Citation: Hrdavec v Fairfax Media Publications Pty Ltd [2016] NSWDC 352
Court: District Court of New South Wales
Date: 14 December 2016
Judge(s): Gibson DCJ
Background
The plaintiff was one of four men charged with aggravated sexual assault and related offences arising from an alleged incident at a house party in Blacktown in 2015. The defendant published an online article reporting that one co-accused had pleaded guilty to gang rape, that two others were facing court (one on bail, one in custody), and that the plaintiff had been charged with the same offences. A photograph of the plaintiff was captioned with the words that he "has also been charged with gang-raping a teenager."
The plaintiff commenced defamation proceedings and pleaded five imputations arising from the article. The defendant challenged both the form and capacity of those imputations under rules 14.30 and 28.2 of the Uniform Civil Procedure Rules 2005 (NSW). The central contest was whether the article was reasonably capable of conveying an imputation of outright guilt, rather than mere reasonable suspicion.
Legal Issues
- Whether the article was reasonably capable of conveying an imputation that the plaintiff was guilty of gang-raping a teenage girl, as distinct from being merely suspected of the offence.
- Whether the pleaded imputations were in proper form, including whether any two imputations failed to differ in substance from one another.
- How the principles from Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 and the English "Chase levels" of meaning applied where a co-accused had already pleaded guilty.
Decision
The guilt imputation (imputation (e))
Gibson DCJ held that this case differed materially from the ordinary situation described in Mirror Newspapers Ltd v Harrison, where a bare report of charge and arrest cannot, without more, convey guilt. The article here was not merely a report of a charge. It appeared in the context of a headline announcing the guilty plea of a co-accused, references to other co-accused who were in gaol or on bail, and a closing statement that the maximum sentence for gang rape is life imprisonment. The cumulative effect of these features was, in the court's view, capable of conveying guilt rather than mere suspicion to the ordinary reasonable reader.
Applying the capacity test from Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227, the court described this as a rare case where an imputation of outright guilt clears the threshold. The test at the capacity stage is a generous one: the question is whether a jury could sensibly understand the article to carry that meaning, not whether a court concludes it does. The court was satisfied that threshold was met, and allowed the guilt imputation to proceed to the tribunal of fact. The suspicion imputation was retained as a fall-back pleading.
Imputations (b) and (d)
The court struck out imputations (b) and (d) on the ground that they did not differ in substance from one another, applying the principles in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. No detailed reasons were given for this ruling as none were requested.
Costs
Because the plaintiff achieved significant success on the principal contested issue (the capacity of the guilt imputation), costs were awarded as the plaintiff's costs in the cause.
Orders Made
- Imputation (e), repleaded as "the plaintiff is guilty of gang raping a teenage girl at a Blacktown house party," is reasonably capable of being conveyed and is to be renumbered imputation (a).
- Imputation (c), repleaded as "the plaintiff is reasonably suspected by the police of gang raping a teenage girl at a Blacktown house party," is to be pleaded as a fall-back imputation and renumbered imputation (b).
- Imputation (a), repleaded as imputation (c), is reasonably capable of being conveyed, amended to read: "the plaintiff is charged with aggravated sexual assault in company, deprive liberty and aggravated indecent assault in company."
- Imputations (b) and (d) are struck out.
- Amended Statement of Claim to be filed within 14 days.
- Defence due by Friday 27 January 2017; reply due 14 days thereafter.
- Matter stood over for further directions on Thursday 16 February 2017.
- Costs to be the plaintiff's costs in the cause.
Key Takeaways
- The District Court confirmed that the usual rule from Mirror Newspapers Ltd v Harrison (that a bare report of charge and arrest cannot convey guilt) is not absolute. Where an article embeds a charge report within a broader narrative of co-accused guilt, custody, and sentencing consequences, an imputation of outright guilt may be reasonably capable of being conveyed.
- The "Chase level" framework, drawn from English authority and distinguishing between imputations of guilt (level one) and reasonable suspicion (level two), has been adopted in Australian defamation proceedings as a useful analytical tool at the capacity stage.
- At the capacity stage, the applicable test is one of generosity rather than parsimony: the question is whether a jury could sensibly find the meaning, not whether the court itself would do so.
- Where an article names a charged person alongside a co-accused who has pleaded guilty, and notes that others face custody or bail conditions, the cumulative framing of the article is a relevant consideration in assessing what meaning it is capable of conveying.
- Two imputations that do not differ in substance from one another will be struck out in accordance with the Drummoyne principles, regardless of how they are framed.
Legislation and Cases Referenced
Legislation
- Uniform Civil Procedure Rules 2005 (NSW), rr 14.30 and 28.2
Cases
- Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
- Charleston v News Group Newspapers Ltd [1995] 2 AC 65
- Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11
- Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
- Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
- Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
- Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
- Moran v Schwartz Publishing Pty Ltd [2014] WASC 334
- Morgan v Odhams Press Ltd [1971] 1 WLR 1239