C v Queensland Newspapers Pty Ltd [2004] QDC 147

DISTRICT COURT OF QUEENSLAND CITATION: C v Queensland Newspapers Pty Ltd [2004] QDC 147 PARTIES: C Plaintiff v QUEENSLAND NEWSPAPERS PTY LTD Defendant FILE NO/S: Plaint 1692/99 DIVISION: PROCEEDING: Application ORIGINATING COURT: District Court, Brisbane DELIVERED ON: 24 May 2004 DELIVERED AT: Brisbane HEARING DATE: 13 May 2004 JUDGE: McGill DCJ ORDER: 1. Pursuant to rule 483, the following questions be separately decided before trial: (a) whether the words quoted in paragraph 3 of the statement of claim are capable of bearing each of the meanings alleged in paragraph 6 of the statement of claim; (b) whether the words quoted in paragraph 3 of the statement of claim are capable of bearing a meaning defamatory of the plaintiff. 2. Answer those questions: (a) the words are capable of bearing the meaning alleged in paragraph 6(d) of the statement of claim, but not any of the other meanings alleged in paragraph 6 of the statement of claim. (b) the words quoted in paragraph 3 of the statement of claim are capable of bearing the meaning defamatory of the plaintiff alleged in paragraph 6(d) of the plaint, but are not capable of bearing any other meaning defamatory of the plaintiff. 3. Paragraph 8(a)(iii) of the plaint, and paragraphs 2(a), 3(c)(iv), 4(a), 5(a)(iv), and 5(b) of the reply are -- 1 of 10 -- 2 struck out. CATCHWORDS: DEFAMATION – Defamatory Statements – whether imputations arise from words published – whether imputations defamatory of plaintiff. INFANTS AND CHILDREN – Criminal Law – sexual offence against child – publication of report – whether report revealed particulars likely to lead to the identification of the child. Defamation Act 1889 ss 4(1), 18(2). Children’s Services Act 1965 s 138. Copley v Queensland Newspapers Pty Ltd [1993] QCA 18 – applied. Farquhar v Bottom [1980] 2 NSWLR 380 – applied. Favell v Queensland Newspapers Pty Ltd [2004] QCA 135 – applied. Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 52 TLR 581 – not followed. COUNSEL: R A Mulholland QC and D K Boddice SC for the plaintiff P D T Applegarth SC and D C Spence for the defendant SOLICITORS: TressCox Lawyers for the plaintiff Thynne & Macartney solicitors for the defendant [1] Some years ago the defendant published in its newspaper an account of the sentencing of a man for an offence under s 229B of the Criminal Code, to which he had pleaded guilty. The account identified by reference to dates the period during which the offence was committed. The man was identified by name and age and in various other ways, including a reference to his being a family man, and that he had separated from his wife. All that was said of the complainant was that she was female, that she was a particular age when the offence began, and, unsurprisingly, that she went to school and had a mother. There was nothing in the article to suggest that the complainant was the daughter of the offender. [2] On 5 May 1999 a plaint was filed on behalf of the daughter of the offender claiming from the defendant damages for defamation in respect of the publication of the article. The plaintiff alleged that she was identified by “a large but unquantifiable number of readers of the said words as the girl therein referred to.” [3] The plaint alleged that in their natural and ordinary meaning the words published in the article meant and were understood to mean: “(a) the plaintiff was dishonoured by her father having an unlawful sexual relationship with her over a substantial period of time; -- 2 of 10 -- 3 (b) the plaintiff was dishonoured by her father having been sent to jail for maintaining an unlawful sexual relationship with her over a substantial period of time; (c) the plaintiff was dishonoured by her suffering severe psychological consequences from the criminal actions of her father; (d) the plaintiff was a willing party in the sexual relationship between her father and herself; (e) the plaintiff was at fault or to be blamed for the sexual relationship between her father and herself.” [4] On 3 June 1999 an entry of appearance and defence was filed on behalf of the defendant. Publication of the article was admitted. The allegation that the plaintiff was identified by readers of the newspaper was denied, and a number of defences were pleaded including, unsurprisingly, that the article was a fair report of public proceedings of a court of justice. A reply was filed on behalf of the plaintiff on 13 August 1999. It is unnecessary to set out the details of the reply, except to note that it alleges in paragraphs 2(a), 3(c)(iv), 4(a) and 5(a)(iv) and (b), that the publication identified the plaintiff in breach of s 138 of the Children’s Services Act 1965. 1 [5] The action appears thereafter to have proceeded in a somewhat leisurely fashion, with nothing of substance occurring until an application was filed on 22 March 2004 on behalf of the defendant. That application sought the determination separately before trial, and instanter, of the following questions: “(a) whether the words quoted in paragraph 3 of the statement of claim are capable of bearing each of the meanings alleged in paragraph 6 of the statement of claim; (b) whether the words quoted in paragraph 3 of the statement of claim are capable of bearing a meaning defamatory of the plaintiff.” [6] Other consequential or alternative relief was sought, and in addition an order was sought that paragraphs 2(a) and 4(a) of the reply be struck out on the ground that they had a tendency to prejudice or delay the fair trial of the proceeding. The allegations in the reply [7] Senior Counsel for the defendant submitted that the allegations in these two parts of the reply were embarrassing, on the ground