been unaware of the putatively illegal matters which had occurred between Switzerland and Australia.  They had been told that the build‑up of the shareholding was unbeknownst to Mr Rivkin, and, in our submission, it is difficult, where the article then says nothing about any adverse action by ASC against Mr Rivkin at all, and the only adverse action is in relation to a shareholding not said to be his, not said to be controlled by him, said to be one the building up of which was beyond his awareness.  One discovers later, that even with that, the people who owned the shares got the benefits of a sale into a takeover and the money was theirs to be dealt with, including by way of taxation. 

KIRBY J:   You plunge right in – and I understand why you have done this ‑ to the, as it were, merits of the matter.  You have disclaimed addressing us as a jury, but what you have to show is error on the part of the Court of Appeal, and that raises the question of what the correct test is that the Court of Appeal had to apply.  I just wonder whether we ought to get that clear in our mind before we start looking at the details of the matter. 

MR WALKER:   Your Honour, I wonder if I may, with some trepidation, defer that until after I have, as it were, factual material, actual reasoning, to which I wish to apply those matters which are somewhat more abstract.  May I, however, anticipate in this fashion.  It does not appear that anything other than the notice of contention matter much separates my friend and me about the test.  I do not stand before your Honours to urge that any of the classical statements need revisiting. 

GLEESON CJ:   Well, the grounds of appeal appear at page 213, lines 45 to 55, do they not?  Presumably, they constitute the argument that the Court of Appeal was addressing. 

MR WALKER:   Yes, your Honour, they do. 

KIRBY J:   Whatever may have been the old law, it is a serious error to get lost in judicial authority when you have a new statute that requires that these matters be dealt with by way of appeal, it seems to me.

MR WALKER:   Your Honour, I am not going to try to dissuade you from that.

KIRBY J:   It is just that the barristers love old law and they go hunting around for what judges said in the 19^th century instead of concentrating on the statute which is the foundation of the applicable law.

MR WALKER:   If your Honour will forgive me, I do not wish to ‑ ‑ ‑

KIRBY J:   Anyway, I understand what you are doing but if I can say so you are going off from, as it were, laying out the facts which is an entirely appropriate course, to arguing the facts.  It may be that you want to get it in both ways and have your argument now and your argument later.

MR WALKER:   No, I want one argument on this point only.  May I confess of course there is a danger.  Anyone in my position commits the very error that they accuse the Court of Appeal of, namely, simply inviting your Honours to form preferences.  That is one of the reasons why, quite deliberately, unashamedly, I am picking the eyes out of this from our point of view so as not to put to your Honours the overall balanced, panoptic view of the whole thing.  That is not to the point.  Your Honours are not going to or should not form an opinion as if you were jurors.

What I am trying to point out are those things which were capable rationally of giving rise to the answer “no”, not to the point that there were other things that might tell in the opposite direction because, once there was a balancing or a judgment to be made as to respective weight or where the sting might really be located or what it really meant taken as a whole in the article as a whole, those are matters which are not for this Court; they certainly were not for the Court of Appeal, except according to the extreme tests to which I will come after laying the background. In relation, however, to section 102 of the Supreme Court Act in answer to Justice Kirby, may I make it crystal clear that we do not submit that that can be, as it were, ignored by reference to old books.  Rather, we submit, that it is the old books which tells one to some extent, and some of them in categorical fashion, what the word “appeal” means.

As to imputation 3(a), this is, of course, quite different, according to the Financial Review article to which I have just finished taking you, the quite separate matter at that point of responsibility for the death of Caroline Byrne.  To that end I need to take your Honours in the supplementary appeal book to the very large foldout which is page 6, which has the somewhat modified photograph of the three players under the heading “Death of a Model”.

May I draw to attention that above that headline, that is, the introduction for people deciding whether to read it, and a matter which of course the jury had before it, there is, as it were, a contrast invited to be drawn by anybody who reads on:  “Many who knew her refused to believe it was suicide.”  But then the journalist looks at evidence presented to the coroner and one might think that the jury was entitled to be primed, as it were, to think that an ordinary reasonable reader might be primed to think there is the world of difference between matters of no substance, that is refusals to accept the obvious, and matters of some substance, that is the way in which evidence was actually presented to a coroner.

GLEESON CJ:   Mr Walker, presumably somewhere down the track but never reached in the events that happened, there was some issue about fair report of proceedings before the coroner, was there?

MR WALKER:   I have presumed that as well, your Honour.  It is down the track in the future which we hope will never happen, it has not yet been ‑ there is no defence filed except on 7A issues.

MR HUGHES:   That is not quite right.  As we point out in our written submissions, there was a defence filed.  No defence of fair report was raised but a defence of partial justification, that is to say, justification of some only of the imputations, in particular, as I recall, the imputation that the father of the late Caroline Byrne suspected Mr Rivkin of murder and that the deceased woman herself suspected Mr Rivkin of murder.

