Ouda v Hunter
[2024] VSCA 323
•19 December 2024
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2023 0080
OLA HASSAN MOHAMED OUDA & ORS (ACCORDING TO THE ATTACHED SCHEDULE) Applicants v TODD HUNTER & ANOR (ACCORDING TO THE ATTACHED SCHEDULE) Respondents ---
JUDGES: McLEISH, NIALL and KENNY JJA WHERE HELD: Melbourne DATE OF HEARING: 20 November 2024 DATE OF JUDGMENT: 19 December 2024 MEDIUM NEUTRAL CITATION: [2024] VSCA 323 JUDGMENT APPEALED FROM: Ouda v Hunter (Supreme Court of Victoria, John Dixon J, 18 July 2023) ---
DEFAMATION – Whether jury decision that alleged defamatory imputations were not conveyed was unreasonable – Answers open to jury acting reasonably and properly instructed – Leave to appeal refused.
Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632; Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; Chase v News Group NewspapersLtd [2002] EWCA Civ 1772; John Fairfax Publications Pty Ltd v Obeid (2005) 64 NSWLR 485; John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657; Lewis v Daily Telegraph Ltd [1964] AC 234; Mirror Newspapers v Harrison (1982) 149 CLR 293; Ross v Gruma Oceania Pty Ltd [2022] VSCA 87; Trkulja v Google LLC (2018) 263 CLR 149, considered.
---
Counsel
Applicants: Mr DP Gilbertson KC with Mr MJ Hoyne Respondents: Ms L De Ferrari SC with Mr MJ Lewis SC and Ms CJ Dawes Solicitors
Applicants: Rose Legal Barristers and Solicitors Pty Ltd Respondents: Johnson Winter Slattery MCLEISH JA
NIALL JA
KENNY JA:Introduction
1On 28 November 2020, the first respondent (‘Commander Hunter’), who was a commander of the Australian Federal Police (‘AFP’), held a press conference at which he announced that the first applicant (‘Ms Ouda’) and the second applicant (‘Mr Shehada’) had been charged with various fraud-related offences. The offences related to their conduct of a family day care business and a restaurant business (operated by the fourth applicant, ‘Maroush’). The family day care business was established by Ms Ouda and operated with the assistance of Mr Shehada, as well as certain companies through which he operated, including the third applicant (‘Prime National Care’).
2On 23 November 2021, the applicants commenced a proceeding in the Trial Division of this Court alleging that the words spoken by Commander Hunter at the press conference defamed them. The applicants[1] alleged that Commander Hunter’s words conveyed the following imputations, which became the subject of questions to the jury:[2]
(a)Ms Ouda and Mr Shehada misappropriated millions of dollars from the Commonwealth government via a dishonest and fraudulent scheme involving family day care (Questions 1.1 and 2.1);
(b)Ms Ouda and Mr Shehada are the syndicate leaders of a multimillion dollar fraud network (Questions 1.2 and 2.2);
(c)Ms Ouda and Mr Shehada defrauded the Commonwealth by registering ‘phantom’ children who did not attend childcare to falsely claim childcare benefits and by claiming COVID stimulus and Jobkeeper payments to which they were not entitled (Questions 1.3 and 2.3);
(d)Ms Ouda and Mr Shehada stole from the pockets of the Australian taxpayer which prevented care being provided to some of the most vulnerable persons in the community (Questions 1.4 and 2.4);
(e)Ms Ouda and Mr Shehada defrauded Australian taxpayers of millions of dollars to fund a grand and luxurious lifestyle involving extensive real estate portfolios, overseas travel, a Maserati and BMW motor vehicles and other luxury items (Questions 1.5 and 2.5);
(f)Ms Ouda, Mr Shehada and Maroush defrauded the Commonwealth by claiming COVID stimulus and Jobkeeper payments to which they were not entitled for a restaurant that they operated (Questions 1.6, 2.6 and 3.1); and
(g)Ms Ouda, Mr Shehada and Maroush are dishonest and unable to be trusted (Questions 1.7, 2.7 and 3.2).
[1]During the trial, the parties agreed that Prime National Care was not identified in the press conference. As a result, Prime National Care remains a party to the application for leave to appeal only in respect of the costs orders that have been made against it. For convenience, these reasons refer to Ms Ouda, Mr Shehada and Maroush as ‘the applicants’.
[2]The imputations are identified by reference to the questions asked of the jury.
3The jury were required to answer a set of questions regarding whether the applicants had established that the words spoken by Commander Hunter conveyed the alleged meanings, or meanings not substantially different, to the ordinary reasonable person. On 18 July 2023, the jury answered each question in the negative, finding that the words spoken by Commander Hunter at the press conference did not convey the alleged imputations. In accordance with the jury’s answers, the trial judge entered judgment for the respondents.
4The applicants now seek leave to appeal the order for judgment on the ground that the jury’s answers to each of the questions, or alternatively one or more of those answers, were answers that no reasonable jury could have given and that the jury should have found that the answers to each of the questions, or alternatively one or more of them, was ‘yes’.
5For the reasons that follow, it was open to the jury, acting reasonably and properly instructed, to find that Commander Hunter’s words did not convey the alleged defamatory imputations. Accordingly, leave to appeal should be refused.
