Steven Germain v Cordina Chicken Farms Pty Limited

Court of Appeal (NSW)|2002-03-13|Before: Mason P, Stein JA, Einstein J, Adam P

CITATION : Steven Germain v Cordina Chicken Farms Pty Limited [2002] NSWCA 56 FILE NUMBER(S) : CA 40918/00 HEARING DATE(S) : 13/02/02 JUDGMENT DATE : 13 March 2002

PARTIES : Steven Germain (Appellant) Cordina Chicken Farms Pty Limited (Respondent) JUDGMENT OF : Mason P at 1; Stein JA at 9; Einstein J at 10

LOWER COURT JURISDICTION : District Court LOWER COURT DC 176/99 FILE NUMBER(S) : LOWER COURT Downs ADCJ JUDICIAL OFFICER :

COUNSEL : B McManamey (Appellant) H Shore (Respondent) SOLICITORS : George West (Appellant) Goldrick Farrell Mullan (Respondent) CATCHWORDS : Juries - Discharge of jury - Civil trial - Appeal against order discharging jury - Appellant, plaintiff at trial, sought damages for injuries claimed to have been suffered at the factory of the respondent employer, defendant at trial - During trial, counsel for plaintiff made reference to insurance and insurance companies - to medical report obtained by defendant and served, but not put into evidence and to suspicion regarding edited video tape tendered by defendant - During trial, television programme aired concerning unfavourable report on insurance companies - Trial judge granted application by defendant pursuant to s 79A of the District Court Act for trial to continue without jury and determined the trial by verdict for the defendant. - Whether material connecting link between plaintiff counsel's conduct and television programme - Whether exercise of discretion in discharging jury miscarried - Whether trial judge erred in failing to consider whether any prejudice to respondent actually occurred - Whether trial judge erred in failing to consider whether any prejudice could have been remedied by proper direction to jury Courts Legislation Amendment (Civil Juries) Act 2001 (NSW) No. 124 LEGISLATION CITED : District Court Act 1973 (NSW) Suitors' Fund Act 1951 (NSW) Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Atkinson v Atkinson [1969] VR 278 Hanna v Ford Motor Co of Aust Ltd (unreported, 13 April 1998, Full Court of Victoria) Livesey v New South Wales Bar Association (1983) 151 CLR 288 Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208 Patton v Buchanan Borehole Collieries Pty Ltd (1993) 178 CLR 14 R v George (1987) 9 NSWLR 527 CASES CITED: R v Smith (unreported, 8 October 1982, NSWCCA) [reported on other grounds [1982] 2 NSWLR 608] Strange v Hybinnet (1987) 5 MVR 389 Taylor v Edwards (1967) 85 WN (Pt 1) (NSW) 386 Varga & Matri (unreported, 28 August 1987, NSWCA) Wake v John Fairfax & Sons Ltd (unreported, 27 February 1988 NSWCA) [reported on another point [1973] 1 NSWLR 43) Wellington v Lake George Mines Pty Ltd [1962] SR (NSW) 326 Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318, 63 WN (NSW) 176 Wishart v Mirror Newspapers Ltd [1963] (SR) NSW 745 Wishart v Mirror Newspapers Ltd [1964] NSWR 231 . DECISION : 1. Order allowing the appeal; 2. Order that the orders below be quashed; 3. Order remitting the proceedings to the District Court for rehearing; 4. Order that costs of the initial hearing be costs of the cause on the rehearing; 5. Order that the respondent pay the appellant's costs of the appeal and receive a certificate under the Suitors Fund Act if otherwise entitled.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40918/00 MASON P STEIN JA EINSTEIN J 13 MARCH 2002 STEVEN GERMAIN V CORDINA CHICKEN FARMS

