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Griffin v Australian Broadcasting Commission (No 2) [1974] PGSC 13; [1974] PNGLR 152 (7 November 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 152 - Griffin v Australian Broadcasting Commission (No. 2)

[1974] PNGLR 152

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

GRIFFIN

AUSTRALIAN BROADCASTING COMMISSION (NO. 2)

Port Moresby

Denton AJ

29-30 July 1974

7 November 1974

DEFAMATION - Statements amounting to defamation - Particular statements - Imputation of police having material upon which they would rely as a confession of attempting to obstruct justice - Barrister - Radio News broadcast - Defamation Act 1962 s. 6 (1).[ccvii]¹

DEFAMATION - Justification - Publication in good faith for information of public - Radio News broadcast - Report substantially inaccurate - Public proceeding of Court - Imputation of police having material upon which they would rely as a confession of attempting to obstruct justice - Barrister - Defamation Act 1962 s. 13 (1) (c).[ccviii]²

DEFAMATION - Damages - General damages - Assessment - Plaintiff not giving evidence - Plaintiff barrister - Matters to be considered - Pleadings - Occupation - Local conditions.

The plaintiff, a practising barrister and a University lecturer, sued for defamation of him contained in two news broadcasts, the publication being:

“A court in Port Moresby today began hearing a charge of attempting to obstruct the court (sic) of justice against a Port Moresby barrister. John Anthony Griffin has been charged with having attempted to obstruct the course of justice in a case against Cornelius John Boxtel. Boxtel was subsequently acquitted of a charge of rape. In court today, the prosecutor Mr. Kenny said Griffin had asked a woman not to tell police that she had heard an argument which may have been connected with the rape charge. He said Griffin at the time was defence counsel for Boxtel. Mr. Kenny told the court that he planned to tender a transcript of a telephone conversation in which Griffin allegedly admitted the offence”.

and the last sentence only being relied upon at the hearing. The defendant alleged that the publication was a fair report of the public proceedings of a court published in good faith for the information of the public and therefore protected by s. 13 (1) of the Defamation Act 1962.

Held

N1>(1) The imputation to be drawn from the publication relied upon was not that the plaintiff was in fact guilty of the offence, or that the plaintiff had confessed to the offence but a somewhat lesser imputation that police had material upon which they would rely as amounting to a confession by the plaintiff of an attempt to obstruct justice and that imputation was a defamatory imputation within s. 6 (1) of the Defamation Act 1962.

Lewis v. Daily Telegraph Limited, [1964] A.C. 234, Webbie v. Nationwide News Pty. Limited, (1968) 12 F.L.R. 271, Monson v. Tussauds, Ltd.[1894] UKLawRpKQB 17; , [1894] 1 Q.B. 671, Kelly v. Daily Telegraph Newspaper Co. [1897] NSWLawRp 96; (1897) 18 L.R. (N.S.W.) 358, Simmons v. Mitchell (1880) 6 App. Cas. 156, Grant v. Yates (1886) 2 T.L.R. 368 and O’Brien v. Marquis of Salisbury (1889) 6 T.L.R. 133 referred to.

N1>(2) The publication related to a public proceeding of a court and was for the information of the public: a comparison with the actual statement made in Court demonstrated substantial inaccuracy, more than a minor one not affecting the real meaning as laymen would understand it; the use of the word “allegedly” did not in any way reduce the implication; accordingly the report was not a fair report within s. 13 (1) (c) of the Defamation Act 1962.

Anderson v. Nationwide News Pty. Ltd. (1970), 91 W.N. (N.S.W.) 781, at p. 791 and Hope v. Sir W. C. Leng & Co., (1907) 23 T.L.R. 243, at p. 244 referred to.

N1>(3) The plaintiff not having given evidence, damages of $500.00 should be awarded on consideration of such evidence as was available on the pleadings and the evidence, with the assistance of a general comprehension of the nature of the plaintiff’s occupation and the likely scope of his reputation and some knowledge of local conditions.

Associated Newspapers, Ltd. v. Dingle, [1964] A.C. 371 applied.

Trial

The plaintiff sued for damages for defamation of him contained in two news broadcasts on 5th January, 1973. The action was heard together with the case reported herein at p. 141 as Griffin v. Australian Broadcasting Commission (No. 1).

