Copley v Queensland Newspapers Pty Ltd [1993] QCA 18

IN THE COURT OF APPEAL [1993] QCA 018 SUPREME COURT OF QUEENSLAND Appeal No. 179 of 1992 Before the Court of Appeal The President Mr Justice Davies Mr Justice Pincus BETWEEN: REGINALD JOHN COPLEY (Plaintiff) Respondent AND: QUEENSLAND NEWSPAPERS PTY. LTD. (Defendant) Appellant REASONS FOR JUDGMENT OF THE COURT Delivered the 22nd day of February, 1993 This is an appeal from a judgment delivered in the Trial Division on 30 July 1992 whereby the respondent was awarded $50,000.00 damages for defamation with interest of $4,250.00 and the appellant was ordered to pay the costs of the action, taxed as between solicitor and client. The sole ground of appeal is that the trial judge erred in finding that the words complained of were capable of conveying and did convey, imputations that the respondent: (a) was involved in a conspiracy to cover up illegal police activity; and (b) did not honestly or properly perform his duties. As the matter was argued for the appellant, it was conceded that the respondent was entitled to succeed in this Court if either defamatory imputation was conveyed, and it is convenient to consider the matter by reference only to imputation (b). The action arose out of a feature article headed, in bold type, "Code of silence", which substantially occupied -- 1 of 9 -- 2 page 9 of the "Courier Mail" newspaper of Friday, September 1, 1989. The article was introduced by the following paragraph: "This week charges were withdrawn against a police officer for his alleged involvement in a drunken spree at Toowoomba in March. In total, nine police were charged, but none was convicted. Joe Budd visited Toowoomba to investigate the rampage which, it would seem, never happened." Then came the following six paragraphs: "At the beginning, it seemed relatively clear-cut. A group of police officers reportedly had dishonored the force while on a three-day drinking spree in Toowoomba during the Police Commissioner's Trophy rugby league carnival in March. Quoting angry locals, newspaper and television reports related that at least 50 police officers rampaged through pubs, motels and restaurants, assaulting people and destroying property. Given the climate of the Fitzgerald inquiry at the time, people spoke out immediately, forcing an embarrassed State Government to launch an inquiry by Brisbane barrister Chris Carrigan Q.C. Numerous witnesses willingly came forward to co- operate, in many cases identifying the officers responsible while detailing a shocking series of incidents. Following the inquiry 15 charges were laid against nine police officers. All nine have now been dealt with. Not one has been convicted. Only one person - a civilian - has been successfully prosecuted. Now, five months later, an investigation by The Courier Mail points to a cover-up by police, stretching from Toowoomba to Rockhampton and across the State. It also raises doubts the effectiveness of the legal processes in establishing what really happened." Much of what initially followed concerned the alleged "cover up by police" rather than the "doubts" said to have been raised "about the effectiveness of the legal process in establishing what really happened", but the fifteenth paragraph was in the following terms: "Some of those who went from the Carrigan inquiry to the witness box at the Toowoomba Magistrates Court now regret it because of the lasting effects on their lives." -- 2 of 9 -- 3 A number of paragraphs immediately preceding the sixty- third paragraph were concerned with events associated with alleged police harassment of one of the publicans who had complained, a Mr Peter Rogers. Then, paragraphs 63 to 76 were in the following terms: "Besides his allegations of police harassment, Rogers is dismayed no successful prosecutions have been brought against police for the March incidents following his initial complaints to the media. `It's pretty amazing, isn't it?' he said, `What are they trying to say - that nothing happened back in March? I can tell you that isn't the case, not by a long shot'. `The whole business has been a complete whitewash, a gross injustice and I find it just incredible.' `They're saying that these witnesses didn't see anything. If I did some of the things all these witnesses have said the police did, I'd be put in jail or at least prosecuted.' He claimed Cathy Campbell, Dennis O'Sullivan and Dudley Eastell were dealt with roughly by prosecutor John Copley at the trial of David Scott when they were called to the witness stand. Campbell and O'Sullivan also were to be the key witnesses at Detective Peter Sheehan's trial. However, the charges against Sheehan were dropped on the basis of Scott's acquittal. The prosecutor in Sheehan's case, Inspector Cliff Crawford, said the credibility of the witnesses at Scott's trial had been questioned and `we have no evidence against Sheehan in this court'. Campbell and O'Sullivan said they were badgered and screamed at by Copley during Scott's trial. At one point, the trial was briefly adjourned after Campbell broke down in the witness stand. `I felt like I was on trial,' she said. `He constantly screamed at me and got really angry with me. The defence lawyer treated me much less harshly than he (Copley) did.' `They made me feel like I was just trying to get a police officer for something. I'm not trying to discredit the police, but I just think if someone does something, then they should be prosecuted.' -- 3 of 9 -- 4 `Now I just feel like, "What's the use of it?" I won't even sign my statements any more because our statements won't do anything.' Dennis O'Sullivan told The Courier Mail he left the courtroom with the overwhelming feeling no one would be convicted for what happened in Toowoomba last March. `We were just made out to be idiots,' he said. `I thought for a while that it would be better just to shut up and forget about it all, but what if everyone thought like that?' Copley, a Brisbane barrister, did not return several telephone calls from The Courier Mail seeking his comments on the claims made by O'Sullivan and Campbell." A number of complaints were made by the appellant concerning the lengthy reasons for judgment delivered by the Trial Judge; for example, that he adopted the wrong approach by dissecting the article into its numerous paragraphs and analysing those