Q. Do you recollect what the reference was to your brother?
A. The reference related directly to Cody Campbell, whom I recognised immediately as my brother, and of his part - the negligence and carry out from his administration in his capacity as the boss of the land council that he was employed by ." (underlining added)
15 What Miss Campbell said does not read well, but the parties were agreed that Miss Campbell was not articulate and that it was correctly recorded. The underlined part of the answer, which is the part of Miss Campbell's evidence in question in the appeal, was arguably not responsive. The view is open that Miss Campbell regarded what she said as part of the reference to her brother, that is, that she identified the person to whom Mr Carter ascribed an office and lack of competence as the brother she knew to have held a similar office and to have been accused of negligence. Be that as it may, there was no request that the underlined part of the answer be struck out as not responsive.
16 The cross-examination of Miss Campbell did not challenge that Mr Campbell was known as Cody Campbell, but did challenge that Miss Campbell had heard Mr Campbell's name during the broadcast. As will appear, at a later time the identification issue went away.
17 Miss Campbell was the only witness in the plaintiffs' case, and none of the defendants led evidence. Before counsel addressed, the trial judge made some initial observations to the jury.
18 The observations included -
"As you know now the plaintiffs have to persuade you that what was said, the words said in the broadcast, bear certain meanings, certain imputations. That's what this trial is about, first and last, whether what was said meant what Mr Tobin will be submitting to you that it meant. It is for Mr Tobin's clients to prove it to you. But meant to whom?
You the jury are bringing into a defamation trial the standards of the community, and for the purpose of doing that the law has devised a hypothetical person called the ordinary reasonable listener. The question for you at the end of the trial will be in respect of each imputation pleaded by Mr Tobin's clients, whether the ordinary reasonable listener would have taken the broadcast to have that meaning.
I have to tell you something, therefore, about the ordinary reasonable listener. You will find the expression used again and again during the course of the trial because it emphasises the real nature of the test which must be applied. You must not consider what may have been conveyed by the matter complained of to a reader with a morbid or suspicious mind, you may consider how a fair-minded listener would have heard the broadcast.
An ordinary reasonable listener is a fair-minded person who does not look for the worst in everything. He is not suspicious merely for the sake of being suspicious and does not look for strained or unlikely constructions. The ordinary reasonable listener is not some single identifiable person and is in fact, as I have said to you, a hypothetical person.
We refer to the way in which the matter complained of was understood by this hypothetical person, the ordinary reasonable listener, as representing a uniform view of the whole community, based upon what the community would generally understand to have been conveyed, based upon community standards and attitudes."
19 His Honour went on to refer to the position of the ordinary reasonable listener hearing a broadcast only once and not having lawyers saying how to listen to it. He said that he would in due course give directions "about the need, so far as is possible, to put yourselves in the position of the ordinary reasonable listener and not overdo the playing of the tape … ".
20 Mr Tobin then addressed. He referred on a number of occasions, when addressing in relation to whether the broadcast conveyed the imputations on which the plaintiffs relied, to whether the broadcast conveyed the imputations to the ordinary reasonable listener, saying that the jury must put themselves in the shoes of the ordinary reasonable listener. He did not refer to Miss Campbell's evidence when addressing in relation to the imputations on which Mr Campbell relied.
21 Towards the end of his address Mr Tobin turned to the identification issue, referring at some little length to Miss Campbell's evidence as establishing that the Cody Campbell in the broadcast was Mr Campbell. He did not refer to the underlined part of her evidence.
22 Mr Reynolds then addressed. At an early point he referred to "the concept of the ordinary reasonable listener", inviting attention to listening as distinct from seeing or reading. At his request a portion of the tape was then played to the jury, described as "the main passage that is relied upon in relation to the two plaintiffs numbers 2 and 3, they are Mr Manul Ritchie and Colin Campbell". Mr Reynolds then said to the jury (the transcript was plainly not entirely accurate, and I have incorporated in this passage corrections which were common ground in the appeal) -
"Now, let's try and think back to this little bit in a whole 20 minute programme as you drive around in the car or you are doing your ironing. Let's just think for a moment about what was it anything suggested to us about Mr Campbell.
Now, I can't read your mind but what I want to suggest to you that when you think about Mr Campbell and the passage that you just heard you do get a message and you get a very clear message and the message you get is from where Mr Carter talks about a corporation being mismanaged in the hands of an administrator, Mr Campbell, and how could he be appointed to another position after obviously being incompetent. Isn't that what it suggests to you? I formally admit to you on behalf of my client and Mr Carter that they suggested through Mr Carter, who is quoted on their programme, that Mr Campbell is incompetent.