Factual background
6In December 2019, the AFP commenced an investigation into the activities of, among others, Ms Ouda and Mr Shehada in respect of their conduct of the family day care business. On 25 November 2020, the AFP executed search warrants at various premises, including the home of Ms Ouda and Mr Shehada. They were arrested at the time, charged with various fraud-related offences and interviewed by police.
7On 28 November 2020, Commander Hunter held a press conference, during which he gave a pre-prepared speech and then took questions from journalists. The words that he spoke were audio-recorded. A transcript of the audio recording is annexed to these reasons.
8On 2 September 2021, the charges against Ms Ouda and Mr Shehada were discontinued.
9As already noted, the applicants commenced the proceeding on 23 November 2021 alleging that they had been defamed by the words spoken by Commander Hunter at the press conference. The Commonwealth, the second respondent, was the second defendant in the proceeding because it was alleged to be liable for any tort committed by Commander Hunter by reason of s 64B of the Australian Federal Police Act 1979 (Cth).
10By their defence in the trial, the respondents admitted that Commander Hunter had spoken the words at the press conference and that the Commonwealth would be liable for those words if they were found to be defamatory in the manner alleged. However, they denied that the words spoken carried the imputations alleged by the applicants. They also pleaded positive defences of qualified privilege under the common law and s 30 of the Defamation Act 2005 and honest opinion pursuant to s 31 of that Act.
11In reply, the applicants further alleged that the words spoken by Commander Hunter were actuated by malice.
12Prior to the trial, the parties agreed that the only matters to be determined by the jury were whether the pleaded imputations were conveyed and the issue of actual malice, while the other matters would be determined by the judge.
13Prior to the trial, on 3 July 2023, the respondents sought an order that, immediately following opening statements and an audio-recording of the press conference being played to the jury, the jury be directed to determine whether in fact the words spoken at the press conference carried the meanings alleged by the applicants. The trial judge declined to give that direction.
14At the conclusion of the evidence for the first stage of the trial, a series of questions relating to meaning, which accorded with the imputations pleaded, and malice was posed for the jury.
15During the judge’s charge to the jury, his Honour said:
You have the audio transcript of the press conference, Exhibit 1, and you have a transcript of it - a written transcript of it - Exhibit 2.
If you think that the press conference was an occasion of transient communication like the example I gave, you will treat the press conference words in the same way. You might listen to the audio in Exhibit 1 once through and decide without even looking at the transcript what meanings were conveyed by the words used. On the other hand, the journalists who the AFP was inviting to communicate its message to the Australian public had access to a lot more and could do a lot more than just listen once to the audio.
16The jury retired at 11:28 am on 18 July 2023. After asking a question of the judge, the jury returned to give their answers at 3:48 pm, answering ‘no’ to each of the questions on meaning. As a result, the jury were not required to answer the question relating to malice. The trial judge therefore entered judgment for the respondents.
Applicants’ submissions
17The applicants contend that a party seeking to overturn a jury’s verdict is required to show no more than that the jury’s verdict was one that no reasonable jury could have given. The applicants say that it overstates the position to say, as McHugh J held in John Fairfax Publications Pty Ltd v Rivkin, that an appellate court may only set aside a jury’s verdict when the ‘words of the publication are not capable of any but a defamatory meaning’ and the defamatory meaning is ‘clear and beyond argument’.[3] They contend that McHugh J’s statement is inconsistent with the formulation of the test by the other judges of the High Court and with how the test has been stated by this Court in subsequent cases.[4]
[3](2003) 77 ALJR 1657, 1660–1 [20]; [2003] HCA 50 (‘Rivkin’).
[4]Referring to Ross v Gruma Oceania Pty Ltd [2022] VSCA 87, [13] (Beach, Niall and Kennedy JJA) (‘Ross’) and Pasqualotto v Pasqualotto [2013] VSCA 21, [21] (Osborn JA, Tate JA agreeing at [1]) (‘Pasqualotto’).
18The applicants submit that the jury’s answers to the questions, or alternatively one or more of them, were ones that no reasonable jury could have given. They contend that, on a proper review of the words spoken, a jury would take into account that two of the sets of questions contained words that closely followed the words used by Commander Hunter (Questions 1.4 and 1.5 and corresponding Questions 2.4 and 2.5). Further, a reasonable jury would take into account the fact that the words spoken included the intrusion of irrelevant material, namely references to ‘phantom children’, ‘lavish lifestyle’, ‘fantastic lifestyle’, ‘multiple properties’ and ‘multiple vehicles, luxury vehicles including a Maserati and BMWs’, ‘nice clothes’ and things that ‘those struggling in the community don’t have’, that ‘this case shows that people trying to manipulate the system will be found out’, and that ‘hopefully [the AFP’s] operational activity, [its] overt activity, does catch offenders by surprise’.