1 MASON P: I have had the benefit of reading the judgment of Einstein J which sets out the facts and relevant principles. I agree with his reasons and with the orders he proposes. 2 In my view the learned trial judge erred in principle when he dispensed with the jury without appearing to consider whether the problems he had identified were capable of remedy by a less drastic course than discharging the jury. 3 The trial had proceeded before a jury and each party was entitled to continue this way, subject to the proper exercise of any power to discharge. This was their right and the trial to date would have been conducted on that basis. 4 There will be cases where an extraneous event has such obvious impact that discharge of the jury is the inevitable outcome. This was not the case here. More to the point, the judge did not explain his decision on that basis. 5 Counsel for the plaintiff at trial should not have made the unnecessary references to insurance. Nor should he have referred to the opinion of Professor Mitchell that was not in evidence. Furthermore, the trial judge was entitled to be concerned about the unsubstantiated and inappropriate slurs counsel had cast before the jury about the innocently edited tape. The slurs were unsubstantiated and inappropriate because counsel had chosen not to suggest anything untoward when offered the opportunity to cross examine those on the plaintiff's side who knew about the editing and who disclosed it to the court and the jury. 6 These matters squarely raised the issue about discharging the jury. But they certainly did not make discharge inevitable. Nor did the Four Corners program which I shall assume was properly taken into account (although I strongly doubt it, given that (a) it was not put into evidence (b) there was no consensus as to its content and impact and (c) no steps were taken to see if any juror had become aware of it). 7 In Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208 at 211-212, Kirby P stated the following principle in the course of summarising a trial judge's functions when considering whether or not to discharge a jury: 4. Where an objection is taken to the address of counsel and an application made for discharge of a jury upon the ground that counsel had introduced irrelevant facts, misstated the evidence or the law or has stated personal opinions in a prejudicial way (see Halsbury's, Laws of England , 4th ed, vol 3, at 622) the trial judge must consider the extent of any prejudice done and whether appropriate directions could cure that prejudice: see Strange v Hybinnet (1987) 5 MVR 389; Hanna v Ford Motor Co of Aust Ltd . Such consideration must evaluate the weight to be assigned to the estimated prejudice in the context of the trial to that point: see Wishart v Mirror Newspapers Ltd [1963] SR (NSW) 745 at 752; (1963) 80 WN(NSW) 1567 at 1572; [1964] NSWR 231 at 237. 8 I respectfully agree.

9 STEIN JA: I agree with Mason P and with Einstein J. 10 EINSTEIN J: The proceedings below 11 Over a period of eight days between 16 and 26 October 2000, Acting Judge Downs sitting with a jury presided over a civil hearing in the District Court in which the appellant (the plaintiff below) sought damages from the respondent (the defendant below). The respondent had been the appellant's employer at a time when the appellant claimed to have suffered injuries whilst at work in the respondent's factory at Girraween on 13 June 1995. 12 On the 26th October 2000 his Honour heard and acceded to an application by the respondent pursuant to section 79A of the District Court Act that the trial continue without a jury. Section 79A (now repealed by Courts Legislation Amendment (Civil Juries) Act 2001 No. 124) provided as follows: "In any action the Court may order, despite sections 77, 78 and 79, that all or any questions of fact be tried without a jury". 13 His Honour proceeded to determine the hearing himself and on 28 November 2000 delivered a judgment in terms of a verdict for the respondent and an order that the appellant pay the respondent costs of the action. The burden of the judgment was that his Honour was not satisfied that the appellant was involved in a collision or fall at work on the occasion alleged. 14 The appellant seeks orders quashing the orders below, an order remitting the proceedings to the District Court for rehearing, an order that costs of the initial hearing be costs of the cause on the rehearing and an order that the respondent pay the appellant's costs of the appeal. 15 No issue arises in respect of the trial judge's power to make the orders. [see Patton v Buchanan Borehole Collieries Pty Ltd (1992) 178 CLR 14] The sole issue concerns whether his Honour's exercise of the court's discretion miscarried. 16 The principles governing the discharge of a jury were generally set out in the judgment of Kirby P in Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208 at 211 and following. 17 The central issues raised by the appeal concern whether or not his Honour erred in having failed to consider, in perspective, whether any prejudice to the respondent had been shown to arise by reason of the matters raised before his Honour and/or in having failed to give adequate consideration to the further question as to whether any such perceived prejudice could be addressed by a proper direction to the jury such that the hearing with full jury participation would have regularly continued to its determination in the manner in which it had proceeded for seven days. 18 The application for the order discharging the jury had been pressed by the respondent on two bases and was acceded to on those bases.

