Mirror Newspapers Ltd v Harrison

[1982] HCA 50

HIGH COURT OF AUSTRALIA

Gibbs C.J., Mason, Wilson and Brennan JJ. The Hon. Mr. Justice Aickin died before judgment was delivered in this case

MIRROR NEWSPAPERS LTD. v. HARRISON

(1982) 149 CLR 293

14 September 1982

Defamation

Defamation—Imputation—Newspaper report—Statement that after police investigation person arrested and expected to be charged with certain offences—Whether capable of imputing guilt of offences charged.

Decisions

September 14.
The following written judgments were delivered: -
GIBBS C.J. I have had the advantage of reading the reasons for judgment prepared by my brother Mason, and, subject to the reservation which I am about to express, I am in agreement with them. (at p295)

2. It is not necessary, for the purpose of the present case, to decide whether a statement that a person has been arrested and charged with an offence is capable of bearing the imputation that the police officer who made the arrest and laid the charge had reasonable cause to suspect the person charged of having committed the offence. No doubt the statement would convey to an ordinary reasonable man that the police suspected that the person arrested had committed the offence. However, although an ordinary man might think that the police officer laying the charge ought to have had reasonable cause for his suspicion, it does not necessarily follow that he would read into the words the imputation that the police officer did in truth have such reasonable cause; for example, a police officer might, in the ordinary course of events, have proceeded on a mistaken view of the facts. I am not at present satisfied that a statement of this kind would carry the further imputation that the suspicion of the informant that the person charged had committed the offence was based on reasonable grounds and I would leave that question open until it falls for decision. (at p295)

3. I would allow the appeal and restore the order of Hunt J. (at p295)

MASON J. One of the issues here is of some importance in the law of defamation: what imputations are capable of being raised by a newspaper report that, after intensive police investigation, a man has been arrested and is expected to be charged with offences of conspiracy and fraud? (at p295)

2. The respondent sued the appellant, the publisher of an afternoon newspaper circulating in New South Wales, for damages for defamation arising out of a report relating to the arrest of the respondent. The account which follows of the respondent's case as pleaded is taken from the judgment of Hunt J., who was called upon to decide a preliminary question of law, namely, whether the matter published was capable of bearing two of the imputations complained of. (at p295)

3. The report was published on the first and second pages of the "Daily Mirror" newspaper on 14 August 1980. "On the front page, in headlines two inches high, the article says:
'BALDWIN: 4 ARRESTS' and, in smaller type: '3 MEN, WOMAN HELD IN RAIDS'. The headline on the second page is: 'BALDWIN - 4 ARRESTED' and, in smaller type: 'Police raid city homes.' On each of the two pages there is a photograph of the plaintiff (with part of his face blocked out) as one of the three men arrested. The article states that the arrests were made 'in dawn raids today over the bashing of State Labour M. P. Peter Baldwin'. Mr. Baldwin is said to have been 'viciously bashed by at least two men' and to have suffered 'shocking facial injuries and a fractured skull and requiring more than 50 stitches in his wounds' necessitating 'almost two weeks in hospital'. The article reminds its readers that Mr. Baldwin had earlier made allegations of vote-rigging and of the infiltration of organized crime into inner-City Labor Party branches, and implies that the attack upon him was in reprisal for those allegations. The arrests are said to have followed a month of 'intensive investigation by a special squad of detectives' who had 'worked around the clock to fulfil a directive from the Deputy Premier, Mr. Ferguson, that the culprits be found'. The article says that a fourth man may be arrested and that all five are expected to appear in Court later that day, to be charged with 'conspiracy and fraud'. The article states that tight security will surround the Court when they so appear. The two imputations at issue are in the following terms: '(i) That the plaintiff was directly or indirectly involved in the vicious bashing of Mr. Peter Baldwin on the night of 17th July 1980 whereby Mr. Baldwin suffered shocking facial injuries and a fractured skull, required treatment consisting of more than fifty stitches in his wounds and spent almost two weeks in hospital; (ii) That the plaintiff was guilty of a criminal offence in connection with the said bashing.'" (at p296)

4. His Honour, applying a decision of the Court Appeal in Rochfort v. John Fairfax &Sons Ltd. (1972) 1 NSWLR 16 , held that the matter complained of was not capable of bearing either of the two imputations. He therefore ruled that they could not go to the jury, but granted leave to the respondent to add such further imputations as he might be advised, not being imputations of guilt. He made other orders which are not material for present purposes. (at p296)

5. The Court of Appeal, feeling itself free to depart from its previous decision in Rochfort, took a different view. It allowed the appeal, concluding that the material complained of was capable of bearing the two imputations in question. Glass J.A., with whose judgment Reynolds and Samuels JJ.A. agreed, thought that Rochfort wrongly decided that a statement that a person has been charged can never support an imputation of guilt and that it should not be followed. He considered that the publication in the present case went far beyond the mere creation of well founded suspicion and that a reasonable jury might conclude that ordinary readers of the publication would infer the respondent's guilt and involvement in the events described. (at p297)

