If a person has been tried and convicted of a crime, then it would not be defamatory to publish a newspaper article or talk about the fact that the person has been tried and convicted of a crime. However, complications arise when a person is named as a suspect in a criminal case or is otherwise suspected of having committed a crime. There have been numerous cases involving the imputation that a person is suspected of having committed a crime. The publisher must be very careful about what they say and/or write in order to avoid a defamation claim.
The Greig Case
In Greig-v-WIN Television NSW Pty Limited1, in the context of a news item broadcast on a television channel that imputed that a Deputy Mayor of a local Council in New South Wales was guilty of corruption, the Court looked at the authorities regarding such statements and ultimately concluded that the Deputy Mayor had been defamed and that there were no reasons for alleging that she was corrupt at all. Therefore, the Defendant’s defence of justification (truth) failed.
In Grieg, Chief Justice McClellan the findings of the Court in Shah-v-Standard Chartered Bank2: “a defendant has to establish that there are objectively reasonable grounds to suspect the plaintiff”.
McClellan CJ at CL also referred to the decision of Hirst LJ in Shah and stated3: “…it is an essential requisite of a defence of justification of reasonable suspicion that it should focus on some conduct on the plaintiff’s part giving rise to reasonable suspicion…”. “A reasonable suspicion can only be justified if the plaintiff’s actions, rather than the statements of others about those actions, justify the pleaded imputation.”
The King Case
Chief Justice McClellan CJ English Court of Appeal case of King-v-Telegraph Group Ltd4 in which the Plaintiff was alleged to have been a supporter and accomplice of Osama Bin Laden’s al-Qaeda network of terrorists. The Court in King stated that the Defendant must show the truth of the underlying allegation by proving the primary facts and matters giving rise to reasonable grounds of suspicion objectively judged.
The Court in King stated that ‘strong circumstantial evidence’ can itself contribute to reasonable grounds for suspicion.
The evidence providing that the Plaintiff is suspected of having committed a crime “must be more than a ‘mere scintilla’ capable of giving rise to ‘surmise or conjecture’; there must be evidence upon which a jury could reasonably give a verdict” [in a defamation claim]5.
The Repetition Rule
The ‘repetition rule’ provides that if a person re-publishes defamatory matter, then he or she is just as liable as the first publisher of the defamatory matter. Therefore, it is not sufficient to simply repeat what someone else has said in terms of suspecting a person of having committed a crime, even if the suspicion is that of law enforcement authorities. Mere hearsay evidence of what others said to the Police about a Plaintiff’s conduct is not admissible evidence to support a Defendant’s plea of justification6. A Defendant will be guilty of defamation if he or she has adopted a defamatory statement made by the original publisher and is simply repeating such hearsay statement.
If the evidence is not sufficient to satisfy a jury of a verdict in a defamation claim, the Defendant may bring an application to strike out parts of the Defence and seek an order that those parts of the Defence not be put to the jury7.
The Sands Case
In Sands-v-Channel Seven Adelaide Pty Ltd & Anor8, the Plaintiff was named as a suspect in a murder case in a promotional ad of a news item broadcast on the television and radio news segments. The Plaintiff sued Channel 7 for its television broadcast and the Australian Broadcasting Corporation (the ABC) for news segments published on the radio, claiming defamation.
Justice Belby stated that9: “…the plea of justification could not depend on the view that a reasonable police officer would have formed. It had to be based on conduct on the part of the plaintiff.”
In Sands, the Plaintiff did know the murdered woman and had voluntarily spoken to Police about her in order to assist them with their investigations. However, in his defamation case against Channel 7 and the ABC, he pleaded that the evidence was incapable of establishing a reasonable suspicion that he did in fact murder the deceased woman. Evidence was led that one of the Police Officers investigating the murder did in fact consider the Plaintiff to be a suspect.
Justice Belby further stated that: “What Channel 7 was required to prove on the balance of probabilities was that objectively there were, in fact, grounds on which the plaintiff could be suspected of the murder and that such grounds were reasonable.”10 “Channel 7 does not, therefore, have to prove guilt nor reasonable grounds to believe that the plaintiff was involved in the murder. It is only required to prove the existence of reasonable grounds to suspect.” 11
The Court concluded that Channel 7’s defence of justification succeeded. He found that the Plaintiff had lied to Police and that at the time that the Police alleged the murder took place, based on forensic evidence, the whereabouts of the Plaintiff could not be verified by an alibi. He also found that the Plaintiff had a romantic attachment to the deceased woman. He held that the defamation claim against the ABC was not made out by the Plaintiff because the ABC were simply fairly and accurately reporting on the injunction proceedings which the Plaintiff had commenced against the ABC. Therefore, the Court gave judgment for both Defendants.
