Habib v Radio 2UE Sydney Pty Ltd & Anor

Consideration 12It is convenient to first deal with the second broadcast by Steve Price, which is the subject of the imputations that are claimed to have been raised as set out in paragraph 5 of the plaintiff's further amended statement of claim. 13As the recording of that second broadcast is no longer available, the admissibility of a purported transcript of that broadcast would have to be the subject of formal evidence proving the content of the transcript as an accurate rendition of the words that were broadcast. That question will have to be determined at the trial rather than in advance of the trial as the question of admissibility of that particular transcript is wholly dependent upon other evidence. In this application, the plaintiff took the course of not seeking to identify the provenance of the transcribed words alleged to constitute what was said in the second broadcast, preferring instead to leave that matter of proof for the trial. I therefore conclude that unless and until evidence is called that establishes the accuracy of the transcribed words said to comprise the second broadcast, that transcript may not be provided to the jury, either as evidence, or as an aid to memory. 14With regard to the transcripts of the broadcasts by John Laws and Ray Hadley, namely the first and the third broadcasts, these fall into the same category for consideration. I consider that category to be different to the consideration of the second broadcast by Mr Price. 15As to the admissibility of the first and the third transcripts, I consider that the ERISP analogy relied upon by the plaintiff is flawed because the considerations for providing a jury with a transcript of an ERISP in a criminal trial involves different issues than those that arise in a civil defamation trial. In the criminal trial analogy, the purpose of providing the jury with an ERISP, amongst other things, is to accurately record and provide evidence of admissions or stated versions of events by suspected persons as part of the process of the jury determining the innocence or guilt of an accused in respect of the charges under consideration. In contrast, in a s 7A civil defamation trial, the jury is charged with the task of determining what an ordinary reasonable listener of the broadcast in question would take as an impression of the meaning of the words complained of by the plaintiff, so as to determine the capacity of the identified imputations to both arise, and to defame. That exercise is undertaken in the context of a transient broadcast being considered by an ordinary reasonable listener. In my view the processes involved in the two identified situations are sufficiently dissimilar so as to necessarily require rejection of the claimed ERISP analogy as being inapplicable. 16The remaining consideration of the admissibility of the transcripts of the first and the third broadcasts must therefore proceed according to the requirements of the applicable laws of evidence. 17On first analysis, the plaintiff's arguments that evidence may be given in the form of other explanatory material likely to aid the comprehension of other evidence as envisaged by s 29(4) of the Evidence Act 1995, or a transcript of a recording as envisaged by s 48(1)(a) of the Evidence Act 1995, seem to be compelling. In this regard, a transcript of a recording would undoubtedly aid a jury in its comprehension of a recorded broadcast: s 29(4). Further, an accurate transcript of a recording is within the ambit of what is permitted to be tendered by the terms of s 48(1)(a) of the Evidence Act 1995. 18However, those provisions are only the starting point of the required analysis. A broader analysis is required that also takes into account the potential for evidence that is otherwise admissible to be unfairly prejudicial to a party, and therefore such that it may require exclusion as a consequence of an application of the terms of s 135 of the Evidence Act 1995. 19I therefore turn to a consideration of the claimed elements of prejudice asserted by the defendants in this instance. 20The first claimed element of unfair prejudice is the asserted likelihood that for convenience, the jury would be distracted by the transcripts and may dwell upon them rather than upon the tapes, in circumstances where the ordinary reasonable listener would only have heard the tapes once, thus arguably inviting a misapplication of the ordinary reasonable listener test. 21In my view that argument does not withstand scrutiny for several reasons. Although the submission cites and rehearses the remarks of Clarke JA in Radio 2UE Sydney Pty Ltd v Parker (1992) 29 NSWLR 448, at 472D-473E, that case pre-dated the advent of the Evidence Act 1995. In that case, it was concluded that no legal basis could be seen for receiving into evidence the transcript of the broadcast in question. Subsequent authority requires that the applicability of the statement cited must be read in conjunction with the provisions of the Evidence Act 1995, notably ss 29(4) and 48(1), which changed the parameters and considerations for the admissibility of such materials. 