6. The respondent's case is that a newspaper report stating that the plaintiff has been arrested and charged, or will be charged, with a criminal offence, is capable of bearing the imputation that the plaintiff is guilty of that offence. The submission is that in every case the publication complained of must go to the jury so that it may find whether the matter published does in fact bear that imputation. According to the respondent, the police officer who lays the charge is required by law to have an honest belief in the guilt of the person charged. It then follows that the publication of a report of the fact of arrest and charge imputes that in the opinion of the police concerned the plaintiff is guilty of the crime charged. However, the report cannot be distinguished from a statement that X believes that the plaintiff is guilty of that crime, except in so far as the reader will take more seriously the suggestion that a person in authority, presumably having the responsibility for investigating the matter, has, after investigation, concluded that the plaintiff should be formally charged with the offence. (at p297)

7. Roberts v. Camden (1807) 9 East 93 (103 ER 508) is said to support the respondent. There the defendant said of the plaintiff, an attorney, "he was under a charge of a prosecution for perjury; and that G.W. (an attorney of that name) had the Attorney-General's directions to prosecute the plaintiff for perjury". No justification was pleaded and the jury found for the plaintiff. A motion in arrest of judgment was dismissed. Lord Ellenborough C.J. (1807) 9 East, at pp 95-96 (103 ER, at pp 509-510) said the question was whether the words "are calculated to convey to the mind of an ordinary hearer an imputation upon the plaintiff of the crime of perjury". The answer to that question depended on whether the plaintiff was ordered to be prosecuted "for a perjury which he had committed; or, which he had not committed; or, which he was supposed only to have committed". The words were defamatory if used in the first sense, but not if used in the second sense. And if used in the last sense the jury might have acquitted him, the defendant's meaning being a fact for the jury to decide. (at p297)

8. But the question remains whether a mere newspaper report of the fact of arrest and charge is capable of bearing an imputation of guilt of the offence charged. Roberts does not decide this question. (at p298)

9. In Lewis v. Daily Telegraph Ltd. (1963) 1 QB 340; affd (1964) AC 234 Holroyd Pearce L.J. said (1963) 1 QB, at p 374 "The announcement that A is charged with murder cannot per se mean that he is guilty of murder". And in Lang v. Australian Consolidated Press Ltd. (1970) 2 NSWR 408 the New South Wales Court of Appeal (Herron C.J., Manning J.A. and I) held that a newspaper report stating that the plaintiff had been convicted of a criminal offence, that the conviction had been set aside and a new trial ordered by the Court of Criminal Appeal was not capable of bearing the imputation that the plaintiff was probably guilty of the offence charged. And in Rochfort (1972) 1 NSWLR 16 the same Court (Sugerman A.C.J., Holmes J.A. and I) held that where the publication complained of is a statement, not that the plaintiff has committed a crime, but that he has been charged with a crime, the only question of truth or falsity which can arise for any purpose is whether it is true or false that he has been charged with that crime. (at p298)

10. Earlier, in Webbie v. Nationwide News Pty. Ltd. (1968) 12 FLR 271, at p 281 , Fox J. in the Supreme Court of the Australian Capital Territory said this of a newspaper report that the plaintiff had been charged before a court with the offence of telephone tapping:
"Moreover, I do not believe that the ordinary reasonable man would understand the report as saying that the plaintiff was in fact guilty of the offence or as saying that someone else had said that the plaintiff was guilty. (See per Holroyd Pearce L.J. in Lewis v. Daily Telegraph Ltd. (1963) 1 QB, at p 374 ). What it does clearly say is that he is accused of the offence, that he faces an allegation that he committed the offence and that he has been summoned before the court to answer the charge. I believe that the community in general has a broad understanding of the more commonplace processes of criminal proceedings and that it would be recognized that although the plaintiff was charged, he may or may not have committed the offence. I am therefore of the view that the imputation was not that the plaintiff had committed the offence of tapping, or any offence. On the other hand, the report at least would be understood to mean that some evidence was available to suggest that the plaintiff had tapped a telephone and probably most people would have the impression that there was a belief on behalf of some people in authority that the plaintiff had committed the offence. There would undoubtedly be a belief that in some way and to some extent the plaintiff was associated with the unsavoury and highly reprehensible activity of telephone-tapping." (at p299)