The 'Insurance' issue/The Four Corners Programme 19 The first basis was put in terms of two matters which were said to be interrelated. These were as follows: · that the appellant's counsel had made inappropriate and unnecessary references to 'insurance' or 'insurance companies' ["the insurance references"] on a number of occasions in a manner which it was submitted was prejudicial to the respondents case · that on the evening of Monday 23 October 2000 an ABC Four Corners programme, which apparently castigated the conduct of several insurance companies in relation to Queensland fire claims, had been broadcast. 20 His Honour had seen the Four Corners programme and although there was no evidence before his Honour in relation to the programme, his Honour described the programme in the following terms: "[the programme] dealt in detail with some fires in which claims had been made on several insurance companies, some of which were named. These fires had been investigated by a private investigator or investigators and the whole theme of the programme was that the investigators had acted fraudulently and that the insurance companies condoned or even encouraged the fraudulent conduct of the investigators".

Professor Mitchell's report 21 The second basis was put in terms of inappropriate references to a medical report of Professor Mitchell said to have been made by the appellant's counsel. This report had been obtained by the respondent and served upon the appellant but not having been tendered by either party, was not in evidence.

The Course of the hearing 22 The convenient course is to examine each of these bases at the same time as shortly describing the course taken by the hearing. 23 The hearing commenced on 16 October 2000. The plaintiff gave evidence in chief and was cross-examined. His evidence continued into 17 October and following the interposition of certain other witnesses, continued into 18 October. He was strongly cross-examined in terms of his credit inter alia as to his disability and incapacity. The cross-examination included the respondent's counsel showing two videotapes, the first taken of the appellant's activities in July 1995 (transcript 47M) and the second (which as explained below had an unedited and an edited version), taken of the appellant's activities in July 1997 (Transcript 126 - 128). On each occasion counsel for the respondent was required to and gave an undertaking that the respondent would strictly prove the videotapes at a later stage. 24 Without travelling into the precise detail or giving transcript references it is common ground that the original July 1997 video had in fact been filmed by a correctional officer [Mr Howe] with no experience in using the video camera and that a considerable deal of what he had recorded had included shots of the ground and other irrelevant material. He had passed that film to the private investigator, Mr Bushnell, whose practice it had been to edit films by deleting irrelevant material. Mr Bushnell had then given the edited film to the respondent's solicitors apparently without informing them that the film had been edited. 25 At the time when the edited videotape was first shown to the plaintiff in Court no mention was made of the fact that it was not the original. The defendant's counsel having raised the question of the genealogy of the tape, much was then made by him in address as to how, only through the plaintiff's objections, had it come to light that what had been shown was in fact an edited and not the original film. In due course the defendant's counsel made it clear that he had not been personally aware that what was being first shown to the plaintiff was an edited tape. Questions were however raised by the plaintiff's counsel as to whether the defendant's side generally had been aware of the circumstance, no suggestion being pursued to the effect that the defendant's counsel had been aware of what was occurring. 26 At the conclusion of the 17 October 2000 hearing day the trial judge asked counsel for the appellant to restrain himself from mentioning insurers pointing out that there had been three such references up to that time, although there was debate about whether there had been two or three such references. [Transcript page 90] 27 At the commencement of the continued hearing on Monday 23 October 2000, Mr Howe was recalled and the full film was played to the jury. Mr Howe was further cross-examined. On the same day Mr Bushnell gave evidence inter alia to the effect that having edited the film, he had forwarded it to the respondent's solicitors. 28 On Tuesday 24 October 2000 the hearing continued. Ms Kha, a solicitor in the employ of the respondent's solicitors, gave evidence and was very shortly cross-examined. It was not put to her that she knew or that her principal had known that the July 1997 videotape had been edited. Following the completion of all the evidence the respondent's counsel commenced his address to the jury [Transcript page 375]. The plaintiff's counsel then commenced his address and in its course put to the jury that the 26 July 1997 roll of film "should be approached with the utmost caution". [Transcript 403] A few minutes later he returned to this topic: "So far as the video itself is concerned, what we saw first up of course was an edited video. That edited video should be put from your mind entirely because what it does do, it shows a number of scenes which we now know are quite disparate in time.