that they involved a misapplication of s 13 and s 16 of the Defamation Act 1889. For the purposes of that argument, it was 1 The reply refers to the Children’s Services Act of 1962, but there was no such Act. The applicable provision in 1998 was s 138 of the 1965 Act. The pleadings do not expressly allege that the plaintiff was the complainant, but that is implied in the allegations of breach of s 138. It was not suggested that the article inaccurately identified the plaintiff as the complainant. -- 3 of 10 -- 4 submitted that I should assume that the publication did amount to a breach of s 138 of the Children’s Services Act 1965. [8] Section 138 of the Children’s Services Act at the time 2 provided, so far as is relevant: “(2) Where, in a proceeding before any court in relation to an offence … a child is concerned … as the person in respect of whom the offence is alleged to have been committed, then – (a) in the case of an offence of a sexual nature, a report of the proceeding or any part of the proceeding shall not reveal any prescribed matter relating to the child unless the court or justice expressly permits the inclusion of that matter in the report. … (6) In this section, ‘prescribed matter’ means – (a) the name, address, school, place of employment or any other particular likely to lead to the identification of the person concerned; or (b) any photograph, picture, videotape or other visual representation of the person concerned or of any other person that is likely to lead to the identification of the person concerned.” [9] Subsection (4) made it an offence to make or publish a report that, relevantly, contravened subsection (2). A report contravened subsection (2) if it revealed any prescribed matter relating to the child, assuming that there was no permission given by the court. 3 The word “reveal” may well be wider than the word “contain”, and accordingly it may be possible for a report to have offended against the section because, although it did not itself contain any of the prescribed matter, it contained a reference to some other source of information where that prescribed matter was disclosed. For example, this could be done by indicating that the complainant was the person referred to in some other article published in the newspaper, or indeed some other newspaper. There was however no reliance on anything of that nature in the present case. [10] What matters then is whether the report itself revealed any prescribed matter. Prescribed matter is defined by reference to particulars. None of the specified particulars in the definition were published in the report, and the question then is whether the particulars that were published were “likely to lead to the identification of the person concerned.” That is an objective test, and does not depend on whether or not a particular person in fact identified the complainant correctly from the 2 The section was substituted by s 81 of Act 17 of 1989. The Act was repealed by Act 10 of 1999. 3 There was no allegation that there was any relevant permission. -- 4 of 10 -- 5 particulars published. Senior Counsel for the plaintiff conceded, correctly I think, that evidence that particular individuals did accurately identify the complainant would not be admissible in the prosecution for an offence under s 138. The test was not whether it was possible for a person to identify the complainant; the test was whether identification was likely. Identification in particular circumstances may be possible but unlikely, in which case no offence was committed under s 138. It is a matter for assessment by the tribunal of fact by reference to what was published whether it was “likely” that publication of those particulars would lead to the identification of the complainant.4 [11] In those circumstances attention must be focused on the particulars of the complainant which were published. The only such particulars were that she was of a particular age on a particular date, she was female, she went to school and she had a mother. The third and fourth particulars really are of no assistance in narrowing the field. In substance the particulars would describe any female who was of that age at that date. There is nothing in the article to indicate or suggest that there was any family relationship between the complainant and the offender, and therefore particulars of the offender are irrelevant for this purpose. [12] The question of whether the complainant was likely to be identified by these particulars is of course a question of fact, but the particulars concerned are so sparse and so limited that in my opinion it would be clearly perverse for any tribunal of fact to conclude that a particular individual was likely to be identified by them. No reasonable tribunal of fact could come to that conclusion, and, in a matter to be tried by a jury, in my opinion no judge would allow that question to go to the jury. I regard that as perfectly clear, even satisfying the General Steel test.5 [13] In these circumstances there is no point in my embarking on the questions sought to be raised by the defendant, of whether, assuming there had been a breach of s 138, this nevertheless did not show that the publication was unlawful. It is in my opinion fanciful to suggest that there was by the publication of this article a breach of s 138, and in those circumstances the issue Counsel for the defendant sought to have me consider is in my opinion really hypothetical. The appropriate response is to strike out the allegations of a breach of s 138 from the reply.6 I made that order at the hearing, and therefore did not entertain any argument about the question sought to be raised by paragraph 6 of the application. Questions to be decided separately before trial [14] Senior Counsel for the plaintiff did not oppose the determination of these questions in advance of the trial. There are obviously practical advantages in doing so. In circumstances where a trial by jury has been required, the questions will have to be decided at some point by a judge anyway, and I am prepared to answer them. 4 As to “likely” see R v Hind & Harwood (1995) 80 A Crim R 105 at 141 per Pincus JA; [1995] QCA 202. 