GLEESON CJ:   I only asked the question because a quick reading of this article suggests that what I might call the most potentially damaging parts of it are in quotations from evidence at a coronial inquest.

MR HUGHES:   As I understand it, the defence filed did not raise fair report, your Honour. 

MR WALKER:   My friend is right.  I apologise for having misled your Honours earlier.  The defence starts at 25.  There are indeed certain justification pleas contained in it.  There is no fair report contained in it. Whether or not in the event of the proceedings continuing that would be the subject of an attempted plea is something which I must leave open.  I do not have instructions, but in the nature of things the combination of evidence at coronial proceedings and quotation of that evidence would, one would have thought, give rise at least to that possibility being considered.

As your Honours have seen, 3(a) is the rather confronting imputation:

That the Plaintiff was a person criminally liable in respect of the murder –

not the death –

of the late Caroline Byrne –

and I would simply wish to draw to attention the way in which some of those matters fall out.  I am not suggesting that in my following selections I have been anything like comprehensive.  My method, obviously, is to point out the possibilities for the jury to have operated, not the way in which your Honours may have operated had you been jurors.

In the third column there is a large initial “M” for murder which might be thought to start the most focused part of the article on this question.  “MURDER 1”, it reads.  There is a reference to the initial write‑off of the case as “suicide” and then in the succeeding paragraphs, 28 and following, a reference to the reopening of the matter.  Senior Constable Wyver, in paragraph 28, had the case put in his hands and he tackled Mr Wood about a number of matters, to which I do not need to go.

The next column at paragraph 25 – one would have noticed in the first column that the only reference to Mr Rivkin was his ownership of 14 cars – refers to:

An interview tendered as an exhibit during the inquest showed one possibility the police were exploring.  The transcript reads:

Wyver:  Now, I have been informed that on the day of Caroline’s death she did not in fact attend work, but she made surveillance of you and in the course of this surveillance she caught you and Rene [Rivkin] having homosexual intercourse.  What can you tell me about that?

Wood:  Absolute lies.

Wyver:  OK, and then I have been informed that as a result of that an argument between her and you ensued.  Is there anything…

Wood:  No.

Wyver:  …and that you went to The Gap and threw her over The Gap.

Wood:  No, that’s not correct, not correct.

Now, as we put it in writing, bearing in mind how that is said to have been introduced by the policeman and the way in which it is dealt with by the interviewee and his first response, responded to in turn by the policeman, “Okay”, goes on with putting the whole of the proposition, why should that not rationally be seen by the jury as being a matter in which the policeman did not himself have much faith?  But there was more in the story that would have supported that.  It goes on.  It talks about, in paragraphs 37 and 38, the connection and the ceasing of the connection between Mr Wood and Mr Rivkin as employee and employer.  Then, paragraph 40 ‑ ‑ ‑

GLEESON CJ:   Just before you pass over paragraph 39, that is the matter that is not denied by Mr Wood.

MR WALKER:   Paragraph 39?

GLEESON CJ:   Yes.

MR WALKER:   They are not only not denied, but they are his words quoted.  Is that what your Honour is asking me?

GLEESON CJ:   Yes.

MR WALKER:   Yes.  I am going to come back to that for another of the imputations.  I will make no bones about it, that is an imputation that stands in a rather different class.

GLEESON CJ:   That is number 3(d).

MR WALKER:   Yes.  Still on 3(a), 40 we have the denial, and then in 42:

Neither Rivkin nor Wood would return telephone calls from the Herald.

Now, in a passage of argument upon which we in fact depend, a passage of argument in the written submissions by my learned friends, that is called in aid as part of the finger pointing to Mr Rivkin, not returning a phone call from the Herald.  One could be forgiven for thinking the jurors could not be driven by the requirements of the out‑and‑out bounds of rationality to that view of the matter.

Wood was not questioned about this allegation during the inquest –

so in terms of the policeman into whose hands the investigation and the reopening had been put, whose rather rapid confrontation of Mr Wood was recorded in the transcript at paragraph 26, was concerned, it did not even warrant questions at the inquest –

nor was Wyver asked the source of his information.

Your Honours know that the sources of information are some of the things that are talked about at inquests where the rules of evidence of course do not apply.  Whether the jurors knew about coronial practice or not, the commonsense of the proposition that an extremely serious allegation that after all the plaintiff relies upon for the connection which underlies imputation 3(a), that that extremely serious allegation did not go beyond the record of an unsourced piece of so‑called information being put to one of the people about whom it was said, nothing followed up at the inquest, not even to the extent of that source being named.

