Byrnes v Barry & John Fairfax Publications Pty Ltd [2003] ACTSC 54 (9 July 2003)

Last Updated: 14 July 2003

JIM BYRNES v PAUL BARRY and JOHN FAIRFAX PUBLICATIONS PTY LIMITED [2003] ACTSC 54 (9 July 2003)

DEFAMATION - defamatory libel - requirement to obtain consent to commence criminal action - factors relevant to the issue.

DEFAMATION - factors - alleged defamation part of a "vendetta" - alleged "breach of the peace" - no doubt published matter was defamatory in nature - role of "public interest" concern - impact of publication within Australian Capital Territory.

Defamation (Criminal Proceedings) Act 2001 (ACT) s 29, s 30.

Defamation Act 1974 (NSW), s 49, s 50

Director of Public Prosecutions Act 1990 (ACT), s 8.

Richard George Carleton v Australian Broadcasting Corporation [2002] ACTSC 127 (18 December 2002)

Ex parte O'Connor; re Wright (1930) 47 NSW WN 193

R v Macnamara and Rosa (1893) 14 NSWR 515

Goldsmith v Pressdram [1977] 1 QB 83

R v Wells Street Stipendiary Magistrate ex parte Deakin and others [1980] AC 477

Monteith v Clarke, Neill and Ors (1993) NI 376, 385

Desmond v Thorne and Others [1983] 1 WLR 163, 169

Burton v Parker and Ors [1998] Tas SC 104 (28 August 1998)

Shapowloff v Fitzgerald [1966] 2 NSWR 244

Ex parte Narme; Re Leong Wen Joe (1928) 45 WN (NSW) 78

R v Grassby (1992) 62 ACrim R351

R v Murphy (1897) 8 QLJ 63

No. SC 530 of 2002

Judge: Higgins CJ

Supreme Court of the ACT

Date: 9 July 2003

IN THE SUPREME COURT OF THE )

) No. SC 530 of 2002

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: JIM BYRNES

Applicant

AND: PAUL BARRY

First Respondent

AND: JOHN FAIRFAX PUBLICATIONS PTY LIMITED ACN 003 357 720

Second Respondent

ORDER

Judge: Higgins CJ

Date: 9 July 2003

Place: Canberra

THE COURT ORDERS THAT:

1. The application for leave be dismissed.

1. This is an application pursuant to a Notice of Motion dated 30 August 2002 seeking, on behalf of the applicant, leave to commence a prosecution against the respondents for "defamatory libel under s 30(1) of the Defamation Act 2001". That provision is currently located in the Defamation (Criminal Proceedings) Act 2001 (ACT).

2. The factual basis asserted by the applicant to warrant the grant of such leave is set out in various affidavits, two of the applicant, dated 28 August 2002 and 3 December 2002 respectively, and one of Mr Robert Orr QC dated 4 September 2002.

3. The complaint the applicant makes concerns a publication dated 10 August 2002 entitled "Good Weekend". It is a supplement to the Sydney Morning Herald (SMH) of the same date.

4. Mr Orr deposes that he received a delivery to his home in the Australian Capital Territory, pursuant to an arrangement with his local newsagent, of the SMH of that date and, included therewith, the "Good Weekend", on 10 August 2002. The latter is a features magazine.

5. I therefore accept that evidence exists, which, if accepted to the criminal standard of proof, would establish publication in the Territory of the edition of the "Good Weekend" of 10 August 2002 of which the applicant complains. It is not disputed that the respondents can be shown to have, respectively, authored and published the matter complained of.

6. In referring to the facts deposed to by the applicant I am expressing no view as to whether those facts will be proved to the requisite standard in any criminal trial, should one ensue.

THE FACTS

7. The applicant conducts, through his company "Cromwell's Auctioneers & Appraisers Pty Limited" (Cromwells), the business of auctioneers and appraisers (as the company name implies).

