TCN 9 Pty Ltd v LOOSLEY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL PRIESTLEY, CLARKE and CRIPPS JJA 15 September 1992, 9 October 1992 [1992] NSWCA 247 Defamation — imputation that respondent had perverted the course of justice in that he had conspired with others to arrange for the payment of money to Virginia Perger to induce her to falsely plead guilty to a charge of wilfully and corruptly making false statements concerning the respondent — whether such imputations capable of being conveyed in these television broadcasts. Held: (Clarke and Cripps JJA, Priestley JA contra) while the second broadcast (the interview) was capable of conveying an imputation of conspiracy it was not capable of conveying an imputation that the respondent was a party to that conspiracy — the other two broadcasts were also incapable of conveying the imputation. Farquhar v Bottom (1980) 2 NSWLR 380; Mirror Newspapers Ltd v Harrison 149 CLR 293. Priestley JA The question argued in this application for leave to appeal concerned matter alleged by Mr Stephen Loosley ("the plaintiff') to have been published of him by the first defendant TCN Channel Nine Pty Ltd ("Channel 9") and the second defendant Transmedia Productions Pty Ltd. The precise question was whether the matter published was capable of bearing a particular imputation defamatory of the plaintiff. At first instance, Abadee J, after a separate trial of the capacity of the matter complained of to convey the imputation, had held that it was capable of doing so. The defendants sought leave to appeal against that finding. The argument in this court was within narrow boundaries, and the parties said that if the court thought leave should be granted, then the appeal could be decided without further argument, it being agreed that all matters relevant to an appeal had already been fully argued. The imputation in question was singled out for argument before Abadee J in the following circumstances. On 10 May 1988 at approximately 6 pm, Channel 9 transmitted the Channel 9 News. In para6 of his statement of claim the plaintiff alleged that matter published of and concerning him during that news programme contained three imputations defamatory of him. The matter said to contain those imputations was as follows: "NEWSREADER: Police have reopened enquiries into the Love Boat allegations that senior Labor Party figures had sex with a prostitute on Sydney Harbour. Virginia Perger was charged with making false statements against 8 prominent people including Graham Richardson, Stephen Loosley and Frank Walker. She eventually pleaded guilty. The new investigation concerns the large amount of money paid just before that guilty plea into a bank account operated by Ms Perger and former boyfriend Joe Meissner. To most people the Love Boat scandal ended in 1986 when Virginia Perger pleaded guilty to making false statements. But in an exclusive interview today she says that she was telling the truth all along and can't say publicly what made 2 UNREPORTED JUDGMENTS her plead guilty. She admits receiving $15,000 3 days before the case, but claims it was from a friend to cover court costs. PERGER: I walked into a court and I said 'guilty'. And that is all I ever said. Now if I had been put in a box I would've elaborated and I would've said why I was pleading guilty. NEWSREADER: In court Perger was described as 'an habitual liar'. It is an image she wants desperately to erase. She freely admits to being a prostitute and heroin user. But claims she no longer takes drugs. As for that infamous Love Boat Sex Cruise she has revealed for the first time there were no orgies, just a series of individual assignations. PERGER: Its just not politicians. I mean that you will find out that PM's do it. Everyone does it. It's the oldest thing in the world - prostitution. NEWSREADER: And she also reveals there was a second woman on the boat on some of the trips. The mystery second woman worked on the Boat as a waitress. Police believe she is now married and living in another State. POLICE: We have attempted to locate her. We have a description of her. And presently we are still trying to find her. NEWSREADER: Police are taking Ms Perger's claims seriously. The new investigation has resulted in 160 people being interviewed. But the biggest stumbling block continues to be photographs allegedly taken during the cruises. Ms Perger says they exist showing people in various states of undress. PERGER: They are not rude photos. They are not sexual photos. They are just fun photos... all I would say is someone has got some clothes off. You photograph them in their Birthday Suit. NEWSREADER: Police say they have yet to see any evidence. In the 2 years since her court case she constantly regretted pleading guilty and is now prepared to tell everything she knows." Para7 of the statement of claim then set out the three alleged imputations. The imputation in question in the present proceedings was the third of the three. It said: "(c) That the plaintiff had perverted the course of justice in that he had conspired with others to arrange for the payment of moneys to Virginia Perger in order to induce her to falsely plead guilty to a charge of wilfully and corruptly making false statements concerning