Then, in our submission, it gets better for us and worse for the plaintiff as plaintiff, but of course better for him as someone in the story.  Paragraph 43 there is the reference to:

Mr Rivkin, who is married with five children, was not called as a witness and did not make a statement to police –

Then there is a reference to a:

“door‑stop” outside one of his haunts, Joe’s Café in Darlinghurst, several months later when he said he could not recall whether Wood had been driving him the day Caroline died.

So not even the “door‑stop” involves, “Had you been caught in bed with him by her the day she died?”.  So no confrontation even of the jury, in our submission, well within the bounds of rationality, would be entitled to say, “Well, this didn’t get beyond square one with the policeman and didn’t get to the coroner, why should we read this as an article imputing that Mr Rivkin, for heaven’s sake, was criminally liable?”, et cetera, et cetera.

When one then moves on to 3(c)(ii), which is related, one sees that that focuses on what obviously – according to the arguments considered and rejected by the jury perforce, that concerns the so-called motive.  The imputation is simply, however, that the police had reason to suspect that the plaintiff had engaged in homosexual intercourse with Gordon Wood – that the police had reason to suspect.  I have taken your Honours to the passage in question.  Far from the police suspecting, forming a view, that there was something to follow up, there is within the bounds of rationality a choice available to the jury to have decided, no, this was a policeman simply scotching something which somebody annoying him had raised; never pursuing it further, not in the coronial inquest, not even interviewing Mr Rivkin about it.  In our submission, that is so far within the bounds of reasonableness that the Court of Appeal is clearly in error, if we are correct in enunciating the test to which I am about to come, as to the limits of their function on appeal, and I mean on appeal, true appeal.

KIRBY J:   It has to be read in the context of the entire article.  The entire article is looking for a reason why this beautiful young woman was found dead ‑ ‑ ‑

MR WALKER:   Was found dead at the foot of The Gap.

KIRBY J:   ‑ ‑ ‑ and there are theories of murder being advanced and amongst them there is reproduced a statement by police which is said to give rise to a theory of murder.  So you have to read it in context.

MR WALKER:   Yes, and I hope that nothing I say is intended to suggest that the jury was not directed to do so.  It was repeatedly admonished to do so by counsel.  But I stress it was neither appropriate in the Court of Appeal, nor here, for what I would call a full-fledged jury approach to be engaged in and, indeed, to the extent it was, appellate error creeps in, because when counsel replicates what was put to the jury on an appeal from a jury, then what one is in constant danger of doing is asking the Bench which you are addressing, in those same terms, to respond as if they were the same tribunal to whom one had originally addressed those arguments.  That is why, as I say, just picking the eyes out from our point of view, unashameably partisan, not intended to be balanced, because the jury is entitled to seize upon this or that and so long as there is a rational argument by which that can be strung together to lead to the answer no, then it does not matter that there may be other matters which pull in an opposite direction.  After all, when a written message contains components which pull in opposite directions, then unless the reader is not going to make a choice between those opposite directions, then some message will appear to the exclusion to the other.  In our submission, diffuse prose obviously contains a great danger for the putative defamer, but it also contains, of course, scope for a jury to make its commonsense “ordinary reasonable reader” determination committed to it and not to appellate judges.

Could I then come to the difficult imputation 3(d).  Imputation 3(d) turns upon the ipsissima verba of Mr Wood himself.

GLEESON CJ:   Not quite.  Paragraph 43 states as a fact that Joe’s Café in Darlinghurst was “one of his haunts”.

MR WALKER:   Yes.  Now, that, of course, is a relevant matter, but it does not do anything in itself to advance the imputation.  That is the sting of the imputation, indeed, the imputation does not in terms, have anything to do with Joe’s Café being a badge of shame – going to Joe’s Café being a badge of shame.  We are, after all, talking about Sydney eating places.

In paragraph 39, those very words, without which this imputation would not have had any legs, those very words are: 

“[Rivkin] used to hang out with a whole stack of people –

a variety, one might think the jury thought –

at the café which, I am sure, you probably discovered has a reputation –

the café has a reputation –

for being a hangout for ex‑drug dealers . . . Joe’s Café –

Now, so far, so good.  It rapidly gets worse for us, but so far, so good.  The jury is entitled therefore to see the beginning of this utterance by Mr Wood as being something which says of a place, one of Mr Rivkin’s haunts, that it is a place that he “used to hang out with”, there is “a whole stack of people” there, it “has a reputation for being a hangout for ex‑drug dealers”.  We have made a point in our written submissions about the prefix “ex”, which, in our submission, is something to which the jury might have attached some significance, however non‑mainstream that might be. 

The importance, at the moment, in this part of the utterance simply is that the café has a reputation and he hangs out with a whole stack of people there.  There are many eating places, whether they be pubs, restaurants, bars or cafés in Sydney, where, one imagines, if one were to do a police check of the habitués, one might be surprised at the kind of company you were keeping by being in the same place.  It may be that the jury is well aware of just that possibility in Sydney. 