Counsel

R. V. Gyles, for the plaintiff.

F. J. Gormley Q.C. and P. A. Benson, for the defendant.

Cur. adv. vult.

1 November 1974

DENTON AJ: The plaintiff in this action sues for defamation of him contained in two news broadcasts on 5th February, 1973. The pleadings admit a publication as follows:

At the commencement of the hearing it was indicated that the plaintiff and defendant agreed that this action and action No. 43 of 1973, which related to claims of defamation of the plaintiff by the defendant on other occasions, should be heard together, although the defendant made no application for consolidation of the two actions.

At the commencement of the hearing counsel for the plaintiff stated that although the statement of claim alleged that the whole publication was defamatory the plaintiff intended to rely only on the last sentence of it. A defence as to the remainder of the publication, that it was a fair report of the public proceedings of a court published in good faith for the information of the public and therefore protected, then became otiose as to that portion of the publication. The defence was pursued by the defendant as to the matter relied upon by the plaintiff.

The plaintiff called no evidence, relying on the admissions in the pleadings, and the evidence called by the defendant related, so far as concerned the question of the defendant’s liability, principally to the actual terms of the publication in court which had been reported in the broadcast sued on.

The Defamation Act 1962, s. 5 provides that “defamatory matter” means the matter of an imputation referred to in s. 6 of the Act, and the Act further provides:

N2>“s6(1) An imputation concerning a person .... by which the reputation of that person is likely to be injured or by which he is likely to be injured in his profession or trade or by which other persons are likely to be induced to shun or avoid or ridicule or despise him is a defamatory imputation.

N2>(2) An imputation may be expressed either directly or by insinuation or irony.

N2>(3) The question of whether any matter is or is not defamatory or is or is not capable of bearing a defamatory meaning is a question of law.

s7 A person who publishes a defamatory imputation concerning a person defames that person within the meaning of this Act.

s9 It is unlawful to publish defamatory matter unless the publication is protected, justified or excused by law.

s13(1) For the purposes of this Act, it is lawful:

(a) ...

(b) ...

(c) to publish in good faith for the information of the public a fair report of the public proceedings of a court, whether the proceedings are preliminary, interlocutory or final, or of the result of any such proceedings, unless, in the case of proceedings, which are not final, the publication has been prohibited by the court, or unless in any case the matter published is blasphemous or obscene or publication is prohibited by or under a law in force in the Territory or a part of the Territory;

…

N2>s17 Where a question arises as to whether a publication of defamatory matter was or was not made in good faith, and it appears that the publication was made in circumstances which would afford lawful excuse for the publication if it was made in good faith, the burden of proof of the absence of good faith lies upon the party alleging the absence.”

Counsel for the plaintiff stated, as the imputations relied on by the plaintiff, that the plaintiff had admitted, that is, confessed to the police, to the offence of attempting to obstruct justice and that the plaintiff was in fact guilty of obstructing justice.

To assist in arriving at my decision I have considered, as illustrations of the proper approach to the question of what imputations were made by the publication, a number of cases which were cited to me in argument in case No. 43 of 1973 heard concurrently with this case[ccix]³. These cases are principally Lewis v. Daily Telegraph Limited[ccx]⁴, Webbie v. Nationwide News Pty. Limited[ccxi]⁵, Monson v. Tussauds Limited[ccxii]⁶, Kelly v. The Daily Telegraph[ccxiii]⁷, Simmons v. Mitchell[ccxiv]⁸, Grant v. Yates[ccxv]⁹, and O’Brien v. Marquis of Salisbury[ccxvi]¹⁰. The discussion in these cases is of assistance as to the approach to this problem, but none of it related to precisely similar words or situations.

I think that it would be open to me to find either of the imputations claimed for the plaintiff, but the prime question is, what imputations do I in fact find?

The defendant relies considerably on the use of the word “allegedly” in the publication, and on a fair reading of the words (or hearing of them, as would have occurred) if I take the view that caution was being expressed by publishing this word to listeners, so as to avoid the impression that guilt existed or had been admitted beyond question or argument, the imputation of actual guilt would not be present.

Placing myself as best I can in the position of the man in the street or the ordinary citizen I do not draw the inference from the publication that the defendant was saying that the plaintiff was in fact guilty of the offence, or that the plaintiff had confessed to the offence, but making a somewhat lesser imputation that police had material upon which they would rely as amounting to a confession by the plaintiff of an attempt to obstruct justice. I think that this was a defamatory imputation, applying the tests which I have stated.

