Q. How often would you drop him off there?
A. Once a week. Not every week, but almost once a week.
34 Cross-examination established to the effect (CB 28) that Mr Sinclair had seen the rear of other BMW cars which answered the description of what was seen in the photograph, that this is nothing unusual or uncommon and he has seen the BMW logo a lot of times before. Cross-examination also established (CB 29) that Mr Sinclair had seen a great many picket fences and a great many paperbark trees.
35 Cross-examination on these subjects concluded (CB 29):
Q. I mean look at this photograph, that is a suburban scene, can I suggest to you, that could be any number of hundreds or thousands of places in Sydney?
A. It could be.
36 Mr Sinclair when later recalled said to the effect that he saw the later two articles on the days they were published.
37 Mr G. J. Williamson gave evidence to the effect that he met the appellant Rachel Gardener in the middle of 2005 when he enrolled his son at the college. He saw her take classes. He paid fees, sometimes by cash, sometimes by cheque made out to Acclaim College which he gave to the appellant most of the time, or to staff. His evidence also showed that on the date of publication of the article, after another person had brought the article to his attention, he bought a copy of the Daily Telegraph, glanced through the article including page 4, identified the college and associated it with the appellant Rachel Gardener. His evidence was (CB 33):
Q. Can you tell us what made you associate this article with Rachel Gardener?
A. Just where the photo was, the BMW in the driveway, the streetscape. I parked out there several times over a few months.
Q. So when had you parked outside the college?
A. Every Saturday afternoon for several months.
Q. How long would you be parked on each occasion?
A. About an hour.
Q. So I understand you to be saying, do I, that you parked there, you stayed there for an hour, or you went away?
A. Yes, I went inside the college sometimes and sometimes went back out to the car while the tutoring was on.
Q. So you waited?
A. Yes.
Q. And this had gone on for some months?
A. Yes.
Q. Looking at that photograph, do you recognise that scene? Do you say you recognise that scene as being the front of Acclaim College?
OBJECTION. LEADING. QUESTION WITHDRAWN.
Q. What does that photograph depict, do you think, Mr Williamson?
A. With the article I assumed that it was Acclaim College because of the fence and her car was always parked in the driveway, the BMW. I assume it is her car. I'm not sure.
Q. You cannot be sure it is her car?
A. No, but it was always there, yes.
Q. And did you recognise the boy in the picture?
A. No.
Q. Did you recognise the tree in the picture?
A. There's several trees in the street, yes, but yes, I stood there many a time and had a cigarette while I was waiting, yes.
38 Mr. Williamson was cross-examined on how often he had attended at the college and on the basis of his assuming that the BMW car in the photograph was the appellant's car, and also said in cross-examination (CB 35):
Q. I think you said that it suggested the college to you because of the streetscape, is that right?
A. Yes.
Q. You are not really able to say, to really be any more explicit than that?
A. No. It just looked familiar.
Q. Well, can I just suggest this to you, that it is really a scene that it could be just about anywhere in suburban Sydney, couldn't it, paperbark tree, green picket fence?
A. I am not disputing that, no.
Q. You are not saying it is the only paperbark tree outside a green picket fence in Sydney, are you?
A. No, I am not.
Q. It is possible, isn't it, that in fact the scene you see in that photograph could be at some other address and not the address of the Acclaim College where you took your son?
A. It is possible.
39 It is altogether incontrovertible that the appellant was the person referred to in the first article; this is incontrovertible because the respondent published the second article the following day, referred back to the first article expressly and proclaimed the identification with references to the appellant's name and with her photograph. The form of Questions 1 and 2 left it open to the jury to base an affirmative answer to Question 1 upon a finding that the appellant was identified by Mr Sinclair, or by Mr Williamson, or by both of them; or possibly by neither of them but by some unidentified person or persons whose existence is established by inference; or by all these processes. These lines of reasoning were left to the jury in the trial judge's directions, and the jury was not called on by the terms of the Questions to indicate the particular line or lines of reasoning which they adopted. Clearly in answering Question 1 they adopted some one or more of these possible lines of reasoning.
40 The terms of Question 1 invoke the burden which lay on the appellant of proving that readers of the first article identified her as the person referred to; in strictness, the tort is proved if only one person did so, and the terms of Question 1 reflect the strict position. Two witnesses called at the trial gave oral evidence directed to establishing that each of them knew the appellant and identified her as the person referred to in the first article; and dealt, in evidence and in cross-examination, with the facts and circumstances which relate to this identification. The cross-examination of these witnesses did not extend to suggesting that they have not in fact made the identification which they claimed to have made. (They did not say that they identified the appellant as the person spoken of in the first article by reference back from the second article, in which she was clearly identified: Senior Counsel for the respondent spoke of the absence of such evidence as if it were a material omission and a matter of complaint, but there is no substance in this.) When addressing Question 2 it was for the jury to decide, in the case of each of these witnesses, whether the facts and circumstances that the witness referred to were such that it was reasonable for the witness to make the identification. The evidence relevant to decision on Question 2 was not limited to the facts and circumstances which each witnesses mentioned. Decision on whether their identifications were reasonable was also affected by and in my view on any reasonable approach was overwhelmingly dominated by the incontrovertible fact that identification of the appellant as the person referred to was correct.
