RIGBY v JOHN FAIRFAX GROUP PTY LTD and ORS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL KIRBY P, PRIESTLEY and MEAGHER JJA 12 December 1994 and 19 September 1995, 1 February 1996 [1996] NSWCA 450 DEFAMATION — pleading — imputations — imputations of guilt — report of arrest and charge — when imputation of guilt available — relevance of elaboration of news report — held: Imputations of guilt available — appeal allowed. LAW REFORM — defamation pleading — need for simplification. DEFAMATION — pleading — imputations — newspaper and television reports — report of teacher's arrest and charge of sexual assault against male pupils — teacher pleads imputations that he was guilty of assaults and conduct warranted allegations of sexual assaults — imputations of guilt rejected by judge in Defamation List (Levine J) — whether imputations available in the context of the publications complained of — held: (Priestley JA; Kirby P and Meagher JA concurring): (1) A report which does no more than to state that a person has been arrested and charged with a criminal offence is incapable of bearing the imputation of guilt. Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 applied; Rochfort v John Fairfax and Sons Limited [1972] 1 NSWLR 16 (CA); Wheelan v John Fairfax and Sons Limited (1988) 12 NSW LR 148 (SC) discussed; (2) Because of the elaboration of the reports in the instant case, the plaintiff could rely on the imputation of guilt so that it would be for the jury to determine whether the imputation was in fact established. Observations by the Court on the proper approach to pleadings of imputations in defamation. Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 (CA); Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 (CA) referred to. PRACTICE and PROCEDURE - defamation - pleading of imputations - report of arrest and charge on sexual criminal offences - report elaborated - whether plaintiff may rely on imputation of guilt - whether report within immunity for mere report of arrest and charge. Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 discussed. LAW REFORM - defamation - imputations - elaboration and cost and delay of interlocutory hearings - need for the primary of the jury - observations by Kirby P concerning excessive refinement of defamation pleading and cost and delay consequential thereon. Hepburn v TCN Channel Nine Pty Limited [1983] 2 NSWLR 682 (CA) and Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 (CA) referred to. Defamation Act 1974, s7A(3), 9. Supreme Court Rules, Pt31 R2. ORDERS 1. (a) Leave to appeal against so much of Levine J's O.1 as ordered imputation 4(c) not to go to the jury, granted; (b) Appeal against so much of Levine J's O.1 as ordered imputation 4(c) not to go to the jury, upheld; (c) So much of O.1 as refers to imputation 4(c) set aside; and (d) First defendant to pay costs of the appeal proceedings concerning O.1. 2. (a) Leave to appeal against Levine J's O.2 granted; 2 UNREPORTED JUDGMENTS (b) Appeal against so much of O.2 as struck out imputations 4(b) and 4(d) upheld; (c) So much of O.2 as struck out imputations 4(b) and 4(d) set aside; (d) Appeal against O.2 otherwise dismissed; and (e) First defendant to pay costs of the appellant's proceedings concerning O.2. 3. (a) Plaintiff's application for leave to appeal against Levine J's O.3 as to imputation 7(a) dismissed with costs; and (b) Second defendant's application for leave to cross-appeal against Levine J's 0.3 as to imputation 7(c) dismissed with costs. 4. (a) Plaintiff s application for leave to appeal against Levine J's O.4 granted; (b) Appeal against so much of O.4 as struck out imputations 7(b) and (d) upheld; (c) So much of O.4 as struck out imputations 7(b) and (d) set aside; (d) Appeal against O.4 otherwise dismissed; and (e) Second defendant to pay costs of the appeal proceedings concerning O.4. 5. (a) Plaintiffs application for leave to appeal against Levine J's O.5 dismissed with costs; and (b) Plaintiff s application for leave to appeal against Levine J's 0.6 dismissed with costs; 6. Levine J's O.7 to stand; the twenty-one days referred to in it will run from the date of this Court's orders; 7. 0.8 should be set aside, and in lieu (a) The first defendant should pay the plaintiff's costs of the first defendant's application before Levine J; (b) The second defendant should pay the plaintiff s costs of the second defendant's application before Levine J; and (c) The plaintiff should pay the third defendant's costs of the third defendant's application before Levine J. Kirby P JUDGMENT [1] This is yet another illustration of the "search for excessive precision in pleading in defamation actions" to which Hutley JA referred in Hepburn v TCN Channel Nine Pty Ltd [1983] 2 NSWLR 682 (CA), at 688. I have already raised my voice against such excessive refinement. Alas, to no avail. See Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 (CA), 151. I acknowledge that the ultimate source of this unsatisfactory jurisprudence in New South Wales was the enactment by Parliament of s9 of the Defamation Act 1974. By that provision, a person against whom a defamatory imputation has been made by the publication of any matter has a cause of action against the publisher in respect of that imputation. It is this provision which has led to the attempts to nail plaintiffs down to specified imputations which are then parsed and analysed in repeated interlocutory hearings in the Defamation List. Instead of the tribunal of fact (judge or jury) responding to the matter complained of as the ordinary reader, listener or viewer might do, he or she is confronted by lawyers' detailed expositions of what the matter complained of really said and implied. If this appears to undermine a rational response to the evaluation of allegedly defamatory matter, its reason, clearly enough, was to provide a judicial filter against what was feared to be jury misinterpretation of, or over-reaction to, matters complained of as embellished by counsel's flights of advocacy. REPORTS OF ARREST AND IMPUTATIONS OF GUILT [2] There may be reasons of legal policy, grounded in our history, past practice, modern communications technology and the open administration of justice, to exempt from liability in defamation the publication of the simple fact that a person named has been charged and brought before a court. But to say that. in every case, such information is incapable of bearing