PAVY v JOHN FAIRFAX PUBLICATIONS PTY LTD

Court of Appeal (NSW)|2004-05-17|Before: Sheller JA, Bell J

CITATION : PAVY v JOHN FAIRFAX PUBLICATIONS PTY LTD [2004] NSWCA 177 HEARING DATE(S) : 17 May 2004 JUDGMENT DATE : 11 June 2004

JUDGMENT OF : Sheller JA at 1; McClellan AJA at 45; Campbell AJA at 46 DECISION : Appeal dismissed with costs,.

CATCHWORDS : DEFAMATION - challenge to jury finding that imputation was not defamatory - whether finding one no reasonable jury could come to - whether jury should have been discharged - discretion of trial Judge - whether directions insufficient when no objection taken to directions at trial LEGISLATION CITED : Defamation Act 1974 A v Ipec Australia Ltd (1973) R 39 Astaire v Campling [1966] 1 WLR 34 Bass v McDonald & TCN Channel Nine Pty Ltd (No 6) [2001] NSWSC 988 Bass v TCN v Channel Nine [2003] NSWCA 118 Beran v John Fairfax Publications Pty Ltd (2004) NSWCA 107 CASES CITED : Coleman v Incorporated Newsagencies Company Pty Ltd (unreported) Supreme Court, 16 September 1975 Croll v McRae (1930) 30 SR (NSW) 137 Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 Wellington v Lake George Mines Pty Ltd (1962) SR (NSW) 326 PARTIES : Errol Pavy - Appellant John Fairfax Publications Pty Ltd - Respondent FILE NUMBER(S) : CA 40502/03 COUNSEL : T Molomby SC/R K M Rasmussen - Appellant B R McClintock SC/K P Smark - Respondent SOLICITORS : Bertock & Associates - Appellant Freehills - Respondent

LOWER COURT Supreme Court JURISDICTION : LOWER COURT 20242/97 FILE NUMBER(S) : LOWER COURT Bell J JUDICIAL OFFICER :

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40502/03 SC 20242/97

SHELLER JA McCLELLAN AJA CAMPBELL AJA

PAVY v JOHN FAIRFAX PUBLICATIONS PTY LTD On 24 May 1996 the respondent published an article about the appellant in the Sydney Morning Herald entitled "Father freed after child's death". Shortly before this publication, the appellant's appeal against a conviction for murder had been upheld in the Court of Criminal Appeal and his conviction had been quashed. As a result of this article, the appellant brought proceedings against the respondent to recover damages for defamation. Ultimately, in the defamation proceedings the appellant relied upon one imputation in an amended statement of claim, namely the imputation "that he had broken six ribs of his baby son, by doing a similar sort of act to shaking him." The jury, at a trial in accordance with the requirements of s7A(3) of the Defamation Act 1974, found that this imputation, or a meaning not substantially different from it, was conveyed to the ordinary reasonable reader but held that the imputation was not defamatory of the plaintiff. Notably, at the close of counsel for the defendant's address in this trial, counsel for the plaintiff applied to have the jury discharged on grounds including references by the defence to the proceedings being a "try-on" and references to what was said to be the jury's belief. The trial Judge declined to discharge the jury.

On appeal, the appellant challenged the finding of the jury that the imputation was not defamatory on the ground that this finding was perverse, being one that no reasonable jury could come to. The appellant also contended that the trial Judge erred in failing to discharge the jury at the close of counsel for the defendant's address to the jury.

Held: per Sheller JA, McClellan and Campbell AJJA agreeing:

The occasions for judicial correction of jury verdicts will be extremely rare. The jury is representative of the community. Its members are better placed than judges to give meaning to, and evaluate, the spoken and written words and its impact upon the community. A finding of a jury may only be overturned if it is one that no reasonable jury could reach.

John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657

The imputation pleaded in the amended statement of claim "that he had broken six ribs of his baby son, by doing a similar sort of act to shaking him" could not be said necessarily to convey the meaning that the plaintiff intended to break six ribs of his baby son. The pleader has deliberately eschewed such a suggestion with the omission of the words "he had directed physical violence towards his infant son thereby breaking six of his ribs" which were part of the imputation pleaded in the original statement of claim. Therefore it is quite impossible to say that the finding by the jury, that the imputation was not defamatory to the plaintiff, was unreasonable.

Counsel for the defendant's description of the plaintiff's case and references to what they might think about the truth of paragraphs 12 and 13 of the article might insinuate in the minds of the jury matters irrelevant to their consideration and prejudicial to the jury. Such things should not have been said and if her Honour had decided in her discretion to discharge the jury for this reason it would have been a proper exercise of that discretion. Croll v McRae (1930) 30 SR (NSW) 137

The decision not to discharge the jury was an exercise of the trial Judge's discretion. It is not possible for this Court, removed from the trial courtroom and the atmosphere in which the case was run, to say that her Honour erred in concluding that she would be able appropriately and effectively to deal with the matters raised by counsel for the plaintiff in her directions to the jury.
There is much to be said for the view that the directions given by the trial Judge did not sufficiently deal with what counsel for the defendant said to the jury. However, no objection was taken by plaintiff's counsel to these directions or to any part of the trial Judge's summing up, either because counsel for the plaintiff thought that the directions were sufficient or because, in all the circumstances, the plaintiff was prepared to accept a verdict on these directions. The plaintiff did not appeal against any part of the summing-up and, in any event, it would be too late to do so when no objection was taken at trial.