22Further, it must necessarily be assumed that the jury ultimately empanelled in this case will be properly instructed and directed as to their function, and as to how to go about the tasks with which they are charged. Inherent in that position is the assumption that the jury will be instructed as to their role in assessing what impression the ordinary reasonable listener would obtain from a transient broadcast. 23Furthermore, in my view, the argument relied upon by the defendants seems to wrongly assume that the jury would itself fulfil the actual role of the ordinary reasonable listener. That is not the true position. Instead, the jury will be have to consider, in the miasma of detail within the claimed imputations and related questions, what the ordinary reasonable listener would have understood from each individual broadcast. In my view, in this case, the extent of the detail the jury will be required to consider in the course of carrying out such a task gives rise to a real potential for confusion within and between the respective broadcasts. I consider this factor to weigh heavily in favour of providing the jury with transcripts aimed at avoiding such potential for confusion. In my view, rather than forming a potential source of distraction that might cause the jury to inappropriately dwell upon the transcripts, I consider that the transcripts are more likely to serve as a convenient means of distinguishing between the respective broadcasts for the purpose of focussing the minds and the attention of the jurors to the task at hand, namely the task of applying the ordinary reasonable listener test. 24The second and third claimed elements of unfair prejudice are the assertions that transcripts cannot capture the tonal features of the matters complained of within the broadcasts, especially where the broadcasts in question were transient, and where there may be some possibility that the transcripts may ascribe an appearance of permanency to something that an ordinary reasonable listener would only have heard broadcast once in respect of each of the three broadcasts, which occurred at 10.19am on Thursday 18 August 2005 by Ray Hadley, 10.33am on the same day by John Laws, which also continued at 11.00am, as well as one at 4.07pm on the same day by Steve Price. Because of the order in which these broadcasts have been pleaded, I shall for the present purposes refer to the John Laws broadcast as the first broadcast, the Steve Price broadcast as the second and the Ray Hadley broadcast as the third. 25Whilst the concerns of the defendant regarding the absence from the transcript of relevant tonal features of the words spoken are readily understandable, I consider those concerns to be misplaced in this case. In my view, the issue of concern so expressed can readily be the subject of an appropriately framed direction, cautioning the jury on the limits for the use of the transcripts, and the need for them not to dwell or unduly focus upon the transcripts where the ordinary reasonable listener would only have heard each broadcast transiently, and each only on one occasion. Whilst on first analysis of the point so raised, there must be an acknowledgment of the possibility that a jury might be tempted to unduly dwell upon a transcript as a matter of convenience, again that is not the necessary implication of what is likely to occur even if the jury is properly instructed and directed, and even if it is, it is difficult to differentiate between the effect of such a course and repeatedly listening to the broadcasts and the taking of notes. 26The jury may be likely to want to listen to the respective broadcasts on more than one occasion. The defendants concede the jury is entitled to do so. In my view that tends to undermine the importance of the distinction sought to be made between reference to the transient broadcasts and reference to the transcripts of those broadcasts as a memory aid. In my view, the futility of any distinction is at once apparent when it is recognised that the jury will have the facility and the means to take such notes as they wish to take of the broadcasts, including from repeated listening if they so choose, including making their own transcript if they feel the need to do so. This begs the rhetorical question as to what purpose, if any, would be served, other than to place additional burden and needless inconvenience on the jury, by denying to them an available transcript in circumstances where there is already a sufficient burden upon them. That burden will necessarily arise because of the multiplicity of the broadcasts in question, and the complex matters arising from those broadcasts, which will require consideration by the jury. 27The fourth claimed element of unfair prejudice to the defendants is the assertion that the provision of a written record of the transcripts of the broadcasts, being transient broadcasts, invites an incorrect and unfair application of the ordinary reasonable listener test, where such a listener would have heard