Marke v Ewart and Australian Broadcasting Corporation
[2009] VSC 544
•1 December 2009
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 6391 of 2009
BETWEEN
| LANCE FREDERICK MARKE | Plaintiff |
| and | |
| HEATHER EWART | First Defendant |
| and | |
| AUSTRALIAN BROADCASTING CORPORATION (ABN 52 429 278 345) | Second Defendant |
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JUDGE: | KAYE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 20 November 2009 | |
DATE OF JUDGMENT: | 1 December 2009 | |
CASE MAY BE CITED AS: | Marke v Ewart & Australian Broadcasting Corporation | |
MEDIUM NEUTRAL CITATION: | [2009] VSC 544 | |
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DEFAMATION – Practice and procedure – Whether words capable of defamatory meanings pleaded in proposed amended Statement of Claim – Whether proposed imputations pleaded with sufficient precision.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr S K Wilson QC and Mr D Bracken | Tony Hargreaves & Partners |
| For the Defendant | Dr M Collins | Minter Ellison |
HIS HONOUR:
At the times relevant to these proceedings, the plaintiff was a Detective Sergeant of Police. He claims that he was defamed by a program in “The 7.30 Report” broadcast by the second defendant, the Australian Broadcasting Corporation, on 7 May 2003, and by a transcript of that program, published by the second defendant, on its website. The first defendant is the journalist who compiled and presented part of the program, about which the plaintiff makes complaint. The plaintiff seeks leave to file and serve a further amended statement of claim in the proceedings.
The program was concerned with allegations that an Anglican parish priest, Father Alan Sapsford, had molested a number of young boys, who served as altar boys, during his tenure of office in Seymour between 1966 and 1996. In particular, the program alleged that when allegations concerning Sapsford came to light in 1996, the church had been involved in a cover-up of them. The program reported that in 2002, a police investigation commenced into the allegations relating to Father Sapsford. The program stated that the mother of one of the victims (referred to in the program as “Stella”) “struck a hitch”, when she tried to contact the detectives who were investigating the allegations. She said that when she made telephone calls to those detectives, she was “thrown off the scent”, by the plaintiff who would give her “the run around”. When asked why the plaintiff would “block this”, she stated “I now know that he was friends with Alan Sapsford”. The program then reported that word had “spread around town” among parishioners and the victims’ families “to be careful if they were going to ring with complaints and he (the plaintiff) answered the phone”. The program reported that a police spokesman in Melbourne had confirmed that there had been allegations about the way the investigation was conducted, and that those investigations were being examined by the police Ethical Standards Department.
After this proceeding was commenced, the plaintiff filed and served an amended statement of claim to correct some typographical errors in it. Subsequently, the defendants raised issues about the imputations pleaded by the plaintiff. In response, the plaintiff seeks to amend the imputations in a further amended statement of claim, so as to plead that, in its ordinary and natural meaning, the program bore the following imputations:
“(a) Detective Sergeant Marke had used his position as a police officer to frustrate a criminal investigation of a paedophile priest;
(b) Detective Sergeant Marke had used his position as a police officer to obstruct a criminal investigation of a paedophile priest;
(c) Detective Sergeant Marke, motivated by his friendship with a paedophile, used his position as a police officer to protect the paedophile during an ongoing criminal investigation into the paedophile’s conduct;
(d) As a result of Detective Sergeant Marke’s obstruction of a police investigation of a paedophile priest, the priest was able to continue preying on victims;
(e) Detective Sergeant Marke, by obstructing the police investigation into a paedophile priest, misconducted himself in the performance of his duties as a police officer.”
Submissions
The defendants have resisted the application to amend the statement of claim. They submit, first, that a jury could not reasonably conclude that the imputations, sought to be pleaded by the plaintiff, had derived from the words published by the defendants. Secondly, it is submitted that the proposed imputations are defective in form.
Dr Collins, who appeared for the defendants, commenced by pointing out that each of the meanings, alleged by the plaintiff in the proposed further amended statement of claim, comprise an imputation that the plaintiff was guilty of particular conduct, namely, frustrating or obstructing a criminal investigation, or protecting a paedophile. Dr Collins submitted that the program was incapable of bearing those meanings, and that, at its highest, the program was only capable of imputing that the plaintiff was the subject of an ongoing, but unresolved, investigation by the police Ethical Standards Department.
