Spedding v Nationwide News Pty Ltd

[2018] NSWSC 844

Supreme Court

New South Wales

Medium Neutral Citation:	Spedding v Nationwide News Pty Ltd [2018] NSWSC 844
Hearing dates:	18 May 2018
Decision date:	18 May 2018
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	The plaintiff’s imputations specified in [9] and [13] of the statement of claim will go to the jury
Catchwords:	DEFAMATION – imputations – whether reasonably capable of being conveyed by the matter complained of – insinuation of sinister meaning by combination of photographs and juxtaposition of seemingly irrelevant fact with report of police investigation
Legislation Cited:	Crimes Act 1900 (NSW)
Cases Cited:	Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 Jones v Skelton [1963] 3 All ER 952 Rayney v The State of Western Australia (No 9) [2017] WASC 367
Category:	Procedural and other rulings
Parties:	William Spedding (plaintiff) Nationwide News Pty Ltd (defendant)
Representation:	Counsel: L Goodchild (plaintiff) M Cowden (defendant)   Solicitors: O’Brien Solicitors Pty Ltd (plaintiff) News Corp Australia Editorial Legal Office (defendant)
File Number(s):	2018/91441
Publication restriction:	None

Judgment – EX TEMPORE

1. HER HONOUR: These are proceedings for defamation commenced by Mr William Spedding against Nationwide News Pty Ltd in respect of articles that appeared in The Daily Telegraph online. The proceedings are before the Court today for the first listing.

2. The defendant submits, as to each of the two matters complained of, that the single imputation specified by the plaintiff is not reasonably capable of arising from either matter complained of. In accordance with the ordinary procedure in this list, that issue will be ruled on as a separate question on the legal issue of capacity.

3. Both articles concern investigations undertaken by police in respect of the disappearance of a young boy, William Tyrell, from the State's mid-north coast. The articles identify the plaintiff as a "person of interest" in that investigation.

4. The articles, published in early March 2015, reported renewed attempts by police to find what they then expected to be the deceased body of the child. Police undertook the renewed searches following the receipt of information which had (so it was reported in the newspaper) given them the confidence to devote "a large number of resources" to those searches.

5. The single imputation specified in respect of each matter complained of is that the plaintiff is a paedophile. That imputation is alleged to arise from a combination of features of each article.

6. I deal first with the second matter complained of, which is annexure B to the existing statement of claim. The article appears under the headline:

“William Tyrell: Police revisit home of 'person of interest' Bill Spedding as search for missing boy widens.”

7. The text is relatively sparse; most of the article consists of photographs.

8. The commencement of the article features a prominent photograph of Detective Inspector Gary Jubelin. There is a report about the searches undertaken by police, including divers. There is then a photograph of a man identified as the plaintiff standing next to a work van on which may be seen, in mirror writing, the word "PEDDO'S". There is then a series of photographs of police and then three further photographs depicting the plaintiff, one standing with his wife, one standing in front of the van from the side and another with his back turned to the camera, again showing the words on the van, in mirror writing, "PEDDO'S HIRE".

9. The article concludes with the following words:

“Senior detectives visited his Bonny Hills property twice yesterday but did not speak with anybody. Mr Spedding has denied any involvement with William's disappearance. Asked yesterday why he had not repaired his work truck after the 'S' went missing from 'SPEDDO'S', he said simply: 'Please leave'.”

10. The defendant submits that those words and images are not reasonably capable of conveying the imputation that Mr Spedding is a paedophile.

11. The authorities to be applied in determining whether an imputation is reasonably capable of being conveyed by allegedly defamatory matter are well-known. Ultimately, as confirmed in the decision of the High Court in Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52, the test is one of reasonableness. The Court there, at [9], cited with approval the well-known passage from the decision of the Privy Council in Jones v Skelton [1963] 3 All ER 952 upholding or specifying a test to that effect.

12. The decision in Favell, apart from establishing the test to be applied, incidentally provides a helpful illustration of the application of that principle. That was a case in which a newspaper report concerning a fire which had taken place at the home of the plaintiffs juxtaposed discussion of the circumstances of the fire with seemingly irrelevant information about a dispute concerning a “controversial development application” regarding those premises. It was the juxtaposition of those two bodies of information which led the Court to conclude that the matter complained of was reasonably capable of imputing that it was the owners of the home who had started the fire.

13. Ms Cowden, who appears for the defendant, also drew my attention to the helpful summary of the relevant principles in the decision of the Supreme Court of Western Australia in Rayney v The State of Western Australia (No 9) [2017] WASC 367. The decision in that case emphasises the proposition, well understood from other authorities, that a bare report that a person has been arrested and charged with a criminal offence will not convey an imputation that the person is guilty of the offence.

14. The application of those principles to the present case, however, must be undertaken with some care. As astutely observed by Ms Goodchild, who appears for Mr Spedding, the imputation specified in the present case is not of the commission of a criminal offence. Paedophilia, in itself, is better understood as a state of mind of a person, being the state of mind of having a sexual interest in young children. It does not translate into a criminal offence unless and until a person acts on that state of mind, for example, in respect of a particular child or by internet activity prohibited under the Crimes Act1900 (NSW).

15. It is, nonetheless, relevant to bear in mind that the logic of the decisions dealing with distinctions between imputations of suspicion and imputations of guilt has some important application in the present case. Ultimately, however, each case must turn on its own facts.

16. In the present case, it seems to me that the ordinary reasonable reader could reasonably understand the second matter complained of to convey the imputation that Mr Spedding is a paedophile. That conclusion emerges from a combination of features of the article including the many photographs of Mr Spedding, the fact that the final photograph of him standing next to his van is, as Ms Goodchild submitted, completely unnecessary for the purpose of depicting him (since several other photographs do that) and serves only to illustrate the closing words of the article set out above and the juxtaposition of the seemingly irrelevant fact that the plaintiff had not repaired his work truck after the 'S' went missing from 'SPEDDO'S' with the balance of the story.

17. The closing words of the article, reporting a question apparently posed to the plaintiff by a journalist (as to why he had not repaired the word on his truck) plainly invite speculation on the part of the reader of the kind illustrated in the decision of the High Court in Favell.

18. I do not think it would be appropriate to withdraw the imputation from the jury and that is my ruling.

19. My ruling is the same in respect of the third matter complained of, which is annexure C to the original statement of claim. That article was presented in substantially the same form with the same words but with additional information about the search in question, including a report that police had introduced a "cadaver dog" to the search and again reiterating that they did not appear then to be expecting to find the boy alive.

20. For those reasons, the imputations specified in [9] and [13] of the existing statement of claim will go to the jury.

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Decision last updated: 06 June 2018