Let's have a look at his imputations on the questions. The first is (read) and then the second is (read). Where is the meaning that all five of us I suggest to you got out of this programme which is there for everyone to hear and if you need to check it in your aide memoire, it is not there, is it, and yet that is what would be suggested to the ordinary reasonable listener, isn't it?
Now, it was very interesting I suggest yesterday when Miss Campbell gave her evidence and she was asked by Mr Tobin whether she heard a reference to her brother and she said that (this is page 71) there was a reference to Mr Campbell and she said on his part the negligence and carry out from his administration in his capacity as the boss of the land council, that he was employed by them. That is what struck her. Negligence. That is just another word for incompetence .
Now, that is not evidence on the question of what would be conveyed to the ordinary reasonable listener. You may think that Miss Campbell who gave evidence was representative of the reaction of the ordinary reasonable listener and if you do then there is no problem but I want to suggest to you that that and that alone is the suggestion that would be made to any ordinary reasonable listener hearing that once . He would say he is an incompetent or, to use her expression, he is negligent in his job as the boss or the administrator and, ladies and gentlemen, I suggest to you there is nothing else said about him in this and you may well wonder this very obvious imputation which I am prepared to concede has not been pleaded." (underlining added)
23 Shortly thereafter the trial was adjourned until the next day. Mr Reynolds resumed his address the next morning. After other harking back to the previous day, he said -
"Well we dealt with Mr Campbell's case to some degree yesterday and you will remember the tape was played and I took you through these imputations, these questions, which are on this page entitled 'Colin Campbell and Jones and Radio 2UE'. I am not going to bore you by taking you yet again through these imputations but I suggest to you you just could not find every element in either of those two imputations in the broadcast.
Now I did suggest to you there was an imputation about Mr Campbell and that it was one of incompetence, and I reminded you that there was a reference to a similar meaning which his sister, Miss Campbell, took from the broadcast, but I also warned you that was not evidence of what the ordinary reasonable listener would glean from the broadcast . That is a matter for you to determine, and just as it is not determinative of that issue for you to focus on what you yourself took from the programme, it is not determinative for you to look at the imputation Miss Campbell got from it. But I do suggest there is imputation there in confidence [sic: query something like 'the imputation there is incompetence'], and it was put reasonably clearly although briefly. But neither of these two imputations I suggest to you arose, and indeed I suggested the case on the various elements was very weak. So that on one view, if you accept what I say, that ought to be enough for you to answer 'no' to those two questions there which relate to Mr Campbell.
But there is another issue which I want to address you on very briefly in relation to Mr Campbell. … " (underlining added)
24 Mr Reynolds continued his address on "the question of identification of Mr Campbell", suggesting to the jury that for various reasons they should not be satisfied that Miss Campbell had heard the broadcast or the part in which there was reference to a Mr Campbell or Cody Campbell. He did not refer to the underlined part of Miss Campbell's evidence in connection with the identification of Mr Campbell.
25 I have underlined in these passages from Mr Reynolds' address the parts most material to the appeal. At a general level, the thrust of what Mr Reynolds was saying is clear enough. Mr Campbell relied on imputations of fraud and bribery, not an imputation of incompetence. Mr Reynolds was saying that the broadcast imputed incompetence, but that Mr Campbell had not complained of defamation because it imputed incompetence, and that nothing more than incompetence was to be found in it.
26 In due course Miss Gibson addressed, relatively briefly and without reference to the evidence of Miss Campbell. Although not in terms, the flavour of her address was that it adopted Mr Reynolds' address and built upon it in respects particularly referable to Mr Carter.
27 At the close of addresses Mr Tobin submitted to the trial judge that Mr Reynolds' address had contained a number of errors concerning the ordinary reasonable listener. He provided a written summary of his submissions, to which he spoke, and asked that the trial judge "redirect before the summing-up on the matters [he] raised".
28 One of the errors suggested was, in the words of the written summary, that the evidence of Miss Campbell "was used to test how the ordinary reasonable listener would have understood a single passage from the broadcast which Mr Reynolds had played to the jury". It was said that it was axiomatic that witnesses cannot be asked what meaning they attached to the words because that is the very question the jury has to decide, citing authority, and that this was an improper use of Miss Campbell's evidence of material in the broadcast by which she identified Mr Campbell. It was said, still in the words of the written summary, "that the jury should be directed to disregard this argument entirely and that [Miss Campbell's] evidence was utterly irrelevant to how the ordinary reasonable listener would have understood the broadcast and there was no basis for the defendants to rely on it in closing address". The oral submissions were to similar effect.
