GRIFFITH & ORS v AUSTRALIAN BROADCASTING CORPORATION & ANOR

FOUNDATION FOR HUMANITY'S ADULTHOOD (ACN 003 930 023) (Second Plaintiff)

TIMOTHY JOHN MACARTNEY-SNAPE (Third Plaintiff)

SAMUEL CHARLES BELFIELD (Fourth Plaintiff) JOHN CAMERON BIGGS (Fifth Plaintiff)

SUSAN JANE ARMSTRONG PARTIES : (Seventh Plaintiff)

BRONWYN GLENIS FITZGERALD (Eighth Plaintiff)

HEULWEN MARY JONES (Ninth Plaintiff)

STACY ANNE RODGER (Tenth Plaintiff)

AUSTRALIAN BROADCASTING CORPORATION (First Defendant)

DAVID MILLIKAN (Second defendant) FILE NUMBER(S) : SC 20300 OF 2003 K Smark (Plaintiffs) COUNSEL : B Walker SC / R Glasson (Defendants) Schweizer & Co (Plaintiffs) SOLICITORS : Baker & McKenzie (Defendants)

• 1 - DLJT 1 Ex tempore: revised [2003] NSWSC 483 IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION DEFAMATION LIST

FOUNDATION FOR HUMANITY'S ADULTHOOD (ACN 003 930 023) (Second Plaintiff)

SAMUEL CHARLES BELFIELD (Fourth Plaintiff) JOHN CAMERON BIGGS ( Fifth Plaintiff)

AUSTRALIAN BROADCASTING CORPORATION (First Defendant)