Dr Collins relied on the decision of the House of Lords in Lewis v Daily Telegraph Ltd[1], and the decision of the High Court in Mirror Newspapers Ltd v Harrison[2], as authority for the proposition that an allegation, that a plaintiff was the subject of police investigation, is incapable of giving rise to the imputation that the plaintiff is guilty of the offence, which is the subject of the investigation. He submitted that the decision of the High Court in Favell & Anor v Queensland Newspapers Pty Ltd &Anor[3] may be distinguished, on the grounds that the article in that case contained a number of allegations concerning the plaintiff, apart from the allegation that the police were investigating whether he had deliberately set fire to his own home. By contrast, Dr Collins submitted that, in this case, the program made no such allegations about the plaintiff, but, rather, reported the fact that allegations, relating to the plaintiff, were the subject of investigation by the police Ethical Standards Department. Accordingly, Dr Collins submitted that the imputations, sought to be pleaded in the further amended statement of claim, could not reasonably arise from the program published by the defendants.
[1][1964] AC 234.
[2](1982) 149 CLR 293.
[3](2005) 221 ALR 186.
In addition, Dr Collins submitted that each of the imputations in the proposed amended pleading are defective in form. In respect of the first imputation (meaning (a)), Dr Collins noted that the word “frustrate” is defined, in a number of dictionaries, to have meanings such as “make ineffective”, “prevent (a person) from achieving a purpose”, “make (plans, efforts etc) of no avail”, and “nullify”. Dr Collins submitted that the program is incapable of conveying an imputation that the plaintiff frustrated a criminal investigation of the paedophile priest, as the program also reported that a police investigation was commenced in 2002, that statutory declarations were collected from local priest parishioners and two victims, and that the priest was arrested in late 2002. His trial was due to commence in June 2003, but he died in the meantime. Accordingly, Dr Collins submitted, the words published by the defendants were incapable of giving rise to the imputation that the plaintiff had “frustrated” a criminal investigation of the paedophile priest.
Dr Collins raised two objections concerning the second meaning (meaning (b)). First, he submitted that the verb “obstruct” is ambiguous and imprecise, and the imputation does not reveal how it is alleged the plaintiff obstructed the criminal investigation of the priest. Dr Collins referred to statements in the authorities that imputations should be clearly pleaded, and that where two imputations are similar, the relevant distinction between them should be identified in the imputations pleaded.[4] In particular, Dr Collins submitted that the imputation failed to identify with precision the relevant act performed by the plaintiff, which, it is alleged, obstructed the police investigation, and how that act caused the obstruction.
[4]Lewis v Daily Telegraph Ltd (above), 282 (Lord Devlin); Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, 678 (Hunt J).
In respect of the third meaning sought to be pleaded by the plaintiff (imputation (c)), Dr Collins submitted that the program did not in terms allege that the plaintiff had “protected” Father Sapsford. Further, he submitted that the meaning of the verb “protect” is too ambiguous and imprecise. If the imputation is that the program conveyed that the plaintiff “protected” Sapsford by obstructing a police investigation, then that meaning is no different from the second meaning (meaning (b)), and should be disallowed on that basis. On the other hand, if the imputation has a different connotation, then it may not be defamatory. For, he submitted, it could not be said to be defamatory of a police officer to allege that he “protected” an accused person, for example, by preventing harm to that person from others wishing to take the law into their own hands.
Dr Collins made two basic objections to the fourth proposed imputation (imputation (d)). First, he submitted that the use of the phrase “was able” is ambiguous. He contended that that phrase does not make it clear whether it is alleged that, as a result of the plaintiff’s obstruction of the investigation, the priest was in fact able to, and did, continue preying on victims, or whether it means that he was left at large to prey on victims, without containing any further allegation that he did so during the relevant period. Secondly, Dr Collins submitted that the fourth imputation, in any event, is not open from the words of the program.
Finally, Dr Collins submitted that, for the reasons which he relied on in relation to the second imputation, the fifth imputation (meaning (e)) is also defective, because of the use in it of the verb “obstruct”.