11. A similar approach to the question was adopted by Colman J. in Hassen v. Post Newspapers Pty. Ltd. (1965) III SALR 562 . There it was held that just as it is defamatory to say of a plaintiff that he has been convicted or is guilty of a crime, so, likewise, it is defamatory to say of him that he has been, or is about to be, charged with the commission of a crime. It is inevitable that the ordinary reasonable reader of a newspaper report that the plaintiff has been arrested and charged with a crime would conclude that the charges "are not ordinarily laid without grounds, and that many of the people charged with crimes are guilty" (1965) III SALR, at p 564 . The reader, though withholding final judgment, would attach importance to the fact that the police have concluded that there are grounds to support the charge and would accordingly view the plaintiff with suspicion as a person who may be found guilty of the crime charged. (at p299)

12. In the present case it seems that the attention of the Court of Appeal was not drawn to Webbie (1968) 12 FLR 271 , Hassen or to the remarks of Holroyd Pearce L.J. in Lewis. In the result the Court of Appeal, seeking to obtain guidance from the speeches in the House of Lords in Lewis, and thinking that Sugerman A.C.J. in Rochfort (1972) 1 NSWLR 16 had misapplied the remarks of Lord Reid, Lord Hodson and Lord Devlin, overruled Rochfort. Though disavowing any intention to impugn Lang (1970) 2 NSWR 408 , Glass J.A. said that "in so far as Rochfort decided that a statement that a person has been charged can never support an imputation of guilt it was wrongly decided and should not be followed". (at p299)

13. Lewis decided that the defendant's newspaper report that police were conducting an inquiry into the plaintiff's affairs in connexion with fraud was not capable of bearing the imputation that the plaintiff was guilty of fraud. As an element in the reasoning leading to that conclusion some of the Law Lords, notably Lord Reid (1964) AC, at p 260 , Lord Hodson (1964) AC, at p 274 and Lord Devlin (1964) AC, at p 286 considered that suspicion could be inferred from the fact of the inquiry being held, but that guilt involved the taking of a further step which was unreasonable. It was, they thought, "to draw an inference from an inference and to take two substantial steps at the same time" (1964) AC, at p 274 . In Rochfort, Sugerman A.C.J. said (1972) 1 NSWLR, at pp 21-22 :
"Although Lewis' case is concerned with a statement that the fraud squad was inquiring into the affairs of the plaintiff and the present case with a statement that the plaintiff had been charged before a magistrate, there is in my opinion no difference in principle between the two cases. The ordinary reasonable man would not infer guilt merely because a charge had been laid. The same process of inference upon inference would be involved as is described by Lord Hodson and Lord Devlin, the first inference being a different one from that which they spoke of, but without making a difference in principle. The judge must not allow to go to the jury a meaning that the plaintiff was guilty. The case differs essentially from the 'rumour' cases. See per Lord Reid and Lord Jenkins (1964) AC, at pp 257-260 ; per Lord Hodson (1964) AC, at pp 274-275 ; and per Lord Devlin (1964) AC, at pp 283-286 ." (at p300)

14. Glass J.A. observed that Sugerman A.C.J., in concluding that Rochfort was also a case of inference on inference, "accepts that the first inference is different from Lewis but fails to identify what it is". However, it is obvious that the first inference which Sugerman A.C.J. had in mind was that the police believed the plaintiff to be guilty or that they had ground for charging him with the offence. His Honour was correct in seeing guilt as an imputation sought to be reached in that case by a process of inference from inference in the sense in which that expression was used in Lewis. For present purposes nothing is to be gained by discussing the difference between inference and implication, a matter to which Glass J.A. made a glancing reference. If the process in Lewis was inference from inference, not inference from implication, then it was the same in Rochfort. (at p300)

15. Sugerman A.C.J. was correct also in stating that a case of this kind is to be distinguished from the "rumour" cases. The essence of those cases is that the defendant gives his imprimatur to the rumour; by passing it on he gives it credence, implying that it is well founded or that it may be so. (at p300)

16. As we have seen, 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. (at p301)

17. In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. 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. (at p301)

18. Although Sugerman A.C.J. in Rochfort (1972) 1 NSWLR 16 stated that a report of the kind discussed is incapable of bearing an imputation other than what it actually states, namely that the plaintiff has been arrested and charged with an offence, I think that it is capable of bearing the imputation that the police suspected him of having committed the offence and that they had reasonable cause for doing so. That in my opinion is what the ordinary reasonable reader would understand to be conveyed by such a report. His understanding would, as it happens, reflect the conditions according to which in New South Wales a constable is empowered to arrest without a warrant. By s. 352(2) of the Crimes Act 1900 (N.S.W.) a constable is entitled to apprehend without warrant "any person whom he, with reasonable cause, suspects of having committed" an offence. The provisions of the Justices Act 1902 (N.S.W.) regulating the laying of information for indictable offences, which must be on oath, and the laying of informations or complaints for summary offences, which need not be on oath, as a preliminary to the issue of a warrant or summons, do not speak of reasonable cause. But there can be no doubt there must be reasonable cause for the informant's belief that the plaintiff has committed the offence. When the plaintiff is arrested pursuant to a warrant is a s. 23 or s. 59 of the Justices Act, the issue of the warrant is a consequence of the exercise of a judicial discretion by the justice or magistrate issuing the warrant (Ex parte Qantas Airways Ltd.; Re Horsington (1969) 71 SR (NSW) 291, at pp 301, 305-306 ; Halsbury's Laws of England, 4th ed. (1976) vol. 11, par. 95). But the ordinary reasonable reader, unaware of this refinement, will still conclude that it is the informant who suspects, with reasonable cause, that the plaintiff has committed the offence. (at p302)

