Marsden v Amalgamated Television Services Pty Limited [1999] NSWSC 87 | Case summary

JUDGMENT (Application for Directions as to Presentation of Case to Jury) 1 The plaintiff sues in respect of two telecasts by the defendant, the first on 13 March 1995 ("Today Tonight"), the subject of the Third Further Amended Statement of Claim and the second, that of 7 May 1996 ("Witness"), the subject of the Second Further Amended Statement of Claim. 2 By reason of the dates of publication s 7A of the Defamation Act, 1974 applies to these proceedings. 3 The defendant seeks directions as set out in the letter dated 16 February 1999 delivered at my request. The directions sought are as follows: "1. That the matter complained of in each action be considered and determined separately and consecutively by the jury. 2. That in each action the videotape comprising the matter complained of be played once only to the jury. 3. That the videotapes to be played to the jury shall include the material played during the commercial breaks and the time periods defining the commercial breaks. 4. That in each action the jury not be informed of the imputations until the jury has seen and heard the matter complained of (in this regard, the jury can be informed that the plaintiff claims damages for defamation arising from the publication). 5. That no part of the video containing the matter complained of is to be played during addresses. 6. That the jury will not be supplied with transcripts of the matters complained of". 4 Directions are also sought on the order of addresses by counsel and the confining of the contents of the opening address by counsel for the plaintiff. 5 I will approach the matters on the basis that the directions are of the kind envisaged by SCR Pt 26 r 1 and SCR Pt 34 r 6. 6 It is to be noted that I ruled on another structure of trial (adversely to the defendant) on 4 February 1999 (DLJT: 1). 7 The amendments to the Defamation Act, 1974 provide for the jury to determine only whether the relevant publication carries the imputations pleaded by the plaintiff and whether they are defamatory. 8 The foundation for the present application for the directions lies, it is said, in a series of dicta of the Court of Appeal relating to publications said to be "transient" in their nature, namely radio and television broadcasts. Allied to this consideration and stressed during the course of submissions was the notion of the "impression" such a "transient" publication makes upon the viewer and listener. 9 In Gordon v Amalgamated Television Services Pty Limited & Anor (1980) 2 NSWLR 410 Hunt J was concerned with questions of pleading and the form of a Statement of Claim involving a television broadcast. Particularly was his Honour concerned with the inclusion in the pleading of every passage which materially alters of qualifies the complexion of the imputation complained of (see paragraph 6 of his Honour's judgment, that format then applying to reports in the New South Wales Law Reports). His Honour goes on to say in paragraph (7): "Particularly in the case of radio and television publications, a plaintiff is entitled to submit to the jury that the reasonable listener or viewer, as the case may be, although deemed to have listened to the whole of what was broadcast, nevertheless, may not have devoted the same degree of concentration to it as he would have to a written document: Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 (n) at 420. In the case where there is a written document, of course, it is possible for the reader to consider or reread the whole document at leisure. (8) Each case will, no doubt, depend upon its own circumstances, but it is easy to imagine a viewer missing the significance of a qualification or contradiction at the beginning or (perhaps less likely) at the end of a segment such as that complained of here. On the other hand, it is difficult to accept the existence of the reasonable listener or viewer who failed to comprehend a refutation in the sentence following that in which the charge was made or whose concentration selectively increased in relation to random passages between those which materially qualified the effect of those he comprehended. (9) Notwithstanding the lack of unqualified application of that principle in the case of oral defamation, the rule remains that the capacity of the matter complained of to convey particular defamatory imputations of and concerning the plaintiff must be judged by what the ordinary reasonable viewer or listener of average intelligence would have understood from the broadcast as a whole. This is made clear by the judgment of the Court of Appeal in Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418 (n) at 419" (at 413). 10 His Honour thus refers to the first of the series of judgments of the Court of Appeal referred to by Mr Wheelhouse in the course of his submissions. 11 An extract of the judgment of Samuels JA is reported as a note to Gordons case (at 418). Morosi's case was a "bane and antidote case". Reliance was placed upon certain observations of Samuels JA in the context of an attack made upon the summing up in the trial of that action. At 402B (paragraph (9)) his Honour said: "But I do not think that any purpose is really served by a scrupulous analysis of what was said. It is more a matter of impression taking into account the attributes of the notional listener". That listener as his Honour had said earlier at 419(5) is the "ordinary reasonable listener of average intelligence (who is the relevant stereotype), considering the broadcast as a whole (which is the correct criteria), …" 12 It was in Radio 2UE Sydney Pty Limited v Parker (1992) 29 NSWLR 448 that the first important reference was made to the desirability (in pre-1995 actions), of the jury determining the issue of whether or not imputations are conveyed at the commencement of the trial. In the course of discussing the admissibility of the transcript of the relevant radio broadcast, Clarke JA made some "observations" on this subject. At 473C his Honour said: "… 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. After all separate trials of the capacity of the material to support the imputations occur regularly and there is, of course, no evidence of the factual material surrounding the publication led during those trials. If this course were to be adopted then, as it seems to me, counsel for the plaintiff would open the case, the broadcast would be played, both counsel would put their contentions in address, the judge would sum-up and the jury would retire to consider the two questions. If the jury decided in the plaintiff's favour then the plaintiff's case on damages and the defendant's case on the various defences could proceed in the normal manner" (emphasis added). 