The Rakhimov Case
In Rakhimov v Australian Broadcasting Corporation12, the Plaintiff sued the ABC for defamation in relation to a ‘Four Corners’ program that was broadcast on the television in which it was stated that the Plaintiff associated with dangerous criminals, is suspected by the FBI of drug trafficking, that the Russian Government’s files say he deals in heroin and that he is Russian mafia.
The Court held that it could not be imputed, as pleaded by the Plaintiff, that the Plaintiff behaved in such a way as to deserve to be suspected by the FBI of drug trafficking. He said the statement made by the Defendant was a ‘passive’ assertion that the ‘FBI suspected him of drug trafficking’ rather than an ‘active’ assertion that his conduct led to the suspicion of the FBI.
Justice Levine held that the other pleaded imputations by the Plaintiff, that he associates with the most dangerous criminals in the world, that he is a heroin dealer and that he is Russian mafia had to be determined at a trial of the matter before a jury. Unfortunately, the trial of the matter was not reported in a judgment available to be viewed by the public. It is possible that the matter settled before a jury verdict was given.
The Whelan Case
In Whelan-v-John Fairfax & Sons Ltd13, the Court held that if the Police suspect the Plaintiff had committed a crime and that is repeated by the publisher of alleged defamatory material then the matter is capable of conveying the imputation that the Plaintiff has acted so as to warrant that suspicion. Furthermore, if the Police have charged a suspect, then it can be reasonably inferred that the Police have reasonable cause to believe the person is guilty of that crime.
The Corse Case
In Corse v Robinson14, the Defendant had written a letter to the Western Australian Police stating that he suspected the Plaintiff of having engaged in ‘criminal misconduct’ in relation to his remuneration as Branch Secretary of a Western Australian trade union for public servants. The letter was a complaint to Police and the Defendant had enclosed documents in support of his allegation that the Plaintiff had engaged in ‘criminal misconduct’. The Plaintiff was a Councillor at the trade union and had unsuccessfully run for election for the office of Branch Secretary against the Plaintiff. The Plaintiff had been charged by Police in relation to his remuneration prior to the letter being sent by the Defendant but the charges were dropped. The Defendant handed copies of his letter to other members of the trade union and in doing so published his defamatory comments. The Defendant’s appeal was dismissed with the Court finding that the trial judge had not erred in any way. At trial, the Court held that the Defendant had acted with malice and had no reason to believe the assertion that the Plaintiff had engaged in criminal misconduct. The defence of Qualified Privilege failed because the trade union had made a decision about the matter and had approved the actions of the Plaintiff, Branch Secretary. Judgment was entered for the Plaintiff and damages of $45,000 was awarded, including $15,000 as exemplary damages.
The Lim Case
In Lim v TVW Enterprises Ltd15, Barker J stated that “…an allegation of suspicion, without more, does not convey the meaning that there are necessarily reasonable grounds for the suspicion.”
In conclusion, in order to make a statement alleging that it is suspected that a person has committed a criminal offence, there must be reasonable grounds for so suspecting, based on the conduct of the Plaintiff, in accordance with the findings of the Court in Sands. It is very compelling evidence if the Police have either charged the person with the crime in question or have publicly stated that they consider the person to be a suspect in their investigations.
If the Police have named the person as a person of interest and that is re-published by news broadcasters, that could not amount to defamation without more being said of the Plaintiff. Likewise, if the Police have charged a person with a crime and that fact is re-published that could not amount to defamation without more being said.
Each case will be different and will turn on the actual words used by the publisher and what meaning, and imputations are found to arise from the published words themselves. If you wish to allege your suspicion that a person is guilty of a crime, then you could either rely on the defence of Honest Opinion or Justification (truth). For more information on those two defences please see our articles on “Justification, Partial Justification, and Contextual Truth”, “Honest Opinion”, and “Fair Comment”.