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[2002] NSWCA 8
Court of Appeal (NSW)
2001-12-06
Meagher JA, Giles JA, Grove J, Barr J
Original judgment source is linked above.
CITATION : Buck & Ors v Jones & Ors [2002] NSWCA 8 FILE NUMBER(S) : CA 40503/00 HEARING DATE(S) : 5 and 6 December 2001 JUDGMENT DATE : 6 February 2002
Mary Lou Buck - First Appellant Manul Ritchie - Second Appellant Colin Campbell - Third Appellant PARTIES : Cindy Johnson - Fourth Appellant Alan Jones - First Respondent Radio Station 2UE Pty Ltd - Second Respondent Anthony Carter - Third Respondent JUDGMENT OF : Meagher JA at 1; Giles JA at 2; Grove J at 76
LOWER COURT JURISDICTION : Supreme Court LOWER COURT SC 20217/97 FILE NUMBER(S) : LOWER COURT Barr J JUDICIAL OFFICER :
T E F Hughes QC & P W Gray - Appellants COUNSEL : G O'L Reynolds & R G McHugh - First and Second Respondents G McGrath - Third Respondent Chalk & Fitzgerald - Appellants SOLICITORS : Bush Burke & Co - First and Second Respondents Hunt and Hunt - Third Respondent CATCHWORDS : DEFAMATION - talkback radio broadcast - caller made allegedly defamatory statement - witness said what meaning she attached to it - whether counsel impermissably used the evidence in address - whether trial judge adequately directed jury that evidence could not be used to determine what was conveyed to the ordinary reasonable listener - jury found imputation conveyed by matter published by caller but not by matter published by broadcaster - whether findings necessarily inconsistent - whether assuming one finding the other was perverse - whether court could substitute finding or new trial required. D. Australian Broadcasting Corporation v Comalco Ltd (1986) 68 ALR 259; Balenzuela v De Gail (1959) 101 CLR 226; Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; Cinevest Ltd v Yirandi Productions Ltd (2001) NSWCA 68; CASES CITED: Dempster v Coates (CA, 11 April 1990, unreported) MacKenzie v The Queen (1996) 190 CLR 348; Middle East Airlines Airliban SAL v Sungravure Pty Ltd (1974) 1 NSWLR 323; Nationwide News Pty Ltd v Heggie [2001] NSWCA 257; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR; Wake v John Fairfax & Sons Ltd (1973) 1 NSWLR 43. DECISION : (1) Appeal allowed in part; (2) Set aside the jury's answers to question 4(b) and 12(b) and order that there be a new trial as between the fourth plaintiff and the defendants in respect of imputation 6(b); (3) As to costs - (i) The third and fourth appellants pay the respondents' costs thrown away and occasioned by the amendment to the notice of appeal. (ii) The third appellant pay the respondents' costs of his appeal. (iii) The respondents pay the fourth appellant's costs of her appeal. (iv) Set aside the order that the fourth appellant pay the first and second respondents' costs of the trial, the costs as between those parties to be as ordered by the judge before whom the new trial is conducted. (v) The first and second respondents have a certificate under the Suitors Fund Act if qualified.
IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
CA 40503/00 SC 20217/97 MEAGHER JA GILES JA GROVE J Wednesday 6 February 2002 BUCK & ORS v JONES & ORS
Judgment 1 MEAGHER JA: I agree with Giles JA. 2 GILES JA: On 4 February 1997 there was broadcast on Radio Station 2UE an interview between Mr Alan Jones, the presenter of the radio programme, and Mr Anthony Carter. Mr Jones opened the subject, said that he had Mr Carter "on the line from South Australia", and there followed a conversation between Mr Jones and Mr Carter apparently over the telephone but with all that was said broadcast over the radio. 3 The broadcast, together with a newsbreak, went for about twenty minutes. A transcript regarded by the parties as substantially accurate is Annexure A to these reasons. The tape of the broadcast was played to us. 4 Mrs Mary Buck, Mr Manul Ritchie, Mr Colin Campbell and Miss Cindy Johnson each brought proceedings against Mr Jones, Radio 2UE Pty Ltd ("2UE") and Mr Carter, claiming damages for defamation. Mrs Buck relied upon six imputations defamatory of her. Each of Mr Ritchie, Mr Campbell and Miss Johnson relied on two imputations defamatory of him or her. Each plaintiff relied on the same imputations against all three defendants. As between the plaintiffs some of the imputations were in the same terms, but generally they were not. 5 Pursuant to s 7A of the Defamation Act 1974, it was necessary for a jury to determine whether the matter complained of carried the imputations and, if it did, whether the imputations were defamatory. In the interview Mr Jones referred to a Mr Campbell and Mr Carter referred to a Cody Campbell, see lines 175 and 176 in the annexed transcript. Mr Campbell was initially put to proof of identification, that is, proof that the imputations on which he relied were defamatory of him: that was also a matter for the jury (see Cinevest Ltd v Yirandi Productions Ltd (2001) NSWCA 68). A trial was held, presided over by Barr J. The plaintiffs were jointly represented, Mr Jones and 2UE were jointly represented, and Mr Carter had his own representation. The leading counsel for the plaintiffs was Mr Tobin QC, the leading counsel for Mr Jones and 2UE was Mr Reynolds SC, and counsel for Mr Carter was Miss Gibson. 6 Mrs Buck succeeded against all of Mr Jones, 2UE and Mr Carter as to three imputations; failed against all of Mr Jones, 2UE and Mr Carter as to one imputation; succeeded against Mr Jones and 2UE but failed against Mr Carter as to one imputation; and failed against Mr Jones and 2UE but succeeded against Mr Carter as to one imputation. She appealed so far as she had not succeeded, but discontinued her appeal shortly before the hearing. None of Mr Jones, 2UE and Mr Carter appealed so far as Mrs Buck had succeeded. 7 Mr Ritchie failed against all of Mr Jones, 2UE and Mr Carter as to all imputations. He appealed, but discontinued his appeal shortly before the hearing. 8 Mr Campbell failed against all of Mr Jones, 2UE and Mr Carter as to all imputations. He appealed, but shortly before the hearing confined the grounds of his appeal. 9 Miss Johnson failed against all of Mr Jones, 2UE and Mr Carter as to one imputation, and failed against Mr Jones and 2UE but succeeded against Mr Carter as to the other imputation. She appealed so far as she had not succeeded, but shortly before the hearing also confined the grounds of her appeal. Mr Carter did not appeal so far as Miss Johnson had succeeded. 10 An amended notice of appeal was filed by leave, including any necessary leave to appeal. The discontinuances by Mrs Buck and Mr Ritchie have automatic costs consequences, see Pt 52 r 16 of the Rules. Mr Campbell and Miss Johnson accepted that they must pay the costs thrown away and occasioned by the amendment to the notice of appeal.
Mr Campbell's appeal 11 The extant ground of appeal was - "3. That the trial judge erred in failing to direct the jury that it should disregard the evidence of Miss Campbell, and the use requested of it by the respondents, in determining what meanings were conveyed by the matter complained of." 12 The order sought was that there be a new trial between Mr Campbell and all of Mr Jones, 2UE and Mr Carter in respect of the imputations on which Mr Campbell relied. It was not suggested that the error vitiated the trial as between the other parties. 13 The imputations on which Mr Campbell relied, identified from the amended statement of claim as imputations 5(a) and 5(b), were - 5(a) "The third plaintiff assisted the first plaintiff to pursue a claim for land at Crescent Head which he knew to be fraudulent."
5(b) "The third plaintiff was involved in bribery in connection with the native title claim for land at Crescent Head."
14 To prove identification Mr Campbell called his sister, Miss Margaret Campbell. She gave evidence that he was known as Cody Campbell. She said that she heard the broadcast from a point early in its course. Her examination in chief then included - "Q. Did you at some stage hear a reference to your brother? A. I did.