GLEESON CJ:   Like the Bar common room. 

MR WALKER:   I was about to exclude all clubs.  The fact that the Bar common room is closed for eating should not be treated as any admission, your Honour.  But the second part of it, of course, I am bound to point out, is one where my row becomes a lot harder to hoe, because the next part reads as follows: 

“Some of Rene’s closest cronies –

and not a lot can be done to play with the word “cronies” –

have certain criminal backgrounds –

Again, we have made a point about “background”.  It may be that the jury did not assume that people with criminal backgrounds – and, after all, we live in a society that has the notion of convictions becoming spent – are not to be described by the abrupt simple expression chosen by the imputation “criminals”.  In other words, why could not a juror say, in answer to the confronting question, “Are you a criminal?”, it is perfectly possible for somebody to say, “No, but I do have a criminal background”?  It then goes on: 

or are rumoured to have it –

Now, this does not involve the law about rumours, because this is focusing on Mr Rivkin, that the plaintiff is a close associate of criminals.  Now, to have it said that some of your closest cronies are the subject of rumours that they have certain criminal backgrounds may, of course, again, in this country, mean that you simply know somebody very prominent about whom the poison pens and the scandal‑mongering tongues get busy with pure fantasy.  Indeed, at times in this country, it would have been true to say that if you are a close friend and adviser of senior politicians that some would say that because they are rumoured to have done terrible or nefarious things, you are therefore a close associate of, et cetera.  It does not hang together. 

CALLINAN J:   The word “cronies” is a loaded word. 

MR WALKER:   The word “crony” is a loaded word. 

CALLINAN J:   Cronyism, backroom deals, shoddy deals. 

MR WALKER:   Interestingly, that is not taken up in terms, that is that the association was, as it were, a thieves’ kitchen association.  “Crony” clearly helps in terms of the epithet “close” in front of the word “associate”, but, after all, the material complained of already had the expression “closest”.  So though everything that your Honour has said must be right as one of the possible readings, it is also possible, of course, for there to be an innocent, even a benevolent or warm, use of the word “crony” to describe people with whom you frequent ‑ ‑ ‑

CALLINAN J:   I rather doubt that today, Mr Walker.

MR WALKER:   Whether it is always derogatory ought to be doubted, your Honour.  It is often derogatory.

McHUGH J:   I once cross‑examined Mr Peacock about a statement he made about cronies of the then Prime Minister.  He denied that it had any defamatory imputations whatever.  That was in the Coombe‑Ivanov Royal Commission.

MR WALKER:   Yes.  Well, it is not a matter, thank goodness, about the meanings of words.  In politics, of course, cronyism is, I think, universally a derogatory expression.  It does not follow that everyone - this is not politics, this is café society.

KIRBY J:   Yes, it is not quite café society though.  The suggestion is that it is searching for a motive and an opportunity and the suggestion has to be read in that context.  The context is, it seems to me, pretty strong that he hangs out at a place, there are criminal elements there, ie, footnote, people who will carry out a killing, and that he therefore has the opportunity to fulfil theory number one.

MR WALKER:   Your Honour would first have to ask yourself not whether you as a juror might follow that route, but whether you as a juror must follow that route and, in our submission ‑ ‑ ‑

KIRBY J:   That is true but ‑ ‑ ‑

MR WALKER:    ‑ ‑ ‑when one is talking about people at a café, the notion that that is a labour exchange for contract killers needs only to be stated to be rejected as the inevitable or only rational inference.  There is no imputation, of course, which squarely puts ‑ ‑ ‑

KIRBY J:   What is the other inference?  Here is Mr Rivkin sitting there with all that cigar smoke, apparently all on his own ‑ ‑ ‑

MR WALKER:   It could not be in a café, not in Sydney, your Honour.  It would have to be ‑ ‑ ‑

KIRBY J:   It is not just café society.  It is in a context of theories of murder.

MR WALKER:   No, this is paragraph 39.  This is describing why Caroline had expressed suspicion, misgivings about Mr Rivkin.  That is quite distinct from supposing that this was the opportunity, never written about in the article, certainly never put in an imputation, that this café was where a contract killer was commissioned, as it were.  Here is the opportunity to have found someone. 

Now, in our submission, there is an element of the bizarre in any event about this proposition, that because you hang out at a café where other people have criminal backgrounds and because you have cronies with certain criminal backgrounds – he is a stockbroker after all – that is, the crime in question – the jury is perfectly entitled to say, if the word “certain” is used and no distinction is drawn between tickling the till, commercial fraud, on the one hand, and beating people up, threatening violence, on the other hand, then there is not the message conveyed which we are being asked by the plaintiff to find conveyed.