Cases Cited: A v Ipec Australia Ltd (1973) R 39 Astaire v Campling [1966] 1 WLR 34 Bass v McDonald & TCN Channel Nine Pty Ltd (No 6) [2001] NSWSC 988 Bass v TCN v Channel Nine [2003] NSWCA 118 Beran v John Fairfax Publications Pty Ltd (2004) NSWCA 107 Coleman v Incorporated Newsagencies Company Pty Ltd (unreported) Supreme Court, 16 September 1975 Croll v McRae (1930) 30 SR (NSW) 137 Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 Wellington v Lake George Mines Pty Ltd (1962) SR (NSW) 326

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40502/03 SC 20242/1007

SHELLER JA McCLELLAN AJA CAMPBELL AJA

Friday, 11 June 2004 PAVY v JOHN FAIRFAX PUBLICATIONS PTY LTD Judgment 1 SHELLER JA:

On 24 May 1996 the defendant, John Fairfax Publications Pty Ltd, published an article about the plaintiff, Errol Pavy, in the Sydney Morning Herald. Shortly before this publication, the plaintiff's appeal against a conviction for murder had been upheld in the Court of Criminal Appeal and the conviction quashed. The plaintiff brought proceedings in the Supreme Court against the defendant to recover damages for defamation by matter contained in the article. Ultimately in his amended statement of claim the plaintiff relied upon one imputation. In proceedings conducted on 19 May 2003 before Bell J and a jury, in accordance with the requirements of s7A(3) of the Defamation Act 1974, the questions for the jury were:

"1. Has the plaintiff established that the article in The Sydney Morning Herald of 24 May 1996 conveyed of the plaintiff the following meaning (or one not substantially different from it) to the ordinary reasonable reader:

"that he had broken six ribs of his baby son, by doing a similar sort of act to shaking him"

If so, has the plaintiff established that that meaning was defamatory of him?

YES/NO" 2 The jury answered question 1 "Yes" and question 2 "No". The plaintiff appealed first against the jury's finding that the imputation was not defamatory of the plaintiff on the ground that the finding was perverse, being one that no reasonable jury could have come to. The second ground of appeal was that the trial Judge erred in declining to discharge the jury at the conclusion of counsel for the defendant's address to the jury. 3 These proceedings have had a chequered history. The article complained of was headed "Father freed after child's death". Most of the space under this heading was taken up by a photograph of the plaintiff and his wife and their twenty-month-old daughter leaving the court after the decision with some people, presumably including supporters, in the background. After describing in dramatic terms what happened in the Court of Criminal Appeal and the immediate impact upon the appellant and his family, the article continued (the numbers have been inserted by me and are the paragraph numbers in the article): "(7) Mr Pavy, 28, was jailed last December for a minimum of nine years after a jury found him guilty of shaking to death his three-month-old baby, Jackson, while trying to stop him crying on March 9, 1993. (8) The infant died four days after being admitted to Westmead Hospital. (9) The couple blamed his death on Sudden Infant Death Syndrome. (10) Six months ago, the sentencing judge found that Mr Pavy had not intended to kill Jackson but had intended to inflict 'really serious bodily injury'. He had almost immediately regretted his action and tried to save the baby's life. (11) Justice James said the offence was out of character, as Mr Pavy was 'generally gentle, caring and non-violent to children'. (12) 'However, his act was not a lone, isolated aberration, in that on a previous occasion, he had broken six of the child's ribs by doing a similar sort of act,' he said. (13) 'The prisoner was not aware at the time of the murder that he had previously broken the child's ribs.' (14) Now, Mr Pavy is eager to get on with living, to enjoy his two small children and 'try and start all over again'. (15) 'I know what kind of man he is,' his wife said. (16) 'I knew that he could never hurt anybody or our baby. The doctors were all saying to us they believed Jackson died of natural causes so I don't know how the jury could have said otherwise.' " 4 Although the plaintiff began the proceedings in the Supreme Court by statement of claim filed on 21 March 1997, it did not come to trial on the s7A jury questions until 12 September 2001, a delay of about four years. At that trial, presided over by Bergin J, the plaintiff alleged in para 4 of the statement of claim that the matter complained of contained the following imputations defamatory of the plaintiff:

"(a) that he had shaken his infant son, intending to cause him really serious bodily injury, thereby breaking six of his ribs.

(b) that he had directed physical violence towards his infant son, thereby breaking six of his ribs. PARTICULARS

The imputation arises from paragraphs 7,10, 12 and 13 of the matter complained of." 5 The jury answered the questions isolated for their consideration by saying that the plaintiff had not established that the matter complained of conveyed to the ordinary reasonable reader the imputation or an imputation not substantially different from imputation (a) pleaded. For present purposes, it is not necessary to consider that imputation further. As to imputation (b), the jury was satisfied that the matter complained of conveyed to the ordinary reasonable reader that imputation or an imputation not substantially different from it but was not satisfied that the appellant had established that that imputation so conveyed was defamatory of the appellant. The appellant successfully appealed from that finding. On 5 March 2002, this Court (Mason P, Wood CJ at CL and Young CJ in Eq) held that this part of the verdict was perverse and that there should be a new trial as to imputation (b) "with it being understood that all proper amendments may be made to the existing pleadings provided that the plaintiff is not entitled to have any new trial as to imputation (a)." 6 Subsequently, the statement of claim was amended pursuant to leave given by Levine J on 30 October 2002 so that paragraph 4 read: "4 The matter complained of contained in the natural and ordinary meaning of the words the following imputation defamatory of the plaintiff: (a) that he had broken six ribs of his baby son, by doing a similar sort of act to shaking him. PARTICULARS The imputation arises from paragraph 7, 12 and 13 of the matter complained of." 7 Those paragraphs were: "Mr Pavy, 28, was jailed last December for a minimum of nine years after a jury found him guilty of shaking to death his three-month-old baby, Jackson, while trying to stop him crying on March 9, 1993." " 'However, his act was not a lone, isolated aberration, in that on a previous occasion, he had broken six of the child's ribs by doing a similar sort of act,' he said." " 'The prisoner was not aware at the time of the murder that he had previously broken the child's ribs.' " 8 At the hearing of s7A proceedings on 11 December 2002, Levine J discharged the jury on the plaintiff's application at the conclusion of submissions by Mr McClintock SC, for the defendant. In ex tempore reasons for judgment given by Levine J on 11 December 2002, his Honour referred to the intrusion by the defendant of three false issues identified by Mr Molomby SC, who appeared for the plaintiff. The first his Honour described as "the identity of sources and the question of belief in them", the second related to the remarks of James J, the sentencing judge, and the third to the effect of what Mr McClintock said in relation to the issue of "defamatory", namely that if the conclusion could be reached that the actions referred to in the imputation would be characterised as innocent, then the question would be answered "no". Of the first of these "false issues" Levine J remarked: "There is an immense risk, in my view, in a jury being invited, whether starkly or subtly, to turn its mind to the question of belief as to what was said in the article. That risk is compounded, though it is not the subject of complaint and in the end did not become that significant, when the jury was invited to consider what it believed as opposed to considering the view that the ordinary reasonable reader would believe." 9 As to the second, Levine J was not persuaded that the proposition Mr McClintock advanced was in principle wrong. His Honour found the third basis for the application well founded and said: "That was to the effect that if the conclusion could be reached that the actions referred to in the imputation would be characterised as innocent, then the question would be answered, No. That part of Mr McClintock's address to the jury, again to the best of my recollection, got dangerously close to an examination of what the imputation means which, of course, is proscribed."