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.
Miss Johnson's appeal 48 The amended grounds of appeal were - "1 That the jury's answers to question 4(b) of the questions for the jury in respect of the first and second respondents on the one hand, and to question 12(b) of the questions for the jury in respect of the third respondent on the other hand, were necessarily and irreconcilably inconsistent.
16 Although this is the general rule, it is not entirely without exceptions.
17 A report that a person has been charged with an offence does not generally carry the imputation that the person is guilty of the offence, but merely the lesser imputation that the police reasonably suspect the person of having committed the offence: Mirror Newspaper Limited v. Harrison (1982) 149 CLR 293.
18 It also seems clear that, if a publication is of an imputation and also its refutation, then it may be that the whole publication does not make the imputation: see Bik v. Mirror Newspapers Limited [1979] 2 NSWLR 679n.
19 Furthermore, the identity of the person who made the imputation and/or the circumstances of its making may be such that the publication of the fact that the imputation was made, together with the identity of the person making it and/or the circumstances of its making, does not itself make the imputation. Plainly, a report that an actor X accused an actor Y of being a murderer does not carry the imputation that Y is a murderer, if the report makes it clear that the accusation was part of the dialogue of a play in which both were acting.
20 More relevantly to the present case, a report that an opposition politician A accused a government politician B of deceiving the public, in relation to a particular action of the government, would not necessarily be understood as making the imputation that B acted dishonestly and deceitfully, or the imputation that B is a dishonest and deceitful person. Furthermore, if B sued A and the publisher in respect of the publication of that accusation, a finding that A made the imputation would not, as a matter of absolute necessity, require a finding that the publisher also made that imputation. In a case such as that, in my opinion it might be relevant to consider whether the claimed imputation was an allegation made by a person who had an interest in making such allegations and who regularly made them, whether the other side of the picture was published, whether there was any endorsement of the allegation by the publisher or any other suggestion that it was true, and whether there was any intention manifested by the publisher itself to make the allegation. However, all those considerations would only be as matters relevant to the question, does the published material, considered fairly and as a whole, make the claimed imputation.
21 However, in my opinion, it would be quite wrong to suggest that published material, setting out an imputation made by another person, does not itself make the imputation if it merely publishes an allegation, or if both sides of the picture are published, or if there is no endorsement of the imputation by the publisher, or if no intention of the publisher to make the imputation is manifested. … " 62 Where the matter published by Mr Jones and 2UE was not coextensive with the matter published by Mr Carter, even though the matter published by Mr Jones and 2UE was more extensive than the matter published by Mr Carter, it can not be said that as a matter of law the finding of imputation 6(b) against Mr Carter required a finding of the same imputation against Mr Jones and 2UE. The greater publication included the lesser, but what was conveyed by the greater publication was not necessarily the same as what was conveyed by the lesser publication. 63 It follows that a direction to the jury in the terms the subject of the second ground of appeal would not have been appropriate. In fact his Honour was not asked to give that direction or a direction to the like effect. 64 It does not follow that the appeal in this respect fails. There may nonetheless have been inconsistency as claimed in the first ground of appeal because, on the facts, if imputation 6(b) was conveyed against Mr Carter a finding that it was not conveyed against Mr Jones and 2UE was perverse. 