19While relying on the words spoken by Commander Hunter as a whole, the applicants contend that the following statements were particularly apt to convey the alleged imputations:
a. [Time Stamp 0.16] – thanking his fellow police officers for their ‘good work … to protect Australia’s community,’ which can only have been apposite if a criminal offence had actually been committed;
b. [Time Stamps 0.34 and 6.18] – the police had ‘dismantled an alleged criminal network’ and that they ‘dismantled an alleged fraud network seeking to exploit benefits and services that exist to help support our community’. It is not possible to dismantle something that does not exist;
c. [Time Stamp 1.05] – ‘this co-ordinated Commonwealth fraud network’;
d. [Time Stamp 2.27] – thanking the community for their reports – which are only worthy of thanks if they were truthful and accurate;
e. [Time Stamp 2.46] – referring to phantom children;
f. [Time Stamp 2.46] – stating that the investigation ‘uncovered’ a second allegation of fraud against the COVID-19 stimulus package[;]
g. [Time Stamp 4.02] – referring to the ‘true alleged fraud value’ and stating that ‘it is estimated that the fraud will progress into the millions’;
h. [Time Stamp 6.34] – ‘we allege [the applicants] have funded grand and luxurious lifestyles on money defrauded from the Australian taxpayers’;
i. [Time Stamps 6.46 and 6.57] – ‘This operation should serve as a clear warning fraud of this nature is stealing from the pockets of the Australia taxpayer’ and that the AFP ‘will not tolerate it … in our protection of the Australian community’;
j. [Time Stamp 7.11] – the money paid to the applicants ‘is money that belongs in the hands or our community to help care for some of our most vulnerable persons’;
k. [Time Stamp 7.22] – ‘out of greed, it [ie the money paid to the applicants] has instead been used to foot the bill for extensive real estate portfolios, overseas travel and other luxury items’;
l. [Time Stamp 8.45] – referring to the applicants as ‘these offenders’;
m. [Time Stamp 9.26] – referring to ‘lavish lifestyles’, ‘what a fantastic lifestyle they appear to lead’, ‘multiple properties, multiple vehicles, luxury vehicles including a Maserati and BMWs’, ‘nice clothes and things that … those struggling in the community don’t have’;
n. [Time Stamp 10.03] – the police ‘would seek to seize and restrain as much as we can’ once they had ‘worked through the total fraud amount’;
o. [Time Stamp 10.54] – the police would ‘go back as far as is viable and feasible for us to establish the fraud amounts’;
p.[Time Stamp 11.27] – referring to the ‘manipulation of hours claimed for that care and then the payments made as a result’;
q. [Time Stamp 12.04] – ‘it’s a sophisticated scheme, it’s quite a complex scheme’;
r. [Time Stamp 12.55] – ‘this case shows that people trying to manipulate the system will be found out’;
s. [Time Stamp 14.22] – ‘hopefully our operational activity, our overt activity, does catch offenders by surprise’ so that evidence will not be destroyed;
t. [Time Stamp 18.25] – stating that ‘it is complex to investigate fraud like this’ but that ‘that’s the great thing about sometimes fraud offending. The records are there, you just gotta follow the path’;
u. [Time Stamp 19.04] – referring to the ‘fraudulent activity’.
20The applicants also rely on the following features of Commander Hunter’s words at the press conference in establishing that the jury’s verdicts were unreasonable:
(a)Where Commander Hunter provided details of the allegations together with other irrelevant statements (such as references to ‘phantom children’ and ‘luxurious lifestyles’), he cannot be understood as only stating allegations without an assertion that the allegations were true.
(b)The use of the word ‘alleged’ in phrases such as ‘dismantled an alleged criminal network’ and ‘true alleged fraud amount’ demonstrates that the word ‘alleged’ was not being used to suggest that the allegations might not be true.
(c)The occasion of the press conference falls between the extremes of an impressionistic assessment of a book and a first impression of a listening experience.
(d)The imputations allegedly conveyed in Questions 1.4 and 2.4 (Ms Ouda and Mr Shehada ‘stole from the pockets of the Australian taxpayer which prevented care being provided to some of the most vulnerable persons in the community’) and Questions 1.5 and 2.5 (Ms Ouda and Mr Shehada ‘defrauded taxpayers of millions of dollars to fund a grand and luxurious lifestyle …’) closely follow the actual words used by Commander Hunter so that no jury could reasonably reject that the alleged imputations were conveyed.
(e)The jury’s answers to Questions 1.7, 2.7 and 3.2 (Ms Ouda, Mr Shehada and Maroush ‘are dishonest and unable to be trusted’) were the ‘thirteenth stroke of a clock’:[5] not only wrong in themselves, but such as to cast doubt on everything that went before. They were of a different character to the earlier questions because they were not about fraud and had nothing to do with guilt. No reasonable jury could answer these questions ‘no’, and the jury’s answers indicate that the Court can have no confidence in the jury’s answers to the previous questions.
[5]Rivkin (2003) 77 ALJR 1657, 1658–9 [5] (Gleeson CJ); [2003] HCA 50.
Respondents’ submissions
21The respondents submit that the applicants are required to establish that the jury failed to perform their duty and, in so doing, acted irrationally. The respondents contend that the Court is required to exercise severe restraint having regard to the constitutional role of the jury in defamation cases and the fact that whether the alleged imputations were conveyed is a matter of impression. They say that the applicants must persuade the Court that it was ‘not open’ for the jury to have answered the questions as they did.[6] The respondents characterise the distinction sought to be drawn by the applicants between the approaches of McHugh J and the other judges in Rivkin as a distraction.
[6]Referring to Norman v Transport Accident Commission [2024] VSCA 123, [73] (Beach, Kennedy and Taylor JJA).
22The respondents argue that the applicants, presumably for forensic reasons, contended for imputations at the highest level (that the applicants were guilty of the alleged conduct). That approach carried the real risk, which eventuated, that the jury would reject the alleged imputations. The jury might reasonably have concluded that some lesser imputation was conveyed, such as that they were simply allegations, that there were grounds to investigate or that there were reasonable grounds to believe that they had engaged in the alleged conduct.