the imputation that the URJ RIGBY v JOHN FAIRFAX GROUP PTY LTD and ORS (Kirby P) 3 person charged is guilty or probably guilty of that offence is a conclusion which rests more on judicial thinking, lawyerly refinement and, perhaps, defence of open justice than it does upon a real description of what the average Australian citizen probably thinks when he or she reads, hears or sees a report of that fact. If well informed about the justice system, with a lot of time to think about the matter, that citizen may indeed consider the legal presumption of innocence the instances of police and prosecution mistakes and the accused's chances of acquittal. But the citizen will also know that an expert professional police and prosecution service will ordinarily not cause a person to be charged unless they have what they feel is sufficient evidence to support proof of the charge, that the whole weight of the State is then pitched against the accused and that the overwhelming majority of people charged either plead guilty or are found guilty. If the remedy in defamation is to redress harm actually done to the reputation of an individual (as distinct from only harm that should be done or that lawyers feel might be done) it would be left to the tribunal of fact in every case to decide what the ordinary reasonable reader, listener or viewer would understand to be the imputations of the matter published. A good illustration of the point I am making is found in the decision of the High Court in Mirror Newspapers Ltd 17 Harrison (1982) 149 CLR 293 which is the judicial font from which this jurisprudence flows. As Priestley JA has demonstrated, by reference to the reasons at first instance of Hunt J ([1981] 1 NSWLR 628 (SC)), mostly reproduced by the High Court, ibid, 296, the matter actually complained of in that case went beyond a spare report that suspects in the bashing of Mr Peter Baldwin had been arrested and were shortly to be placed before a court. It will be rare indeed, in the current conventions of the media in this country, that a news report would stop there. Instead, the article carried a large photograph of Mr Baldwin after he had been bashed, described his suffering, outlining the detective work which had produced the arrests and containing a photograph of the plaintiff. With respect, it is a trifle puzzling that such a case could ever be described as one in which all that had been done was to report "the fact of arrest and charge". But that is the legal principle which Harrison stands for. To the extent that the publisher goes beyond such a factual report, it permits a finding that the imputation of its publication is not just that the accused has been arrested and is a suspect but that he or she is also guilty of the offence charged. The more melodrama and sensation, or prejudicial comment, in a news report, the more ready will the court be to permit the plaintiff to plead an imputation of guilt. After all; this merely ensures that the tribunal of fact can then decide whether the available imputation is in fact established. Cf Rochfort v John Fairfax and Sons Limited [1972] 1 NSWLR 16 (CA). This barren area of pleading jurisprudence will only be simplified (to the great reduction of costs, delay and complexity of defamation proceedings) when the courts adopt a broad view of the arguable imputations which the plaintiff in a defamation action seeks to urge upon the trial jury or judge for their acceptance. I am unimpressed by the complaint that this approach would unduly impede the reportage of matters of public interest, specifically in court proceedings of criminal cases. In many civilised countries, reports of arrests may be given but, until the accused is convicted, he or she is described only by initials. Such societies put a greater store than we do upon defending the presumption of innocence and confining trials to courtrooms. APPLICATION OF RULE TO THE PRESENT CASE 4 UNREPORTED JUDGMENTS [3] Having said this, it is now necessary to resolve the appeal before the Court by the application of the rather unsatisfactory rules which I have criticised. Measuring each of the matters complained of against the standard expressed in Harrison ("a report which does no more than state that person has been arrested and has been charged with a criminal offence") makes it clear that each of the publications went beyond such a report, immune to defamatory imputations of guilt of the person arrested. Priestley JA in his reasons has collected the embellishments in this case. I agree with them. I therefore agree that the imputations pleaded by the appellant were, in law, available to him. It will be for the tribunal of fact at the trial (in this case a jury) to decide whether what has been published is in fact defamatory of the appellant, by suggesting his guilt. The respondents will be perfectly entitled to urge upon the jury the kinds of considerations they mentioned to this Court: that it is known that people are sometimes wrongly arrested and charged and later acquitted, occasionally because it appears that they are wholly innocent. Unfortunately, such acquittals, when they occur, rarely attract anything like the same attention as the elaborated, sometimes sensational reports of the initial arrest and charge. It is to permit redress of the wrong that is then done to the individual that the law confines quite strictly its effective immunity from defamation imputing guilt to the reportage of an actual arrest and charge. The practice of the Defamation List should reflect that standard. It should not, by expanding the zone of immunity, and rejecting imputations which challenge it, encourage media reports which, under cover of reporting an arrest and charge, arguably impute the guilt of the accused. The determination of guilt must be zealously reserved to the criminal courts, judicial officer or jury. On the other hand, the Court must elaborate its practice keeping in mind the general principle of freedom of expression. It must also bear in mind such realities as the widespread practice of other countries (whose media reports are republished here) and the legitimate public interest in the doings before the courts, particularly in matters of criminal justice. The kind of wrong against which a narrow approach to the imputation of guilt gives rise may be illustrated by the facts of this case. Although it was not strictly proved, the Court was told, without