65 On behalf of Mr Jones and 2UE we were reminded at length of the difficulty of ascribing perversity to the jury's finding. The word itself sets the bar of appellate intervention at a high level. Jury verdicts in general can not be overturned unless they are such that no reasonable jury could reach them (eg Calin v Greater Union Organisation Pty Ltd (1991) 173 CLR 33 at 41). A jury's finding on whether the matter published conveys a defamatory imputation, it was said, calls for even more respect, because, it is "to a considerable extent a matter of opinion" (citing from Middle East Airlines Airliban SAL v Sungravure Pty Ltd (1974) 1 NSWLR 323 at 340). And it is more difficult again to ascribe perversity to a jury's finding in a broadcast case, where transience, tone, manner of expression and similar considerations come into whether a defamatory imputation is conveyed. Because of the stringency of the test of perversity, and the peculiar features of a broadcast defamation case, it was submitted that the Court should be astute not to see inconsistency unless it was inescapable, and if there was some evidence on which the jury's findings could be supported the Court should not substitute its own opinion of the facts (see generally MacKenzie v The Queen (1996) 190 CLR 348 especially at 365-69). 66 Mr Jones and 2UE submitted that it was possible that, having been directed as to the standard of proof on the balance of probabilities by the metaphor of barely tipping the scales, the jury concluded that imputation 6(b) was barely conveyed by the matter they considered to have been published by Mr Carter but was barely not conveyed by the whole of the broadcast published by Mr Jones and 2UE. That this might be so, it was suggested, was all the more open because the imputation did not spring out with overwhelming force from what was said at the time Miss Johnson was referred to by Mr Carter. It was even submitted that the case had been conducted on the basis that the jury could properly find that the same imputation was made by what was published by Mr Carter but was not made by the whole of the broadcast. 67 None of the passages to which we were taken supported this last submission. It was accepted that the jury could properly find that the same imputation was made by the whole of the broadcast but was not made by what was published by Mr Carter. The reverse was not adverted to, and if anything was not seen as open. 68 Nothing put by Mr Jones and 2UE in the appeal to my mind provided an explanation for the scales tipping against Mr Carter but not against Mr Jones and 2UE in relation to imputation 6(b). In my opinion, if the finding against Mr Carter as to imputation 6(b) is taken to be correct, the finding in favour of Mr Jones and 2UE as to that imputation was perverse. Any defamatory sting to the effect of imputation 6(b) lies in what was said by Mr Carter when Miss Johnson was first referred to. It was there that there was reference to blackmail and to the "old people at Crescent Head", all in the context of a native title claim and its settlement to which the jury could have thought the words "you either take the money or you lose it" related. Mr Jones asked the question from which Mr Carter's statements flowed and, whether or not what Mr Jones said thereafter amounting to embracing what Mr Carter said, it certainly neither challenged it not dissociated the programme from it. Even if Mr Jones and 2UE would be understood as not broadcasting the programme's own views, they published without relevant qualification matter found by the jury to have conveyed imputation 6(b). I can see nothing in the broadcast as a whole, or in the positions of Mr Jones, 2UE and Mr Carter, which could have justified the jury in finding that, if what was published by Mr Carter made imputation 6(b), the broadcast as a whole did not also make that imputation. In this I have acted on the tape rather than the transcript.
69 To repeat, Miss Johnson invited this Court to substitute a finding in her favour against Mr Jones and 2UE for the jury's adverse finding. In the alternative, and in descending order of preference, she sought a new trial of the action against Mr Jones and 2UE in respect of imputation 6(b), or a new trial of the action against all three defendants in respect of imputation 6(b). 70 It was accepted that the substitution of a finding in Miss Johnson's favour could not be done pursuant to the power in s 108(3) of the Supreme Court Act 1970, because a favourable finding would not lead to a verdict in the proceedings. Defences of comment and qualified privilege would remain. It was suggested that power could be found in s 23 of the Supreme Court Act, by which the Court has "all jurisdiction which may be necessary for the administration of justice in New South Wales". Even then, there would appear to be the impediment that s 7A of the Defamation Act requires that the finding be by a jury. I am relieved from grappling with the question of power, however, because in my view the only course which can be taken is to order a new trial as between Miss Johnson and all three defendants in respect of imputation 6(b). 