Summing up
131The trial judge summed up to the jury over three days: 5, 6 and 10 June 2008. No party sought any redirections or further directions during or following the summing up. It can be inferred from the absence of complaint that Counsel at trial accepted that the trial judge adequately summed up the case each sought to advance.
132The trial judge addressed both matters of law and evidence in meticulous detail. It is necessary to set out aspects of her Honour's summing up in detail, having regard to the grounds of appeal and the orders sought.
133The trial judge summed up on the publication issue as follows:
"102. The ... issue of publication ... is whether the defendants, or any of them, are responsible for the publication of the petition, either by circulating it at the general meeting, and I will give you directions in a moment as to what is constituted by circulating, or by agreeing that Mr Kochou should read it aloud to the general meeting.
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107. [Publication] is a first question. Self-evidently the plaintiffs have sought to persuade you that each of the defendants are responsible, by either agreeing that Mr Kochou read the petition out loud, or by circulating the petition which is a way of course of disseminating the contents of the document.
108. Mr Neil has advanced the submission that you would be well persuaded that each is responsible for publication in one or other way.
109. Mr Dawson ... and Mr Allen ... contend to the contrary. Each of them say in effect that they are not responsible for publication by that means. None of them agreed with Mr Kochou that he read the document out aloud in English or you would not be persuaded on balance that that occurred, and/or none of the defendants agreed [t]hat the document would be circulated, that is made available to people at the general meeting by people either being given it or by people going to get it which is, as you will hear in a moment, one of the means or modes by which you will be guided on the question of circulation.
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129. Let me turn to the question of publication, which is of course the first question for you to resolve. 'Publication' very simply means a communication to a third party of material which is defamatory. It does not matter whether the publication by way of communication, is to one person or to the world. The question of whether it was one person or 101 people or the world would have a bearing on the question of damages which is for a judge to determine later down the line if the matter proceeds that distance. But, for your purposes, publication simply means a communication to a third party.
130. Mr Dawson submitted to you, quite correctly, again by way of example, but it happens in this circumstance to be a useful example, that if a letter was written, let's say, by me which records very shocking and scandalous things that I believe ought be recorded about a neighbour and I put down this set of very derogatory and offensive remarks and conclusions that I've drawn about my neighbour and I put the letter in the bottom drawer of my desk at home and I never tell anyone about it, I lock the drawer and I have the only key and I never communicate the contents of that letter to anybody, I have not, even though I have written that letter and even though it contains scandalous remarks and conclusions, I have not, by my action, published that letter.
131. In this case publication is alleged against each of the defendants by the plaintiffs in very precise terms as set out in question 1 of the jury questions ...
132. There are two methods of publication, that is, two methods by which the plaintiffs contend defamatory material was communicated to a third party. The first is by circulating the petition. The plaintiffs contend that by circulating the petition the material contained within it which the plaintiff contends was defamatory, was communicated to a third party.
133. The other means - and it's not an alternate means, it's an additional means - by which the petition is said by the plaintiffs to have been published was by the defendants agreeing that the petition should be read out by ... Mr Kochou, in English ...
134. In the context of this case, the question of circulation involves you determining whether on the probabilities - that is, whether it is more probable than not - you are satisfied that the petition was available for circulation at the general meeting in multiple copies. The evidence bearing on that question is various.
135. It's Mr Kochou's evidence that there were two tables with petitions laid on them. That evidence was supported by Mr Sarkez.
136. There was also evidence from Mr Isaac himself that there was a copy of the petition in the hand of the first defendant and his attention was drawn to the fact that there was an error on page 3, the typographical error or the transcription error or the misdescription of 'insolvent trading' as 'insider trading'.
137. In order for you to be satisfied on the probabilities that the petition was circulated at the general meeting, you would need to be satisfied that the petition was circulated, in the sense of being looked at, read at the table, or lifted from the table and handed around to one or more of the persons assembled in the auditorium.