8. The applicant is also the sole director of Regency Apartments Pty Limited (Regency), a property development company.

9. In his affidavits, the applicant details his personal history and achievements as well as the fact that he did serve time in prison. The latter fact is relevant to some of the material complained of. He also details what are put forward as apparent reactions of other persons to the circulation of the matter complained of. Those matters would be relevant to damages or penalty in defamation proceedings, but I will not reiterate them here. They are all events which occurred in New South Wales.

10. It is also relevant to note that the applicant has complained of and sued upon previous publications of the second respondent. The applicant perceives the article of 10 August 2002 as being part of a "vendetta" against him. That consideration is put forward to support a contention that damages will not be an adequate remedy. As against that, whilst one of those articles has been found to be defamatory (in September 2001), there is no evidence of any award of damages having been made in respect of any of them and, hence, of the second respondent's reaction to such an adverse consequence. In New South Wales, a jury verdict finding that matter published is defamatory does not, of itself, establish liability. The trial judge will determine if any defence is made out and assess damages if liability is found. It is, therefore, not yet apparent what the deterrent effect, if any, of an unsuccessful defence and an award of damages and costs in respect of those civil proceedings might be.

11. Further, the applicant claimed, he could not take criminal proceedings in New South Wales because (he was advised) "Part 49(1) (sic) of the NSW Defamation Act 1974" abolished the common law misdemeanour of criminal libel.

12. That is true as far as it goes. Section 49(1) has that effect. However, there is a replacement provision in s 50. I will return to that provision later.

13. The other publications by the first respondent concerning the applicant are detailed as follows. Specifically, (apart from the matter complained of), the SMH on 24/25 August 2002 and on 7 October 2002. In respect of the latter article, the applicant states that he sought a restraining order from Dunford J in the New South Wales Supreme Court but that order, it seems, was refused.

14. The applicant also complains of other publications of the second respondent which he asserts have been defamatory of him, namely, in the Sun Herald (SH) 11 August 1996, SMH 27 August 1999, 28 September 1999, SH 22 July 2001, SMH 24 November 2001, 1 December 2001, 22 December 2001, 20-21 April 2002 and 8-9 June 2002. He has sued on other articles than those mentioned above, namely, in the SMH of 31 July 2000 and of 3 August 2000.

15. There does not appear to be any reason to doubt, having read them, that these articles each make one or more defamatory imputations against the applicant. He is portrayed as an ex-convict, ex-bankrupt and a businessman whose ethics and business practices would make his namesake on "the Simpsons" look a paragon of virtue.

16. Nor is there any doubt that the article complained of in the "Good Weekend" would have been hard pressed to have found any additional defamatory imputations than were detailed over the six pages, including the cover, referring to the applicant.

17. His solicitor, in a letter of complaint to New South Wales Attorney General, Bob Debus of 19 August 2002 identified 25 imputations, even without citing the references in the matter complained of, to the applicant's criminal record.

18. In his affidavit of 3 December 2002 the number of defamatory imputations the applicant identified had swelled to 80. Those were only those he contended to be false. Whilst it is defamatory of him to say so, it is not apparently contended to be untrue that the applicant has been a bankrupt and served time in prison for heroin dealing.

19. It should be noted that even true statements about a person, if defamatory, may be successfully sued on in most States and Territories of Australia, unless it is in the public interest or for the public benefit to air those allegations.

20. It is also important to note that there has been no adjudication on the truth or otherwise of the respondents' other allegations against the applicant. Nor, even if they are false, whether one or more defence to the making of a defamatory statement, even if it be false, can be made out - see eg Richard George Carleton v Australian Broadcasting Corporation [2002] ACTSC 127 (18 December 2002).

21. Mr Tobin QC, counsel for the respondents, tendered the letter of complaint from the applicant's solicitors to the second respondent in respect of the article of 24/25 August 2002. That article was apparently authored by a Ms Kate McClymont, not the first respondent.

22. There was tendered also a transcript of the proceedings before Dunford J on 4 October 2002. Before Dunford J, the first respondent conceded that he wrote a draft of the article of 7 October 2002. He said nothing and was asked nothing about Ms McClymont's article of 24 August 2002. There does not seem to be any evidence that he had anything to do with that article, contrary to the applicant's assertion in his affidavit.