71 The decision in the appeal is that there is inconsistency in the jury's findings as to imputation 6(b). The decision takes as its starting point the finding against Mr Carter that the imputation was made. It is true that that finding was not challenged by an appeal, but nonetheless as between Miss Johnson on the one hand and Mr Jones and 2UE on the other hand it is no more than an assumption from which comes perversity in the other finding that the imputation was not made. The finding against Mr Carter does not have to be taken to be correct for all purposes, or by Mr Jones and 2UE. Mr Jones and 2UE did not take it as correct for the purposes of the appeal. A proper expression of their position is not that the finding against Mr Carter was correct and so was the other finding. Correctness or incorrectness was not the issue. The issue was whether the two findings could stand together. The decision in the appeal brings no more than that they can not. 72 Where that is the extent of the decision, I do not think it is for this Court to say which of the findings is correct. Nor may it be open for it to do so in the face of s 7A. As in Dempster v Coates (CA, 11 April 1990, unreported), in which the jury gave inconsistent answers to questions, the trial miscarried because there is an ambiguity which remains to be resolved. No more has been decided. There must be a new trial involving all three defendants. 73 Mr Jones and 2UE may have submitted that there should not be a new trial because the trial had been conducted on the basis that the jury could properly find that the same imputation was made by what was published by Mr Carter but was not made by the whole of the broadcast. As I have said, I do not think that is so. In many ways a new trial is undesirable, but there is no proper alternative.
The result 74 Mr Campbell has been unsuccessful in his appeal. Miss Johnson has not been wholly successful in that she has not obtained her preferred order, but I do not think that calls for any modification to the normal position that Mr Jones and 2UE should pay her costs of her appeal. Mr Carter opposed her appeal, and should also be ordered to pay her costs of her appeal. The costs order below that Miss Johnson pay the costs of Mr Jones and 2UE should be set aside, and the costs as between those parties should fall as ordered by the judge before whom the new trial is held. Mr Jones and 2UE should have a certificate under the Suitors Fund Act if qualified. 75 I propose the following orders-
(i) The third and fourth appellants pay the respondents' costs thrown away and occasioned by the amendment to the notice of appeal. (ii) The third appellant pay the respondents' costs of his appeal.
(iii) The respondents pay the fourth appellant's costs of her appeal.
(iv) Set aside the order that the fourth appellant pay the first and second respondents' costs of the trial, the costs as between those parties to be as ordered by the judge before whom the new trial is conducted.
(v) The first and second respondents have a certificate under the Suitors Fund Act if qualified. 76 GROVE J: I agree with Giles JA. _______________ ANNEXURE "A" Jones = Alan Jones Carter = Anthony Carter
1 Jones: Native title is something that's very much in the news. We learnt 2 last year in October that the State Government here in New South 3 Wales had signed an agreement with Kempsey Aborigines 4 recognising native title over twelve point four hectares of land at 5 Crescent Head. The deal was that the State Government would pay 6 the Dunghutti Aboriginal people seven hundred and thirty-eight 7 thousand dollars compensation for a portion of land which had been 8 sub-divided into fifty-four residential blocks.
9 Then the Dunghutti people, we were told, agreed to hand their 10 native title over a second parcel of land back to the State 11 Government to allow residential development to go ahead and they 12 would get monetary compensation for that. So seven hundred and 13 fifty thousand a bit up front, that's for a fifth of the twelve point 14 four hectares and then the second parcel of land handed over for 15 about three million dollars. The native title claimant, the applicant, 16 who succeeded this was a woman called Mary Lou Buck.
17 She was making application she said, on behalf of the Davis family. 18 And she argued in her claim that they were Dunghutti people. Now 19 we've already had a Hindmarsh Island where it was established in 20 South Australia that people lied in order to secure support for their 21 claims. Documentation has already been provided to the New South 22 Wales Native Title Tribunal, which argues simply that the native title 23 claim lodged by Mary Lou Buck on behalf of the Davis family and 24 for the Dunghutti people is fraudulent.