41 Another line of reasoning put before the jury in relation to Questions 1 and 2 related to inference based on the probabilities about whether the appellant was identified by at least one person who read the first article, and whether that identification was reasonable, and on inference from the notorious fact that the Daily Telegraph is a daily newspaper of very wide circulation, particularly in the suburbs of Sydney including Homebush. Circumstances furnished a strong basis on which the jury could infer that some person or more than one existed, who read the Daily Telegraph of 20 June 2005, and knew sufficient circumstances relating to the appellant, the Acclaim College, tutoring HSC students and events in Homebush to make the identification. The material upon which the inference could be made is very strong; but it was for the jury to decide whether they should make it. The grounds available for such a finding are even stronger when it is accepted that an identification by a reader is sufficient if the reader made it on reading the second article, recollecting the first article and understanding that the appellant was the person referred to in the first article. When regard is paid to the nature of the appellant's activity in conducting the coaching college, and to the circulation of the newspaper, the probability that one or more persons saw the first article and identified her from knowledge of facts and circumstances relating to her, and also the probability that one or more persons saw the first article and came to identify her with knowledge based on seeing the identification of her in the second article the following day, perhaps with other special knowledge, are each extremely high.
42 It cannot be known which line of reasoning led the jury to answer Question 1 affirmatively. They may have decided that one or other or both of the witnesses actually had made the identification of which each witness spoke; they may have rejected one or both of them but based their affirmative answer on more general reasoning about the probabilities of the appellant's having been identified by some of the Daily Telegraph's readership; they may have accepted all available supporting lines. Questions 1 and 2, which were adopted early in the hearing, are not expressed in terms which would expose which line of reasoning the jury adopted; and it was not necessary to frame the question in more detail than it was framed. Because of the form of Questions 1 and 2 it is for the appellant to show on appeal that the jury's negative answer to Question 2 was not reasonably available in any of the lines of reasoning by which they may have arrived at a positive answer to Question 1.
43 Although there was some discussion during argument of the appeal about whether it was appropriate to divide Questions 1 and 2 or to roll up their subject matter in one question, the adoption of separate questions is not the subject of any ground of appeal. The reason for asking Question 2 as well as Question 1, and for treating them as two questions dealing with different subjects, rather than rolling them up in one question to the jury, can be understood from the masterly and influential judgment of Samuels JA in Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348. Justice Samuels at 371 referred to authorities which showed that identification, publication of and concerning the plaintiff, was an essential element in the cause of action, and referred particularly to David Syme & Co. v. Canavan (1918) 25 CLR 234 at 238 per Isaacs J: "The test of whether words that do not specifically name the plaintiff refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the plaintiff to believe that he was the person referred to?" Steele related to an allegedly defamatory newspaper article which did not name or describe any person. Literally the first article falls within Isaacs J's reference to whether words that do not specifically name the plaintiff refer to him or not.
44 Justice Samuels referred to Morgan v Odhams Press Ltd [1971] 1 WLR 1239 and other authority which showed that the reasoning which produces an identification in the mind of the reader does not need to be clear or precise; it can be well short of intractable. Justice Samuels said (372F):
Their Lordships in Morgan's case ([1971] 1 W.L.R. 1239;[1971] 2 All E.R. 1156) then went on to indicate the manner in which the ordinary sensible reader must be supposed to read the material from which the identification of a plaintiff may be inferred in such cases as this. First, he may be permitted to draw "rather far-fetched inferences" (per Lord Reid [1971] 1 W.L.R. 1239, at p. 1244; [1971] 2 All E.R. 1156, at p. 1162 citing Cassidy v. Daily Mirror Newspapers Ltd. [1929] 2 K.B. 33 and Hough v. London Express Newspapers Ltd. [1940] 2 K.B. 507) and is prone to engage in "a certain amount of loose thinking" (per Lord Reid [1971] 1 W.L.R. 1239, at p. 1245; [1971] 2 All E.R. 1156, at p. 1163); secondly, "the average reader does not read a sensational article with cautious and critical analytical care" (per Lord Morris [1971] 1 W.L.R. 1239, at p. 1254; [1971] 2 All E.R. 1156, at p. 1170), and the article here in question may properly be regarded as "sensational". Thirdly, it must be assumed that he may read the article "casually and not expecting a high degree of accuracy" (per Lord Pearson [1971] 1 W.L.R. 1239, at p. 1270; [1971] 2 All E.R. 1156, at p. 1184).
It is evident that what is primarily in issue is the reasonableness of the conclusion to which the reader comes, rather than his possession a priori of the attributes employed to define him. To speak of a reasonable inference drawn by a reasonable reader may be circuitous since the impression made by the article tends to establish the nature of the qualities brought to its scrutiny. If there are no rational grounds for the inference sought to be pressed, then, ex hypothesi, the reader did not, on the relevant occasion, muster the attributes which he was bound to bring to his hypothetical task. But it may be, as Lord Donovan said in his dissenting speech ([1971] 1 W.L.R. 1239, at p. 1264; [1971] 2 All E.R. 1156, at p. 1179) that the requirement that the article must convey a defamatory meaning concerning the plaintiff to a reasonable person possessed of knowledge of the extrinsic facts postulates "… not merely a reasonable person but also a reasonable conclusion".
With these principles in mind, it becomes possible to set out with some precision the criteria which must be satisfied if the plaintiff is to get to the jury. First, there must be evidence capable of satisfying the jury that persons with particular knowledge of the plaintiff believed that the article referred to her.
45 Justice Samuels went on to refer to case law dealing with the manner of proof of that fact, which can be proved either by showing that there are people with knowledge of special facts or by calling persons to show their knowledge and their understanding of the publication. Justice Samuels went on at 374:
Secondly, there must be evidence capable of satisfying the jury that the witnesses did possess the particular knowledge of the plaintiff which enabled them to make the identification they asserted: and, thirdly, that those who did identify the plaintiff were ordinary sensible readers. I have already expressed some doubt whether this last matter constitutes an independent ingredient: but I will assume that it does.