DEFAMATION - procedure - application to have proceedings tried without a jury - whether plaintiffs alleging likelihood of prejudice against them due to adverse reporting on the media
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DEFAMATION - procedure - application to have proceedings tried without a jury - whether plaintiffs alleging likelihood of prejudice against them due to adverse reporting on the media
Judgment (2 paragraphs)
[1]
Judgment
HER HONOUR: In September of 2012, or some time shortly before then, a video was made available on the Internet and widely broadcast throughout the world which was perceived to be insulting to the Prophet Mohammed and grossly offensive to people of the Muslim faith. The publication of the video prompted a number of demonstrations throughout the world, including a demonstration in Sydney in September of 2012 which, in turn, was widely reported. In particular, it was reported that the assembly had become violent and had resulted in a number of people being charged with criminal offences.
Before the Court are two defamation proceedings arising out of the reporting of that event. There are two applications to be determined in respect of those proceedings. Since the proceedings raise common issues, the applications were heard and are to be determined together.
The first application relates to whether the proceedings should be tried with a jury. Section 21 of the Defamation Act 2005 (NSW) provides:
(1) Unless the court orders otherwise, a plaintiff or defendant in defamation proceedings may elect for the proceedings to be tried by jury.
(2) An election must be:
(a) made at the time and in the manner prescribed by the rules of court for the court in which the proceedings are to be tried, and
(b) accompanied by the fee (if any) prescribed by the regulations made under the Civil Procedure Act 2005 for the requisition of a jury in that court.
(3) Without limiting subsection (1), a court may order that defamation proceedings are not to be tried by jury if:
(a) the trial requires a prolonged examination of records, or
(b) the trial involves any technical, scientific or other issue that cannot be conveniently considered and resolved by a jury.
Cheikho v Nationwide News Pty Limited [2015] NSWSC 146 | Case summary | Zoe
Rule 29.2A of the Uniform Civil Procedure Rules 2005 (NSW) makes specific provision as to the mechanism for making an election of the kind contemplated in s 21(1). The defendants in the present case have, in accordance with that rule, served notice of their intention to elect for a jury.
Under s 21, the Court has two discretionary powers to dispense with a jury. One is based on specific grounds in s 21(3). That is not the power invoked in the present case. Separately, s 21(1) confers a power, which is discretionary, to dispense with a jury on other grounds. The discretion is to be exercised judicially and in accordance with the objects of the Act: cf Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 246 at paragraph [43].
The plaintiffs in the two cases before the Court have moved the Court for an order under s 21(1). The basis for the application is the "overwhelming emotional and persistent prejudice" said to arise from the manner in which the conduct of those involved in the events of September 2012, and other events, have been reported in the press in Australia.
The application was supported by the tender of a bundle of articles of that nature (Exhibit A). On the strength of the content of the bundle, it may be accepted that there has, in this country, been widespread reporting of matters involving the conduct of people evidently having extreme religious views and that such conduct and subsequent reporting is likely to strike fear into the hearts of many people as to the prospect of severe harm at the hands of religious extremists and, further, the prospect of such harm occurring on our own soil. That is especially so in the context of the reporting of the conduct of ISIL and other groups of Muslim extremists.
Mr Molomby, who appears for the plaintiffs, raised a preliminary point as to the volatile nature of such conduct and its reporting, which he submitted was a reason for deferring determining the present application until closer to the time of the trial. By an unhappy coincidence, his submission on that issue was illustrated in the fact that the hearing of the present applications was originally listed to occur in the week of the Lindt Cafe siege and had to be vacated on account of that event.
Against that, however, it must be accepted that the rules contemplate that an application that a matter not proceed with a jury is to be determined before the matter can be listed for trial. In my view the proper course, in accordance with the rules, is to determine the application now, upon its having been brought forward. The Court would, of course, always have a discretion in an appropriate case to entertain an application brought or revived at a later point on the grounds of the emergence of new events.
A further preliminary point averted to by Mr Molomby was the fact that the jurisprudence in respect of such applications refers to a party's right to a trial with a jury upon election of that course as an "accrued right." However, the mechanism contemplated in the rules for making an application to dispense with a jury brings forward the determination of that issue before the right accrues, insisting that an application to dispense with a jury be made after the giving of notice of intention to elect a trial with a jury but before the election is filed. Although I am grateful to Mr Molomby for drawing that consideration to my attention, I do not think it should be understood as having any impact on the principles stated in the relevant authorities.