objection, from the Bar table, that, ultimately, the criminal charges against the appellant were not, in the event, proceeded with. This fact, if it be true, may illustrate a reason for giving the rule in Harrison the operation that its rather strict expression requires. ORDERS [4] On all other matters I agree in the reasons and conclusions of Priestley JA. I therefore agree with the orders which his Honour has proposed. Priestley JA BASIC FACTS [5] On 4 March 1992 John Fairfax Group Pty Ltd (the first defendant) published the following article in the Sydney Morning Herald. "Two Sydney school teachers have been charged with sexually assaulting students, after a police investigation that covered allegations stretching back to 1983. Barry John Lee, 44, has been charged with four counts of indecent assault on a male aged under 16 and with one count of sodomy. Raymond Rigby, 47, has been charged with sodomy. The pair pleaded not guilty to the charges in Sutherland Local Court late last month and have been bailed to appear again in fortnight. The charges arise from a lengthy investigation by the Sutherland police child-mistreatment unit. Police allege that complaints from several students about the men sparked the inquiries. URJ RIGBY v JOHN FAIRFAX GROUP PTY LTD and ORS (Priestley JA) 5 Both men have been suspended from teaching duties by the Department of School Education while the court case continues. The names of the schools at which the alleged offences occurred have been suppressed under the Child Abuse and Protection Act. However, the court was told that Lee was an English and history teacher at a Sutherland are high school. However, the court was told that Lee was an English and history teacher at a Sutherland area high school. Rigby had been transferred from a Sutherland are boys' school at a girls' school after the allegations were made. The men will answer the charges were made. The men will answer the charges in Sutherland Local Court in March 19." On 3 March 1992, Amalgamated Television Services Pty Ltd (the second defendant) telecast a news item dealing with the same subject matter. On 5 March 1992 Fairfax Community Newspapers Pty Ltd (the third defendant) published an article dealing with the same subject matter in the "St George and Sutherland Shire Leader". Mr R Rigby brought defamation proceedings against the three defendants in the one statement of claim. I will deal first with the claim against the first defendant. THE PLAINTIFF'S CLAIM AGAINST THE FIRST DEFENDANT. 6] In para4 of his statement of claim the plaintiff alleged that the first defendant's publication made the following imputations defamatory of him: 7] "(a) that he, a school-teacher, had betrayed the trust placed in him by teachers, parents and schools; 8] (b) that he had so conducted himself a reasonably to warrant the suspicion of police, after lengthy and detailed investigation, that he was guilty of sodomy; 9] (c) that he was guilty of sexually assaulting several schoolchildren; in the alternative (d) that he had so conducted himself as to warrant the allegations of several schoolchildren that he had sexually assaulted them; 10] (e) that he had so conducted himself that the Department of School Education was required to prevent his having physical access to schoolchildren; 11] (f) that he had so conducted himself that the Department of School Education was required to prevent his having physical access to school boys." The first defendant's application. The first defendant applied under Supreme Court Rules Pt31 R2 for an order that the published matter complained of was not reasonably capable of carrying any of the pleaded imputations. (The other two defendants made similar applications which I will come to later.) The plaintiff consented to the Pt31 procedure being used. The applications were heard by Levine J. The orders which he made, relevant to the first defendant's application were: [12] "1. Imputations 4(a) and (c) will not go to the jury. [13] 2. Imputations 4(b), (d), (e) and (f) are struck out. [14] [15] 7. The Plaintiff has leave to file an Amended Statement of Claim within 21 days. [16] 8. The Plaintiff is to pay the costs of the Defendant of this application." The plaintiffs application to the Court of Appeal. The plaintiff sought leave to appeal. This application was stood over to a day when the court could (as in the event it did) hear full argument. Thus if the court after consideration of the matter thought leave should be granted, it would be able to deal with the appeal without further argument. 6 UNREPORTED JUDGMENTS Levine J's O.1. Levine J's order I reflects his opinion that (i) imputations 4(a) and (c) charge the plaintiff with being guilty of sexual assault, a view with which l agree, and (ii) the published material is not reasonably capable of carrying that imputation. It was step (ii) which was the subject of argument in this court (although the plaintiffs argument was directed only to imputation 4(c); imputation 4(a) was not pressed). Levine J's O.2 reflects his opinion on a more complicated argument. Taking first imputation 4(b), he was of the view that it meant (or perhaps was capable of bearing the meaning) that the plaintiff was guilty of sodomy; on this basis it should be dealt with in the same way as imputations 4(a) and (c); but because the plaintiff was contending that the imputation was not reasonably capable of bearing the meaning of asserted guilt, and was intended to bear the meaning of suspicion of guilt, and because such an imputation, appropriately pleaded, was open to the plaintiff, he made O.2 on the pleading basis, not the judgment basis of O.1, to give the plaintiff the opportunity of amending the form of the imputation so that it became a "suspicion" imputation instead of a "guilt" imputation. Discussion of O.1. The first defendant supported Levine J's step (ii) largely by reference to the decision of the High Court in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293. That case was dealt with at first instance by Hunt J: (1981) 1 NSWLR 628, who summarised the facts and main issues as follows: 17] "The defendant in this action for defamation claims that the matter complained of is incapable of bearing two of the four imputations pleaded by the plaintiff in his statement of claim... 