In response, Mr S K Wilson QC, who appeared with Mr D Bracken for the plaintiff, commenced by noting that the question, which I am to decide, is whether the words, contained in the program, were reasonably capable of being understood, in the eyes of an ordinary reasonable viewer, to bear the imputations contained in the proposed further amended statement of claim. In determining that question, he referred to the attributes ordinarily ascribed to the ordinary reasonable viewer (or reader), namely, one who is not avid for scandal, and who is neither unusually suspicious nor unusually naïve. Mr Wilson submitted that the fundamental question in the case concerns the basic sting of the words published by the defendants. In performing that exercise, the jury will not be confined to the precise manner in which the plaintiff has pleaded his imputations, but, rather, the question for the jury will be whether the words, in their ordinary and natural meaning, were defamatory of the plaintiff.[5]
[5]Barclay v Cox [1968] VR 664, 665.
In response to Dr Collins’ first submission, Mr Wilson submitted that the program went well beyond a mere statement that allegations, relating to the plaintiff, had been referred to the police Ethical Standards Department for its investigation. Rather, he submitted, the program contained a number of allegations of fact against the plaintiff, and concluded by stating that the Ethical Standards Department is investigating those allegations. He argued that the reference to the investigation did not thereby transform the fundamental sting of the program, namely, that the plaintiff had frustrated and obstructed the criminal investigation of a paedophile priest, and that he was motivated in doing so because of his friendship with that priest.
Mr Wilson submitted that the use of the word “frustrate” in the first imputation was appropriate, in the sense that the program alleged that the plaintiff had rendered complaints, made by people such as “Stella”, as ineffectual, by preventing them being received by the investigating policeman to whom they were directed. In that sense, he submitted that the program alleged that the plaintiff had frustrated the investigation of complaints of persons such as Stella.
Mr Wilson submitted that the second imputation was clear and precise in its meaning. That imputation is to be understood in the context of the program, and it was not incumbent on the plaintiff to plead, in precise detail, how and in what circumstances it is alleged that the plaintiff obstructed the investigation of the priest.
Mr Wilson contended that imputation (c) is not objectionable. He pointed out that the duty of a policeman is to investigate crimes, such as those alleged to have been committed by the priest. The imputation that the plaintiff, as a policeman, had been motivated by his friendship with the priest to protect him during the investigation, was not only clear in its meaning, but also plainly defamatory of the plaintiff. Mr Wilson reiterated that the imputation should not be considered in isolation, but must be construed in the context of the program from which it is derived.
In respect of imputation (d), Mr Wilson repeated his submission that the word “obstruction” is not vague or ambiguous, but, in the context of the program, was well understood. He further submitted that the imputation is reasonably capable of being derived from the words of the program. In particular, he relied on the commencement of the program, in which the presenter (Mr Kerry O’Brien), after referring to a recent scandal relating to the Anglican Church in Queensland, stated that the 7.30 Report had unearthed details of another church scandal in Victoria, and then stated:
“It is a shocking story of abuse of boys by an Anglican priest in a small country town, a story that carries with it the now familiar theme of denial that protected the perpetrator and enabled him to continue to prey on new victims. It raises questions about obstruction of a police investigation that is now being probed by the Ethical Standards Division of the Victorian Police.”
Mr Wilson submitted that there was significance in the juxtaposition of the two allegations at the beginning of the article, namely, the continued preying of the priest on his victims, and the allegation about the obstruction of a police investigation which was being probed by the Ethical Standards Division. He submitted that the program then proceeded to parallel the conduct of the church (which sought to cover up the conduct of the priest) and the conduct attributed to the plaintiff (similarly seeking to cover up the conduct of the priest). He contended that, given the way in which the program was introduced, and the similarity of the allegations made against both the church and the plaintiff, the program had the effect that the ordinary reasonable viewer might well conclude that it was alleging that the plaintiff, by obstructing the inquiry into the priest, had thereby enabled the priest to continue preying on his victims, until his eventual arrest.