the plaintiff. " An hour after the Channel 9 News, Channel 9 transmitted a television programme known as "A Current Affair", produced by the second defendant. Part of this programme referred to the plaintiff. Later again that same night, at approximately 10.30, in "Graham Kennedy's News Show" some of the same matter referring to the plaintiff which had been published in A Current Affair was allegedly again transmitted by Channel 9. The plaintiff alleged in parall of his statement of claim that the matter complained of in the two programmes, A Current Affair and Graham Kennedy's News Show contained four defamatory imputations. Three of these were the same as those allegedly contained in the matter complained of in the transmission of Channel 9 News. Thus the imputation set out in paral1(d) was in the same terms as that alleged in para7(c). The matter complained of as published in the Current Affair programme was as follows: URJ TCN 9 Pty Ltd v LOOSLEY (Priestley JA) 3 "JW: It was dubbed The Love Boat Scandal. Allegations by a Sydney prostitute in 1985 that she had indulged in sex romps with prominent politicians aboard a cruise boat on Sydney Harbour. Virginia Perger was later charged with wilfully and corruptly making false statements against 8 men, including former NSW Att Gen Frank Walker, ALP State secretary Stephen Loosley, Sen Graham Richardson and Federal MP Leo MacLeay. In court she eventually pleaded guilty and was placed on a 2 year good behaviour bond after her lawyer stated that 'she had difficulty separating reality from delusion'. Now police are investigating a new development in the Love Boat Affair. It has been revealed that 3 days before she changed her plea to 'guilty' Virginia Perger received a payment of $15,000. She agreed to this interview: JW: Thanks for your time tonight. In 1985 you made some very serious allegations about members of the Labor Party. VP: Yes. JW: You agree they were serious? VP: I believe they were serious. Yeah. JW: The allegations were that you had sex with some members of the ALP. VP: That is correct. JW: Did you believe that those allegations could do serious damage to those people that you named? VP: Not at the time - I didn't think serious damage - but yes, sort of. JW: Well what did you think the repercussions would be for them? VP: A slap on the wrist from their wives. You know. I didn't really think much... I didn't think much of it, to tell you the truth. I just thought it was a good time - and good money. JW: Why did you speak out about what you alleged had happened aboard the so called Love Boat then? VP: Well a reporter got me off hand at Kings Cross and it just happened I suppose. I don't know what made me sit down and talk about it. I suppose drugs did at the time. I was using heroin. JW: Well, you then withdrew what you claimed are facts. Did anyone else convince you that you should change your plea? VP: Well I had a talk with Joe Meissner and I spoke to a few other people and like a suggestion from friends, financially and that, that I couldn't afford the court case and that it could drag on and that. JW: There was some money, wasn't there, deposited into a joint account that you had. An account that you had with Joe Meissner. VP: That's correct. JW: How much was that? VP: It was $15,000 which Joe had loaned me over the time to pay my legal costs and rent and that because I couldn't work and that... because of all these things that were happening so I was very frightened. JW: So that amount of money was given to you by Joe Meissner. VP: Yeah. He said "here is some money to look after yourself". Well, I asked for a loan and he gave me a loan for that amount though I didn't ask for that much. But he gave me that amount. JW: Alright, that money went into your account and 3 days later you retracted your story. VP: Yeah, I did. I don't think anything of it at the time. I don't believe that Joe bought me off at that time. But as like time goes fast and my mind, I believe is different now. 4 UNREPORTED JUDGMENTS JW: You say that Joe Meissner deposited that $15,000 in that account. VP: Yes that is right, with me present. JW: Do you have any reason to believe that that money came from elsewhere? VP: No. JW: Do you believe that it was supplied by Joe Meissner? VP: That is right. JW: Do you know where Joe Meissner got it? VP: No. JW: Have you ever asked him? VP: No. JW: No? VP: I haven't asked him actually. He makes a lot of money in his building business. But I have not asked him that. JW: Well, you now say that the money was a bribe. VP: Yes, I do believe it. JW: Are you then saying that Joe Meissner bribed you? VP: I don't know. I don't know where it come from. JW: Right. Are you now saying that everything you "it did happen" said about the Love Boat, so called, happened? VP: Ah ha. JW: Are you prepared to stick by every single one of those allegations? VP: It happened. It is a fact. As I said in my interview to the police and I also believe now that the police believe me. JW: I can't say that what you claimed happened on board the so called Love Boat happened because I wasn't there. VP: That's correct, yeah. JW: Nobody listening to you was there. VP: Ummm. JW: Why, why should they believe you? VP: They know that everyone plays in