FOREIGN MEDIA v KONSTANTINIDIS

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT CLD 20998/96 FILE NUMBER(S) : LOWER COURT Levine J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40862/02 CLD 20998/96 HANDLEY JA GILES JA TOBIAS JA

23 June 2003 FOREIGN MEDIA PTY LIMITED & ORS v SIMON KONSTANTINIDIS

The plaintiff sued the operator of the radio station "Voice of Greece" for defamation arising from two overlapping broadcasts in Greek on 28 August 1996. A jury was empanelled to try the issues of defamatory meaning under s 7A(3) of the Defamation Act. The trial Judge, over objection from counsel for the defendant, admitted transcripts of translations of the two broadcasts. The jury found that a particular imputation was conveyed by the longer broadcast but not by the shorter. The defendant sought leave to appeal contending that the transcripts were not admissible and the jury's verdicts in relation to the particular imputation were inconsistent.

HELD: (1) The transcripts were admissible. (2) The verdicts were not inconsistent.

1. Leave to appeal granted;
2. Direct that the notice of appeal be filed within 14 days;
3. Appeal dismissed with costs.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

40862/02 CLD 20998/96 HANDLEY JA GILES JA TOBIAS JA

23 June 2003 FOREIGN MEDIA PTY LIMITED & ORS v SIMON KONSTANTINIDIS

Judgment 1 HANDLEY JA: The defendants have applied for leave to appeal from the verdict of the jury on a trial of issues under s 7A(3) of the Defamation Act 1974. The proceedings arise out of three radio broadcasts in the Greek language by the first defendant on "The Voice of Greece", the first on the morning and the second on the evening of 28 August 1996. The plaintiff sued on both broadcasts, pleading the same five defamatory imputations in respect of each. The plaintiff did not rely on any true innuendos. The third broadcast is not presently relevant. 2 The defendants challenged a ruling on evidence by Levine J, and the verdict of the jury on the ground that its findings on the second imputation pleaded in respect of the two broadcasts were inconsistent. The parties have been fully heard so that, if leave to appeal is granted, the proceedings can be disposed of without a further hearing. Both questions were arguable and leave to appeal should be granted. 3 The parties agreed on a translation of the two broadcasts into English in the form of transcripts. The plaintiff proposed to tender the audio tapes and the transcripts. In his preliminary remarks to the jury panel, in accordance with s 38(8) of the Jury Act, counsel for the plaintiff said that each member of the jury would receive a copy of the transcripts. After the jury had been empanelled, counsel for the defendants submitted, in the absence of the jury, that the transcripts were not admissible and the proper course was either for them to be read to the jury, or for an agreed audio tape of the translations to be played to the jury and treated in the same way as an audio tape of a broadcast in English. 4 Levine J said that the question: "Where the publication sued upon is a transient publication in a foreign language, [do] the interests of justice permit the jury to have available to it an agreed translation?" raised a novel point. The Judge ruled that if the tapes were admitted into evidence the transcripts would be admissible under ss 29(4) and 48(1)(c) of the Evidence Act. Section 29(4) provides: "Evidence may be given in the form of charts, summaries, or other explanatory material if it appears to the court that the material would be likely to aid its comprehension of other evidence that has been given or is to be given". 5 Section 48(1)(c) provides: "A party may adduce evidence of the contents of a document in question by tendering the document ... or by any one or more of the following methods: ...