18] The matter complained of by the plaintiff was published on the first and second pages of the 'Daily Mirror' newspaper on 14 August, 1980. On the front page, in headlines two inches high, the article says: 19] 'BALDWIN: 4 ARRESTS' 20] and, in smaller type: 21] '3 MEN, WOMAN HELD IN RAIDS.' The headline on the second page is: 22] 'BALDWIN - 4 ARRESTED' 23] and in smaller type: 24] 'Police raid city homes'. On each of the two pages there is a photograph of the plaintiff (with part of his face blocked out) as one of the three men arrested. The article states that the arrests were made 'in dawn raids today over the bashing of State Labour MP Peter Baldwin'. Mr Baldwin is said to have been 'viciously bashed by at least two men' and to have suffered 'shocking facial injuries and a fractured skull and requiring more than 50 stitches in his wounds' necessitating 'almost two weeks in hospital'. The article reminds its readers that Mr Baldwin had earlier made allegations of vote-rigging and of the infiltration of organized crime into inner-city Labour Party branches, and implies that the attack upon him was in reprisal for those allegations. The arrests are said to have followed a month of 'intensive investigation by a special squad of detectives' who had 'worked around the clock to fulfil a directive from the Deputy Premier, Mr Ferguson, that the culprits be found'. The article says that a fourth man may be arrested and that all five are expected to appear in URJ RIGBY v JOHN FAIRFAX GROUP PTY LTD and ORS (Priestley JA) 7 court later that day, to be charged with 'conspiracy and fraud.' The article states that tight security will surround the court when they so appear. The two imputations at issue are in the following terms: [25] '(i) That the plaintiff was directly or indirectly involved in the vicious bashing of Mr Peter Baldwin on the night of 17th July 1980 whereby Mr Baldwin suffered shocking facial injuries and a fractured skull, required treatment consisting of more than fifty stitches in his wounds and spent almost two weeks in hospital; [26] (ii) That the plaintiff was guilty of a criminal offence in connection with the said bashing.' It will be seen, therefore, that the issue raised by each such imputation is whether the article is capable of conveying the plaintiff's guilt or his direct or indirect involvement in the bashing of Mr Baldwin. The defendant asserts that, the reference having been made to the plaintiff's arrest and to the expectation of his being charged, the ordinary reasonable reader could not infer the plaintiff's guilt or such involvement." (at 628) The plaintiff submitted before Hunt J that the overall impression conveyed by the article was that the culprits responsible for the bashing of Mr Baldwin had been found. Part of that submission was that the fact that the plaintiff was to be charged implied the police believed he was guilty. However Hunt J considered that Rochfort v John Fairfax and Sons Ltd (1972) 1 NSWLR 16 prevented the plaintiff from relying on that step. Then, if the references in the article to the plaintiffs arrest and charge were left out of account, what remained would not be capable of conveying the plaintiffs guilt or direct or indirect involvement in the bashing. The challenged imputations therefore could not go to the jury. The plaintiff appealed to this court (Reynolds, Glass and Samuels JJA) where Reynolds and Samuels JJA concurred with Glass JA's opinion that the appeal should be upheld: (1981) 1 NSWLR 620. Glass JA's opinion turned on the proposition that so far as Rochfort "decided that a statement that a person has been charged can never support an imputation of guilt it was wrongly decided..." (at 626). He went on: [27] "Indeed a ruling upon the sufficiency of insufficiency of one publication to raise an imputation can almost never dictate what ruling should be given on another publication as there will always be some textual differences. The present publication goes far beyond the mere creation of an impression of well founded suspicion or so a jury might reasonably suppose. For the reasons already mentioned, it would be proper for the trial judge to rule that a reasonable jury might conclude that ordinary readers of the publication in question would infer the plaintiff's guilt and involvement in the events described. The first and second imputation should, therefore, be left to the jury." (at 626-7) In the High Court the principal opinion was that of Mason J. Except as to one matter not relevant to the present point (but which becomes important in regard to Levine J's 0.2), Gibbs CJ and Wilson and Brennan JJ agreed with Mason J. Mason I recorded that in the High Court the plaintiff made the very far reaching submission: [28] "... that a newspaper report stating that the plaintiff has been arrested and charged, or will be charged, with a criminal offence, is capable of bearing the imputation that the plaintiff is guilty of that offence. The submission is that in every case the publication complained of must go to the jury so that it may find whether the matter published does in fact bear that imputation. According to the 8 UNREPORTED JUDGMENTS [plaintiff], the police officer who lays the charge is required by law to have an honest belief in the guilt of the person charged. It then follows that the publication of a report of the fact of arrest and charge imputes that in the opinion of the police concerned the plaintiff is guilty of the crime charged. However the report cannot be distinguished from a statement that X believes that the plaintiff is guilty of that crime, except in so far as the reader will take more seriously the suggestion that a person in authority, presumably having the responsibility of investigating the matter, has, after investigation, concluded that the plaintiff should be formally charged with the offence." (at 297) This submission went further, I think, than Glass JA had gone. Mason J did not accept it. His view was that Sugerman ACJ had been correct in Rochfort in saying that an imputation of guilt could only be supported by an impermissible process of inference on inference (at 300) and correct also that a case of this kind was to be distinguished from "rumour" cases (at 300). Mason J continued (I have italicised certain parts for subsequent reference): [29] "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." (at 300-301) The first, second and third portions italicised show how careful Mason J was to make clear that what he was saying applied to a publication which