13 Handley JA agreed with Clarke JA in the following terms (at 474A-E): "In my opinion it is particularly important in a case such as this for the jury to determine at the start of the trial, and before other evidence has been called, whether the imputations pleaded were conveyed by the broadcast and were defamatory of the plaintiff. 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. Moreover none of the oral evidence given in this case over twelve hearing days or any of the voluminous documentary evidence was admissible on these issues either. This evidence gave the jury far more information about the nature of the dispute in the NRMA and the plaintiff's role in it than was available to the ordinary reasonable listener who heard the six minute broadcast. In my view by the end of this trial it was impossible for the jury to place itself in thought in the position of the ordinary reasonable listener who only heard this broadcast once without being aware of any of this background knowledge. It would not be realistic to expect that a jury could put this body of evidence out of its mind and concentrate solely and simply on the actual broadcast itself. Whether the broadcast conveyed the pleaded imputations and whether they were defamatory of the plaintiff are correctly said to be questions of impression. The jury had to decide whether the ordinary reasonable listener who heard the broadcast, who did not hear it again and who had no special knowledge of the dispute would have understood, on the basis of this material alone, that the plaintiff had been defamed in one or more of the ways pleaded in the statement of claim. Since these are questions of impression the procedures at the trial must be moulded to enable the jury to decide them as matters of impression. It seems to me that to ask the jury to decide those questions at the end of a twenty-six day trial and after consideration of extensive oral and written evidence practically guaranteed that they would not be decided according to law" (emphasis added). 14 Particular reliance is placed on the observations of Handley JA and emphasised above, particularly in relation to "matters of impression". 15 TCN Channel 9 Pty Limited & Ors v Mahony (1993) 32 NSWLR 397 was an application for leave to appeal against a decision of Sully J to refusing an application in the course of the defamation trial for separation determination by the jury of the questions whether the words conveyed the pleaded imputations and whether they were defamatory. The Court held that there was power to so order. At 400-1 Kirby P said after referring to the observations of Clarke JA in Parker: "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 a 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 trials, 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" (emphasis added)". 16 His Honour went on to remark that the procedural step advanced by Clarke JA was a "natural and logical step" in the process of determining the validity of the plaintiff's claim. His Honour made the point that if determined unfavourably to the plaintiff it would terminate the trial there and then and would save a lengthy hearing and costs both to the litigants and public and save also Court time. His Honour goes on to say (401C): "Arguably, it would also be more just, for it would avoid contamination of the primary issue of the defamation proceedings by the numerous other issues relevant to defences and damages necessarily covered in a full trial. Above all, it would preserve the integrity of the trial by requiring that the primary question be decided upon initial impressions (as would be the case of the ordinary viewer or listener) rather than by extended re-examination and repeated viewing and listening to the offending program (not ordinarily available to the viewing and listening public)" (emphasis added). 17 It is to be borne in mind that in both Parker and Mahony the concern in the making of the observations as to the desirability of the jury determining the question of fact as to the imputations at the beginning of the trial was excited by the savings in time and cost to which I have referred and, in the context of a pre-1995 action, the elimination of the risk of infection of the jury's process on that issue by references to the matter complained of or parts thereof that arise in the litigation of other issues before the end of the trial. It is argued by Mr Wheelhouse, in support of the direction that the jury not be informed of the imputations until the jury has seen the matter complained of, that informing them of the imputations is capable of colouring the jury's understanding. The jury having been informed of the imputations in advance would then view the program searching for those meanings. Mr Wheelhouse paraphrased an extract from the judgment of Clarke JA at 472-473) as follows: "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 imputations may well have coloured the jury's understanding of what was said in the broadcast …" (scil "the evidentiary material"). The "matter of impression" was further referred to by Kirby P at 405F as follows: "Whilst as a matter of discretion, consideration could be given, properly, to the conventional mode of trial and the advantages to the plaintiff of that mode, if the judge decided to follow the course suggested in Radio 2UE, there would be no impediment of power or jurisdiction upon doing so. The very length of defamation proceedings, the advent of the fleeting images of radio and television as a new factor in the just ordering of such proceedings and the need to ensure that the initial impression is preserved, and not lost in the saga of a lengthy trial, all provide reasons why the power should exist and should sometimes be exercised in favour of granting the application" (emphasis added). 