It puts them together and creates a certain impression about what he was doing. Now it is unfortunate that the film got shown in that manner, in that truncated method. Perhaps if the film had been shown, proved in a more normal way which is the investigator is called and identifies the film, proves it before it is shown, it wouldn't have happened. But it was shown as it was on Mr Shore's undertaking to prove the film. Now he has led evidence as to how it was that it came about that this film was edited and I make no comment or aspersion on the fact that Mr Shore's decision in showing it at that time, he didn't know about it. But someone on the defendant's side knew about it. Somebody on the defendant's side knew that this wasn't the original tape. Somebody knew it had been transferred to a VHS . There is a certain lack of care about that. You might have to wonder about those things in the context of these cases. " [The emphasis is to particularly highlight matters the subject of close examination, high criticism and comment by the respondent's counsel during the appeal] 29 After some further matters were put to the jury, the appellant's counsel returned to the topic as follows: "……when one looks at the background of what Mr Howe was doing, how this video came about, you would certainly reject the gratuitous tossing in re-examination of, oh, by the way I saw him carting cement as well, just didn't catch that on video. It's this whole video is a very suspicious thing, a very unusual circumstances (sic). One really has to think about (sic) Mr Howe has to say…." 30 The hearing then continued on Wednesday 25 October 2000. At the commencement of this day counsel for the respondent, in the absence of the jury, informed his Honour that there were certain matters which had been put in address by the appellant's counsel which troubled him and in respect of which he was seeking instructions which he did not yet have. He would know shortly whether he might be, or would be instructed to make an application. In that event it would probably be appropriate to wait until conclusion, of the appellant's address, to make an application. The trial judge suggested that it may be appropriate to wait until conclusion of the summing up or to think about that as a possible appropriate timing. 31 The appellant's counsel then continued his address to the jury. In the course of this address he referred on a number of occasions to the opinion of Professor Mitchell. [Transcript pages 411, 412] He also referred to a report given by Dr Marsden in November 1995, making the point, as was in fact the case, that this report had been addressed to Employers Mutual Indemnity. 32 After the short adjournment the application under section 79A was made and a full transcript of this application was available during the hearing of the appeal. Some of the matters thrown up by that transcript are as follows: · The trial judge made clear that he had seen the Four Corners programme. The programme being apparently unavailable at such short notice, was however not put into evidence. · Counsel for the respondent described the programme shortly stating that the conclusion of the programme involved insurance companies being portrayed as using investigators as agents of fraud such that the suggestion made in the programme was that this was carried out with gross dishonesty as part of a concerted plan of attack and campaign. · Counsel for the respondent indicated that the programme was confined to fires and did not deal with personal injuries. · Mention was made of the naming on the programme of certain of the insurance companies. AMP and Zurich were apparently mentioned. It was not suggested that Employers Mutual Indemnity had been named. · Counsel for the respondent indicated that he had been conscious of the fact that during the course of the hearing the appellant's counsel had mentioned insurance "whenever he seems to have thought he could do it and get away with it" and the trial judge made the point that the word "insurance" had been referred on 3 occasions but not since he had raised the matter with the appellant's counsel. · Counsel for the respondent took the trial judge through the accusations of impropriety which he submitted had been made in relation to the manner in which the July 1997 tape had been first shown to the plaintiff without any mention, at that point in time, of its having been edited. The submission was that the appellant's counsel had effectively put to the jury that there was some underhand practice at work involving an insurance investigator employed on behalf of