Turning to the substance of the application, there is, as I have said, a bundle of articles. There is, however, no direct evidence as to any prejudice felt or experienced or entertained by any person likely to serve as a juror in this case. That is a matter left to inference from the reports tendered by Mr Molomby. There is some resonance in the present application with an application determined by the Court of Appeal in the matter of R v Belghar [2012] NSWCCA 86. Mr Belgar was charged with an offence of violence against his sister-in-law which, according to the Crown case, he committed because he was angry with her for having taken his wife (her sister) to the beach. It was apprehended that there would, within the Australian community, be a degree of prejudice against a man who would act in the manner alleged against the accused, on the grounds that many Australians would not share his allegedly strict views about the conduct of women in marriage. The trial judge's order that the matter be tried without a jury was overturned by the Court of Appeal, primarily on the basis that there was no evidence to support a conclusion as to the existence of any such prejudice.
In the present case, there is evidence in the form of the newspaper articles to which I have referred, but I do not think that material provides a proper basis for me to draw any inference as to the likely actual state of mind or prejudice likely to be entertained by any potential juror. That is a matter about which, in my view, no judge could properly speculate. People react to events of the kind reported in the articles in exhibit A in unexpected ways. There could be no doubt that some members of the community would entertain fear, even acute fear, in the face of the reporting of such events. Such events and their reporting, however, can also reveal an unexpected degree of tolerance, compassion and fierce support within the community for the freedom of expression and freedom of religion which we hold dear as an essential aspect of our democratic society. Our community is constantly negotiating the terms on which people of different religious faith, political views and other differences co-exist in this society.
The authorities are clear that the election for a trial with a jury under s 21 gives rise to an accrued right, the displacement of which falls to the person or party seeking a trial by judge alone: see Channel Seven Sydney Pty Ltd v Senator Concetta Fieravanti-Wells [2011] NSWCA 246; 81 NSWLR 315 at [50], [114] and [138]. Further, those authorities establish an assumption in the common law that jurors are capable of complying with the directions required to be given to them by a judge that they should try a matter impartially and, in the discharge of their functions as jurors, act judicially, disregarding any material other than the evidence before them in the proceedings and setting aside any prejudice.
I have not been persuaded by the material relied upon by the plaintiff or the submissions that there is any basis for concluding that the plaintiffs would not be afforded a fair trial by a jury in the present case. Accordingly, the applications are rejected.
The second application related to the defendant's desire to amend their defence so as to include further particulars of some of the allegations relied upon in support of the truth defence. The amendments are set out in a proposed amended pleading handed up during the hearing. It was objected that the particulars were incapable of reflecting on the matters in support of which they were relied and, on the other hand, that they were "seriously prejudicial". In my view the objection to the amendment was, with great respect to Mr Molomby, misconceived. I accept that it is established that in an appropriate case particulars relied upon in support of a truth or contextual truth defence may fall so far short of being capable of supporting the truth of the imputations that it could be justified to strike them out: see Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 at [20].
Two observations may be made about that statement of principle. The first is that, although it stands as a decision that is binding on me, being a decision of the Court of Appeal, it is a case which was decided before the introduction of the Defamation List Practice Note. I do not think it should now be, if it ever was to be, understood to encourage parties to bring forward objections to particulars, particularly when such matters can readily be dealt with by the trial judge. There may be cases in which the application is helpfully brought forward at an early point in time, but the clear intent of the Practice Note is to discourage what was perceived to be a vice of defamation proceedings conducted in this List, which is the interminable round of interlocutory applications and the long and expensive path to a final hearing.
Secondly, it is equally established that particulars are not to be regarded as the evidence, rather that they denote the topics of which evidence will be adduced. To allow the particulars to stand says nothing as to whether the evidence sought to be adduced in support of them will be admitted. That is a matter for the trial judge. In my view, if the defendants wish to be able to argue that the matters in those particulars go to proving the truth of the imputations, the particulars should be allowed to stand on the pleading. That says nothing as to whether that evidence will be admitted, but it preserves the defendant's position. For my part, I would add that I can see a logical connection between the particulars added to the pleading and the propositions that the defendants will have to prove in support of the truth defence.
Accordingly, I propose to grant leave to amend the defences in accordance with the documents provided during argument.
[2]
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Decision last updated: 04 March 2015