23. The Statements of Claim in respect of the publications of 31 July 2000 and 3 August 2000 were also tendered.

THE LEGISLATION

24. As has been noted, the application relies upon s 30 of the Defamation (Criminal Proceedings) Act 2001 (ACT) (the D(CP) Act).

25. That Act has been in force only since 1 July 2002. The original provisions were separated from the Defamation Act 2001 (ACT) and the Act re-named on 1 November 2002. There was no alteration to the text of those provisions. Section 30 provides:

(1) A prosecution may only be begun with the order of a judge.

(2) An application for an order may only be made on notice to the person accused.

(3) The person accused must be given an opportunity of being heard against the application.

26. The D(CP) Act, s 29, creates the offence to which that latter provision relates. It states:

A person must not maliciously publish a defamatory libel (whether or not the person knows it is false).

Maximum penalty: 300 penalty units, imprisonment for 3 years or both.

27. These provisions replaced similar provisions in Part III of the Defamation Act 1901 and the Defamation (Amendment) Act 1909 (originally of New South Wales but applying in the Territory until their replacement on and from 1 January 1911). Those latter provisions were:

Defamation Act 1901:

s 11. Whosoever maliciously publishes any defamatory libel, knowing the same to be false, shall be liable to imprisonment for any term not exceeding 2 years and to pay such fine as the Court may award.

12. Whosoever maliciously publishes any defamatory libel shall be liable to a fine or imprisonment or both, as the Court may award, such imprisonment not to exceed the term of 1 year.

Defamation (Amendment) Act 1909:

4. No criminal prosecution shall be commenced against any person for the publication of any libel without the order of a Judge of the Supreme Court first had and obtained.

Such application shall be made on notice to the person accused, who shall have an opportunity of being heard against such application."

28. New South Wales, as I have noted, has not only expressly abolished the common law offence of libel but required (per s 50, Defamation Act 1974) that no such prosecution be instituted "without the written consent of the Attorney-General".

29. Thus, on 19 August 2002, the applicant's solicitors wrote to the New South Wales Attorney-General, the Honourable Bob Debus MP, seeking his written consent to institute criminal proceedings in respect of the matter complained of. The letter set out the imputations which the matter complained of was said to make against the applicant, as well as complaining of the "vendetta" the applicant perceived as being waged against him. He alleged that various serious breaches of the peace had been committed as an apparent consequence of the publication of the matter complained of. Evidence of those matters has been repeated in the applicant's affidavits.

30. As I have noted, none of these apparent breaches of the peace is alleged to have occurred in the Australian Capital Territory. Nor is there any evidence that the plaintiff carries on business or enjoys any particular reputation in the Territory, save, perhaps, amongst those citizens who may have found passing interest in the various tales concerning the plaintiff's history and colourful activities appearing in the articles in the SMH and the HS to which I have been referred.

31. On 4 September 2002, the Attorney-General responded. He advised that the power under s 50(4) Defamation Act 1974 to consent to such prosecutions had been delegated to the New South Wales Director of Public Prosecutions (DPP) by order made 21 December 1988 and published in the Government Gazette on 30 December 1988. He proposed to leave it to the DPP to consider whether consent should be granted.

32. On 18 September 2002, the DPP, Mr Nicholas Cowdery QC, responded, stating that he had considered the matter complained of and the other matters referred to and concluded -

Criminal defamation has always been considered an offence that ought to be prosecuted only in the most exceptional circumstances. Fundamental to any such prosecution is the requirement that publication of the material alleged to be defamatory can be shown to be inimical to the public welfare. I cannot find in this case the element of public interest required for a prosecution. Any redress which your client may have in respect of damage to his reputation should be found in the civil law and any concerns which Mr Byrnes has for his welfare or that of his family or property should be reported to Police.

THE LAW RELATING TO THE GRANT OF LEAVE

33. There seems to me to be no reason why the matters relevant to the grant of leave to commence proceedings for criminal libel should be different under the 1909 Act or under the 2001 Act in this Territory. It also seems to me that the DPP's decision (or that of the Attorney-General) in New South Wales would be properly based on similar considerations.