the mud - it's just a matter of whether you get caught in the mud. And its - well I know it happened - and that is good enough for me. And they know it happened - in their hearts they know it happened. JW: Your critics would say that you probably concocted a fantastic story about all these politicians just to do them damage. VP: They must have a fantastic imagination. JW: Well your own lawyer at the time, Chris Murphy, when you retracted your story, said that you had psychological problems. VP: Well I had a heroin habit at that time just before - not during the Love Boat court case. But if you call that - well yeah I did. JW: Well he also said that you had problems distinguishing reality from fantasy. VP: That is crazy. He's crazy - (inaudible)... know when a horse's winning for sure. I know not. JW: This was your own lawyer at the time. VP: Yeah. I sat back and let everyone call me what ever they wanted to. I just want people to know that I am not an habitual liar. It did happen. It is facts. Everyone plays around for God Sake. Even priests do it I guess - I don't know. Everybody does it. URJ TCN 9 Pty Ltd v LOOSLEY (Priestley JA) 5 JW: Let's look at this from an outsider's point of view. You tell this seemingly fantastic story. You retract that story and then now you are retracting the retraction. Should we believe you? VP: I would like you to. I would like you to because it is true. That is all I can say. JW: Are photos taken at sex parties like this... VP: Yeah, there are many. JW: Regularly? VP: In positions and that, yeah. Heaps. JW: And how big is your collection of photographs? VP: Was pretty big it isn't now. JW: And do you have photos of some of the men that you have named? VP: I don't have photographs but they were taken of those people that I mentioned. JW: Who has the photos? VP: I don't know at this stage. JW: Do you think Joe Meissner has the photographs? VP: I don't know. JW: What do you think could be the consequences for these politicians? VP: I don't understand what trouble they can get into. Apart you know, you are a very naughty boy... and getting into trouble off the Prime Minister. JW: But you know it is more serious than that in public life? VP: Yeah, it is. What can happen? Can they be stripped of their position or something? JW: It is quite possible isn't it? VP: For playing around? JW: It is possible. VP: Well, they shouldn't have played around." The parties joined in asking the court to allow video tapes of the matter complained of to be played in court before the argument began. The court agreed to this, and thus had the benefit of seeing and hearing the matter complained of, as well as of reading it. The defendants did not seek to make any point about the possible complications flowing from the way the second and third transmissions were treated together in paral1 of the statement of claim. They confined the argument to three submissions: first, that the material from none of the three broadcasts was capable of conveying an imputation of conspiracy; second, if the materials were capable of conveying such an imputation, they did not carry the imputation that the plaintiff was a party to the conspiracy; third, that at the very worst from the defendants' point of view the only imputation involving both conspiracy and the plaintiff that could be conveyed by any of the materials (and this was in any event denied) was that there was a suspicion or a case for investigation of there having been a conspiracy in which the plaintiff was a party. (The third submission seems to me to be really a way of stating an argument supporting the second submission.) As to the first submission, it seems to me that each of the broadcasts could reasonably be understood as carrying the plain message that particular people had caused money to be paid to Miss Perger to plead guilty to a charge of which she believed she was not guilty. Putting this in terms of the formula used in these cases, it seems to me to be well open to a reasonable jury to think that the allegation of conspiracy was conveyed by the broadcasts. 6 UNREPORTED JUDGMENTS The second submission is more difficult. Looking at the text of the 6 pm broadcast by itself, what must particularly be considered are the first paragraph, then the paragraph in which the news reader said police were taking Miss Perger's claims seriously, and the last paragraph. The last paragraph has the news reader saying that Miss Perger claims she pleaded guilty to something of which she was not guilty. In context this is reasonably open to being understood as a statement that Miss Perger asserted the eight prominent people including the plaintiff who had been named earlier had been engaged in the conduct the subject of the false statements with which she had been charged. The paragraph in which the news reader asserted that police were taking Miss Perger's claims seriously, and which gave some detail to show that an extensive investigation of her claims was under way, added further weight to Miss Perger's claim that what she had originally said was true and that in pleading guilty to the charges of making false statements she had, inter alia, been misleading the court. The first paragraph provided the main material for holding that the