DOJAS V. TCN CHANNEL NINE PTY. LIMITED [2001] NSWCA 398

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40028/01 CLD 20182/00 GILES JA HEYDON JA HODGSON JA

Monday 12th November 2001. DOJAS V. TCN CHANNEL NINE PTY. LIMITED Judgment 1 GILES JA: I have had the advantage of reading the reasons of Hodgson JA in draft. 2 I agree with his Honour's reasons in relation to amendment of the grounds of appeal and the grounds other than ground 3A. 3 I respectfully do not share his Honour's inclination to think that the first additional direction was potentially confusing. That the hypothetical identification by persons acquainted with the plaintiff had to be reasonable in the circumstances was stated in the questions and was repeated in the directions concerning the identifications by the witnesses. The first additional direction was plainly enough directed to that matter, as indicated by the reference to applying an objective test. The complaint then made by counsel for the plaintiff is not entirely clear, but was not that the additional direction was confusing. In those circumstances, leave to appeal is not appropriate. 4 If this be incorrect, the second additional direction really did not correct the potential for confusion but counsel for the plaintiff made no further complaint. Leave to appeal would not be appropriate. 5 I agree with the orders proposed. 6 HEYDON JA: I agree with the reasons of Hodgson JA. 7 HODGSON JA: The claimant Ghada Dojas brought proceedings for defamation against the opponent TCN Channel Nine Pty. Limited in respect of a program and promotions of that program telecast by the opponent. The telecasts depicted scenes secretly filmed in the rooms of a psychiatrist Dr. Osman Ali, and showed images of Dr. Ali and various female patients, embracing, fondling and kissing. The claimant was not named in the telecast, but she alleged that one of the patients shown was her, and that the telecasts were defamatory of her. 8 A trial pursuant to s.7A of the Defamation Act was heard by Kirby J and a jury. At that trial, there were three issues: broadly stated, they were (1) was the claimant identified by the telecasts, (2) did the telecasts convey the imputations alleged, and (3) were such imputations defamatory of the claimant. In relation to identification, the jury were asked two questions. Question 1 related to the program itself, and was in the following terms: Has the plaintiff established that the material complained of in the "A Current Affair" programme when it went to air on 23 August 1999 was such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that she was the person identified. 9 Question 4 related to the promotion material, and was in a similar form. 10 The jury answered questions 1 and 4 "No", with the result that Kirby J entered a verdict for the opponent with costs. 11 The claimant has applied for leave to appeal from the decision of the jury. That application was heard on the basis that the argument on the application for leave would also be the argument on the appeal, should leave be granted.

PROCEEDINGS AT FIRST INSTANCE 12 The claimant's evidence relating to identification comprised the material telecast, and the testimony of three witnesses. 13 The film was taken by a camera installed in the vicinity of the ceiling of the room in question. It was in black and white and somewhat unclear, and it showed just the view of the events from above. The face of the person said to be the claimant was not shown, except at one point when it was partly visible as she turned her face to one side and slightly upwards. 14 One witness Alicia Daley gave evidence that she recognised the claimant when she saw the program, identifying her by her hair, and from the view of part of her face. 15 Another witness, Anthony Habis, the claimant's nephew, said he recognised the claimant on the promotions, and also on the program, from her hair, her appearance, her dress, a watch with a black leather band, and "basically the look". He said he knew that the claimant was seeing a psychiatrist, but did not know that it was Dr. Ali. 16 The third witness, Georgette Dojas, was the claimant's sister. She said she recognised her sister on the program: "She was very obvious. Her face, her hair, everything". This witness said she knew the claimant was being treated by Dr. Ali. The witness taped the promotion and the program, because she received a phone call from a friend of the claimant saying "We saw your sister on TV". After the program, this witness said she received about ten calls from people saying that they saw her sister on television. 17 In his summing up, Kirby J gave the following directions concerning identification: On that issue let me remind you very briefly of the evidence. First of all you heard from Alicia Daley. She was the young nurse who was called who was an acquaintance of the plaintiff's nephew and knew the plaintiff, Mrs. Dojas. What she said was that she saw the promotion, and at that stage she did not identify the plaintiff. And then she saw the programme and she recognised Mrs. Dojas, and identified her. She said she was the person sitting in court and she said this:

"Q. Why or how did you identify her? I am reading from page 37. A. I could identify her by her hair, and also in one of the shots of her on the programme you could see part of her face and that was how I recognised her. Q. You say that, I presume earlier before you saw the programme, you saw the promotion? A. I did. Q. When you saw the promotion at the time did you identify anyone? A. No."

