New South Wales Court of Appeal CITATION: Saunders v Nationwide News Pty Ltd [2005] NSWCA 404 HEARING DATE(S): 16/11/05 JUDGMENT DATE: 16 November 2005 JUDGMENT OF: Ipp JA at [15], [20]; Tobias JA at [19]; Hunt AJA at [1] DECISION: Leave to appeal refused; Plaintiff to pay the costs of the application. Children (Criminal Proceedings) Act 1987 LEGISLATION CITED: Defamation Act 1974 Supreme Court Act 1970 Barnes v Sharpe (1910) 11 CLR 462 CASES CITED: Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Edward Saunders (an infant by his next friend Stephen Russell) (claimant) PARTIES: Nationwide News Pty Limited (opponent) FILE NUMBER(S): CA 41217/04 C A Evatt/R Rasmussen (Claimant) COUNSEL: T D Blackburn SC/J C Hmelnitsky (Opponent) Nicolas Moir & Assocs(Claimant) SOLICITORS: Blake Dawson Waldron (Opponent) LOWER COURT JURISDICTION: Supreme Court LOWER COURT FILE NUMBER(S): 20318/03 LOWER COURT JUDICIAL OFFICER: Sperling J IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL 41217/04 IPP JA TOBIAS JA HUNT AJA Wednesday 16 November 2005 SAUNDERS v NATIONWIDE NEWS PTY LTD Judgment 1 HUNT AJA: The claimant (Edward Saunders) was the plaintiff in the Supreme Court in an action claiming damages for defamation, brought against the opponent (Nationwide News Pty Ltd) which is the publisher of the "Daily Telegraph" newspaper. The action was based on an article published in that newspaper in 2003, when the plaintiff was seven years old. Two editions of the same newspaper containing the matter complained of were pleaded in the plaintiff's statement of claim, but the trial proceeded on the accepted basis that there was no significant differences between the two editions. 2 The matter complained of stated that the plaintiff, aged seven, had suffered severe burns after setting himself on fire while sniffing petrol, and that he had been rushed to hospital with third degree burns. The article asserted that it was believed that the plaintiff was smoking at the time he was taking turns with other youths to sniff the petrol, and that he became ignited when he spilt some of the petrol on himself. The background to this event referred to in the matter complained was what was stated to be the high level of "youth street crime" in Taree (where the plaintiff lived), and the continuing problems with Aboriginal youths (in which group the matter complained of included the plaintiff) being involved in drinking, drugs, vandalism, hooliganism and anti-social behaviour which had got out of hand. 3 The plaintiff pleaded two imputations in relation to each edition of the matter complained of. As they were put to the jury, those imputations were: 1. The plaintiff committed the crime of petrol sniffing. 2. The plaintiff acted so recklessly that he severely injured himself by sniffing petrol and smoking at the same time. The first of those two imputations had originally been pleaded in the alternative to an imputation "The plaintiff is a petrol sniffer", but the plaintiff elected to proceed on what was thought to be the more serious of the two alternatives. 4 At the trial of the plaintiff's imputations, held pursuant to s 7A of the Defamation Act 1974, the jury found that only the first of those two imputations was conveyed to the ordinary reasonable reader by each edition, but they also found that this imputation was not defamatory of the plaintiff. The trial judge (Sperling J) directed the entry of a verdict for the defendant in relation to each of the two pleaded imputations in relation to each edition, and judgment in favour of the defendant in the proceedings. He ordered the plaintiff to pay the defendant's costs of those proceedings. 5 The plaintiff has sought leave to appeal. That is because, although the judgment entered in the proceedings was a final one, there is no basis for suggesting that the plaintiff would have recovered $100,000 (see Supreme Court Act 1970, s 101(2)(r)). The sole argument put forward in support of the application for leave to appeal is that the unreasonable verdict by the jury that the first imputation was not defamatory "deprived the plaintiff of his cause of action". That is hardly a firm basis for the grant of leave, but the application for leave has been heard concurrently with the appeal itself, so it is necessary to consider whether there are any real prospects of success in the appeal should leave be granted. 6 In support of the appeal itself, Mr Evatt for the plaintiff must persuade this Court that his client was entitled to a verdict in his favour on the first imputation as a matter of law, so that it may direct such a verdict in accordance with the Supreme Court Act, s 108(3). If the plaintiff is successful in obtaining the entry of such a verdict by this Court, the matter would then go to trial before a judge without a jury, when the other issues raised by the pleadings will be determined. 