Younan v Nationwide News Pty Ltd
[2003] NSWSC 1211
•16 December 2003
CITATION: YOUNAN v NATIONWIDE NEWS PTY LTD [2003] NSWSC 1211 HEARING DATE(S): 16 December 2003 JUDGMENT DATE:
16 December 2003JUDGMENT OF: Levine J DECISION: 1. In respect of imputation 5.3, verdict for the defendant.; 2. Imputation 5.4 is capable of being carried and capable of being defamatory.; 3. Imputation 5.5 has been abandoned.; 4. I direct the defendant to file its defence to the s7A issues by 31 January 2004.; 5. Pursuant to SCR Pt 31 r 2 I order a separate trial of the issues joined between the parties on the pleadings by a jury pursuant to s7A of the Defamation Act 1974.; 6. I place the matter in the list to be called up for that trial.; 7. Each party is to pay his and its own costs. CATCHWORDS: Imputations - capacity - capacity to be defamatory - police informer PARTIES :
RAYMOND MITCHELL YOUNAN
(Plaintiff)v
NATIONWIDE NEWS PTY LTD
(ACN 008 438 828)
(Defendant)
FILE NUMBER(S): SC 20232 OF 2003 COUNSEL: M B Evans
D Sibtain
(Plaintiff)
(Defendant)SOLICITORS: James A Hall
Blake Dawson Waldron
(Plaintiff)
(Defendant)
- Ex tempore: revised
[2003] NSWSC 1211
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST
JUSTICE DAVID LEVINE
TUESDAY 16 DECEMBER 2003
20232 OF 2003
RAYMOND MITCHELL YOUNAN
(Plaintiff)
NATIONWIDE NEWS PTY LTDv
(ACN 008 438 828)
(Defendant)
1 By Statement of Claim issued on 2 September this year the plaintiff sues in relation to a publication in the “Daily Telegraph” on 9 June. The text of the article is annexure A to these reasons.
2 The plaintiff pleads that the matter complained of carries of him the following defamatory imputations: first, “that the plaintiff is a thief”. No issue arises as to that imputation. Second, “that the plaintiff is a convicted criminal”. No issue arises as to that imputation.
3 Third, as pleaded, “that the plaintiff is a criminal informant”. An issue arises as to that matter on two bases: ambiguity by use of the word “criminal” in connection with “informant” and, in the event of the ambiguity being cured, whether or not an imputation of that kind is capable of being defamatory.
4 Mr Evans has conceded that the imputation more probably should be read to the effect that “the plaintiff is a police informant” or “is a person who provides information about criminals to the police”.
5 The test in determining whether or not an imputation is capable of being defamatory rests on the same foundation, as a matter of principle, as does the test for whether an imputation is carried: the foundation is reasonableness. The matter complained of is clearly capable of carrying the meaning that the plaintiff is a police informant.
6 When, however, one asks the question: whether the ordinary reasonable sensible member of the community, the right thinking citizen who constitutes the standard in this area, think the less of a person who is an informant to police, the answer in my view must be “no”. That the criminal community would regard such a person, in its own parlance, at the very least, as a “dog”; that the criminal community would so despise any person of whom that is said, to the point that its vengeance would be wreaked upon that person, is not the proper and available test and does not reflect the reasonable right thinking segment of the community.
7 Accordingly, in relation to imputation 5.3, there will be a verdict for the defendant on the basis that in its amended form, as a matter of law, it is incapable of being defamatory.
8 The fourth imputation is “that the plaintiff is an associate of criminals”. On a capacity argument I am of the view that the matter complained of can be just to get there and to carry that meaning. When one reads it overall and understands it being said of the named plaintiff that he was an intermediary, there is an available and legitimate inference that he is so within the milieu of criminality and that the police are content to use him in that capacity.
9 Accordingly, I find the matter complained of capable of carrying imputation 5.4 and I find it to be capable of being defamatory.
10 Imputation 5.5 has been abandoned.
11 Each party is to pay his and its own costs.
12 The defendant is directed to file its defences as to s7A issues by 31 January 2004.
13 Pursuant to Pt 31 r 2 I order separate trial of the issues joined between the parties on the pleadings by a jury pursuant to s 7A of the Defamation Act 1974 and place the matter in the list to be called up for that trial.
Appendix AThe “Daily Telegraph” 9 June 2003
Player sought over shooting
By Karla Lawrence
Police Reporter(Photograph caption) Home searched…police want to talk [sic] John Elias about a shooting
Police searched disgraced former rugby league forward John Elias’ home following the shooting of a Wood Royal Commission figure.
Ray Younan, who in the 1990s stole money given to him by police as part of a drug sting, was in hospital last night under police guard.
He was shot once in the thigh in a carpark behind a McDonald’s restaurant off Liverpool Rd at South Strathfield on Saturday.
The shooting occurred about 10.40am and the gunman is believed to have lain in wait.
Younan, 42, was taken to a hospital which has not been named to protect his safety.
It is understood that the motive for the shooting is unclear at this stage.
Police are waiting for Younan to be fit enough for questioning.
Meanwhile, police with a search warrant raided the Punchbowl address of John Elias, who lives with his mother, late on Saturday night.
They failed to find Elias and are still seeking to talk to him, believing he may be able to assist with their investigations into the shooting.
Elias, a high-profile former Balmain forward, was jailed for nine months in 1995 for drug and firearms offences.
He acted as a middle man in transactions with an undercover police officer involving military bullet-proof jackets and submitted-machine parts.
The player was also charged with supplying amphetamines.
In 1993, Elias was sentenced to two years’ periodic detention for demanding money with menaces after masquerading as a police officer in an area frequented by homosexuals.
Younan was named in the Wood royal commission [sic] as acting as an intermediary for police in a bungled drug sting.
During the sting, $340,000 in cash was given to Younan – who was acting as a police informant. He was to use the money to trap drug dealers into making a sale.
But the money was stolen under the noses of surveillance police and the royal commission [sic] was told police may have been involved in the theft.
Younan was charged and later convicted over the theft of the money.
Yesterday, a police spokeswoman said police were following a number of lines of enquiry over Saturday’s shooting.
“Nobody’s been arrested and inquiries are continuing,” she said. “The victim underwent surgery for something like four hours [on Saturday] night to his thigh and remains in hospital in a serious condition.”
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Last Modified: 12/18/2003
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