stated only that a person had been arrested and charged and no more. A publication so limited could not in his opinion impute guilt. This was sufficient to dispose of the plaintiffs wide submission. URJ RIGBY v JOHN FAIRFAX GROUP PTY LTD and ORS (Priestley JA) 9 The remaining italicised portions make this position clearer. The defamatory quality of a publication depends upon how the ordinary reasonable reader would understand it. Mason J had not yet stated his opinion on that. What he had said to this point did not decide the question of the capacity of the publication to impute guilt. Mason J agreed that what Glass JA had said in the passage reproduced above (at 6 and 7) from (1981) 1 NSWLR 626-7 was right: [30] "GLASS JA was right in saying that any publication which goes on to say or suggest that the charge was well founded, ie, that the plaintiff was guilty, carries the further imputation of guilt. The question which remains is whether the melodramatic account published in the appellant's newspaper is capable of bearing the imputation that the respondent was guilty." (at 303) Mason J did not think "the melodramatic account" could bear the imputation. He thought it suggested the matter was regarded as important by the Government and the police but he failed "... to understand how a reasonable reader would read it as meaning... the plaintiff was guilty of the offence... or involved in the attack..." (at 303). In the present case the first defendant submitted that the references in the publication to the charge against the plaintiff were of no help to the plaintiff's claim that the publication was reasonably capable of carrying the imputation of guilt, and that bearing in mind that none of the High Court judges in Harrison thought the publication there had the necessary capacity, the conclusion should be the same in the present case. To my mind what Harrison makes clear is that the critical question in a case of this kind is whether (adapting words of Mason J at 303) a publication which has reported the making of a criminal charge has gone on to use words ("'to say or suggest") capable of bearing the imputation that the plaintiff was guilty. So far as concerns the plaintiff, apart from mentioning the charge against him, the publication reported that (a) allegations stretched back to 1983, (2) there had been a lengthy investigation by a police child-mistreatment unit, (3) there had been complaints from several students, (4) he had been transferred from a boys to a girls school after the allegations were made, (5) he had been suspended from teaching duties while the court case continued, (6) he had pleaded not guilty, and (7) would answer the charge on March 19. The article was also, in my opinion, capable of imputing that the plaintiff, at least in some matters had been acting as one of "a pair" in the sexual assaults with the other man charged. Assuming that the approach required by Harrison means the fourth, fifth, sixth and seventh matters listed are not to be considered as supporting the plaintiff on the capacity question, it seems to me that the remaining matters have the effect of taking the publication beyond one that reports the making of a charge against the plaintiff and no more into being one that goes on to be one reasonably capable of carrying the imputation of guilt pleaded by the plaintiff. In my opinion it is appropriate that leave be granted to appeal against O.1, and that so much of that order as refers to imputation 4(c) should be set aside, and the questions whether the publication in fact carries the imputation, and if so whether it is defamatory (not in issue here), should be determined by the jury (s7A(3), Defamation Act 1974). Discussion of O.2. It seems to me appropriate to grant leave to appeal in regard to 0.2. This order resulted from Levine J's views on (i) capacity, and (ii) form of pleading. 10 UNREPORTED JUDGMENTS The first defendant had contended that the publication was not reasonably capable of carrying an imputation of guilt and Levine J agreed. Levine J also considered that imputation 4(b), confining myself to that for the moment, was an imputation of guilt. Therefore it had to go. Since the plaintiff wanted to plead a "suspicion" imputation, Levine J, by O.2, in effect gave leave to the plaintiff to amend the "guilt" imputation to a "suspicion" one. The plaintiff contends that imputation 4(b) is, as it was intended to be, an imputation of suspicion, not of guilt, and wants the jury to consider it in its unamended form. Although I have reached a different conclusion from Levine J in regard to the capacity point it is still necessary to consider the question of the form of pleading the intended "suspicion" imputation. This is because in cases such as the present a plaintiff usually will seek to plead that the publication referring to a criminal charge against the plaintiff imputes guilt. That claim may fail, either because a judge says, as a matter of law, that the publication complained of is not reasonably capable of carrying the imputation, or because if a judge says it is reasonably capable etc, a jury then determines that the publication did not carry the imputation. To guard against the "guilt" imputation failing for either of these reasons, plaintiffs, almost as of course it seems, plead a "suspicion" imputation. This has at least two disadvantages for a plaintiff. It will often be much easier for a defendant to justify a "suspicion" that a "guilt" imputation; and if a plaintiff does succeed on a "suspicion" imputation alone, the damages ought to be less than for a "guilt" imputation. So pleaders (for plaintiffs) do their best to frame "suspicion" imputations in ways they hope will make it difficult for defendants to justify. One method that seems to have been frequently used is supported by a passage in Mason J's reasons in Harrison which I referred to earlier in passing, but did not then cite. This was: "Although Sugerman ACJ in Rochfort [1972] 1 NSWLR 16, stated that a report of the kind discussed is incapable of bearing an imputation other than what it actually states, namely that the plaintiff has been arrested and charged with an offence, I think that it is capable of bearing the imputation that the police suspected him of having committed the offence and that they had reasonable cause for doing so. That in my opinion is what the ordinary reasonable reader would understand to be conveyed