the insurer. None of this had been put to the investigator, Mr Bushnell, nor to any other of the respondent's witnesses who had been called. He submitted that the appellant's counsel in the course of his address had: "[trailed] it across in front of the jury as if in some way someone unidentified in the defendant's camp ought be held responsible for an act of impropriety, and then puts it alternatively as a lack of care.". He submitted that: "given the context of the programme which appeared the night before, [this could] only raise the very real spectre of a connection being made in the minds of the jury between the allegations put or made on that programme and the fact that investigators were employed in this case…" [Transcript 25 October 2001 at page 7]. · The trial judge then raised with counsel for the respondent the question of whether he was assuming that the jury had watched or heard of the Four Corners programme. Counsel for the respondent indicated that he was not necessarily making any such assumption but was approaching the matter upon the basis that there was a significant likelihood that at least one of the jurors had seen the programme or had heard something about the broad thrust of the allegations made involving, as they did, insurers, investigators, payments and fraud. [Transcript at page 7] · Counsel for the respondent then turned to the Professor Mitchell report issue. The report had not been put into evidence and it had clearly been entirely inappropriate for the matter to be mentioned before the jury. Although counsel for the respondent accepted that counsel for the appellant had made an honest mistake, he submitted that the references to the report before the jury presented a major problem so that, both for the reasons associated with the insurance and Four Corners issue, as well as the Professor Mitchell report issue, the jury should be dispensed with and the trial judge should himself continue the hearing. · Counsel for the appellant then addressed. [Transcript page 14 and following] He had not seen the Four Corners programme. At Transcript page 22 he made plain that he saw himself at a disadvantage in terms of not having had the opportunity to see the programme. He submitted that as he understood the respondent's description of the programme, it had talked about the actions of insurance companies in relation to fire cases which he submitted, could effectively discharge every jury involving every insurance company in the country. His submission was that the question was whether this would relate specifically to the hearing then in progress. He generally sought to distance the videotape issue from any suggestion of the type which he understood had been made in the programme, where there had been, so the trial judge had indicated, allegations of the browbeating of owners of buildings and of putting suggestions to witnesses. Counsel for the appellant submitted that he had not suggested before the jury that any pressure had been placed upon Mr Howe to create the videotape, he not having been an insurance investigator nor associated with any insurance company. The most that he had put to the jury was that it was unfortunate that they had seen an edited video which they should not have seen. He had not, in his submission, suggested any impropriety on the part of the insurer. Effectively he had simply put to the jury that it was unfortunate that the videotape had been put to them in an edited version in the first instance without a proper explanation. · Counsel for the appellant dealt with the Professor Mitchell report issue submitting that he would certainly, if the trial judge permitted this course and the jury was brought back, be content to address the jury in terms of the necessity that they disregard any reference to Professor Mitchell. Alternatively he was content to tender the Professor Mitchell Report. · Importantly counsel for the appellant referred to authority in support of the proposition that, as he put it: "what one starts with is a jury has been requisitioned, you have a jury, and prima facie you keep a jury. It is only if…..you are persuaded that that should be departed from [that the jury should be dispensed with]. Now what I would seek to submit is this: that one only departs from that course if one arrives at the position that….and in this case, something has arisen that cannot be rectified by a course other than dispensing with the jury and your Honour proceeding to determine the case alone …" [Transcript page 26] · Counsel for the appellant went on in relation to the Professor Mitchell report, submitting