Overview 10 The new trial as to imputation (a) in para 4 of the amended statement of claim was the trial the subject of this appeal and began, as I have said, on 19 May 2003. This was almost seven years after the respondent published the article in its newspaper and more than six years after the proceedings began. It is hard to imagine how such inordinate delay can be justified. It calls for some investigation into how these short preliminary trials were conducted. 11 On 21 November 2001, in Bass v McDonald & TCN Channel Nine Pty Ltd (No 6) [2001] NSWSC 988, Sperling J gave reasons for his direction in summing up to the jury on 21 October 2001. In that trial, Mr McClintock appeared for the defendant in moving for re-directions. The central issue was the effect of a bane (poison) and antidote publication. Declining to accede to one such request, Sperling J said: "9. … Resuming my summing up, I reviewed the points made by Mr McClintock in his address which were, in my opinion, available to support the defendant's case. I then said (at Summing Up 21/10/01 26): 'Before I move to Mr McClintock's argument, I have to say that, in some respects, the way in which he sought to use the points I have mentioned did not accord with legal principle and must be disregarded. It is not enough for the [television] program to have presented two sides of the story and leave it to the viewer to decide which is correct, let alone expect that the viewer will decide which is correct. Nor is it a question of which of the protagonists in the program the ordinary reasonable viewer would have believed. Still less is it the case that the plaintiff cannot succeed unless Mr McDonald would have been believed. It is a question of whether the ordinary reasonable viewer would have understood the program as conveying the alleged imputations against Mr Bass. It is not a question of whether the ordinary reasonable viewer would have been persuaded that the alleged imputations were true. To the extent that Mr McClintock put the defendant's case that way, you will have to disregard what he said. But that does not have any effect, one way or the other, on the argument that is available. That is the argument which I have outlined to you. Being available is, of course, not the same thing as being right. That is a matter for your consideration as, indeed, is every argument advanced in favour of one side or the other.' " 12 Later in his reasons, Sperling J said: "19 As recorded above, Mr McClintock relied on what was said by Hunt J in his summing up in RZ Mines (Newcastle) Pty Ltd & Anor v Newcastle Newspapers Pty Ltd & Anor (Supreme Court, 14 November 1994, unreported) (at 37-8): '[N]evertheless you are left with an assertion by the newspaper and a counter-assertion by the company, leaving it to the ordinary reasonable reader to judge for himself which is correct.' I respectfully disagree with this statement of principle and with a similar passage in Tobin: Australian Defamation Law & Practice (Butterworths: Sydney, 1999) at [3205]. It is not a question of whether the assertion is true but whether the alleged imputation is conveyed. Once stated, the relevant imputation is conveyed unless, by reason of other things written or said, the imputation is eradicated. The publication may convey conflicting imputations, in which case the relevant imputation remains." 13 On appeal to this Court, Bass v TCN Channel Nine [2003] NSWCA 118, Handley JA, who was of opinion that the appeal must be allowed, dealt with the respondent's cross-appeal based on an alleged misdirection of the jury during the separate trial when the jury found that two imputations had been conveyed and were defamatory. Handley JA said: "140 During his address to the jury Mr McClintock SC, appearing for TCN, invited the jury to find that the imputations were not conveyed because the viewer would not believe what Mr McDonald said about Mr Bass. The substance of his submissions on this point are conveyed by a passage quoted by Sperling J in his reserved reasons on this issue delivered on 21 November 2001. Mr McClintock told the jury (2): 'It is relevant who was believed in this programme because differing points of view are put ... if the viewer believed Mr Bass and Mr Munro, these imputations will not be conveyed'. 141 The point of his Honour's summing-up to the jury on this issue is sufficiently encapsulated in the following passages (5-6): '... if the whole tenor of the publication is to destroy the suggestion of wrongdoing, the publication does not convey the disparaging imputation ... if a part of the programme would be disparaging in isolation, the programme carries that imputation, unless it is apparent that what the programme as a whole is saying on that point is that the disparaging statement is wrong'. 142 In the absence of the jury Mr McClintock sought a redirection to the opposite effect which his Honour refused. He then continued his summing-up and instructed the jury that in some respects Mr McClintock's address to them did not accord with legal principle and to that extent must be disregarded. He said (7-8) [as already quoted]: 'It is not enough for the programme to have presented two sides of the story and leave it to the viewer to decide which is correct, let alone expect that the viewer will decide which is correct. Nor is it a question of which of the protagonists in the programme the ordinary reasonable viewer would have believed'. 143 In my judgment the summing-up on this question was impeccable and I agree completely with the Judge's reserved reasons for directing the jury as he did, and am content to adopt them as my own. The jury were correctly directed that an imputation conveyed by one part of the programme will be conveyed by the programme as a whole unless it was made clear that the imputation was incorrect. The question for the jury was whether the imputation was conveyed. This depended relevantly on what was spoken during the programme. The belief of the listener is not part of the programme, cannot be conveyed by it, and therefore it is irrelevant. The cross-appeal should be dismissed." 14 Spigelman CJ was of opinion the appeal should be dismissed and did not deal with the cross-appeal. Wood CJ at CJ agreed with Handley JA's orders including an order for costs which took account of the plaintiff's success on the cross-appeal, though in the reasons for judgment there was no formal order dismissing the cross-appeal. In the present proceedings, it is to be observed that Levine J, in his judgment of 11 December 2002, (the Court of Appeal decision in Bass was not published until 20 May 2003) discharging the jury, cited from para 9 of Sperling J's reasons in Bass his Honour's direction: "Nor is it a question of which of the protagonists in the program the ordinary reasonable reader would have believed" and said that he was not persuaded, and would remain unpersuaded until the Court of Appeal decided otherwise, that Sperling J was in error in relation to that passage.