23The respondents contend that the use of the expressions ‘phantom children’ and ‘luxurious lifestyles’ was neither irrelevant nor colourful and related to the offences with which the applicants were charged. Further, they say that the applicants’ contention depends on impermissibly isolating some limited language from the words spoken by Commander Hunter. They submit that the word ‘alleged’ was used 23 times during the press conference and the reasonable listener knows that allegations and charges are just that and remain subject to the judicial process.
24The respondents submit that the alleged imputations do not closely follow the words spoken at the press conference. With respect to Questions 1.4 and 2.4 (Ms Ouda and Mr Shehada ‘stole from the pockets of the Australian taxpayer which prevented care being provided to some of the most vulnerable persons in the community’), the words spoken were no more than general comments about the ‘operation’ and offending ‘of this nature’. With respect to Questions 1.5 and 2.5 (Ms Ouda and Mr Shehada ‘defrauded taxpayers of millions of dollars to fund a grand and luxurious lifestyle …’), the words spoken contain multiple references to the AFP making ‘allegations’.
25As for the jury’s answers to Questions 1.7, 2.7 and 3.2, which the applicants contend are the ‘thirteenth stroke of a clock’, the respondents submit that not one word was said about dishonesty or trust by Commander Hunter at the press conference. In those circumstances, they contend that the imputations were inherently more difficult to establish as having been conveyed.
26Finally, the respondents observe that the applicants do not complain of any kind of miscarriage or misdirection, meaning that this case stands in contrast to the facts of Rivkin. They submit that the fact that the jury retired to consider their verdicts for a number of hours and asked a question demonstrated that the jury undertook their task seriously.
Decision
27Before identifying the issue for this Court, we commence by examining the issue that was before the jury.
The issue for the jury
28The issue on which the jury’s verdicts depended was whether the jury were satisfied that the pleaded imputations were carried by the publication. The jury had to consider each imputation separately.
29In an action for defamation, the test for the anterior question, namely whether a published matter is capable of being defamatory, is what ordinary reasonable people would understand by the matter complained of.[7] As the High Court said in Trkulja v Google LLC, it is necessary to bear in mind that ‘ordinary men and women have different temperaments and outlooks, degrees of education and life experience’.[8] The ordinary reasonable reader does not interpret a publication in a precise manner, but rather forms a general impression of the meaning from the words used.[9] When it comes to the question whether a particular meaning is conveyed, the trier of fact (in this case the jury) is required to identify the single or dominant meaning that they believe was actually conveyed by the relevant publication.[10] This was the issue for the jury in the present case, not whether the words were capable of conveying the pleaded imputation.
[7]Trkulja v Google LLC (2018) 263 CLR 149, 160 [31] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); [2018] HCA 25.
[8]Ibid.
[9]Ibid 160 [32].
[10]Gatto v Australian Broadcasting Corporation [2022] VSCA 66, [41] (Beach, Walker and Macaulay JJA).
30The case went to the jury on the basis that the applicants alleged that Commander Hunter said, broadly speaking, that they had committed fraud out of greed and for personal gain and the respondents contended that the words spoken at the press conference conveyed a lesser meaning, such as that the applicants were alleged to have committed these offences, or that there were grounds to believe or suspect that they had engaged in the conduct. The distinction between a statement that a person committed a crime and lesser meanings, in particular that a person was alleged to have committed a crime, was central to the issue for the jury.
Publications about involvement in a crime
31When someone is said to have been involved in or associated with criminal conduct, the matter may, and often will, be expressed in different ways. At one end of the spectrum, the proposition that ‘X has committed fraud’ may be stated baldly and without qualification. A subtle variation might arise where the speaker says that ‘I believe that X has committed fraud’. Other variations include: ‘police allege that X has committed fraud’, ‘X has been charged with fraud’, ‘there are strong grounds to suspect that X has committed fraud’ and ‘the charges are well founded’. In Chase v News Group NewspapersLtd, the Court of Appeal of England and Wales adopted a taxonomy of imputations from actual guilt (level 1), reasonable grounds to suspect (level 2) and investigation (level 3).[11]
[11][2002] EWCA Civ 1772, [45] (Brooke LJ, Rix LJ agreeing at [67], Keene LJ agreeing at [68]); [2003] EMLR 218 (‘Chase’); Australian Broadcasting Corporation v Chau Chak Wing (2019) 271 FCR 632, 644 [27] (Besanko, Bromwich and Wheelahan JJ); [2019] FCAFC 125.
32We refer to Chase not to embrace a rigid classification of imputations, which is undesirable, but to acknowledge that words in this area of discourse may give rise to a range of potential meanings. As the Full Court of the Federal Court said in Australian Broadcasting Corporation v Chau Chak Wing:
But meaning is so much dependent upon the words used and context, and whether a matter is capable of conveying imputations of both suspicion and guilt, or grades of meaning in-between, including whether the suspicion imputation is one of strong suspicion, reasonable suspicion, or mere suspicion, or whether it is objective or subjective, active or passive, will depend upon the terms and the context of the matter …[12]
[12](2019) 271 FCR 632, 645 [28] (Besanko, Bromwich and Wheelahan JJ); [2019] FCAFC 125.
