Pavy v John Fairfax Publications Pty Ltd [2000] NSWSC 328

New South Wales Supreme Court

CITATION : Pavy v John Fairfax Publications Pty Ltd [2000] NSWSC 328 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 20242/97 HEARING DATE(S) : 9 July 1999 JUDGMENT DATE : 18 April 2000

PARTIES : Errol PAVY v John FAIRFAX PUBLICATIONS PTY LTD JUDGMENT OF : Simpson J at 1

COUNSEL : Mr T Molomby (Plaintiff) Mr K Smark (Defendant) SOLICITORS : Bertock & Associates (Plaintiff) Richard Coleman (Defendant) LEGISLATION CITED : Defamation Act 1975 CASES CITED : Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 DECISION : Paragraph 4 of the defence will be struck out. The defendant is to pay the plaintiff's costs of the application.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Defamation List

SIMPSON J

Tuesday 18 April 2000

20242/97 Errol PAVY v JOHN FAIRFAX PUBLICATIONS PTY LTD Judgment

HER HONOUR : 1 The question at issue in these interlocutory proceedings centres on an imputation pleaded by the defendant in support of defence of contextual truth. The plaintiff contends that the imputation does not meet the requisite tests applicable to such a defence and that that part of the defence in which contextual truth is pleaded should be struck out. 2 It is necessary to set out some history. In 1993 the plaintiff was charged with the murder of his three month old son. The prosecution allegation was that, attempting to stop the child crying, the plaintiff shook him with sufficient force to cause his death. In about December 1995 the plaintiff was convicted of murder following trial by jury. On 23 May 1996 the Court of Criminal Appeal quashed the conviction and entered a verdict of acquittal. The following day the defendant published in the Sydney Morning Herald a news report of the judgment of the Court of Criminal Appeal, and the enthusiastic and positive response of the plaintiff's wife, family and supporters. It is this news item that is the foundation for the plaintiff's claim in defamation. 3 The report purported to record remarks made by the sentencing judge, to the effect that, on a previous occasion, the plaintiff had (although unaware of it) broken six of the child's ribs in an act similar to the act alleged to have caused the child's death. 4 Two imputations are pleaded, in the alternative. They are: "(a) that [the plaintiff] had shaken his infant son, intending to cause him really serious bodily injury, thereby breaking six of his ribs"; and "(b) [the plaintiff] had directed physical violence towards his infant son, thereby breaking six of his ribs." 5 It will be seen that the imputations pleaded are directed to the allegation of a prior injury to the child on an occasion other than the occasion of the child's death. 6 The defendant has filed a defence. It denies that the publication bears or is capable of bearing the imputations pleaded, or that it is or is capable of being defamatory. It relies upon the defence of qualified privilege provided by s 22 of the Defamation Act 1975 ("the Act"). The defence relevant for present purposes is the defence of contextual truth provided by s 16 of the Act. S 16 is in the following terms: "16. Truth: contextual imputations (1) Where an imputation complained of is made by the publication of any report, article, letter, note, picture, oral utterance or other thing and another imputation is made by the same publication, the latter imputation is, for the purposes of this section, contextual to the imputation complained of. (2) It is a defence to any imputation complained of that: (a) the imputation relates to a matter of public interest or is published under qualified privilege, (b) one or more imputations contextual to the imputation complained of: (i) relate to a matter of public interest or are published under qualified privilege, and (ii) are matters of substantial truth, and (c) by reason that those contextual imputations are matters of substantial truth, the imputation complained of does not further injure the reputation of the plaintiff." 7 The contextual imputation that the defendant pleads was conveyed, was a matter of substantial truth, and relates to a matter of public interest, is framed in the following terms: "The plaintiff, although subsequently acquitted on appeal, had been convicted by a jury of the brutal murder of his infant son by shaking him to death." 8 It may firstly be observed that, so far as the evidence in the present proceedings goes, the imputation is literally entirely true. The difficulty lies in what the defendant would seek to extract from it for the purposes of the defence. 9 It is fundamental to the defence of contextual truth that the imputation(s) pleaded by the defendant be such as, if proven to be true and related to matters of public interest, would dilute the imputation(s) pleaded by the plaintiff so that it or they, taken with the contextual imputation(s), does or do not further injure the plaintiff's reputation. Put simply, the contextual imputation(s) must be more damaging to the plaintiff's reputation than the imputation(s) pleaded on his/her behalf. 10 An imputation that an individual had been convicted by a jury of the brutal murder of his infant son would generally be of this character - that is, (and always depending upon the gravity of the imputation(s) pleaded by the plaintiff) it would outweigh most other imputations, rendering those imputations relatively harmless. Certainly, an imputation that the plaintiff had been convicted by a jury of the brutal murder of his infant son would outweigh both of the imputations here pleaded by the plaintiff, that is, that he had shaken the child, intending to cause really serious injury and breaking six of his ribs, or that he had directed physical violence to the child, breaking six ribs. An imputation in the terms to which I have just referred would inherently be an imputation that the plaintiff was guilty of the offence of which he had been convicted. 11 But, of course, that is not the imputation pleaded contextually by the defendant. That, no doubt, is because the defendant could not prove that imputation to be substantially (as distinct from literally) true. It would convey the false impression that the plaintiff's conviction stood, and that he was guilty. It is, presumably, for that reason that the defendant has interposed the subordinate clause "although subsequently acquitted on appeal". While acknowledging the acquittal the defendant nevertheless maintains that this imputation outweighs both of those pleaded by the plaintiff. 12 In my opinion there can be only one reason for the defendant to have adopted this strategy. The words in the subordinate clause are included as a smokescreen. The defendant seeks to rely on the contextual imputation in order to play upon a hidden meaning, exploiting the possibility of prejudice and illegitimate reasoning processes by some readers. The illegitimate reasoning is that, having been found guilty by the jury, the taint of the conviction subsists despite the subsequent acquittal. That is, some readers would or might continue to believe that the plaintiff was guilty notwithstanding the verdict of the Court of Criminal Appeal. It is only this that gives the contextual imputation a defamatory character. 13 The circumstances are analogous with those considered by the High Court in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293. There the High Court held that a newspaper report that a person has been arrested and charged with a criminal offence is not capable of bearing the imputation that that person is guilty or probably guilty of that offence. 14 Mason J (as he then was) wrote: "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 the 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 incites 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." (pp 300-301) 15 The passage is of importance for present purposes because it encapsulates what the defendant here seeks to do. To adapt the language of Mason J, the defendant seeks to rely upon beliefs or prejudices that might be excited in the minds of some readers, from which they would proceed to reason that, despite the successful appeal, the plaintiff was guilty of murder. 16 Analysis of the contextual imputation, and the possible ways upon which the defendant could rely on it, discloses that this is so, and reveals the illogicality of the defendant's position. There are two alternative approaches, neither of which will sustain the defendant's case. The first is that the defendant would invite the tribunal of fact (these days, the judge) to conclude that the ordinary reasonable reader would ignore the subordinate clause and reason from the remainder of the imputation that the plaintiff was guilty of murder, which would, as I have concluded, be illegitimate and run foul of the reasoning in Harrison. That is, the defendant seeks to rely on an imputation which, by parity of reasoning with Harrison is not capable of being conveyed. Alternatively, if the subordinate clause were to be given its full and proper weight, any defamatory imputation it conveys is not capable of outweighing the injury caused by the imputations pleaded by the plaintiff. The defence of contextual truth is doomed to fail. Paragraph 4 of the defence will be struck out. The defendant is to pay the plaintiff's costs of the application.