Robinson v Laws
[2000] QSC 82
•14 April 2000
SUPREME COURT OF QUEENSLAND
CITATION: Robinson v. Laws & Anor [2000] QSC 082 PARTIES: ROBERT RAYMOND LLOYD ROBINSON (plaintiff-applicant)
v
JOHN LAWS
(first defendant-respondent)
AND
RADIO 2UE SYDNEY PTY LTD
(second defendant-respondent)FILE NO:
DIVISION:
No 1234 of 1995
Trial Division
DELIVERED ON: 14 April 2000 DELIVERED AT: Brisbane HEARING DATE: 16 December 1999 JUDGE: Helman J ORDER: Order that the words ‘that the plaintiff was a rapist who had raped on more than one occasion’ be struck from paragraph 30 of the amended defence.
Application otherwise dismissed.
Leave to the defendants to re-plead within 14 days.
Order that the plaintiff pay to the defendants nine-tenths of their costs of and incidental to the application, to be assessed.CATCHWORDS: PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – DEFENCE AND COUNTERCLAIM – whether the defendants’ amended defence ought to be struck out with leave to re-plead – whether the defence is prolix
DEFAMATION – STATEMENTS AMOUNTING TO DEFAMATION – JUSTIFICATION – TRUTH AND PUBLIC BENEFIT – whether the words complained of and/or the alleged imputations were true and published for the public benefit.
STATUTES – INTERPRETATION – PARTICULAR WORDS AND PHRASES – GENERAL PRINCIPLES – whether the disclosure of the plaintiff’s criminal history in the defence and counterclaim is prohibited.
Criminal Law (Rehabilitation of Offenders) Act 1986
Defamation Act 1889
Uniform Civil Procedure Rules 1999
Chakravarti v. Advertiser Newspaper Ltd (1998) 193 C.L.R. 519
Jackson v. John Fairfax & Sons Ltd [1981] 1 N.S.W.L.R. 36
Polly Peck (Holdings) Plc v. Trelford [1986] 1 Q.B. 1000COUNSEL: Mr A.J. Morris Q.C. and Ms D.C. Spence for the plaintiff-applicant
Mr R.A. Mullholland Q.C. and Mr D.K. Boddice for the defendants-respondentsSOLICITORS: Ros Finlayson & Associates for the plaintiff-applicant
Biggs & Biggs for the defendants-respondents
HELMAN J: This is an application under rule 171 of the Uniform Civil Procedure Rules 1999 by the plaintiff that the defendants’ amended defence dated 14 September 1999 be struck out with leave to re-plead. On behalf of the plaintiff it is asserted that the amended defence, read as a whole, has a tendency to prejudice or delay the fair trial of the proceeding, is unnecessary or scandalous, is frivolous or vexatious, and otherwise constitutes an abuse of the process of the court. Alternatively, the plaintiff contends that objectionable parts of the amended defence should be struck out, on the same grounds, and also on the ground that no reasonable defence is disclosed.
The plaintiff’s action is to be tried by jury. It is for damages - including (except in respect of publication in New South Wales) aggravated and exemplary damages - for allegedly defamatory utterances in seven radio broadcasts, three in 1995 and four in 1996. The plaintiff holds office in the Aboriginal and Torres Strait Islanders Commission, ATSIC. The first defendant is a radio announcer, and the second defendant is a corporation which operated the radio station 2UE.
It is necessary to set out in some detail the relevant parts of the pleadings. In the amended defence the defences of truth and public benefit (with and without reliance on the principle attributed to Polly Peck (Holdings) Plc v. Trelford [1986] Q.B. 1000), qualified protection, and (in relation to publication in New South Wales) contextual truth are pleaded.
Paragraphs 2 to 6 of the amended statement of claim, delivered in May 1999, are as follows:
2. More than thirty years prior to the publications referred to below, namely on or about 6 November 1963, the Plaintiff was convicted of the offence of rape. This is referred to in this pleading as “the 1963 conviction”.
3.On or about 27 March 1979, the Plaintiff was convicted of a summary offence. This is referred to in this pleading as “the 1979 conviction”.