5 General Steel Industries Inc v Commissioner for Railways (1965) 112 CLR 125. 6 Such an allegation also appears in paragraph 8(a)(iii) of the plaint, and should also be struck from there. -- 5 of 10 -- 6 [15] For the purposes of answering the questions I must assume that the publication was understood to refer to the plaintiff. I suppose the question of whether there is a case fit to go to the jury on that point is one that cannot be decided until the close of the plaintiff’s case, and therefore I have to assume this point in favour of the plaintiff, notwithstanding that, essentially for the reasons given earlier, such a conclusion strikes me as quite artificial. Nevertheless, I do not think that this renders the questions hypothetical. If the questions were hypothetical I ought not to answer them7 , but I do not think that is the case with these questions. The test [16] By s 18(2) of the Defamation Act 1889, the question of whether any matter alleged to be defamatory is or is not capable of bearing a defamatory meaning is a question of law, and hence a matter for a judge. The concept of what is “defamatory” depends on the definition in s 4 of the Act which provides: “(1) Any imputation concerning any person, or any member of the person’s family, whether living or dead, by which the reputation of that person is likely to be injured, or by which the person is likely to be injured in the person’s profession or trade, or by which other persons are likely to be induced to shun or avoid or ridicule or despise the person, is called ‘defamatory’, and the matter of the imputation is called ‘defamatory matter’. (2) An imputation may be expressed either directly or by insinuation or irony.” [17] The plaintiff has alleged five specific defamatory meanings of the words published, as set out above. In respect of these, the question referred to in s 18(2) involves two parts, whether the words published were capable of bearing the particular meaning alleged, and whether that particular meaning is capable of being defamatory. [18] The issue arising in these circumstances has been expressed, in Copley v Queensland Newspapers Pty Ltd [1993] QCA 18, as follows: “Provided only that a distinction is drawn between the readers’ understanding of what the newspaper is saying and judgments or conclusions which readers may reach as a result of their own beliefs and prejudices, the issue is simply how the article would be read by reasonable persons of ordinary intelligence, drawing on their own knowledge and experience of human affairs and perhaps reading between the lines in light of their general knowledge and experience.” [19] A somewhat more detailed exposition of the relevant considerations appears in the judgment of Hunt J in Farquhar v Bottom [1980] 2 NSWLR 380 at 385-6. That passage was quoted in the judgment of the Court of Appeal in Favell v Queensland Newspapers Pty Ltd [2004] QCA 135 8 . I will not set out that passage in full, but I have had regard to it and am attempting to apply it. 7 Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334. 8 Quoted by Jerrard JA, with whom Philippides J agreed and McPherson JA agreed generally, from part of the judgment of the judge at first instance in that matter. There was no dispute that that was -- 6 of 10 -- 7 [20] The first three imputations relied on are introduced with the assertion that the plaintiff was dishonoured by something. There is nothing in the article specifically to that effect, and Senior Counsel for the plaintiff said that the proposition that the plaintiff was dishonoured arose by implication from what followed in the allegation. Accordingly it seems to me to be something of an argumentative plea. The real issue in relation to imputation (a) is whether the words published were capable of being defamatory by meaning that her father was having an unlawful sexual relationship with her over a substantial period of time, which thereby dishonoured her. In circumstances where it is by no means clear that it is defamatory to convey the meaning that the person has been dishonoured9 , this addition adds an unnecessary, and in my view undesirable, complication to the plea. Imputation (a) [21] A person my be embarrassed or even ashamed by publication of the fact of the relationship, but I do not accept that the reputation of the victim would be likely to be injured among ordinary reasonable people, or that such people would be likely to be induced to shun or avoid or ridicule or despise her, because of that. The allegation has overtones of an attitude prevailing in the past, when any form of sexual relations outside marriage, even involuntary ones, were frowned on. I was referred by counsel for the plaintiff to the decision of the Court of Appeal in Youssoupoff v Metro-Goldwyn-Mayer Pictures Ltd (1934) 52 TLR 581, to the effect that it is defamatory of a woman to say that she has been raped. But that was a long time ago, and I think that attitudes to sexual offences and the victims of sexual offences have changed.10 [22] Counsel for the plaintiff also relied in support of this imputation on the proposition that the concept of sexual relationship implied voluntary participation, so that this imputation also carried the suggestion that the plaintiff