Legal principles
The present application is to amend the plaintiff’s statement of claim. The court will not give leave to a party to amend its pleading, if the amendment would be futile, in the sense that if the proposed pleading was in the original statement of claim, it would be liable to be struck out.[6] The primary submission made by the defendants is that the imputations, which the plaintiff seeks to plead, are not capable of being derived from the words published by the defendants. The question, which I must determine, in respect of that submission, is a question of law, namely, whether the publication was reasonably capable of conveying the imputations, sought to be pleaded on behalf of the plaintiff, to the ordinary reasonable viewer.[7] The attributes which have been ascribed, in the authorities, to the hypothetical “ordinary reasonable” recipient of a publication, are not in dispute. In my recent ruling in Soultanov v The Age Company Ltd & Anor[8], I summarised them as follows (omitting citations):
“The hypothetical ‘ordinary reasonable’ reader has been described as an ordinary person who does not live in an ivory tower, and who reads between the lines in the light of his or her knowledge and experience of worldly affairs. Such a reader is described by the law as someone who is not ‘avid for scandal’ and who is neither ‘unusually suspicious nor unusually naïve’. He (or she) does engage in a degree of loose thinking, and is understood to read between the lines. In particular, it is important to take into account that the ordinary reasonable reader is a lay person, and not a lawyer, and that his or her capacity for implication is much greater than that of a lawyer. On the other hand, as observed by Mason J in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, 301, it is necessary to draw a distinction between the reader’s understanding of what the article is actually saying, and a judgment or conclusion which the reader may reach as a result of his or her own beliefs and prejudices after reading the particular matter in question.”
[6]Horton v Jones (No 2) (1939) 39 SR (NSW) 305, 310 (Jordan CJ).
[7]Jones v Skelton [1964] NSWR 485, 491.
[8][2009] VSC 145, [11].
In considering the first submission made by defendants, it is important to bear in mind that the question is not whether a jury would, or should, conclude that the words bore the meanings pleaded in the proposed amended pleading. Rather, the question which I must determine is a question of law, namely, whether the jury could reasonably conclude that the imputations were derived from the program. Thus, the question which I must decide is whether a jury, properly instructed, could reasonably conclude that the program conveyed the imputations, sought to be pleaded by the plaintiff, to the ordinary reasonable viewer.
As Dr Collins pointed out, in considering that question, it is important to take into account the nature or mode of the publication of the allegedly defamatory material. The plaintiff relies on the television broadcast of the program, and also on the publication of the transcript of that program on the second defendant’s website. Counsel did not submit that the meanings to be attributed to the words should vary according to whether the hypothetical recipient of it heard them on the television, or read them on the website. Rather, it was common ground that, for the purposes of this application, I should apply the same test on the basis that the words were published in a transient form. The relevant principles in this respect were stated by Hunt CJ in Amalgamated Television Services Pty Ltd v Marsden[9]:
“The mode or manner of publication is a material matter in determining what imputation is capable of being conveyed … The reader of a book, for example, is assumed to read it with more care than he or she would read a newspaper. The more sensational the article in a newspaper, the less likely it is that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book …, and the less degree of accuracy which would be expected by the reader. … The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking … There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual … All of these considerations, and more, apply to matter published in a transient form – and particularly in the electronic media. Whereas the reader of the written document has the opportunity to consider or re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity … Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant program, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the program as would otherwise have been given to the written article … and may have missed the significance of the existence, earlier in the program, of a qualification of a statement made later in the published material … The trial judge in a transient publication case will therefore more readily leave it to the jury to decide whether an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed, than he or she would in relation to a written document case … .”
[9](1998) 43 NSWLR 158, 165 (omitting citations).
Conclusions
With those principles in mind, I turn to the first principal submission made on behalf of the defendants. Essentially, Dr Collins submitted that the words, contained in the program, were not reasonably capable of giving rise to an imputation that the plaintiff had committed any of the conduct ascribed to him in the imputations, namely, frustrating or obstructing a police investigation, or protecting the subject of that investigation. Rather, he submitted, at most the words were capable of meaning that the plaintiff had so conducted himself as to give rise to a suspicion that he had indulged in that conduct.
It is, of course, well established that an allegation, that a person is the subject of a police investigation, is not reasonably capable of giving rise to an imputation that that person is guilty of the conduct, in respect of which he or she is being investigated. Those principles have been confirmed in the cases to which Dr Collins referred, and, in particular, by Lewis v Daily Telegraph Ltd[10] and Mirror Newspapers Ltd v Harrison.[11] Dr Collins submitted that in Mirror Newspapers v Harrison, that principle was held to apply, although the publication in question did not confine itself to reporting that the plaintiff was the subject of an investigation, but also reported the allegations about the plaintiff. Thus, he submitted, the reference, in the publication, to the allegations made by “Stella” and others, did not detract from the proposition that the publication meant no more than that the police had cause to investigate the allegations made about the plaintiff.