4. At the time of the publications referred to below:
(a)The rehabilitation period in respect of the 1979 conviction had expired; and
(b)It was therefore unlawful, under section 6 of the Criminal Law (Rehabilitation of Offenders) Act 1986, for any person to disclose the 1979 conviction except as provided in that Act.
5.Apart from the 1963 conviction and the 1979 conviction, the Plaintiff has never been convicted of any serious offence.
6.Accordingly, at the time of the publications mentioned below, the only item on the Plaintiff’s criminal history was the 1963 conviction.
The defendants’ response to those paragraphs in their amended defence is as follows:
2.As to the allegations in paragraphs 2 and 3 of the Amended Statement of Claim, the defendants:
(a)admit that on or about 6 November 1963 the plaintiff was convicted of the offence of rape;
(b)admit that on or about 27 March 1979 the plaintiff was convicted of the offence of unlawful assault;
(c)deny that the said offence of unlawful assault was a summary offence and believe that the allegation is untrue or cannot be admitted because the said offence of unlawful assault was an indictable offence dealt with summarily.
3.The defendants do not admit the allegations in paragraph 4(a) and (b) of the Amended Statement of Claim. The defendants believe the allegations cannot be admitted because they involve conclusions of law to be determined at trial.
4.The defendants deny the allegation in paragraph 5 of the Amended Statement of claim and believe that the allegation is untrue or cannot be admitted because:
(a)criminal offences are relevantly classified as indictable offences and simple offences under Queensland law, and indictable offences and summary offences under Commonwealth law;
(b)the plaintiff had three convictions for indictable offences (rape, stealing and unlawful assault) and two convictions for simple offences (disorderly conduct and obscene language) under Queensland law, and two convictions for summary offences (trespassing on Commonwealth premises and failing to leave Commonwealth premises when directed to do so by a constable) under Commonwealth law.
5.The defendants deny the allegation in paragraph 6 of the Amended Statement of Claim and believe that the allegation is untrue or cannot be admitted because, in addition to the 1963 rape conviction, the following offences were included on the plaintiff’s criminal record:
(a)on 12 February 1962, a conviction of stealing (two offences);
(b)on 5 November 1969, a conviction of disorderly conduct;
(c) on 9 February 1976, a conviction of obscene language;
(d) on 27 March 1979, a conviction of unlawful assault;
(e)on 26 August 1986, a conviction of trespass on Commonwealth property;
(f)on 29 August 1986, a conviction of failing to leave Commonwealth premises when directed to do so by a constable.
The words complained of in the seven broadcasts are these:
1.You see what this is here? Record of charges, okay. This is a criminal record of an ATSIC councillor and it’s as long as your arm, and there are three charges of rape in there.
2. (a) And is that company that that fella Ray Robinson is involved with – the ATSIC commissioner, the charmer convicted of gang rape and other crimes that we have talked to Robert Tickner about;
(b) Your word, 57 year old, all your life on the land, one arm doing your best battling along against Ray Robinson, convicted gang rape and other crimes, whose word should they take on this?
3.You might remember me passing the Minister a copy of Ray Robinson’s criminal record. It runs for two pages this criminal record. Stealing, rape, unlawful assault. This is the criminal record of an ATSIC commissioner who is in charge of millions of dollars of taxpayers money, people.
4.(a) This is an organization that puts people like Ray Robinson, convicted thief and rapist in charge of funding for legal services;
(b) Now the protest coming loudest from the mouth of Deputy Chairperson one Sugar Ray Robinson as he is called, that was a safe prediction incidentally. He says these reforms are ridiculous and that the Government may as well replace ATSIC. Well I think that’s a terrific idea Ray. First good one you have had for a while but terrific idea just the same.
5.(a) We talked to Robert Tickner on that subject at that time. It was revealed that this man, Ray Robinson, had a criminal record. But a pretty unpleasant criminal record, one charge being rape;
(b) I have in front of me a copy of the record of charges against Robert Raymond Robinson, 1962 stealing, 1963 rape, six years imprisonment. Then there is driving problems and so it goes. But let me turn to the next page, 1989 rape, nine years imprisonment … 1992 rape, found not guilty on that one incidentally.