33Given the potential range of meanings, it is important to focus on the pleaded imputations, which will set the field of inquiry at the trial and be relevant both to whether the imputations were conveyed by the publication and whether a plea of justification or other defence is available.[13]
[13]Setka v Abbott (2014) 44 VR 352, 367 [47] (Warren CJ and Ashley JA, Whelan JA agreeing at 419 [301]–[302]); [2014] VSCA 287, quoting Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206, 219 [76] (Doyle CJ, Vanstone J agreeing at 221 [88], White J agreeing at 221 [89]); [2005] SASC 82.
34In Mirror Newspapers v Harrison, Mason J referred, with approval, to the ‘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’.[14] With that said, in some cases there may be considerably more than the bare fact of a charge. There can be little doubt that a statement, although couched as an allegation or suspicion, when understood in its context by a reasonable person with the relevant attributes, may amount to a statement that the person is guilty. That was the applicants’ case before the jury.
[14](1982) 149 CLR 293, 300; [1982] HCA 50.
35The point is often illustrated by reference to the decision of the House of Lords in Lewis v Daily Telegraph Ltd.[15] That decision concerned newspaper articles that said that the City of London Fraud Squad was inquiring into the affairs of Rubber Improvement Ltd, that its share price had dropped and named the chairman as Mr John Lewis.[16] Both the company and the chairman sued for defamation. The chairman pleaded that the words meant and were understood to mean that he had been guilty of fraud or dishonesty in connection with the affairs of the company and that he had caused or permitted the affairs of the company to be conducted fraudulently or dishonestly or in such a way that the police suspected that they had been so conducted.[17] The trial judge, Salmon J, took the view that the words were capable of imputing guilt of fraud and left both imputations to the jury. That view was shared by one member of the Court of Appeal[18] and Lord Morris. The majority in both the Court of Appeal and the House of Lords took the contrary view.
[15][1964] AC 234 (‘Lewis’).
[16]Ibid 237–8.
[17]Ibid 239.
[18]Lewis v Daily Telegraph Ltd [1963] 1 QB 340, 394 (Davies LJ).
36In considering what the words meant in their ordinary meaning, Lord Reid observed that the question was ‘not one of construction in the legal sense’ but what the words meant to the ordinary person, who ‘does not live in an ivory tower’, ‘can and does read between the lines’ and draws inferences ‘in the light of [their] general knowledge and experience of worldly affairs’.[19] His Lordship further noted that the ordinary reader, ‘not avid for scandal’, would find meaning as a matter of impression.[20] In that context, Lord Reid said that there is a ‘great difference between saying that a man has behaved in a suspicious manner and saying he is guilty of an offence’.[21] As to the specific article in suit, he went on to hold that it was not open to infer guilt merely because an investigation was ongoing.[22]
[19]Lewis [1964] AC 234, 258.
[20]Ibid 260.
[21]Ibid.
[22]Ibid.
37Lord Morris of Borth-y-Gest accepted there to be a difference between saying a person is guilty and that a person is suspected of being guilty of an offence.[23] Differing with the other Law Lords, he held that it was open to the jury to understand the words as conveying that the plaintiff was guilty of fraud and that this was a matter for the jury.[24]
[23]Ibid 267.
[24]Ibid 268.
38Lord Hodson concluded that the words could not reasonably be understood to impute guilt, saying that, although suspicion could be inferred, taking the further step to infer guilt would be ‘wholly unreasonable’.[25]
[25]Ibid 274.
39Lord Devlin rejected a submission that there was no difference between a statement stating guilt and one stating suspicion of guilt. That submission had been based on the ‘rumour cases’ that establish that a publisher cannot avoid liability by prefixing a statement with the words ‘I have been told that …’ or ‘it is rumoured that …’.[26]
[26]Ibid 283
40Lord Devlin recognised that the distinction may be a fine one:
It is not, therefore, correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, 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 a 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.[27]
The issue for this Court
[27]Ibid 285.
41The question in this Court is whether any of the jury’s answers as to whether the alleged imputations were conveyed were unreasonable in the relevant legal sense. As this Court observed in Ross v Gruma Oceania Pty Ltd, it is a difficult task to persuade the Court to overturn a jury’s verdict.[28]
[28][2022] VSCA 87, [13] (Beach, Niall and Kennedy JJA); see also Pasqualotto [2013] VSCA 21, [21], [191]–[197] (Whelan JA, Tate JA agreeing at [1]).
42Both parties agreed in this Court that the pleaded imputations were capable of being conveyed. That was correct: as Kirby J observed in Chakravarti v Advertiser Newspapers Ltd, ‘[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject’.[29] In circumstances where there was more to the press conference than the bare statement that the applicants had been charged with fraud, it was possible that there were other meanings that the words might bear and, in particular, that a different and lesser meaning might have been conveyed to a reasonable jury.
[29](1998) 193 CLR 519, 574 [134]; [1998] HCA 37.
43In Rivkin, the High Court considered the extent to which appellate restraint is required in the context of a jury verdict in a defamation proceeding. The Court of Appeal of New South Wales had found that some of the jury’s answers were unreasonable and ordered that there should be a new trial on all of the alleged imputations. A majority of the High Court allowed the appeal, limiting the new trial to the imputations in relation to which it found that the jury’s determinations had been unreasonable.[30]
[30]Rivkin (2003) 77 ALJR 1657, 1658 [1], 1659 [9] (Gleeson CJ), 1685 [170] (Kirby J), 1702–3 [213], [217] (Callinan J), 1704–5 [223], [225] (Heydon J); [2003] HCA 50.
