Imputations of suspicion commonly arise in defamation law.
In "Duma v Fairfax Media Publications Pty Limited (No 3) [2023] FCA 47", the articles published by Fairfax claimed that Duma and his lawyer Simon Ketan conspired to create a shell vehicle for bribe payments. They also suggested that Duma conspired with Ketan to defraud tribal landowners and had acted corruptly in trying to move a naval base.
The court found that a news article conveyed defamatory imputations about the claimant, despite the respondents arguing to the contrary.
The respondents' contention was that the imputations were not conveyed, and the references to the claimant’s denials of wrongdoing played a significant role in their argument.
However, the Court disagreed, citing Lord Devlin's remarks in "Lewis v Daily Telegraph Ltd [1964] AC 234 at 277" which suggested that ordinary reasonable readers draw implications from text, particularly when they are derogatory. This shows that an ordinary reasonable reader is more likely to interpret an implication of guilt or wrongdoing, especially when the text suggests a suspicious or scandalous context.
One leading authority that the Court referred to was the High Court's decision in "Favell v Queensland Newspapers Pty Ltd [2005] HCA 52". Here, the High Court held that the mere statement of an investigation or charge may not impute guilt. However, when this is accompanied by an account of suspicious circumstances that point towards a likelihood of guilt, the position may be different. The Court in Duma referenced this decision to highlight that adding derogatory implications to a piece of information could indeed sway it from being a bare report to one that suggests wrongdoing.
Another case that sheds light on this issue is "Mirror Newspapers Limited v Harrison [1982] HCA 50". This case established that the mere report of an arrest or charge does not convey an imputation of guilt due to the presumption of innocence. However, as the Court in Duma pointed out, citing McColl JA's opinion in "John Fairfax Publications Pty Limited v Obeid [2005] NSWCA 60", this presumption may be limited in situations where defamatory statements are made in circumstances unrelated to or remote from the operation of the criminal justice system.
Importantly, the Court in Duma emphasized that even if an article does not assert directly that a person acted corruptly or received a bribe, it does not mean that such an imputation wasn't conveyed. This was supported by "Jones v Skelton [1963] 1 WLR 1362 at 1370; SR (NSW) 644 at 650 (PC)", where Lord Morris stated that the ordinary and natural meaning of words could include any implication or inference drawn by a reasonable reader.
The Court also noted that denials of wrongdoing don't necessarily shield a publisher from conveying defamatory imputations, even if included in the publication. This was established by "Rivkin v Amalgamated Television Services Pty Ltd [2001] HCA 67" where it was held that readers don't have to give equal weight to every part of a publication, and the publisher's emphasis on certain aspects can significantly influence the reader's perception.