first broadcast carried the imputation denied by the defendant's first submission; that is, for holding that a reasonable person could justifiably think the broadcast clearly conveyed the message that Miss Perger did what she did in the way of pleading guilty because she had been paid to do it. The reasonable person could well also think that the people who stood to gain from Miss Perger's plea of guilty were the eight prominent people referred to immediately before the mention of "the large amount of money paid just before that guilty plea' to Miss Perger and Mr Meissner. The closeness in the broadcast of the plaintiffs name and the assertion of the large amount of money paid to Miss Perger and Mr Meissner just before the guilty plea struck me more forcibly when I saw and heard the tape of the broadcast played in court than when I had skimmed the text of the transcribed broadcast. Stated summarily, a person paying a moderate amount of attention to the broadcast would have taken in in quick succession: the plaintiff's name; the fact that Miss Perger had been charged with making false statements about him; that she claimed she had been paid to plead guilty to the charges although they were true; and that the police were taking her claims seriously. To my mind there is little help of any decisive kind to be had from looking at the allegedly defamatory materials in other cases and seeing what rulings were made on the question whether or not they were capable of conveying defamatory meanings to a reasonable person. Primarily, the facts of the present case must be looked at. Doing that here it seems to me that in the present case a reasonable television viewer would have been by no means irrational in thinking that the broadcaster was saying, in a partly indirect way, that the plaintiff was party to a conspiracy to pay money to Miss Perger so that she would plead guilty to having made false statements which in fact she believed to be true. I reach the same conclusion in regard to the matter complained of in the second broadcast. (In view of the way the third broadcast was treated in the statement of claim, it will not be necessary to deal with it separately.) The publication in the Current Affair programme showed Miss Wendt asking Miss Perger a series of questions which a viewer could reasonably think were obviously designed to suggest that no matter what Miss Perger's answers might be the fact was that she had taken money to change her plea to guilty and, (less plainly) that it must have been the people she had named in Miss Wendt's introduction, including the plaintiff, who were URJ TCN 9 Pty Ltd v LOOSLEY (Priestley JA) 7 responsible for the money having been paid to Miss Perger through Mr Meissner. Although I recognise that it is less plain that the words mean the plaintiff was a party to the conspiracy than that the conspiracy existed, nevertheless I think the words are sufficient for a reasonable person to gather that meaning from them. Further, it struck me that a reasonable viewer would get a clearer impression of what Miss Wendt was driving at from the actual broadcast than a reader gets from looking at the transcript of the broadcast. In support of their second submission the defendants relied on the well known passage in the reasons of Mason J in Mirror Newspapers v Harrison (1982) 149 CLR 293 at 300-301: "As we have seen, there is now a strong current of authority supporting the view that a report which does no more than state that a person has been arrested and has been charged with a criminal offence is incapable of bearing the imputation that he is guilty or probably guilty of that offence. The decisions are, I think, soundly based, even if we put aside the emphasis that has been given to the process of inference on inference that is involved in reaching a contrary conclusion. The ordinary reasonable reader is mindful of the principle that a person charged with a crime is presumed innocent until it is proved that he is guilty. Although he knows that many persons charged with a criminal offence are ultimately convicted, he is also aware that guilt or innocence is a question to be determined by a court, generally by a jury, and that not infrequently the person charged is acquitted. In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader." I do not think that this passage assists the defendants in the circumstances of the present case. Mason J was pointing out that a statement by a journalist which does no more than say someone has been arrested and charged with a crime can not of itself carry the meaning that the person is guilty of the crime. Before that thought can be arrived at the person must add to the meaning in the statement some further thought, such as "the charge wouldn't have been laid unless the person was guilty" or "this journalist wouldn't have reported this unless the person was guilty". That is, more than the material itself is needed to raise the message in the reasonable reader's mind. 8 UNREPORTED JUDGMENTS In the present case the material complained of did far more than state facts amounting to a charge and a charge only. The materials were reasonably open, in my opinion, to be regarded as carrying the suggestion that the plaintiff had indeed done