GLEESON CJ:   Mr Walker, I may not have read the article with sufficient care yet, but what, if it appears at all, did Caroline Byrne suspect Mr Rivkin of?

MR WALKER:   I think it has to do with sexual orientation because of the last part of paragraph 39, your Honour, and the fact that Rene ‑ ‑ ‑

McHUGH J:   And 40.

MR WALKER:   And 40, sorry –

has a high degree of interest in good-looking young men . . . so she [Byrne] certainly expressed concern about his intentions towards me.

I am unable to answer your Honour the Chief Justice’s question as to how all of that answers the question your Honour has asked about Caroline Byrne.  It is, after all, not an inquiry into the fact of her view, but into what the jury did, properly directed, and this Court would assume, as the Court of Appeal should have assumed, that they tried to comply with directions, applying the “ordinary reasonable reader” test. 

Now, that is a paragraph which goes through a number of subject matters.  We have confronted the difficulty which 3(d) does have for us, but for the reasons I have put, particularly in relation to criminal backgrounds and the vagueness of that, and the even further vagueness or unfairness of regarding somebody as a criminal because they are rumoured to have a background, in our submission, the starkness of term and the imputation provided the method rationally.  It does not matter whether this is something that would have appealed to your Honours as jurors, rationally to have said, no, not a close associate of criminals at all. 

It did not say that, and we will not have a bar of the notion of people rumoured to have criminal backgrounds being treated as criminals.  Nor are we going to treat the fact that you have a criminal background as meaning you fall now to be described as a criminal.  Many clergymen would be close associates of criminals on that view of matters.

GLEESON CJ:   Sometimes if you have 17 imputations, one good one might get dragged down with the rest.

MR WALKER:   Yes, and I want to come to that in relation to the argument about the retrial order, your Honour.  That is an important matter and it is a possibility that we could not possibly gainsay.  On the other hand, the argument we have put in our submission suggests a rational method by which one could have answered “no” to that question, and when I say “one”, I should immediately disavow anyone at the Bar table or on this Bench, with great respect, as being the appropriate arbiter of the outer limits of what is possible in that regard.  One needs, in our submission, not to construe this as a lawyer would.

KIRBY J:   But the imputation is, is it not, not simply sexual orientation but sexual orientation on the part of a person who is married with five children who, by inference, is not open about sexual orientation and therefore has a motive to get rid of somebody who is ‑ ‑ ‑

MR WALKER:   All of that, but your Honour would have to ask yourself, “Is that kind of suspicion” – my friend’s word when asking for the extra direction I started with – “such an inevitable reading as to brand or stigmatise a jury that did not adopt it, evidently, as being thereby untrue to their oath, false to their duty and beyond the limits of rationality?”  And, in our submission, no, one cannot say that you must have reached that conclusion.  One might be able to say, though I do not wish to be taken as assenting to it, that you may have reached that conclusion, because what your Honour has put to me may involve intermediate steps of inferences or speculation which really are not fairly given rise to by this.  We do not need to attend to that; we need to attend only to the other side of the logical argument:  was what the jury did an impossible outcome?

That leaves only one, which is, that the plaintiff was a person criminally liable in respect of the murder of the late Caroline Byrne, 5(a), arising from the true innuendo case from the Australian Financial Review article and the Sydney Morning Herald article – you will see it in the right‑hand column on this same page 6, “Murder 2” it starts.  “The most sinister theory” the writer talks about “is her father’s belief”, so it is introduced as “her father’s belief”, “that a ‘contract killer’” - that is put in quotes - “a ‘contract killer’ was hired to do away with her.”  And there is a quote from his letter, a letter where the father, who of course on no view of matters could have been regarded by the jury as an eyewitness or a participant in this death, simply states categorically that his daughter had been “knocked unconscious a short distance from where she was found and thrown over the cliff”.

GLEESON CJ:   The author of the material has told the reader not only that Mr Rivkin has never been charged with anything but he has never even been interviewed by the police.

MR WALKER:   That is right, and describes this allegation - having used that language in the first paragraph, then goes on to say that “Byrne makes an extraordinary series”.  “Extraordinary” is not a word that the jury was obliged to regard as meaning terrible in the sense that anybody involved about it is thereby defamed, but rather, one would have thought, open to them of the reading extraordinary meaning “whacky, bizarre” - “an extraordinary series of allegations about people he claims were behind the murder”.  Note the plural, “people”.

KIRBY J:   But is that not the sting of the imputation?

MR WALKER:   Yes, it is.

KIRBY J:   At the top of the article is says, “many who knew her refused to believe it was suicide”, and then within the article there are murder theories and in that context Mr Rivkin is mentioned.