each of the broadcasts in question, only once. 28In my view, that submission ignores the practical difficulties that will arise from context in which the jury will be required to fulfil their role in this particular case. There will be three broadcasts which the jury will have to keep distinct in their collective consideration. This will be in the context of an unusually voluminous number of questions that the parties have identified as arising from the pleadings thus far, being 92 in number, including sub-divided questions on 7 topics. Those voluminous questions arise from the numerous imputations that will have to be considered by the jury, and these presently number 50. The task of the jury will be to consider their own impressions of the broadcasts, and to decide the multiplicity of factual questions as to the capacity of the claimed imputations to arise and to defame. 29In fulfilling that function, the jury will not be restricted to a single listening of the multiple recordings in question in order to determine the impression likely to be gained by the ordinary reasonable listener. In my view, the submission made by the defendants conflates the role of the jury and assumes, incorrectly, that the jury is an incarnate form of the ordinary reasonable listener. 30As judges of the facts in this case, like judges sitting alone without a jury, they will not be expected to perform their function in a metaphorical vacuum, devoid of proper assistance from counsel for the parties and from the court. They will be provided with writing materials, opening addresses, evidence, submissions and a summing up of the evidence, along with appropriately framed directions when they are ultimately charged with their task. It is also possible that they may have questions that require further directions. In my view, in the circumstances of this case, it would be unrealistic and artificial to deny the jury the aid of transcripts to assist and to aid them in the task at hand in a trial of the complexity this case has the potential to involve. When considering questions of fairness, it is trite that fairness to both parties is of paramount importance. However, in my view, the notion of fairness should, in a practical sense, also extend to a consideration of the jury, and as to how they can reasonably go about carrying out the task expected of them, in a case that at this stage gives every indication of being very complicated indeed. 31The foregoing analysis leads me to the conclusion that in the special circumstances of this case, having regard to the complexity of the task that will be placed before the jury, involving the large number of claimed imputations and related questions for consideration, that I should reject the submissions made by the defendants concerning claimed unfair prejudice calling for an application of s 135 of the Evidence Act 1995 to exclude the transcripts. 32However, the required analysis does not conclude only by a consideration of admissibility according to the requirements of s 135. It is also necessary for me to review and to take guidance from the authorities to which I have been referred. 33A fundamental principle of evidence law is that only evidence that is relevant is admissible. The first inquiry is to ask and determine whether or not the evidence is either relevant or not relevant. If the evidence in question is not relevant, then it follows that irrelevant evidence may not be received : Smith v The Queen [2001] HCA 50; (2001) 206 CLR 650, per the majority at [6], p 653. The same position arises under s 56(2) of the Evidence Act 1995. 34The defendants submit that a threshold argument arises that the transcripts are not relevant and should therefore not be admitted into evidence. This argument arises because on the pleadings, in their amended defence filed on 1 March 2011 the defendants have admitted the fact that the broadcasts have taken place in addition to admitting the factual content of the broadcasts themselves. The submission that the broadcasts and their content require no further proof on account of those admissions, has to be considered in the foregoing context, subject to other statutory provisions. 35In this regard, I do not consider the reliance by the plaintiff on ss 29(4) or 48(1) of the Evidence Act 1995 has the effect of displacing the proposition of relevance referred to in Smith and s 56(2). The plaintiff seeks to tender transcripts prepared by or on his behalf. These are not transcripts that have been prepared or acknowledged by the defendants. The transcripts do not of themselves constitute admissions by the defendants against their own interests. They do not constitute evidence : Butera v Director of Public Prosecutions (Vic) [1987] HCA 58; (1987) 164 CLR 180. Strictly speaking, instead, they are only interpretations of other evidence. That other evidence, namely the recordings of the broadcasts, will itself be admitted into evidence without question or objection : Butera pp 185-6. 