Discussion 15 The questions for the jury were whether the matter complained of carried the imputation that the plaintiff had broken six ribs of his baby son, by doing a similar sort of act to shaking him, and if so whether that imputation was defamatory. Both parties accepted that for that purpose the truth or falsity of what was said in the article or whether the jury believed or disbelieved what was said in the article, were irrelevant to the task the jury was set. According to the article complained of, the plaintiff had been found guilty of shaking to death his three-month-old baby and had been gaoled for a minimum of nine years. The plaintiff appealed this conviction and his appeal was upheld and the conviction quashed. Against such a background and the possibility that it might engender prejudice in the minds of the jury either for or against the plaintiff, any concern by the jury when answering the questions asked, about whether these statements were factually correct or whether the plaintiff had not intended to kill his son but to inflict really serious bodily injury or had on a previous occasion broken six of the child's ribs by doing a similar sort of act, had to be put entirely out of consideration. The nature of the matter complained of in this case made it of the utmost importance that that limitation be clearly understood. The plaintiff would be prejudiced if, for example, the jury formed, and then took account of, a belief that para 12 was true but para 13 untrue. Mr McClintock acknowledged this as a possibility in something which he said to the jury, to which I will return. In discharging the jury on 11 December 2002 Levine J called this possible prejudice to the plaintiff "an immense risk". 16 Equally irrelevant for the particular task to be undertaken by the jury was the belief of the plaintiff or of the defendant about the truth or falsity of what was said. To quote from the judgment of Diplock LJ in Astaire v Campling [1966] 1 WLR 34 at 41: "… the statement of fact or expression of opinion relied upon as defamatory must be one which can be reasonably said to be contained in the statement in respect of which the action is brought …"