6.But this criminal record is not just your average run of the mill criminal record. This includes rape and stealing and assault. It’s a couple of pages long.
7.(a) It is alleged that Ray Robinson was party to a $70,000.00 bribe to a witness to get his mate and fellow power broker, Lyle Capewell, out of what could be described as a sticky legal situation;
(b) Now there are allegations Ray Robinson organised a little $70,000.00 payoff to a major witness. Now, if it transpires this is true it will make black and white Australians sick to their stomachs. If $70,000.00 was spent buying somebody’s silence instead of purchasing medicine or school books for black kids in the outback it will be the most damming indictment of ATSIC ever – ever – and do you want to hear something funny – Ray Robinson is complaining about the investigation saying the police are trying to – wait for this people – trying to destroy his reputation – his reputation?
(c) Well, I suppose another Writ will be winging its way to me if I say this but I find it very hard to resile from truth so I’m going to say it anyway. Ray Robinson’s reputation is already sullied. It’s very hard to look a martyr Ray, when you’ve got convictions for rape, assault, stealing and several other crimes dating back decades and it’s very difficult to keep a clean public image when one of your organisations like the Bidjara Aboriginal House and Land Company receives a grant of $1.4 million, an increase of 3,500% on the year before, and as far as reputations go, it’s not easy to look like the good guy when you wield your enormous taxpayer funded legal power to kick a harmless old one armed pensioner off his property – see what a dangerous thing it is to talk about reputations Ray Robinson eh? – the problem is people might start to hold you to account!
Among the matters pleaded in the amended statement of claim as justifying an award of aggravated and exemplary damages are the following, in paragraphs 45 to 49:
45.Although pretending to read from the Plaintiffs criminal record, the First Defendant either:
(a)Was so culpably reckless as to misrepresent, and grossly overstate, the contents of the Plaintiffs criminal record; or
(b)Alternatively, deliberately misrepresented and over-stated the contents of the Plaintiff’s criminal record.
46.In referring to a “1989 rape”, and a term of nine years’ imprisonment in relation thereto, the First Defendant either:
(a)Was so culpably reckless as to overlook the fact that this conviction had been set aside on appeal, and the Plaintiff had been acquitted on a retrial; or
(b) Alternatively, deliberately concealed these facts.
47. In referring to a “1992 rape”, the First Defendant either:
(a)Was so culpably reckless as to overlook the fact that this was actually the same matter as the “1989 rape”, being the retrial which occurred when the Plaintiff’s conviction was set aside on appeal, and which resulted in his acquittal; or
(b)Alternatively, deliberately misrepresented these facts.
48.In referring to the Plaintiffs criminal record, apart from the 1963 conviction, the First Defendant:
(a)Breached section 6 of the Criminal Law (Rehabilitation of Offenders) Act 1986; and
(b)Flouted the Plaintiff’s lawful right, under that legislation, not to have disclosure made of convictions in respect of which the applicable rehabilitation period (within the meaning of that Act) had expired.
49.The Defendants made no attempt, or no reasonable or adequate attempt, to ascertain the true state of the Plaintiff’s criminal record prior to the broadcasts, whether by checking their facts with the Plaintiff, or in any other way.
The defendants do not admit the plaintiff’s allegations as to the making and contents of the first broadcast, but admit that the first defendant spoke the words the plaintiff alleges were used in the other six broadcasts, and that the defendants broadcast the words.
In paragraph 16 of the amended defence the defendants deny that the words complained of in the seven broadcasts conveyed, in their natural and ordinary meanings, the meanings alleged by the plaintiff. The plaintiff alleges that the following imputations were made in the broadcasts – in some instances in only some of the passages complained of:
1.The Plaintiff had a criminal record which was very lengthy, extending to more than one page;
The Plaintiff had a criminal record which included, as part of the criminal record, convictions in respect of three rape charges.
2.The Plaintiff had a criminal record which included, apart from the 1963 conviction, convictions in respect of a number of other crimes;
That the Plaintiff was personally responsible for the Aboriginal Housing Company acting towards a disabled pensioner in a way that unlawfully deprived him of his legal right to occupy land.