34. The authorities tend to support the DPP's summary of the circumstances in which applications for leave to prosecute for criminal libel should be granted or refused as the case may be.

35. In Ex parte O'Connor; re Wright (1930) 47 NSW WN 193 Halse Rogers J responded to a submission that a tendency to provoke a breach of the peace discernible in the matter complained of should lead to leave being granted to prosecute criminally. His Honour downplayed the role of "breach of the peace" as a guiding principle to those libels which will engage the public interest. Rather, his Honour said, at 194, citing R v Macnamara and Rosa (1893) 14 NSWR 515:

Exactly upon the same principle that the law, to protect society, punishes a man for physical assault and robbery with a view to deterring others who may be disposed to commit similar offences, it punishes those who by libel assault their fellow citizens with a view to defaming them and robbing them of their characters - in other words, in punishing libel, as in all punishment, the object in view is the general protection of society from the commission of crime as well as the protection of the individual, the wrong against one being a wrong against all.

36. On a literal view of it, this statement would warrant leave whenever a strong case of deliberate libel is alleged. No ordinary category of crime has restrictions, such as s 30 D (CP) Act imposes, placed on its prosecution. It does, however, indicate that more than a strong prima facie case of serious libel is needed for leave to be granted.

37. Leave was granted in Goldsmith v Pressdram [1977] 1 QB 83. There had, in that case, been a consistent campaign of abuse and denigration alleging conspiracy to pervert the course of justice against the plaintiff.

38. Wein J considered that, to gain leave, first, "there must be a clear prima facie case". Second, the libel must be so serious that it is proper for the criminal law to be involved. However, more significantly, it must be determined whether "the public interest" requires that criminal proceedings be instituted. That is, that the matter goes beyond the private interests of individuals and monetary compensation and is such that "the state has an interest and the state has a part in it" (see p 88).

39. Lord Diplock in R v Wells Street Stipendiary Magistrate ex parte Deakin and others [1980] AC 477 considered the use of the criminal law to punish a libel to be, in general, contrary to the freedom of expression guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953). The consent of the Attorney-General should, in his Lordship's opinion, be required for such a prosecution to ensure that the public interest, as distinct from the private interests of the plaintiff, is in need of the protection of the criminal law.

40. As Viscount Dilhorne pointed out, in that latter case, the issue of leave or consent has nothing to do with the elements of the offence. A libel does not need to engage the public interest to constitute the offence of criminal libel. Nevertheless, his Lordship saw merit in a requirement for the leave of the Attorney-General or Director of Public Prosecutions (rather than a Judge) before any prosecution be brought, to ensure that such a prosecution was "in the public interest" (488). That implies, of course, that it is only in an exceptional case of libel that such a prosecution should be brought. Most cases will be satisfactorily resolved, if successful, by an award of substantial damages and costs.

41. The only restraint on a committing magistrate, however, once prosecution has commenced, is that the libel be apparently serious. Public benefit and truth or otherwise of the libel are matters for trial not going to the question whether the publisher should be committed or not for trial. That the prosecution engaged the public interest is a matter for the judge granting leave or the Attorney-General or DPP consenting or deciding to prosecute, as the case may be.

42. Gatley (9^th ed) on Libel and Slander [549] par 22.10(ii) considered the criteria for deciding whether leave, when required, should be granted. It was, for instance, relevant to consider:

Whether the victim is abroad and has any substantial interest in his reputation within the jurisdiction ...

43. Gatley doubted that the adequacy of damages and the private purpose of the applicant should militate against the grant of leave but warns that it cannot: [550]

...supplant the predominant and direct purposes of the protection of the community and the punishment of wrongdoers

44. It is the case that the tort of libel also serves to protect the community from libellous outbursts and punishes the perpetrators, typically, by the imposition of a financial liability significantly greater than the maximum fine for criminal libel. A corporation cannot be gaoled, so that a punishment otherwise than by way of a fine could fall only on the identifiable individual guilty of the libel who, being in all probability an employee, would bear less responsibility for and gain less benefit from the publication in question than the corporate publisher whose profits were boosted by it.