138. If you were satisfied that on the probabilities there were at least two copies on the tables at the foot of the stage and that those documents were put into calculation [sic, circulation] by being read by some one or more persons at the table, or taken from the table and circulated, it would be open to you to be satisfied that at least there was circulation of the petition.
139. The related and all important question is, if you were satisfied of that is: who was liable for it? The mere fact that you were satisfied on the probabilities by reference to the evidence that the documents, that is the petition, was available in multiple copies does not allow you to conclude against any of the defendants that they are necessarily liable for circulation.
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141. For the purposes of giving you guidance as to what is constituted - or relied upon, rather, by the plaintiffs as a publication in this case, it is by alternate methods. One is by circulation. I've dealt with circulation. The other method - that is, by agreement that the publication be read out in English - involves you determining, again, whether or not on the probabilities, you are persuaded that one or more or all of the defendants concurred with or approved of or accepted and understood either by their words or by their conduct that Mr Kochou would read out the publication in English.
142. It is not necessary in order for there to be an agreement that that occur between one or more or all of the defendants that there be a formal request and response.
[The trial judge then directed the jury that that agreement could be constituted by the jury being satisfied that any one of the defendants concurred, approved, understood or accepted that Mr Kochou would read out the petition and could be found both from what was said or could be inferred from the defendants' conduct before and at the general meeting].
145. Circulation is not, as it happens, a particularly complex legal concept, but it is one that requires you to apply your thinking. Not only must you be satisfied that the document, that is the petition, was in fact in the room in multiple copies but that it was put into circulation by being available by that means.
[The trial judge then explained the concept of imputations, the ordinary reasonable reader and how that person might read the matter complained of and what 'defamatory' meant. She then turned to the evidence].
212. Mr Dawson, in the course of his address, correctly identified that publication in this case has two elements. Insofar as the first element is concerned - that is, did a publication take place at all - the law, as you'll be reminded, simply requires that at least one person, insofar as the facts of this case are concerned, read the petition and understood it, in the sense of gathering an understanding of what it contained, and at least one person heard the publication being read and understood it in the same sense.
213. It must also be established to your satisfaction in each case, whether a publication by circulation or reading aloud, that that occurred on the date of the general meeting, namely, 27 November 2005.
214. On this first element, Mr Dawson put to you, by reference to the evidence, that it would be open for you to be persuaded that there was no single person who read the petition that was circulated at the meeting and no single person who heard it being read. Equally, he said it would be open to you to be persuaded to the contrary, namely, that there was at least one person who read it or heard it. His ultimate submission to you was that you could not be sure one way or the other.
215. In essence, he submitted to you that on that question, the first part of the publication question, looking at all of the evidence, the scales would remain equally balanced; that is, neither weighted one side nor the other.
216. He said so far as Mr Kochou was concerned - and Mr Kochou's evidence in that respect was that whilst Mr Kochou saw the petition being handed around and saw that some people had signed the signature page, he simply assumed that what was being handed around was the petition, and simply assumed that it was read, and simply assumed that those who had signed the signature page had in fact read the petition.
217. Mr Kochou did in fact say that he assumed those things because he saw the document, the petition, as he understood it to be, in people's hands and he saw people at the table where the petitions were placed for the consideration of those at the meeting.
218. He drew attention, that is Mr Dawson drew attention, to the fact that Mr Kochou conceded - fairly, you might think - that he could not say for a fact that anyone had in fact read the petition or anyone had in fact heard him read the petition and understood him when he read it out aloud.
219. Mr Sarkez gave evidence, and Mr Dawson reminded you of it, that he regarded or considered there were a number of petitions available for circulation, but Mr Sarkez again conceded that he did not see anyone with the petition in their hands at the meeting.
220. So far as Mr Isaac's evidence is concerned, Mr Dawson reminded you that on his account, that is Mr Isaac's account, a female member of the credit committee appears to have read the document because, according to his evidence, Mr Isaac's evidence, the first defendant drew his attention to the error on page 3 whilst he was sitting at the back of the room. Mr Dawson submitted, however, that there was no evidence as to when that woman read the petition and there is no evidence that the error was detected by her in a petition she read that day.