that what arose from his mention of it to the jury could be dealt with, and properly dealt with, either by a direction to the jury or by a tender of the report. [Transcript page 20] Again at transcript page 29, he (apparently in relation to the Professor Mitchell report), referred to aspects of the suggested prejudice which: "could have been very easily rectified because it is nothing more than the existence of a document." The trial judge's reasons 33 Essentially having outlined the context giving rise to the application (generally as summarised above) and the bases upon which the application had been pressed by counsel for the respondent, the trial judge said very little in terms of the considerations which ought apply to a proper exercise of the discretion and was far from expansive in explicitly identifying the considerations which he had taken into account in terms of reaching his decision to discharge the jury. In fairness to his Honour, he made plain that he was compelled to give reasons in rather a shorter form that he would have preferred as the jury was awaiting and as the transcript of counsel's addresses had been recorded. 34 His Honour clearly turned his mind to the possibility of his questioning the members of the jury as to their knowledge of the Four Corners programme as he expressed the view that in order to identify the programme it would be necessary to make a reference to insurance which would have a consequence of highlighting the insurance issue and could well cause prejudice. For this reason His Honour made clear that he did not propose to adopt this course. [Judgment at page 2]. 35 His Honour adverted in some detail to the circumstances in which only the edited version of the July 1997 film had been first shown to the jury. His Honour adverted to the fact that the respondent's counsel in support of the application for the discharge of the jury had put that during the course of the appellant's counsel's closing address: "he indicated to the jury that someone on the defendant's side knew that the tape was edited, inferring that something underhand had been done or might have been done by someone on the defendant's side". His Honour's holding was that this was an inference which the jury could have drawn from what was put. [Judgment at page 4] 36 His Honour then turned to the Professor Mitchell report issue and having explained the issue continued: "One of [ the appellant's counsel's] references in address to the report was that Professor Mitchell did not consider the plaintiff to be as fit for work as Dr Bentivoglio, a treating specialist of the plaintiff, who had given evidence concerning his opinion as to the plaintiff's fitness. [The appellant's counsel] contended that this could be remedied by calling Professor Mitchell or tendering his report. In view of what [the appellant's counsel] said in his address [the respondent's counsel] would wish to cross-examine Professor Mitchell and he would be entitled to cross-examine him if I gave the plaintiff leave to reopen his case and tender the doctor's report. However the trial has reached a stage where the last address was almost finished and it is much too late to reopen. Furthermore the availability of Professor Mitchell is unknown and the jury should not be delayed any longer." [Judgment at page 5] 37 It is unnecessary to refer to the manner in which His Honour had [at Judgment pages 5R-6C] summarised counsel for the appellant's submission that the application had been made too late as the appellant did not rely upon this portion of the judgment on the appeal. 38 His Honour referred to the submission put by counsel for the appellant that counsel for the respondent should have interrupted him during his address and pointed out his error concerning Professor Mitchell. I do not see that this section of the judgment [at Judgment page 6 C-K] has any materiality in relation to the appeal. 39 His Honour stated that Ms Kha, who had the carriage of the matter, had given evidence that she had received the edited film from Mr Bushnell and that she was not told, nor did she know, that it had been edited. [Judgment at page 4] This statement by his Honour was incorrect and immediately following delivery of the judgment, the respondent's counsel pointed this out, making clear that his criticism of the appellant's counsel in this regard had been that he had made his submissions in address without ever putting any suggestion to Ms Kha to the effect that she or her principal had known that the tape had been edited. [Transcript immediately following Judgment at Judgment page 6]