MR WALKER:   Faith as opposed to evidence, theories as opposed to what was taken seriously.  If one reads on, there are references to the allegation of motive, that she had found out about a very serious crime.  Now, I asked your Honours to recall what was said about the ASC inquiry into Alpine Offset.  Nothing there is said about a very serious crime committed by Mr Rivkin.  Things were unbeknownst to him.  He was not aware of the build up of the portfolio that required disclosure and which was not, contrary to the law, disclosed.  Nothing is there said about any criminal conduct of any kind.  Indeed, nothing even of incompetent conduct in the management of the company.  Doubtful it was the shareholding in it, not its fate, not its fortunes which were on the up and up, according to what the jurors read, the ordinary reasonable reader would have seen.

So this very serious crime is, of course, essential to the plaintiff’s case as being part of what leads to the imputation.  It is put in quotes as part one of these extraordinary series of allegations against people in the general terms.  It goes on at 47:

The police investigation did not take into account Byrne’s theory –

Now, there are many possibilities from that, one of which is that the writer is criticising the police for being incompetent or worse, but there is not a shred of that elsewhere in the article and so another possibility must be that people whose skill is in sorting out rubbish from stuff that is worth looking at have decided that was rubbish.  It goes on:

no statements were taken –

so the reader was being told that the elementary aspect of an inquiry was not followed –

or witnesses called, and Abernethy –

the coroner –

does not mention the allegations in his official finding –

does not even warrant being put in the category of “Red herrings I have considered so as to dismiss, and I mention them so that the public may be reassured that something serious has not been overlooked”.

GLEESON CJ:   Of all the living people mentioned in these articles, the one who is most likely, according to the articles, to suspect Mr Rivkin is the father of the deceased but, as I understand the reasoning of the Court of Appeal, the jury were entitled to find that the article did not carry the imputation that the father suspected Mr Rivkin or even that the father had reason to suspect Mr Rivkin ‑ ‑ ‑

MR WALKER:   That is right, 5(b)(i) ‑ ‑ ‑

GLEESON CJ:   ‑ ‑ ‑ but it did contain the imputation that he was guilty.

MR WALKER:   Yes, there is, of course, no cross‑appeal.  In our submission, that in itself bespeaks error where one, as we submit you have to, is in the realm of the broad field of commonsense and what rationality would permit and, in our submission, that last column I have read is all about father’s suspicions and a jury perfectly entitled to say, Mr Rivkin not being mentioned there of course – I know he is mentioned in the whole of the article – but the jury is obviously entitled to obey the direction about regarding the ordinary reasonable reader as not being able to discount it.

MR HUGHES:   Well, they explained why.

McHUGH J:   Well, I know, but that seems to mean that “Murder 2” is out.

MR HUGHES:   No.

McHUGH J:   Well, their Honours say they reject the “Murder 2” theory, because of the use of the words “extraordinary series of allegations”.  They say the jury is entitled to find that the article did not mean that the father had reason to suspect that the person was criminally liable in respect of the murder. 

MR HUGHES:   They are saying that the article does not say that Byrne had reasonable grounds for suspecting. 

GLEESON CJ:   Is there not something a little odd in saying the jury were entitled to reject the weaker imputations, but not entitled to reject the stronger one?  The imputation you are on now is a much more serious imputation than the imputations in 3(b)(i) and 3(b)(ii). 

MR HUGHES:   Yes, it may seem a little odd, but it is not fatal because, as I said earlier, the appellant is hoist with its own petard.  It said to the Court of Appeal, decide the case on the arguments put to the jury and look at this argument, the murder argument, the murder imputation.  The clearest challenge was extended to the present appellant to explain why the present respondent was introduced into this article, if not to suggest that he had a culpable hand in a murder, and the court said no explanation, no attempt at explanation was made.  Even in the Court of Appeal, no explanation was proffered.

As one travels through these imputations – I have been through several now, 1(a), 1(b), 3(a) – one finds that the Court of Appeal dealt with each one in the light of the arguments to the jury.  Imputations 3(c)(i) and (ii), that is the imputations relating to homosexual connection, the Court of Appeal’s treatment of that topic starts at page 252, paragraph 84.  I will not read paragraph 84.  Paragraph 85: 

Part of the matter complained of includes this extract (paragraph 36) ‑ 

and it is set out.  Paragraph 86 of his Honour’s reasons: 

The article itself does not disavow the reported hearsay statement beyond reportage of the denial by Wood who is, as previously mentioned, published as a person who had lied (to a number of Ms Byrne’s friends in respect of her death) –

that she had been run over by a car, a bizarre lie –

and about whose credibility the matter complained of was generally dismissive. 

Paragraph 87: 

It was submitted on behalf of the respondent that the publication of the response by Wyver “OK” to Wood’s assertion that these were absolute lies left it open to the jury to conclude that the publication conveyed neither of the imputations.  That proposition is logically suspect because following “OK” is the question concerning the alleged argument which is based upon the factual supposition that such homosexual intercourse had occurred.  Given that circumstance, it was inevitable that at least the alternative pleaded as imputation 3(c)(ii) had been made out in the sense that it must have been conveyed that the police had reason to suspect that the factual supposition had substance. 