25 That Mary Lou Buck bears no relationship to the Davis family as she 26 claimed when she made application. And that the Davis family are 27 not Dunghutti people at all but Birripi descendants. This is spelt out 28 in a statement signed by William Holton, the grandson of George 29 Davis, a brother of Jim Davis, of whom Mary Lou Buck the native 30 title applicant says she's a descendent.
31 Now to discuss this with me I have on the line from South Australia 32 the first cousin of Mary Lou Buck, Mr Anthony Carter. Anthony 33 Carter good morning.
35 Jones: Its a sad day when you have to strike out against a blood relation.
36 Carter: It's a sad day yes I must say because I've actually tried to negotiate 37 between the representative bodies, the New South Wales 38 Government and the New South Wales Aboriginal Lands Council to 39 no avail.
40 Jones: So this is a fraudulent claim you're saying.
41 Carter: I say that the paper work that has been presented leads to that 42 action. When I spoke to the chairperson of the New South Wales 43 Aboriginal Lands Council, Manul Ritchie he didn't like to use the 44 word fraud. I said, well let's say that you misrepresented the 45 information that you collected.
46 Jones: Let's just take it simply. William Holton, who's written … who's 47 made this deposition to the Native Title Tribunal is a grandson of 48 George Davis, that's unarguable, isn't it?
50 Jones: Didn't he last Wednesday at Port Macquarie sign formal papers with 51 the New South Wales Land Council to disassociate the Davis family 52 from the claim?
53 Carter: Yes, to formally recognise that they are descendants of the Birripi 54 nation.
57 Jones: But Mary Lou Buck in her application, and she succeeded, said she 58 was a Davis.
60 Jones: But the family tree which I've got in front of me demonstrates she 61 isn't.
63 Jones: And Mr Holton has sworn that the Davises are Birripi people; not 64 Dunghutti people.
66 Jones: And Mr Holton has sworn as the grandson of George Davis that he's 67 never met Mary Lou Buck.
69 Jones: Yet Mary Lou Buck said she's the grand-daughter of Mary Davis.
71 Jones: Isn't it clear from the family tree that Mary Davis never had children 72 with a bloke called Radford Button.
74 Jones: And Mary Lou Buck claimed though in her native title application 75 that she was the daughter of a relationship between Mary Davis and 76 Radford Button.
78 Jones: But the evidence also is that Mary Davis had a relationship with a 79 Bill Ritchie who was later charged with murdering her.
81 Jones: And that can be verified by Bill Ritchie's daughter.
82 Carter: And other old people within the area of Kempsey.
83 Jones: Right. Now William Holton, the grandson of George Davis, says 84 Mary Lou Buck has never been identified with his family or the 85 community up there as a Davis.
87 Jones: Did she make the original native title claim on behalf of the Narcoo 88 nation?
89 Carter: Yes, originally they tried to put the claim through the Narcoo nation 90 with which they established in the 1970s.
91 Jones: But the Narcoo nation never existed, it never had tribes and clans, 92 did it?
94 Jones: It was just a series of relocated families.
95 Carter: Yes, relocated families from the South Coast.
96 Jones: Right, So then, having originally put in a native title claim on behalf 97 of the Narcoo nation she changed the claim on behalf of the 98 Dunghutti people.
99 Carter: On the advice of the New South Wales Aboriginal Lands Council.
100 Jones: On the advice of the New South Wales Aboriginal Lands Council she 101 changed the application on behalf of the Dunghutti people. Now Mr 102 Holton, the grandson of the George Davis, has sworn that during the 103 entire duration of the claim he never had anyone consult him from 104 the Native Title Unit of the New South Wales Land Council.
106 Jones: Mary Lou Buck at the two day community discussions held at 107 Crescent Head was never asked to present a family tree.
108 Carter: They presented other family trees but not the Button's or the 109 Hoskins' family trees.
110 Jones: And so it's clear from all the family trees that Mary Lou Buck is not 111 a descendent of the Davis family and not even remotely related.