19. The consequence is that the publisher, if he wishes to justify, will plead that the imputation is a matter of substantial truth and that it relates to a matter of public interest (see s. 15 of the Defamation Act 1974 (N.S.W.)). To establish this defence it will be sufficient if the defendant proves arrest, that a charge has been laid and that the plaintiff was suspected by the police, with reasonable cause, of having committed the offence. (at p302)

20. This is by the way for here the imputation in question is that the plaintiff was guilty or that he was involved in the attack on Mr. Baldwin. The suggestion that a report of the kind discussed could bear such an imputation reflects a tendency in recent times, notably in New South Wales, to make out that comparatively clear and simple statements are capable of yielding imputations not suggested by a reasonable reading of the language implied. It is necessary to repeat the remarks of Holroyd Pearce L.J. in Lewis which preceded the sentence which I have already quoted from his judgment (1963) 1 QB, at p 374 :
"When persons publish words that are imprecise, ambiguous, loose, fanciful or unusual, there is room for a wide variation of reasonable opinion on what the words mean or connote. The publisher can hardly complain in such a case if he is reasonably understood as having said something that he did not mean. But when words with a precise and well-known meaning are used without the addition of any expressions which could impart some other flavour to them, it is not fair to twist them from their normal sense." (at p302)

21. If the view put forward by the respondent were to prevail then, in order to justify publication of the report, a newspaper would have to establish the truth of the imputation, namely that the plaintiff was guilty and that the imputation related to a matter of public interest. It is, of course, fundamental that the defendant must establish a defence to the defamatory imputation which the words bear. This is made plain by s. 15. It would be for the defendant to show that the imputation relates to a matter of public interest, notwithstanding that it involves publication of the guilt of the plaintiff in advance of his trial, indeed in advance even of committal proceedings. Unquestionably it will be in the public interest to publish the mere fact that someone has been arrested and charged for an offence known to have been committed which has been the subject of publicity and of public concern. But does contemporaneous publication of the imputation that the plaintiff is guilty relate to a matter of public interest? (at p303)

22. It was not suggested that a report of the laying of a charge could be made the subject of a defence under s. 24. It provides for the defence of a fair protected report in relation to, inter alia, proceedings in public of a court (see Sch. 2, par. 2(5)). Nor was it suggested that such a report could be made the subject of a defence under s. 25 for the publication of an official public document (see Sch. 2, par. 3). (at p303)

23. Glass J.A. was right in saying that any publication which goes on to say or suggest that the charge was well founded, i.e., that the plaintiff was guilty, carries the further imputation of guilt. The question which remains is whether the melodramatic account published in the appellant's newspaper is capable of bearing the imputation that the respondent was guilty. The report focuses attention on the violence of the attack on Mr. Baldwin, the intensive nature of the investigation and the circumstance that "a special squad of detectives" "worked around the clock to fulfil a directive from the Deputy Premier, Mr. Ferguson, that the culprits be found". No doubt this suggests that the matter was regarded as important by the Government and by the police. But I fail to understand how a reasonable reader would read it as meaning that the plaintiff was guilty of the offence or that he was involved in the attack on Mr. Baldwin. (at p303)

24. In the result I would allow the appeal and restore the order made by Hunt J. (at p303)

WILSON J. I would allow the appeal and restore the decision of Hunt J., for the reasons given by Mason J. (at p303)

BRENNAN J. For the reasons which Mason J. has given, I agree that the article pleaded is incapable of supporting either of the imputations which are here in issue. Though I would join the Chief Justice in reserving for future consideration the question whether a report stating merely that a person has been arrested and charged by police with a particular offence is capable of bearing an imputation to the ordinary reasonable reader that the police officer who made the arrest had reasonable cause for suspecting that the person arrested had committed that offence, the article complained of in this case is not so limited in its text. As Lord Devlin observed in Lewis v. Daily Telegraph Ltd. (1964) AC 234, at p 285 :
". . . it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt: but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded." I too would allow the appeal and restore the order of Hunt J. (at p304)

Orders

Appeal allowed with costs.

Order of the Supreme Court of New South Wales (Court of Appeal) set aside and in lieu thereof order that the appeal to that court be dismissed with costs.