Of course the stronger case, which I put as the stronger case to the jury, was that that was an out‑and‑out statement in the article that Mr Rivkin had committed the act described in paragraph 36.  We rely in our written argument on another passage in the speech of Lord Devlin’s reasons.

GLEESON CJ:   It is about eight-tenths of the way down that page that your referred us to in Lewis that you get the origin of this reason to suspect.

MR HUGHES:   Yes, your Honour.  Now, the stronger case, and we say a case so strong that the imputation of homosexual intercourse between the respondent and his employee was necessarily conveyed, is the one of actual intercourse rather than reasonable suspicion.  Then that conclusion is reached at paragraph 87 on page 253.  Imputation 3(d) is the close associate of criminals imputation ‑ ‑ ‑

GLEESON CJ:   This must be the strongest part of your argument.  I should have thought the argument against you is that they might have been reformed criminals.

MR HUGHES:   Yes.  As I think Justice Grove pointed out, a reformed criminal can still be described as a person having a criminal background, and therefore being a criminal – the point is dealt with I hope succinctly in our written argument.

KIRBY J:   What is the point of mentioning it at all in this context unless it is to have a sting that it provided some explanation linking Mr Rivkin to one of the theories concerning the death of Ms Byrne.

MR HUGHES:   That is a point that your Honour tentatively, but potently tentatively, made this morning in the course of discussion.

KIRBY J:   I just cannot see any other explanation of mentioning it.  I may be missing something.

MR HUGHES:   In my submission, your Honour has missed nothing.  Then 3(d) is dealt with in paragraphs 89, 90, 91 and 92 at page 254 of his Honour’s reasons, and 5(a), which is the murder imputation based on true innuendo, is dealt with in paragraph 98 on page 255:

It suffices to observe that the imputation pleaded as 5(a) is even more strongly conveyed in the case of a reader with requisite extrinsic knowledge than the similar imputation pleaded in respect of the first Herald article standing alone, and a bare invitation to the jury not to find it made out does not constitute an argument permitting rejection of plain meaning.  The negative answer by the jury cannot be supported.

At paragraph 99 Justice Grove covers ground to which your Honour the Chief Justice has alluded within the last few minutes.  Now, we say, with respect, that the judgment of the Court of Appeal as a discretionary judgment can be supported on the basis that it proceeded in the way that the present appellant asked their Honours to proceed and that in the exercise of its discretion this Court, with respect, will not set aside a discretionary judgment for the simple reason that it proceeded on the very basis that the appellant asked it to proceed upon.  That covers a fair bit of the ground that I have to cover.

GLEESON CJ:   I think you still have to cover the matter of the two hours.

MR HUGHES:   Yes.

CALLINAN J:   Could I ask you one question, Mr Hughes.  If, for example, the Court were minded to take the view that the Court of Appeal was correct in relation to some of the matters and perhaps not others, does the fact that there were two articles – there were two articles only ‑ ‑ ‑

GLEESON CJ:   Three.

CALLINAN J:   ‑ ‑ ‑ does the fact that there were three articles add anything to your true innuendo case?  I really do not understand how your true innuendo case differs from your ordinary case.  Do you need your true innuendo case if, in substance, the Court of Appeal’s view is held to be correct?

MR HUGHES:   Probably not.

McHUGH J:   I do not know that you should make that concession because it seems to me it makes your case much stronger on the true innuendo case because by linking The Financial Review article it gives meaning to the statement in the “Murder 2”, that she had found out about a very serious crime from which they stood to benefit, and I do not think there is any recollection to the details of the ASC investigation, is there, in any detail anywhere else in that article “Death of a Model”?

MR HUGHES:   No, there is not.

McHUGH J:   Once you get a situation where suicide is one thing but she has to take a running jump to do it, then you get Wood lying, Wood and Leigh both being seen – in the green Bentley being seen at the cliff site which gives force to the idea that two people may have thrown her over, then you have what on any other view is a gratuitous reference to Rivkin, namely, that he hangs out with or his closest cronies are people with criminal backgrounds, drug dealers, et cetera, et cetera, then you have an allegation from the father that she had found out about a serious crime and the AFR article identifies what that crime is and who is involved in it.  Put it all together, it makes a case that Rivkin was involved in the murder of this woman.

MR HUGHES:   I was not going to discard the true innuendo case, I can assure your Honour.

McHUGH J:   The question though is whether or not a jury had to find it.  That is what concerns me.