[10]Footnote above.
[11]Footnote above.
In considering those submissions, it is necessary to refer, briefly, to the facts of the three cases, to which Dr Collins referred. In Lewis v Daily Telegraph Ltd, the articles, about which the plaintiff made complaint, were brief in form. They went no further than to report that the City of London Fraud Squad was inquiring into the affairs of Rubber Improvement Limited, of which the plaintiff was the chairman. The newspaper article did not contain any other allegation relating to the plaintiff. In his statement of claim, the plaintiff pleaded one innuendo, namely, that the affairs of the plaintiff’s companies and their subsidiaries were “conducted fraudulently or dishonestly, or in such a way that the police suspected that their affairs were so conducted”. The House of Lords held that the words were incapable of bearing any imputation other than that of suspicion, and thus held that the trial judge erred in leaving to the jury an imputation involving the actual guilt of fraud by the plaintiff.
In Mirror Newspapers Ltd v Harrison, the relevant newspaper article contained a photograph of the plaintiff, and stated that four persons had been arrested in respect of an assault of a State Labor Member of Parliament, Mr Baldwin. The article stated that Baldwin had been viciously bashed. It reminded its readers that Baldwin had made earlier allegations of vote rigging and infiltration of organised crime into inner city Labor Party branches. The article stated that the arrests were said to have followed a month of intensive investigation by a special squad of detectives. The plaintiff pleaded that the article contained two imputations as to his guilt of the assault of Baldwin. The High Court held that the article was capable of giving rise to an imputation of suspicion of the plaintiff, but that it could not give rise to an imputation of guilt by him of the assault. The relevant principle was stated by Mason J[12] as follows:
“… there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted.”
[12]Page 300; emphasis added.
It is significant that Mason J expressed the principle in terms that a report, which does “no more” than state a person has been arrested and charged, cannot give rise to an imputation of guilt. Notwithstanding the submissions of Dr Collins, it is clear that the article in Harrison’s case went no further than to refer to the fact that he was charged with the assault of Baldwin. The article did refer to some of the background matters relating to Baldwin, but those allegations did not contain any imputation in respect of the plaintiff. Rather, the only allegation relating to the plaintiff, contained in the article, concerned his arrest for the assault of Baldwin.
By contrast, in this case, the program contained a number of allegations relating to the plaintiff, apart from reporting that the police Ethical Standards Division was investigating his conduct. As I have already stated, the program set out, in direct speech, an allegation by “Stella” that the plaintiff had given her the “run around”, when she sought to contact the detectives, who were investigating the conduct of Father Sapsford. The journalist (the first defendant) also alleged that “word spread around town among parishioners and the victims’ families to be careful if they were going to ring with complaints and he (the plaintiff) answered the phone”. If the segment of the program, concerning the plaintiff, had stopped there, it could not be argued that the words meant other than that the plaintiff had committed the conduct ascribed to him by both Stella and the first defendant. Acknowledging that that was so, Dr Collins nonetheless submitted that, because the program went on to report that the plaintiff was the subject of a police investigation, the program could not bear that meaning, but, rather, could only mean, at most, that the police had reason to investigate him.
In my view, the submission of Dr Collins is not correct. Indeed, as he acknowledged in the course of argument, taken to an extreme, it would have the effect that if a publication contained a number of highly defamatory allegations about a plaintiff, it could not impute the guilt of the plaintiff in respect of those allegations, if the publication went on to state that the plaintiff was the subject of police investigation in relation to them. Such a proposition only needs to be stated in order to identify the fallacy which lies within it. It is clear, to adopt the words of Mason J in Harrison’s case, that the program in this case did contain significantly “more” than a mere allegation that the plaintiff had been charged with, or was under investigation for, a particular offence or matter. In my view, a jury could reasonably conclude that an ordinary reasonable viewer of the program would have understood it to mean that the plaintiff had indulged in the conduct alleged by the first defendant and by “Stella”.