45. In Monteith v Clarke, Neill and Ors (1993) NI 376, 385, Carswell J, noting that applications for leave are rare and successful ones even more so, concluded -

That very rarity is testimony to the magnitude of the task facing an applicant who seeks to persuade the court that the public interest requires the institution of criminal proceedings. It seems to me that something altogether exceptional is required. I do not propose to attempt to define in what circumstances the test could be satisfied, but some at least of the relevant factors might be the outrageous nature of the libel, the brazenness or viciousness of the attack, the high public standing of the victim, the extent of the publicity afforded to the libel and his inability to obtain sufficient redress in any other manner. I think that it is also right to have regard on the other side of the account to the importance of the maintenance of the freedom of the press to carry out its functions in a responsible manner without the threat of criminal prosecution.

46. This applicant points to the existence of a "vendetta" as justifying the grant of leave. The respondents, he submits, have not been deterred by the commencement of civil proceedings. It is also true that the continued repetition, by the second respondent at least, of defamatory matter, unless otherwise justified, may well bespeak malice and, indeed, may do so irrespective of the truth per se of the matter complained of.

47. In the context of this matter, it is interesting to note Carswell J's observation [at 383] that judicial leave became (in the case of newspapers - Newspaper Libel and Registration Act 1881, applied by Law of Libel Amendment Act 1988) substituted for that of the Attorney-General, the latter being perceived as having granted consent to prosecute too freely.

48. Taylor J, in Desmond v Thorne and Others [1983] 1 WLR 163, 169, made the point that, just as the DPP will have regard to the likely result of a prosecution before agreeing to the commencement of proceedings, so may a judge in determining whether to grant leave. That is not a large factor in the present case. The applicant, while conceding some imputations to be true, denies the truth of most of them. That is not the subject of contrary proof in these proceedings. It is not, presently, clear that proceedings for defamation in respect of the matter complained of would fail, even on the criminal standard, nor even in respect of those imputations conceded to be true.

49. I was referred to the case of Burton v Parker and Ors [1998] Tas SC 104 (28 August 1998), a case where judicial leave to prosecute for libel was sought. In refusing leave, Evans J noted (at p 8):

1. Where the applicant has a civil remedy, leave should only be granted if:

(a) the application has demonstrated a sound case, that is, a clear prima facie case that defamatory publications were made including evidence negating lawful excuse for the publications; [authorities omitted] and

(b) the case is one which calls for the intervention of the criminal law [authorities omitted].

2. That the intervention of the criminal law is called for where:

(a) the defamation is so serious as to require both punishment of the offender and the protection of the community [authorities omitted].

(b) the public interest, as distinct from the individual's interest, requires the institution of criminal proceedings [authorities omitted].

50. It is instructive to consider one of the authorities Evans J referred to, namely, Shapowloff v Fitzgerald [1966] 2 NSWR 244. In that case, Taylor J affirmed the following principles:

* It is not appropriate, in a case of an application for leave, to go into the merits of the case.

* It is not an element of the offence that there be a breach or threatened breach of the peace.

* A criminal prosecution may be warranted if the public welfare be served thereby.

* That may be so if there is a tendency in the publication to create a breach of the peace, or where the language is of a vile, intemperate nature, or the defamation is unfounded and intemperate abuse is published and repeated by one who is a "man of straw" or where public persons such as magistrates, ministers of state or high officers in public service are defamed in their offices since that can tend to destroy confidence and respect for those responsible for government and due order.

* It is in the public interest and for the common good that there be freedom of discussion of the operation and affairs of public companies.

* The actions (and character) of persons controlling the affairs of public companies, particularly if of a public nature and involving public investments, should be open to discussion, criticism and examination in the Press.