113 Jones: So if she then claims native title as a Davis on behalf of the 114 Dunghutti people on the evidence that you have and William Holton 115 presented it is a fraudulent claim.
116 Carter: They say that they unfortunately misrepresented the case and that it 117 basically goes back to the history of the Kempsey area on about a 118 relocated plan controlling Aboriginal affairs.
119 Jones: Now you were at a meeting at Crescent Head on November three, 120 weren't you, when the New South Wales State Land Council on 121 behalf of the native title claimant wanted to rubber stamp the claim 122 by the other parties and you raised the issue, did you not, that 123 you're discussing with me now?
124 Carter: Raised the issue then and also raised the issue in the QC Chambers 123 office of Sydney on the ninth of October prior to the signing of the 126 Deed of Agreement between the two bodies and I made them aware 127 that all these people that were sitting around here, identified them 128 as Narcoo people. And actually it was interesting that they never 129 ever got an agreement or a consensus with the families from the 130 Dunghutti nation to accept the compensation for the loss of land.
131 Jones: You in fact on the contrary pleaded with them to give the money 132 back because you argued that native title wasn't about money but 133 about maintaining, developing and promoting the land in a traditional 134 sense.
133 Carter: That is it. I mean money comes and goes, land is always there 136 forever.
137 Jones: So you're saying the whole concept of Mabo has been prostituted 138 by this pursuit of money?
139 Carter: Yes, because it was a cover up by the State Government and the 140 State Lands Council, who happens to be a statutory body of the 141 State Government, realise that in the '90s that the government 142 actually sold the land on those hectares and didn't actually rubber 143 stamp them with the ... and therefore they could not guarantee the 144 deeds or titles to the land owners out there. So basically they were 145 going to be sued by these land owners to the vicinity of five to ten 146 million dollars.
147 Jones: So Mary Lou Davis is not ... Mary Lou Buck is not a Davis ... the 148 land is not Dunghutti land?
149 Carter: The land that's in question is actually part of a tribe made up of 130 clans, and the tribe is actually called Marwongs and the tribe of 131 Marwongs is actually one of the tribes within the Dunghutti nation.
132 Jones: So this whole thing is a fraud. Do you say a conspiracy?
133 Carter: It say it is a conspiracy. I say that what happens ... a Native 134 National Tribunal actually suspended all mediation because there 155 were secret negotiations done between the State Lands Council and 156 the State Government.
157 Jones: Anthony I will wrap up, I'll take the news and I'll just come back to 158 you after the news to wrap it up. Can you stay with me?
161 Jones: I'm speaking with Anthony Carter, the direct first cousin of Mary 162 Lou Buck who was the woman who made the application for native 163 title saying she was a descendent of the Davis family and on behalf 164 of the Dunghutti people. Before we just wrap this up, Anthony 165 Carter, I'm speaking to you from South Australia but here in New 166 South Wales the ICAC has announced they're going to hold a public 167 inquiry into corruption within Aboriginal Land Councils. 168 They have been investigating the matter for fifteen months. They 169 say there has been serious allegations of bribery, fraud and 170 maladministration. Is that central to what we are talking about 171 here?
172 Carter: I think it is. Basically it is a conspiracy and it goes from the top to 173 the bottom. I mean, the person who's now the general manager of 174 the Kempsey Local Aboriginal Land Council
176 Carter: Yes. Cody Campbell … was actually in a position of executive officer 177 or administrator of the Narcoo Housing. Now this housing 178 corporation actually was mismanaged in 1986 and was then put in 179 the hand of an administrator. How can one be appointed to another 180 position after obviously being incompetent?
181 Jones: And Manul Ritchie is the regional representative and chairperson of 182 the New South Wales Aboriginal Land Council?