36In my view, since the transcripts that are under present consideration have not been prepared by the defendants, I consider that they do not constitute documents or materials of the kind that are caught by ss 29(4) or 48(1). In view of the admissions on the pleadings made by the defendants, the tender of the transcripts will become superfluous. In the light of the factual admissions adverted to, the transcripts will not be relevant as proof of a fact in issue, and therefore they should not be placed before the jury as formal exhibits in the proceedings. 37A rejection of the transcripts as evidence still leaves open the question of whether the jury should be provided with them as memory aids to assist in the understanding of the sound recordings, which will be in evidence as exhibits. In order to decide that question it is still necessary to consider any guidance offered by the array of authorities that deal with the tender of transcripts in the exercise of weighing the factors for and against the provision of such material to the jury to assist it in its deliberations. 38In this regard, the plaintiff relies upon the first instance decisions in Vacik v ABC [No 4], NSWSC, unreported, per Sperling J, 4 November 1999, and Buck v Jones, NSWSC, unreported, per Barr J, 15 June 2000. The plaintiff refers to those decisions as examples of circumstances that provided justification for a jury being provided with copies of transcripts of broadcasts in circumstances where the previously cited discussion in Radio 2UE Sydney Pty Ltd v Parker was distinguished, for reasons that included changes brought about by the previously cited provisions of the Evidence Act 1995. 39In their resistance of the proposition that the jury be provided with transcripts of the broadcasts, the defendants pointed to a number of first instance decisions that provided examples of circumstances where transcripts were kept from the jury in defamation cases that involved broadcasts: Nu-Tec v ABC [2010] NSWSC 711; Griffiths v ABC [2003] NSWSC 483; Purcell v Cruising Yacht Club of Australia Pty Limited [2001] NSWSC 926; Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 87; Goldsworthy v Radio 2UE Sydney Pty Limited [1992] NSWSC 290 and decisions along those lines. 40In contrast, the plaintiff points to permissible authority at the appellate level in Foreign Media v Konstantinidis [2003] NSWCA 161, where, at [17]-[18] per Handley JA, a statement appears approving the use of transcripts by a jury when deciding whether broadcasts "conveyed so many imputations". The defendants seek to distinguish the remarks by Handley JA in Foreign Media v Konstantinidis as being obiter, and of limited application to this particular case because the relevant broadcasts in that case were in the Greek language, and the transcripts in that case were necessary for the jury to understand the English language meaning of the broadcast in question. 41Whilst that point of distinction raised by the defendants has a superficial attraction, the fact remains that there was a statement of approval for the course sought by the plaintiff in this case, namely the entitlement of the jury to have the transcripts of the tapes before them, but with the proviso that "they were bound to use the transcripts only for the purpose of placing themselves, in thought, in the position of " an ordinary reasonable listener, although not for the purpose of deciding whether the imputations were conveyed by the written words : Foreign Media v Konstantinidis, at [18]. 42The defendants pointed to a portion of the decision in Radio 2UE Sydney Pty Ltd v Parker, which I have previously cited, where it was concluded in that case that there was no legal basis for receiving into evidence a transcript of the broadcast where there was no difficulty in understanding the tape that was played before the jury, because the broadcast obviously took place in the English language. That position was considered by Sperling J in Vacik, who observed that statement was obiter, and did not relate to any ground of appeal in that case : Vacik p 4.5. 43I consider the reliance by the defendants on that authority for their resistance of the application by the plaintiff to be overly simplistic. In that case, the plaintiff sued on only 3 defamatory imputations : Radio 2UE Sydney Pty Ltd v Parker, per Handley JA at 473G. I consider that fact to be a relevant point of contrast and distinction with the present case, where the plaintiff alleges that some 50 imputations arise. The complexity of those issues will undoubtedly give rise to significant complexity for the jury at the trial of this case. This necessarily requires that the jury will have to be given the utmost assistance that counsel for the respective parties can reasonably muster. 44In that regard, I consider that in this case, the most convenient and appropriate way of assisting the jury is to provide them with transcripts of at least the first and third broadcasts, assuming the recording of the second broadcast remains unavailable to the parties and remains unproven. I envisage that the provision of such transcripts would not be in the form of exhibits, but would simply be provided to the jury as aids to memory. This would enable the jury to conveniently deal with the many complex questions they will be required to answer, in accordance with the many questions and directions that they will be directed to attend to and to answer in their deliberations. 