I now consider the defence raised; that the publication was protected as a fair report of the public proceedings of a court published in good faith for the information of the public.

Notwithstanding the plaintiff’s withdrawal of his claim of defamation regarding the publication except for its last sentence, there was no admission by the plaintiff that the publication other than the last sentence was in fact a fair report. However, the plaintiff had claimed that it was published and this was admitted by the defendant on the pleadings and it is, therefore, before me and is not the subject of complaint by the plaintiff notwithstanding its defamatory character. I should, I think, infer that the plaintiff could not succeed in an action based on that portion of the broadcast.

So far as concerns the defamatory matter in issue, the plaintiff conceded (the onus to prove the contrary being upon him) that the publication was in good faith. I consider that it sufficiently appears that the publication related to the public proceedings of a court, and it appears obvious from the evidence that the publication was for the information of the public. The sole issue, therefore, is whether the report was fair.

The evidence as to this appeared in a transcript of the proceedings before the Magistrate from which the defendant established that Mr. Kenny, Q.C. had opened proceedings against the plaintiff relating to a charge of attempting to obstruct the course of justice in accordance with the publication except in one respect. This respect is that Mr. Kenny, Q.C. did not say that the plaintiff had admitted or allegedly admitted the offence. His actual words were:

“Further evidence will be given by Inspector Blackwell of an admission made by the defendant which was overheard in these circumstances: The Inspector was on duty monitoring the phone of Boxtel on Friday, 28th July, 1972, and he overheard an outwards call made by Boxtel to defendant in the course of which it is alleged, an admission was made. I have been asked by Mr. Gyles not to lead the alleged admission and, in deference to the request, I do not ‘open’ it.”

It is apparent that the report was inaccurate but the question is whether although inaccurate it was fair. The defendant cited Goldsbrough v. John Fairfax & Sons Ltd.[ccxvii]¹¹ as an illustration of the principle that the report need not be verbatim. In New South Wales the test at the time of Goldsbrough v. John Fairfax & Sons Ltd.[ccxviii]¹² was more stringent as the Defamation Act of New South Wales at that time required that the report be both fair and accurate. This authority establishes that fairness may exist even although the report is not verbatim, and even although the report has minor inaccuracies if when looked at overall the report comes within the description “fair”. In Anderson v. Nationwide News Pty. Ltd.[ccxix]¹³ Mason J. A. approved a summing-up in which the direction was given that a fair report is a substantially accurate summary of the proceedings, neither more nor less, and that the question is whether it substantially records what was said and done. Mason J.A. added:

“That truth and fairness are different concepts may be conceded but it is clear that in having regard for fairness of report it is necessary to have regard to its truth or accuracy, that is whether it faithfully reflects the events which it purports to report. There is an element of confusion in speaking of truth in the context of a fair report because the fairness of the report depends upon the extent to which it accurately records or summarizes the event or events which are the subject of the report. A reference to truth in this context may relate not to the accuracy of the report but the truth of statements made in the proceedings which are the subject of that report. Certainly the truth or falsity of those statements is not relevant in considering whether the report is fair but this affords no ground for denying that the fairness of the report is to be ascertained by reference to the accuracy with which it records or summarizes the events which it purports to report.

Nor does it support the view that fairness of the report is to be ascertained by reference to subjective considerations as, for example, the intention of the author or publisher. The fairness of the report is to be determined objectively by comparing the report with the event or events which it purports to describe.”

On this point it was argued forcibly for the defendant that a report which was broadcast and necessarily compressed could not allow for nuances of meaning understood by legal practitioners but not by laymen, even experienced court reporters. In Hope v. Sir W. C. Leng & Co.[ccxx]¹⁴ Collins M.R. said in the Court of Appeal that he agreed with a summing-up by Grantham J. as follows:

“I think juries would be very wrong if they were to be too severe on them” (i.e. reporters) “if there happens to be some slight flaw or something which they think would have been better put in a different way. But if in the main it is an accurate report and you do not think it would do any harm to the parties I think a jury should protect them by saying that they fail to see that it has been proved that the account was not a fair and accurate report of what took place in a court of justice.”