3.The Plaintiff had a criminal record which was very lengthy, extending to more than one page;
The Plaintiff had a criminal record which included, apart from the 1963 conviction, convictions in respect of a number of other crimes;
The Plaintiff had a criminal record which included convictions for stealing.
4.The Plaintiff had a criminal record which included convictions for stealing;
That the Plaintiff was a person who, cynically and for motives of self-interest, resisted proper scrutiny of ATSIC.
5.That the Plaintiff had a criminal record which was very lengthy, extending to more than one page;
That the Plaintiff had a criminal record which included, apart from the 1963 conviction, convictions in respect of a number of other crimes;
That the Plaintiff had a criminal record which included convictions for stealing;
The Plaintiff had a criminal record which included, at the time of the broadcasts, a 1989 rape conviction in respect of which the Plaintiff was sentenced to nine years’ imprisonment, as well as a separate rape charge in 1992, in respect of which the plaintiff was found not guilty.
6.The Plaintiff had a criminal record which was very lengthy, extending to more than one page;
The Plaintiff had a criminal record which included, apart from the 1963 conviction, convictions in respect of a number of other crimes;
The Plaintiff had a criminal record which included convictions for stealing.
7.The Plaintiff had a criminal record which included, apart from the 1963 conviction, convictions in respect of a number of other crimes;
The Plaintiff had a criminal record which included convictions for stealing;
That the Plaintiff was personally responsible for the Aboriginal Housing Company acting towards a disabled pensioner in a way that unlawfully deprived him of his legal right to occupy land;
That the Plaintiff committed a serious criminal offence, and attempted to pervert the course of justice, by offering a $70,000.00 bribe to a witness, using money which ought to have been applied to purchase medicine and school books for aboriginal children.
For each broadcast the defendants plead, also in paragraph 16 of the amended defence, what they allege the natural and ordinary meanings of the words were. Three alleged meanings are common to all seven broadcasts:
That the plaintiff was a rapist who had raped on more than one occasion;
That the plaintiff had a significant criminal record; and
That the plaintiff was unfit to hold a senior position in ATSIC.For the first two broadcasts only those three meanings are alleged. For each of the third, sixth, and seventh broadcasts a fourth meaning is alleged:
That the plaintiff had convictions for the offences of stealing, rape, and unlawful assault.
For the fourth and fifth broadcasts the following fourth meaning is alleged:
That the plaintiff had convictions for the offences of stealing and rape.
In paragraphs 28 and 29 of the amended defence, the defendants plead that if, and so far as it should be found that, the words complained of in the broadcasts were defamatory and bore certain of the meanings alleged by the plaintiff, such defamatory matter was true and it was for the public benefit that the publications complained of should be made. The defendants thus invoke the protection of truth and public benefit provided for by s. 15 of the Defamation Act 1889.
In paragraph 30 of the amended defence the Polly Peck defence is pleaded. The defendants plead that, if the words complained of were defamatory, they conveyed in the case of each of the broadcasts the meanings previously alleged by the defendants in paragraph 16, such imputations were true and it was for the public benefit that the publications complained of should be made. The meanings previously specified for each of the seven broadcasts and relied on by the defendants are repeated in full in paragraph 30.
In paragraph 31 of the amended defence the defendants plead that if any of the broadcasts complained of are found to be defamatory of the plaintiff, publication of the defamatory matter is excused. In that part of the pleading the defendants rely on the qualified protection provided for in s. 16(1)(c), (e), and (h) of the Defamation Act.
In respect of publication in New South Wales, the defendants plead, in paragraph 32 of the amended defence, that, if the words complained of in the amended statement of claim were defamatory and bore certain of the meanings alleged in the amended statement of claim, such defamatory matter was a matter of substantial truth and related to matters of public interest. Then, dealing with the words complained of in each of the seven broadcasts, the defendants plead that, if the words were defamatory and conveyed the imputations alleged by the plaintiff, each of those imputations related to a matter of public interest and each of those imputations was published contextually to imputations which were set out in full in paragraph 32. The contextual imputations are the same as to the meanings previously alleged by the defendants in paragraphs 16 and 30.