Then she was cross-examined by Mr. Blackburn. You remember she was asked when she last saw the programme. Did she see it last week and I think the week before? She was asked whether she discussed it and so on. And he put this to her at page 41:

"Q. What was distinctive about her? A. It was her hair. Q. Her hair? A. And I could see - Q. Just pause there for a moment."

And I intervened and said, "Finish the answer if you wish. Her hair, and you started to indicate:. And the answer:

"A. And the top part of her face. On the programme when she was sitting at the desk and she was talking with the doctor you could see part of her face.

Q. Let's just take her hair. What sort of hair did you see on the programme? What's your recollection of what you saw? A. Her hair, you could see the top part of her hair. She has got quite thick straight hair with a definite part on the side.

Q. Can I suggest this to you, Miss Daley, that in the course of your life you must have seen hundreds of women with thick curly hair on top? A. Yes, that's possibly true.

Q. So nothing distinctive about Miss Dojas's hair? A. To me I could tell by looking at that programme it was her.

Q. You can't tell the jury why you could identify her from her hair? A. Just the way that it looked. I know what her hair looked like at the time. I could see the top part of her face."

And she was asked about conversations she had where she asked the nephew about: "Was that your aunt on the programme?" And she was asked: "You weren't sure" and she said, "Well", I think she answered she wasn't, but then she added: Well I thought it was her but I wasn't going to come out and just ask. I was pretty sure it was her. I thought it was her on the programme and I asked if that was her. So that was her evidence.

And then you remember the nephew gave evidence. He was a sales person. He indicates that it was his aunt. He knew Dr. Ali, Osman, and he was someone well-known in the Lebanese community. He saw the promotional material, and recognised his aunt and taped the programme. He was cross-examined: When he had last seen her and when he had spoken to his aunt, and you remember the questions.

And then Mrs. Dojas's sister was called. You remember she gave the evidence this morning. I won't go over that at length, but she was repeatedly asked, "Well you didn't know this was her except that you were told." And she said, "I knew it was her" and you saw her give that evidence.

Ultimately it is a matter for you whether you accept these witnesses, or any of them, and whether you accept that the plaintiff has established, first, that at least one person saw the programme and reasonably understood that it identified her, and saw the promotional material and reasonably understood it as identifying her, and that the words and images in the programme are such that in the circumstances they would reasonably lead persons acquainted with the plaintiff to believe that she was the person identified. 18 At the conclusion of the summing up, the following exchange took place: BLACKBURN: I would ask your Honour to tell the jury that even if they accept all the evidence that has been given by the witnesses they are still not bound to answer question 1 "Yes" when the circumstances were not such as would reasonably lead a person acquainted with the plaintiff to believe she was the person identified and that comes out of Morgan v. Odhams Press. That is ultimately for the jury. I would ask for a direction to that effect.

HIS HONOUR: Even if they accept all the evidence, not bound to answer question 1 "Yes"?

EVATT: There is nothing incorrect about that submission except your Honour has already given it about ten times.

BLACKBURN: I don't know that your Honour has given it ten times.

EVATT: I withdraw the "ten". Your Honour has given that direction.