by such a report." (at 301) Gibbs CJ agreed with Mason J that the statement (of arrest and charge) would convey to an ordinary reasonable man that the police suspected that the person arrested committed the offence but not that the police officer did in truth have such reasonable cause (at 295). Brennan J said he would join the Chief Justice "in reserving for future consideration the question" on which the Chief Justice did not then agree with Mason J (at 303-4). (He also remarked that the article was not so limited in its text (at 304); that is, that it did more than merely report arrest and charge). There is a difference between the form of imputation suggested by Mason J in the above passage and imputation 4(b). Imputation 4(b) is based on the proposition stated by Hunt J in a number of decisions, of which Whelan v John Fairfax and Sons Ltd (1988) 12 NSWLR 148 is an example, the proposition being: [31] " - that the statement or implication that the police suspected that the plaintiff had committed a crime is capable of conveying the imputation that the plaintiff had so acted as to have warranted that suspicion." (Whelan at 160) URJ RIGBY v JOHN FAIRFAX GROUP PTY LTD and ORS (Priestley JA) 11 Whelan is one of a series of decisions in which questions of capacity and ways of pleading imputations were discussed. Decisions from which the ways the issues have been debated may fairly readily be seen are Sergi v Australian Broadcasting Corporation (1983) 2 NSWLR 669 and Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. However, it does not seem necessary in the present case to make any review of the first instance decisions. The accepted approach to pleading in general is well settled: see in particular the Drummoyne Municipal Council case. The court was told in argument that imputations in the form of imputation 4(b) were regularly accepted in practice as proper until Levine J's decision in the present case. The first thing to look at will be his reasons. Levine J's conclusion in regard to imputation 4(b) was that it was an imputation of guilt. He gave two reasons for this conclusion. He expressed one by reference to a remark made by Hunt J in Whelan to the effect that in a "suspicion" imputation it was more advantageous to a plaintiff to plead the imputation in the active voice because, as Hunt J said: [32] "... if the plaintiff simply pleaded an imputation that he was suspected by the police of having committed a crime, the defendant could justify that imputation as true merely by proving that the police did in fact harbour such a suspicion. ON the other hand, if the plaintiff pleaded the imputation in the active voice (that he had so conducted himself as to have warranted that suspicion), the defendant would have to establish such conduct - a somewhat more difficult task." (at 160) Levine J said that in his view "the statement that the defendant has to establish the conduct is a statement that the defendant has to justify the conduct and thus prove 'guilt"' (at 18 of his reasons). I do not think this follows from what Hunt J said. There is in my opinion a distinction between conduct warranting suspicion of guilt and conduct showing guilt. It was the defendant's task of establishing the former that Hunt J was talking about. This reason of Levine J would only be valid if the two types of conduct were identical. In practice there might be no or little difference in many cases, but the distinction nevertheless seems to me to be a valid one. The second reason flowed from the use of the words "had so conducted himself"; Levine J thought the reasonably warranted suspicion might not be based on the conduct of the plaintiff; it was more likely to be based upon allegations by third parties of conduct than the conduct itself. This observation will be correct in many cases, but it is not conclusive in regard to the question whether the publication is reasonably capable of conveying that the plaintiff so conducted himself etc. In the present case, the reference in the publication to the lengthy investigation by the police unit seems to me to make the publication reasonably capable of conveying a meaning including the words in question. The answer to the question whether the word "reasonably" should be in the imputation does not seem to me to depend on resolving the difference in Harrison previously referred to between Mason and Wilson JJ on the one hand and Gibbs CJ and Brennan J on the other; all four judges were dealing with that point on the footing of a report of arrest and charge and nothing more. Here, the additional material makes the publication reasonably capable of carrying the pleaded imputation with the inclusion of "reasonably". In my opinion Levine J's O.2 in its application to imputation 4(b) should be set aside. 12 UNREPORTED JUDGMENTS No particular argument beyond what I have already noted was directed to imputations 4(d), (e) and (f). However in regard to imputation 4(d), my reasons generally for disagreeing with Levine J in regard to imputation 4(b) seem to me to be applicable so that the same result should apply in regard to it. As to imputations 4(e) and (f), my view is that the publication is not reasonably capable of carrying the word "required" (which seems to me in its context to mean "obliged", "compelled'') into the imputation from it. If the words "thought it prudent" (or some equivalent) replaced "was required" in each of the two imputations, I would think they would then be in the same category as imputations 4(b) and (d). Not having heard argument on this view I would ordinarily be reluctant to state it, but since these imputations did not seem to be the primary concern of the plaintiff, and the plaintiff can in any event, if so advised, replead them under Levine J's existing orders, it seems appropriate to express my opinion, the result being that I would leave Levine J's O.2 standing in regard to imputations 4(e) and (f). THE PLAINTIFFS CLAIM AS AGAINST THE SECOND DEFENDANT. telecast on 3 March 1992 published the following: 33] According to an agreed transcript of the broadcast, the second defendant's "Picture PT1 Newsreader with background illustration depicting a sinister eye a schoolroom PT2 Reporter, and views of Sutherland Court Pt3 Graphic, with words: Police charged 4 counts of indecent assault on male under the age of 16 1 count of sodomy Words: Police investigating a child sex racket have charged two teachers with assaulting a 13-year-old boy. The two men from Sydney's southern suburbs have been suspended by the Education Department while investigations continue. Two teachers from the Sutherland Shire were arrested by detectives from the Child Mistreatment Unit, investigating a number of allegations by a former student. The boy claimed that at the age of 13, he was raped by the two men after a series of sexual assaults. 