was a willing party to the relationship. But that is not pleaded as part of the imputation relied on in paragraph (a), and is specifically the imputation pleaded in paragraph (d). Insofar as the words used carried that imputation, that is covered by paragraph (d). I do not think imputation (a) can be defended or expanded by reading into it something not expressly pleaded, which is pleaded specifically in a different imputation. If the only significant aspect of imputation (a) is the point that is already separately pleaded as imputation (d), it adds nothing to the latter imputation anyway. [23] Applying the test and considering the matters referred to earlier, it is clear that the imputation pleaded does arise out of the words published, except for the argumentative addition of the word “dishonoured”, which does not arise. In addition I am not persuaded that the imputation is capable of being defamatory. In relation to imputation (a), each of the questions should be answered “no”. the correct test to apply in circumstances such as those arising in the present case; the issue in that appeal was whether a more rigorous test had to be applied in the context of an application to strike out part or all of the statement of claim under r 171. 9 I do not consider that it is defamatory to say of a person that that person has been dishonoured by something done to that person over which that person had no control. It is not defamatory to be identified as a victim. 10 See Galea v Amalgamated Television Services Pty Ltd (Supreme Court of NSW, 20747/96, Levine J, 20.2.98, unreported.) -- 7 of 10 -- 8 Imputation (b) [24] In relation to imputation (b), this adds only the circumstance that the plaintiff’s father had been sent to gaol because of what had occurred. That in my opinion does not strengthen the case. The argument on behalf of the plaintiff was to the effect that people, at least some people, might conclude that it was conduct for which she was some way at fault which had resulted in her father being sent to gaol, and that, viewed in this way, the imputation could be seen as defamatory. Certainly the proposition that as a result of something the plaintiff did, or for which the plaintiff was in some way responsible, another person was sent to gaol would be capable of being defamatory, but that argument depends on the proposition that the plaintiff, notwithstanding her youth and the nature of the relationship, was in some way responsible for the existence or continuation of the criminal sexual relationship. I do not think that in this day and age any reasonable person of ordinary intelligence would draw that conclusion in the circumstances. [25] The question is not whether something that the plaintiff did or did not do might be capable of having in some way contributed to the commission of the offence, but whether there was anything in the mere fact that the offence had occurred which would suggest to reasonable persons of ordinary intelligence that that was likely to have been the case. In my opinion such persons would clearly not draw that conclusion simply from that fact, and would not draw that conclusion even if they drew the inference from the words published that the plaintiff had not complained to anyone about what had been going on. That latter inference may be fairly open, in view of the wording of the article, but it is still a big step to conclude that some act or omission of the plaintiff had led her father to behave in this way towards her, and I do not think that reasonable people of ordinary intelligence would understand that that was what this article was in substance saying. [26] Accordingly I do not think that this addition distinguishes this imputation from imputation (a). The article is not capable of bearing this additional meaning, and for this and for the earlier reasons therefore the two questions should be answered “no”. Imputation (c) [27] The article indicated that the plaintiff had suffered severe psychological consequences from the criminal actions of her father, and the only question is whether this is capable of being defamatory. It may be that it is defamatory, or at least capable of being defamatory, to say that a person is suffering from some forms of mental illness or disorder, or perhaps from unspecified mental illness or disorder, but that is not what is suggested here. The proposition is simply that she suffered psychological consequences, a form of mental harm or injury. No reasonable person of ordinary intelligence would presume that the psychological consequences amounted to a mental disorder which in some way rendered her repulsive, so that they would be induced to shun or avoid her.11 None of the other aspects of s 4(1) apply. In my opinion the position is indistinguishable from an assertion that a person has suffered a physical injury, which is plainly not defamatory. Again 11 See Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564; Emerson v Walker [2001] WASC 7 -- 8 of 10 -- 9 nothing is gained by the addition of the assertion that the plaintiff was thereby dishonoured, except that it leads to the conclusion that the imputation as pleaded does not arise from the words published, so that the two questions should each be answered “no”. Imputation (d) [28] In relation to the fourth imputation, the two matters relied on as suggesting that this arises from the publication are the description of the offence as “maintaining an unlawful sexual relationship”, and the reference to the circumstances under which the offence came to light, which imply that the plaintiff did not complain about her father’s conduct. Although “maintaining a sexual relationship with a child” is the technically correct short form