See also A v Ipec Australia Ltd (1973) VR 39 at 57. The task of the jury was concerned solely with determining objectively how the words complained of in the context of the whole article should be understood and whether, if they should be understood as the plaintiff pleaded, they were defamatory; see Price and Duodu Defamation Law Procedure and Practice, 3rd ed, 2-06. 17 As no true innuendo was pleaded and the published words clearly related to the plaintiff, the question was whether what Brennan J in Reader's Digest Services Pty Ltd v Lamb (1982) 150 CLR 500 at 506 called the "hypothetical referees" would understand the published words in a defamatory sense. Brennan J said: "That simple question embraces two elements of the cause of action: the meaning of the words used (the imputation) and the defamatory character of the imputation. Whether the alleged libel is established depends upon the understanding of the hypothetical referees who are taken to have a uniform view of the meaning of the language used, and upon the standards, moral or social, by which they evaluate the imputation they understand to have been made. They are taken to share a moral or social standard by which to judge the defamatory character of that imputation …" 18 In normal circumstances, the argument by counsel to the jury on such questions, particularly bearing in mind the risk of prejudice, are governed by simple well-known principles and should not call for inflammatory hyperbole. In Croll v McRae (1930) 30 SR (NSW) 137 Street CJ, with the concurrence of James and Halse Rogers JJ, said at 146: "I cannot impress too forcibly upon the members of the Bar the necessity for observing high standards of professional conduct and a proper sense of responsibility in the conduct of cases. If that is not done the whole profession will suffer in the estimation of the public. In Reekie v McKinven (1921) Session Cases 733, the Lord President, in referring to an improper argument addressed to a jury, having relation to the expenses of the case, said (p735): 'In this matter, as in other matters germane to the fair conduct of judicial proceedings, it is the duty of everyone concerned, not merely to avoid arguments of that kind, but to eschew loose or careless statements which may - however unintentionally - insinuate such considerations into the minds of the jury. There is no safe rule except to avoid even the risk of offence. If two courses are open, one of which may pass though ambiguous, while the other unmistakeably maintains the highest standards of practice, the duty of everybody is, of course, to select the latter and reject the first." And in Wright v Hearson (1916) WN 216 Rowlatt J said: "It is the duty of counsel to know and observe the rules governing what they may and what they may not do in the conduct of cases; they may not disregard those rules and trust to not being checked in time." 19 In Wellington v Lake George Mines Pty Ltd (1962) SR (NSW) 326 Evatt CJ and Wallace J said at 327-8: "It is a commonplace occurrence for material of a more or less inflammatory nature to be placed before a jury. Sometimes (and most effectively) it is done with a measure of subtlety or restraint, but on many occasions more direct methods are used. Challenging and critical language is not confined to jury actions and is used - perhaps not always with efficacy - in other jurisdictions. Prima facie therefore it would appear to be a somewhat startling proposition that a third trial should be necessary because of an inflammatory opening address at a second hearing. There are, of course, recorded instances where grossly improper and unfair questions or statements have made a new trial quite imperative and an example is Croll v McRae . Furthermore it is conceived that an appellate court would only with reluctance and anxiety intervene in a case where a trial judge has exercised his discretion on a matter of practice and procedure especially where the immediate subject of appeal relates in an objective sense to a question of costs only. But in the instant case we are of opinion, with the utmost respect to the learned trial judge, that we should state our reasons why we think his Honour erred in discharging the jury - if only to avoid the possible catastrophe of a fourth trial. At the same time we respectfully agree with his Honour that the use of overcolourful or intemperate language is in general undesirable and regrettable. Where we disagree from his Honour is, that having regard to (i) the nature of the defences raised by the defendant (ii) certain evidence given at the first trial and (iii) the particulars which had been given of the plaintiff's allegations, any intemperance in the opening address could have been readily checked and neutralized by the learned judge himself without any unfairness to the defendant. We further think that having regard to the three factors which we have just mentioned, his Honour erred in holding that the opening address contained material which went beyond the particulars in a relevant sense, that is to say so as to cause surprise or unfairness to the defendant." 20 Later in their judgment at 330 their Honours said: "It is true that in the present case counsel is open to the charge that he used overstrong language and this, as we have already indicated, is regrettable but in principle we think he was in order as regards the general nature of his comments. There is a good deal of thrust and parry in most jury actions and hard knocks are taken and delivered and it should only be in extreme cases that words of a colourful or even intemperate nature could justify such heroic surgery as is involved in ordering a third trial." 21 In the result their Honours concluded that the respondent's application to have the jury discharged was unwarranted. Ferguson J dissented. 22 As might be expected in a case of this kind, the plaintiff's case consisted of his counsel Mr Molomby's opening and the tender of copies of the article from the Sydney Morning Herald published on 24 May 1996, which became an exhibit. The defendant called no evidence and Mr Molomby addressed the jury followed by the defendant's counsel, Mr McClintock. Mr Molomby did not seek leave to address the jury further before the summing up; compare Pt34 of the Supreme Court Rules. 23 At the close of the opening of counsel for the plaintiff, Mr McClintock sought to have the jury discharged claiming that Mr Molomby had "been trying for years to come up with a way of telling the jury that the article in question is false and he has come up with a new and devious way of doing it in this case." This allegation was developed before the judge. Later, Mr McClintock said: "As I said, your Honour, I've listened to enough addresses from my learned friend to be aware of his continuing attempts over the years to find a way that he can slip through a judge …". Her Honour remarked that she was interested solely in the criticism made of Mr Molomby's opening. After Mr McClintock on behalf of the defendant had announced that no evidence would be called, Mr Molomby addressed the jury. This was followed by Mr McClintock's address which included the following passages: "I am going to take you to a number of things I wish to explain to you. Of course I am going to take you through the article, but what I want to say to you right now, members of the jury, is I want to say that this case brought by this plaintiff is the biggest try-on there has ever been. When you actually look at this article, members of the jury, and you take it as a whole, as you have to, as Mr Molomby said and her Honour will tell you, you have to take the whole article, it makes absolutely clear, members of the jury, that the plaintiff, Mr Pavy, didn't do it. That is the reason why it is a try-on, because the only way that Mr Molomby can run the case and can put it to you is by picking out the sentence that appears next to just about where the baby's legs are in the photograph on the stroller and completely ignoring everything else there in the article. Look at the headline, 'Father freed after child's death', members of the jury. They have a picture of Mr Pavy walking across Queen's Square, that's right outside this building actually, free. Now you don't go free if you've committed the crime. The point is, members of the jury, when you actually read it, and I will come to it, it is absolutely clear that Mr Pavy has been completely exonerated by the judicial system, by the court, and that is why I say that this case is a try-on, because it does not mean what the plaintiff says it means. As I said to you, members of the jury, you have to take the whole of the article. You can't isolate and pick out little bits of it because it would be very very unfair if you did. You have to look at the whole of it. Now look at the whole of it, members of the jury. Mr Molomby also said to you that it didn't matter that the words he was focusing on, ignoring all the rest, were a quote. Of course it matters that they are a quote. They are a quote from a judge, the judge at the trial, in circumstances where the Court of Appeal [sic] has allowed an appeal from this judge. So the reader will know, will see it in the context, that is the reader will know that there has been a successful appeal and the findings of things said by the judge lower down no longer stand. That is the point made absolutely clear by this article, members of the jury. I will take you back through it line by line and show you how absolutely overwhelmingly in favour of Mr Pavy the actual article is. Just, for example, look at the reference of 'cheering supporters' outside and so on. It makes absolutely clear that he was completely exonerated members of the jury. That is why I say it is a try-on. I don't hesitate to say that because it clearly is." 24 There are two particular features of this passage. The statement in its context that "the findings of things said by the judge lower down no longer stand.", is a reference to was said by the sentencing Judge, Justice James. The second is the use of the expression "try-on" (four times up to this point) in the context that counsel was indicating to the jury that this case is the biggest try-on there has ever been and that he does not hesitate to say that because it clearly is. According to the Macquarie Dictionary, the expression "try-on" might be understood by the jury as saying that the plaintiff or his legal representatives were attempting to hoodwink the jury, in the sense of deceiving it. 25 Later in his address to the jury, Mr McClintock said: "I would ask you to bear that in mind because, of course, you have to take the article as a whole. You can't ignore any bit of it, it is the totality of the article that counts, members of the jury, I have said that to you several times, and you have to factor in statements such as those ones made by the trial judge and you should not ignore them, although the plaintiff has really invited you to do so. It then goes on: ' 'However, this act, was not a lone, isolated aberration, in that on a previous occasion, he had broken six of the child's ribs by doing a similar sort of act', he said.' Now that, of course, is a quote. It is a quotation from the trial judge, Justice James. The quotation starts with ' generally gentle, caring and non-violent' in the previous paragraph and finishes there. Then the quote continues: 'The prisoner was not aware at the time of the murder that he had previously broken the child's ribs.' Just pausing there, members of the jury, I don't think Mr Molomby did mention that paragraph. 'The prisoner was not aware at the time of the murder that he had previously broken the child's ribs.' But it is clear, members of the jury, as I said, the article is setting out what the trial judge said. The reader knows because the reader has been told in the headline, in the caption of the photograph, the photograph itself and the first paragraph, 'Appeal upheld. Conviction quashed', that what the trial judge did did not stand in the Court of Appeal. Now it is there as background. What the trial judge said will be seen in that context. Ask yourselves this at the end of the article, and I will come to it, ask yourselves this. Do you think that the reader would have thought that in the whole context that the article was saying he actually had broken six of the ribs or that was the meaning the person would take? The answer, members of the jury, must be no and that is the reason why I describe this case as a try-on." 26 After further quotation from the article and emphasis of some parts of it, Mr McClintock said: "Now there is one other thing I should say. This may have more relevance to the second question, members of the jury. If you look at the paragraph that begins: 'The prisoner was not aware at the time of the murder that he had previously broken the child's ribs,' that is the trial judge saying that. Now you may think it surprising that someone wouldn't be aware that they had broken six of the child's ribs, but that is what the trial judge has actually said and that has to be taken into account equally in determining whether the meaning that the plaintiff says is conveyed. You see, one would have thought that if one shook a child and broke the child's ribs by shaking the child, that one would know about it. It suggests that the article is not saying that, members of the jury, for that reason." 27 Although not complained of, this is a dangerous way of making the simple point that the defendant was by quotation stating that the plaintiff was not aware at the time of the murder that he had previously broken the child's ribs. To suggest to the jury that they might think this surprising invites attention to, and consideration of, something totally irrelevant to either question. Particularly is this so, as I have already mentioned, if there is a risk that the jury may take account of its own belief that para 12 of the article was true and para 13 was false. The risk is magnified by saying "one would have thought that if one shook a child and broke the child's ribs by shaking the child that one would know about it." It would be surprising if experienced counsel did not recognise that these suggested thoughts could prejudice the jury against the plaintiff. In Coleman v Incorporated Newsagencies Company Pty Ltd (unreported) Supreme Court, 16 September 1975, Cantor J, on an application for discharge of the jury, remarked: "As I understand my duty in this situation it is to be mindful of the seriousness of the course I am asked to take, to be mindful of the frustration and delay in the administration of justice which is involved. I should only discharge this jury if I am satisfied that to permit the trial to proceed would be likely to lead to an injustice. I am mindful that this was no casual accidental remark introduced into the address inadvertently and seized upon by the defendant."