The principles governing appellate review of such discharge 40 These principles were carefully considered by Kirby P in Morgan v John Fairfax & Sons Ltd (supra at 213-215) and bear repeating: 1. Where a trial judge has discharged a jury on the ground of misconduct or serious error by counsel, an appellate court should be extremely slow to interfere in the exercise of such a discretion. The reasons for such reluctance are obvious. They include: (a) the advantages which the trial judge has in seeing the suggested offences in the context of the entirety of the trial: see Street CJ in R v George (at 533-534); citing R v Smith (Court of Criminal Appeal, 8 October 1982, unreported) [reported on other grounds [1982] 2 NSWLR 608]; (b) the advantages which the trial judge has in perceiving factors that may never be fully apparent to an appellate court and which may be specially relevant in the evaluation of alleged misconduct: see, eg, Brereton J in Wishart v Mirror Newspapers Ltd (at 751; 1571; 236); (c) the recognition of the inescapably opinionative nature of the discretion which the trial judge is called upon to exercise, such decisions being evaluative and not normative in character; and (d) the particular restraint which is generally exercised by appellate courts in reviewing decisions which may be characterised as concerned with matters of practice or procedure: see Jordan CJ in Will of F B Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323; 63 WN (NSW) 176 at 179; approved in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177. 2. These considerations, and doubtless others, provide the basis for the repeated expressions of restraint that appear in judgments of appellate courts called upon to review a decision to discharge or to refuse to discharge a jury for misconduct or serious error by counsel. The formulae differ but the instruction remains the same. The language ranges from the injunction that the discretion is "so wide that it would be very difficult indeed for this Court to interfere:" see Taylor (at 389; 691) to the suggestion that the court will intervene only "with reluctance and anxiety": see Wellington v Lake George Mines Pty Ltd (at 328; 375; 629). It is variously stated that the appellant must provide a clear and distinct demonstration that the "order was wrongly made" (see Wishart v Mirror Newspapers Ltd (at 757; 1576; 242) or that the appellate court will hesitate before taking the "grave step" to "stigmatise as plainly unjust and unreasonable" the exercise of a discretion by a trial judge: see Atkinson v Atkinson [1969] VR 278 at 279; (1968) 13 FLR 322 at 323; see also Wake v John Fairfax & Sons Ltd (Court of Appeal, 27 February 1973, unreported) (reported on another point [1973] 1 NSWLR 43); and Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 at 237. Even in the case of criminal appeals, where liberty is at stake and different ultimate criteria apply, the Court of Criminal Appeal has suggested that such applications will "rarely succeed" and this even in the case of a "gross" situation: see R v George (at 534). 3. Nevertheless, there will be cases where an appellate court, with the benefit of more time for reflection, a transcript and the opportunity to stand back from the whole case and to see the conduct complained of "against the entire canvass of the trial", will be in a better position than the trial judge to evaluate the prejudice complained of: cf Livesey v New South Wales Bar Association (1983) 151 CLR 288 at 294; Varga (at 18). 4. If the appellate court concludes that the trial judge's discretion has indeed miscarried and that there is a real possibility that an injustice has occurred, that court, notwithstanding the inhibitions previously stated, may set aside the order complained of and do so not only to ensure justice to the parties before the court but also to uphold the integrity of the legal process.