what it was being suggested he had done. The present case is closer to the type of case referred to by Mason J in the paragraph preceding those set out above. He there said that a case such as Harrison was to be distinguished from "rumour" cases. He went on: "The essence of those cases is that the defendant gives his imprimatur to the rumour; by passing it on he gives it credence, implying that it is well founded or that it may be so. " (at 300) The present case is not precisely a "rumour" case but sufficiently analogous to it to warrant adopting Mason J's words and saying that the defendants by the way they passed on Miss Perger's claims could reasonably be regarded as giving them credence and implying that the plaintiff was in fact a party to the conspiracy which, although she did not use the word, was necessarily involved in what Miss Perger was saying. The conclusions I have reached lead me to think that the application for leave to appeal should be dismissed with costs. Clarke JA The three programmes which led to the proceedings instituted by the respondent were transmitted during the 6pm news, at about 7pm during "A Current Affair" and at about 10.30pm in the "Graham Kennedy's News Show" respectively. The argument proceeded upon the basis that they were separate publications and it is convenient to adopt the same approach. The respondent's case is strongest in respect of the second programme, that is the segment of "A Current Affair" and I will deal initially with the capacity of that programme to convey the disputed imputation which reads: "The plaintiff had perverted the course of justice in that he had conspired with others to arrange for the payment of moneys to Virginia Perger in order to induce her to falsely plead guilty to a charge of willfully and corruptly making false statements concerning the plaintiff". Senior Counsel for the appellant made three submissions. First, he said that the interview between Miss Jana Wendt and Miss Perger was incapable of supporting an imputation of conspiracy. Secondly, he contended that even if such an imputation could be derived from the interview there could be no derivation of a conspiracy in which the respondent was a party and, thirdly, he submitted that, upon the basis that both the above submissions were rejected the interview was incapable of conveying the imputation that the respondent had participated in the conspiracy. In my opinion the interview was capable of conveying an imputation of conspiracy to pervert the course of justice. I say this despite the fact that Miss Perger said on more than one occasion that Joe Meissner had given her the money as a bribe and did not assert that other persons had been involved. But the thrust of the interview was clearly to extract from Miss Perger some sensational piece of new information. In order to achieve her obvious purpose Miss Wendt probed Miss Perger at length with a view to finding out the source of the moneys which Meissner had paid to Miss Perger. Initially Miss Perger responded to the probing by saying that she thought the money had come from Meissner but later she qualified that by saying that she did not know where the money came from. Having regard to those questions and answers in the context of the whole of the interview I do not think a listener would require a great imagination to discern the URJ TCN 9 Pty Ltd v LOOSLEY (Clarke JA) 9 strong suggestion being conveyed that someone had arranged with Meissner to pay the money to Perger to (and here I am using her language) "buy her off'. In this context it is helpful to recall the principles bearing on the question whether the words are capable of conveying the imputations relied upon. They are conveniently gathered together in the judgment of Hunt J in Farquhar v Bottom (1980) 2 NSWLR 380, at 385: "(21) In deciding whether the matter complained of is capable of conveying to the ordinary reasonable reader the imputations relied upon by the plaintiff, I must be guided and directed by the test of reasonableness. I must reject any strained, or forced, or utterly unreasonable interpretation: Jones v Skelton (1963) SR (NSW) 644, at 650; 80 WN 1061, at 1065, 1066. I must proceed upon the basis that the ordinary reasonable reader is a person of fair, average intelligence: Slayter v Daily Telegraph Newspaper Co Ltd, (1908) 6 CLR 1, at 7; who is neither perverse: ibid; nor morbid or suspicious of mind: Keogh v Incorporated Dental Hospital of Ireland (1910) 2 IrR 577, at 586; nor avid for scandal: Lewis v Daily Telegraph Ltd (1963) 1 QB 340, at 260. (22) This ordinary reasonable reader does not, we are told, live in an ivory tower. He can, and does, read between the lines, in the light of his general knowledge and experience of worldly affairs: Lewis v Daily Telegraph Ltd (1963) 1 QB 340, at 258; Jones v Skelton (1963) SR (NSW) 644, at 650; 80 WN 1061, at 1065, 1066; Lang v Australian Consolidated Press Ltd (1970) 2 NSWR 408, at 412. It is important to bear in mind that the ordinary reasonable reader is a layman, not a lawyer, and that his capacity for implication is much greater than that of the lawyer: Lewis v Daily Telegraph Ltd (1963) 1 QB 340, at 277; Morgan v Odhams Press Ltd (1971) 1 WLR 12339, at 1245; (1971) 2 All ER 1156, at 