44Justice McHugh, who dissented in the result, observed:
In determining whether a civil jury acted reasonably in reaching its verdict, an appellate court must approach the case on the basis most favourable to the respondent to the appeal. The question for the appellate court is not whether the verdict is right or appears to be right but whether in the light of the evidence the verdict shows that the jury failed to perform its duty. As long as the verdict cannot be described as irrational, it must stand. As Else-Mitchell J pointed out in Carr Shipping and Trading Co Pty Ltd v Sydney City Council, an appellate court is not entitled to set aside a jury’s verdict because the court regards the verdict ‘as illogical, unsatisfactory or different from that which it would itself have reached’. These principles apply to appeals in defamation actions as well as to appeals in other common law actions.[31]
[31]Ibid 1660 [17] (citations omitted).
45Justice McHugh went on to describe the circumstances in which a jury verdict may be found to be unreasonable in the following way:
It is only when the publication contains a ‘plain and obvious defamation incapable of any innocent explanation’ or where the words are ‘necessarily’ defamatory that an appellate court is entitled to find that no reasonable jury could have failed to find the meaning alleged or that it was defamatory. As Chief Justice Darley observed in Kelly v Daily Telegraph Newspaper Co, if the words of the publication have ‘any possible construction which can be put upon them, susceptible of an innocent meaning, then the verdict of the jury for the defendants is conclusive and cannot be disturbed’. Hence, an appellate court can set aside a verdict of no libel on the ground of unreasonableness only when the words of the publication are not capable of any but a defamatory meaning. Only when the defamation is ‘clear and beyond argument’ can an appellate court set aside a jury’s finding that the publication does not have the meaning alleged or that the meaning alleged is not defamatory.[32]
[32]Ibid 1660–1 [20] (citations omitted).
46Justice Callinan (with whom Gleeson CJ agreed) observed:
The fact that an appeal lies to the Court of Appeal does not mean that the Court may substitute the answer that it would give to a question for that of the jury. Nor does it mean that a finding of a jury should be invested with no more than the authority of a trial judge to whom all questions, including of fact, have been assigned for answer. The jury has an especially significant constitutional role to play in those cases in which it participates. Both as a practical and legal matter, a jury’s decision on a factual question, although by no means impregnable, does have an authority over and above that of a decision of a judge sitting alone to determine a factual question. The jury is representative of the community. Its members are better placed than judges to give meaning to, and evaluate, the spoken and written word and its impact on the community. Nor should it be assumed that juries approach their task with heightened or lowered suspicion and prejudice. History shows that not all lawyers and judges are strangers to suspicion. It may accordingly be accepted that the occasions for judicial correction of jury verdicts will be extremely rare. But such occasions do arise.[33]
[33]Ibid 1698 [183].
47Justice Kirby, agreeing with Gleeson CJ and Callinan J in the result, identified a difference in approach:
The essential difference between the approach that McHugh J takes to this issue (and which the appellant and some others have urged) and the one that I regard as required by authority and by proper performance by the Court of Appeal of its appellate role, can now be identified.
I am very mindful of what this Court and the Privy Council said in Hocking v Bell, concerning appellate review of jury verdicts. In this Court, the case is often referred to, and given effect. But neither Hocking v Bell, nor any decision since of which I am aware, obliges an appellate court, performing its function of deciding an appeal from a verdict of a civil jury, to defer to the jury decision if there is the merest scintilla of evidence to support that decision. This is a common misreading of Hocking v Bell. It must be removed from legal thinking.
In every case it remains for the appellate court to subject the jury verdict to analysis, allowing for difficulties inherent in the absence of reasons and in circumstances where only limited means are available to decide how the jury may have reached their conclusion. Nevertheless, the touchstone is — and should be — one of reasonableness. Nothing else would coincide with judicial authority. Nothing else would fit with the appellate court's duty as a receptacle of statutory power. Reasonableness, rationality and fair process lie at the very heart of our legal system. There is no need to apologise for them, or to dispose of them, in deference to fictious or absolute notions or a blind faith in finality of legal process that has clearly miscarried.[34]
[34]Ibid 1681–2 [149]–[151] (citations omitted).
48The applicants contend that there is a difference in the approaches of McHugh J and Kirby J in Rivkin in so far as the former expresses the test in somewhat more demanding terms, whereas the latter emphasises that ‘the touchstone is — and should be — one of reasonableness’.[35] The applicants submit that McHugh J’s statement that a verdict will not be unreasonable if there is ‘any possible construction which can be put upon [the words], susceptible of an innocent meaning’ goes too far and is inconsistent with the test as stated by the other judges.[36] The point is semantic but that is no criticism in the present context where the entire debate is about the meaning that the words used convey.
[35]Ibid 1682 [151].
[36]Ibid 1660 [20], quoting Kelly v Daily Telegraph Newspaper Co (1897) 18 LR (NSW) 358, 361 (Darley CJ).