221. On the question of publication by reading aloud, Mr Kochou gave evidence not only that he in fact read it out loud, but you'll remember Mr Kochou read it out loud for you to hear in the course of giving his evidence. It is entirely a matter for you, ladies and gentlemen, whether you regard Mr Kochou's tone of voice and the pace at which he read the document to be such as to render it understandable by at least one person in the meeting of about 100 people.
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225. That is why that issue [of whether those present, or one of them, was relevantly proficient in English] ... is important. And I'm not suggesting for one moment that the fact that English may not have been the first language of many in the room is not unimportant. But remember ... what the plaintiffs have to establish is that at least one person amongst that number understood the English language such as to comprehend, that is understand meaningfully ... what the document as read would convey to a person with an ability to read English.
226. Mr Kochou gave this evidence. He agreed that for most of those at the meetings, English would not be their first language. However, he did not agree, when tested by Mr Dawson in cross-examination, that most of those understood Assyrian better than English. He said, Mr Kochou, and I quote:
'A lot understood English better than Assyrian, young people especially.'
227. He said that in order to cover the potential for someone in audience to understand Assyrian better than English, the first defendant attempted a translation of the petition from English to Assyrian.
228. It is not suggested in the evidence, so far as I understand it, that that was a word-by-word translation as with a translation of the document from a professional translator. The document was read out, as Mr Kochou tells you, word for word in English to cover those who understood Assyrian better than English [sic, English better than Assyrian]. A translation was then attempted, as I understand the evidence, in a summary way by the first defendant.
229. Mr Kochou also told you, when tested by Mr Dawson in cross-examination, that some people could not read English. It is a matter for you as to whether you conclude from that that not one person in the room could read English. Mr Sarkez, who was of course at the meeting and who was, it would seem, uncontroversially an English speaker and a competent English speaker, gave this evidence which may bear upon the issue - it's a matter for you to resolve, of course - that it was after the document was read out in English that questions were taken from the floor; that is, questions asked by those who had questions that they wanted answered were posed from the floor and, as you recall the evidence, Mr Kochou again, as I recall it, answered what he could, but called upon Mr Isaac to answer questions that bore technically or significantly upon the content of the document since he was the author of it.
230. That may assist you in coming to a view - it's entirely a matter for you - as to whether the plaintiffs have satisfied you on balance that at least one person in the room who read the document understood it ... of the 100 assembled ... .
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234. Whilst it is true that there is no evidence called from any person amongst the 100 who were assembled in the auditorium to say from the witness box, 'I heard Mr Sarkez [sic, Mr Kochou] read out the petition and I understood what he was saying', or, 'I was given the petition by my neighbour sitting next to me and he read it, and I read it and we had a talk about it.' There is no evidence of that kind. That much is patently clear to you.
235. However, given that I have reminded you as to what Mr Kochou said about the capacity of the assembled to read and understanding [sic] English and, in particular, that there were young people whose command of English was a lot better than the command of their dialect or the language from their country of origin, the question is whether you are prepared from that evidence to draw the inference comfortably and safely that at least one person in the assembled [sic] understood the English language in its written and spoken form.
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237. Mr Neil, of course, has something to say to you by way of submissions about this first issue of publication, namely, whether a publication took place at all, and he submitted to you this: He said to you there is nothing in the evidence that warrants the view that not one person heard the petition being read and understood and nothing in the evidence warrants you finding that not one person read the petition and understood it. He said to the contrary. He said the evidence compels a finding, namely, that at least one person was of that capacity.
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242. I move on ... to the second element, who was responsible.
243. Self-evidently, ladies and gentlemen, if you are not persuaded that at least one person had the document published to them, that is, if the scales do not tip in the favour of the plaintiffs on this issue, they bearing the onus of proof, to put it bluntly, that's the end of the section. It is not necessary for you to go on and consider any further the questions posed for your consideration - and I make that clear to you. It is a matter of logically passing through a series of sluice gates, as it were, in the way in which you approach your analysis of the questions posed.