Cantor J was of the opinion that the prospects of the defendant having a fair trial of the issues, in that case as pleaded and particularised, had been so prejudiced that he should discharge the jury. In the present case, it is plain enough that the use of the expression "try-on" was not casual or accidental or due to inadvertence. 28 Having completed what he had to say to the jury about question one, Mr McClintock said: "But I, of course, have to operate on the basis that I have to cover all bases in duty to my client - as I put to you, this is the biggest try-on ever - so I have to deal with question 2." 29 A little further on, counsel said, after referring to the imputation: "Now in a sense one's first reaction, and it is an emotional reaction and it is only that you should be using your minds, not your emotion, is to think, 'Oh, that must be something bad', but it is not, members of the jury, necessarily." 30 A few lines further on, counsel said: "The point here is that when you are judging this question here, once again you have to take the whole context of the article and ask yourself in context, in the whole of the article, given the things that it is saying, whether the person, whether an ordinary person, an ordinary member of our community would have thought the less of Mr Pavy after reading the whole article and the answer once again, members of the jury, is no, the ordinary reader wouldn't have thought the less." 31 At the close of Mr McClintock's address to the jury, Mr Molomby asked to have the jury discharged. First he relied on the references to the proceedings being a try-on and what was said to be senior counsel's own standing associated by way of guarantee of the soundness of the proposition, secondly on the references to the Court of Criminal Appeal overturning the trial Judge's finding and thirdly on references to what was said to be the jury's belief. Combined, these three things were said to entitle the plaintiff to a verdict by direction. At the conclusion of the submissions, Bell J declined to discharge the jury. Her Honour said: "Mr Molomby, I have regard to the matters that you have raised, but I am of the view that I can deal with them in the course of my directions to the jury. I am not persuaded that it is appropriate to discharge the jury and I decline to do so." 32 In the course of her summing up to the jury Bell J said: "27 In the context of these general observations I should make this further observation to you. On a number of occasions Mr McClintock referred to the plaintiff's claim as 'a try-on'. I think on one occasion he characterised it as 'the biggest try-on there's every been'. Members of the jury, it is open to counsel to advocate on behalf of their client in a robust and vigorous way. If you take that submission to mean no more than that it is the defendant's case that the article read as a whole would not have conveyed the meaning for which the plaintiff contends to the ordinary reasonable reader of it, then there is no difficulty with the submission. However, you should not take Mr McClintock's reference to the plaintiff's case as a 'try-on' as meaning that Mr McClintock is putting to you in his experience as a barrister, 'This is an unmeritorious claim brought by the plaintiff in an effort to secure a result to which he is not entitled'. Might I suggest this to you? You should go about your task weighing up and giving proper consideration to the substance of the submissions put to you by each of the counsel and not allowing yourself to be affected in any way by colourful expressions such as 'a try-on'." 33 Later, her Honour said: "38 Just before I go to the heart of Mr McClintock's submissions I should point out this matter to you. During the course of those submissions Mr McClintock said something to the effect that 'we all understand the way the legal system works and we all know about criminal trials and that there are appeal courts that may set aside or quash the determination of the trial court'. I do not suggest he used those precise words but that was the effect of the submission. I emphasise that you are not to decide this case based on your knowledge of the legal system and how it works, if you happen to have some such knowledge, nor are you to decide it on the basis of things that Mr McClintock tells you about the mechanism by which the system of criminal justice works. You are concerned with the meaning that this article conveyed to an ordinary reasonable reader of it back in May of 1996. 39 It is Mr McClintock's submission that that ordinary reasonable reader would have understood the article to be saying that the words attributed to Justice James had been put at nought by the outcome of the appeal which is referred to in the opening paragraph of the article. In his submission, viewed as a whole, the ordinary reasonable reader would not have understood the article to carry the meaning that on a previous occasion the plaintiff had broken six of his child's ribs by doing an act similar to shaking the child. 40 Next Mr McClintock invited you to consider that if, contrary to that argument, you were persuaded that the correct answer to question one is 'yes', that nonetheless, you would not find that meaning to be defamatory of the plaintiff and again, he relied on the context of the article as a whole. In other words, he invited you to consider that viewed in this context, if you found that the article did carry with it of the plaintiff that he had broken six ribs of his baby son by doing a similar sort of act to shaking him, that was not a meaning that would lessen him in the eyes of ordinary right thinking members of the community and the reason for that in Mr McClintock's submission to you was that when read as a whole, that is when the ordinary reasonable reader read the article as a whole, he would have understood the meaning to convey that the episode of breaking the child's ribs by a similar sort of act to shaking the child was an accident. 41 I have reminded you only moments ago of Mr Molomby's submission to the contrary, namely, that read in its context, the article is said by him to be clearly condemnatory in that portion of it which deals with the earlier episode of breaking the child's ribs, as distinct from laudatory. 42 The issues are in the way counsel have put them to you fairly straightforward, members of the jury, and I do not propose to remind you at any greater length of the competing submissions that have been put." 34 After the completion of the summing up, Mr Molomby, in response to her Honour's question, said he did not wish to raise any matters with the judge. Mr McClintock said: "To make it entirely clear, when your Honour corrected me, your Honour said to the jury that I had said to the jury that it was necessary for the jury to believe that the answer to question 1 was yes before they could answer 'yes' and then you said that I was wrong. Your Honour, with respect, put that way, it was perfectly clear. What your Honour was trying to do was to take them away from the subjective and focus on the objective of the ordinary reasonable reader. It is my note and it was also my instructing solicitor's note. I have written out a direction your Honour, which deals with that and it says this: 'When I was directing you earlier I said that Mr McClintock had said that it was necessary for you to believe that the answer to the first question was yes before you could answer it 'yes'. I went on to tell you he was wrong. I may not have made myself clear. Of course it is necessary for you to believe the answer to question 1 is yes before you answer it 'yes'. What is the case, however, is that it is not necessary for you personally to believe that the meaning was conveyed to you, rather, you should consider what the ordinary reasonable reader would have thought, not any subjective belief as to that matter on your behalf.' HER HONOUR: Mr Molomby, do you have any submissions on this? MOLOMBY: I would accept that what is said there is correct in substance, your Honour. HER HONOUR: My only concern is creating confusion. I accept that plainly enough, if the jury believe that if the answer to question number 1 is yes, they having applied the correct standard of proof, then the answer is 'yes'. McCLINTOCK: Perhaps it is better to leave it. I am just wondering. HER HONOUR: That is my concern. MOLOMBY: Can I say I didn't take your Honour's summing-up to have the defect in it that my friend points to? I though there was something after what my learned friend referred to that made it clear what your Honour was saying. HER HONOUR: I must say that I thought then I went on to make it clear that provided -- MOLOMBY: I am sure that your Honour said something that the person who mattered was the ordinary reader and the judgment that that person formed. McCLINTOCK: That is correct. 'You are concerned that more probably than not the ordinary reasonable reader would have believed the article to have conveyed the meaning. Your own belief is correct.' Your Honour, I don't think I will press it. HER HONOUR: Mr McClintock, I do see the sense of what you say, but I doubt that the jury would reason in that particular fashion and I am concerned lest we create confusion. McCLINTOCK: I understand, your Honour. I won't say anything further."