(c) if the document in question is an article or thing by which words are recorded in such as way as to be capable of being reproduced to sound, ... - tendering a document that is or purports to be a transcript of the words". 6 The Judge added: "... absent any further submissions ... by Mr Molomby [for the defendants], I cannot see how any of the discretionary provisions of the Evidence Act could operate to exclude such evidence". 7 In my judgment the transcripts were admissible under these sections. The trial Judge also had the discretionary powers conferred by ss 135 and 136 to exclude this evidence, or to limit its use. He was also bound to give directions to the jury about the use they could properly make of the transcripts. However there has been no challenge to the summing-up, and it has not even been included in the materials before this Court. 8 We have been provided with the transcript of the argument before the trial Judge on the admissibility of this evidence, which shows that counsel for the defendants did not make any application under s 135 or s 136. If this Court were to hold that the transcripts had been wrongly admitted, or had been admitted on an inappropriate basis, the only remedy would be a new trial. Under SCR Pt 51 r 23(1) the Court should only order a new trial where some substantial wrong or miscarriage has occurred. There is no basis for such a finding in this case in relation to any points that were not raised at the trial. 9 Mr Molomby pressed on the Court an argument that the transcripts, having been agreed, were for that reason not relevant and therefore inadmissible. His argument was based on the relationship between s 191(2)(a), which provides that evidence is not required to prove the existence of an agreed fact, and s 55, which provides that evidence is relevant if it could rationally affect the assessment of the probability of the existence of a fact that is in issue in the proceedings. 10 His argument, if I have properly understood it, was that since the transcripts were agreed they were no longer a fact in issue and evidence was not admissible to prove them. In my judgment the argument fails at every point. The translation was the agreed fact which did not require proof, but the transcripts were still relevant, and indeed essential, if the plaintiff was to prove his case. The jury could not even begin its task of determining whether the imputations were conveyed and defamatory unless they had the English text before them in some form. 11 A problem in all defamation cases arising from transient publications on the electronic media is that under normal circumstances the listener will only hear or see the broadcast once. In this case most of the morning broadcast was repeated in the evening and some of the persons may have heard the repeated material twice. 12 The principles which determine whether an imputation has been conveyed by a transient publication were stated by Hunt CJ at CL in Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 CA (Marsden), 166: "Whereas the reader of the written document has the opportunity to consider or re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity ... Although such a listener or viewer (like the reader of the written article) must be assumed to have read and/or seen the whole of the relevant programme, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the programme as would otherwise have been given to the written article ... The trial Judge in a transient publication case will therefore more readily leave it to the jury to decide whether an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed, than he or she would in relation to a written document case" (citations omitted) . 13 The admissibility at common law of the transcript of a six minute radio broadcast in English was considered in the defamation case of Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 (Parker) where three imputations were in issue. Clarke JA said (472-3): "It is appropriate that I make some observations in relation to a ground of appeal in which the appellants asserted that his Honour erred in admitting into evidence a transcript of the broadcast. It was submitted that the transcript could only have distracted the jury from their task of determining whether defamatory imputations were conveyed ... There is some force in this submission for there is a degree of inappropriateness in … having the members of the jury pore over that transcript in deciding what was conveyed during the broadcast. What is, or may be, drawn from a broadcast by the reasonable listener is in many cases a matter of impression. In this respect the transient nature of the broadcast and its short duration is of no little relevance ... I can see no legal basis for receiving into evidence a transcript of the broadcast given that there is no difficulty in understanding the tape that was played before the jury ...". 14 Cripps JA and I agreed with Clarke JA. See also TCN Channel Nine Pty Ltd v Mahony (1993) 32 NSWLR 397, 400-1 per Kirby P. 15 The present case was more complicated than Parker because the first two broadcasts overlapped, and the plaintiff also sued on a third. He pleaded the same five imputations in relation to each of the first two broadcasts and three imputations in relation to the third. There was no evidence of the length of the broadcasts. 16 Whatever the position in a case like Parker, since the Evidence Act, this jury had to have before it an English translation in some form. 17 Even if the broadcast had been in English it would have been difficult for the jury to decide whether the first two broadcasts conveyed so many imputations, each differing slightly from the others, without the benefit of the transcripts. However if the broadcast had been in English, the Jury would at least have been able to replay the tapes in the jury room as often as they wished. The tapes in the Greek language could not assist this jury. 18 The trial Judge was bound to direct the jury that they had to decide whether the imputations were conveyed to the ordinary reasonable listener who heard each broadcast only once. They were therefore bound to use the transcripts only for the purpose of placing themselves, in thought, in the position of such a listener. They were not entitled to answer the questions before them by deciding whether the imputations were conveyed by the written words. 19 I would therefore reject all challenges to the admission of the transcripts. 20 The other question concerned the jury's verdicts on the second imputation pleaded in relation to the first two broadcasts: "The plaintiff as President of Sydney Olympic Soccer Club arranged finance for that Club knowing that the funds were derived from the proceeds of crime". The jury found that this was conveyed by the morning broadcast, but not by the shorter broadcast in the evening. The question for this Court is whether these two verdicts are "necessarily inconsistent": Otis Elevators Pty Ltd v Zitis (1986) 5 NSWLR 171; Brancato v Australian Telecommunications Commission (1986) 7 NSWLR 30, 32; Osland v The Queen (1998) 197 CLR 316, 356-9. 21 The morning broadcast was repeated in the evening without the material in paragraphs numbered 60-79 in the transcript of the morning broadcast. The verdicts on the second imputation will be inconsistent if it was not open to a reasonable jury to find that the imputation conveyed by the longer version was not conveyed by the shorter. 22 Since the evidence before the jury was limited to the tapes and the transcripts, the question of inconsistency depends on whether the absence of the material omitted from the evening broadcast could reasonably support a different verdict. 23 The more relevant material in paras 60-79 which were omitted included: Par 60: "... behind this whole story is another gentleman who has plenty of money and who can give money without problem, who could say but in any case serving some other purposes all of them without exception except one who I do not wish to name … so that they can do business as they want."