18 The 1994 amendments to the Defamation Act, 1974 affecting post-1 January 1995 publications, of course, have eliminated that consideration of the jury being "infected" by subsequent evidence in the course of which references may be made to the matter complained of before the time comes at which the jury is called upon to decide the threshold matter. There is no question, now, that the s 7A functions of the jury should be performed at the commencement of the trial (following Parker and Mahony, in RZ Mines (Newcastle) Pty Limited & Anor v Newcastle Newspapers Pty Limited & Anor (unreported, 16 November 1994), Hunt CJ at CL, obviously in a pre-1995 action, made an order under SCR Pt 31 r 2 for the separate determination by the jury in that case of the question of whether the imputations were conveyed and were defamatory and, because it was relevant, made observations as to the limitation on counsel's opening address (see page 5). 19 In Amalgamated Television Services Pty Limited v Marsden (1998) 43 NSWLR 158 Hunt CJ at CL most usefully reviews relevant principles relating to the test to be applied to determine whether or not a matter complained of is capable as a matter of law of carrying an imputation and the directions and considerations that would be incorporated in a summing up to a jury for the purpose of its determination of whether in fact defamatory imputations are conveyed. His Honour's review commences at 164B. After reviewing these principles including the principle that the mode or manner of publication is a material matter in determining what imputation is capable of being conveyed, his Honour says at 165G to 166D: "All of these considerations, and more, apply to matter published in a transient form - and particularly in the electronic media. Whereas the reader of the written document has the opportunity to consider or to 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: Gorton v Australian Broadcasting Corporation (1973) 1 ACTR 6 at 11; Brown v Australian Broadcasting Corporation (Hunt J, 4 May 1987, unreported) at 11. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard 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 (Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) at 420), and may have missed the significance of the existence, earlier in the programme, of a qualification of a statement made later in the published material: Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413. 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: Brown v Australian Broadcasting Corporation (at 12-13)". 20 It is to be noted that his Honour was discussing questions of "capacity". 21 None of the cases to which Mr Wheelhouse referred, in my respectful view, constitutes binding authority prescribing the "procedure" that would eventuate from the directions sought. The position of the defendant is that the making of the directions, in the light of the developing emphasis on the transient nature of a television program and the "matter of impression" inevitably compels such a course to be taken to preserve the "initial impression" it being critical it is said to "the plaintiff's claim for damages". The provision of the imputations to the jury before that body views the program would "infect" the integrity of the initial impression on the jury. 22 The course suggested for the defendant is, in effect, "unheard of" and deconstructs the orthodoxy attendant upon the usual procedure in defamation actions on the issue of whether or not the matter complained of conveys the imputations (as I have said, the danger of "infection" of the jury in its function in this regard by repeated references to the matter complained of in evidence on other issues has been eliminated by the amendments to the legislation). 23 Notwithstanding that the position of the defendant in seeking these directions can be so characterised, the question is whether or not as a matter of principle and thus of practice, whether it is available. 24 Upon the enunciation by Mr Wheelhouse of the fundamental proposition for the defendant to which I have adverted above, there was thrown up a question of "evidence". It is the position of the defendant that the "evidence" the jury will have placed before it will be constituted only by the transmission "across the courtroom" of the electronic visual images and audio sounds which happen to be stored on the videotape. The videotape itself is merely the mechanism of storage and reproduction of the "real evidence" constituted by the electronic transmission to which I have referred. It is thus argued to the point that the videotape itself would not be admitted into evidence as evidence (and an exhibit) but merely marked for identification. That which the defendant asserts to be the "evidence" (the visual images and sounds) by its very nature exists "transiently" and, I suppose, cannot be "marked". It is seen and it is gone (in the courtroom), just as it is seen and it is gone in the lounge room. I was referred by Mr Wheelhouse to the judgment of the High Court in Butera v Director of Public Prosecution, Victoria (1987) 164 CLR 180 which concerned the admissibility of a transcript of a tape recording of a conversation in a foreign language (and its translation into English). The passage particularly