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245. On the question of who was responsible for publishing ... by circulating or agreeing that Mr Kochou read aloud, the plaintiffs' case is plain. The plaintiffs' case is that each of the six defendants - that is, all of Mr Allen's clients, Mr Kochou on his own behalf, and Mr Isaac represented by Mr Dawson - is responsible relevantly for the publication not in either one or other ways or, as the plaintiffs would submit, both ways.
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247. In determining who might be liable for publication by circulation I direct you as follows: The defendant whose case you are considering - and you have to consider them individually, that is the way the questions are posed and that is the way you must apply your thinking - will be liable for circulating the petition if they arranged for, promoted or convened the general meeting knowing or believing, in the sense of reasonably expecting, that at that general meeting the petition, the very document that you have, would be made available. That people would be permitted, encouraged, or allowed to take up the document, and/or encouraged, permitted or allowed to pass the document around, that is to give it to others in order that those people to whom it was given might consider applying their signatures in support of what the petition asks for.
248. Because it is necessary for you to answer that question in the context of the very document that is the subject of the proceedings ... it is necessary for you to give consideration to who of the six defendants knew of the content of the petition at the time of the general meeting. You may have come to the view that there are only two people who knew of the content ... the author of the petition and Mr Kochou, who read it out. You may come to the view that they all knew in the relevant sense, of the content of the petition. ...
[The trial judge then explained that it was not necessary for the plaintiffs to establish that a "particular" defendant knew the precise content word for word, that it was sufficient if the jury was satisfied that the relevant defendant knew or believed the petition contained "information about a questionable relationship between the plaintiffs and their association with Mr Suleman and that his investment company led to financial loss suffered by those who had invested in it, such that there are real questions as to the conduct of those solicitors" and that "each of the first, second, third and fifth defendants authorised or agreed that the seventh defendant would prepare a submission that would include references of that kind." She then dealt with the evidence].
358. The question as to who is responsible seems to me to perhaps be helpfully dissected this way. The question might be put: have the plaintiffs persuaded you that all of the seven defendants are responsible; that is, each of defendants one, two, three, four, five and seven? Have the plaintiffs persuaded you of that on the basis that you are persuaded by Mr Kochou's evidence that each of the defendants, including himself is responsible for publishing the petition by circulating it or having Mr Kochou read it aloud with the approval of others because of what occurred at the preliminary meetings one, two and three culminating in the general meeting as the fulfilment, as Mr Kochou explained it, of what has been decided en route to the general meeting, namely, at the three preliminary meetings.
359. In order for you to be persuaded by Mr Kochou's evidence as to those matters, ... it would be necessary that you are satisfied on the probabilities that he is an honest and reliable witness in relevant respects. Namely, in respect of those matters that are very, very much in issue.
360. It may be that the plaintiffs have persuaded you that some or all of defendants one, two, three, four and five are responsible, but Mr Isaac is not. That is, that you are not persuaded that Mr Kochou has given honest and reliable evidence about Mr Isaac's involvement such that you are able to safely come to the view that Mr Isaac ought bear no responsibility at all for publication of the petition, irrespective of what Mr Kochou may say about the other men that were seated with him around the committee table in the previous meetings and seated with him at the top table on the day of the general meeting.
361. There are two alternatives which are logically open on the evidence, depending very much upon the view that you take of Mr Kochou as the only one of the defendants one, two, three, four and five who has given evidence in these proceedings. You would easily recognise that defendants one, two, three and five have not given evidence, and I am going to say something about that in a moment.
362. The third logical alternative is this; the evidence leaves you utterly undecided as to what the position is so far as Mr Isaac is concerned, or for that matter so far as the liability of any of the other defendants is concerned, except of course Mr Kochou himself. He did not seek to distance himself in any way from the fact of reading out the petition. Indeed, you might think he did not seek in any way to distance himself from the fact that he knew and expected that the petition would be on the tables at the base of the stage, available to be read or picked up and circulated and handed around at the meeting.