That conclusion is supported by the decision of the High Court in Favell & Anor v Queensland Newspapers Pty Ltd & Anor[13]. In that case, the article contained a number of allegations about the plaintiff, a barrister, whose multi-million dollar home had burnt down in Brisbane. In particular, the article pointed out that the home was the subject of a controversial development application on behalf of the plaintiff, that there were a number of suspicious circumstances attaching to the fire, and that the plaintiff had sought to conduct himself in such a manner as to deflect suspicion from himself. The article then reported that the police investigations into the fire were continuing. The High Court held that, in those circumstances, a jury could reasonably conclude that the article bore the imputations alleged by the plaintiffs, including an imputation that the plaintiffs had committed the crime of arson. In reaching that conclusion, Gleeson CJ, McHugh, Gummow and Heydon JJ, in their joint judgment, observed[14]:
“[12] A mere statement that a person is under investigation, or that a person has been charged, may not be enough to impute guilt. If, however, it is accompanied by an account of the suspicious circumstances that have aroused the interests of the authorities, and that points towards a likelihood of guilt, then the position may be otherwise. …
[14] … an article which is capable of conveying the meaning that there are reasonable grounds for suspicion of arson, and which also states and elaborates those grounds, taking as the introduction to an account of the fire the existence of the controversial development proposal, and developing the story by giving the neighbours’ point of view, could reasonably be found by a jury to convey that the suspicion is well-founded and that the suspects are guilty. An article which gives otherwise irrelevant prominence to the existence of smoke may be found to suggest the existence of fire.”
[13]Footnote above.
[14]At [12], [14].
As I have observed, the publication in this case went substantially further than simply reporting that the conduct of the plaintiff was the subject of investigation by the police Ethical Standards Department. In particular, it detailed allegations about the plaintiff by “Stella” and by the first defendant. Indeed, taking the program as a whole, the reference in it to the investigation is little more than a footnote to that part of the program relating to the allegations about the plaintiff. In those circumstances, I consider that a reasonable jury, properly instructed, could conclude that the words conveyed to the ordinary reasonable viewer of the program that the plaintiff had actually committed the conduct ascribed to him in the program, and in particular by Stella and by the first defendant.
I turn, then, to the submissions made by the defendants in relation to the form of the imputations sought to be pleaded by the plaintiff in the proposed amended pleading.
It is useful to commence by making some observations about the functions of pleading imputations in Victoria. During the last century, the practice developed by which plaintiffs pleaded “innuendos”, where the ordinary meaning of a publication was not entirely clear, or where the meaning relied on by the plaintiff constituted the defamatory “sting” which the plaintiff claimed could be derived from the publication. However, in the course of time, plaintiffs began regularly to plead “false” innuendos, notwithstanding that the defamatory meaning of the publication complained of, in its ordinary sense, might be quite obvious. Notwithstanding that practice, in the common law jurisdictions, and at least in Victoria, the critical question, for a jury, is whether the publication, in its ordinary and natural meaning, was defamatory of the plaintiff.[15] In determining that question, juries are ordinarily instructed that they may go beyond the meanings alleged by the plaintiff, but only so far as the meaning, relied on by the jury, is comprehended by, or is only a variant of, one of the meanings pleaded, and is no more serious than the meanings alleged by the plaintiff.[16] Thus, in Victoria, at least at common law, the purpose served by imputations is to place the defendant on notice as to the meanings, which will be alleged by the plaintiff at trial, and to delineate the issues which must be determined by the jury, in relation to the question as to whether the publication complained of is defamatory. However, the jury is not bound by the precise form of the imputation pleaded by the plaintiff. The essential question is whether the words complained of were defamatory of the plaintiff.
[15]Barclay v Cox [1968] VR 664.
[16]David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667, 673 [17], 675 [21]-[22] (Ormiston JA).
The position in Victoria is in contrast to that in New South Wales, where, under the Defamation Act 1974, the imputations pleaded by the plaintiff constituted the plaintiff’s cause of action. If the plaintiff failed to establish the imputations pleaded in the statement of claim, the cause of action failed, notwithstanding that the publication complained of might be defamatory of the plaintiff. As a result, a body of jurisprudence developed in New South Wales, which required significantly more precision, in the formulation of imputations, than in Victoria. The difference in approach in the two States, at least before the introduction of the Defamation Act 2005, can be attributed to the different purposes served by imputations in the two jurisdictions.