The defendants’ allegations as to the meanings of the words complained of are then set out first in paragraph 16 of the amended defence, and repeated in paragraphs 30 and 32.
The arguments in support of the plaintiff’s application are set out in a letter dated 16 November 1999 from the plaintiff’s solicitors to the defendants’ solicitors. At the hearing of the application, on behalf of the plaintiff, those arguments were conveniently summarized as: first, the amended defence is excessively repetitious and prolix; secondly, the amended defence includes matters which cannot be disclosed without contravening the Criminal Law (Rehabilitation of Offenders) Act 1986; and thirdly, the pleas of justification and contextual truth are not sustainable on the facts alleged.
It is convenient to begin by dealing with the plaintiff’s second argument which came down to an objection to the allegations in paragraph 5 of the amended defence.
On behalf of the plaintiff it was argued that since the defendants refer to convictions in respect of which rehabilitation periods have expired, the disclosure is prohibited under s. 6 of the Criminal Law(Rehabilitation of Offenders)Act. Section 6 provides:
6. Where the rehabilitation period has expired in relation to a conviction recorded against any person and the conviction has not been revived in respect of the person, neither that person nor any other person, if the person knows that the rehabilitation period has expired, shall disclose the conviction unless –
(a)being the person against whom the conviction is recorded – the person wishes to disclose the conviction; or
(b)the person makes the disclosure under the authority of a permit granted under section 10 in accordance with the conditions (if any) of the permit; or
(c)the person makes the disclosure in circumstances that constitute an exception to the operation of section 9(1) or that are expressed by section 9(2) to be a case to which the provisions of section 9(1) do not apply.
The term ‘rehabilitation period’ is defined in s. 3 to mean:
(a)in relation to a conviction upon indictment recorded against a person who in relation to that conviction was not dealt with as a child –
(i)a period of 10 years commencing on the date the
conviction is recorded; or
(ii)where an order of a court made in relation to the conviction has not been satisfied within that period of 10 years – a period terminating on the date the order is satisfied;
whichever period is the later to expire;
(b)in relation to a conviction recorded against a person where paragraph (a) does not apply -
(i)a period of 5 years commencing on the date the conviction is recorded; or
(ii)where an order of a court made in relation to the conviction has not been satisfied within that period of 5 years – a period terminating on the date the order is satisfied;
whichever period is the later to expire.
Section 3(2) restricts the categories of conviction which can have a rehabilitation period:
(2) The only convictions in relation to which a rehabilitation period is capable of running are convictions upon which –
(a) the offender is not ordered to serve any period in custody; or
(b)the offender is ordered to serve a period not exceeding 30 months in custody (including ordered by way of default), whether or not in the event the offender is required to actually serve any part of that period in custody;
and the provisions of this Act shall be construed accordingly.
The convictions referred to in paragraph 5 of the amended defence all appear in a copy of the plaintiff’s criminal history - under the name of Robert Lloyd Lee Robinson and also under his name as it appears in these proceedings - provided to the defendants’ solicitors in March 1998 following its discovery. Conviction (a) is recorded as being in the Children’s Court at Charleville and the remainder are recorded as being in Magistrates Courts in this State. In no case was the plaintiff ordered to serve a period in custody, the heaviest penalties being fines of $50.00 for each of (e) and (f). There is no reason to conclude - nor was it suggested – that any of the orders made in connexion with the offences has not been satisfied. It follows that the rehabilitation period in relation to each of the offences has expired, and the last did so on 29 August 1991. No question of revival of convictions was raised before me, and none could have been raised on my reading of the relevant provision of the Act, s. 11.
It follows that disclosure of the convictions referred to in paragraph 5 of the amended defence was prohibited unless one of the three instances of permitted disclosure provided for in s. 6 applies to the case. The construction of s. 6 is made difficult by the use of the word ‘person’ to refer variously to the convicted offender and to someone other than the offender, so that when the word appears for the fifth time in the section it is not immediately apparent to which of those people it refers. The first instance of permitted disclosure, to which paragraph (a) applies, is it appears disclosure by the convicted offender, so that s. 6 provides in that instance that a convicted offender may disclose a conviction recorded against him or her provided he or she wishes to do so; otherwise he or she is prohibited from doing so. The second instance of permitted disclosure, to which paragraph (b) applies, is disclosure by someone other than the convicted offender. The third instance of permitted disclosure, to which paragraph (c) applies, may be disclosure by the convicted offender or by someone else. It was not argued that this could be a case of either the second or the third instances.