363. It may be that in a practical sense they are the three alternatives; either all seven defendants are responsible because you are satisfied Mr Kochou is an honest witness, an honest man, and a man who has given honest and reliable testimony. Or, you are not persuaded that Mr Kochou is honest insofar as his nomination of Mr Isaac as taking the lead and directorial role in the events culminating in the general meeting, such that you are not prepared to find Mr Isaac's involvement as a publisher in borne out through Mr Kochou's evidence. Or, as I say, you are left in such doubt as to leave the metaphorical scales in equal balance on that question, leaving you with the option - if you were to go the distance - of finding Mr Kochou as the only publisher of the material in the relevant sense.
[The trial judge explained the significance of parties failing to give evidence or challenging a witness' evidence.]
367. ... [W]hat happened at those three preliminary meetings and the general meeting is the source of evidence that bears directly upon ... whether it was agreed that the general meeting was the forum within which circulation of that document would take place and, indeed, a forum in which potential petitioners would be invited to read the petition so as to determine whether or not they would affix their signatures to it.
368. Remember of course it is those matters - that is whether there was an agreement to publish or whether it was well understood that circulation would occur at the general meeting - that bears very, very directly upon who is responsible ... for the publication.
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373. Insofar as [Mr Abdishou] is concerned, you will recall that it is Mr Isaac's case that he [Mr Abdishou] was in the back of he auditorium showing him the error in the petition ... that Mr Kochou popped up unannounced ... and commenced to read the petition, and that both Mr Isaac and [Mr Abdishou] expressed surprise ... that that was occurring.
374. That is a significant aspect you might think, of the case that Mr Isaac advances in seeking ... to persuade you that his account of events is the more persuasive and which would render him of course utterly free of a finding adverse to him that he was the publisher by well knowing in advance that that was to occur.
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378. ... [I]t is for plaintiffs to persuade you that it is more probable than not that Mr Kochou is the one who is telling the truth when he says that Mr Isaac took the leadership role as the legally trained person at each of the three prior meetings. In that capacity he proposed the idea of the petition, he explained how it would achieve the objectives of attracting publicity and a focus to the plight of those who had lost from the collapse of Karl Suleman Enterprises by calling for an investigation into the conduct of the named solicitors, including the plaintiffs. That it was Mr Isaac in that leadership role as a legally trained person who advised more than once that there was no risk of repercussions because the information recited in the petition was in effect a matter of public record drawn from transcripts of evidence. That it was Mr Isaac who encouraged the other defendants to rally community support, and that it was Mr Isaac who approved of those at the general meeting becoming aware of the contents of the petition by Mr Kochou reading it aloud to them and then making it available for those who wished to read it themselves.
[The trial judge then outlined Mr Dawson's submission to the effect that Mr Kochou was motivated to protect his own financial position, that he decided to commit perjury and cast the blame of publication of the petition on the 'blameless Mr Isaac': summing-up [380] - [381]. She explained that there was nothing wrong with the settlement document between Mr Kochou and the appellants and that the question whether Mr Kochou had perjured himself had to be judged by reference to the remaining evidence: summing-up [382] - [389]; she outlined the competing submissions on Mr Kochou's and Mr Isaac's credibility: summing-up [390] - [442].]
463. [The issue that] it would seem to me [is] the most [in] contention between the parties [is] the question of who is liable for the publication. You will remember that publication has two elements. First and foremost 'was there a publication at all' and you will remember my directions to you that whether the method of publication you are considering, namely, by circulation or reading aloud is the subject of discussion between you, you will need to be of the affirmative mind, that is satisfied on the balance of probabilities, that at least one person read it or at least one person heard it read such as to comprehend what was contained in the petition, which is the document sued upon.