With those principles in mind, I turn to the submissions made by Dr Collins in relation to the first imputation sought to be relied upon by the plaintiff (meaning (a)). It was common ground between counsel that the verb “frustrate” bears the dictionary meanings suggested by Dr Collins, namely, meanings such as make ineffective, prevent a person from achieving a purpose, nullify, or to make (plans efforts etc) of no avail. On the other hand, according to the relevant dictionary definitions, the verb “obstruct” means to “block up, make hard or impossible to pass, prevent or retard the progress of, or impede”. In the present case, the plaintiff has pleaded both verbs, as alternatives, in the first two imputations. Accordingly, the defendants are justified in contending that the plaintiff intends the verb “frustrate” to bear its ordinary dictionary meaning. Indeed, Mr Wilson did not contend to the contrary. However, as I have already stated, he sought to put a gloss on the first imputation, by confining that imputation to mean that the plaintiff had rendered complaints by persons such as Stella ineffectual by blocking them, and thus, in that respect, had rendered the investigation ineffectual. That qualification was added to the imputation by Mr Wilson, because the program reported that, notwithstanding the efforts of the plaintiff, Father Sapsford was charged, and that his case was due to come on for trial when he died. In those circumstances, I accept Dr Collins’ submission that, as pleaded, the first imputation could not reasonably be found, by a jury, to arise from the publication complained of.
The qualification stated by Mr Wilson is, in my view, important. It gives the first imputation a significantly different connotation to that pleaded, and, in doing so, it makes the first imputation materially indistinguishable from the second imputation. Accordingly, I would deny the plaintiff leave to include the first meaning (meaning (a)) in the further amended statement of claim
On the other hand, I do not accept Dr Collins’ submissions concerning the second imputation contained in the proposed pleading (meaning (b)). Dr Collins complains that the word “obstruct” is impermissibly vague and ambiguous. However, as Mr Wilson correctly points out, the presenter, Mr O’Brien, used the word “obstruction” in introducing the program, and in describing the conduct later ascribed to the plaintiff in the program. I do not consider that the verb “obstruct” is too vague or imprecise. In my view, the meaning of the second imputation is abundantly clear, in the context of the program from which it is derived.
Dr Collins did not raise any objection to the fifth proposed imputation (meaning (e)) other than to object to the use, in it, of the word “obstructing”. It follows, from my conclusions in respect of the second proposed imputation (meaning (b)), that I do not accept the defendants’ objection to the fifth imputation.
Similarly, I do not accept the criticisms made by Dr Collins of the third proposed imputation (meaning (c)). In my view, it is open to the jury to conclude that an ordinary reasonable viewer would have understood the publication to convey that the plaintiff, by obstructing complaints made about the priest to the police, had thereby used his position as a police officer to protect the priest during the criminal investigation which was then proceeding into his conduct. The publication makes it plain that it is alleged that the plaintiff was motivated by his friendship with Father Sapsford. In the context of the program, the imputation clearly does not mean that the plaintiff, as a dutiful policeman, was seeking to protect a suspect from harassment. Rather, the structure of the imputation, and its context in the program, make its meaning clear. The meaning is sufficiently well defined for the defendants to understand the case being made against them, and to define the case which will be made by the plaintiff to the jury.
Dr Collins raised two objections to the fourth imputation (meaning (d)). The first objection, which concerns a matter of form, may be readily disposed of. In my view, the phrase “was able” is not ambiguous in the context of both the imputation, and the publication. The imputation clearly means that the plaintiff’s obstruction of the investigation of the priest enabled the priest to continue preying on victims.
A more difficult issue arises from Dr Collins’ second submission, namely, the question whether a jury could reasonably find that the program, in its ordinary and natural meaning, conveyed the imputation, which the plaintiff seeks to plead.
