Imputations (a), (f) and (g): sex on stage
- In seeking to justify imputations (a), (f) and (g), Fairfax relied on CCTV footage taken inside the Rouge on the afternoon of 20 November 2009. [17] The footage was taken from various angles and depicted the upper dance floor area of the Rouge. The footage shows the separate arrival of the three female entertainers and their individual performances in front of a group of approximately 15 to 20 males between 2.25pm and 4.15pm. At various times, the male spectators were called onto the dance floor by the entertainers and participated in their performance.
- Senior Counsel for Fairfax, Mr Blackburn SC, submitted to the jury that various aspects of the entertainers' performances constituted "on stage sex". This included an incident at 2:38:20pm where it was contended that the first performer undertook "a handstand in the patrons lap with her groin in his face and the patron "…remove[d] a dildo or is it a lollypop [from the entertainer], does it matter, with his teeth", an incident at 2:45:05pm where the first performer lay "down in front of the patron and insert[ed] the dildo into herself" and then a "patron move[d] it in and out with his hand" and an incident at 4:01:09pm where, according to Mr Blackburn SC, "the patron appear[ed] to perform oral sex" on the third performer. [18] Having watched the video at the trial I agree with Mr Blackburn SC's description of the first two of these incidents. I was not satisfied that the third incident occurred as described. It is unclear from the CCTV footage whether the patron simulated or actually performed oral sex on the entertainer.
- In seeking to justify imputation (a), Fairfax also relied on parts of the CCTV footage which it contended showed Ms Chel watching the relevant parts of the entertainer's show which included "on stage sex". It pointed to parts of the footage of the first performance which it contended showed Ms Chel present in the upper bar of the Rouge at around 2.34pm and 2.44pm watching the performance of the first entertainer which included those parts which Fairfax contended constituted "on stage sex". [19] Similarly, in the Annexure, Fairfax contended that the Court should find that the Ms Chel "witnessed" the first performance which included the first two acts of the entertainer just described.
- When confronted with the CCTV footage that Fairfax contended showed her watching an entertainer perform a sex act at 2.34pm and 2.44pm, Ms Chel denied that her vision was directed to that part of the entertainer's performance. [20] She also said that she spoke to each of the performers and instructed them that there would not be any audience participation. [21] She stated that she recognised at least some of the persons who simulated sexual acts with the entertainers as assistants who arrived at the Rouge with the entertainers. [22] However, Fairfax responded that the CCTV footage showed Ms Chel leaving the premises before the third entertainer arrived so that she could not have spoken to that entertainer before her show. In the Annexure, Fairfax submitted that the Court should find that Ms Chel left the Rouge at around 3.16pm shortly after the commencement of the second performance and returned around 4.22pm after the third performance was complete. [23] I accept that the CCTV footage shows that. I reject Ms Chel's evidence to the contrary [24] and I reject her evidence that she spoke to the entertainers before they performed and told them that there would not be any audience participation [25] (see [105]).
- In seeking to justify imputations (f) and (g), Fairfax relied on the applicable development consent for the Rouge which required compliance with the "requirements of the Liquor Licence applying to the premises" [26] and condition 8 of the Liquor Licence which provided that "[a]udience participation involving sexual activities with contact is prohibited either on the stage or in the Theatre". [27] In that context, it was Ms Chel's evidence that all of the males who participated in the "performances" were "part of the entertainment show" [28] and "not part of the audience". [29] This was attacked by Fairfax on the basis that it was apparent from the CCTV footage that they were patrons who did not attend the Rouge in the company of the entertainers and that, as noted, Ms Chel was not present in the Rouge during the third performance.
- Overall in relation to imputation (a), Fairfax submitted that the acts of the entertainers shown in the CCTV footage constituted "on stage sex", that Ms Chel "allowed" that to occur and that her conduct in doing so was "disgraceful".
- On behalf of Ms Chel it was contended that "on stage sex" only meant what her Counsel, Mr Evatt, referred to as "conventional" or "procreative sex" that is penile vaginal intercourse between a male and a female and that did not occur. He also submitted that Ms Chel's denials that she was aware of the full extent of the entertainer's actions should be accepted, thus she did not "allow" any on stage sex and consequently her conduct was not "disgraceful".
- In relation to imputations (f) and (g), there was no doubt that the activities shown in the CCTV footage involved "strippers, dildos [and] whips". Fairfax submitted, inter alia, that the activities depicted in the CCTV footage constituted a breach of the conditions of the development consent and liquor licence noted above. On behalf of Ms Chel, it was contended that the activities did not involve "on stage sex" and did not involve "audience participation" because patrons did not participate (see [34]).
- In light of the jury's verdicts concerning imputations (f) and (g), it must follow that they were satisfied that the activities shown in the CCTV footage constituted "on stage sex" and involved audience participation in breach of the development consent and liquor licence.
- If the activities recorded in the CCTV constituted 'on stage sex" for the purposes of imputations (f) and (g) then they must have also constituted "on stage sex" for the purposes of imputation (a). However, the jury were not satisfied of the substantial truth of imputation (a). This is only explicable on the basis that the jury were either not satisfied that Ms Chel "allowed" the on-stage sex or that her conduct in doing so was "disgraceful". The latter conclusion is very difficult to reconcile with its earlier finding that the Article conveyed a defamatory imputation that she engaged in disgraceful conduct by allowing on stage sex. In the end result, the jury's verdict in respect of imputation (a) is best reconciled with its verdict in respect of imputations (f) and (g) by concluding that the jury were not satisfied that Ms Chel "allowed" the "on stage sex" at her nightclub on the afternoon of 20 November 2009. In particular the jury was not satisfied that Ms Chel witnessed or watched the on stage sexual activities as contended for by Fairfax. The impact of the publication of the Article on Ms Chel's reputation and feelings must be addressed on this basis.