40-year old Barry John Lee and 47-year-old Raymond Rigby, both single, are now facing charged dating back to 1983. Lee has been charged with four counts of indecently assaulting a male under the age of 16, while both are charged with one count of sodomy. General view of Sutherland Court PT4 Reporter and views of courthouse Appearing in Sutherland Court, Lee and Rigby pleaded not guilty to the charges, as investigations continue. The Department of Education has placed both under suspension. The State Government's Child Abuse and Protection Act prevents the publication of the school where both men were teaching at the time the assaults took place, but police can confirm that Barry Lee was working as an English History teacher in the Sutherland Shire until his arrest, while Rigby was transferred to a girls' high school late last year. They have been bailed to reappear in Sutherland Court on the 19th of March, 1992 URJ RIGBY v JOHN FAIRFAX GROUP PTY LTD and ORS (Priestley JA) 13 General view of Sutherland Court PT4 Reporter and views of courthouse Appearing in Sutherland Court, Lee and Rigby pleaded not guilty to the charges, as investigations continue. The Department of Education has placed both under suspension. The State Government's Child Abuse and Protection Act prevents the publication of the school where both men were teaching at the time the assaults took place, but police can confirm that Barry Lee was working as an English History teacher in the Sutherland Shire until his arrest, while Rigby was transferred to a girls' high school late last year. They have been bailed to reappear in Sutherland Court on the 19th of March, 1992 In para7 of his statement of claim the plaintiff alleged that the second defendant's publication made the following imputations defamatory of him: 34] "(a) That he, a schoolteacher, had betrayed the trust placed in him by children, parents, and schools; 35] (b) That he had so conducted himself as to warrant the reasonable suspicion of police that he was guilty of participation in a child sex racket; 36] (c) That he was guilty of a series of sexual assaults upon, and the rape of, a boy of thirteen; in the alternative; 37] (d) That he had so conducted himself as to warrant the reasonable suspicion of police that he has guilty of the rape of a boy of thirteen; (e) That he had so conducted himself that the Department of School Education was required to prevent his physical access to schoolchildren; 38] (f) That he had so conducted himself that the Department of School Education was required to prevent his physical access to schoolboys." The second defendant's application. Like the first defendant, the second defendant contended in the application before Levine J that the published material complained of was not reasonable capable of carrying any of the pleaded imputations. The orders Levine J made, relevant to the second defendant's application were: [39] "3. Imputation 7(a) will not go to the jury, but 7(c) will go to the jury. [40] 4. Imputations 7(b), (d), (e) and (f) are struck out. [41] [42] 7. The plaintiff has leave to file an Amended Statement of Claim within 21 days. [43] 8. The Plaintiff is to pay the costs of the Defendant of this application." The plaintiffs application to the Court of Appeal. The plaintiff in this court did not pursue imputation 7(a) and thus dropped his leave application in regard to 0.3. The second defendant sought leave to cross-appeal in regard to that part of O.3 which allowed imputation 7(c) to go to the jury. Levine J's O.3. The argument concerning imputation 7(c) covered the same ground as that concerning imputation 4(c). In my opinion the words in Pt4 of the publication, "at the time the assaults took place", make it particularly clear that the imputation should go to the jury. I would not grant leave to appeal against O.3. Levine J's 0.4. I would however grant leave to the plaintiff to appeal against Levine J's 0.4. 14 UNREPORTED JUDGMENTS The argument concerning imputations 7(b) and 7(d) covered the same matters as were argued in regard to imputations 4(b) and 4(d), and in my opinion lead to the same result. Similarly, imputations 7(e) and 7(f) should be dealt with in the same way as imputations 4(e) and 4(f). THE PLAINTIFF'S CLAIM AGAINST THE THIRD DEFENDANT. [44] The third defendant's publication of 5 March 1992 was as follows: [45] "TEACHERS ON SEX COUNTS [46] TWO Sydney school teachers will appear in Sutherland Local Court on March 19 to answer charges of having sexually assaulting students. Barry John Lee, 44, has been charged with four counts of indecent assault on a male aged under 16 and Raymond Rigby, 47, has been charged with sodomy. Both pleaded not guilty to the charges. Both men have been suspended by the Department of School Education while the court case continues and although the names of the schools at which the alleged offences occurred have been suppressed, the court was told that Lee was an English and history teacher at a Sutherland area high school and Rigby had been transferred from a Sutherland area boys' school to a girls' school after the allegations were made." In paral0 of his Statement of Claim the plaintiff alleged that the third defendant's publication made the following imputations defamatory of him: [47] "(a) that he, a schoolteacher, had betrayed the trust placed in him by children, parents and schools; [48] (b) that he had so conducted himself as reasonably to warrant the suspicion of police that he was guilty of the crime of sodomy in relation to a number of schoolchildren; (c) that he had so conducted himself that the Department of School Education was required to prevent his physical access to schoolchildren; [49] (d) that he had so conducted himself in relation to schoolchildren that the Department of School Education was required to prevent his physical access to schoolboys." The third defendant's application. Like the other defendants, the third defendant contended in the application before Levine J that