45I consider that if the transcripts are provided to the jury on such a restricted basis, accompanied by appropriate directions that would caution the jury that the transcripts are not to be regarded as evidence (in conformity with the view expressed in the judgment by Clarke JA in Radio 2UE Sydney Pty Ltd v Parker at p 473F), but simply to represent an aid to memory, this would be the kind of assistance the jury would be entitled to expect when approaching the inherently complex deliberations they will have before them in this particular case. 46I consider that the appropriate directions inherent in such an approach would make sufficient allowance for the apprehension expressed by the defendants, based as they are on the authorities relied upon by the defendants, concerning the jury being provided with transcripts as aids to memory. 47Before reaching my final conclusions, in the paragraphs that follow, I will review the principal authorities to which the defendants have referred. 48In Griffiths & Ors v ABC [2003] NSWSC 483, that case concerned the tender of a transcript of a 45 minute television broadcast. In that case, at [7], Levine J confirmed the admissibility of transcript by virtue of the operation of s 48(1) of the Evidence Act 1995, subject to the discretionary considerations identified in s 135 of that Act. After noting at [8], the approach taken by Sperling J in Vacik, which permitted the limited use of transcripts by the jury as an aid to memory for ease of reference, his Honour exercised the discretion conferred by s 135 of the Evidence Act 1995, and excluded the transcript. He did so after having regard to the transient nature of the publication and tension between the concepts of "accuracy" afforded by the provision of a transcript, and the concept of "impression", with which the jury was concerned in assessing what the ordinary reasonable listener would obtain from the broadcast : Griffiths, at [14]. 49The authorities relied upon by the defendants canvass what has been identified and discussed as the real danger that a jury would be confused or distracted by the use of transcript of the spoken words rather than the recorded words themselves, leading to the possibility that the provision of transcript material could compromise the already difficult task facing the jury: Griffiths at [10], citing Goldsworthy v Radio 2UE Sydney Pty Ltd [1999] NSWSC 290; Purcell & Anor v Cruising Yacht Club of Australia & Ors [2001] NSWSC 926; Nu-Tec v ABC [2010] NSWSC 711. 50In the specific context of this case, I find the concerns over the provision of the transcript as expressed by the defendants difficult to understand in this case, since the jury will have the opportunity to play and replay the recordings as many times as they wish, in conjunction with being provided with writing materials. The most likely reality will be that by being able to take such notes as they wish, the jury could acquire their own transcript from the tendered recordings in any event. Such a course would be entirely immune from review or hindrance from either the parties or the court : Goldsworthy v Radio 2UE Sydney Pty Ltd, per Dunford J at [10]. In those circumstances, it seems to me to be somewhat artificial to deny to the jury copies of the transcribed recordings for them to conveniently use as aids to memory to assist them in their deliberations, much like courts receive chronologies prepared by the parties on the understanding that they do not constitute evidence, but are merely provided to assist in understanding and reducing the complexity of the task at hand. 51In Nu-Tec, at [12], McCallum J referred to the significant danger that a written record of a transient publication would compromise the already difficult task for the jury to assess the likely impression gained from a transient broadcast. I respectfully agree with that statement, but also observe that the exercise of discretion requires a consideration of the complicating features of the case at hand, as there cannot be a prescriptive approach to the exercise of discretion where each case must necessarily depend upon its own circumstances : Marsden Amalgamated Television Services Pty Ltd [1999] NSWSC 87, per Levine J, at [8]. 