Plainly, the article does not expressly allege that the plaintiff, by obstructing the police investigation, enabled the priest to continue to prey on new victims. Mr Wilson submitted, however, that that imputation arises by way of inference from the program. Mr Wilson started with the allegation contained in the program that after the priest’s activities came to light in 1996, the church hierarchy did not take appropriate action, and the priest was permitted to be able to work in the Australian Anglican Church. Father Walliker agreed with the proposition, put to him by the first defendant, that that meant that the priest was still “going to be a danger to other boys in various parishes”. Mr Wilson acknowledged that the program made it clear that the police investigation did not commence until 2002, and that that is when the plaintiff is alleged to have obstructed the investigation of the priest. However, Mr Wilson submitted that the program inferred that the priest had continued molesting victims until then, and that therefore the plaintiff’s obstruction of the police investigation enabled him to continue to do so.
In considering that submission, it is important to bear in mind that the issue, which the jury must determine, is what meanings were understood, by the ordinary reasonable viewer of the program, to be conveyed by the program. That question is different to the question of what inferences or conclusions the ordinary reasonable viewer may draw, as a result of having watched the program. In Mirror Newspapers Ltd v Harrison[17], Mason J identified that distinction in the following terms:
“A distinction needs to be drawn between the reader’s understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader.”[18]
[17](1982) 149 CLR 293, 201.
[18]See also Lewis v Daily Telegraph Ltd (above), 274 (Lord Hodson), 286 (Lord Devlin).
In my view, the submission made by Mr Wilson involves the ordinary reasonable listener drawing an inference, from what the listener would understand the program was conveying. I do not consider that a jury could reasonably conclude that the program itself was conveying, to the ordinary reasonable listener, that because of the plaintiff’s obstruction of the police investigation, the priest was able to continue preying on new victims.
At the commencement of the program, the presenter (Mr O’Brien) referred to the theme of denial by the Anglican Church protecting the perpetrator, which enabled him to continue to “prey on new victims”. Mr O’Brien stated that the program raised questions about the obstruction of a police investigation, which was being probed by the Ethical Standards Division of the Victorian Police. In doing so, he foreshadowed the allegations later made in the program in relation to the plaintiff. The program then proceeded, in some detail, to set out the history of the activities of the priest in Seymour, and how one of his victims named the priest to the church hierarchy in 1996. The program described the response of the church. In that part of the program, Father Walliker is shown agreeing with the proposition, put to him by the first defendant, that the priest was still “going to be a danger to other boys in various parishes”.
Pausing there, at that point clearly the program was alleging that the actions taken by the church, in response to the complaint about the priest, enabled the priest to continue preying on victims. That proposition is made even more plain by the segment, in which “Stella” stated that if the community had known in 1996 of the activities of the priest, they could have gone to the police “and our own children would have been spared”. The program thus made quite explicit the allegation that the church cover-up of the priest enabled the priest to molest other victims.
The program did not inform the viewer as to the period of delay between the police becoming involved, and the arrest of the priest. Nor did the program indicate whether the attempted obstruction of police investigation, by the plaintiff, was at all effective in retarding it. In that part of the program, it was not alleged, at all, that the plaintiff’s activities enabled the priest to continue preying on victims. Indeed, the listener would well understand that the priest had left the Seymour district at least six years previously. Thus, in stark contrast to the explicit allegation made about the church, there was no allegation, by the program, that the plaintiff’s obstruction of the police investigation played any causative role in the priest preying on victims. Nor was there any allegation that the plaintiff successfully delayed or retarded the investigation.
Thus analysed, in my view a jury could not reasonably conclude that the words of the program are capable of conveying to the ordinary reasonable viewer the imputation sought to be pleaded in paragraph 6(d) of the further amended statement of claim. Such a meaning could only be derived by a process of inference by the viewer from what was said in the program. However, it could not be reasonably concluded that that meaning was conveyed, or understood to be conveyed, by the program.
I have taken the opportunity to view the program. Having done so, I am fortified in the conclusion which I have just expressed, namely, that a reasonable jury could not conclude that the ordinary reasonable viewer of the program would understand the program to bear the meaning sought to be pleaded in the fourth imputation. Accordingly, I do not give leave to the plaintiff to include that imputation in the proposed further amended statement of claim.
Summary of conclusions
For the foregoing reasons, the plaintiff should be permitted to file and serve a further amended statement of claim containing the amended imputations in paragraph 6(b), (c) and (e) of the proposed further amended statement of claim. I do not give leave to the plaintiff to include subparagraph (a) or subparagraph (d), of the proposed pleading, in the amended statement of claim.
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