183 Carter: Yes, they are all connected with one another.
184 Jones: And Ritchie's grandfather was the brother of Bill Ritchie, the bloke 185 who murdered Mary Davis.
186 Carter: He knew all along about the connections of Bill Ritchie and Mary 187 Davis.
189 Carter: Unfortunately what needs to happen … apparently they want to go 190 to the Federal Court today to register it. What needs to happen, it 191 needs to not go back to … it needs not to go to the Federal Court, it 192 needs to go back to the community for open and honest mediation 193 so therefore all parties can sit down and work out … they never ever 194 agreed to compensation. The Aboriginal community of Kempsey 195 never agreed, it was only a select few and it was done in the 196 midnight hour.
200 Carter: It is not about money. Native title ... why didn't ...
202 Carter: I'm sure he would have been offered enough carrots, but 203 unfortunately ... as I said, the State Government was in the position 204 of being sued by the land owners out there, they had to find a 205 scapegoat. Unfortunately they found a very greedy scapegoat.
206 Jones: Let's just go back and sum it up. Mary Lou Buck is the successful 207 applicant for the native title claim over this land on behalf of the 208 Dunghutti people. She has said that she is the descendent of the 209 Davis family. All evidence suggests that she's not.
211 Jones: The evidence suggests she's not even remotely related.
213 Jones: The Davis family were not even Dunghutti people.
21-1 Carter: Not Dunghutti people, but not even consulted through this.
215 Jones: They weren't consulted, but they're not Dunghutti people. They are 216 Birripi by birth right?
220 Jones: The Dunghutti people never even visited the area of Crescent Head.
221 Carter: No, they were inland people. They were a mountain and river 222 people.
223 Jones: So as William Holton says in his documentation, this represents the 224 bastardisation of his ancestry.
225 Carter: It does when you think about it. They actually used within their 226 application inter-marriage conscious policy which was basically the 227 relocated clan from the South Coast. So now the South Coast are 22S more Dunghutti people than the original Dunghutti people.
229 Jones: So basically people are claiming to be descendants of the Davis 230 family when they're not?
231 Carter: That is true. And unfortunately that they're in a position because 232 they saw the money and they thought … it's quite interesting, I 233 asked the question … I only found this out yesterday … why did 234 Mary Lou Buck lodge this application in Pert, Western Australia.
236 Carter: Obviously they didn't want to make the community aware. They've 237 been very selective in their consultation. They've only had two 238 community mediations and again the officers are Simon Blackshield, 239 who's a legal officer, and Cindy Johnson within the New South 240 Wales Aboriginal Lands Council, had our old people at Crescent 241 Head they either blackmailed them. They said you either take the 242 money or you lose it.
243 Now, our old people understand of the social justice and the health 244 and the education and, of course, they looked at it and they had our 245 old people fighting over money. The northern Aboriginal Australians, 246 they fight over land
247 Jones: Is there something wrong with Aboriginal administration here? Are 248 there people in charge who can't be challenged?
249 Carter: I think it goes to the top and I think it's been a cultural conspiracy. I 250 think … when we gained our freedom we actually lost our 251 independence and its quite obvious that this person who gave us our 252 freedom is still in a position of authority thirty years … that's close 253 to dictatorship, isn't it?
255 Carter: I think it needs to go back to the community. The families need to 256 have an open mediation to work out … I think …
257 Jones: And someone needs to talk to the Davis family.
258 Carter: I agree with what Galarwuy Yunupingu said about the Wik case 259 that's happening now. I think we should have a moratorium and 260 that no claim should be put in. I think Aboriginal families have got 261 to get back and work out their roots and find out their history before 262 we start making these claims. Because unfortunately we're putting 263 ourselves out in public and it should not be in public. Our families 264 need to get back and start identifying where and who they are.
265 Jones: Good to talk to you and I thank you for your time and we'll talk 266 again.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Buck & Ors
Jones & Ors
(1986) 68 ALR 259
(1959) 101 CLR 226
(1991) 173 CLR 33
(1993) 178 CLR 44
(1996) 190 CLR 348
(1974) 1 NSWLR 323
(1973) 1 NSWLR 43
(1996) 186 CLR 574
(1982) 149 CLR 293