STATE OF NEW SOUTH WALES v DEREN & ANOR [1999] NSWCA 22

Reported Decision : (1999) Aust Torts Reports 81-502

New South Wales Court of Appeal CITATION : STATE OF NEW SOUTH WALES v DEREN & ANOR [1999] NSWCA 22 revised - 03/03/99 FILE NUMBER(S) : CA 40144/98 HEARING DATE(S) : 3; 4; 5 June 1998 JUDGMENT DATE : 25 February 1999

PARTIES : STATE OF NEW SOUTH WALES v DEREN & ANOR JUDGMENT OF : Priestley JA at 1; Powell JA at 135; Stein JA at 154

LOWER COURT JURISDICTION : Supreme Court - Common Law Division LOWER COURT FILE NUMBER(S) : CL 11952/90 LOWER COURT JUDICIAL OFFICER : ABADEE J

COUNSEL : Appellant - B.R. McClintock SC / L. McCallum RespondentS - M.G. Sexton / K.T. Nomchong SOLICITORS : Appellant - L.V. Knight - State Crown Solicitor Respondents - McGlynn & Partners CATCHWORDS : CONTEXTUAL IMPUTATION DEFENCE Crimes Act 1900 ss 61D(1C) 61J 61E(1A) (1B) (1C ACTS CITED : 61M Defamation Act 1974 ss 9 15 16 Supreme Court Act 1970 s 108 Supreme Court Procedure Act 1900 s 7 DECISION : Appeal against judgment for Mr Deren allowed, new trial ordered; By majority appeal against judgment for Mrs Deren dismissed.