HIS HONOUR: I did not give it in those terms and if it is appropriate to give it in those terms perhaps I should. 19 This gave rise to the following additional direction on identification: Members of the jury, two very short matters. The first is simply to point out that even if you accept all the evidence that has been given in the witness box, I should point out that you are not bound to therefore answer question 1 "Yes". Ultimately it is a matter for you to be satisfied in respect of that issue. So that the evidence was called in respect of that issue and relevant to that issue, but ultimately the issue is one in respect of which you apply an objective test in which you must answer that question, satisfying yourself on the balance of probabilities as to the appropriate answer. 20 Following this, there was a further exchange and a further direction given, as follows: IN THE ABSENCE OF THE JURY EVATT: Going to your Honour's direction on the first point, if the jury accepted all the evidence of the witnesses then to answer question 1 "No" would be perverse, would it not, quite frankly? How could they answer question 1 "No" if they accept all the evidence?

EVATT: I would ask your Honour to put it both ways. Just to direct the jury that even if they accepted all the evidence called -those three witnesses, phone calls and everything --then it is still open to them to answer question 1 "No" .

HIS HONOUR: Because they are applying not the mind of these people but they are applying an ordinary reasonable person test, and that is an objective test and therefore --

EVATT: But it has to be persons acquainted with the plaintiff. It is not a ordinary reasonable person: -would lead persons acquainted with the person to believe she was the person identified. It was a pretty strong direction.

HIS HONOUR: It was. It came out rather stronger than I expected. Do you want to say something, Mr Blackburn?

BLACKBURN: The direction was unexceptional and it is absolutely in terms of the law in terms of what Lord Morris said in Morgan v Odhams Press.

HIS HONOUR: These people are giving a subjective account of their impression. I saw the puzzled look on the jury's faces.

BLACKBURN: What your Honour said was unexceptional and the situation is not likely to improve. My friend is saying now it would be perverse if they accepted the evidence and answered question 1 "No", and that is just not right.

HIS HONOUR: I must say I am inclined to accept that - especially having seen the looks on their faces when I gave the direction .-that I should draw attention to the distinction.

On the one hand you have got individual witnesses who are giving their subjective recollections of an event which they describe and, on the other hand, you have the test which must be applied -that is the test of the reasonable person having knowledge. It is the reasonable person who acknowledges the facts or the evidence as proved in evidence would have understood the programme as referring to the plaintiff. That is the objective test. EVATT: But that is not the question. The question is : would lead persons acquainted with the plaintiff to believe she was the person identified. There is nothing about a reasonable person in that question.

HIS HONOUR: "reasonably" - it is an objective test.

EVATT: "would lead persons acquainted with the plaintiff to believe she was the person identified." If they accept all the evidence for the plaintiff they would have a great deal of difficulty in answering that question "No".

I am not even too sure it would be open to them to answer it "No" because they are persons acquainted with the plaintiff. If you believe their evidence, it is reasonable. They all identified the plaintiff and, as I said, they are all acquainted with her.

HIS HONOUR: Yes but it is "reasonable in the circumstances". It is an objective test, is it not?

HIS HONOUR: That is all that is being pointed out and I should elaborate--

IN THE PRESENCE OF THE JURY HIS HONOUR: Mr. Foreman, before I invite you to give me an answer, while you have been out we have been discussing one aspect further, and that is one of the directions I gave you at the end, just after you retired for a moment and I heard the discussion with counsel. I am persuaded that I should add something to the first of those directions which I have, lest there be confusion.

If you look at question 1, it ultimately is applying an objective test. It is a matter for you. That is it incorporates the words "reasonably in the circumstances". You have heard various witnesses give their evidence about their recollection of what they saw and their impressions. Now ultimately it is a matter for you objectively to be satisfied on that issue and I think that is what I intend to convey. You need not accept that evidence. Ultimately it is a matter for you. You may accept it. You may not find it the most difficult question you have to address. Ultimately it is a matter for you.

(The jury Foreman indicated they had decided to consider their verdict this afternoon)

Does anything arise out of what I have just said? EVATT: No.

GROUNDS OF APPEAL 21 The claimant sought leave to appeal on the following grounds: 1. His Honour erred in giving the following direction to the jury at the end of his summing up:- "Members of the jury , two very short matters. The first is simply to point out that even if you accept all the evidence that has been given in the witness box, I should point out that you are not bound to therefore answer question 1 "Yes". Ultimately it is a matter for you to be satisfied in respect of that issue. So that the evidence was called in respect of that issue and relevant to that issue, but ultimately the issue is one in respect of which you apply an objective test in which you must answer that question, satisfying yourself on the balance of probabilities as to the appropriate answer."