1163; Lang v Australian Consolidated Press Ltd (1970) 2 NSWR 408, at 412; Middle East Airlines Airliban SAL v Sungravure Pty Ltd (1974) 1 NSWLR 323, at 340. (23) In what might be described as 'newspaper' cases (of which this present case is not one), further questions may arise as to the care with which the ordinary reasonable reader would have read a sensational article, and as to the degree of analytical attention he would apply to it; Morgan case (supra, at 1254, 1269; 1170, 1184); and as to the degree of accuracy he might have expected of that article (supra, at 1270; 1184); Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348, at 373. The ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking: Morgan's case (supra, at 1245; 1163) following Lewis v Daily Telegraph Ltd (1963) 1 QB 340, at 277; Steele's case (supra); Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 53 ALJR 243, at 246; Parker v John Fairfax and Sons Ltd (Court of Appeal, 30 May 1980, unreported)." It would, in my opinion, be open to the jury to regard this as a sensational interview and to regard the reasonable listener as approaching it with a fair degree of loose thinking. Even if the test was more restrictive it would seem to me that the suggestion of an underlying conspiracy was conveyed in fairly strong terms. The more difficult question is whether it would be open to a jury to conclude that those involved in the interview were conveying that the respondent was a participant in that conspiracy. The imputation which the respondent seeks to support is that he had conspired with others to effect payment of a bribe. Such an imputation must, of course, be distinguished from a lesser one such as that he was suspected of being involved or that he was possibly, or probably, involved. Nowhere does either the interviewer or Miss Perger say that the respondent paid 10 UNREPORTED JUDGMENTS or arranged payment of the bribe moneys nor do either of them hint that that might have been the position. The imputation has to be supported, if it can be, by the combination of the naming of the respondent as a person who clearly would have benefited from Miss Perger pleading guilty and the strong suggestion in the probing interview that Meissner had arranged with others the payment of the bribe. I can accept that the conjunction of the naming of the respondent as a person who would have benefited from a plea of guilty and the suggestion that there had been a conspiracy was capable of casting a slur upon the respondent, such as that he was possibly involved in the conspiracy or was an obvious suspect, but I am unable to agree with the suggestion that what was said in the interview was capable of being understood by the reasonable listener as conveying the respondent's actual involvement in the conspiracy. There was, for instance, nothing said to indicate that all eight of the men who would have benefited, or even all the four named men, had conspired with Meissner nor is there anything in the interview itself which points the finger of suspicion at any one or more of the eight men. The connection between the suggestions of conspiracy and the eight men go no further than that each of them may have benefited from the plea of guilty which was duly entered by Perger following receipt of the sum of $15,000. If a viewer had concluded after seeing and hearing the interview that it had accused the respondent of involvement in a conspiracy to pervert the course of justice that conclusion would, in my opinion, be because the interview excited a belief or prejudice in the viewer from which he or she reached the conclusion unfavourable to the respondent and not because anything said in the interview was capable of conveying that imputation (see Mirror Newspapers Ltd v Harrison 149 CLR 293, at 301). It is sometimes said that the question with which I am presently concerned is to be resolved as a matter of impression. I think there is much force in this statement provided that the distinction of which Mason J speaks in Harrison in the passage to which I have referred is borne steadfastly in mind. I should say, however, that I do not consider that there was anything in the way that the interview was developed, either in the form of gestures, or tone of voice or in any other way, that was capable of creating an impression of the respondent's actual involvement in the conspiracy. I would conclude, therefore, that the interview was not capable of conveying the imputation the subject of the present appeal. Nor, in my view, were the other two telecasts capable of conveying that imputation and I would propose that leave to appeal be granted, that the appeal be allowed, and the judgment of Abadee J be set aside and in lieu thereof I would order that the imputations pleaded in para7(c) and paral1(d) of the amended statement of claim should be struck out. The respondent should pay the appellant's costs of the separate trial and the appeal and is to have a certificate under the Suitors Fund Act in respect of the costs of the appeal. Cripps JA The terms and circumstances of the publications have been set out in the judgment of Priestley JA. It is not disputed that the published matter in each case is capable of conveying imputations of sexual