The exercise of the court's discretion miscarried 41 I accept as a given and as a matter requiring very heavy emphasis, the hesitation which an appellate court must clearly have before taking the grave step of stigmatising as plainly unjust and unreasonable, the exercise of a discretion by a trial judge in terms of his or her discharge of a jury on the ground that in the trial judge's opinion, in view of something which has occurred in the course of the trial, the jury will be unable properly to discharge their duty. Nevertheless I have formed the clear view that in this case the trial judge's discretion did miscarry such that there exists a very real possibility that an injustice has occurred unless this Court interferes in the exercise of the trial judge's discretion. 42 Clearly the trial judge was under a duty through the whole of the conduct of the hearing to ensure that a fair hearing was had and that any verdict was not affected by the misconduct of counsel. [cf Morgan v John Fairfax & Son's Ltd per Kirby P at 212] It was clearly necessary before the trial judge should take the extreme step of discharging the jury to consider whether, by appropriately expressed directions, he could sufficiently correct the effect of any misconduct or serious errors which had taken place by reason of any misconduct by the appellant's counsel. 43 It is possible to deal very shortly with the Professor Mitchell report issue. The appellant's counsel in referring to this report in final address had made the point that Professor Mitchell did not consider the appellant to be as fit for work as Dr Bentivoglio, the appellant's treating specialist, who had given evidence and had been cross-examined. If the report was to go into evidence, the respondent's counsel submits that he wished to cross-examine Professor Mitchell so as to seek to establish concessions as to fitness for work along the lines and for the reasons given by Dr Bentivoglio. The appellant's counsel suggests that the respondent's counsel wished to cross-examine Professor Mitchell only to establish that it was his opinion that the incapacity was unrelated to the incident relied upon. The addresses to the trial judge on the section 79A application expose the respective positions taken generally [the pages 8 through to 12]. In my view there were clearly a number of ways around the suggested prejudice to the respondent capable of being taken by the trial judge without taking the extreme step of discharging the jury. The trial judge had the power to obtain urgent information as to the availability of Professor Mitchell. Depending upon the answer to urgent inquiries in this regard, the trial judge in the exercise of his discretion had the power to either oblige the appellant to tender the report and to grant leave to the respondent's counsel to cross-examine Professor Mitchell on very limited areas. If the response to inquiries in relation to the availability of Professor Mitchell showed that it was not possible or practicable that he be called for cross-examination, the trial judge clearly had open to him the ability to address the jury by giving a direction that the references to Professor Mitchell required to be disregarded in their entirety. The suggested prejudice to the respondent in terms of the Professor Mitchell report issue simply fell very far short of showing the level or type of prejudice not capable of being addressed by appropriate directions. 44 The trial judge very clearly overstated what his Honour presumably saw as, on the one hand, a material connecting link between the conduct of the appellant's counsel in his references to an insurer or insurance companies and to the respondent's mode of presenting the July 1997 video to the jury, and, on the other hand, some form of prejudicial effect which might necessary result from the Four Corners programme having been shown on the Monday night and by some direct or indirect route, having come to the attention of one or more of the four Jurors. There was no such material connecting link. The attempt by the respondent's counsel to erect such a link was so clearly tenuous as to have required to be rejected by a ruling consistent with a proper attempt to consider whether the effect, such as it may have been, of the appellant's counsel's conduct, could be corrected by giving an appropriate direction to the jury. 45 The trial judge erred in failing to give proper consideration to what directions might have been given in the circumstances. The very first port of call in that regard had to be an ascertainment of the material facts. This meant a necessary enquiry of the jury as to whether or not any of them had viewed or been otherwise informed of the Four Corners programme. Only once such an inquiry had been made, could the trial judge hear properly informed submissions and step back to give an informed decision as to what further directions or other course ought properly to have been taken. The judgment makes plain that his Honour simply dismissed the obvious course of making enquiry of the jury, hence placing out of contention the very clear probability that, regardless of the response to such an inquiry, it would have been possible to fashion appropriate directions to deal with the situation which had developed. This is simply not a case in which the content of the Four Corners programme had dealt with the instant insurer, namely the Employers Mutual Indemnity Association, or had dealt with matters which were necessarily so close to any aspects of the way the hearing had been conducted as to mean that there was a reasonable or reasonably likely probability of a relevant connection being made by the jury in a fashion which would or clearly might enure to the obvious prejudice of the respondent. 46 Without minimising for one moment the proposition that there is always an element of perception available to a trial judge but denied to an appellate court, which by definition cannot be in the same position as the trial judge in terms of following the atmosphere of the trial, the fact is that so much as is known of the Four Corners programme is very far removed from faintly, let alone necessarily, mandating the conclusion that, notwithstanding the conduct of the appellant's counsel, the jury could not have been appropriately directed in fashion such as would have permitted the hearing with the jury to be regularly completed.

47 Orders should be made allowing the appeal, quashing the orders below, remitting the proceedings to the District Court for rehearing, ordering that costs of the initial hearing be costs of the cause on the rehearing and an order should be made that the respondent pay the appellant's costs of the appeal and receive a certificate under the Suitors Fund Act if otherwise entitled.

I certify that this and the preceding 19 pages are a true copy of the reasons for judgment of the Hon Justice C Einstein and the Court

13 March 2002 Associate

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.

Courts Legislation Amendment (Civil Juries) Act 2001(NSW)

Suitors' Fund Act 1951(NSW)

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Cases Cited (8)

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