The direction was wrong in law, not relevant to the circumstances of the case and not in accordance with the terms of the question.

The direction was extremely prejudicial to the Plaintiff's case and unduly influenced the jury.

His Honour did not withdraw the direction and his subsequent direction (which Counsel for the Appellant had sought) did not rectify the prejudicial effects of the initial direction.

By reason of his Honour's direction the Appellant did not receive a fair trial on the issue of identification.

His Honour's direction misled the jury. 22 During argument, Mr. Evatt for the claimant sought to amend the Grounds of Appeal, to add the following grounds 3A and 6A: 3A. The direction was confusing to the jury.

6A. The jury's decision was unreasonable or perverse. 23 The Court gave leave to add the ground 3A, and refused leave to add the ground 6A, with reasons to be given in the judgment in the case.

SUBMISSIONS 24 Mr. Evatt for the claimant submitted that the direction complained of was erroneous, because if the jury accepted all the evidence given by the witnesses, including the cogent reasons given by them for identification, it would be perverse for the jury to answer question 1 "No". 25 He submitted that this was very different from cases like David Syme & Co. v. Canavan (1918) 25 CLR 234 and Knupffer v. London Express Newspaper [1944] AC 116, where there were words which did not refer to or single out the plaintiff, and the witnesses had no valid reason for believing that the plaintiff was referred to. 26 Mr. Evatt submitted that the direction was not in accordance with Morgan v. Oldhams Press Limited [1971] 1 WLR 1239. In that case, Lord Morris said that it was for the jury to assess witnesses and reasonableness, and to decide whether reasonable people would reasonably understand that the plaintiff was referred to. Kirby J did not in the direction complained of refer to reasonableness, or explain how the jury could answer "No" to question 1 if they accepted the witnesses. Mr. Evatt also referred to Steele v. Mirror Newspapers Limited [1974] 2 NSWLR 348 at 352. 27 Mr. Evatt submitted that the further direction did not remedy or correct the earlier supplementary direction, and in particular did not explain or qualify the direction that if the jury accepted all the evidence they could still answer question 1 "No". 28 In the alternative, Mr. Evatt submitted that the direction was confusing to the jury, and that the answer that the jury gave was perverse and unreasonable. 29 Mr. Blackburn for the opponent opposed the amendments. He submitted that Kirby J had given an impeccable direction on identification in the last paragraph dealing with identification in the main summing up. He submitted that the first additional direction was not erroneous or confusing; and that even if it had been, it was corrected by the second additional direction. After the second direction, Counsel for the claimant had raised no further objection or comment.

DECISION 30 In my opinion, there was no error of law in the direction complained about. 31 If the jury fully accepted the evidence of the three witnesses called for the claimant on identification, this meant that they accepted the following propositions: (1) each witness believed that the person depicted was the claimant; (2) each witness had the reasons for that belief given by that witness; and (3) the person depicted was in fact the claimant.