7 The test to be applied pursuant to s 108(3) is whether the verdict given by the jury was unreasonable, in the sense that it was one which no reasonable jury could reach, and the standard which must be applied by this Court is whether the plaintiff's case impugning the verdict for the defendant is "clear and beyond argument". (The authorities for those propositions are collected in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 at [50–52].) 8 Mr Evatt has submitted that, in determining whether any imputation was defamatory of the plaintiff, that imputation must be considered in the context of the matter complained of as a whole. That submission is correct: Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 at [26]–[28], [31]. Indeed, in the present case, it is the context of youth street crime in Taree on which the plaintiff necessarily relied for his successful argument to the jury that petrol sniffing is a crime. If the jury had not accepted that argument, it would not have found that the first imputation was conveyed to the ordinary reasonable reader. Otherwise, there may well have been arguments as to whether or not it is general knowledge within the community, first, that petrol sniffing is actually a crime (if indeed it is) and, secondly, that it is conclusively presumed by law that no child under the age of ten years can be guilty of an offence (see Children (Criminal Proceedings) Act 1987, s 5). The maxim that ignorance of the law is no excuse does not carry with it as a necessary corollary that every person is presumed to know the law. As to the second of those matters, there could also be an issue as to whether it would nevertheless still be defamatory of the plaintiff to say that he had committed a crime even if he could not have been prosecuted for it: Barnes v Sharpe (1910) 11 CLR 462 at 474, 485. Those issues, however, do not arise in this appeal. 9 The issue of whether the imputation was defamatory of the plaintiff must therefore be determined on the basis that the plaintiff is alleged by the matter complained of to have committed the crime of petrol sniffing. Mr Evatt has argued that all crimes, whatever their circumstances, are against the interests of the community and that, as a matter of principle, ordinary decent members of the community must think the less of any person who has committed a crime. I do not accept the existence of such a principle as one of universal application. I do not accept that it is true, for example, of some crimes which may have been committed under extreme circumstances of duress. Nor do I accept that such a principle would apply in relation to every person who commits a crime. It will depend in each case on the nature of the crime itself, the circumstances in which it is committed and the circumstances of the person who committed it. 10 The issue of defamation cannot be determined in the abstract. What the plaintiff must establish is that the imputation conveyed to the ordinary reasonable reader is defamatory of him or herself, not just of any person. Counsel for the defendant (Mr Blackburn SC) gave some homely examples to the jury to show why that is so. They made the point that it depends on what the ordinary decent members of the community would see to be the perception of a child that what he is doing is a crime. Whether such members of the community would think the less of the child would differ for, say, a very young child from the situation where the same thing was done by a child of, say, twelve or fourteen years. In relation to this specific imputation, Mr Blackburn suggested that the ordinary decent member of the community would think that a seven year old boy who was sniffing petrol was a silly child and, although it was a terrible thing that he was sniffing petrol and it was horrible that he had set himself on fire, those members of the community would rather ask themselves where the boy's parents were, and how the boy would be allowed to be in that situation — without (I would add, and as the matter complained of suggests) "any direction in [his] life". 