EDWARD OBEID v JOHN FAIRFAX PUBLICATIONS PTY LTD

JOHN FAIRFAX PUBLICATIONS PTY LTD (Defendant) FILE NUMBER(S) : SC 20387 OF 2003 B McClintock SC/M Richardson (Plaintiff) COUNSEL : G Reynolds SC/K Smark (Defendant) Gilbert + Tobin (Plaintiff) SOLICITORS : Freehills (Defendant)

• 1 - Ex tempore: revised [2003] NSWSC 967 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

John Fairfax Publications Pty Ltd (Defendant)

JUDGMENT - On application for discharge of jury 1 HIS HONOUR: At the conclusion of the address to the jury by Mr Reynolds SC for the defendant, Mr McClintock SC for the plaintiff, made an application yesterday that the jury be discharged. 2 The approximately seven bases upon which the application was founded are set out at pages 56 to 61 of the transcript of yesterday's proceedings. I make that observation, and direct attention thereto, clearly for the reasons, first, that I do propose to accede to the application and second, the bases upon which I propose to grant it give rise to matters of substance which may well be argued, and may well have to be argued, elsewhere. 3 Working backwards, as it were, there is a lot of authority, not least Morgan v John Fairfax (1988) 13 NSWLR 208 that strongly counsels trial judges against lightly discharging juries. In Morgan's case, to my recollection, that was a full jury trial in which the learned trial judge took the drastic step after 16 days. 4 Next, the step is no less drastic and represents no less a compromise of the administration of justice merely because it is a 7A trial. However, the fact that the 7A trial is of a discrete character and its termination by discharge does not have the extraordinary consequences that used to attend that drastic step is a factor that can reasonably be taken into account. 5 However, attention must in principle be paid to the grounds for which the application has been made, whether they have been made out and whether, having been made out, it necessarily follows that the jury must be discharged. 6 The first principal ground can briefly be summarised. In the course of his address to the jury yesterday Mr Reynolds said at page 40: "Now, the reasonable person, as I said to you, is also fair-minded and his Honour, I venture to say, will direct you that the ordinary reasonable reader is mindful of the principle that a person accused of a crime is presumed innocent until it is proved that he is guilty.

Now, that, I suggest to you, is a very, very important part of this case. It is a very important component of the notion of reasonableness, the notion of being fair-minded, of approaching the reading of accusations of criminality in a fair way. It is sometimes called, I am sure you would have heard this said, the presumption of innocence. Each person in the community is presumed innocent of a crime until it is proved in a court of law that they are guilty.

As I said to you before, his Honour will give you some instruction about the importance of that particular principle in this case. But I want to stress it early on as an important part of the way a reasonable person reads a newspaper article of this kind." 7 That was the first reference to the presumption of innocence. He further referred to it at page 43 line 12, page 45 line 45, page 46 line 20, and at page 52 line 55. The proposition that was so important in Mr Reynolds' address and would have been taken by the jury as being so important and would have been so taken by anyone hearing Mr Reynolds' address was, that the jury would be entitled in considering the issue of whether or not the imputations were conveyed, to take into account that the ordinary reasonable reader would be conscious of the presumption of innocence. That was the nub of what I would call the presumption of innocence submission. 8 It was stated in the course of the address to the jury that I would direct the jury that the ordinary reasonable reader is mindful of the principle that a person accused of a crime is presumed innocent until it is proved that he is guilty. 9 Much attention was paid to the decision of the High Court in Mirror Newspapers Limited v Harrison (1984) 149 CLR 293 and especially the judgment of Mason J, as he then was, which commences at page 295 and what his Honour said in well known passages at 295 to 301. 10 As I have sought to make clear in the course of debate on the application to discharge the jury, and as I will now make clear again, I am of the view that notwithstanding the undoubted authority of a judgment of the High Court of Australia, this particular judgment is authority for no more than the proposition anchored in the matter complained of with which that Court and antecedent Courts were concerned: that a statement that a person has been arrested and charged cannot give rise to an imputation that that person is guilty of that for which he has been arrested and charged. As Mr Reynolds has put it, that view of Harrison might be construed as drawing a stark line. It is the view I have formed and, as I have been reminded, have expressed elsewhere, for example in Gillespie v Nationwide News Pty Ltd [2002] NSWSC 353 at para [9]. 11 Thus there is no room in relation to the article with which we are presently concerned for the jury to be directed compulsorily, as is sought by the defendant, in terms of the direction outlined by Mason J. 12 I would decline to give the Harrison direction for the first reasons stated, namely that this is not a Harrison case, and secondly I would decline to give a direction described as the "middle ground" direction to the effect that this is a matter complained of that the plaintiff says carries grave allegations of misconduct, and thus the jury could bear in mind that the ordinary reasonable reader in those circumstances, by reason merely of the gravity of allegations, would then take into account the presumption of innocence. 13 I would decline to give that "middle ground" direction because that direction, and in common with the Harrison direction, if given in this type of case, could dangerously divert the attention of the jury to issues of truth and falsity. 14 If that was the only ground it would be sufficient because I would be persuaded that I what would have to say to the jury negatives such a substantial component of Senior Counsel for the defendant's address, that prejudice could arise not merely vis-à-vis the defendant thereby, but by reason of the provocation of a misguided sympathy towards the defendant, also against the plaintiff. 15 The second matter of complaint relates to what in shorthand throughout the submissions has been described as the "adoption" point. Page 44 of the transcript of yesterday's proceedings records: "Now, if you have, as I say, claim and counter claim, allegation and denial, one person says X, the other person says the opposite, and the key ingredient in all of this is whether the allegation is correct, if you're looking, I suggest, to whether or not the article conveys guilt, you need to look to see whether there is any suggestion in the article that the Sydney Morning Herald or John Fairfax or whatever you want to call it, or the journalists actually adopted one side or the other or is it simply a situation where they say one person says this but the other person denies it."