49The applicants’ attempt to essay a difference in approach tends to blur the distinction between the ultimate legal question and the various ways in which it has been expressed. Whether, at the margin, there is a difference of any practical significance between the two approaches may be open to doubt. And, for the purposes of the present case, they do not yield a different result. At its root, the issue is one of reasonableness. The members of the High Court in Rivkin generally accepted that a party seeking to overturn a jury’s verdict is required to show only that the jury’s verdict was one that no reasonable jury could have given.[37] That is the test that this Court has continued to apply in subsequent cases.[38] It is convenient to proceed on the basis that the issue is whether the jury’s verdict was reasonably open to them.[39] If the jury’s verdict was reasonably open to them, it follows that it would also not fall foul of the stricter tests articulated by McHugh J.
[37]Rivkin (2003) 77 ALJR 1657, 1658 [1] (Gleeson CJ), 1660 [20] (McHugh J), 1698 [185] (Callinan J), 1682 [153] (Kirby J); [2003] HCA 50.
[38]Ross [2022] VSCA 87, [13] (Beach, Niall and Kennedy JJA); Pasqualotto [2013] VSCA 21, [21] (Osborn JA, Tate JA agreeing at [1]).
[39]Fox v Percy (2003) 214 CLR 118, 141 [71] (McHugh J); [2003] HCA 22, cited by Kirby J in Rivkin (2003) 77 ALJR 1657, 1682 [152]; [2003] HCA 50.
50An inquiry as to what is reasonable or unreasonable depends on the circumstances in which the issue arises. Three matters are of central importance in this case. First, as already explained, what words convey to the ordinary reasonable person involves matters of impression. Although the publication has to be read or listened to as a whole, impressions may be influenced by tone and emphasis as well as content. Small details of style or inflection can catch the ear and invite the listener to a particular meaning. Second, the jury is representative of the community and its members ‘are better placed than judges to give meaning to, and evaluate, the spoken and written word and its impact upon the community’.[40] Third, juries do not give reasons, and their decisions are to that extent unexaminable.[41]
[40]Rivkin (2003) 77 ALJR 1657, 1698 [184] (Callinan J); [2003] HCA 50.
[41]Ibid 1658 [2] (Gleeson CJ).
51It follows that the hurdle to overcome a jury verdict on the basis that it is unreasonable is very high.
The pleaded imputations
52In this Court, the applicants’ arguments divide the imputations into three groups of imputations. First, the applicants submit that the jury were bound to find that all of the individual imputations were conveyed in the press conference. In doing so, the applicants rely on a number of features that were present and said to be relevant in relation to each pleaded imputation. Given that the respondents do not dispute that the imputations were capable of being conveyed, the course taken by the applicants in grouping the imputations in this way is understandable.
53Secondly, the applicants submit that two of the pleaded imputations in relation to Ms Ouda and Mr Shehada so closely resembled the words spoken by Commander Hunter that it was unreasonable for the jury to reject them.
54Thirdly, the applicants say that the last alleged imputation relevant to each applicant was of a different character and its meaning obviously followed from the words spoken at the press conference.
Alleged imputations as a whole
55It is convenient to start with the imputations as a whole. The following matters of context are important. The speaker was a commander of the AFP. It was stated that the AFP was alleging fraud on the part of the applicants, that the fraud was serious, that it was estimated to ‘progress into the millions’, that Ms Ouda and Mr Shehada had been arrested and charged and that they had been bailed to appear in court the following year. Most of the statements made by Commander Hunter were qualified as being allegations. Although not determinative, the frequent use of that qualification flavours the press conference and was certainly capable of being regarded by the jury as significant.
56We accept that, in the context of allegations of criminal behaviour, the presumption of innocence may not be a powerful factor in the ascertainment of meaning by the jury. In John Fairfax Publications Pty Ltd v Obeid, McColl JA (with whom Sheller JA and McClellan AJA agreed) said that it was a ‘pious presumption to conclude that the ordinary reasonable reader is mindful of the presumption of innocence’ and that there is room for scepticism in respect of that assumption.[42] With that said, the presumption of innocence might have more significance where, as here, the speaker was a police officer speaking at a press conference and referred to allegations being made and charges laid. Those circumstances were at least capable of having significance in the jury’s attribution of meaning to the words spoken.
[42](2005) 64 NSWLR 485, 500 [70]; [2005] NSWCA 60.
57Understandably, the applicants rely on what they submit were said to be extravagant and irrelevant claims made at the press conference. There is no doubt that such factors may well undermine the contention that the publication concerned allegations or the suspicion of wrongdoing. For example, in Rivkin, Callinan J cautioned that publishers ‘are entitled to use colourful and seductive language, but in using it they may run the risk of seducing readers into believing only what is colourful and on occasions scandalous, rather than the facts conveyed by straight reportage’.[43] Extraneous material might serve to blacken the name of a person so as to persuade the listener that the statements of wrongdoing are statements of fact rather than mere allegations.
[43]Rivkin (2003) 77 ALJR 1657, 1699 [187] (Callinan J); [2003] HCA 50.
58The applicants pointed to the use of the following phrases, among others: ‘phantom children’, ‘lavish lifestyle’, ‘fantastic lifestyle’, ‘multiple properties’, ‘multiple vehicles, luxury vehicles including a Maserati and BMWs’, ‘nice clothes’ and things that ‘those struggling in the community don’t have’. The applicants emphasised the reference to a ‘sophisticated scheme’ and ‘quite a complex scheme’.