There could be some question as to whether the third proposition was involved in acceptance of the witnesses' evidence: however, I will assume in the claimant's favour that it was. 32 Those three propositions together are not inconsistent with the view that the material telecast and the reasons given by the witnesses were not in fact adequate for persons acquainted with the claimant reasonably to have formed the belief which these witnesses formed. To put the same thing another way, the jury could have come to the view, having seen the material which was broadcast, that although the witnesses did reach a correct belief as to the identity of the person depicted, and did so honestly, what they did was nevertheless to jump to a conclusion on the basis of material not reasonably adequate to justify that conclusion. 33 Furthermore, having seen the material myself, it is my view that it would not be perverse for the jury to reach such a view, or indeed not to accept the witnesses' evidence; and accordingly that the ground of perversity sought to be added could not succeed. It was for that reason that I took the view that leave to add that ground should be refused. 34 The ground relating to causing confusion has more substance, and in any event, may be implicit in the existing grounds 3 to 6. For that reason, I took the view that leave should be given to add that ground. 35 I accept Mr. Evatt's submission that the approach that has been taken in previous cases in relation to words which might or might not be taken as referring to the plaintiff, as in Canavan and Knupffer and Morgan, may not be the best approach in a case where there is a visual image which is in fact an image of the plaintiff, and the only issue on identification is whether the image conveys enough information for persons acquainted with the plaintiff reasonably to reach the correct conclusion that it is the plaintiff who is depicted. 36 When there is a question of recognition of a plaintiff from a visual image rather than from words, it is not possible adequately to put into words what are the matters known by people acquainted with the plaintiff that enable them to identify the plaintiff from an image. Furthermore, mere acquaintance with a plaintiff is not really an adequate description of the qualification of the persons who must reasonably be able to identify the plaintiff. There are degrees of acquaintance, and plainly people who know a plaintiff very well indeed may reasonably identify that plaintiff from an image which would be inadequate for such identification by other persons who are merely acquainted with the plaintiff. Persons who know a plaintiff very well indeed may be the very persons in relation to whom the plaintiff's reputation is most precious to the plaintiff; and in my opinion, the law of defamation does protect a plaintiff's reputation with such people. Accordingly, in my opinion where a visual image of a plaintiff is such that it can reasonably be identified as being of the plaintiff by even a very few people who know the plaintiff extremely well, albeit not by others who are mere acquaintances, and there has been publication to at least one such person, that is sufficient identification. 37 This discussion suggests that questions 1 and 4 as formulated below, referring as they do merely to "persons acquainted with the plaintiff", may not adequately express the issue of identification in cases such as the present. However, it seems that no submission taking into account the considerations I have mentioned was made to the primary judge, and no appeal is brought on that basis. 38 Given that the jury was asked to answer questions in the form of questions 1 and 4, in my opinion the final paragraph in the summing up on the question of identity is impeccable and not confusing. But there is still the question whether the first additional direction was confusing in such a way as to be unfairly prejudicial to the claimant and thereby to justify the grant of a new trial. 39 I am inclined to think that simply to direct the jury that they could accept all the evidence and yet answer question 1 "No", because an objective test had to be applied, had the potential to be confusing. I think it would have been better to go on to explain to the jury to the effect that they could answer question 1 "No", despite accepting all the evidence, if they thought the witnesses had unreasonably jumped to the conclusion that the claimant was depicted, that is that, although the witnesses genuinely and correctly believed that the claimant was depicted, and did so on the basis of the reasons they gave, nevertheless the telecast material was insufficient to make it reasonable for them to have reached this belief. 40 However, no direction to that effect was sought. I accept that the second additional direction given by Kirby J did not really help to clear up any confusion that may have been caused by the first additional direction; but when this second additional direction was given, no further objection was taken and no further request was made on behalf of the claimant. It may be that Counsel for the claimant, fully familiar with the tactical environment of the trial, considered the second additional direction, and particularly the second-last sentence of it ("You may not find it the most difficult question you have to address"), sufficiently favourable as to justify a decision not to take the matter further. 41 Leave to appeal is required in this case, because no evidence has been put on to the effect that $100,000.00 or more is involved in the case. I would not regard leave as being required on the ground that the decision was in any sense interlocutory, because it did give rise to a verdict for the opponent in the proceedings. However, leave is required, and there is to my mind a real question whether leave to appeal should be granted on the basis of a potentially confusing direction, in circumstances where the precise problem was not identified at the hearing, and where ultimately no further objection or request for directions was made on behalf of the claimant: cf. Singleton v. Ffrench (1986) 5 NSWLR 425 at 440, John Fairfax & Sons Ltd. v. Vilo [2001] NSWCA 290, par.15. On the whole, my view is that the circumstances are not such as to justify the grant of leave to appeal so that a new trial may be ordered. 42 For those reasons, I propose the following order: leave to appeal refused with costs.

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