16 Upon hearing those words spoken yesterday, and upon reading them early this morning and again in court, I could come to no other view than that they could only be understood as suggesting to the jury that it "needs" (the word used by counsel) to look to see whether there is any suggestion in the matter complained of that the paper or its publisher or journalists actually adopted it, before the jury could come to the view that the ordinary reasonable reader would understand the posited imputation as being carried. 17 That statement, in my respectful view, was reinforced by what was said at line 10 page 45, and compounded in its capacity to confuse, by what was said at lines 35 to 42 on page 45: "Putting it another way, if you look at this article, there is no intention on the part of the Herald or the journalists manifest in the article, there is no intention manifest to suggest that Mr Obeid is guilty of anything. Can't point to a single paragraph where such an intention is manifest."

18 As to the last mentioned quote, the language Mr Reynolds used by itself was not novel. It understandably bears a striking coincidence with certain propositions stated by Hodgson JA in Nationwide News Pty Limited v Heggie [2001] NSWCA 257 at para [20]. 19 The use by Mr Reynolds of the passage also "resonates" to some extent with what was said by Hunt J, as he then was, in Ainsworth Nominees Pty Ltd v Hanrahan (1982) 2 NSWLR 823 at 830 to 831. 20 The view I have formed, however, is, if either what Hunt J said in Ainsworth or Hodgson JA said in Heggie, and I stress "if", stands for a proposition to the effect that regard may be had to adoption, repudiation, discounting, purpose, endorsement of the allegation by the publisher, or whether there was an intention manifested by the publisher, constitutes a legitimate mechanism for the jury to determine whether to the ordinary reasonable reader a meaning was conveyed, the manner in which that language is employed in counsel's address in my view removed it from a mechanism and elevated it to a point where absence of such features would compel and must compel a negative conclusion. 21 To correct that matter in the summing up by itself, but the more so in relation to the presumption point, could only aggravate the danger of prejudice to which I have referred. 22 I would add very briefly the following observations: that both those principal grounds invited my view, speculation as to knowledge, speculation as to belief, and attention to subjective intention in the publisher, none of which is legitimate and all of which cannot be cured. Accordingly I propose to discharge the jury. 23 JURY DISCHARGED AT 11.15AM 24 COUNSEL ADDRESSED RE COSTS 25 As a consequence of the discharge of the jury an application has been made by the plaintiff that an order for costs be indemnity costs and to be payable forthwith under Pt 52A r 9. The only order I propose to make is that the defendant pays the plaintiff's costs thrown way as a consequence of the discharge of the jury and of the application. 26 Therefore I am not of the view that the circumstances of the discharge of the jury warrants the order that the costs be on an indemnity basis and I simply decline to make the order under 52A(9). There may be some delay and it might well be that aspect at an appropriate time can be revisited in an appropriate place. 27 The only other order is I place the matter in the list for call-up for the fixing of a new date for a trial. I grant liberty to the parties to approach her Honour Justice Bell as the List Judge to see if that can be done. **********

Last Modified: 10/30/2003 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.