relied upon in the judgment of Mason CJ, Brennan and Deane JJ is as follows: "What is a transcript of a tape recording? It is a document setting out words which can be heard on playing over the tape. It is not a copy of the tape, but a written record of what has been heard. Prima facie, the issue whether the recorded conversation took place should be proved by playing the tape in court if it be available, not by tendering evidence, whether written or oral, of what a witness heard when the tape was played over out of court. That is the consideration which weighed with Street CJ in Conwell v Tapfield 23 [1981] 1 NSWLR, at p 598. when he said: 'What is the best evidence of the sounds entrapped in the record? It seems to me that there can be only one answer to this question, namely, the best evidence is the reproduction of those sounds as sounds when the record is played by appropriate sound reproducing equipment. Much of the confusion that has crept into the cases stems from the fact that normally it is the human voice that is recorded and, when reproduced, this is commonly done in writing. But if, say, the relevant evidence was a screech of tyres before a collision and that had been recorded, there would be no denying that the best method of placing this evidence before the court would be by playing the record. There is not the slightest difference in basic principle where the recorded sound is the human voice'. That view is clearly right, and its cogency is strengthened rather than weakened by the invocation of the traditional term "best evidence". That is not to say that the tape is itself the admissible evidence of what is recorded on it. A tape is not by itself an admissible object for by itself it is incapable of proving what is recorded on it: it is admissible only because it is capable of being used to prove what is recorded on it by being played over. By using sound reproduction equipment to play over the tape, the court obtains evidence of the conversation or other sound which is to be proved; it is that evidence, aurally received, which is admissible to prove the relevant fact" (at 185-6). 25 Mr Wheelhouse's proposition conforms with what I understand their honours to be saying in the last two sentences of the extracted passage. 26 I feel that this "problem", if it really be a problem, in a practical sense is overcome by practical considerations reinforced by the definition of "document" in the Evidence Act Dictionary and the videotape would be admissible under s 52 of that legislation. What the current application is really about is the use to be made of the material contained on the videotape. If the practical approach is not adopted there is strictly no "record" of the evidence presented to the jury. The jury in any event is directed (irrespective of the use to which the videotape has been put) that the publication which they have to consider is constituted by the visual images and sounds. 27 In response to the proposition advanced for the defendant in support of the directions sought, what I will describe as "considerations" were raised by counsel for the plaintiff. I so describe them as, to a very great extent, they beg the question posed. 28 First: the making of the direction sought will bring about an unprecedented and unjustifiable interference with the conduct of counsel in his address to a jury under the adversarial system. If counsel engages in this conduct, the sanction is the discharge of the jury with consequential orders for costs. This consideration, stated in very general terms, is one I consider to be correct and I will not expand upon it. 29 Secondly, in a jury trial the jury has the exhibits in the jury room. This is said to be clear from s 55A of the Jury Act which provides: "A judge … may refuse to allow an exhibit at the trial… being left with the jurors after they have retired if satisfied that the exhibit or the safety or the jurors would be put at risk". 30 The limitations otherwise are those founded on practicalities and common sense (see Kozul v The Queen (1980-1981) 147 CLR 221 at 235 per Steven J). In this context generally it is interesting to note that the Evidence Act, 1995 in s 54 (Views to be evidence) now provides: "The Court (including if there is a jury, the jury) may draw any reasonable inference from what it sees, hears or otherwise notices during a demonstration, experiment or inspection". 31 I turn now to the plaintiff's answer to the essence of the defendant's contention. 32 There are essentially three components: first: the validity of the distinction between "transient" publications and publications of other kinds, for example, in newspapers or books. Very shortly stated the contention for the plaintiff is if the matter of "initial impression" is available in relation to the "transient" publications, on what basis in principle should the same not apply to the book or the newspaper? The "mere opportunity" in the last cases for the reader to go back and which is referred to by Hunt CJ at CL in the extracted portion from Marsden above, it is argued, as I understand it, not a sufficient basis for the distinction. I am inclined to agree however. I do not consider it necessary to resolve this first component of the plaintiff's response. 33 The second component is made up of the jury's function in a defamation action. The phrase "determining whether the matter published is defamatory" is misleading: in fact it is wrong in terms of the function of the jury. The function of the jury is to determine whether on the balance of probabilities the matter complained of carries the imputations pleaded by the plaintiff and whether they are defamatory (the defamatory imputations). What the jury determines is whether or not the plaintiff has proved his causes of action (s 9 Defamation Act, 1974). This role and function of the jury is of critical importance when considering concepts such as "transience" and "initial impression". 