Par 69: "Some people are trying to take over, and these persons might have other purposes, other plans, we don't know and we are not sure about everything ..."

Par 77: "I think that these persons will find themselves exposed. They can do whatever they [want] in their businesses ... but what we reveal outside sport is about the property 120 Silver Street, we are talking about a story which will blow your mind". 24 In my judgment the difference in result is capable of being explained by statements in par 60 ("who can give money without problem"), ("so that they can do business as they want"), par 69 ("these persons might have other purposes, other plans"), and par 77 ("these persons will find themselves exposed ... but what we reveal outside sport is about the property 120 Silver Street, we are talking about a story that will blow your mind"). 25 In Marsden (above), Hunt CJ at CL summarised the principles applied in determining whether the matter complained of was capable of conveying an imputation. He said (165-6): "The more sensational the article in a newspaper, the less likely is it that the ordinary reasonable reader will have read it with the degree of analytical care which may otherwise have been given to a book ... and the less the degree of accuracy which would be expected by the reader ... the ordinary reasonable reader of such an article is understandably prone to engage in a certain amount of loose thinking ... There is a wide degree of latitude given to the capacity of the matter complained of to convey particular imputations where the words published are imprecise, ambiguous, loose, fanciful or unusual ... all these considerations and more apply to matter published in a transient form - particularly in the electronic media ... The trial Judge in a transient publication case will therefore more readily leave it to the jury to decide whether an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed, than he or she would in relation to a written document case". (citations omitted) 26 The subject broadcasts contained sensational material, and listeners were invited to speculate and use their imaginations. Some of these invitations occurred in the material omitted from the evening broadcast. The same latitude allowed to a jury in finding whether an imputation was conveyed by a single transient publication, must also be allowed when determining whether they have made inconsistent findings on two overlapping transient publications. The jury were entitled to consider the cumulative effect of the omitted material and the earlier materials. The question is not whether the omitted material alone could have supported the second imputation. Having considered the question of inconsistency in the light of these principles, I have reached the conclusion that the different verdicts on this imputation are not inconsistent. 27 The appeal therefore fails and the following orders should be made:

(1) Leave to appeal granted; (2) Direct that the notice of appeal be filed within 14 days; (3) Appeal dismissed with costs. 28 GILES JA: I have had the advantage of reading in draft the reasons of Handley and Tobias JJA. I agree with the orders proposed by Handley JA and it is sufficient that, drawing upon their Honours' reasons, I briefly state why.

Admission of the transcript 29 The respondent proved the publication of the defamatory matter by the tender of the tapes of the broadcasts in Greek. It was necessary, and therefore relevant, that the jury have evidence of the meaning in English of the broadcasts in Greek. That the translations from Greek into English were agreed in the form of the transcripts did not remove the relevance, and the appellant's argument founded on s 191(2)(a) of the Evidence Act 1995 is misconceived. 30 The respondent tendered evidence of the meaning in English of the broadcasts in Greek in the form of the transcripts. He could have tendered the evidence in the form of viva voce recitation by a witness or in the form of tapes in English, but he chose to tender it in the form of the transcripts. I doubt that either s 29(4) or s 48(1)(c) of the Evidence Act applied, since the transcripts were neither explanatory material nor transcripts of the Greek words in the tapes of the broadcasts. 31 Neither provision was needed. The respondent was entitled to prove the meaning in English of the broadcasts in Greek in the manner he chose, because the evidence in the form of the transcripts was relevant, and therefore admissible, and no evidentiary rule excluded it. 32 No exclusionary rule under the Evidence Act applied. The effect on admissibility of transient publication principles considered in Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448 at 472-3 had no application, since translation was necessary in order that the jury understand the tapes of the broadcasts in Greek. The judge was not asked to exclude or limit the use to be made of the transcripts in the exercise of the discretions in ss 135 and 136 of the Evidence Act. No complaint is made as to the directions to the jury, and in the absence of an application invoking s 135 or s 136 in relation to admission or qualified admission of the evidence it can not now be said that there was discretionary error as to admission. 33 The transcripts were properly admitted, and the appeal in this respect should be dismissed.