29 In his initial response on that matter, Mr Reynolds submitted that he had told the jury that what Miss Campbell said was irrelevant on the issue of what was conveyed to the ordinary reasonable listener. He said that the evidence was there, "They wouldn't ignore it, I didn't ignore it, but I told them in specific terms that it was inadmissible on that issue". He opposed the direction sought.
30 There was then the luncheon adjournment. After the adjournment the trial judge indicated that "a preliminary summing-up is not attractive to me" and that "any corrections [Mr Tobin] asked for should fall during the ordinary course of the summing-up". Mr Tobin's response as recorded was not entirely clear, but I think amounted to acceptance that whatever was done should be done in the course of the summing-up. But Mr Tobin maintained that there should be "a stern redirection not of your Honour but of what my learned friend has put", as I understand it meaning that in the summing-up his Honour should specifically negate the relevant aspects of Mr Reynolds' address.
31 In his continued submissions Mr Reynolds returned to Miss Campbell's evidence, saying -
"As I said before lunch, that evidence went in. It's obviously something, my learned friend would prefer hadn't happened but once its in I have got to tell them they should disregard it and it wasn't me in effect who asked the witness what meaning she attached to the words. That fell out one way or the other from what my learned friend asked. … Further, I will submit your Honour should re-affirm what I said, it will reiterate to the jury the perhaps rather unfortunate nature of the aspect of the evidence that fell out on my learned friend's evidence-in-chief."
32 The trial judge did not separately rule on Mr Tobin's application for a direction. The jury was brought in, and the summing-up began.
33 His Honour made it plain that, whatever counsel had said about the law in their addresses, the jury were bound to accept the law from his Honour and then apply it. At an early point his Honour said that it was necessary that each plaintiff persuade the jury that the ordinary reasonable listener would have understood the broadcast as conveying at least one of the imputations. His Honour continued -
"I will be using that expression 'the ordinary reasonable listener' during this summing-up. It is the usual description adopted because it emphasises the real nature of the test that must be applied in determining whether the matter complained of contains any of the imputations contended for by the plaintiffs.
You must not consider what may have been conveyed by the matter complained of to a listener with a morbid or suspicious mind. You must consider how the fair-minded listener would have listened to the broadcast. An ordinary reasonable listener is a fair-minded person who does not look for the worst in everything. The ordinary reasonable listener is not suspicious merely for the sake of being suspicious and doesn't look for strained or unlikely constructions, so you should not let such constructions cloud your judgment.
The ordinary reasonable listener is not, of course, any single identifiable person, and it is in fact not an actual person at all. We refer to the way in which the matter complained of was understood by this hypothetical person as representing a uniform view of the whole community, based upon what the community would generally understand to have been conveyed by a radio broadcast based upon general community standards and attitudes. When I refer to the ordinary reasonable listener I am referring to this hypothetical person who represents the general community."
34 The summing-up continued with directions to assist the jury in considering how the ordinary reasonable listener would have heard the broadcast, emphasising the need for the jury to put themselves in the position of the hypothetical ordinary reasonable listener and to be concerned with the impression the ordinary reasonable listener would receive having listened to the broadcast.
35 The trial judge then turned to what he described as a special issue in the case of Mr Campbell. He explained to the jury that it was necessary for Mr Campbell to prove that he was a person of and concerning whom the material in the broadcast was published, that is, that he was the person referred to as Cody Campbell. His Honour made detailed reference to the evidence of Miss Campbell. In dealing with the contest over whether Miss Campbell heard the broadcast, he read evidence given by Miss Campbell which included the underlined part of her evidence.
36 At a break in the proceedings the trial judge invited submissions from counsel. Mr Tobin submitted that certain other directions should be given as `to the identification of Mr Campbell. After some debate, Mr Reynolds made a concession intended to remove that issue, namely that Mr Jones and 2UE conceded that the whole of the matter complained of was published to Miss Campbell. When the jury returned the trial judge informed them that the issue of what Mr Campbell had to prove in order to identify himself with Cody Campbell had been "withdrawn from the trial", explaining why that was so. Mr Tobin made no further mention of the direction concerning the evidence of Miss Campbell.
37 The trial judge continued his summing-up, dealing with the cases of each party in turn. In due course the summing-up concluded. The trial judge did not direct the jury to the effect that what Miss Campbell had said was irrelevant to their determination of whether the broadcast conveyed to the ordinary reasonable listener the imputations on which Mr Campbell relied. Nor, of course, did he suggest that it was relevant to that determination.
38 His Honour asked counsel "whether they think I have not properly summarised a submission they have made or a case they have put". Again Mr Tobin made no further mention of the direction concerning the evidence of Miss Campbell.
39 It was common ground in the appeal that a witness can not be asked what meaning the witness attaches to the matter published, and that Miss Campbell could not have been asked in her evidence in chief or in cross-examination what the broadcast conveyed to her about Mr Campbell.