This is a case of the first instance of a permitted disclosure provided for in s. 6. The plaintiff, pleading as he did in paragraph 3 of the amended statement of claim, disclosed the 1979 conviction and showed he wished to disclose it. By alleging in paragraph 5 of the amended statement of claim that, apart from the 1963 conviction and the 1979 conviction, he had never been convicted of any serious offence, he disclosed that he had other convictions. While a possible construction of paragraph 5 is that he was alleging he had not been convicted of any offence other than those specified, in its context – which includes of course paragraphs 45 to 49 of the amended statement of claim and his prior discovery of his criminal history - the only reasonable construction that can be put upon it is that he was alleging that, even though he had been convicted of other offences, those other offences were not serious. Had it been intended otherwise, paragraph 5 would have been a pleading that the plaintiff had not ‘suffered’ any other convictions. Section 8(1) of the Criminal Law (Rehabilitation of Offenders) Act provides that it is lawful to claim, upon oath or otherwise, that a person against whom a conviction has been recorded has not suffered the conviction where the rehabilitation period has expired and the conviction has not been revived, except on an occasion which is not relevant to these proceedings. In addition to disclosing his other convictions, the plaintiff evinced a willingness to have his criminal history scrutinized to establish the fact alleged in paragraph 5. That scrutiny would not be possible without an examination of the record of his convictions. It follows that the plaintiff wished to disclose the convictions recorded against him to enable him to prove the fact alleged.
The plaintiff, then, revealed his criminal convictions in his paragraph 5 without giving their details, but nonetheless disclosed them. Since the plaintiff disclosed them in his pleading wishing to do so the defendants cannot be held to have acted unlawfully by giving the details of the convictions in their pleading.
Two further matters must be noted. First, on behalf of the defendants an argument was advanced that the discovery of the plaintiff’s criminal history alone was a disclosure of it by him. It is not necessary for me to consider this argument, on the conclusion I have reached on the effect of the plaintiff’s amended statement of claim. Secondly, that conclusion relates to the reference to the plaintiff’s history in the defendants’ pleading and not to any reference to it in the broadcasts.
For the reasons I have given I conclude there is no merit in the plaintiff’s first argument.
In support of the argument that the amended defence is excessively repetitious and prolix the plaintiff relied inter alia on rule 149(1)(a) of the Uniform Civil Procedure Rules which provides that a pleading must be as brief as the nature of the case permits. There is a good deal of repetition of the alleged alternative meanings in the amended defence, as I have related, but on behalf of the defendants it was argued that the amended defence necessarily repeats the alternative imputations. The pleading of the alternative imputations is relevant first to explain the defendants’ reasons for denying the imputations alleged on behalf of the plaintiff, as is necessary if rule 166(4) of the Uniform Civil Procedure Rules is to be complied with; and see Chakravarti v. Advertiser Newspapers Ltd (1998) 193 C.L.R. 519, at p. 528 per Brennan C.J. and McHugh J. The alleged alternative imputations are then repeated when the Polly Peck defence and the defence of contextual truth are pleaded. It would have been possible for the defendants to abbreviate their pleading by referring, subsequently to paragraph 16 when necessary, to the alleged alternative imputations set out in that paragraph. But the result would have been a complicated, and possibly confusing, series of references. That may have made the amended defence shorter, but more difficult for the jury to comprehend when read out at the beginning of the trial. At all events if the trial judge is convinced that the amended defence is too wordy he or she can take steps to ensure that any untoward effects of such wordiness can be eliminated. Repetition is, however, often an aid to comprehension, particularly when something is to be conveyed orally. In those circumstances I am not persuaded that the amended defence should be struck out on the grounds of excessive repetition and prolixity.