MR HUGHES:   Part of my answer is that that is a question to be answered in the light of the way – and I do not wish to be tediously repetitive – that the appellant here asked the Court of Appeal to deal with the matter.  That is a core of my argument.  Having done that, this being a question of discretionary judgment, this Court, in the exercise of its discretion - because a new trial is a discretionary remedy, or the refusal of a new trial is a discretionary remedy – would not disregard the fact that the appellant asked the Court of Appeal to deal with the matter in a particular way and the Court of Appeal did, coming up with answers unfavourable to the present appellant.

McHUGH J:   The difficulty I have with the appellant’s case on this is, what was the point of referring to this association with people of this criminal background unless there was some point to be ‑ ‑ ‑

MR HUGHES:   That difficulty is shared, tentatively speaking, by your Honour and Justice ‑ ‑ ‑

McHUGH J:   You can perhaps explain the headline “The Rivkin Link” as a piece of sensationalism, linking the story with a well-known personality, but then when you get down into the article itself and you introduce what is an attack on his character, on any view of it, no matter how you read it, it is certainly defamatory of him, what is in there, whatever the precise imputation is.

MR HUGHES:   That is why one has to look at the whole matter complained of, the Herald article; that is why one has to look at the Herald article in the light of the AFR article, the second cause of action.  I do not discard the third cause of action, for reasons I will come to, but it may fairly be said that the third cause of action is the weakest of the three but still strong enough.  I will come to that in a minute or two.

McHUGH J:   Mr Hughes, I also forgot to mention that when you link up the column “Murder 2”, 41 through to 48, with the AFR article, it does provide a reason for the father to suspect the plaintiff.

MR HUGHES:   Yes, indeed, because your Honour will recall the statement in the Herald article that the deceased woman had suspicions of Mr Rivkin based upon his predilection for good looking young men and other factors, because the article says some of the suspicions entertained by Caroline Byrne were based upon his sexual orientation, alleged sexual orientation.  So it is very powerful stuff.  I must avoid addressing your Honours as a jury.  As I put to the jury, this material was full of insidious insinuation.

McHUGH J:   Well, it is easy to understand why the plaintiff would be very upset by the article, but that is not the question we have to decide.

MR HUGHES:   No.

McHUGH J:   It is the question whether or not the jury were bound to find these imputations.

MR HUGHES:   Yes.

McHUGH J:   Or it was unreasonable for them not to.

MR HUGHES:   Unreasonable for them not to.  One determines that question by reference to the way in which the matter was conducted below.  Now, I should say something more briefly about the AFR article.  What that article does is to weave together in narrative form several otherwise disconnected strands in such a way as to suggest that there is a connection between them.  On that point, may I say this, that the very title of the article “Perspective” carries its own message.  “Perspective” is a word definitive of the relationship of part of something to each other and to the whole.  It is an article, as my learned friend Mr Nicholas conceded, that was meant to be read seriously and reflectively - perspective.  Overshadowing the narrative process in the AFR article, there is a statement that Sydney has developed an obsession with the death of Caroline Byrne.  That is tantamount to saying that a lot of people in Sydney are asking the question:  what caused her death?

It is an invitation to the reader to speculate as to the cause of her death and to answer the question unanswered by the coroner’s finding.  Overshadowing the narrative is the plain suggestion that new information is available about events surrounding her death and a further suggestion that this information was not available to the coroner.

GLEESON CJ:   Mr Hughes, how long do you think you will require to complete your argument?

MR HUGHES:   I would like to take stock overnight.  I will be brief in the morning, but I would prefer, if I may, to do it in the morning after I compress things so that I can be short.

GLEESON CJ:   Yes.  You probably have not very far to go tonight, anyway.

MR HUGHES:   No, your Honour.  I see it is just on time.

GLEESON CJ:   Mr Walker, how long – I only ask this question for the benefit of the next case.

MR WALKER:   About 20 minutes, or perhaps less, your Honour.

GLEESON CJ:   I do not think we will say anything about the next case, then.  We will adjourn until 10.15 ‑ ‑ ‑

McHUGH J:   Just before you do.  Mr Hughes, do you place any reliance on the statement in paragraph 12 of the “Death of a Model” article that “she had two (negative) HIV blood tests” as indicating that she may have suspected that Wood had been engaged in homosexual relations?

MR HUGHES:   Can I say, quite frankly, that I did not make any reference to that to the jury, so I would be less than honest if I said ‑ ‑ ‑

McHUGH J:   Yes.

GLEESON CJ:   I thought I read that in connection with a reference to an older man.

McHUGH J:   Yes.  Well, that is ‑ ‑ ‑

GLEESON CJ:   What is wrong with an older man I do not know, but I thought I read that.

MR HUGHES:   No, your Honour, I cannot claim that thought.

GLEESON CJ:   We will adjourn until 10.15.

AT 4.16 PM THE MATTER WAS ADJOURNED
UNTIL WEDNESDAY, 12 MARCH 2003