34 This second component is inexorably linked with the third and that is that it must ever be borne in mind that the jury's decision is an objective one. The jury does not decide whether it, that is, its four members, are of the view that the matter complained of carries the defamatory imputations. The jury decides whether the hypothetical ordinary reasonable viewer would understand the matter to carry those defamatory imputations. It is in this area that particular care must be taken in using expressions such as "initial impression" in the way advanced for the defendant. There is a risk of thinking in terms of the "initial impression" the program makes on the jury as determinative of whether or not the hypothetical "ordinary reasonable viewer" would understand the publication as carrying the defamatory meanings. 35 When therefore one considers the function of the jury, duly constituted as a judicial body as a component of the administration of justice in these actions, and the test to be applied by them (an objective one) and the directions the jury receives as to both, the foundation for the defendant's position, in my view, falls away. 36 There is the further intrusion of what might described as an "unreality" namely, the artificial structure of the cause of action itself, that is, the imputation. The person sitting in the lounge room looking at the television, if that person gives any thought to what a program "means", realistically does not think of it in terms of the artificiality of the causes of action constituted by imputations. The law does not require that environment to be reproduced in the courtroom by reason of the task to be performed by the jury (determining defamatory imputations) and the test by which they do so(an objective one). 37 As long as the test is objective and the function of the jury is to determine on the balance of probabilities whether or not the causes of action have been established (the defamatory imputations) there is great danger, in my view, in an undue concern with notions of "initial impression" or indeed, "transient publications". The danger is that the "initial impression" will be understood as that made on the jury as ordinary reasonable viewers diverting them from the hypothetical viewer and that viewer's attributes. The safeguard to both parties is the function the jury performs, the objective approach and the directions it is given as to how it goes about both. 38 I do not find that the observations upon which reliance was placed by Mr Wheelhouse in the several judgments in the Court of Appeal and the cases referred to inevitably or logically can lead to the conclusions advanced. 39 I am of the view that a jury will not be diverted from or infected in, its process of applying the objective test in determining whether the causes of action have been established by knowing in advance what those causes of action are or by seeing the videotape more than once. The use that counsel make of the videotape during the course of addresses contains the seeds of available sanctions: one of which obviously will be to the effect that the more the plaintiff has to play the videotape, the less likely, it would be argued forensically, that the ordinary reasonable viewer would understanding it as carrying the defamatory imputations. Another sanction, of course, is the discharge of the jury in the event of counsel's behaviour warranting it or in the extreme case, as is referred to by the learned editors of Ritchie in paragraph 34.61A of impropriety or incompetence becoming manifest, or the placing of fictious or collusive material or propositions before the jury. 40 The defendant's application raises a novel point. Its disposition has been affected by the need for speedy determination in circumstances where it would have been desirable that the luxury of further time might expose, in more detail, the process of reasoning to the conclusions to which I have come. I say this in the light of the decision handed down by the Court of Appeal at 10.15am on 18 February 1999 and the discussion as to further management it provoked. At this moment, once again, the emphasis is striving to have the jury empanelled. 41 Thus, I will decline to give the direction sought in paragraphs 2, 3, 4, and 5 of the letter dated 16 February 1999. 42 In relation to the direction sought in paragraph 1 (separate and consecutive jury consideration) I will decline to make that order. The impracticalities are obvious; the unnecessary time wasting and expense are obvious. Juries hitherto in defamation actions have been called upon to decide whether multiple publications are defamatory in the requisite sense individually. In criminal cases every day of the week juries are directed as to the necessity in multiple count trials of considering each count separately and the evidence in relation thereto separately. The same applies in a defamation action. I do not consider that there will exist any risk in the jury being sent out to consider both programs (as opposed to each program separately and consecutively), such risk being, it was submitted, of consideration of the first program infecting the consideration of the second. Thus, I decline to give the directions sought in paragraph 1. 43 As to paragraph 6 of the letter relating to the jury being supplied with transcripts, it is agreed between the parties as I understand it from submissions on 17 February that the plaintiff will not require transcript. I think that is a very sensible approach. 44 There remains outstanding the matter of "order of addresses" in respect of which I have yet to hear full argument. 45 Accordingly, the formal orders are: That I decline to give the directions in paragraphs 1 to 5 referred to in the letter of Mallesons Stephen Jaques dated 16 February 1999.

Marsden v Amalgamated Television Services Pty Limited

At a glance

Court

Decision date

Before

Source

Judgment (8 paragraphs)

Parties

Cases Cited (5)

Cited By (2)