40 It followed, Mr Campbell submitted, that if by a non-responsive answer or by an answer relevant for other purposes Miss Campbell gave evidence of what the broadcast conveyed to her about Mr Campbell, it was impermissible for the evidence to be used either for or against the broadcast conveying to the ordinary reasonable listener the imputations on which Mr Campbell relied. Thus Mr Reynolds should not have used the evidence to suggest to the jury that the broadcast imputed incompetence but nothing more. There had been this impermissible use, it was submitted, despite the accompanying statements that what struck Miss Campbell was not evidence on the question of what would be conveyed to the ordinary reasonable listener and that what Miss Campbell took from the broadcast was not evidence of what the ordinary reasonable listener would glean from it: it was said that "under cover of a purported disavowal of the relevance of Miss Campbell's evidence to any conclusion as to the reaction of the ordinary reasonable listener … [Mr Reynolds] invited the jury to conclude that her stated reaction might be shared by such a listener".
41 This, it was submitted, was "an impermissible forensic ploy". In the absence of the direction requested, there was in substance an improper enlargement of the evidentiary materials by which the judgment of the jury might have been affected, and so an error of law whereby a new trial should be held. Reference was made to Balenzuela v De Gail (1959) 101 CLR 226 at 235-6.
42 In response, it was submitted that once the underlined part of Miss Campbell's evidence had been given "it couldn't just be left there without any explanation at all", and that Mr Reynolds twice told the jury directly that it was not evidence on the question of what would be conveyed to the ordinary reasonable listener. Perhaps, it was suggested, the trial judge felt that "it was just better not to go into that area again", but given the trial judge's directions there could not have been "any prejudice in real terms" to Mr Campbell. Reference was made to Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 for where Brennan J said (at 79) that "sensitivity about the submissions of counsel in the course of a jury address should not be too sharpened" and that it must be an extreme case in which counsel's address can be seen to have caused a miscarriage of justice.
43 In my opinion, Mr Reynolds' address made impermissible use of the evidence of Miss Campbell. I earlier stated that at a general level the thrust of what Mr Reynolds was saying is clear enough. More specifically, however, he was saying to the jury that they should find or be assisted in finding that the broadcast imputed incompetence, and nothing more than incompetence, because that was what Miss Campbell took from it. Why else say to the jury that the broadcast would suggest incompetence to the ordinary reasonable listener, and immediately follow that by the observation that it "was very interesting" that what struck Miss Campbell was incompetence? Why else, after the caution that that was not evidence on the question of what would be conveyed to the ordinary reasonable listener, say that the jury "may think that Miss Campbell … was representative of the reaction of the ordinary reasonable listener"? Why else, the next day, say that the jury had been reminded of the meaning of incompetence taken by Miss Campbell? Why else, after another caution, say that the imputation Miss Campbell took from the broadcast was "not determinative" on what the ordinary reasonable listener would get, apparently leaving it as something the jury could take into account?
44 I consider that the asserted justification that it was necessary for the jury to be told to disregard the evidence can not be accepted. More than that was done, and the jury was invited to be swayed by Miss Campbell's evidence in finding whether the imputations on which Mr Campbell relied were conveyed. Regrettably, I can not see the address as other than intended to invite them to do so.
45 It does not follow that the trial miscarried. The trial judge was asked to give a corrective direction. It was for his Honour to decide how best to deal with what had occurred, and to decide in the light of his knowledge of the course of the trial and the atmosphere in which events had happened and were happening.
46 The trial judge was against "a preliminary summing-up", and foreshadowed acting on Mr Tobin's applications (which went beyond the present question) "during the ordinary course of the summing-up". His Honour had given an initial explanation of the ordinary reasonable listener as a hypothetical person. The jury was then directed, clearly and repeatedly, that they took the law from the judge and that the law used the ordinary reasonable listener as a hypothetical person representing the general community. Together with the directions about how the ordinary reasonable listener would have heard the broadcast, it was just not open to a jury obedient to the trial judge's directions to take up the invitation extended by Mr Reynolds.
47 Although not so stating, in my opinion the trial judge decided that the most appropriate way of dealing with what had occurred was by the directions he gave, without specific direction to the effect that what Miss Campbell had said was irrelevant to the jury's determination of whether the broadcast conveyed to the ordinary reasonable listener the imputations on which Mr Campbell relied. That was an available course, and one which had much to commend it: a direction as requested could have been seen by the jury as critical of counsel for Mr Jones and 2UE, with the risk of the jury inappropriately taking it as reflecting on the parties. I do not think his Honour was obliged to give the direction requested by Mr Tobin. No appealable error has been shown in this respect.