paragraphs. However, the matters of present importance are limited in scope. It was not strongly argued that this court should conclude that the article did not convey the defamatory imputations complained of if it was satisfied that the words were capable of doing so. The primary submission was that, in law, the article was incapable of bearing the material meanings. We were taken to a number of authorities, of which it is necessary to refer only to two. In Jones v. Skelton [1963] 1 WLR 1362, the Privy Council said at pp.1370-1371: "It is well settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for decision by the court. If the words are so capable then it is a question for the jury to decide whether the words do in fact convey a defamatory meaning. In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. In Capital and Counties Bank v. George Henty and Sons Lord Selborne L.C. said: "The test, according to the authorities, is, whether under the circumstances in which the writing was -- 4 of 9 -- 5 published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense." The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v. Daily Telegraph Ltd. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense." In Mirror Newspapers Limited v. Harrison (1982) 149 CLR 293, Mason J. (as his Honour then was), with whom Wilson J. and, subject to presently irrelevant qualifications, Gibbs CJ. and Brennan JJ. agreed, said at p.301: "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." Further, at p.302, his Honour repeated the following remarks of Holroyd Pearce L.J. in the English Court of Appeal in Lewis v. Daily Telegraph Ltd. [1963] 1 QB 340 at p.374, namely: "When persons publish words that are imprecise, ambiguous, loose, fanciful or unusual, there is room for a wide variation of reasonable opinion on what the words mean or connote. The publisher can hardly complain in such a case if he is reasonably understood -- 5 of 9 -- 6 as having said something that he did not mean. But when words with a precise and well-known meaning are used without the addition of any expressions which could impart some other flavour to them, it is not fair to twist them from their normal sense." In Harrison's case, Brennan J. at p.304 quoted from Lord Devlin in the House of Lords in Lewis's case as follows: "... it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also fire; but it can be done. One always gets back to the fundamental question: what is the meaning that the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt: but loose talk about suspicion can very easily convey the impression that it is a suspicion that is well founded." These passages make the task of this court comparatively straightforward. 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. The starting point for this exercise in the present case is the tone set for the article by its title "Code of silence", and the consistent tenor throughout the article that impropriety had occurred. That impropriety was not confined by the article to the police, but extended to others associated with the prosecution, and notably the respondent who was named in the article. The impression created was that there had been consistent harassment of those with information adverse to the police charged, outside the court by other police and inside the court by the respondent, as the prosecuting counsel, who the article asserted "badgered and screamed at" witnesses. Strong -- 6 of 9 -- 7 emphasis is given to the notion that what occurred was a deliberate attempt to deter those with material information from participating in prosecutions by the assertions that not only had there been "a cover up by police" but that the "whole business has been a complete whitewash, a gross injustice ... ." For the appellant it was submitted that there were two different themes in the article, one concerned with police misconduct and the other with doubts raised "about the effectiveness of the legal process in establishing what really happened", and that the article was incapable of meaning that deliberate impropriety by the respondent was the cause of ineffectiveness in the legal process. However, an attempt to establish this by dissection and analysis, the course identified as a flaw in the approach of the trial judge, served merely to reinforce the impression gained by a neutral reading of the article, namely, that the ineffectiveness of the legal process was related to the respondent's deliberate misbehaviour. The trial judge was correct in concluding that the article was capable of bearing the imputation that the respondent did not honestly or properly perform his duties and in his further conclusion that that is what it in fact conveyed. The appeal should be dismissed with costs to be taxed. The respondent made an application for the costs to be taxed as between solicitor and client but, in the absence of any suggestion that there would be practical purpose in such an order, the costs order ought be in the usual form. -- 7 of 9 -- IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 179 of 1992 Before the Court of Appeal The President Mr Justice Davies Mr Justice Pincus BETWEEN: REGINALD JOHN COPLEY (Plaintiff) Respondent AND: QUEENSLAND NEWSPAPERS PTY. LTD. (Defendant) Appellant REASONS FOR JUDGMENT OF THE COURT Delivered the 22nd day of February, 1993 MINUTE OF ORDER: Appeal dismissed with costs to be taxed. CATCHWORDS: DEFAMATION - Statements amounting to defamation - Appellant published article suggesting police cover-up in relation to prosecution - whether references to respondent imputed involvement by respondent in conspiracy - whether article imputed dishonesty or improper performance of duties by respondent. Counsel: Mr C.E.K. Hampson Q.C. with him Mr D.K. Boddice for the appellant Mr I.D.F. Callinan Q.C. with him Mr A. R. Philp for the respondent Solicitors: Messrs. Thynne and Macartney for the Appellant Messrs. Gilshenan and Luton for the Respondent Hearing Date: 15th February, 1993 -- 8 of 9 -- 9 IN THE COURT OF APPEAL SUPREME COURT OF QUEENSLAND Appeal No. 179 of 1993 BETWEEN: REGINALD JOHN COPLEY (Plaintiff) Respondent AND: QUEENSLAND NEWSPAPERS PTY. LTD. (Defendant) Appellant The President Mr Justice Davies Mr Justice Pincus Judgment of the Court delivered the 22nd day of February, 1993 APPEAL DISMISSED WITH COSTS TO BE TAXED. -- 9 of 9 --