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40144/98 CL 11952/90

PRIESTLEY JA POWELL JA STEIN JA

Thursday, 25 February 1999

STATE OF NEW SOUTH WALES v DEREN & ANOR

DEFAMATION ACT SECTIONS 9, 15, 16 - CONTEXTUAL IMPUTATION DEFENCE - The first and second respondent, a kindergarten teacher and her husband were charged with indecent assault of children. Various newspapers published stories about the charges based on what police officers had told reporters. Subsequently, the charges were dismissed and the respondents separately brought defamation proceedings (which were heard together) against the State in respect of the matter published by the police officers to the newspapers. During the trials various rulings were made by the trial judge against the State. Both respondents were awarded damages. The State appealed, questioning the adverse rulings. On appeal the appellant submitted : 1. His Honour erred in not allowing evidence to be given by the witness [JM]; 2. his Honour erred in rejecting the appellant's application to strike out the words "attending a Sydney kindergarten" in imputation (a) and the equivalent words in the other imputations on the ground that they were surplusage and irrelevant to the substance or sting of the imputation; 3. his Honour erred in ruling that the appellant was not entitled to rely on the instance of child molestation and sexual assaults on children admitted by the respondents in justification of imputation (a); 4. his Honour erred in ruling that the appellant was not entitled to put to the jury the argument that an imputation that "the second plaintiff participated in sexual assaults on young children" was not substantially different from the pleaded imputations and could be justified by the admitted sexual assaults; 5. his Honour erred in ruling that the contextual imputations were incapable of arising from the matter complained of; 6. his Honour erred in not leaving the defence of truth (Defamation Act s 15) and contextual truth (Defamation Act s 16) to the jury; 7. his Honour erred in rejecting the defence of qualified privilege at common law and should have found that the relevant publications were made on occasions of qualified privilege. In the case of Mr Deren, held : 1. Pursuant to s 9(2), when considering the meaning of an imputation borne by the publication complained of, the jury were entitled to understand that the plaintiff's imputation (a) directly accused the plaintiff of particular crimes in particular locations during a particular time; the phrase "attending a Sydney kindergarten" was (inter alia) relevant to specify the accusation; 2. the plaintiff's imputation (a) and the State's contextual imputation (i) said different things about the plaintiff; the former accusing of specific crimes, the latter accusing of a persistent characteristic harmful to his reputation; 3. the publication complained of was capable of being understood as making the State's contextual imputation (i); 4. as there was no evidence called by the State concerning the particular accusations in imputation (a), his Honour was not in error in taking away the s 15 defence of truth from the jury and rejecting the evidence of JM in regard to that imputation; 5. it was open to the judge to rule that evidence of a prior act should not go before the jury if the plaintiff's prior act could not rationally enable a conclusion of fact to be drawn because the time lapse between the act and the defamation indicated there was no relation between that act and the imputation the defendant was seeking to justify; Maisel v Financial Times Limited [1915] 3 KB 336 at 342 per Pickford LJ; 6. however, the evidence that the State wished to rely on raised a question that the jury, and not the judge, should have been left to decide, namely was the plaintiff a child molester? 7. the issues arising from the State's s 16(2) defence should have been left for decision by the jury. Had the evidence the State wished to put before the jury been allowed, the public interest element would have been made out and, if the State's contextual imputation (i) was accepted as substantially true, the jury could have determined whether imputations (a) and (b) further injured the plaintiff's reputation; 8. the appeal against the decision on qualified privilege failed; 9. the State's appeal succeeded and there should be a new trial, not, however, extending to the qualified privilege defence. In the case of Mrs Deren, held, by Powell and Stein JJA : 1. the State's contextual imputation (ii) differed from imputations (a) and (b) of the plaintiff, the former imputing actions of gross irresponsibility and the latter implying serious criminal conduct; 2. the matter published was not capable of giving rise to contextual imputation (ii) therefore, the trial judge was correct to rule it unavailable for consideration by the jury; 3. even if contextual imputation (ii) was held to be substantially true, a reasonable jury could not find that the matters complained of would not have further injured the plaintiff's reputation. 4. the appeal should be dismissed. Per Priestley JA (contra) : 1. As in Mr Deren's case, the appeal in regard to grounds 2, 3 and 4 on the notice of appeal must fail; 2. furthermore, the appeal in regard to grounds 1 and 6 so far as they related to the State's defences of truth to the plaintiff's imputations (a) and (b) must fail; 3. the evidence was sufficient to make it a question for the jury whether the plaintiff let her husband "have access to young children"; 4. the evidence to support the truth of contextual imputation (ii), although slim, should have been left for consideration by the jury; 5. as for the public interest element of the State's s 16(2) defence, the result was the same as in Mr Deren's case; 6. the question whether the jury should have been allowed to consider the further injury limb of s 16(2) was so finely balanced it was preferable for the matter to be left for the jury; 7. the appeal against the decision on qualified privilege also fails; 8. the appeal should be held and a new trial ordered subject to the same restriction as in Mr Deren's case. Per Powell JA (agreeing on this point with Priestley JA) : 1. assuming that contextual imputation (ii) was available to the appellant, the substantial truth of it should have been left to the jury. Per Stein JA (contra on this point) : 1. the evidence relevant to contextual imputation (ii) did not rise above a scintilla and was insufficient to be left to the jury; 2. even if the evidence relevant to contextual imputation (ii) had been left to the jury, the probability of it affecting the result in respect of the plaintiff is so slight that it would be wrong to order a new trial since there was no substantial wrong or miscarriage. Crimes Act 1900 ss 61D, 61D(1C), 61J, 61E(1A) (1B) (1C), 61M Defamation Act 1974 ss 9, 15, 16 Supreme Court Act 1970 s 108 Supreme Court Procedure Act 1900 s 7 Allied Pastoral Holdings Pty. Limited v Commissioner of Taxation [1983] 1 NSWLR 1 Anderson v Mirror Newspapers (No 2) [1986] 5 NSWLR 735 Attorney General (NSW) v TCN Channel Nine Pty Limited (1990) A Def Law & Practice [50080] 40,581 Bulstrode v Trimble [19770] VR 840 Cole v Commonwealth of Australia (1961) 62 SR 700 Davis v Hardy (1827) 6 B & C 225; 108 ER 436 Douglas v Tiernan (1931) 32 SR 149 Ellis v Wallsend District Hospital (1989) 17 NSWLR 553 Giorgianni v The Queen (1984-1985) 156 CLR 473 Harrison v Mirror Newspapers (1982) 149 CLR 293 Hepburn v TCN Channel Nine Pty. Limited [1984] 1 NSWLR 386 Hocking v Bell (1945) 71 CLR 430 and (1947) 75 CLR 125 Holman v Holman (1964) 81 WN (Pt 1) 374 Johns v The Queen (1980) 143 CLR 108 Maisel v Financial Times Limited [1915] 3 KB 336 McPhee v S. Bennett Limited (1935) 52 WN 8 Paric v John Holland Construction Pty. Limited [1984] 2 NSWLR 505 Poricanin v Australian Consolidated Industries Limited [1979] 2 NSWLR 419 Precision Plastics Pty. Limited v Demir (1975) 132 CLR 362 R v Glennan (1970) 91 WN 609 Raul Amon International Pty Limited v Telstra Corporation Limited (Victorian Court of Appeal, 19 September 1997, unreported) Richards v Jager [1909] VLR 140 Swinburne v David Syme & Co [1909] VLR 550 Taylor v Ellis [1956] VLR 457 Torrealba v District Court of New South Wales (1996) 40 NSWLR 327 Waterhouse v Hickie (1995) Aust Torts Reports [81-347] 62,486 Yorke v Lucas (1985) 158 CLR 661 ORDERS 1. The appeal against the verdict and judgment in favour of the first respondent dismissed. 2. (i) The appeal against the verdict and judgment in favour of the second respondent upheld, and the verdict and judgment set aside. (ii) There be a new trial, other than on the issue of qualified privilege, of the second respondent's claims against the appellant. 3. The question of the costs of the trial and the appeal reserved to be dealt with on written submissions. 4. The appellant is to file, and serve on the respondents, written submissions as to orders as to costs which it proposes should be made in the circumstances within seven days of this day, and that the respondents' file, and serve on the appellant, written submissions as to the orders for costs which they propose should be made within seven days thereafter. ------------------ THE SUPREME COURT