59We think it plain that some of the phrases used by Commander Hunter were intended to catch the interest of the assembled media and to support the allegations being made. The relevance of some of the phrases was perhaps oblique, but they were not entirely extraneous. Although it was not said in the press conference that any of the cars or assets had been seized as the proceeds of the alleged crimes, the possibility that these allegedly ill-gotten gains were relevant to the motive of the alleged fraud could not be ruled out. Indeed, Commander Hunter referred specifically to the alleged offending as being motivated by greed.
60Further, and importantly, one obvious purpose of the press conference, which arises directly from what was said, was to highlight that the misappropriation of Commonwealth funds was not a victimless crime, and that people were encouraged to report it. To that end, Commander Hunter urged anyone with information relating to family day care fraud or concerning the investigation into the applicants to contact the relevant government department or Crime Stoppers. In this context, it was not extraneous to refer to the exploitation of benefits and services that existed to help the community, including vulnerable persons.
61We would add that the use of extravagant or exaggerated phrases to describe criminal offending does not necessarily eradicate the distinction between allegations and statements of guilt. Allegations may be described in emotive terms and the overuse of inflammatory or strident language does not preclude matters being described in terms of allegation or suspicion and understood in that way. The tone of the press conference, which was relatively even and dry, also provided a counterpoint to the more extravagant phrases used during the press conference.
62A reasonable person assessing the meaning of the words used, including having regard to the overall impression left by them, might conclude no more than that the AFP had charged the applicants with serious offences and that they would face court. On that basis, the words conveyed the case that the AFP was intending to make. Further, as already noted, the inquiry as to the reasonableness of the jury’s verdicts must be considered against the imputations as pleaded. It is therefore relevant to that assessment that the applicants pleaded that the words spoken conveyed the imputation that they had engaged in the relevant conduct and not some lesser imputation, such as that there were grounds to investigate or to believe that they had engaged in the alleged conduct.
Alleged imputations said to closely reflect statements at the press conference
63The applicants’ second major argument was that the imputations referred to in Questions 1.4 and 1.5, and their corresponding imputations in relation to Mr Shehada, were virtually verbatim reflections of what was said at the press conference. The submission relied on the observation by McHugh J in Rivkin that, if the pleaded imputation in that case had ‘closely followed’ the text of the publication, no jury could reasonably reject either it or its defamatory content.[44]
[44]Ibid 1668 [63] (McHugh J).
64The applicants’ submission that the pleaded imputations are close to a verbatim account of what was said does not meet the respondents’ submissions. As for the alleged imputation in Questions 1.5 and 2.5, it was not in dispute that the subject of Commander Hunter’s statement related to whether Ms Ouda and Mr Shehada had ‘defrauded Australian taxpayers of millions of dollars to fund a grand and luxurious lifestyle involving extensive real estate portfolios, overseas travel, a Maserati and BMW motor vehicle and other luxury items’. The true contest was whether that statement was qualified as being the subject of allegation or whether, as the applicants submit, it was a statement that the fraud had been committed to enrich Ms Ouda and Mr Shehada. The relevant statement was prefixed by the words ‘We allege …’. In those circumstances, it was reasonably open to the jury to find that the statement was sufficiently qualified to amount to a statement of allegation rather than fact.
65Questions 1.4 and 2.4 asked the jury whether Commander Hunter’s words conveyed the imputation that Ms Ouda and Mr Shehada ‘stole from the pockets of the Australian taxpayer which prevented care being provided to some of the most vulnerable persons in the community’. It is not clear that those words in fact closely follow Commander Hunter’s words. He said that ‘[t]his operation should serve as another clear warning fraud of this nature is stealing from the pockets of the Australian taxpayer’. Commander Hunter’s statement does not directly pertain to Ms Ouda and Mr Shehada (unlike the alleged imputations) but rather is of a more general nature. In any event, the sentence immediately preceding the impugned sentence referred to the same alleged fraud and was expressly qualified as an allegation. In those circumstances, it was open to the jury, acting reasonably, to conclude that the statement was an allegation.
Final alleged imputation
66The third and final area of argument concerned the final alleged imputation in relation to each applicant. The same reasoning in respect of the other alleged imputations applies. The qualifications and context imbued the entire press conference and left it open to the jury, acting reasonably and properly instructed, to find that allegations were being made as opposed to statements of guilt. That the final alleged imputation did not allege fraud does not assist the applicants. On the contrary, as the respondents submit, the fact that Commander Hunter did not refer to dishonesty or trust at the press conference meant that, if anything, the final imputation was more difficult to prove than the others. Given that it was not unreasonable for the jury to give the verdicts they gave in relation to the final alleged imputation, no issue arises as to whether the jury’s verdicts as to that imputation were such as to cast doubt on their verdicts in respect of the other alleged imputations.
Conclusion
67It follows that the attack on the jury’s answers to the questions posed to them and to the consequential verdicts must fail. Leave to appeal should be refused.
---
Annexure
Transcript of Press Conference
OLA HASSAN MOHAMED OUDA First applicant AMGAD SHEHADA Second applicant PRIME NATIONAL CARE PTY LTD (ACN 611 170 284) Third applicant MAROUSH RESTAURANT PTY LTD (ACN 626 342 970) Fourth applicant and TODD HUNTER First respondent COMMONWEALTH OF AUSTRALIA Second respondent SCHEDULE OF PARTIES
17
0