52Having considered the authorities cited, I consider that there are important distinguishing features in this case that weigh in favour of transcripts being provided to the jury. 53In combination, the factors I have identified are first, the fact that there were 3 separately different broadcasts by Mr Laws, Mr Price and Mr Hadley involving similar subject matter that could give rise to confusion and conflation of concepts between the claimed imputations, thus complicating the deliberations of the jury, secondly, the tone and density of the broadcasts involving comments arguably critical, sarcastic and mocking of the plaintiff, requiring the jury to carefully differentiate between their impressions from each broadcast when approaching their consideration of the issues from the viewpoint of the ordinary reasonable listener, thirdly, the unusually large number of claimed imputations, raises the distinct likelihood of complexity arising at the trial, with the potential for confusion of issues in the minds of the jury, fourthly, in reality, notwithstanding any directions to the contrary, there is no effective way of superintending the jury in order to prevent them from freely writing notes, and by that process creating their own transcript in any event, and in such circumstances, a means by which the jury has access to accurate notes is to be favoured, fifthly, the argued potential dangers of possible compromise or confusion of the jury, possible inappropriate focus, dwelling upon, or poring over the transcript, rather than them having regard to what they consider to be the likely impression gained from the broadcasts by the ordinary reasonable listener, are matters that can be reasonably accommodated by appropriately framed directions to the jury. 54Accordingly, in my view, on a consideration of these factors in combination, the convenience to the jury that transcripts are likely to provide in the form of aids to memory, far outweighs the possible dangers, distractions, causes for concern and potential prejudice that has been the subject of submissions by the defendants, and which has been the subject of commentaries and rulings expressed in the particular circumstances of the various cases cited by the defendants. 55Ultimately, the resolution of the issues at hand involves the exercise of discretion. In this regard, on weighing the factors I have identified, for justice to be afforded to the parties, and in the interests of fairness to the jury in providing them with due assistance in the performance of the tasks required of them, in combination, I consider the identified factors require that the jury be provided with transcripts of the broadcasts as aids to memory rather than as exhibits, with the appropriate accompanying directions that were adverted to by Handley JA in Foreign Media v Konstantinidis, at [48]. 56In this regard, consistent with previous observations by superior courts, the expectation in cases such as this is that the court is entitled to receive the assistance of skilled and experienced counsel to ensure that there is a manageable presentation to the jury : Mallik v McGeown [2008] NSWSC 129, per McCallum J at [30]. That expectation will obviously extend to assisting with the identification of the appropriate topics for directions that the parties consider to be required in this case in order to protect their respective positions, prior to the jury being finally charged to commence their deliberations on the questions raised for their determination.

Conclusion 57The transcripts of the first and the third broadcasts may not be tendered as exhibits before the jury. However, the transcripts may be marked for identification and copies of them may be provided to the jury as aids to memory, accompanied by explanations and directions to the effect that the transcripts so provided, do not constitute evidence or exhibits in the proceedings.

Orders 58I make the following orders: (a) In respect of the transcripts of the broadcasts by John Laws and Ray Hadley, which are respectively referred to in paragraphs 3 and 7 of the plaintiff's further amended statement of claim, the plaintiff is entitled to provide the jury with typed transcripts of those broadcasts, as memory aids, to assist the jury in the deliberation of the issues before them, but not by way of tender as exhibits, and subject to directions that are to be given to the jury by the court concerning the distinction between documents and materials provided to them for their consideration as evidence in the form of exhibits, and documents simply provided to them for convenience as memory aids; (b) In respect of the transcript of the broadcast by Steve Price, which is referred to in paragraph 5 of the plaintiff's further amended statement of claim, the plaintiff is not entitled to provide the jury with a transcript of that alleged broadcast unless and until the provenance and the admissibility of the transcript can be beforehand established, but if the actual recording of the broadcast in question becomes available and is tendered, a typed transcript of that broadcast may be provided to the jury on the same terms as ordered in (a) above; (c) The costs incurred by the parties in respect of the application are to be costs in the cause, except those costs incurred for the listing on 25 February 2011, when the parties were due to argue the issues raised by the application, but were not ready to do so. In respect of those wasted costs, each party should bear their own costs; (d) Liberty to apply on 7 days notice if further orders are required.

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. Decision last updated: 14 March 2011