11 Mr Evatt has submitted that such an argument put by Mr Blackburn to the jury is a circular one. He has argued that, if the age of the plaintiff warrants special consideration, then his age would be relevant to the issue of whether the plaintiff had committed the crime. He suggested that a jury may have concluded that, because of the plaintiff's age, his tender years had precluded him from actually committing a crime. With all due respect to Mr Evatt, it is his argument which is circular. As I have already sought to demonstrate, the jury was invited by Mr Evatt to find that the action of the plaintiff in sniffing petrol did constitute a crime because of what was said in the context of the matter complained of. It was fundamental to the jury's finding that the first imputation was conveyed to the ordinary reasonable reader that they did accept that argument Mr Evatt put to them. There was, therefore, no room for the plaintiff to argue that, because of his immaturity, the plaintiff could not have committed a crime. Nor was the trial judge asked to put any such argument to the jury. 12 Mr Evatt has argued that the jury should have considered the degree of moral turpitude involved in the plaintiff's petrol sniffing as being of the same order as that involved in the other "youth street crime" in which he is said to have participated. That involvement of the plaintiff does not assist him in an appeal against the jury's finding on the issue of defamation. The other youth street crime is not part of the imputation for which the plaintiff contended and which the jury accepted. As already stated, the jury were obliged to consider the context in which the "crime" of petrol sniffing was made, but in no sense was it unreasonable of the jury not to have equated the seriousness of that crime with the other crimes referred to. 13 Assuming, as it must be assumed, that the plaintiff here is alleged to have committed the crime of petrol sniffing, it was, in my view, clearly open to the jury to have found that the ordinary decent members of the community would not have thought any the less of the plaintiff for having so acted, because of his immaturity. A child of seven years old is, perhaps, somewhere near the borderline, but I am not satisfied from anything Mr Evatt has argued that it has been established as "clear and beyond argument" that the jury was not entitled to take such a view. 14 In my view, there are no prospects of success in the appeal succeeding, and I would, on that basis, refuse leave to appeal, with an order that the plaintiff pay the costs of the application. 15 IPP JA: I agree with the reasons delivered by Hunt AJA and the orders proposed by him. I would add the following comments. 16 The imputation found by the jury was that the plaintiff committed the crime of petrol sniffing. The respondent in its written submissions argued that a reasonable jury could readily conclude that right thinking members of the community would not think less of the appellant, he being a seven year old boy, for committing the crime of petrol sniffing. In my opinion this submission must be accepted. I accept that generally right thinking members of the community would think less of persons who have committed a crime but this is not an absolute rule. In this case the person said to have committed the crime is a seven year old child and the crime is sniffing petrol. Having regard to the extreme youth of the child right thinking people might feel pity for him and compassion and might attribute blame for his circumstances to others or to the environment in Taree in which he lived. These views might lead right thinking persons to absolve the appellant of any moral turpitude for being involved in the crime in question. 17 Counsel for the appellant submitted that this reasoning was circular. In written submissions filed in the appellant's behalf the following was said: If the age of the plaintiff warranted special consideration that would go to whether the plaintiff committed the crime. A jury might have concluded that because of his age, although he may have sniffed petrol, his tender years precluded him from actually committing a crime. Once the jury found the imputation conveyed because they were of the opinion he had committed a crime, otherwise they would not have found the imputation conveyed, then they were obliged to find the imputation defamatory. 18 I do not accept this argument. Members of the jury, who are not to be regarded as trained lawyers, might consider that a seven year old child who sniffs petrol commits the crime of petrol sniffing only because his conduct objectively speaking fell within the technical definition of a crime as prescribed by some statute. Nothing in such a conclusion however would preclude a reasonable jury from finding that the appellant was so young and the environmental circumstances such that he could not be held morally responsible for his actions. Hence it was open to the jury to conclude that the appellant's reputation was not affected by the imputation. I too would refuse the application for leave to appeal with costs. 19 TOBIAS JA: I agree with the orders proposed by Hunt AJA for the reasons he has given and I also agree with the additional remarks of the presiding judge. 20 IPP JA: The orders proposed by Hunt AJA will be the orders of the Court. ------------------------ DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.