I turn now to the plaintiff’s third argument. On his behalf it was submitted that the meanings of the words complained of asserted by the defendants are tendentious, that on those meanings a Polly Peck defence is not available because the sting of the allegedly defamatory words is not answered, and that the plea of contextual truth is not sustainable from the pleaded context.
The meanings challenged as tendentious were all but ‘that the plaintiff was unfit to hold a senior position in ATSIC’.
A Polly Peck defence is available to a defendant who seeks to rely on the context in which the words complained of were used to plead and justify meanings the plaintiff has not pleaded. That defence is not available when a publication contains two or more separate and distinct defamatory statements. Whether defamatory statements are separate and distinct is a question of fact and degree, but if defamatory statements have in their context a common sting they will not be regarded as separate and distinct. The defendant is entitled to justify the sting. If, however, the defamatory statements are separate and distinct the plaintiff is entitled to select one for complaint, and the defendant is not entitled to plead the truth of another by way of justification: Polly Peck (Holdings) Plc v. Trelford at p. 1032 per O’Connor L.J.
In this case the plaintiff’s complaint arises from allegedly defamatory statements which contain references to a criminal record either explicitly (1, 3, 5, and 6) or, when the word ‘record’ is not used but convictions are referred to, by necessary implication (2, 4, and 7). It is the existence of a record of charges or convictions that is the sting of the allegedly defamatory utterances. There is a material distinction between an allegation of conviction of an offence and an allegation of guilt of an offence. The defendants, by pleading the imputation ‘that the plaintiff was a rapist who had raped on more than one occasion’ in reliance on the context of all the criticism in the broadcasts have sought to justify defamatory statements concerning a criminal record by asserting the truth of something separate and distinct: guilt of more than one rape. That is not permissible under the Polly Peck principle. I shall therefore order that where the defendants have pleaded the imputation ‘that the plaintiff was a rapist who had raped on more than one occasion’ in paragraph 30 of their pleading, it should be struck out as disclosing no reasonable defence: rule 171(1)(a).
I should add that, although the Polly Peck decision has been generally approved and applied in Australia (see M. Gillooly, The Law of Defamation in Australia and New Zealand (1998), p. 110), there is high persuasive authority that it does not apply in Australia: Chakravarti v. Advertiser Newspapers Ltd at pp. 526-530 per Brennan C.J. and McHugh J. Mr Morris Q.C., for the plaintiff, did not ask me to consider that matter further, however, and confined his submissions to the proposition that even if the Polly Peck defence is available in Australia it is not available to the defendants here.
There is no proper basis for striking out the other challenged imputations alleged by the defendants. It will be open to the jury to accept each as an imputation of the words complained of, and in each case there is the requisite common sting.
The defence of contextual truth, which is provided for in s. 16 of the Defamation Act 1974 (N.S.W.), was explained by Hunt J. in Jackson v. John Fairfax & Sons Ltd [1981] 1 N.S.W.L.R. 36 at p 39:
The defence of contextual truth accepts that the matter complained of conveys the imputation pleaded by the plaintiff and that no other defence has been established in relation to that imputation; it asserts that the imputation pleaded by the defendant is also conveyed by the matter complained of (such imputation being called the contextual imputation); the defence then asserts that, even though the plaintiff’s imputation is otherwise indefensible, such is the effect of the substantial truth of the defendant’s contextual imputation upon the plaintiff’s reputation that the publication of the imputation of which he complains did not further injure his reputation.
It would be open to the jury to accept ‘that the plaintiff was a rapist who had raped on more than one occasion’ as an imputation of the words complained of in the wider context of the unrelenting and strident condemnation throughout the broadcasts, and it would, as I have said, be open to the jury to accept each of the other challenged imputations pleaded by the defendants. For the defence of contextual truth the common-sting test does not apply.
I should record that in Mr Morris’s oral submissions he conceded that no complaint could be made on behalf of the plaintiff of the way in which paragraph 16 of the amended defence was pleaded: see p. 45 of the transcript.
The plaintiff’s application therefore fails, except in respect of one imputation pleaded by the defendants in advancing the Polly Peck defence. I shall invite further submissions on the form of the order and costs.
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