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465. One aspect bearing upon this, before I leave it altogether is this: The general meeting was of course convened in the community's cultural club which is a sports club and obviously available for other purposes. You know, and I will take you to the evidence on this matter in due course, that the fact of the meeting was broadcast over the community radio and even though you have had what was broadcast translated into English, as you recall the evidence that broadcast was actually broadcast in the Assyrian dialect or one of them. Whilst the petition, according to Mr Kochou's evidence and Mr Sarkez's evidence was read out in English, the balance of proceedings at the general meetings were, according to the evidence, conducted in Assyrian and again there is no clarity as to which of the four dialects was used, if one of the four, but certainly the balance of proceedings were conducted in Assyrian, which involved the meeting being called to order, there being a very brief outline as to the order or anticipated order of events for the day - that was said in Assyrian - and there was a summary of the petition also delivered in Assyrian for those people for whom English was not the preferred or available means of discourse, and it would also seem that questions were taken from the floor in Assyrian, so that is a matter that I should draw to your attention when you come to consider that first question which is presented for your consideration, namely, are you satisfied on the balance of probabilities that the petition was published.
466. Were you all of an affirmative mind in response to that question you then move to the second question, which is the question I identify as being the most contentious in the course of this hearing. That is who, if anyone other than Mr Kochou, is liable for the publication?
[The trial judge then outlined Mr Isaac's evidence and Mr Neil's criticisms of it: summing-up [468] - [616]; and revisited 'general propositions as they concern imputations': summing-up [518] - 534]]" (Emphasis added)
134In the course of the summing-up, the trial judge variously observed that:
"47. It seems to me - although ultimately it is for you to decide - but it seems to me that somebody in this case, either Mr Kochou or Mr Isaac, and to a lesser degree perhaps Mr Sarkez, but someone must be telling lies, for the simple reason that the evidence called by the plaintiffs as to what happened at the three meetings prior to the general meeting, and the general meeting, and the evidence called by Mr Isaac as to what happened at the three previous meetings and the general meeting, cannot stand together.
48. ... [I]t seems to me at least that it cannot be that those differences in the accounts can be resolved entirely on the basis that the three men have a thoroughly honest but completely different memory of that series of events.
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339. The lines drawn between the plaintiffs and the seventh defendant through Mr Kochou as a witness in their case is a very stark and bright line contrast ... .
347. ... When Mr Kochou was under oath and when Mr Isaac was under oath, they each denied they had lied.
348. Accordingly, it falls to you to consider the evidence of each of these two men because on any view, it may be your view - it seems to me that on any view of the evidence their evidence cannot stand together.
[The trial judge then summarised Mr Isaac's evidence concerning the three preliminary meetings and the circumstances in which he attended the general meeting]
478. Mr Kochou's evidence is completely contrary to that in almost every respect ... ."
135The appellants do not complain, save in one respect, about the trial judge's summing-up to the jury on the issue of the tests to be applied in determining whether the imputations for which the appellants contended were conveyed. However it is appropriate to record that her Honour directed the jury (summing-up at [519]), in conventional terms, "that the ordinary, reasonable reader, or the ordinary, reasonable listener, is the touchstone for your determining whether or not the imputations the plaintiffs contend for were conveyed". Her Honour explained that that person was "a "hypothetical person", was not a juror nor herself nor anybody in the court room.
136The trial judge then directed the jury, again in conventional terms sourced to Jones v Skelton [1963] SR (NSW) 644 and Lewis v Daily Telegraph Ltd [1964] AC 234 (see also Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716) to assume that the ordinary, reasonable listener or reader either read or heard the whole of the petition and, further, directed the jury to look at the whole article to determine the imputations issue: summing-up at [520].
137Her Honour also directed the jury that they did not have to be satisfied that the matter complained of conveyed the precise words of the imputations, but, rather, the substance would be sufficient (summing-up at [522] - [523]). Further, that despite the many times the jury had had reference to the matter complained of in the course of the trial, they should approach this exercise on the basis that the ordinary, reasonable reader or listener would not have read it in that fashion: summing-up at [524] - [525]. Her Honour then addressed the arguments of Counsel.
138In the passage of which the appellants complain her Honour referred (summing-up at [528]) to Mr Dawson's submission "that the audience, or those assembled at the meeting, would have understood that the petition called for an investigation ... ". It is this reference which the appellants contend exacerbated those passages of Mr Dawson's and Mr Allen's addresses to the jury which I have set out at [109] - [110] and [130].