Inconsistent imputations 34 Even with the latitude allowed to the jury in a transient publication case, I confess to difficulty in seeing in the additional material in the morning broadcast, taken with all the material in the broadcast, a basis for finding the second imputation in that broadcast if it is not to be found in the evening broadcast. However, Handley and Tobias JJA have concluded that there is no necessary inconsistency. I must be the one out of step, and the jury can not have been acting irrationally. I therefore do not dissent from dismissal of the appeal in this respect. 35 TOBIAS JA: I agree with the orders proposed by Handley JA and substantially with his reasons. However with respect to the challenge to the ruling of Levine J to admit an agreed transcript of the English translation of an audio tape of the Greek language broadcasts, I would wish to add some observations my of own. 36 The opponent submitted, and his Honour accepted, that it was appropriate that there should be tendered a transcript of the translation of each broadcast. The claimants contended before his Honour, and repeated that contention before this Court, that the more appropriate course or, more accurately, the only admissible course, was for the jury to have the translation read to them (but not be provided with a copy thereof) or, alternatively, an audio tape should have been made of the translation which could then have been played to the jury. 37 In support of their contentions, the claimants relied upon a passage from the judgement of Handley JA in Radio 2UE Sydney Pty Limited -v- Parker (1992) 29 NSWLR 448 at 474A where his Honour said:

I agree with Clarke JA that where as in this case no issue of identification arises and the plaintiff only relies upon the natural and ordinary meaning of the words, a written transcript of the broadcast is not admissible on these threshold issues. The " threshold issues " to which his Honour was referring were whether the imputations pleaded were conveyed by the broadcast and were defamatory of the plaintiff. 38 The passage in the judgement of Clarke JA with which Handley JA, as well as Cripps JA, agreed is in the following terms (at 472G-473C): Because there will be a new trial of the action it is appropriate that I make some observations in relation to a ground of appeal in which the appellants asserted that his Honour erred in admitting into evidence a transcript of the broadcast. It was submitted that the transcript could only have distracted the jury from their task of determining whether defamatory imputations were conveyed by a transient broadcast and whether what was conveyed was comment or fact. There is some force in this submission for there is a degree of inappropriateness in putting before the jury the transcript of the broadcast and having the members of the jury pore over that transcript in deciding what was conveyed during the broadcast. What is, or may be, drawn from a broadcast by the reasonable listener is in my many cases a matter of impression. In this respect the transient nature of the broadcast and its short duration is of no little relevance. Indeed I have earlier expressed the opinion that the evidentiary material may well have coloured the jury's understanding of what was said in the broadcast. The problem of which I am speaking is not, of course, limited to broadcasts for courts in the past have commented upon the fact that while the reasonable reader would be unlikely to analyse the published material in depth a great deal of time is taken up during the court hearing in just such analysis. For this reason it seems to me that there is much to be said for the view that where a plaintiff relies on the natural and ordinary meaning of the published words the questions whether the words convey the imputations pleaded and, if so, whether they are defamatory should be submitted to and decided by the jury prior to the leading of any further evidence. 39 The foregoing passage was subsequently referred to by Kirby P in TCN Channel Nine Pty Limited & Ors -v- Mahony (1993) 32 NSWLR 397 at 400-401 where his Honour observed: The point that concerned Clarke JA and which I believe is of legitimate concern) was that a broadcast (whether by radio or television) is typically heard once only. Unlike the print media, the texts of broadcasts are not usually available to be pored over. They are momentary, transitory things. Whether words and images contained in such broadcasts actually convey the imputations pleaded, and whether such imputations are defamatory of the particular plaintiff, depend upon the impression received by the viewer or the listener. It is to distort that initial impact, to comb through transcripts (which the ordinary viewer or listener would never have) and to spend day upon day of lengthy defamation trial returning over and over again to the words, repeating the reviewing or listening to and examining the written text. The danger in this procedure, inherent in the orthodox approach to defamation trails, is that it may become impossible for the jury to recapture the initial impression, which is the equivalent of the impression which the ordinary viewer and listener received and for which, if at all, the person defamed is entitled to damages. 40 Of course, the decisions referred to above concerned broadcasts in the English language. Further, they were decided before the enactment of the Evidence Act 1995 and, in particular, s48(1)(c) which is in the following terms: 1. A party may adduce evidence of the contents of a document in question by tendering the document in question or by any one or more of the following methods: (c) if the document in question is an article or thing by which words are recorded in such a way as to be capable of being reproduced as sound, or in which words are recorded in a code (including shorthand writing) - tendering a document that is or purports to be a transcript of the words. 41 In his reasons for ruling the transcript of the translation of each broadcast admissible, his Honour relied upon this provision. There would appear little doubt that s 48(1)(c) affects a change in the common law position under which a transcript of an audio tape in the English language would not, unlike the tape itself, be the best evidence of its contents. The subsection now permits the transcript to have equal status with the tape in proving its contents. 42 However, it has been suggested that where there is a tape recorded conversation in a foreign language an issue arises as to whether the translation of the tape (or the transcript thereof) would be within the expression used in the subsection: "…. is or purports to be a transcript of the words": see the comment in Anderson, Hunter and Williams, "The New Evidence Law" at p.112 and the reference therein to the decision of the High Court of Australia in Buteria -v- DPP (Vic) (1987) 174 CLR 180. Although the learned authors comment that a translation adds another step in the "processing" of the document (being the audio tape) and that this step increases the possible fallibilities in the evidence, I would not have thought that that was a valid criticism to the admission of a transcript of a translation where that transcript is agreed as in the present case. 43 The point made by the learned authors is that, read literally, s48(1)(c) refers only to the tendering of a document that is or purports to be a "transcript of the words" of the recording which, in the present case, would be no more than a transcript of the words of the broadcasts in Greek. However, that would achieve nothing in terms of the jury's ability to comprehend the opponent's case. It is no doubt for that reason that the claimants concede that the jury was entitled to be informed as to the English translation of the words used in the offending broadcasts, the only issue being the form or manner in which that translation should be conveyed. 44 Accepting as I do that a radio broadcast is typically heard once only and that, therefore, the text of such broadcasts is not usually available to be pored over by the listeners, nonetheless it is common ground that an audio tape of the broadcast would be available to a jury to take into the jury room where they would be free to play and replay it as often as they deemed fit. No doubt the jury should be instructed by the trial judge before they retire as to the use to which they could put the tape and, in particular, as to the transitory nature of the broadcast and the fact that whether the broadcast conveyed the alleged imputations to the ordinary, reasonable listener depended upon the impression received by the listener at the time of the broadcast. 45 The claimants submitted that in the present case the form taken by the translation of the subject broadcasts should have been either by way of the reading of the translation to the jury before they retired (no doubt in counsel's closing address) or by playing to them an agreed recording of the translation. Given the entitlement of the jury to take the audio tape of the broadcast into the jury room and there to play it themselves, a single reading of the translation to them or the single playing to them of a recording of the translation before they retired would have placed the jury at an obvious disadvantage as there would then have been no point in them playing the audio tape to themselves in the jury room after they retired. They would not have understood its contents. 46 In my opinion, it is plain that if the jury was to gain any benefit from the playing of the audiotape in the jury room after they retired, it was necessary to have provided them with a translation of the contents of the tape so that they could follow the broadcast and thereby gain some appreciation, in an intelligible way, of "the emphasis, tension and intonation of the original broadcast" which the claimants assert, in my opinion correctly, was necessary for the jury to consider in their deliberations. Further, the alternative suggestion of the claimants that there be a tape recording of the translation of the broadcast would, as the opponent submits, have had its own undesirable features as it would have none of the idiosyncrasies of the original broadcast which the claimants contend was an important part of the jury's consideration. 47 In these circumstances, I agree with Handley JA that his Honour was correct in admitting into evidence a transcript of the English translation of the subject broadcasts and that the jury was entitled to have access to those transcripts together with the audio tape of the original broadcasts. 48 The foregoing conclusion is, however, subject to the following rider. The admission of such evidence is, of course, subject to the discretions referred to in ss 135 and 136 of the Evidence Act particularly, in the context of the present case, the latter. I would have thought that it would have been appropriate, had his Honour been so requested by counsel for the claimants, to have limited the use to be made of the transcript pursuant to s136 so as to ensure that it was utilised by the jury more as an aide memoir to facilitate their comprehension of the original broadcasts and so as to emphasise that it was the initial impact of the broadcast which was critical and that that impact was not to be distorted by the jury combing through the transcripts as the primary evidence of the broadcasts. However, as Handley JA notes in [8] of his judgment, no such request was made. 49 Finally, I note that the Court was not provided with a transcript of his Honour's instructions to the jury and I have therefore assumed that either his Honour instructed the jury as to the proper use they could make of the transcripts or, if he did not, no objection was taken to the absence of any such instruction so that once the transcripts were admitted counsel for the claimants was content for the jury to utilise them in the jury room as they saw fit whether in conjunction with the playing of the audio tape or otherwise. ******

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