description of the offence created by s 229B of the Code 12 , ordinary readers are not lawyers and are unlikely to know this, and are unlikely to appreciate the elements of that offence. For ordinary readers the concept of a “sexual relationship” may well be taken to imply that both parties are willing participants in the relationship, in the absence of some indication to the contrary. Further that inference may well be strengthened by the inference that there was an absence of complaint. [29] On the other hand, the article referred to the severe psychological consequences that the plaintiff had suffered, that she had found it difficult to cope, and had previously contemplated suicide, and these are arguably inconsistent with her having been a willing party to the relationship. In addition, reasonable readers of ordinary intelligence would not readily assume that a girl of the stated age would be a willing party to a sexual relationship with her own father.13 There is also the consideration that the article refers to the circumstance that there was no act of sexual intercourse and no attempted act of sexual intercourse. Given that the ordinary usage of the term “sexual relationship” would in my opinion imply the occurrence of sexual intercourse, the publication of this fact ought to have alerted a reasonable reader of ordinary intelligence to the fact that what was alleged to have occurred here was not a “sexual relationship” in the usual sense. [30] In these circumstances, it is by no means clear that the imputation pleaded does arise from the words published. There are at least significant, and perhaps strong, arguments to the contrary, but in circumstances where the question is whether the matter published is capable of bearing the defamatory meaning I accept that this is not a conclusion that I should reach too readily. I certainly accept that matters of community standards are better decided by juries than by judges, and there is also the consideration that a jury is in a better position to assess how much attention would be paid to all of the various parts of the article by an ordinary reasonable reader, and to assess whether any impression which may have been created in the first paragraph of the article, which is where the technical description of the offence appears, would have been dispelled by what appeared elsewhere in the article, or from the making of the connection, which I am asked to assume but which is otherwise essentially inexplicable to me, between the complainant, or victim, referred to in the article, and the plaintiff. In these circumstances I am not prepared 12 See form 131 in the Criminal Practice Rules. 13 For the purposes of this exercise I assume that the relevant readers are those who had identified the plaintiff as the girl of whom the words were published, and who therefore knew of the relationship. -- 9 of 10 -- 10 to conclude that the words published are not capable of bearing the meaning alleged in imputation (b). If that meaning fairly arises from the article, I think equally it is one which is capable of being defamatory. In the circumstances therefore, in relation to imputation (d) each of the questions should be answered “yes”. Imputation (e) [31] The fifth imputation is somewhat different, alleging that the article meant that the plaintiff was at fault or to be blamed for the relationship. As I have indicated earlier, there is nothing in the article which specifically suggested this, and it is really a question of whether the reasonable reader of ordinary intelligence would infer this from the circumstances suggesting that she was a willing party to the relationship. But I think that this imputation alleges more than that, that she was in some way responsible for initiating or continuing the relationship, or that she had done or omitted to do something which was to her knowledge wrong. [32] It is one thing to say that a girl of that age might, through naivety and subservience to a parent, participate willingly in some form of sexual relationship; but whether a reader would take that further step is more doubtful. I suppose it could be possible for some readers to arrive at that conclusion, simply on the basis of the contents of this article, but that is not the test. I have given some anxious consideration to the question of whether I could be sufficiently confident of my understanding of the attitudes of reasonable readers of ordinary intelligence in these circumstances, but ultimately I am satisfied that the words published are not capable of bearing this meaning, applying the tests referred to earlier. Accordingly I would answer the first question “no” in relation to imputation (e). If I had concluded that the words used were capable of bearing that meaning I would have concluded that it was capable of being defamatory. Conclusion [33] The plaintiff did not suggest that the words used were capable of bearing a meaning defamatory to the plaintiff other than is pleaded in paragraph 6 of the plaint. Accordingly, I would answer the questions set out in [5] above as follows: (a) The words are capable of bearing the meaning alleged in paragraph 6(d) of the statement of claim, but not any of the other meanings alleged in paragraph 6 of the statement of claim. (b) The words quoted in paragraph 3 of the statement of claim are capable of bearing the meaning defamatory of the plaintiff alleged in paragraph 6(d) of the plaint, but are not capable of bearing any other meaning defamatory of the plaintiff. [34] In these circumstances it is not appropriate to make any of the consequential orders sought in paragraph 3, 4 or 5. I shall publish these reasons, and invite submissions in relation to costs. -- 10 of 10 --