51. Taylor J, at that time, had discovered only one successful application for leave in New South Wales in the previous 50 years. It was in Ex parte Narme; Re Leong Wen Joe (1928) 45 WN (NSW) 78. In that case, the accused was nevertheless, acquitted. Since then, a prosecution was launched ex officio, but was ultimately unsuccessful; (see R v Grassby (1992) 62 ACrim R351). In 1960 an accused was convicted in this Territory of criminal libel but also on ex officio indictment, (see case of John Sommerville Smith - libel prosecution - 1960; ACT Supreme Court File numbers SC33/1960 and SCC 208/1960) There is also authority for the view that the requirement for leave does not bind the Crown. Thus the Attorney General or the DPP may prosecute ex officio without leave - see R v Murphy (1897) 8 QLJ 63. I accept that it is, probably, unlikely that either of the Territory Law Officers will volunteer to prosecute at the applicant's request.

THE PRESENT CASE

52. Even if I was considering this publication as a judge in New South Wales, where the applicant lives and carries on business, it seems to me this application would fail.

53. It is true that the libel is serious and that a court could conclude that there is a strong prima facie case. It could be concluded, though it need not necessarily be so concluded, that there is malice. It is not apparent that the accusations made, if untrue, could be justified but that is, of course, to do with the merits of the case into which it is unnecessary to go.

54. The disputation involves the applicant's business dealings and his fitness to engage in business with the public. The accusations, whilst robustly made, are not "vile" or "intemperate". They are of such a nature that, if they are true, it would be in the public interest that they be published.

55. That there has been reprisal in New South Wales against the applicant, amounting to criminal conduct, may be accepted for the purposes of this application. It may be that police action would be effective to deal with such breaches of the peace. Perhaps not. Even so, it is not likely that those illegal acts would be ongoing.

56. It is apparent that the applicant has the means and ability to engage in civil defamation proceedings.

57. His position is not such that he is inhibited in bringing proceedings as a judge or magistrate might be. Nor do the statements traducing him, even if untrue, threaten public confidence in business people generally. Thus, even in New South Wales, it seems to me that a decision to refuse leave would be appropriate.

58. However, there is more. All crime is local. Loss or damage in New South Wales is not relevant to an application to bring proceedings in this Territory for criminal libel. Nor is it the function of a court in this jurisdiction to protect the public peace in New South Wales.

59. Publication in this Territory does engage the jurisdiction of this Court to entertain this application, but there is no evidence of any significant reputation or business activity of the applicant in this Territory. There is no evidence of any groundswell of civil unrest against him in this Territory. It is highly unlikely that unruly mobs of Territorians will seek to hunt the applicant down on his visits to this Territory. There is nothing which requires that this Territory engage its criminal jurisdiction to protect its public interest in respect of this publication based on the reaction to it in New South Wales. Nor would it be appropriate, even if the public interest of New South Wales warranted leave in that State to prosecute there, that there should be a prosecution in this Territory.

60. It may be added that, even assuming the Australian Capital Territory Director of Public Prosecutions (ACT DPP) has power ex officio to indict the respondents, he has not been asked to do so.

61. Further, even if leave be granted, the committal proceedings will be commenced in the ACT Magistrates Court. They will fall under s 8 of the Director of Public Prosecutions Act 1990 (ACT). With or without the informant's consent, the DPP may take over the conduct of those proceedings and either continue or end them.

62. In the light of the opinion expressed by the New South Wales DPP it seems to me that the ACT DPP would be unlikely to take a contrary view.

63. I appreciate that, had I been of the view that the public interest warranted the rare and unusual step of permitting the institution of criminal proceedings, the DPP might feel obliged to adopt the same view. However, he would not be bound to do so and could well have access to more material than the parties might feel disposed to disclose publicly to this Court.

64. In my view, this application must be dismissed. I so order and will hear the parties as to costs.

I certify that the preceding sixty-four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:

Date: 9 July 2003

Counsel for the applicant: Mr C Evatt

Solicitor for the applicant: -

Counsel for the respondents: Mr Nicholas QC, Mr T Tobin QC

Solicitor for the respondents: Sparke Helmore

Date of hearing: 10 December 2002 and 25 February 2003

Date of judgment: 9 July 2003