JUDGMENT (Evidence - admissibility - relevance - fact not in issue - transcript of "Four Corners" program - tender rejected - Evidence Act ss48(1)(c), 55, 56 and 135) 1 The plaintiffs have tendered what I take to be an agreed transcript of the "Four Corners" program. Objection has been taken to the tender. 2 Mr Smark proposes to provide the jury with one copy only of the agreed transcript and not invite the jury to "pore over" the document. Further, Mr Smark does not propose to refer to it; whether Mr Walker would refer to it would, of course, be a matter for him. 3 The tender on that basis is made in circumstances where the defendants have admitted publication and where the defendants will consent to the admission into evidence of discs containing the two radio broadcasts, respectively of ten and twelve minutes duration, and the "Four Corners" program of forty-five minutes duration. Mr Smark's tender does not include transcripts of the radio programs. 4 To offer some general support for the tender Mr Smark referred to observations made by Clark JA in Radio 2UE Sydney Pty Ltd & Anor v Parker (1992) 29 NSWLR 448. It is to be kept in mind, of course, that the Court of Appeal's decision in Parker predates the Evidence Act (NSW) 1995 and the institution of the s7A mechanism. His Honour at 472G-473C said: "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 pour 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. 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 whilst 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 an analysis" . (emphasis added) 5 As I understood Mr Smark's submissions, the present tender can be distinguished from the matters with which his Honour was concerned by reason of the duration (forty-five minutes) of the "Four Corners" program. 6 I was reminded that in Marsden v Amalgamated Television Services Pty Ltd [1999] NSWSC 87 the question of the admissibility of the transcripts of the two programs became academic upon the agreement of the parties that no reliance would be placed upon them: what I described as a "very sensible approach" [43]. 7 Particular attention was paid to the ruling of Sperling J in Vacik Distributors Pty Ltd & Anor v Australian Broadcasting Corporation & Anor (NSWSC, unreported, 4 November 1999). In that ruling his Honour, having remarked upon what he described as the admissibility of transcript being "significantly circumscribed" by authority, citing in particular Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180 and the Court of Appeal's decision in Parker, came to the view that the situation had been substantially changed by the enactment of the Evidence Act, in particular s48(1)(c). He held that a transcript was now admissible subject only to the discretion provided by s135 of the Evidence Act. 8 His Honour held that the "threshold" of admissibility was covered by s48 of the Evidence Act and thus concentrated upon the exercise of his discretion under s135. His Honour proceeded on the basis that the transcript would be used only as an aide-memoire and for ease of reference, and should not be regarded for relevant purposes as having any significant probative value at all (his Honour having referred to the definition of that term). His Honour went on to say, however, that without the concession as to the limited use of the transcript, the transcript "would have no significant probative value" and thus it would come about that any significant unfair prejudice to the defendant would necessarily substantially outweigh the probative value of the evidence. Whilst his Honour identified the prejudice in terms of distraction of the jury from the task of assessing the effect of the broadcast at the time it was made, his Honour concluded that any "prejudice" would not be augmented. It did not seem to his Honour that for the jury to look at a transcript to remind themselves of what was said was "discernibly more prejudicial to a defendant" than playing over the recording. Indeed he held that it may be "less so". Whilst his Honour acknowledged that the jury was concerned with "the impression", his Honour went on to say that it is "the impression of what was actually said which they must evaluate, not some possibly inaccurate recollection of what was said. A transcript provides that accuracy in an effective way" (at page 6). His Honour in the end came, for the purposes of the exercise of his discretion under s135, to the view that the provision of the transcript would not significantly add to the problem of artificiality; rather, it seemed to his Honour, that it would be likely to reduce the problem. 9 Thus for the plaintiffs it was argued that what Sperling J said in Vacik provided a reasoned basis for the admission or, put in another way, the non-exclusion, of the transcript, on discretionary grounds under s135. This would be the more so in circumstances where only one copy was to be provided to the jury and no reference to the document would be made by counsel for the plaintiffs. 10 For the defendants, Mr Walker referred to the ruling of Dunford J in Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 290 where his Honour refused to admit the transcript, (it being admissible under s48(1)(c)), pursuant to s135 of the Evidence Act . Further, in Purcell & Anor v Cruising Yacht Club of Australia & Ors [2001] NSWWSC 926 I declined to admit a transcript of the programs having referred to my earlier decision in Marsden, Goldsworthy and to the decision of Barr J in Buck v Jones & Anor (NSWSC, unreported, 15 June 2000) on the basis that as I said in paragraph [6]: "There is a real danger, in my view, of the jury being distracted from that path by the use of transcript of a piece of evidence which happens to exist and recorded spoken words, the spoken words themselves in the circumstances attending them, being the foundation for the action". 11 For the defendants it was argued that ss55 and 56 of the Evidence Act are of critical importance. The transcript cannot be relevant in these proceedings ("in a proceeding") because there is no room for its acceptance rationally affecting, directly or indirectly, the assessment of the probability of the existence of what is, in reality, not a fact in issue. Publication of the broadcast is admitted and the "best" evidence of it will be before the jury, namely the discs, and thus there is no fact in issue. That being so, it is not relevant and therefore not admissible, and is not evidence and cannot enjoy any other status, such as an aide-memoire as is referred to in the judgment of Sperling J in Vacik. That being so, that is the effective exclusion by the operation of ss55 and 56, brings it about that s135 has no role to play. In this context it was observed that in Vacik Sperling J did, as a matter of discretion under s135, admit the transcript notwithstanding that the transcript would have "no significant probative value". In other words, when one considers what Sperling J said in Vacik, one of the components for the exercise of s135 did not exist. Further, as has already been stated, if the transcript is not relevant, not admissible and not evidence, that same component is missing and thus the discretion-creating section has no work to do. 12 Mr Smark in response argued that the defendants' primary contention in relation to ss55 and 56, if correct, would bring it about that it would have the effect of a party being precluded from proving a fact in issue, if not by more that one piece of evidence, than by more than one piece of identical evidence. With respect, this to some extent begs the question because there is no "fact in issue". 13 Thus I am not presently persuaded that that could be the effect of the operation of ss55 and 56 as advanced by the defendants. Certainly in the context of the present tender, the transcript can in no way be characterised as "an identical piece of evidence" to the disc. The transcript is a discrete, and in fact artificially created and quite different piece of "evidence" to that which in the end, as I understand it, will conclusively prove the fact in issue, namely the two discs being admitted by consent. S48(1)(c) of the Evidence Act does not advance the plaintiff's position. It is concerned with the proof of contents of documents to permit the documents to become "evidence", and cannot circumvent the operation of ss55 and 56. I am thus persuaded by the arguments advanced by Mr Walker as to the effect of those two sections in the circumstances of this particular case. 14 If I am wrong in that regard, I would certainly exercise my discretion in favour of the defendants under s135. I am of the view, when one bears in mind all that has been said by other judges, including myself in the authorities to which I have referred, that the tender, rather than ameliorating artificiality in the role of a jury, would augment it, and especially would it do so in the context of the tension, to say the least, that exists between the concept of "accuracy" as is referred to by Sperling J in Vacik and the concept of "impression" which is are so important in relation to transient publications of the nature with which this trial is concerned. 15 I reject the tender and the transcript will be marked MFI 1. **********

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