the published material was not capable of carrying any of the pleaded imputations. The orders Levine J made, relevant to the third defendant's application were [50] "5. Imputation 10(a) will not go to the jury. [51] 6. Imputations 10(b), (c) and (d) are struck out. [52] 7. The plaintiff has leave to file an Amended Statement of Claim within 21 days. [53] 8. The Plaintiff is to pay the costs of the Defendant of this application." The plaintiff's application to the Court of Appeal. Again, the arguments about the imputations pleaded against the third defendant covered the same ground as those dealing with the earlier imputations. Levine J's O.5. I cannot see, giving due weight to Harrison, that the matter complained of is reasonably capable of carrying the imputation of guilt in imputation 10(a). I would refuse the plaintiff leave to appeal against O.5. Levine J's 0.6. In regard to imputation 10(b), the position seems to me to be somewhat different from that of imputations 3(b), 3(d), 7(b) and 7(d), although it was dealt with by the same arguments. URJ RIGBY v JOHN FAIRFAX GROUP PTY LTD and ORS (Priestley JA) 15 Not referred to in argument was the fact that the publication made no reference to police at all. The charges could have been brought by private citizens so far as the publication reveals. Nor was there any submission that I remember which mentioned that, apart from what might be inferred from the fact of the charges, there was nothing in the publication referring to the way the plaintiff conducted himself to the knowledge of the police. These matters might well be sufficient to support Levine J's order. Not having heard argument on these matters, and in view of the plaintiff in any event having leave to replead the imputation, I would not grant leave to appeal against the order striking it out. As to imputations 10(c) and (d) the position seems to me to be the same as with regard to imputations 3(e) and 3(f). PROPOSED ORDERS. 54] The orders that I propose should be made are: 55] 1. (a) Leave to appeal against so much of Levine J's O.1 as ordered imputation 4(c) not to go to the jury, granted. 56] (b) Appeal against so much of Levine J's O.1 as ordered imputation 4(c) not to go to the jury, upheld. 57] (c) So much of O.1 as refers to imputation 4(c) set aside. 58] (d) First defendant to pay costs of the appeal proceedings concerning O.1. 2. (a) Leave to appeal against Levine J's O.2 granted. 59] (b) Appeal against so much of O.2 as struck out imputations 4(b) and 4(d) upheld. 60] (c) So much of O.2 as struck out imputations 4(b) and 4(d) set aside. 61] (d) Appeal against O.2 otherwise dismissed. 62] (e) First defendant to pay costs of the appellant's proceedings concerning O.2. 3. (a) Plaintiffs application for leave to appeal against Levine J's O.3 as to imputation 7(a) dismissed with costs. (b) Second defendant's application for leave to cross-appeal against Levine J's O.3 as to imputation 7(c) dismissed with costs. 4. (a) Plaintiff's application for leave to appeal against Levine J's O.4 granted. 63] (b) Appeal against so much of O.4 as struck out imputations 7(b) and (d) upheld. 64] (c) So much of O.4 as struck out imputations 7(b) and (d) set aside. 65] (d) Appeal against 0.4 otherwise dismissed. 66] (e) Second defendant to pay costs of the appeal proceedings concerning 0.4. 5. (a) Plaintiff's application for leave to appeal against Levine J's O.5 dismissed with costs. 67] (b) Plaintiff's application for leave to appeal against Levine J's 0.6 dismissed with costs. 6. Levine J's O.7 to stand; the twenty-one days referred to in it will run from the date of this court's orders. 7. O.8 should be set aside, and in lieu - [68] (a) the first defendant should pay the plaintiff's costs of the first defendant's application before Levine J; 16 UNREPORTED JUDGMENTS [69] (b) the second defendant should pay the plaintiff's costs of the second defendant's application before Levine J; [70] (c) the plaintiff should pay the third defendant's costs of the third defendant's application before Levine J. Meagher JA JUDGMENT [71] I agree with Priestley JA. The orders that I propose should be made are: 1. (a) Leave to appeal against so much of Levine J's O.1 as ordered imputation 4(c) not to go to the jury, granted. (b) Appeal against so much of Levine J's O.1 as ordered imputation 4(c) not to go to the jury, upheld. (c) So much of O.1 as refers to imputation 4(c) set aside. (d) First defendant to pay costs of the appeal proceedings concerning O.1. 2. (a) Leave to appeal against Levine J's O.2 granted. (b) Appeal against so much of O.2 as struck out imputations 4(b) and 4(d) upheld. (c) So much of O.2 as struck out imputations 4(b) and 4(d) set aside. (d) Appeal against O.2 otherwise dismissed. (e) First defendant to pay costs of the appellant's proceedings concerning O.2. 3. (a) Plaintiffs application for leave to appeal against Levine J's O.3 as to imputation 7(a) dismissed with costs. (b) Second defendant's application for leave to cross-appeal against Levine J's O.3 as to imputation 7(c) dismissed with costs. 4. (a) Plaintiff's application for leave to appeal against Levine J's 0.4 granted. (b) Appeal against so much of O.4 as struck out imputations 7(b) and (d) upheld. (c) So much of O.4 as struck out imputations 7(b) and (d) set aside. (d) Appeal against O.4 otherwise dismissed. (e) Second defendant to pay costs of the appeal proceedings concerning O.4. 5. (a) Plaintiff's application for leave to appeal against Levine J's O.5 dismissed with costs. (b) Plaintiff's application for leave to appeal against Levine J's 0.6 dismissed with costs. 6. Levine J's O.7 to stand; the twenty-one days referred to in it will run from the date of this court's orders. 7. O.8 should be set aside, and in lieu - (a) the first defendant should pay the plaintiff's costs of the first defendant's application before Levine J; (b) the second defendant should pay the plaintiff's costs of the second defendant's application before Levine J; (c) the plaintiff should pay the third defendant's costs of the third defendant's application before Levine J. Counsel for the claimant (appellant): SM Littlemore SC/T Molomby URJ RIGBY v JOHN FAIRFAX GROUP PTY LTD and ORS (Meagher JA) 17 Solicitors for the claimant (appellant): Marina Voncina Counsel for the opponent (cross-appellant): WH Nicholas QC/G O'L Reynolds Solicitors for the opponent (cross-appellant): Mallesons Stephen Jaques