Cunningham v Ryan [1919] HCA 75

Cunningham v Ryan [1919] HCA 75 - HCA 1919 case summary — Zoe

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answer all the questions." I said: ' You had better let me see what you have answered. Have you answered some?" Fore- man: "Yes." I: "In writing?" Foreman: "Yes, by put- ting the answers at the end of the questions." I: "Let me see them; I cannot answer your question until I see what you have answered." They handed me the list of questions. I said : - "I do not see the answers written there. I have to ask you to retire and put your answers to each one of them that you can answer, then let me see what you answer, and I will be able to answer your question whether it will be necessary to answer any more. At present I cannot answer the question. Will you please retire and put your answers down?" Mr, Know contends that at this point the matter crystallized into an irrevocable verdict. Now, I want to say that up to this point there had been no offer by the jury to the Court of any answers ; and my request to the jury to see any of their answers was not to obtain from them any answer as a final deliver- ance but only for the purpose of seeing how far they had progressed in order that I might try to answer their inquiry as to completing their task. The jury went out, and came back in seven minutes. This took place: - I: " Have you written some of the answers?" Foreman : "Yes." 1: " Let me ask you, before I look at them, how many of you have agreed to those answers?" Foreman: " Not all.by the same number, not all the questions." I: '"' Have some of you agreed to them?" Foreman: "To the majority of them." T: "Nine have?"'> Foreman: " Yes." I: 'Can you intimate to me of those answers how many have been agreed to by nine; put some mark against them." Foreman: "These answers have all the numbers that were recorded with the answer." I: "And where Ido not see any numbers, what am I to understand?" Foreman : "That they were unanimous." I looked at the papers. And again I say that the only object and purpose so far was not to take those answers as the formal deliverance of the jury, but to enable me, prior to any formal deliverance, to answer the jury's inquiry as to whether they were to answer any other questions, and to see what those other questions were. After looking at the papers I said :- - ' I have looked at them. There is not 'nine' to several of

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them." (I should say, in parenthesis, that to some there were other numbers not amounting to nine.) I continued: "Do you think there is any probability of your getting nine or unanimity to others?' Foreman: "I do not know, we could retire a little while and put those questions again where there are not nine, and see." After a little more I said : - '' I am asking you. If you think there is a chance of it, by all means try it; if you think it useless I will not bother." At 10.3 p.m. they came in again. Mr. Knox contends that at all events, if not earlier, the matter now became an irrevocable verdict for the defendants. So I must state the cir- cumstances. I asked again to see their answers, and they were handed up. After carefully reading the memoranda beside the questions, I said : - '' There are some here not answered. Do you feel unable to answer those left unanswered; are the ones I am pointing out to you left unanswered, or are they covered by any other answer?" Foreman: " We could answer, but we thought it was unnecessary to answer those questions as they are really answered in the previous questions." I said: " It is very desirable if you could answer them ; let me see itagain."" I carefully examined it and said : - "I think, gentlemen, you want to know whether it is necessary to answer those two questions. I cannot tell you whether it is necessary or not. I would like you to try ; it may or may not be necessary." Then I observed the form of one of the proposed answers - for I regard them all as only proposed answers ; I mean that to the 10th question. I considered it in connection with some of the other proposed answers, and, so considering it, I thought it better in the interests of both parties to say something with reference to it, lest by inadvertence an unintentional answer, possibly leading to legal difficulty hereafter, were given. I said : - "There is one other matter I must speak to you about. I do not know quite whether you followed all I said on the question of damages - perhaps I did not make myself quite clear to you, I thought I did - but in a case of libel the law presumes some damage. The amount of damage is entirely in your hands; you understand if there is a libel then there is some damage. What do you mean by the answer given? - none in fact, or that you give none?" Foreman (after looking at the question): "It is what it says -

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had better try and answer those two questions. I will not say any more to you about the damages. Try and think of what I told you to-day, and also try and answer those two questions. It may save a lot of trouble." Foreman: " Very well, your Honor." Now I wish to say decidedly that, up to that point, the whole discussion except the reference to the 10th question had been with a view to seeing whether it was necessary for the jury before the formal delivery and acceptance of the verdict to make up their minds as to two questions. I thought, and still think, those questions might prove important in finally settling the matter and avoiding a new trial. And I am absolutely clear that there was no finality indicated either in the conclusions arrived at by the jury or in the handing of the paper to the Court, or the reception of that paper by the Court. The answers were not handed to the Associate; they were not read out as they are when answers are formally rendered as a verdict, and they were not recorded. While the jury were out, after what I have narrated Mr. Knox made an application to me to note the answer to the 10th question. There was then a discussion, in the course of which I said: "1 am now informed that the jury wish to know whether they can alter their answers to the questions ; I see no reason why they cannot if they wish to: they have not answered all the questions, and I suppose until they finally answer they can." I should state that that arose because while, in their absence, the discussion above referred to was proceeding, the Deputy Marshal brought me a verbal message from the jury to the effect I have stated. I direeted them to be informed that the question must be dealt with in open Court, and so mentioned it to counsel for consideration in advance. Up to that time, while quite clear that there was no final conclusion on the jury's part, I did not anticipate that they would alter their minds or their answers, and in effect | imagined that after over six hours' consideration they would be sure to adhere to whatever conclusions they had formed. That, of course, was only an opinion, and I expressed my view by saying none of their answers would be altered. But their spon- taneous request, which came almost directly afterwards, at once changed that impression. And when I informed counsel of the

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intimation I had received, Mr. Knoz, first stating he desired to express no opinion upon it, then said: '* We should like a note made of the questions they have answered." I said: "I have not accepted them yet." Mr. Knox: "TI would ask your Honor to make a note of all questions they have answered by a majority of nine as a matter, to be discussed hereafter." I said : - "T have not got them here - now; I have a note of some of the particulars; I have not noted the answers to the questions. I feel no doubt they have a right to reconsider them until they finally come in." Then I referred to a distinct matter, which I will here explain. In considering the proposed answers I was struck with what I may best describe as - possible, if not probable, complications arising from reading them - as a whole. And then, in considering them further, I was in doubt whether the jury had borne in mind something that had been con- veyed to them during the charge as to their opinion of the defamatory character of some of the passages. When the jury came in they expressed difficulty about understanding the two questions already put and left unanswered. I did two things. I said, in effect, with reference to three passages in the article, that one only had been quoted in question 4, but that in answering it there were to be taken - into account the other two also. I said: ''I referred only to the first one, that in No. 4, but it was my intention (I thought I con- - veyed it to you, and it was the understanding of learned counsel on both sides) that No. 4 was to include the other two: what I want - to know is, did you understand that, and does your answer include _ an answer to the other two; or did you only answer in regard to the first passage?" Foreman: "No. 4 was considered entirely - on its own." So I had no alternative but to put expressly the other two to them, which I did - questions 4a and 48. It is quite clear that, not having considered those two passages as they were originally told to do, whatever tentative conclusion as to damages they had 4 formed might have to be reviewed by them according to the conclu- sions they arrived at as to questions 4a and 48. There was power to put such further questions in any event (see Arnold v. Jeffrey (1)). As to the two questions they did not so far understand, I asked if I should explain them again. At their request I did so. (1) (1914) 1 K.B., 512, at p. 514.

At a glance

Court

Decision date

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Judgment (157 paragraphs)