The report of the judgment of Collins M.R. continues:

“The report was a report in a daily newspaper and it was not to be judged by the same standard of accuracy which would be adopted if they were criticising a law report of a professional law reporter. It must be regarded from the standpoint of persons whose function it was to give the public a fair account of what had taken place in a court of justice. It would he thought be wrong to judge it by the exact standard of accuracy which would be expected in a report purporting to come from the hand of a trained lawyer.”

Applying these tests and ignoring, as irrelevant to the question of fairness of the report, the defendant’s intention or negligence, I am of opinion that a comparison of the actual statement by Mr. Kenny with that published demonstrates substantial inaccuracy, more than a minor one not affecting the real meaning as laymen would understand it; Mr. Kenny did not say that the plaintiff was alleged to have admitted the offence referred to, or any offence. He referred only to “an admission”, which I read as meaning an admission of some fact relevant to the charge against the plaintiff. He made it clear that he was not specifying what the admission was; a conclusion that it was an admission of guilt of the crime charged was not warranted.

It is also claimed for the defendant that the introduction of the word “allegedly” into the publication by reducing the imputation which otherwise might have been that the plaintiff was actually guilty of a crime or had confessed beyond doubt that he was guilty of a crime left the report as one which did no more than report what had in fact been said by Mr. Kenny. I have found that there was a lesser imputation than either of these but I do not consider that the use of this word affects the meaning as reported so as to have this effect. This makes it inevitable that I should find that the report was not a fair report.

There, therefore, must be a verdict for the plaintiff.

In relation to damages there was some evidence called on behalf of the defendant as to the extent to which its publications in news broadcasts were likely to be heard at the time, and evidence was also put before me showing that later in the day, on which the two publications sued on were made, there was an accurate report of the proceedings, that is a report which said:

“The police prosecutor told the court today that he would tender a transcript of a telephone conversation in which he alleged an admission was made relating to the charge against Griffin.”

It should be noted that this publication did not contain any express correction of the two earlier news broadcasts, nor did it contain any apology for the error contained in those broadcasts.

On two subsequent occasions on the 28th February and 1st March, 1973 news broadcasts reported the impending decision of the Magistrate, that of 28th February, including remarks of the plaintiff’s counsel describing the charge against the plaintiff as mischievous, and the alleged offence as obscure and dubious, and that on the following day reporting that the plaintiff had no case to answer on the charge. This was relied upon in mitigation of damages and would, I consider, have been of consequence if the imputation contained in the material against the plaintiff were that he was guilty of attempting to obstruct justice, or had confessed to attempting to obstruct justice. However, I have not found that either of these imputations was made in the original publication, and the further information that the plaintiff had no case to answer is, therefore, of less significance than it might have had as bearing on the question whether at the original hearing the police had material indicating that the plaintiff had confessed to the charge of attempting to obstruct justice.

I admitted evidence indicating that the plaintiff had not complained at the time of publication of the inaccuracy of the broadcasts upon which he now sues and it appears from the pleadings that the statement of claim was not filed until twelve months later. A writ was issued on the 23rd March, 1973 and the explanation for the plaintiff’s dilatory conduct relating to the statement of claim appears in part to be that the defendant declined to provide the plaintiff with a copy of the transcript of the broadcast sued upon until after the making of an order for discovery. There is no evidence as to when the order of discovery was complied with by the defendant, and I do not think that I should regard the plaintiff’s failure to file a statement of claim as indicative of anything. The length of time which he waited before commencing the proceedings could have some bearing on the amount of compensation to which he is entitled, but in view of the multifarious other proceedings in which the plaintiff was involved it would perhaps be unfair to him to regard this as of any real consequence.

I am mindful, in dealing with the question of damages, of the disavowal in recent times of the proposition of Atkinson J. in Rook v. Fairrie[ccxxi]¹⁵ that in a case tried by a judge without jury the fact that the plaintiff’s reputation may be expressly referred to as vindicated might result in a reduction of damages.

It is correct as put for the defendant that radio news broadcasts are ephemeral and not likely to have precise attention from many of those listening. On the other hand in a community such as that of Papua New Guinea, particularly amongst the Europeans and groups with whom the plaintiff is particularly associated, such as University students and staff, there must obviously be much passing on of information as a natural and probable consequence of an original publication, so that a great many persons who did not hear the broadcast or appreciate its meaning may be expected to be informed of it. The defamation was published over a radio network providing news to people in other areas of New Guinea, many of whom must have known or known of the plaintiff.