Leave to appeal and appeal 35 On 21 November 2003, this Court (Giles and Hodgson JJA) granted the plaintiff leave to appeal from the jury's finding that the meaning conveyed by the article, or a meaning not substantially different from it, to the reasonable reader that the plaintiff had broken six ribs of his baby son by doing a similar sort of act to shaking him, was not defamatory and from Bell J's refusing to discharge the jury at the conclusion of the address by counsel for the defendant. 36 In John Fairfax Publications Pty Ltd v Rivkin (2003) 77 ALJR 1657 the majority of the High Court held that both as a practical and legal matter, a jury's decision on a factual question, although by no means impregnable, does have an authority over and above that of a decision of a judge sitting alone to determine a factual question. The jury is representative of the community. Its members are better placed than judges to give meaning to, and evaluate, the spoken and written words and its impact upon the community. The occasions for judicial correction of jury verdicts will be extremely rare. A finding of a jury may only be overturned if it is one that no reasonable jury could reach; see per Callinan J at 1698-9 [184] and [185] and see generally per Gleeson CJ at 1658 [1] and Heydon J at 1703 [219]. 37 This Court's decision of 5 March 2002 in these proceedings, that imputation (b) as then pleaded contained an intention to subject the child to forceful physical action which, though not intended to cause really serious bodily injury, in fact causes the fracture of six ribs [10] was perversely found by the jury not to be defamatory, in no way absolves the Court now looking afresh at the amended imputation (a). The imputation must be understood and construed in the context of the whole matter complained of; Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 at 173. However, as Callinan J said in Rivkin at 1699 [187]: "But that does not mean that matters that have been emphasised should be treated as if they have only the same impact or significance as matters which are treated differently. A headline, for example, expressed pithily and necessarily incompletely, but designed to catch the eye and give the reader a pre-disposition about what follows may well assume more importance than the latter. … Layout may create its own impression. … The order in which matters are dealt with can be significant. … The intrusion of irrelevant information may raise questions as to the meaning intended to be, and actually conveyed. … True it may be that readers may take an article or articles on impression, but the fact that they may do so is likely to have the consequence that ideas and meanings conveyed by graphic language will create the strongest impressions." 38 In Rivkin McHugh J dissented and, contrary to the conclusion of the other members of the Court, held that the orders of the Court of Appeal should be set aside and the appeal to the Court of Appeal dismissed with costs. At 1660-1 [17 and 20] his Honour said: "[17] In determining whether a civil jury acted reasonably in reaching its verdict, an appellate court must approach the case on the basis most favourable to the respondent to the appeal. The question for the appellate court is not whether the verdict is right or appears to be right but whether in the light of the evidence the verdict shows that the jury failed to perform its duty ( Mechanical and General Inventions Co v Austin [1935] AC 346; Hocking v Bell (1945) 71 CLR 430 at 498-499; Coyne v Citizen Finance Ltd (1991) 172 CLR 211 at 277). As long as the verdict cannot be described as irrational, it must stand ( David Syme & Co v Canavan (1918) 25 CLR 234 at 239). … [20] It is only when the publication contains a 'plain and obvious defamation incapable of any innocent explanation' ( Lockhart v Harrison (1928) 139 LT 521 at 523) or where the words are 'necessarily' ( Geach v Hall (1890) 16 VLR 386 at 389, 391-392; Blashki v Smith (1891) 17 VLR 634 at 636, 638; Rofe v Smith's Newspapers Ltd (1927) 27 SR (NSW) 313 at 316, PC; Thompson v Truth & Sportsman Ltd [No 1] (1929) 31 SR (NSW) 129 at 134-5) defamatory that an appellate court is entitled to find that no reasonable jury could have failed to find the meaning alleged or that it was defamatory. As Chief Justice Darley observed in Kelly v Daily Telegraph Newspaper Co ((1897) 18 LR (NSW) 358 at 361), if the words of the publication have 'any possible construction which can be put upon them, susceptible of an innocent meaning, then the verdict of the jury for the defendants is conclusive and cannot be disturbed.' Hence, an appellate court can set aside a verdict of no libel on the ground of unreasonableness only when the words of the publication are not capable of any but a defamatory meaning. ( Doyle v McIntosh (1917) 17 SR (NSW) 402). Only when the defamation is 'clear and beyond argument' ( Broome v Agar (1928) 138 LT 698 at 702; Cairns v John Fairfax & Sons Pty Ltd [1983] 2 NSWLR 708 at 716-7) can an appellate court set aside a jury's finding that the publication does not have the meaning alleged or that the meaning alleged is not defamatory."