immorality and obscene conduct by the respondent. The question is whether all or some of the publications are capable of conveying the imputation that the respondent "had perverted the course of justice in that he had conspired with others to arrange for the payment of money to Virginia Perger to induce her to falsely plead guilty to a charge of wilfully and corruptly making false statements concerning (him)". URJ TCN 9 Pty Ltd v LOOSLEY (Cripps JA) 11 If the impugned imputation is not capable of being conveyed by the second publication, it is not capable of being conveyed by the first or third. If it is capable of being conveyed by the second, it is conceded that it is capable of being conveyed by the third. The appellant submits that even if it is capable of being conveyed by the second or third, it is not capable of being conveyed by the first. It is unnecessary for me to deal with each programme because I have come to the conclusion that the imputation is not capable of being conveyed by the second publication. As the authorities make clear, an imputation should not be withdrawn from a jury if it is open to the ordinary reasonable viewer to conclude that it arose out of the published matter. The principles upon which a court must act are collected in Farquhar v Bottom [1980] 2 NSWLR 380. Mostly they serve to remind a judge that he or she must not substitute his or her own opinion for that of the jury. They also make it clear that in its determination, the court must reject strained or forced interpretations and be guided by reasonableness. On behalf of the respondent, Mr Douglas QC has submitted that the second publication conveyed that Ms Wendt was asserting that Ms Perger was bribed and that although Ms Perger was reluctant to disclose who was involved she, Ms Wendt, would reveal it in her cross examination of Ms Perger. He submits that it would be open to a reasonable viewer to conclude that the people Ms Wendt had in mind were the eight people referred to at the beginning of the programme. In Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 at 301, Mason J said: "A distinction needs to be drawn between the reader's understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition." The Court is concerned with the imputation as pleaded. It is not concerned with what imputations might have been pleaded. The observation I am about to make, therefore, is not intended to be an opinion of what imputation is capable of arising; its purpose is to explain why I think the imputation pleaded is not capable of being conveyed by the published matter. I am prepared to accept that the published material is capable of conveying a suspicion of a conspiracy with respect to the payment of money to Ms Perger to persuade her to plead guilty. I am also prepared to assume that a reasonable viewer would conclude that the four named and the four unnamed persons may have had some improper involvement in the matter. However, I do not think the published matter is capable of conveying the imputation that one of the eight persons referred to (viz the respondent) had conspired with others to arrange for the payment to Virginia Perger to induce her to plead guilty to the charge of wilfully and corruptly making false statements concerning him. In my opinion, this last imputation is not capable of being covered by the published matter. The fact that the published matter may incite in some viewers what Mason J in Harrison described as a "belief or prejudice" from which they 12 UNREPORTED JUDGMENTS may then conclude that what is suspected must be so does not make it an imputation an ordinary reasonable viewer, drawing on his or her own knowledge of human experience and events, would find. In the present case, if a person concluded that the respondent had, in fact, done what the imputation suggests, that must be because that is what that person wants to read into it. The defamatory quality of the published material is, as Mason J observed, to be determined by what an ordinary reasonable viewer would see in it. My conclusion is that the second programme was not capable of conveying the imputation referred to above. That being so, it does not arise out of any of the programmes. The order I would propose is that leave to appeal be granted, that the appeal be allowed and that the judgment of Abadee J be set aside and in lieu thereof I would order that the imputations pleaded in para7(c) and paral1(d) of the amended statement of claim be struck out. The respondent to pay the appellant's costs of the hearing before Abadee J and the appeal and to have a certificate under the Suitors Fund Act 1951 with respect to the costs of the appeal. 1. Leave to appeal be granted; 2. The appeal be allowed; 3. The judgment of Abadee J be set aside and in lieu thereof order that the imputations pleaded in para7(c) and paral 1(d) of the amended statement of claim should be struck out; 4. The respondent should pay the appellant's costs of the separate trial and the appeal and is to have a certificate under the Suitors Fund Act in respect of the costs of the appeal. Counsel for the Appellant: I CALLINAN QC and L McCALLUM Instructed by: PHILLIPS FOX Counsel for the Respondent: F DOUGLAS QC and R MORLING Instructed by: McCLELLANDS