Damages are awarded for the imputation and that imputation is as I have found it, that the police had material upon which they would rely as amounting to a confession by the plaintiff of an attempt to obstruct justice. The particular imputation is especially damaging to a barrister in practice and to a law lecturer.

I am bound by Associated Newspapers Ltd. v. Dingle[ccxxii]¹⁶ in assessing damages. This case establishes that I must disregard any tarnishing of the plaintiff’s reputation by other defamatory matter. In taking into account the later accurate broadcast of that date I must also take into account that there was no explicit correction and no apology. Nevertheless the damages must be for the imputation here sued on not for those arising from the defamatory material referred to in the statement of claim as to which the plaintiff makes no claim.

The plaintiff is conceded to be of good character. I am required to assess what sum of money is appropriate to compensate him for this defamation.

In this task there is little assistance in the material provided by the plaintiff. He did not himself give evidence and there is nothing before me to show any of the features of damages referred to in the Act. I have no material which guides me as to the extent to which the plaintiff’s feelings were hurt, or the extent to which other persons actually shunned, avoided, ridiculed or despised the plaintiff, or as to any pecuniary loss by the plaintiff, although this last was claimed in the statement of claim. All these matters need to be taken into account in assessing compensatory damages and my task in assessing a sum for this purpose is made considerably more difficult by the lack of any evidence on the subject. It has been put to me that I should infer that the plaintiff is of good reputation as he is conceded to be of good character, and it seems to me that this is the case. I think that I should also infer that the plaintiff’s case could not have been improved in regard to damages by the calling of evidence of any of the matters to which I have referred. (See the remarks of Windeyer J. in Jones v. Dunkel [ccxxiii]¹⁷).

The damages obviously cannot, in the circumstances, be contemptuous, nominal or minimal but the assessment must be made as it were in vacuo except for such material as appears in the pleadings and the evidence from the defendant as to the extent of publication. In South Africa, in Walton v. Cohen[ccxxiv]¹⁸ a somewhat similar situation occurred, and De Wet J. dealt with it as follows:

“I have not been able to find any authority in South Africa where any guidance has been given to the Courts as to what circumstances the Court is entitled to take into account in assessing damages in a defamation case when no evidence is led. It would seem, however, that all the admitted facts in the pleadings which may have a bearing on the question of damages could be taken into account by the Court when assessing the damages. For instance in this case it is admitted that the plaintiff is an electrician, and that he carries on a business under the name of Durban Electrical Contractors and that the defamation was published to one H. V. Harris a wiring inspector in the employ of the Durban Corporation.”

It is irrelevant except as not aggravating damages that the defendant acted in good faith.

There was an apology in court by the defendant which apology did not contain the express withdrawal of the charge contained in the defamatory matter which is usually considered a necessary part of an apology. The defendant established in evidence precisely what the subject matter reported as in the broadcast had been, thereby establishing that the imputation contained in the defamatory matter was not a true imputation and thereby making clear that it did not claim the charge to be true. The apology itself was hypothetical and given at the close of the evidence. I do not think that I should regard it as going any substantial distance further in the case than is indicated by the plaintiff’s admission as to the defendant’s good faith in publishing the report of court proceedings.

After consideration of such information as is available to me in the pleadings and the evidence, with the assistance of a general comprehension of the nature of the plaintiff’s occupation and the likely scope of his reputation, with such knowledge of local conditions as I am able to bring to the case, and in the absence of evidentiary material to which I have referred, I have arrived at a sum of $500.00 as being, in my opinion, fair compensation for the plaintiff’s damage arising from the defamation relied on.

I find a verdict for the plaintiff in the sum of $500.00 with costs on the appropriate scale.

Verdict for the plaintiff in the sum of $500.00 with costs.

Solicitors for the plaintiff: McCubbery, Train, Love & Thomas.

Solicitor for the defendant: P. J. Clay, Crown Solicitor.

BR> R>

[i]>Infra p. 155.

[ccix]Infra p. 141.

[ccx][1964] A.C. 234.

[ccxi](1968) 12 F.L.R. 271.

[ccxii][1894] 1 Q.B. 671.

[ccxiii][1897] NSWLawRp 96; (1897) 18 L.R. (N.S.W.) 358.

[ccxiv](1880) 6 App. Cas. 156.