See also Beran v John Fairfax Publications Pty Ltd (2004) NSWCA 107 at para 110 per McColl JA. I do not understand the members of the majority of the Court in Rivkin to differ on this point from what McHugh J said. 39 It may seem curious that, the jury having been left to answer and having answered yes or no to the question whether the plaintiff had established that the article conveyed of the plaintiff the meaning pleaded and, if so, whether that meaning was defamatory of him, a court of appeal should set aside the jury's answer on the grounds that the choice of one of the two possibilities put to the jury was unreasonable. But this apparent anomaly flows from the stipulation in s7A(3) of the Defamation Act that the jury is to determine whether the matter complained of carries the imputation. 40 While this Court regarded it as perverse, and therefore unreasonable, for the jury to conclude that the meaning of the article alleged in imputation (b) as originally pleaded was not defamatory, the omission in the amended statement of claim para 4 of the words "he had directed physical violence towards his infant son thereby breaking six of his ribs", which were part of the imputation pleaded in the original statement of claim, might be regarded as changing the meaning of the imputation. It could not, in my opinion, be said necessarily to convey the meaning that the plaintiff intended to break six ribs of his baby son. The pleader has deliberately eschewed such a suggestion leaving open at least the conclusion, that in accordance with the imputation alleged, the plaintiff shook his infant son for some legitimate reason and by so doing accidentally broke his ribs. I do not intend to limit the way in which the jury might have reasonably understood the imputation in determining that it was not defamatory but merely to demonstrate that, in my opinion, it is quite impossible to say that the answer the jury gave to the second question was unreasonable. 41 In my opinion, the appeal against the jury's finding that the imputation alleged was not defamatory fails. 42 Bell J's decision not to discharge the jury was discretionary. I am satisfied that counsel's description of the plaintiff's case as a "try-on" and references to what they might think about the truth of paras 12 and 13 of the article might, in the words of Street CJ in Croll v McRae, insinuate into the minds of the jury matters irrelevant to their consideration and prejudicial to the plaintiff. Such things should not have been said. Had her Honour decided in her discretion to discharge the jury for this reason it would have been a proper exercise of that discretion and unchallengeable. However, I do not think it possible for this Court, removed from the trial courtroom and the atmosphere in which the case was run, to say that her Honour erred in concluding that she would be able appropriately and effectively to deal with the matters raised by counsel for the plaintiff in her directions to the jury. Of course, her Honour was not considering an application for discharge made at the end of many days of hearing. Further, it probably would have been possible to begin a fresh hearing within a comparatively short time. The jury was not concerned with the capacity of the article complained of to convey the alleged imputation nor with the capacity of the alleged imputation to be defamatory. Even so, the decision not to discharge the jury was an exercise of the trial Judge's discretion and I am not persuaded that any error is shown in the approach her Honour took in refusing to discharge the jury. 43 However, to my mind, there is much to be said for the view that the directions given did not sufficiently deal with what counsel for the defendant had said to the jury. A direction was called for that the jury should put any suggestion of a try-on by the plaintiff out of its mind and that the references by counsel for the defendant to a "try-on", in the way it was put to the jury, should not have been put any more than considerations of the truth or falsity of anything that was said in the article should have been put to the jury. However, no objection was taken by the plaintiff's counsel to these directions or to any part of the trial Judge's summing up, either because the plaintiff's counsel thought that the directions on these matters were sufficient or because, in all the circumstances, the plaintiff was prepared to accept a verdict on those directions. The plaintiff did not appeal against any part of the summing up and, in any event, it would be too late to do so when no objection was taken at the trial.

Orders 44 In my opinion, the appeal should be dismissed with costs. 45 McCLELLAN AJA: I agree with Sheller JA. 46 CAMPBELL AJA: I agree with Sheller JA. **********

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